Aug. 14, 2006 (71 FR 46540)
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Aug. 14, 2006 (71 FR 46540)
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Aug. 14, 2006 (71 FR 46540)
Monday,
August 14, 2006
Part II
Department of
Education
34 CFR Parts 300 and 301
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities;
Final Rule
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46540 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
RIN 1820–AB57
Assistance to States for the Education
of Children With Disabilities and
Preschool Grants for Children With
Disabilities
AGENCY : Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION : Final regulations.
SUMMARY : The Secretary issues final
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program. These regulations are needed
to implement changes made to the
Individuals with Disabilities Education
Act, as amended by the Individuals with
Disabilities Education Improvement Act
of 2004 (Act or IDEA).
DATES : These regulations take effect on
October 13, 2006.
FOR FURTHER INFORMATION CONTACT :
Alexa Posny, U.S. Department of
Education, Potomac Center Plaza, 550
12th Street, SW., Washington, DC
20202–2641. Telephone: (202) 245–
7459, ext. 3.
If you use a telecommunications
device for the deaf (TDD), you may call
the Federal Relay System (FRS) at 1–
800–877–8339.
Individuals with disabilities may
obtain this document in an alternate
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed
under
FOR FURTHER INFORMATION CONTACT .
SUPPLEMENTARY INFORMATION : These
regulations implement changes in the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program necessitated by the
reauthorization of the IDEA. With the
issuance of these final regulations, part
301 has been removed and the
regulations implementing the Preschool
Grants for Children with Disabilities
Program are included under subpart H
of these final regulations.
On June 21, 2005, the Secretary
published a notice of proposed
rulemaking in the Federal Register (70
FR 35782) (NPRM) to amend the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program, the Preschool
Grants for Children with Disabilities
Program, and Service Obligations under Special Education Personnel
Development to Improve Services and
Results for Children with Disabilities. In
the preamble to the NPRM, the
Secretary discussed, on pages 35783
through 35819, the changes proposed to
the regulations for these programs;
specifically, the amendments to 34 CFR
part 300, the removal of 34 CFR part 301
and relocation of those provisions to
subpart H of 34 CFR part 300, and the
amendments to 34 CFR part 304.
Final regulations for 34 CFR Part
304—Special Education-Personnel
Development to Improve Services and
Results for Children with Disabilities
were published in the Federal Register
(71 FR 32396) on June 5, 2006, and
became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the
major substantive changes in these final
regulations from the regulations
proposed in the NPRM (the rationale for
each of these changes is discussed in the
Analysis of Comments and Changes
section of this preamble):
Subpart A—General
Definitions
•The definition of child with a
disability in § 300.8 has been revised as
follows:
(1) Section 300.8(b) (Children aged
three through nine experiencing
developmental delays) has been
changed to clarify that the use of the
term ‘‘developmental delay’’ is subject
to the conditions described in
§ 300.111(b).
(2) The definition of other health
impairment in § 300.8(c)(9)(i) has been
changed to add ‘‘Tourette Syndrome’’ to
the list of chronic or acute health
problems.
•The definition of excess costs in
§ 300.16 has been revised to clarify that
the computation of excess costs may not
include capital outlay and debt service.
In addition, a new ‘‘Appendix A to Part
300—Excess Cost Calculation’’ has been
added to provide a description (and an
example) of how to calculate excess
costs under the Act and these
regulations.
•The definition of highly qualified
special education teacher in § 300.18
has been revised, as follows:
(1) Section 300.18(b), regarding
requirements for highly qualified
special education teachers in general,
has been modified to clarify that, when
used with respect to any special
education teacher teaching in a charter
school, highly qualified means that the
teacher meets the certification or
licensing requirements, if any, set forth
in the State’s public charter school law. (2) A new § 300.18(e), regarding
separate ‘‘high objective uniform State
standards of evaluation’’ (HOUSSE), has
been added to provide that a State may
develop a separate HOUSSE for special
education teachers, provided that any
adaptations of the State’s HOUSSE
would not establish a lower standard for
the content knowledge requirements for
special education teachers and meets all
the requirements for a HOUSSE for
regular education teachers. This
provision also clarifies that a State may
develop a separate HOUSSE for special
education teachers, which may include
single HOUSSE evaluations that cover
multiple subjects.
(3) Section 300.18(g) (proposed
§ 300.18(f)) (‘‘Applicability of definition
to ESEA requirements; and clarification
of new special education teacher’’) has
been revised as follows: (1) The heading
has been revised, and (2) the language
changed to clarify when a special
education teacher is considered ‘‘new’’
for some purposes.
(4) Section 300.18(h) (proposed
§ 300.18(g)) has been modified to clarify
that the highly qualified special
education teacher requirements also do
not apply to private school teachers
hired or contracted by LEAs to provide
equitable services to parentally-placed
private school children with disabilities
under § 300.138.
•The definition of Indian and Indian
tribe in § 300.21 has been changed to
clarify that nothing in the definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
tribe that is not listed in the Federal
Register list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
•The definition of parent in § 300.30
has been revised to substitute
‘‘biological’’ for ‘‘natural’’ each time it
appears in the definition, and to add
language clarifying that to be considered
a parent under this definition a
‘‘guardian’’ must be a person generally
authorized to act as the child’s parent,
or authorized to make educational
decisions for the child.
•The definition of related services in
§ 300.34 has been revised as follows:
(1) Section 300.34(a) (General) has
been modified to (A) add the statutory
term ‘‘early identification and
assessment of disabilities in children,’’
which was inadvertently omitted from
the NPRM, (B) combine ‘‘school health
services’’ and ‘‘school nurse services,’’
and (C) remove the clause relating to a
free appropriate public education under
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46541 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
‘‘school nurse services’’ because it
duplicates the clause in §300.34(c)(13).
(2) Section 300.34(b) has been
changed to (A) expand the title to read
‘‘Exception; services that apply to
children with surgically implanted
devices, including cochlear implants,’’
and (B) clarify, in new paragraph (b)(1),
that related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (e.g., mapping),
maintenance of that device, or the
replacement of that device.
(3) A new §300.34(b)(2) has been
added to make clear that nothing in
paragraph (b)(1) of §300.34 (A) limits
the right of a child with a surgically
implanted device (e.g., a cochlear
implant) to receive related services, as
listed in §300.34(a), that are determined
by the IEP Team to be necessary for the
child to receive FAPE; (B) limits the
responsibility of a public agency to
appropriately monitor and maintain
medical devices that are needed to
maintain the health and safety of the
child, including breathing, nutrition, or
operation of other bodily functions,
while the child is transported to and
from school or is at school; or (C)
prevents the routine checking of an
external component of a surgically-
implanted device to make sure it is
functioning properly, as required in
§300.113(b).
(4) The definition of interpreting
services in §300.34(c)(4) has been
changed to clarify that the term includes
(A) transcription services, such as
communication access real-time
translation (CART), C-Print, and
TypeWell for children who are deaf or
hard of hearing, and (B) special
interpreting services for children who
are deaf-blind.
(5) The definition of orientation and
mobility services in §300.34(c)(7) has
been changed to remove the term ‘‘travel
training instruction.’’ The term is under
the definition of special education, and
is defined in §300.39(b)(4).
(6) The definition of school nurse
services in 300.34(c)(13) has been
expanded and re-named school health
services and school nurse services. The
expanded definition clarifies that
‘‘school nurse services’’ are provided by
a qualified school nurse, and ‘‘school
health services’’ may be provided by a
qualified school nurse or other qualified
person.
•A definition of scientifically based
research has been added in new
§300.35 that incorporates by reference
the definition of that term from the
Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. 6301
et seq. (ESEA). With the addition of the new
definition in §300.35, the definitions in
subpart A, beginning with the definition
of secondary school, have been
renumbered.
•The definition of special education
in §300.39 (proposed §300.38) has been
revised to remove the definition of
vocational and technical education that
was included in proposed
§300.38(b)(6).
•The definition of supplementary
aids and services in §300.42 (proposed
§300.41) has been modified to specify
that aids, services, and other supports
are also provided to enable children
with disabilities to participate in
extracurricular and nonacademic
settings.
Subpart B—State Eligibility
FAPE Requirements
•Section 300.101(c) has been revised
to clarify that a free appropriate public
education (FAPE) must be available to
any individual child with a disability
who needs special education and
related services, even though the child
has not failed or been retained in a
course, and is advancing from grade to
grade.
•Section 300.102(a)(3), regarding
exceptions to FAPE, has been changed
to clarify that a regular high school
diploma does not include an alternative
degree that is not fully aligned with the
State’s academic standards, such as a
certificate or a general educational
development credential (GED).
•Section 300.105, regarding assistive
technology and proper functioning of
hearing aids, has been re-titled
‘‘Assistive technology,’’ and proposed
paragraph (b), regarding the proper
functioning of hearing aids, has been
moved to new §300.113(a).
•Section 300.107(a), regarding
nonacademic services, has been revised
to specify the steps each public agency
must take, including the provision of
supplementary aids and services
determined appropriate and necessary
by the child’s IEP Team, to provide
nonacademic and extracurricular
services and activities in the manner
necessary to afford children with
disabilities an equal opportunity for
participation in those services and
activities.
•Proposed §300.108(a), regarding
physical education services, has been
revised to specify that physical
education must be made available to all
children with disabilities receiving
FAPE, unless the public agency enrolls
children without disabilities and does
not provide physical education to children without disabilities in the same
grades.
•A new §300.113, regarding routine
checking of hearing aids and external
components of surgically implanted
medical devices, has been added, as
follows:
(1) Paragraph (a) of §300.113 requires
each public agency to ensure that
hearing aids worn in school by children
with hearing impairments, including
deafness, are functioning properly.
(2) A new §300.113(b)(1) requires
each public agency to ensure that the
external components of surgically
implanted medical devices are
functioning properly. However, new
§300.113(b)(2) has been added to make
it clear that, for a child with a surgically
implanted medical device who is
receiving special education and related
services, a public agency is not
responsible for the post-surgical
maintenance, programming, or
replacement of the medical device that
has been surgically implanted (or of an
external component of the surgically
implanted medical device).
Least Restrictive Environment
•Section 300.116(b)(3) and (c)
regarding placements, has been revised
to remove the qualification ‘‘unless the
parent agrees otherwise’’ from the
requirements that (1) the child’s
placement be as close as possible to the
child’s home, and (2) the child is
educated in the school he or she would
attend if not disabled.
•Section 300.117 (Nonacademic
settings) has been changed to clarify that
each public agency must ensure that
each child with a disability has the
supplementary aids and services
determined by the child’s
individualized education program (IEP)
Team to be appropriate and necessary
for the child to participate with
nondisabled children in the
extracurricular services and activities to
the maximum extent appropriate to the
needs of that child.
Children With Disabilities Enrolled by
Their Parents in Private Schools
•Section 300.130 (definition of
parentally-placed private school
children with disabilities) has been
revised to clarify that the term means
children with disabilities enrolled by
their parents in private, including
religious, schools or facilities, that meet
the definition of elementary school in
§300.13 or secondary school in
§300.36.
•A new §300.131(f), regarding child
find for out-of-State parentally-placed
private school children with disabilities,
has been added to clarify that each LEA
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46542 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
in which private (including religious)
elementary schools and secondary
schools are located must include
parentally-placed private school
children who reside in a State other
than the State in which the private
schools that they attend are located.
•Section 300.133, regarding
expenditures for parentally-placed
private school children with disabilities,
has been revised, as follows:
(1) A new §300.133(a)(2)(ii), has been
added to clarify that children aged three
through five are considered to be
parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of elementary school in
§300.13.
(2) A new §300.133(a)(3) has been
added to specify that, if an LEA has not
expended for equitable services for
parentally-placed private school
children with disabilities all of the
applicable funds described in
§300.133(a)(1) and (a)(2) by the end of
the fiscal year for which Congress
appropriated the funds, the LEA must
obligate the remaining funds for special
education and related services
(including direct services) to parentally-
placed private school children with
disabilities during a carry-over period of
one additional year.
•Section 300.136, regarding
compliance related to parentally-placed
private school children with disabilities,
has been revised to remove the
requirement that private school officials
must submit complaints to the SEA
using the procedures in §§300.151
through 300.153.
•Section 300.138(a), regarding the
requirement that services to parentally-
placed private school children with
disabilities must be provided by
personnel meeting the same standards
as personnel providing services in the
public schools, has been modified to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements in
§300.18.
•Section 300.140, regarding due
process complaints and State
complaints, has been revised to make
the following changes:
(1) Section 300.140(b)(1) (proposed
§300.140(a)(2)), regarding child find
complaints, has been changed to clarify
that the procedures in §§300.504
through 300.519 apply to complaints
that an LEA has failed to meet the child find requirements in §300.131,
including the requirements in
§§300.301 through 300.311.
(2) A new paragraph (b)(2) has been
added to provide that any due process
complaint regarding the child find
requirements (as described in
§300.140(b)(1)) must be filed with the
LEA in which the private school is
located and a copy of the complaint
must be forwarded to the SEA.
(3) A new §300.140(c), regarding
State complaints by private school
officials, has been added to clarify that
(A) any complaint that an SEA or LEA
has failed to meet the requirements in
§§300.132 through 300.135 and 300.137
through 300.144 must be filed in
accordance with the procedures
described in §§300.151 through
300.153, and (B) a complaint filed by a
private school official under
§300.136(a) must be filed with the SEA
in accordance with the procedures in
§300.136(b).
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Section 300.148 Placement of Children
by Parents if FAPE Is at Issue
•A new §300.148(b), regarding
disagreements about FAPE, has been
added (from current §300.403(b)) to
clarify that disagreements between a
parent and a public agency regarding
the availability of a program appropriate
for a child with a disability, and the
question of financial reimbursement, are
subject to the due process procedures in
§§300.504 through 300.520.
State Complaint Procedures
•Section 300.152(a)(3)(ii) (proposed
paragraph (a)(3)(B)) has been revised to
clarify that each SEA’s complaint
procedures must provide the public
agency with an opportunity to respond
to a complaint filed under §300.153,
including, at a minimum, an
opportunity for a parent who has filed
a complaint and the public agency to
voluntarily engage in mediation
consistent with §300.506.
•Section 300.152(b)(1)(ii), regarding
time extensions for filing a State
complaint, has been revised to clarify
that it would be permissible to extend
the 60-day timeline if the parent (or
individual or organization if mediation
or other alternative means of dispute
resolution is available to the individual
or organization under State procedures)
and the public agency agree to engage in
mediation or to engage in other
alternative means of dispute resolution,
if available in the State.
•Section 300.152(c), regarding
complaints filed under §300.152 and due process hearings under §300.507
and §§300.530 through 300.532, has
been revised to clarify that if a written
complaint is received that is also the
subject of a due process hearing under
§§300.507 or 300.530 through 300.532,
or contains multiple issues of which one
or more are part of a due process
hearing, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not part of the due process
hearing must be resolved using the time
limit and procedures described
elsewhere in the State complaint
procedures. A new paragraph (c)(3) also
has been added to require SEAs to
resolve complaints alleging a public
agency’s failure to implement a due
process hearing. This is the same
requirement in current §300.661(c)(3).
•Section 300.153(c), regarding the
one year time limit from the date the
alleged violation occurred and the date
the complaint is received in accordance
with §300.151, has been revised by
removing the exception clause related to
complaints covered under
§300.507(a)(2).
Methods of Ensuring Services
•Section 300.154(d), regarding
children with disabilities who are
covered by public benefits or insurance,
has been revised to clarify that the
public agency must (1) obtain parental
consent each time that access to the
parent’s public benefits or insurance is
sought, and (2) notify parents that
refusal to allow access to their public
benefits or insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents.
Additional Eligibility Requirements
•Section 300.156(e), regarding
personnel qualifications, has been
revised (1) to add ‘‘or a class of
students,’’ to clarify that a judicial
action on behalf of a class of students
may not be filed for failure of a
particular SEA or LEA employee to be
highly qualified, and (2) to substitute
the word ‘‘employee’’ for ‘‘staff person,’’
to be more precise in the rule of
construction in new §300.18(f)
(proposed §300.18(e)).
•Section 300.160 (participation in
assessments) has been removed, and the
section has been designated as
‘‘Reserved.’’ Participation in
assessments is the subject of a new
notice of proposed rulemaking issued
on December 15, 2005 (70 FR 74624) to
amend the regulations governing
programs under Title I of the ESEA and
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46543 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Part B of the IDEA regarding additional
flexibility for States to measure the
achievement of children with
disabilities based on modified
achievement standards.
Other Provisions Required for State
Eligibility
•Section 300.172, regarding access to
instructional materials, has been
revised: (1) To make clear that States
must adopt the National Instructional
Materials Accessibility Standard
(NIMAS), published as Appendix C to
these final regulations; (2) to establish a
definition of ‘‘timely manner,’’ for
purposes of §300.172(b)(2) and (b)(3) if
the State is not coordinating with the
National Instructional Materials Access
Center (NIMAC), or §300.172(b)(3) and
(c)(2) if the State is coordinating with
the NIMAC; (3) to add a new
§300.172(b)(4) to require SEAs to
ensure that all public agencies take all
reasonable steps to provide instructional
materials in accessible formats to
children with disabilities who need
those instructional materials at the same
time as other children receive
instructional materials; and (4) to add a
new §300.172(e)(2) to clarify, that all
definitions in §300.172(e)(1) apply to
each State and LEA, whether or not the
State or LEA chooses to coordinate with
the NIMAC.
•A new §300.177 has been added to
include a provision regarding ‘‘States’
sovereign immunity.’’ That provision,
which has been added to incorporate
the language in section 604 of the Act,
makes clear that a State that accepts
funds under Part B of the Act waives its
immunity under the 11th amendment of
the Constitution of the United States
from suit in Federal court for a violation
of Part B of the Act.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
•Section 300.300, regarding parental
consent, has been revised, as follows:
(1) Paragraph (a) of §300.300,
regarding consent for initial evaluation,
has been changed to provide that the
public agency proposing to conduct an
initial evaluation to determine if a child
qualifies as a child with a disability
must, after providing notice consistent
with §§300.503 and 300.504, obtain
informed consent, consistent with
§300.9, from the parent of the child
before conducting the evaluation. A new
paragraph (a)(1)(iii) has been added to
require a public agency to make
reasonable efforts to obtain the informed consent from the parent for an initial
evaluation.
(2) Section 300.300(a)(3), regarding a
parent’s failure to provide consent for
initial evaluation, has been changed to
clarify, in a new paragraph (a)(3)(ii), that
the public agency does not violate its
obligation under §300.111 and
§§300.301 through 300.311 if it declines
to pursue the evaluation.
(3) Section 300.300(b), regarding
parental consent for services, has been
modified by a new paragraph (b)(2) that
requires a public agency to make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services.
(4) Section 300.300(c)(1), regarding
parental consent for reevaluations, has
been modified to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
consent override procedures in
§300.300(a)(3), and the public agency
does not violate its obligation under
§300.111 and §§300.301 through
300.311 if it declines to pursue the
evaluation or reevaluation.
(5) A new §300.300(d)(4) has been
added to provide that if a parent of a
child who is home schooled or placed
in a private school by the parent at the
parent’s expense, does not provide
consent for an initial evaluation or a
reevaluation, or the parent fails to
respond to a request to provide consent,
the public agency (A) may not use the
consent override procedures (described
elsewhere in §300.300), and (B) is not
required to consider the child eligible
for services under the requirements
relating to parentally-placed private
school children with disabilities
(§§300.132 through 300.144).
(6) A new §300.300(d)(5) has been
added to clarify that in order for a
public agency to meet the reasonable
efforts requirement to obtain informed
parental consent for an initial
evaluation, initial services, or a
reevaluation, a public agency must
document its attempts to obtain parental
consent using the procedures in
§300.322(d).
Additional Procedures for Evaluating
Children With Specific Learning
Disabilities (SLD)
•Section 300.307 (Specific learning
disabilities) has been revised, as
follows:
(1) Proposed paragraph (a)(1) of
§300.307, which allowed a State to
prohibit the use of a severe discrepancy
between intellectual ability and
achievement for determining if a child
has an SLD, has been removed, and proposed paragraph (a)(2) of §300.307
has been redesignated as paragraph
(a)(1).
(2) Section 300.307(a)(2) (proposed
paragraph (a)(3)) has been changed to
clarify that the criteria adopted by the
State must permit the use of a process
based on the child’s response to
scientific, research-based intervention.
•Section 300.308 (Group members)
has been changed to require the
eligibility group for children suspected
of having SLD to include the child’s
parents and a team of qualified
professionals, which must include the
child’s regular teacher (or if the child
does not have a regular teacher, a
regular classroom teacher qualified to
teach a child of his or her age) or for a
child of less than school age, an
individual qualified by the SEA to teach
a child of his or her age; and at least one
person qualified to conduct individual
diagnostic examinations of children,
such as a school psychologist, speech-
language pathologist, or remedial
reading teacher. These are the same
requirements in current §300.540.
•Section 300.309 (Determining the
existence of a specific learning
disability) has been revised, as follows:
(1) Paragraph (a) of §300.309 has been
changed (A) to clarify that the group
described in 300.306 may determine
that a child has a specific learning
disability if the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards in
one or more of eight areas (e.g., oral
expression, basic reading skill, etc.),
when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards; and (B) to add
‘‘limited English proficiency’’ to the
other five conditions that could account
for the child’s learning problems, and
that the group considers in determining
whether the child has an SLD.
(2) Section 300.309(b) has been
changed to clarify (A) that, in order to
ensure that underachievement in a child
suspected of having an SLD is not due
to lack of appropriate instruction in
reading or math, the group must
consider, as part of the evaluation
described in §§300.304 through
300.306, data that demonstrate that
prior to, or as a part of, the referral
process, the child was provided
appropriate instruction in regular
education settings, delivered by
qualified personnel, and (B) to replace
(in paragraph (b)(1)) the term ‘‘high
quality research-based instruction’’ with
‘‘appropriate instruction.’’
(3) Section 300.309(c) has been
changed to provide that the public
agency must promptly request parental
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46544 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
consent to evaluate a child suspected of
having an SLD who has not made
adequate progress after an appropriate
period of time when provided
appropriate instruction, and whenever a
child is referred for an evaluation.
•Section 300.310, regarding
Observation, has been revised, as
follows:
(1) Paragraph (a) of proposed
§300.310 has been revised (A) to
remove the phrase ‘‘trained in
observation, and (B) to specify that the
public agency must ensure that the
child is observed in the child’s learning
environment.
(2) A new §300.310(b) has been
added to require the eligibility group to
decide to (A) use information obtained
from an observation in routine
classroom instruction and monitoring of
the child’s performance that was done
before the child was referred for an
evaluation, or (B) have at least one
member of the group described in
§300.306(a)(1) conduct an observation
of the child’s academic performance in
the regular classroom after the child has
been referred for an evaluation and
parental consent is obtained.
Paragraph (b) of proposed §300.310
has been redesignated as new
§300.310(c).
•Section 300.311 (Written report) has
been renamed ‘‘Specific documentation
for the eligibility determination,’’ and
has been revised, as follows:
(1) Section 300.311(a)(5), regarding
whether the child does not achieve
commensurate with the child’s age, has
been modified and expanded to add
whether the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards
consistent with §300.309(a)(1), and (A)
the child does not make sufficient
progress to meet age or to meet State-
approved grade-level standards
consistent with §300.309(a)(2)(i), or (B)
the child exhibits a pattern of strengths
and weaknesses in performance,
achievement, or both, relative to age,
State-approved grade level standards or
intellectual development consistent
with §300.309(a)(2)(ii).
(2) Proposed §300.311(a)(6), regarding
whether there are strengths or
weaknesses or both in performance or
achievement or both relative to
intellectual development, has been
removed.
(3) A new §300.311(a)(6) has been
added to clarify that the documentation
must include a statement of the
determination of the group concerning
the effects of visual, hearing, or motor
disability, mental retardation, emotional
disturbance, cultural factors,
environmental or economic disadvantage, or limited English
proficiency on the child’s achievement
level.
(4) A new §300.311(a)(7) has been
added to provide that if the child has
participated in a process that assesses
the child’s response to scientific,
research-based intervention, the
documentation must include the
instructional strategies used and the
student-centered data collected, and
documentation that the child’s parents
were notified about (A) the State’s
policies regarding the amount and
nature of student performance data that
would be collected and the general
education services that would be
provided, (B) strategies for increasing
the child’s rate of learning, and (C) the
parents’ right to request an evaluation.
Individualized Education Programs
•Section 300.320 (Definition of IEP)
has been revised in paragraph (a)(5) to
replace ‘‘regular education
environment’’ with ‘‘regular class,’’ in
order to be consistent with the language
in the Act.
•Section 300.321(e), regarding
attendance at IEP Team meetings, has
been revised to clarify that the excusal
of IEP Team members from attending an
IEP Team meeting under certain
circumstances, refers to the IEP Team
members in §300.320(a)(2) through
(a)(5).
•Section 300.322, regarding parent
participation, has been revised to: (1)
Include, in §300.322(d), examples of the
records a public agency must keep of its
attempts to involve the parents in IEP
meetings; (2) add a new §300.322(e),
which requires the public agency to take
whatever action is necessary to ensure
that the parent understands the
proceedings of the IEP meeting,
including arranging for an interpreter
for parents with deafness or whose
native language is other than English;
and (3) redesignate paragraph (e) as
paragraph (f) accordingly.
•Section 300.323(d) has been revised
to require public agencies to ensure that
each regular teacher, special education
teacher, related services provider, and
any other service provider who is
responsible for the implementation of a
child’s IEP, is informed of his or her
specific responsibilities related to
implementing the child’s IEP and the
specific accommodations,
modifications, and supports that must
be provided for the child in accordance
with the child’s IEP. These are the same
requirements in current
§300.342(b)(3)(i) and (b)(3)(ii).
•Section 300.323(e), regarding IEPs
for children who transfer public
agencies, has been revised to: (1) Divide the provision into three separate
paragraphs (§300.323(e), (f), and (g)) for
purposes of clarity and improved
readability (e.g., transfers within the
same State, transfers from another State,
and transmittal of records); (2) adopt
‘‘school year’’ in lieu of ‘‘academic
year’’ as the term commonly used by
parents and public agencies; and (3)
adopt other modifiers (e.g., ‘‘new’’ and
‘‘previous’’) to distinguish between
States and public agencies that are
involved in transfers by children with
disabilities.
•Section 300.324(a)(4), regarding
changes to an IEP after the annual IEP
meeting for a school year, has been
restructured into two paragraphs, and a
new paragraph (a)(4)(ii) has been added
to require the public agency to ensure
that, if changes are made to a child’s IEP
without an IEP meeting, that the child’s
IEP Team is informed of the changes.
•Section 300.324(b), regarding the
review and revision of IEPs, has been
changed to include a new paragraph
(b)(2), to clarify that, in conducting a
review of a child’s IEP, the IEP Team
must consider the same special factors
it considered when developing the
child’s IEP.
Subpart E—Procedural Safeguards
•Section 300.502, regarding
independent educational evaluations,
has been revised, as follows:
(1) A new §300.502(b)(5) has been
added to make clear that a parent is
entitled to only one independent
educational evaluation at public
expense each time the public agency
conducts an evaluation with which the
parent disagrees.
(2) Section 300.502(c) has been
changed to clarify that if a parent
obtains an independent evaluation at
public expense or shares with the public
agency an evaluation obtained at private
expense, the public agency must
consider the evaluation, if it meets
agency criteria, in any decision made
with respect to the provision of FAPE to
the child.
•Section 300.504 (Procedural
safeguards notice) has been revised, as
follows:
(1) Paragraph (a)(2) of §300.504 has
been changed to add that a copy of the
procedural safeguards notice must be
given upon receipt of the first due
process complaint under §300.507 in a
school year, as well as upon receipt of
the first State complaint under §300.151
through 300.153.
(2) A new §300.504(a)(3) has been
added to provide that the notice must be
given to the parents of a child with a
disability in accordance with the
discipline procedures in §300.530(h).
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46545 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
•Section 300.506(b), regarding the
requirements for mediation, has been
revised by (1) removing the provision
about the ‘‘confidentiality pledge,’’ in
proposed paragraph (b)(9), because it is
no longer required under the Act, and
(2) changing paragraph (b)(8), regarding
the prohibition against using
discussions that occur in the mediation
process, to clarify that ‘‘civil
proceedings’’ includes any Federal court
or State court of a State receiving
assistance under this part.
•Section 300.509, regarding model
forms to assist parents and public
agencies in filing due process
complaints and parents and other
parties in filing State complaints, has
been revised to add, with respect to due
process complaints, ‘‘public agencies,’’
and with respect to State complaints,
‘‘other parties,’’ as well as parents, and
to clarify that (1) while each SEA must
develop model forms, the SEA or LEA
may not require the use of the forms,
and (2) parents, public agencies, and
other parties may either use the
appropriate model form, or another form
or other document, so long as the form
or document meets, as appropriate, the
requirements for filing a due process
complaint or a State complaint.
•Section 300.510 (Resolution
process) has been revised, as follows:
(1) Section 300.510(b)(1), regarding
the resolution period, has been changed
to state that a due process hearing ‘‘may
occur’’ (in lieu of ‘‘must occur’’) by the
end of the resolution period, if the
parties have not resolved the dispute
that formed the basis for the due process
complaint.
(2) A new §300.510(b)(3) has been
added to provide that, except where the
parties have jointly agreed to waive the
resolution process or to use mediation
(notwithstanding §300.510(b)(1) and
(2)), the failure of a parent filing a due
process complaint to participate in the
resolution meeting will delay the
timelines for the resolution process and
due process hearing until the meeting is
held.
(3) A new §300.510(b)(4) has been
added to provide that if an LEA is
unable to obtain the participation of the
parent in the resolution meeting after
reasonable efforts have been made, and
documented using the procedures in
§300.322(d), the LEA may, at the
conclusion of the 30-day resolution
period, request that a hearing officer
dismiss the parent’s due process
complaint.
(4) A new paragraph (b)(5) of
§300.510 has been added to provide
that, if the LEA fails to hold the
resolution meeting within 15 days of
receiving notice of a parent’s due process complaint or fails to participate
in the resolution meeting, the parent
may seek the intervention of a hearing
officer to begin the due process hearing
timelines.
(5) A new §300.510(c) (Adjustments
to the 30-day resolution period) has
been added that specifies exceptions to
the 30-day resolution period (e.g., (A)
both parties agree in writing to waive
the resolution meeting; (B) after either
the mediation or resolution meeting
starts but before the end of the 30-day
period, the parties agree in writing that
no agreement is possible; or (C) if both
parties agree in writing to continue the
mediation at the end of the 30-day
resolution period, but later, the parent
or public agency withdraws from the
mediation process). Subsequent
paragraphs have been renumbered
accordingly.
(6) Paragraph (d)(2) of §300.510
(proposed paragraph(c)(2)), regarding
the enforceability of a written settlement
agreement in any State court of
competent jurisdiction or in a district
court of the United States, has been
expanded to add the SEA, if the State
has other mechanisms or procedures
that permit parties to seek enforcement
of resolution agreements, pursuant to a
new §300.537.
•Section 300.513(a) (Decision of
hearing officer) has been revised by (1)
changing the paragraph title to read
‘‘Decision of hearing officer on the
provision of FAPE,’’ and (2) clarifying
that a hearing officer’s determination of
whether a child received FAPE must be
based on substantive grounds.
•Section 300.515(a), regarding
timelines and convenience of hearings
and reviews, has been revised to include
a specific reference to the adjusted time
periods described in §300.510(c).
•Section 300.516(b), regarding the
90-day time limitation from the date of
the decision of the hearing to file a civil
action, has been revised to provide that
the 90-day period begins from the date
of the decision of the hearing officer or
the decision of the State review official.
•Section 300.518 (Child’s status
during proceedings) has been revised by
adding a new paragraph (c), which
provides that if a complaint involves an
application for initial services under
this part from a child who is
transitioning from Part C of the Act to
Part B and is no longer eligible for Part
C services because the child has turned
3, the public agency is not required to
provide the Part C services that the
child had been receiving. If the child is
found eligible for special education and
related services under Part B and the
parent consents to the initial provision
of special education and related services under §300.300(b), then the public
agency must provide those special
education and related services that are
not in dispute between the parent and
the public agency.
•Section 300.520(b), regarding a
special rule about the transfer of
parental rights at the age of majority, has
been revised to more clearly state that
a State must establish procedures for
appointing the parent of a child with a
disability, or if the parent is not
available, another appropriate
individual, to represent the educational
interests of the child throughout the
child’s eligibility under Part B of the Act
if, under State law, a child who has
reached the age of majority, but has not
been determined to be incompetent, can
be determined not to have the ability to
provide informed consent with respect
to the child’s educational program.
Discipline Procedures
•Section 300.530(d)(1)(i), regarding
services, has been revised to be
consistent with section 615(k)(1)(D)(i) of
the Act, by adding a reference to the
FAPE requirements in §300.101(a).
•Section 300.530(d)(4), regarding the
removal of a child with a disability from
the child’s current placement for 10
school days in the same school year, has
been revised to remove the reference to
school personnel, in consultation with
at least one of the child’s teachers,
determining the location in which
services will be provided.
•Section 300.530(d)(5), regarding
removals that constitute a change of
placement under §300.536, has been
revised to remove the reference to the
IEP Team determining the location in
which services will be provided.
•A new §300.530(e)(3), has been
added to provide that, if the LEA, the
parent, and members of the child’s IEP
Team determine that the child’s
behavior was the direct result of the
LEA’s failure to implement the child’s
IEP, the LEA must take immediate steps
to remedy those deficiencies.
•Section 300.530(h), regarding
notification, has been changed to
specify that, on the date on which a
decision is made to make a removal that
constitutes a change in the placement of
a child with a disability because of a
violation of a code of student conduct,
the LEA must notify the parents of that
decision, and provide the parents the
procedural safeguards notice described
in §300.504.
•Section 300.532 (Appeal) has been
revised, as follows:
(1) Paragraph (a) of §300.532,
regarding the conditions in which the
parent of a child with a disability or an
LEA may request a hearing, has been
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46546 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
modified to clarify that the hearing is
requested by filing a complaint pursuant
to §§300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been
changed to more definitively provide
that if the LEA believes that returning
the child to his or her original
placement is substantially likely to
result in injury to the child or others.
(3) Section 300.532(c)(3), regarding an
expedited due process hearing, has been
adjusted to provide that unless the
parents and an LEA agree in writing to
waive a resolution meeting, or agree to
use the mediation process described in
§300.506, the resolution meeting must
occur within seven days of receiving
notice of the due process complaint, and
the hearing may proceed within 15 days
of receipt of the due process complaint
unless the matter has been resolved to
satisfaction of both parties.
(4) Proposed §300.532(c)(4), regarding
the two-day timeframe for disclosing
information to the opposing party prior
to an expedited due process hearing, has
been removed.
•Section 500.536(a)(2)(ii) (proposed
§300.536(b)(2)) has been revised to
remove the requirement that a child’s
behavior must have been a
manifestation of the child’s disability
before determining that a series of
removals constitutes a change in
placement under §300.536. Paragraph
(a)(2)(ii) has also been amended to
reference the child’s behavior in
‘‘previous’’ incidents that resulted in the
series of removals.
•A new §300.536(b) has been added
to clarify that the public agency (subject
to review through the due process and
judicial proceedings) makes the
determination, on a case-by-case basis,
whether a pattern of removals
constitutes a change in placement and
that the determination is subject to
review through due process and judicial
determinations.
•A new §300.537 (State enforcement
mechanisms) has been added to clarify
that notwithstanding §300.506(b)(7) and
§300.510(c)(2), which provide for
judicial enforcement of a written
agreement reached as a result of a
mediation or resolution meeting,
nothing in this part would prevent the
SEA from using other mechanisms to
seek enforcement of that agreement,
provided that use of those mechanisms
is not mandatory and does not delay or
deny a party the right to seek
enforcement of the written agreement in
a State court of competent jurisdiction
or in a district court of the United
States. Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
•Section 300.600 (State monitoring
and enforcement) has been revised, as
follows:
(1) Section 300.600(a) has been
amended to require the State to enforce
Part B of the Act in accordance with
§300.604(a)(1) and (a)(3), (b)(2)(i) and
(b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been
added, which provides that the State
must monitor the LEAs located in the
State, using quantifiable indicators in
each of the following priority areas, and
such qualitative indicators as are
needed to adequately measure
performance in those areas, including:
(A) Provision of FAPE in the least
restrictive environment; (B) State
exercise of general supervision,
including child find, effective
monitoring, the use of resolution
meetings, and a system of transition
services as defined in §300.43 and in 20
U.S.C. 1437(a)(9); and (C)
disproportionate representation of racial
and ethnic groups in special education
and related services, to the extent the
representation is the result of
inappropriate identification.
•A new §300.601(b)(2), regarding
State use of targets and reporting, has
been added to specify that, if permitted
by the Secretary, if a State collects data
on an indicator through State
monitoring or sampling, the State must
collect data on the indicator at least
once during the period of the State
performance plan.
•A new §300.608(b), regarding State
enforcement, has been added to specify
that States are not restricted from
utilizing any other authority available to
them to monitor and enforce the
requirements of Part B of the Act.
Confidentiality of Information
•Section 300.622 (Consent) has been
restructured and revised to more
accurately reflect the Department’s
policy regarding when parental consent
is required for disclosures of personally
identifiable information, as follows:
(1) Paragraph (a) of §300.622 has been
changed to provide that parental
consent must be obtained before
personally identifiable information is
disclosed to parties other than officials
of participating agencies, unless the
information is contained in education
records, and the disclosure is authorized
without parental consent under the
regulations for the Family Educational Rights and Privacy Act (FERPA, 34 CFR
part 99).
(2) A new §300.622(b)(1) has been
added to clarify that parental consent is
not required before personally
identifiable information is released to
officials of participating agencies for
purposes of meeting a requirement of
Part B of the Act or these regulations.
(3) A new §300.622(b)(2) has been
added to provide that parental consent
must be obtained before personally
identifiable information is released to
officials of participating agencies that
provide or pay for transition services.
(4) A new paragraph (b)(3) has been
added to require that, with respect to
parentally-placed private school
children with disabilities, parental
consent must be obtained before any
personally identifiable information is
released between officials in the LEA
where the private school is located and
the LEA of the parent’s residence.
(5) Proposed §300.622(c), regarding
the requirement to provide policies and
procedures for use in the event that a
parent refuses to consent, has been
removed because it is covered elsewhere
in these regulations.
Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
•Section 300.701(a)(1)(ii)(A),
regarding the applicable requirements of
Part B of the Act that apply to freely
associated States, has been revised by
removing the five listed requirements
because those requirements did not
include all requirements that apply to
freely associated States. This change
clarifies that freely associated States
must meet the applicable requirements
that apply to States under Part B of the
Act.
•Section 300.704(c)(3)(i), regarding
the requirement to develop, annually
review, and revise (if necessary) a State
plan for the high cost fund, has been
revised to add a new paragraph (F) that
requires that if the State elects to reserve
funds for supporting innovative and
effective ways of cost sharing, it must
describe in its State plan how these
funds will be used.
•Section 300.706 (Allocation for
State in which by-pass is implemented
for parentally-placed private school
children with disabilities) has been
removed because it is no longer
applicable. The section has been
redesignated as ‘‘Reserved.’’
Secretary of the Interior
•Section 300.707 (Use of amounts by
Secretary of the Interior) has been
changed, as follows:
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46547 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
(1) The definition of Tribal governing
body of a school has been replaced with
the definition of tribal governing body
from 25 U.S.C. 2021(19).
(2) Section 300.707(c), regarding an
additional requirement under ‘‘Use of
amounts by Secretary of the Interior,’’
has been revised to clarify that, with
respect to all other children aged 3 to
21, inclusive, on reservations, the SEA
of the State in which the reservation is
located must ensure that all the
requirements of Part B of the Act are
met.
•Section 300.713 (Plan for
coordination of services) has been
revised to require (1) in §300.713(a), the
Secretary of the Interior to develop and
implement a plan for the coordination
of services for all Indian children with
disabilities residing on reservations
served by elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior, and (2) in §300.713(b), the
plan to provide for the coordination of
services benefiting these children from
whatever source covered by the plan,
including SEAs, and State, local, and
tribal juvenile and adult correctional
facilities.
Analysis of Comments and Changes
Introduction
In response to the invitation in the
NPRM, more than 5,500 parties
submitted comments on the proposed
regulations. An analysis of the
comments and of the changes in the
regulations since publication of the
NPRM immediately follows this
introduction.
The perspectives of parents,
individuals with disabilities, teachers,
related services providers, State and
local officials, members of Congress,
and others were very important in
helping us to identify where changes to
the proposed regulations were
necessary, and in formulating many of
the changes. In light of the comments
received, a number of significant
changes are reflected in these final
regulations.
We discuss substantive issues under
the subpart and section to which they
pertain. References to subparts in this
analysis are to those contained in the
final regulations. The analysis generally
does not address—
(a) Minor changes, including
technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is
not legally authorized to make under
applicable statutory authority; and
(c) Comments that express concerns of
a general nature about the Department or other matters that are not directly
relevant to these regulations, such as
requests for information about
innovative instructional methods or
matters that are within the purview of
State and local decision-makers.
Subpart A—General
Definitions Used in This Part
Applicability of This Part to State and
Local Agencies (§300.2)
Comment: None.
Discussion: Section §300.2(c)(2)
contains an incorrect reference to
§300.148(b). The correct reference
should be to §300.148.
Changes: We have removed the
reference to §300.148(b) and replaced it
with a reference to §300.148.
Assistive Technology Device (§300.5)
Comment: Some commenters opposed
the exclusion of surgically implanted
medical devices in the definition of
assistive technology device. Another
commenter recommended limiting the
definition of assistive technology device
to a device that is needed to achieve
educational outcomes, rather than
requiring local educational agencies
(LEAs) to pay for any assistive
technology device that increases,
maintains, or improves any functional
need of the child.
Discussion: The definition of assistive
technology device in §300.5
incorporates the definition in section
602(1)(B) of the Act. We do not believe
the definition should be changed in the
manner suggested by the commenters
because the changes are inconsistent
with the statutory definition. The
definition in the Act specifically refers
to any item, piece of equipment, or
product system that is used to increase,
maintain, or improve the functional
capabilities of the child and specifically
excludes a medical device that is
surgically implanted or the replacement
of such device. Accordingly, we
continue to believe it is appropriate to
exclude surgically implanted medical
devices from this definition. In response
to the second comment, §300.105(a)
requires each public agency to ensure
that assistive technology devices (or
assistive technology services, or both)
are made available to a child with a
disability if required as part of the
child’s special education, related
services, or supplementary aids and
services. This provision ties the
definition to a child’s educational
needs, which public agencies must meet
in order to ensure that a child with a
disability receives a free appropriate
public education (FAPE).
Changes: None. Comment: One commenter requested
that the regulations clarify that an
assistive technology device is not
synonymous with an augmentative
communication device. A few
commenters recommended including
recordings for the blind and dyslexic
playback devices in the definition of
assistive technology devices. Some
commenters recommended including
language in the regulations clarifying
that medical devices used for breathing,
nutrition, and other bodily functions are
assistive technology devices.
Discussion: The definition of assistive
technology device does not list specific
devices, nor would it be practical or
possible to include an exhaustive list of
assistive technology devices. Whether
an augmentative communication device,
playback devices, or other devices could
be considered an assistive technology
device for a child depends on whether
the device is used to increase, maintain,
or improve the functional capabilities of
a child with a disability, and whether
the child’s individualized education
program (IEP) Team determines that the
child needs the device in order to
receive a free appropriate public
education (FAPE). However, medical
devices that are surgically implanted,
including those used for breathing,
nutrition, and other bodily functions,
are excluded from the definition of an
assistive technology device in section
602(1)(B) of the Act. The exclusion
applicable to a medical device that is
surgically implanted includes both the
implanted component of the device, as
well as its external components.
Changes: None.
Comment: A few commenters asked
whether the definition of assistive
technology device includes an internet-
based instructional program, and what
the relationship is between internet-
based instructional programs and
specially-designed instruction.
Discussion: An instructional program
is not a device, and, therefore, would
not meet the definition of an assistive
technology device. Whether an internet-
based instructional program is
appropriate for a particular child is
determined by the child’s IEP Team,
which would determine whether the
program is needed in order for the child
to receive FAPE.
Changes: None.
Comment: A few commenters
recommended including the proper
functioning of hearing aids in the
definition of assistive technology device.
Discussion: We believe that the
provision requiring public agencies to
ensure that hearing aids worn in school
are functioning properly is more
appropriately included in new §300.113
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46548 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
(proposed §300.105(b)). As noted in the
Analysis of Comments and Changes
section discussing subpart B, we have
added a new §300.113 to address the
routine checking (i.e., making sure they
are turned on and working) of hearing
aids and external components of
surgically implanted devices.
Changes: None.
Assistive Technology Service (§300.6)
Comment: One commenter requested
clarifying ‘‘any service’’ in the
definition of assistive technology
service.
Discussion: We believe the definition
is clear that an assistive technology
service is any service that helps a child
with a disability select an appropriate
assistive technology device, obtain the
device, or train the child to use the
device.
Changes: None.
Comment: One commenter stated that
services necessary to support the use of
playback devices for recordings for the
blind and dyslexic should be added to
the definition of assistive technology
service.
Discussion: A service to support the
use of recordings for the blind and
dyslexic on playback devices could be
considered an assistive technology
service if it assists a child with a
disability in the selection, acquisition,
or use of the device. If so, and if the
child’s IEP Team determines it is
needed for the child to receive FAPE,
the service would be provided. The
definition of assistive technology service
does not list specific services. We do not
believe it is practical or possible to
include an exhaustive list of assistive
technology services, and therefore,
decline to add the specific assistive
technology service recommended by the
commenter to the definition.
Changes: None.
Comment: One commenter
recommended evaluating all children
with speech or hearing disabilities to
determine if they can benefit from the
Federal Communications Commission’s
specialized telephone assistive services
for people with disabilities.
Discussion: Evaluations under section
614 of the Act are for the purpose of
determining whether a child has a
disability and because of that disability
needs special education and related
services, and for determining the child’s
special education and related services
needs. It would be inappropriate under
the Act to require evaluations for other
purposes or to require an evaluation for
telephone assistive services for all
children with speech and hearing
disabilities. However, if it was
determined that learning to use telephone assisted services, was an
important skill for a particular child
(e.g., as part of a transition plan), it
would be appropriate to conduct an
evaluation of that particular child to
determine if the child needed
specialized instruction in order to use
such services.
Changes: None.
Comment: One commenter requested
that the definition of assistive
technology service specifically exclude a
medical device that is surgically
implanted, the optimization of device
functioning, maintenance of the device,
and the replacement of the device.
Discussion: The definition of related
services in §300.34(b) specifically
excludes a medical device that is
surgically implanted, the optimization
of device functioning, maintenance of
the device, or the replacement of that
device. In addition, the definition of
assistive technology device in §300.5
specifically excludes a medical device
that is surgically implanted and the
replacement of that device. We believe
it is unnecessary to repeat these
exclusions in the definition of assistive
technology service.
Changes: None.
Charter School (§300.7)
Comment: Several commenters
suggested that we include in the
regulations the definitions of terms that
are defined in other statutes. For
example, one commenter requested
including the definition of charter
school in the regulations.
Discussion: Including the actual
definitions of terms that are defined in
statutes other than the Act is
problematic because these definitions
may change over time (i.e., through
changes to statutes that establish the
definitions). In order for these
regulations to retain their accuracy over
time, the U.S. Department of Education
(Department) would need to amend the
regulations each time an included
definition that is defined in another
statute changes. The Department
believes that this could result in
significant confusion.
However, we are including the
current definition of charter school in
section 5210(1) of the ESEA here for
reference.
The term charter school means a
public school that:
1. In accordance with a specific State
statute authorizing the granting of
charters to schools, is exempt from
significant State or local rules that
inhibit the flexible operation and
management of public schools, but not
from any rules relating to the other
requirements of this paragraph [the paragraph that sets forth the Federal
definition];
2. Is created by a developer as a
public school, or is adapted by a
developer from an existing public
school, and is operated under public
supervision and direction;
3. Operates in pursuit of a specific set
of educational objectives determined by
the school’s developer and agreed to by
the authorized public chartering agency;
4. Provides a program of elementary
or secondary education, or both;
5. Is nonsectarian in its programs,
admissions policies, employment
practices, and all other operations, and
is not affiliated with a sectarian school
or religious institution;
6. Does not charge tuition;
7. Complies with the Age
Discrimination Act of 1975, Title VI of
the Civil Rights Act of 1964, Title IX of
the Education Amendments of 1972,
Section 504 of the Rehabilitation Act of
1973, Title II of the Americans with
Disabilities Act of 1990, and Part B of
the Individuals with Disabilities
Education Act;
8. Is a school to which parents choose
to send their children, and that admits
students on the basis of a lottery, if more
students apply for admission than can
be accommodated;
9. Agrees to comply with the same
Federal and State audit requirements as
do other elementary schools and
secondary schools in the State, unless
such requirements are specifically
waived for the purpose of this program
[the Public Charter School Program];
10. Meets all applicable Federal,
State, and local health and safety
requirements;
11. Operates in accordance with State
law; and
12. Has a written performance
contract with the authorized public
chartering agency in the State that
includes a description of how student
performance will be measured in charter
schools pursuant to State assessments
that are required of other schools and
pursuant to any other assessments
mutually agreeable to the authorized
public chartering agency and the charter
school.
Changes: None.
Child With a Disability (§300.8)
General (§300.8(a))
Comment: Several commenters stated
that many children with fetal alcohol
syndrome (FAS) do not receive special
education and related services and
recommended adding a disability
category for children with FAS to help
solve this problem.
Discussion: We believe that the
existing disability categories in section
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46549 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
602(3) of the Act and in these
regulations are sufficient to include
children with FAS who need special
education and related services. Special
education and related services are based
on the identified needs of the child and
not on the disability category in which
the child is classified. We, therefore, do
not believe that adding a separate
disability category for children with
FAS is necessary to ensure that children
with FAS receive the special education
and related services designed to meet
their unique needs resulting from FAS.
Changes: None.
Comment: Some commenters
suggested that the definition of child
with a disability be changed to ‘‘student
with a disability’’ and that the word
‘‘student,’’ rather than ‘‘child,’’ be used
throughout the regulations because
students over the age of 18 are not
children.
Discussion: Section 602(3) of the Act
defines child with a disability, not
student with a disability. Therefore, we
do not believe it is appropriate to
change the definition as requested by
the commenters. The words ‘‘child’’ and
‘‘student’’ are used throughout the Act
and we generally have used the word
‘‘child’’ or ‘‘children,’’ except when
referring to services and activities for
older students (e.g., transition services,
postsecondary goals).
Changes: None.
Comment: Some commenters
supported §300.8(a)(2), which states
that if a child needs only a related
service and not special education, the
child is not a child with a disability
under the Act. Another commenter
recommended a single standard for the
provision of a related service as special
education, rather than allowing States to
determine whether a related service is
special education.
Discussion: Section 300.8(a)(2)(i)
states that if a child has one of the
disabilities listed in §300.8(a)(1), but
only needs a related service, the child
is not a child with a disability under the
Act. However, §300.8(a)(2)(ii) provides
that, if a State considers a particular
service that could be encompassed by
the definition of related services also to
be special education, then the child
would be determined to be a child with
a disability under the Act. We believe it
is important that States have the
flexibility to determine whether,
consistent with the definition of the
term special education in section
602(29) of the Act and new §300.39
(proposed §300.38), such a service
should be regarded as special education
and to identify a child who needs that
service as a child with a disability.
States are in the best position to determine whether a service that is
included in the definition of related
services should also be considered
special education in that State.
Changes: None.
Comment: None.
Discussion: Section §300.8(a)(2)(ii)
contains an incorrect reference to
§300.38(a)(2). The correct reference
should be to §300.39(a)(2).
Changes: We have removed the
reference to §300.38(a)(2) and replaced
it with a reference to §300.39(a)(2).
Children Aged Three Through Nine
Experiencing Developmental Delays
(§300.8(b))
Comment: Several commenters
expressed support for allowing LEAs to
select a subset of the age range from
three through nine for their definition of
developmental delay. A few
commenters recommended clarifying
that States, not the LEAs, define the age
range of children eligible under this
category of developmental delay.
Discussion: Section 300.8(b) states
that the use of the developmental delay
category for a child with a disability
aged three through nine, or any subset
of that age range, must be made in
accordance with §300.111(b). Section
300.111(b) gives States the option of
adopting a definition of developmental
delay, but does not require an LEA to
adopt and use the term. However, if an
LEA uses the category of developmental
delay, the LEA must conform to both the
State’s definition of the term and the age
range that has been adopted by the
State. If a State does not adopt the
category of developmental delay, an
LEA may not use that category as the
basis for establishing a child’s eligibility
for special education and related
services.
Based on the comments, it appears
that §300.8(b) has been misinterpreted
as stating that LEAs are allowed to
establish the age range for defining
developmental delay independent of the
State. We believe it is important to
avoid such confusion and, therefore,
will modify §300.8(b) to clarify the
provision.
Changes: For clarity, we have
removed the phrase, ‘‘at the discretion
of the State and LEA in accordance with
§300.111(b)’’ and replaced it with
‘‘subject to the conditions in
§300.111(b).’’
Deafness (§300.8(c)(3))
Comment: One commenter stated that
children who are hard of hearing are
often denied special education and
related services because the definition
of deafness includes the phrase,
‘‘adversely affects a child’s educational performance,’’ which school district
personnel interpret to mean that the
child must be failing in school to
receive special education and related
services.
Discussion: As noted in the Analysis
of Comments and Changes section
discussing subpart B, we have clarified
in §300.101(c) that a child does not
have to fail or be retained in a course
or grade in order to be considered for
special education and related services.
However, in order to be a child with a
disability under the Act, a child must
have one or more of the impairments
identified in section 602(3) of the Act
and need special education and related
services because of that impairment.
Given the change in §300.101(c), we do
not believe clarification in §300.8(c)(3)
is necessary.
Changes: None.
Emotional Disturbance (§300.8(c)(4))
Comment: Numerous commenters
requested defining or eliminating the
term ‘‘socially maladjusted’’ in the
definition of emotional disturbance
stating that there is no accepted
definition of the term, and no valid or
reliable instruments or methods to
identify children who are, or are not,
‘‘socially maladjusted.’’ Some
commenters stated that children who
need special education and related
services have been denied these
services, or have been inappropriately
identified under other disability
categories and received inappropriate
services because the definition of
emotional disturbance excludes
children who are socially maladjusted.
One commenter stated that using the
term ‘‘socially maladjusted’’ contributes
to the negative image of children with
mental illness and does a disservice to
children with mental illness and those
who seek to understand mental illness.
One commenter stated that emotional
disturbance is one of the most misused
and misunderstood disability categories
and is often improperly used to protect
dangerous and aggressive children who
violate the rights of others. The
commenter stated that the definition of
emotional disturbance is vague and
offers few objective criteria to
differentiate an emotional disability
from ordinary development, and
requires the exclusion of conditions in
which the child has the ability to
control his or her behavior, but chooses
to violate social norms.
One commenter recommended adding
autism to the list of factors in
§300.8(c)(4)(i)(A) that must be ruled out
before making an eligibility
determination based on emotional
disturbance. The commenter stated that
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46550 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
many children with autism are
inappropriately placed in alternative
educational programs designed for
children with serious emotional and
behavioral problems.
Discussion: Historically, it has been
very difficult for the field to come to
consensus on the definition of
emotional disturbance, which has
remained unchanged since 1977. On
February 10, 1993, the Department
published a ‘‘Notice of Inquiry’’ in the
Federal Register (58 FR 7938) soliciting
comments on the existing definition of
serious emotional disturbance. The
comments received in response to the
notice of inquiry expressed a wide range
of opinions and no consensus on the
definition was reached. Given the lack
of consensus and the fact that Congress
did not make any changes that required
changing the definition, the Department
recommended that the definition of
emotional disturbance remain
unchanged. We reviewed the Act and
the comments received in response to
the NPRM and have come to the same
conclusion. Therefore, we decline to
make any changes to the definition of
emotional disturbance.
Changes: None.
Comment: One commenter suggested
that the regulations include a process to
identify children who are at risk for
having an emotional disturbance.
Discussion: We decline to include a
process to identify children who are at
risk for having an emotional
disturbance. A child who is at risk for
having any disability under the Act is
not considered a child with a disability
under §300.8 and section 602(3) of the
Act and, therefore, is not eligible for
services under the Act.
Changes: None.
Mental Retardation (§300.8(c)(6))
Comment: One commenter suggested
using the term ‘‘intellectual disability’’
in place of ‘‘mental retardation’’ because
‘‘intellectual disability’’ is a more
acceptable term. The commenter also
stated that the definition of mental
retardation is outdated, and should,
instead, address a child’s functional
limitations in specific life areas.
Discussion: Section 602(3)(A) of the
Act refers to a ‘‘child with mental
retardation,’’ not a ‘‘child with
intellectual disabilities,’’ and we do not
see a compelling reason to change the
term. However, States are free to use a
different term to refer to a child with
mental retardation, as long as all
children who would be eligible for
special education and related services
under the Federal definition of mental
retardation receive FAPE. We do not believe the definition of
mental retardation needs to be changed
because it is defined broadly enough in
§300.8(c)(6) to include a child’s
functional limitations in specific life
areas, as requested by the commenter.
There is nothing in the Act or these
regulations that would prevent a State
from including ‘‘functional limitations
in specific life areas’’ in a State’s
definition of mental retardation, as long
as the State’s definition is consistent
with these regulations.
Changes: None.
Multiple Disabilities (§300.8(c)(7))
Comment: One commenter asked why
the category of multiple disabilities is
included in the regulations when it is
not in the Act.
Discussion: The definition of multiple
disabilities has been in the regulations
since 1977 and does not expand
eligibility beyond what is provided for
in the Act. The definition helps ensure
that children with more than one
disability are not counted more than
once for the annual report of children
served because States do not have to
decide among two or more disability
categories in which to count a child
with multiple disabilities.
Changes: None.
Orthopedic Impairment (§300.8(c)(8))
Comment: One commenter requested
that the examples of congenital
anomalies in the definition of
orthopedic impairment in current
§300.7(c)(8) be retained.
Discussion: The examples of
congenital anomalies in current
§300.7(c)(8) are outdated and
unnecessary to understand the meaning
of orthopedic impairment. We,
therefore, decline to include the
examples in §300.8(c)(8).
Changes: None.
Other Health Impairment (§300.8(c)(9))
Comment: We received a significant
number of comments requesting that we
include other examples of specific acute
or chronic health conditions in the
definition of other health impairment. A
few commenters recommended
including children with dysphagia
because these children have a
swallowing and feeding disorder that
affects a child’s vitality and alertness
due to limitations in nutritional intake.
Other commenters recommended
including FAS, bipolar disorders, and
organic neurological disorders.
Numerous commenters requested
including Tourette syndrome disorders
in the definition of other health
impairment because children with
Tourette syndrome are frequently misclassified as emotionally disturbed.
A number of commenters stated that
Tourette syndrome is a neurological
disorder and not an emotional disorder,
yet children with Tourette syndrome
continue to be viewed as having a
behavioral or conduct disorder and,
therefore, do not receive appropriate
special education and related services.
Discussion: The list of acute or
chronic health conditions in the
definition of other health impairment is
not exhaustive, but rather provides
examples of problems that children
have that could make them eligible for
special education and related services
under the category of other health
impairment. We decline to include
dysphagia, FAS, bipolar disorders, and
other organic neurological disorders in
the definition of other health
impairment because these conditions
are commonly understood to be health
impairments. However, we do believe
that Tourette syndrome is commonly
misunderstood to be a behavioral or
emotional condition, rather than a
neurological condition. Therefore,
including Tourette syndrome in the
definition of other health impairment
may help correct the misperception of
Tourette syndrome as a behavioral or
conduct disorder and prevent the
misdiagnosis of their needs.
Changes: We have added Tourette
syndrome as an example of an acute or
chronic health problem in
§300.8(c)(9)(i).
Comment: A few commenters
expressed concern about determining a
child’s eligibility for special education
services under the category of other
health impairment based on conditions
that are not medically determined
health problems, such as ‘‘central
auditory processing disorders’’ or
‘‘sensory integration disorders.’’ One
commenter recommended that the
regulations clarify that ‘‘chronic or acute
health problems’’ refer to health
problems that are universally
recognized by the medical profession.
Discussion: We cannot make the
change requested by the commenters.
The determination of whether a child is
eligible to receive special education and
related services is made by a team of
qualified professionals and the parent of
the child, consistent with
§300.306(a)(1) and section 614(b)(4) of
the Act. The team of qualified
professionals and the parent of the child
must base their decision on careful
consideration of information from a
variety of sources, consistent with
§300.306(c). There is nothing in the Act
that requires the team of qualified
professionals and the parent to consider
only health problems that are
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46551 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
universally recognized by the medical
profession, as requested by the
commenters. Likewise, there is nothing
in the Act that would prevent a State
from requiring a medical evaluation for
eligibility under other health
impairment, provided the medical
evaluation is conducted at no cost to the
parent.
Changes: None.
Comment: One commenter stated that
the category of other health impairment
is one of the most rapidly expanding
eligibility categories because the
definition is vague, confusing, and
redundant. The commenter noted that
the definition of other health
impairment includes terms such as
‘‘alertness’’ and ‘‘vitality,’’ which are
difficult to measure objectively.
Discussion: We believe that the
definition of other health impairment is
generally understood and that the group
of qualified professionals and the parent
responsible for determining whether a
child is a child with a disability are able
to use the criteria in the definition and
appropriately identify children who
need special education and related
services. Therefore, we decline to
change the definition.
Changes: None.
Specific Learning Disability
(§300.8(c)(10))
Comment: One commenter
recommended changing the definition
of specific learning disability to refer to
a child’s response to scientific, research-
based intervention as part of the
procedures for evaluating children with
disabilities, consistent with
§300.307(a). A few commenters
recommended aligning the definition of
specific learning disability with the
requirements for determining eligibility
in §300.309.
One commenter recommended using
the word ‘‘disability,’’ instead of
‘‘disorder,’’ and referring to specific
learning disabilities as a ‘‘disability in
one or more of the basic psychological
processes.’’ A few commenters stated
that the terms ‘‘developmental aphasia’’
and ‘‘minimal brain dysfunction’’ are
antiquated and should be removed from
the definition. A few commenters
questioned using ‘‘imperfect ability’’ in
the definition because it implies that a
child with minor problems in listening,
thinking, speaking, reading, writing,
spelling, or calculating math could be
determined to have a specific learning
disability.
Discussion: The definition of specific
learning disability is consistent with the
procedures for evaluating and
determining the eligibility of children
suspected of having a specific learning disability in §§300.307 through
300.311. We do not believe it is
necessary to repeat these procedures in
the definition of specific learning
disability.
Section 602(30) of the Act refers to a
‘‘disorder’’ in one or more of the basic
psychological processes and not to a
‘‘disability’’ in one or more of the basic
psychological processes. We believe it
would be inconsistent with the Act to
change ‘‘disorder’’ to ‘‘disability,’’ as
recommended by one commenter. We
do not believe that the terms
‘‘developmental aphasia’’ and ‘‘minimal
brain dysfunction’’ should be removed
from the definition. Although the terms
may not be as commonly used as
‘‘specific learning disability,’’ the terms
continue to be used and we see no harm
in retaining them in the definition. We
do not agree that the phrase ‘‘imperfect
ability’’ implies that a child has a minor
problem and, therefore, decline to
change this phrase in the definition of
specific learning disability.
Changes: None.
Comment: We received several
requests to revise the definition of
specific learning disability to include
specific disabilities or disorders that are
often associated with specific learning
disabilities, including Aspergers
syndrome, FAS, auditory processing
disorders, and nonverbal learning
disabilities.
Discussion: Children with many types
of disabilities or disorders may also
have a specific learning disability. It is
not practical or feasible to include all
the different disabilities that are often
associated with a specific learning
disability. Therefore, we decline to add
these specific disorders or disabilities to
the definition of specific learning
disability.
Changes: None.
Comment: A few commenters
suggested clarifying the word ‘‘cultural’’
in §300.8(c)(10)(ii) to clarify that
cultural disadvantage or language
cannot be the basis for determining that
a child has a disability.
Discussion: We believe the term
‘‘cultural’’ is generally understood and
do not see a need for further
clarification. We also do not believe that
it is necessary to clarify that language
cannot be the basis for determining
whether a child has a specific learning
disability. Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, clearly states that limited
English proficiency cannot be the basis
for determining a child to be a child
with a disability under any of the
disability categories in §300.8.
Changes: None. Consent (§300.9)
Comment: Numerous commenters
noted that the regulations include the
terms ‘‘consent,’’ ‘‘informed consent,’’
‘‘agree,’’ and ‘‘agree in writing’’ and
asked whether all the terms have the
same meaning.
Discussion: These terms are used
throughout the regulations and are
consistent with their use in the Act. The
definition of consent requires a parent
to be fully informed of all information
relevant to the activity for which
consent is sought. The definition also
requires a parent to agree in writing to
an activity for which consent is sought.
Therefore, whenever consent is used in
these regulations, it means that the
consent is both informed and in writing.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as consent.
‘‘Agree’’ or ‘‘agreement’’ refers to an
understanding between the parent and
the public agency about a particular
question or issue, which may be in
writing, depending on the context.
Changes: None.
Comment: A few commenters
recommended adding a requirement to
the definition of consent that a parent be
fully informed of the reasons why a
public agency selected one activity over
another.
Discussion: We do not believe it is
necessary to include the additional
requirement recommended by the
commenter. The definition of consent
already requires that the parent be fully
informed of all the information relevant
to the activity for which consent is
sought.
Changes: None.
Comment: A few commenters
requested that the Department address
situations in which a child is receiving
special education services and the
child’s parent wants to discontinue
services because they believe the child
no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to
continue to provide special education
and related services to a child whose
parent withdraws consent for the
continued provision of special
education and related services.
Discussion: The Department intends
to propose regulations to permit parents
who previously consented to the
initiation of special education services,
to withdraw their consent for their child
to receive, or continue to receive,
special education services. Because this
is a change from the Department’s
longstanding policies and was not
proposed in the NPRM, we will provide
the public the opportunity to comment
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46552 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
on this proposed change in a separate
notice of proposed rulemaking.
Changes: None.
Core Academic Subjects (§300.10)
Comment: A few commenters
suggested adding the definition of core
academic subjects from the ESEA to the
regulations and including any
additional subjects that are considered
core academic subjects for children in
the State in which the child resides.
Discussion: The definition of core
academic subjects in §300.10,
consistent with section 602(4) of the
Act, is the same as the definition in
section 9101 of the ESEA. We believe it
is unnecessary to change the definition
to include additional subjects that
particular States consider to be core
academic subjects. However, there is
nothing in the Act or these regulations
that would prevent a State from
including additional subjects in its
definition of ‘‘core academic subjects.’’
Changes: None.
Comment: A few commenters
requested clarifying the definition of
core academic subjects for a secondary
school student when the student is
functioning significantly below the
secondary level.
Discussion: The definition of core
academic subjects does not vary for
secondary students who are functioning
significantly below grade level. The Act
focuses on high academic standards and
clear performance goals for children
with disabilities that are consistent with
the standards and expectations for all
children. As required in §300.320(a),
each child’s IEP must include annual
goals to enable the child to be involved
in and make progress in the general
education curriculum, and a statement
of the special education and related
services and supplementary aids and
services to enable the child to be
involved and make progress in the
general education curriculum. It would,
therefore, be inconsistent and contrary
to the purposes of the Act for the
definition of core academic subjects to
be different for students who are
functioning below grade level.
Changes: None.
Comment: One commenter asked that
the core content area of ‘‘science’’ apply
to social sciences, as well as natural
sciences.
Discussion: We cannot change the
regulations in the manner recommended
by the commenter because the ESEA
does not identify ‘‘social sciences’’ as a
core academic subject. Neither does it
identify ‘‘social studies’’ as a core
academic subject. Instead, it identifies
specific core academic areas: History,
geography, economics, and civics and government. The Department’s
nonregulatory guidance on ‘‘Highly
Qualified Teachers, Improving Teacher
Quality State Grants’’ (August 3, 2005)
explains that if a State issues a
composite social studies license, the
State must determine in which of the
four areas (history, geography,
economics, and civics and government),
if any, a teacher is qualified. (see
question A–20 in the Department’s
nonregulatory guidance available at
http://www.ed.gov/programs/
teacherqual/legislation.html#guidance).
Changes: None.
Day; Business Day; School Day
(§300.11)
Comment: A few commenters stated
that a partial day should be considered
a school day only if there is a safety
reason for a shortened day, such as a
two hour delay due to snow, and that
regularly scheduled half days should
not be considered a school day for
funding purposes. One commenter
stated that many schools count the time
on the bus, recess, lunch period, and
passing periods as part of a school day
for children with disabilities, and
recommended that the regulations
clarify that non-instructional time does
not count against a child’s instructional
day unless such times are counted
against the instructional day of all
children. One commenter recommended
the definition of school day include
days on which extended school year
(ESY) services are provided to children
with disabilities.
Discussion: The length of the school
day and the number of school days do
not affect the formula used to allocate
Part B funds to States. School day, as
defined in §300.11(c)(1), is any day or
partial day that children are in
attendance at school for instructional
purposes. If children attend school for
only part of a school day and are
released early (e.g., on the last day
before summer vacation), that day
would be considered to be a school day.
Section 300.11(c)(2) already defines
school day as having the same meaning
for all children, including children with
and without disabilities. Therefore, it is
unnecessary for the regulations to
clarify that non-instructional time (e.g.,
recess, lunch) is not counted as
instructional time for a child with a
disability unless such times are counted
as instructional time for all children.
Consistent with this requirement, days
on which ESY services are provided
cannot be counted as a school day
because ESY services are provided only
to children with disabilities.
Changes: None. Educational Service Agency (§300.12)
Comment: One commenter questioned
the accuracy of the citation, 20 U.S.C.
1401(5), as the basis for including
‘‘intermediate educational unit’’ in the
definition of educational service agency.
Discussion: The definition of
educational service agency is based on
the provisions in section 602(5) of the
Act. The definition was added by the
Amendments to the Individuals with
Disabilities Education Act in 1997, Pub.
L. 105–17, to replace the definition of
‘‘intermediate educational unit’’ (IEU) in
section 602(23) of the Act, as in effect
prior to June 4, 1997. Educational
service agency does not exclude entities
that were considered IEUs under prior
law. To avoid any confusion about the
use of this term, the definition clarifies
that educational service agency includes
entities that meet the definition of IEU
in section 602(23) of the Act as in effect
prior to June 4, 1997. We believe the
citation for IEU is consistent with the
Act.
Changes: None.
Comment: One commenter requested
that the regulations clarify that the
reference to the definition of
educational service agency in the
definition of local educational agency or
LEA in §300.28 means that educational
service agencies (ESAs) and Bureau of
Indian Affairs (BIA) schools have full
responsibility and rights as LEAs under
all provisions of the Act, including
§300.226 (early intervening services).
Discussion: With respect to ESAs, we
believe that the provisions in §300.12
and §300.28 clarify that ESAs have full
responsibility and rights as LEAs,
including the provisions in §300.226
related to early intervening services.
However, the commenter’s request
regarding BIA schools is inconsistent
with the Act. The definition of local
educational agency in §300.28 and
section 602(19) of the Act, including the
provision on BIA funded schools in
section 602(19)(C) of the Act and in
§300.28(c), states that the term ‘‘LEA’’
includes an elementary school or
secondary school funded by the BIA,
‘‘but only to the extent that the
inclusion makes the school eligible for
programs for which specific eligibility is
not provided to the school in another
provision of law and the school does not
have a student population that is
smaller than the student population of
the LEA receiving assistance under the
Act with the smallest student
population.’’ Therefore, BIA schools do
not have full responsibility and rights as
LEAs under all provisions of the Act.
Changes: None.
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46553 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Excess Costs (§300.16)
Comment: One commenter stated that
an example on calculating excess costs
would be a helpful addition to the
regulations.
Discussion: We agree with the
commenter and will include an example
of calculating excess costs in Appendix
A to Part 300—Excess Costs
Calculation. In developing the example,
we noted that while the requirements in
§300.202 exclude debt service and
capital outlay in the calculation of
excess costs, the definition of excess
costs in §300.16 does not mention this
exclusion. We believe it is important to
include this exclusion in the definition
of excess costs and will add language in
§300.16 to make this clear and
consistent with the requirements in
§300.202.
Changes: We have revised §300.16(b)
to clarify that the calculation of excess
costs may not include capital outlay or
debt service. We have also added
Appendix A to Part 300—Excess Costs
Calculation that provides an example
and an explanation of how to calculate
excess costs under the Act. A reference
to Appendix A has been added in
§300.16(b).
Free Appropriate Public Education or
FAPE (§300.17)
Comment: One commenter stated that
the requirements in §§300.103 through
300.112 (Other FAPE Requirements)
should be included in the definition of
FAPE.
Discussion: The other FAPE
requirements in §§300.103 through
300.112 are included in subpart B of
these regulations, rather than in the
definition of FAPE in subpart A, to be
consistent with the order and structure
of section 612 of the Act, which
includes all the statutory requirements
related to State eligibility. The order and
structure of these regulations follow the
general order and structure of the
provisions in the Act in order to be
helpful to parents, State and LEA
personnel, and the public both in
reading the regulations, and in finding
the direct link between a given statutory
requirement and the regulation related
to that requirement.
Changes: None.
Comment: Some commenters stated
that the definition of FAPE should
include special education services that
are provided in conformity with a
child’s IEP in the least restrictive
environment (LRE), consistent with the
standards of the State educational
agency (SEA).
Discussion: The definition of FAPE in
§300.17 accurately reflects the specific language in section 602(9) of the Act.
We believe it is unnecessary to change
the definition of FAPE in the manner
recommended by the commenters
because providing services in
conformity with a child’s IEP in the LRE
is implicit in the definition of FAPE.
Consistent with §300.17(b), FAPE
means that special education and
related services must meet the standards
of the SEA and the requirements in Part
B of the Act, which include the LRE
requirements in §§300.114 through
300.118. Additionally, §300.17(d)
provides that FAPE means that special
education and related services are
provided in conformity with an IEP that
meets the requirements in section
614(d) of the Act. Consistent with
section 614(d)(1)(i)(V) of the Act, the
IEP must include a statement of the
extent, if any, to which the child will
not participate with nondisabled
children in the regular education class.
Changes: None.
Comment: One commenter
recommended removing ‘‘including the
requirements of this part’’ in §300.17(b)
because this phrase is not included in
the Act, and makes every provision in
Part B of the Act a component of FAPE.
Discussion: Section 300.17 is the same
as current §300.13, which has been in
the regulations since 1977. We do not
believe that §300.17 makes every
provision of this part applicable to
FAPE.
Changes: None.
Highly Qualified Special Education
Teachers (§300.18)
Comment: One commenter requested
including the definition of ‘‘highly
qualified teacher,’’ as defined in the
ESEA, in the regulations.
Discussion: The ESEA defines ‘‘highly
qualified’’ with regard to any public
elementary or secondary school teacher.
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
definition here for reference.
The term ‘‘highly qualified’’—
(A) When used with respect to any
public elementary school or secondary
school teacher teaching in a State,
means that—
(i) The teacher has obtained full State
certification as a teacher (including
certification obtained through
alternative routes to certification) or
passed the State teacher licensing
examination, and holds a license to
teach in such State, except that when
used with respect to any teacher
teaching in a public charter school, the
term means that the teacher meets the requirements set forth in the State’s
public charter school law; and
(ii) The teacher has not had
certification or licensure requirements
waived on an emergency, temporary, or
provisional basis;
(B) When used with respect to—
(i) An elementary school teacher who
is new to the profession, means that the
teacher—
(I) Holds at least a bachelor’s degree;
and
(II) Has demonstrated, by passing a
rigorous State test, subject knowledge
and teaching skills in reading, writing,
mathematics, and other areas of the
basic elementary school curriculum
(which may consist of passing a State-
required certification or licensing test or
tests in reading, writing, mathematics,
and other areas of the basic elementary
school curriculum); or
(ii) A middle or secondary school
teacher who is new to the profession,
means that the teacher holds at least a
bachelor’s degree and has demonstrated
a high level of competency in each of
the academic subjects in which the
teacher teaches by—
(I) Passing a rigorous State academic
subject test in each of the academic
subjects in which the teacher teaches
(which may consist of a passing level of
performance on a State-required
certification or licensing test or tests in
each of the academic subjects in which
the teacher teaches); or
(II) Successful completion, in each of
the academic subjects in which the
teacher teaches, of an academic major,
a graduate degree, coursework
equivalent to an undergraduate
academic major, or advanced
certification or credentialing; and
(C) When used with respect to an
elementary, middle, or secondary school
teacher who is not new to the
profession, means that the teacher holds
at least a bachelor’s degree and—
(i) Has met the applicable standard in
clause (i) or (ii) of subparagraph (B),
which includes an option for a test; or
(ii) Demonstrates competence in all
the academic subjects in which the
teacher teaches based on a high
objective uniform State standard of
evaluation that—
(I) Is set by the State for both grade
appropriate academic subject matter
knowledge and teaching skills;
(II) Is aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
(III) Provides objective, coherent
information about the teacher’s
attainment of core content knowledge in
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46554 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
the academic subjects in which a
teacher teaches;
(IV) Is applied uniformly to all
teachers in the same academic subject
and the same grade level throughout the
State;
(V) Takes into consideration, but not
be based primarily on, the time the
teacher has been teaching in the
academic subject;
(VI) Is made available to the public
upon request; and
(VII) May involve multiple, objective
measures of teacher competency.
Changes: None.
Comment: A few commenters
recommended defining the term
‘‘special education teacher.’’ Other
commenters recommended that States
define highly qualified special
education teachers and providers. One
commenter stated that the regulations
should define the role of the special
education teacher as supplementing and
supporting the regular education teacher
who is responsible for teaching course
content.
One commenter requested that the
regulations clarify that a special
education teacher who is certified as a
regular education teacher with an
endorsement in special education meets
the requirements for a highly qualified
special education teacher. Another
commenter recommended changing the
definition of a highly qualified special
education teacher so that States cannot
provide a single certification for all
areas of special education. One
commenter requested clarification
regarding the highly qualified special
education teacher standards for special
education teachers with single State
endorsements in the area of special
education. A few commenters
recommended clarifying that when a
State determines that a teacher is fully
certified in special education, this
means that the teacher is knowledgeable
and skilled in the special education area
in which certification is received. One
commenter recommended that teacher
qualifications and standards be
consistent from State to State.
Discussion: Section 300.18(b),
consistent with section 602(10)(B) of the
Act, provides that a highly qualified
special education teacher must have full
State special education certification
(including certification obtained
through alternative routes to
certification) or have passed the State
special education teacher licensing
examination and hold a license to teach
in the State; have not had special
education certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
hold at least a bachelor’s degree. Except to the extent addressed in §300.18(c)
and (d), special education teachers who
teach core academic subjects must, in
addition to meeting these requirements,
demonstrate subject-matter competency
in each of the core academic subjects in
which the teacher teaches.
States are responsible for establishing
certification and licensing standards for
special education teachers. Each State
uses its own standards and procedures
to determine whether teachers who
teach within that State meet its
certification and licensing requirements.
Teacher qualifications and standards are
consistent from State to State to the
extent that States work together to
establish consistent criteria and
reciprocity agreements. It is not the role
of the Federal government to regulate
teacher certification and licensure.
Changes: None.
Comment: One commenter stated that
LEAs must train special education
teachers because most special education
teachers are not highly qualified upon
graduation from a college program. A
few commenters recommended that the
regulations encourage SEAs to require
coursework for both special education
and general education teachers in the
areas of behavior management and
classroom management. One commenter
recommended that the requirements for
special education teachers include
competencies in reading instruction and
in properly modifying and
accommodating instruction. Another
commenter supported training in
special education and related services
for general education teachers. One
commenter expressed support for
collaboration between special education
and regular education teachers. Some
commenters recommended requiring a
highly qualified general education
teacher teaching in a self-contained
special education classroom to work in
close collaboration with the special
education teacher assigned to those
children. Another commenter stated
that the definition of a highly qualified
special education teacher will be
meaningless if the training for teachers
is not consistent across States.
Discussion: Personnel training needs
vary across States and it would be
inappropriate for the regulations to
require training on specific topics.
Consistent with §300.156 and section
612(a)(14) of the Act, each State is
responsible for ensuring that teachers,
related services personnel,
paraprofessionals, and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills required to serve children with
disabilities.
Changes: None.
Comment: One commenter
recommended that the regulations
include standards for highly qualified
special education paraprofessionals,
similar to the requirements under the
ESEA.
Discussion: Section §300.156(b)
specifically requires the qualifications
for paraprofessionals to be consistent
with any State-approved or State-
recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services.
In addition, the ESEA requires that
paraprofessionals, including special
education paraprofessionals who assist
in instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals (March 1,
2004), which can be found on the
Department’s Web site at: http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
We believe these requirements are
sufficient to ensure that children with
disabilities receive services from
paraprofessionals who are appropriately
and adequately trained. Therefore, we
decline to include additional standards
for paraprofessionals.
Changes: None.
Comment: Numerous commenters
requested clarification as to whether
early childhood and preschool special
education teachers must meet the highly
qualified special education teacher
standards. Several commenters stated
that requiring early childhood and
preschool special education teachers to
meet the highly qualified special
education teacher standards would
exceed statutory authority and
exacerbate the shortage of special
education teachers. A few commenters
supported allowing States to decide
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46555 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
whether the highly qualified special
education teacher requirements apply to
preschool teachers.
Discussion: The highly qualified
special education teacher requirements
apply to all public elementary school
and secondary school special education
teachers, including early childhood or
preschool teachers if a State includes
the early childhood or preschool
programs as part of its elementary
school and secondary school system. If
the early childhood or preschool
program is not a part of a State’s public
elementary school and secondary school
system, the highly qualified special
education teacher requirements do not
apply.
Changes: None.
Comment: One commenter requested
clarification regarding the scope of the
highly qualified special education
teacher requirements for instructors
who teach core academic subjects in
specialized schools, such as schools for
the blind, and recommended that there
be different qualifications for instructors
who provide orientation and mobility
instruction or travel training for
children who are blind or visually
impaired.
One commenter requested adding
travel instructors to the list of special
educators who need to be highly
qualified. Some commenters
recommended adding language to
include certified and licensed special
education teachers of children with low
incidence disabilities as highly qualified
special education teachers. A few
commenters requested that the
requirements for teachers who teach
children with visual impairments
include competencies in teaching
Braille, using assistive technology
devices, and conducting assessments,
rather than competencies in core subject
areas. Some commenters requested more
flexibility in setting the standards for
teachers of children with visual
impairments and teachers of children
with other low incidence disabilities.
One commenter requested clarification
regarding the requirements for teachers
of children with low incidence
disabilities.
Discussion: Consistent with §300.156
and section 612(a)(14) of the Act, it is
the responsibility of each State to ensure
that teachers and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities,
including teachers of children with
visual impairments and teachers of
children with other low incidence
disabilities. The highly qualified special
education teacher requirements apply to
all public school special education
teachers. There are no separate or
special provisions for special education
teachers who teach in specialized
schools, for teachers of children who are
blind and visually impaired, or for
teachers of children with other low
incidence disabilities and we do not
believe there should be because these
children should receive the same high
quality instruction from teachers who
meet the same high standards as all
other teachers and who have the subject
matter knowledge and teaching skills
necessary to assist these children to
achieve to high academic standards.
Changes: None.
Comment: One commenter requested
clarification on how the highly qualified
special education teacher requirements
impact teachers who teach children of
different ages. A few commenters
recommended adding a provision for
special education teachers who teach at
multiple age levels, similar to the
special education teacher who teaches
multiple subjects.
Discussion: The Act does not include
any special requirements for special
education teachers who teach at
multiple age levels. Teachers who teach
at multiple age levels must meet the
same requirements as all other special
education teachers to be considered
highly qualified. The clear intent of the
Act is to ensure that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we do not believe
there should be different requirements
for teachers who teach at multiple age
levels.
Changes: None.
Comment: One commenter
recommended including specific criteria
defining a highly qualified special
education literacy teacher.
Discussion: Under §300.18(a), a
special education literacy teacher who
is responsible for teaching reading must
meet the ESEA highly qualified teacher
requirements including competency in
reading, as well as the highly qualified
special education teacher requirements.
We do not believe that further
regulation is needed as the Act leaves
teacher certification and licensing
requirements to States.
Changes: None.
Comment: Many commenters
expressed concern that the highly
qualified special education teacher
standards will make it more difficult to
recruit and retain special education
teachers. Some commenters stated that most special education teachers will
need to hold more than one license or
certification to meet the highly qualified
special education teacher requirements
and that the time and expense needed
to obtain the additional licenses or
certifications is unreasonable. One
commenter stated that schools will have
to hire two or three teachers for every
one special education teacher, thereby
increasing education costs.
One commenter expressed concern
about losing special education teachers
who teach multiple subjects in
alternative education and homebound
programs because they will not meet the
highly qualified special education
teacher requirements. One commenter
expressed concern that the requirements
set a higher standard for teachers in self-
contained classrooms. Another
commenter stated that requiring special
education teachers in secondary schools
to be experts in all subjects is a burden
that elementary teachers do not have.
Discussion: The Department
understands the concerns of the
commenters. However, the clear
intention of the Act is to ensure that all
children with disabilities have teachers
with the subject-matter knowledge and
teaching skills necessary to assist
children with disabilities achieve to
high academic standards.
To help States and districts meet
these standards, section 651 of the Act
authorizes State Personnel Development
grants to help States reform and
improve their systems for personnel
preparation and professional
development in early intervention,
educational, and transition services in
order to improve results for children
with disabilities. In addition, section
662 of the Act authorizes funding for
institutions of higher education, LEAs,
and other eligible local entities to
improve or develop new training
programs for teachers and other
personnel serving children with
disabilities.
Changes: None.
Comment: One commenter requested
further clarification regarding the
requirements for secondary special
education teachers to be highly
qualified in the core subjects they teach,
as well as certified in special education.
Discussion: Consistent with
§300.18(a) and (b) and section
602(10)(A) and (B) of the Act, secondary
special education teachers who teach
core academic subjects must meet the
highly qualified teacher standards
established in the ESEA (which
includes competency in each core
academic subject the teacher teaches)
and the highly qualified special
education teacher requirements in
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46556 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
§300.18(b) and section 602(10)(B) of the
Act.
Consistent with §300.18(c) and
section 602(10)(C) of the Act, a
secondary special education teacher
who teaches core academic subjects
exclusively to children assessed against
alternate achievement standards can
satisfy the highly qualified special
education teacher requirements by
meeting the requirements for a highly
qualified elementary teacher under the
ESEA, or in the case of instruction
above the elementary level, have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, to effectively
teach to those standards.
Changes: None.
Comment: One commenter expressed
concern that the highly qualified teacher
requirements will drive secondary
teachers who teach children with
emotional and behavioral disorders out
of the field and requested that the
requirements be changed to require
special education certification in one
core area, plus a reasonable amount of
training in other areas. Another
commenter recommended permitting
special education teachers of core
academic subjects at the elementary
level to be highly qualified if they major
in elementary education and have
coursework in math, language arts, and
science. One commenter recommended
that any special education teacher
certified in a State prior to 2004 be
exempt from having to meet the highly
qualified special education teacher
requirements.
Discussion: The definition of a highly
qualified special education teacher in
§300.18 accurately reflects the
requirements in section 602(10) of the
Act. To change the regulations in the
manner recommended by the
commenters would be inconsistent with
the Act and the Act’s clear intent of
ensuring that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we decline to
change the requirements in §300.18.
Changes: None.
Comment: One commenter stated that
there is a double standard in the highly
qualified teacher requirements because
general education teachers are not
required to be certified in special
education even though they teach
children with disabilities. Another
commenter recommended requiring
general education teachers who teach
children with disabilities to meet the
highly qualified special education
teacher requirements. Discussion: We cannot make the
changes suggested by the commenter
because the Act does not require general
education teachers who teach children
with disabilities to be certified in
special education. Further, the
legislative history of the Act would not
support these changes. Note 21 in the
U.S. House of Representatives
Conference Report No. 108–779 (Conf.
Rpt.), p. 169, clarifies that general
education teachers who are highly
qualified in particular subjects and who
teach children with disabilities in those
subjects are not required to have full
State certification as a special education
teacher. For example, a reading
specialist who is highly qualified in
reading instruction, but who is not
certified as a special education teacher,
would not be prohibited from providing
reading instruction to children with
disabilities.
The Act focuses on ensuring that
children with disabilities achieve to
high academic standards and have
access to the same curriculum as other
children. In order to achieve this goal,
teachers who teach core academic
subjects to children with disabilities
must be competent in the core academic
areas in which they teach. This is true
for general education teachers, as well
as special education teachers.
Changes: None.
Comment: Some commenters
expressed concern that LEAs may
reduce placement options for children
with disabilities because of the shortage
of highly qualified teachers. A few
commenters recommended requiring
each State to develop and implement
policies to ensure that teachers meet the
highly qualified special education
teacher requirements, while maintaining
a full continuum of services and
alternative placements to respond to the
needs of children with disabilities.
Discussion: It would be inconsistent
with the LRE requirements in section
612(a)(5) of the Act for a public agency
to restrict the placement options for
children with disabilities. Section
300.115, consistent with section
612(a)(5) of the Act, requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities.
The additional requirements
requested by the commenter are not
necessary because States already must
develop and implement policies to
ensure that the State meets the LRE and
personnel standards requirements in
sections 612(a)(5) and (a)(14) of the Act,
respectively.
Changes: None. Comment: One commenter stated that
personnel working in charter schools
should meet the same requirements as
all other public school personnel.
Several commenters expressed concern
regarding the exemption of charter
school teachers from the highly
qualified special education teacher
requirements. One commenter stated
that while a special education teacher in
a charter school does not have to be
licensed or certified by the State if the
State’s charter school law does not
require such licensure or certification,
all other elements of the highly
qualified special education teacher
requirements should apply to charter
school teachers, including demonstrated
competency in core academic subject
areas.
Discussion: The certification
requirements for charter school teachers
are established in a State’s public
charter school law, and may differ from
the requirements for full State
certification for teachers in other public
schools. The Department does not have
the authority to change State charter
school laws to require charter school
teachers to meet the same requirements
as all other public school teachers.
In addition to the certification
requirements established in a State’s
public charter school law, if any, section
602(10) of the Act requires charter
school special education teachers to
hold at least a bachelor’s degree and, if
they are teaching core academic
subjects, demonstrate competency in the
core academic areas they teach. We will
add language in §300.18(b) to clarify
that special education teachers in public
charter schools must meet the
certification or licensing requirements,
if any, established by a State’s public
charter school law.
Changes: We have added the words
‘‘if any’’ in §300.18(b)(1)(i) to clarify
that special education teachers in public
charter schools must meet any
certification or licensing requirements
established by a State’s public charter
school law.
Comment: One commenter stated that
the regulations use the terms ‘‘highly
qualified’’ and ‘‘fully certified’’ in a
manner that implies they are
synonymous, and recommended that
the regulations maintain the distinction
between the two terms.
Discussion: Full State certification is
determined under State law and policy
and means that a teacher has fully met
State requirements, including any
requirements related to a teacher’s years
of teaching experience. For example,
State requirements may vary for first-
year teachers versus teachers who are
not new to the profession. Full State
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certification also means that the teacher
has not had certification or licensure
requirements waived on an emergency,
temporary, or provisional basis.
The terms ‘‘highly qualified’’ and
‘‘fully certified’’ are synonymous when
used to refer to special education
teachers who are not teaching core
academic subjects. For special
education teachers teaching core
academic subjects, however, both full
special education certification or
licensure and subject matter
competency are required.
Changes: We have changed the
heading to §300.18(a) and the
introductory material in §300.18(a) and
(b)(1) for clarity.
Comment: A few commenters
recommended prohibiting States from
creating new categories to replace
emergency, temporary, or provisional
licenses that lower the standards for full
certification in special education.
Discussion: We do not believe it is
necessary to add the additional language
recommended by the commenters.
Section 300.18(b)(1)(ii) and section
602(10)(B)(ii) of the Act are clear that a
teacher cannot be considered a highly
qualified special education teacher if
the teacher has had special education
certification or licensure waived on an
emergency, temporary, or provisional
basis. This would include any new
certification category that effectively
allows special education certification or
licensure to be waived on an emergency,
temporary, or provisional basis.
Changes: None.
Comment: Some commenters
supported alternative route to
certification programs for special
education teachers. One commenter
stated that these programs are necessary
to increase the number of highly
qualified teachers and will help schools
on isolated tribal reservations recruit,
train, and retain highly qualified
teachers. However, numerous
commenters expressed concerns and
objections to alternative route to
certification programs for special
education teachers. Several commenters
stated that allowing individuals making
progress in an alternative route to
certification program to be considered
highly qualified and fully certified
creates a lower standard, short-changes
children, is not supported by any
provision in the Act, and undermines
the requirement for special education
teachers to be fully certified. One
commenter stated that this provision is
illogical and punitive to higher
education teacher training programs
because it allows individuals in an
alternative route to certification program
to be considered highly qualified and fully certified during their training
program, while at the same time
individuals in regular teacher training
programs that meet the same
requirements as alternative route to
certification programs are not
considered highly qualified or fully
certified. One commenter argued that an
individual participating in an
alternative route to certification program
would need certification waived on an
emergency, temporary, or provisional
basis, which means the individual has
not met the requirements in
§300.18(b)(1)(ii). Another commenter
stated that three years is not enough
time for a teacher enrolled in an
alternative route to certification program
to assume the functions of a teacher.
Discussion: While we understand the
general objections to alternative route to
certification programs expressed by the
commenters, the Department believes
that alternative route to certification
programs provide an important option
for individuals seeking to enter the
teaching profession. The requirements
in §300.18(b)(2) were included in these
regulations to provide consistency with
the requirements in 34 CFR
200.56(a)(2)(ii)(A) and the ESEA,
regarding alternative route to
certification programs. To help ensure
that individuals participating in
alternative route to certification
programs are well trained, there are
certain requirements that must be met as
well as restrictions on who can be
considered to have obtained full State
certification as a special education
teacher while enrolled in an alternative
route to certification program. An
individual participating in an
alternative route to certification program
must (1) hold at least a bachelor’s degree
and have demonstrated subject-matter
competency in the core academic
subject(s) the individual will be
teaching; (2) assume the functions of a
teacher for not more than three years;
and (3) demonstrate satisfactory
progress toward full certification, as
prescribed by the State. The individual
also must receive, before and while
teaching, high-quality professional
development that is sustained,
intensive, and classroom-focused and
have intensive supervision that consists
of structured guidance and regular
ongoing support.
It was the Department’s intent to
allow an individual who wants to
become a special education teacher, but
does not plan to teach a core academic
subject, to enroll in an alternative route
to certification program and be
considered highly qualified, provided
that the individual holds at least a
bachelor’s degree. This requirement, however, was inadvertently omitted in
the NPRM. Therefore, we will add
appropriate references in §300.18(b)(3)
to clarify that an individual
participating in an alternative route to
certification program in special
education who does not intend to teach
a core academic subject, may be
considered a highly qualified special
education teacher if the individual
holds at least a bachelor’s degree and
participates in an alternative route to
certification program that meets the
requirements in §300.18(b)(2).
Changes: Appropriate citations have
been added in §300.18(b)(3) to clarify
the requirements for individuals
enrolled in alternative route to special
education teacher certification
programs.
Comment: A few commenters
recommended more specificity in the
requirements for teachers participating
in alternative route to certification
programs, rather than giving too much
discretion to States to develop programs
that do not lead to highly qualified
personnel. However, one commenter
recommended allowing States the
flexibility to create their own guidelines
for alternative route to certification
programs.
Several commenters recommended
clarifying the requirements for the
teacher supervising an individual who
is participating in an alternative route to
certification program. One commenter
recommended requiring supervision,
guidance, and support by a professional
with expertise in the area of special
education in which the teacher desires
to become certified.
Discussion: Consistent with
§300.18(b)(2)(ii), States are responsible
for ensuring that the standards for
alternative route to certification
programs in §300.18(b)(2)(i) are met. It
is, therefore, up to each State to
determine whether to require specific
qualifications for the teachers
responsible for supervising teachers
participating in an alternative route to
certification program.
Changes: None.
Comment: One commenter requested
clarification regarding the roles and
responsibilities of special education
teachers who do not teach core
academic subjects.
Discussion: Special education
teachers who do not directly instruct
children in any core academic subject or
who provide only consultation to highly
qualified teachers of core academic
subjects do not need to demonstrate
subject-matter competency in those
subjects. These special educators could
provide consultation services to other
teachers, such as adapting curricula,
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using behavioral supports and
interventions, or selecting appropriate
accommodations for children with
disabilities. They could also assist
children with study skills or
organizational skills and reinforce
instruction that the child has already
received from a highly qualified teacher
in that core academic subject.
Changes: None.
Comment: Many commenters
recommended including language in the
regulations to clarify that special
education teachers who do not teach
core academic subjects and provide only
consultative services must restrict their
services to areas that supplement, not
replace, the direct instruction provided
by a highly qualified general education
teacher. One commenter recommended
that States develop criteria for teachers
who provide consultation services.
Another commenter stated that special
education teachers should not work on
a consultative basis.
Discussion: The definition of
consultation services and whether a
special education teacher provides
consultation services are matters best
left to the discretion of each State.
While States may develop criteria to
distinguish consultation versus
instructional services, the Act and the
ESEA are clear that teachers who
provide direct instruction in a core
academic subject, including special
education teachers, must meet the
highly qualified teacher requirements,
which include demonstrated
competency in each of the core
academic subjects the teacher teaches.
Changes: None.
Requirements for Highly Qualified
Special Education Teachers Teaching to
Alternate Achievement Standards
(§300.18(c))
Comment: One commenter
recommended replacing ‘‘alternate
achievement standards’’ with ‘‘alternate
standards.’’ A few commenters
requested including a definition of
alternate achievement standards in the
regulations.
Discussion: ‘‘Alternate achievement
standards’’ is statutory language and,
therefore, it would be inappropriate to
change ‘‘alternate achievement
standards’’ to ‘‘alternate standards.’’
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
description of alternate achievement
standards in 34 CFR 200.1(d) of the
ESEA regulations here for reference.
For children under section 602(3) of
the Individuals with Disabilities
Education Act with the most significant cognitive disabilities who take an
alternate assessment, a State may,
through a documented and validated
standards-setting process, define
alternate academic achievement
standards, provided those standards—
(1) Are aligned with the State’s
academic content standards;
(2) Promote access to the general
curriculum; and
(3) Reflect professional judgment of
the highest achievement standards
possible.
Changes: None.
Comment: Several commenters
expressed concern with allowing high
school students with significant
cognitive disabilities to be taught by a
certified elementary school teacher. One
commenter stated that high school
students with disabilities should be
prepared to lead productive adult lives,
and not be treated as young children.
Another commenter stated that these
requirements foster low expectations for
children with the most significant
cognitive disabilities and will be used to
justify providing children with
instruction that is not age appropriate or
that denies access to the general
education curriculum. A few
commenters stated that the
requirements for special education
teachers teaching to alternate
achievement standards should be the
same as the requirements for all special
education teachers.
Some commenters recommended
requiring teachers who teach to
alternate achievement standards to have
subject matter knowledge to provide
instruction aligned to the academic
content standards for the grade level in
which the student is enrolled. One
commenter recommended requiring any
special education teacher teaching to
alternate achievement standards to
demonstrate knowledge of age-
appropriate core curriculum content to
ensure children with disabilities are
taught a curriculum that is closely tied
to the general education curriculum
taught to other children of the same age.
Discussion: The regulations
promulgated under section 1111(b)(1) of
the ESEA permit States to use alternate
achievement standards to evaluate the
performance of a small group of
children with the most significant
cognitive disabilities who are not
expected to meet grade-level standards
even with the best instruction. An
alternate achievement standard sets an
expectation of performance that differs
in complexity from a grade-level
achievement standard. Section
602(10)(C)(ii) of the Act, therefore,
allows special education teachers
teaching exclusively children who are assessed against alternate achievement
standards to meet the highly qualified
teacher standards that apply to
elementary school teachers. In the case
of instruction above the elementary
level, the teacher must have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, in order to
effectively teach to those standards.
We do not agree that allowing middle
and high school students with the most
significant cognitive disabilities to be
taught by teachers who meet the
qualifications of a highly qualified
elementary teacher fosters low
expectations, encourages students to be
treated like children, promotes
instruction that is not age appropriate,
or denies students access to the general
curriculum. Although alternate
achievement standards differ in
complexity from grade-level standards,
34 CFR 200.1(d) requires that alternate
achievement standards be aligned with
the State’s content standards, promote
access to the general curriculum, and
reflect professional judgment of the
highest achievement standards possible.
In short, we believe that the
requirements in §300.18(c) will ensure
that teachers teaching exclusively
children who are assessed against
alternate achievement standards will
have the knowledge to provide
instruction aligned to grade-level
content standards so that students with
the most significant cognitive
disabilities are taught a curriculum that
is closely tied to the general curriculum.
Changes: None.
Comment: A few commenters
requested clarification regarding the
meaning of ‘‘subject matter knowledge
appropriate to the level of instruction
provided’’ in §300.18(c)(2).
Discussion: Section 300.18(c)(2)
requires that if a teacher (who is
teaching exclusively to alternate
achievement standards) is teaching
students who need instruction above the
elementary school level, the teacher
must have subject matter knowledge
appropriate to the level of instruction
needed to effectively teach to those
standards. The purpose of this
requirement is to ensure that teachers
exclusively teaching children who are
assessed based on alternate academic
achievement standards above the
elementary level have sufficient subject
matter knowledge to effectively instruct
in each of the core academic subjects
being taught, at the level of difficulty
being taught. For example, if a high
school student (determined by the IEP
Team to be assessed against alternate
achievement standards) has knowledge
and skills in math at the 7th grade level,
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but in all other areas functions at the
elementary level, the teacher would
need to have knowledge in 7th grade
math in order to effectively teach the
student to meet the 7th grade math
standards. No further clarification is
necessary.
Changes: None.
Comment: A few commenters
recommended that the regulations
include requirements for teachers who
provide instruction to children assessed
against modified achievement
standards. Several commenters stated
that the requirements for teachers
teaching children assessed against
modified achievement standards should
be the same for teachers teaching
children assessed against alternate
achievement standards.
Discussion: The Department has not
issued final regulations addressing
modified achievement standards and
the specific criteria for determining
which children with disabilities should
be assessed based on modified
achievement standards. As proposed,
the modified achievement standards
must be aligned with the State’s
academic content standards for the
grade in which the student is enrolled
and provide access to the grade-level
curriculum. For this reason, we see no
need for a further exception to the
‘‘highly qualified teacher’’ provisions at
this time.
Changes: None.
Requirements for Highly Qualified
Special Education Teachers Teaching
Multiple Subjects (§300.18(d))
Comment: A few commenters stated
that the requirements for teachers who
teach two or more core academic
subjects exclusively to children with
disabilities are confusing. Some
commenters requested additional
guidance and flexibility for special
education teachers teaching two or more
core academic subjects. Other
commenters recommended allowing
special education teachers more time to
become highly qualified in all the core
academic subjects they teach.
Discussion: The requirements in
§300.18(d), consistent with section
602(10)(C) of the Act, provide flexibility
for teachers who teach multiple core
academic subjects exclusively to
children with disabilities. Section
300.18(d)(2) and (3) allows teachers who
are new and not new in the profession
to demonstrate competence in all the
core academic subjects in which the
teacher teaches using a single, high
objective uniform State standard of
evaluation (HOUSSE) covering multiple
subjects. In addition, §300.18(d)(3)
gives a new special education teacher who teaches multiple subjects, and who
is highly qualified in mathematics,
language arts, or science at the time of
hire, two years after the date of
employment to demonstrate competence
in the other core academic subjects in
which the teacher teaches. We do not
believe that further clarification is
necessary.
Changes: None.
Comment: One commenter requested
clarification regarding the meaning of
the following phrases in §300.18(d):
‘‘multiple subjects,’’ ‘‘in the same
manner,’’ and ‘‘all the core academic
subjects.’’
Discussion: ‘‘Multiple subjects’’ refers
to two or more core academic subjects.
Section 300.18(d) allows teachers who
are new or not new to the profession to
demonstrate competence in ‘‘all the core
subjects’’ in which the teacher teaches
‘‘in the same manner’’ as is required for
an elementary, middle, or secondary
school teacher under the ESEA. As used
in this context, ‘‘in the same manner’’
means that special education teachers
teaching multiple subjects can
demonstrate competence in the core
academic subjects they teach in the
same way that is required for
elementary, middle, or secondary school
teachers in 34 CFR 200.56 of the ESEA
regulations. ‘‘All the core subjects’’
refers to the core academic subjects,
which include English, reading or
language arts, mathematics, science,
foreign languages, civics and
government, economics, arts, history,
and geography, consistent with §300.10.
Changes: None.
Comment: One commenter
recommended ensuring that the
requirements in §300.18(d) apply to
special education teachers who teach
children with severe disabilities in more
than one core subject area.
Discussion: The requirements in
§300.18(d) do not exclude teachers who
teach children with severe disabilities
in more than one core subject area.
Consistent with §300.18(d) and section
602(10)(D) of the Act, the requirements
apply to special education teachers who
teach two or more core academic
subjects exclusively to children with
disabilities, including, but not limited
to, children with severe disabilities. We
do not believe that further clarification
is necessary.
Changes: None.
Comment: A significant number of
commenters recommended adding
language to the regulations to permit a
separate HOUSSE for special education
teachers, including a single HOUSSE
that covers multiple subjects. Some
commenters supported a single
HOUSSE covering multiple subjects for special education teachers, as long as
those adaptations of a State’s HOUSSE
for use with special education teachers
do not establish lower standards for the
content knowledge requirements for
special education teachers.
Discussion: States have the option of
developing a method by which teachers
can demonstrate competency in each
subject they teach on the basis of a
HOUSSE. Likewise, we believe States
should have the option of developing a
separate HOUSSE for special education
teachers.
States have flexibility in developing
their HOUSSE evaluation as long as it
meets each of the following criteria
established in section 9101(23)(C)(ii) of
the ESEA:
•Be set by the State for both grade-
appropriate academic subject-matter
knowledge and teaching skills;
•Be aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
•Provide objective, coherent
information about the teacher’s
attainment of core content knowledge in
the academic subjects in which a
teacher teaches;
•Be applied uniformly to all teachers
in the same academic subject and
teaching in the same grade level
throughout the State;
•Take into consideration, but not be
based primarily on, the time the teacher
has been teaching in the academic
subject; and
•Be made available to the public
upon request.
The ESEA also permits States, when
developing their HOUSSE procedures,
to involve multiple, objective measures
of teacher competency. Each evaluation
should have a high, objective, uniform
standard that the candidate is expected
to meet or to exceed. These standards
for evaluation must be applied to each
candidate in the same way.
We believe it is appropriate and
consistent with the Act to permit States
to develop a separate HOUSSE for
special education teachers to
demonstrate subject matter competency
and to use a single HOUSSE covering
multiple subjects, provided that any
adaptations to the HOUSSE do not
establish a lower standard for the
content knowledge requirements for
special education teachers and meet all
the requirements for a HOUSSE for
regular education teachers established
in section 9101(23)(C)(ii) of the ESEA.
Changes: We have added a new
paragraph (e) to §300.18 to allow States
to develop a separate HOUSSE for
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special education teachers and to permit
the use of a single HOUSSE covering
multiple subjects. Subsequent
paragraphs have been renumbered.
Comment: A few commenters stated
that the HOUSSE should only be used
to address the content requirements, not
primary certification as a special
educator.
Discussion: A HOUSSE is a method
by which teachers can demonstrate
competency in each subject they teach.
A HOUSSE does not address the
requirement for full State certification as
a special education teacher.
Changes: None.
Comment: Several commenters
recommended clarifying the
requirements for a HOUSSE,
particularly at the high school level.
One commenter recommended
clarifying the use of a separate HOUSSE
for teachers of children with visual
impairments.
Discussion: The requirements for a
HOUSSE apply to public school
elementary, middle, and high school
special education teachers. Neither the
Act nor the ESEA provides for different
HOUSSE procedures at the high school
level. Similarly, there are no
requirements for separate HOUSSE
procedures for teachers who teach
children with visual impairments or any
other specific type of disability. We do
not believe it is necessary or appropriate
to establish separate requirements for
separate HOUSSE procedures for
teachers who teach children with visual
impairments or any other specific type
of disability. All children with
disabilities, regardless of their specific
disability, should have teachers with the
subject matter knowledge to assist them
to achieve to high academic standards.
Changes: None.
Comment: One commenter
recommended that States work
collaboratively to ensure there is State
reciprocity of content area standards for
special education teachers, including
HOUSSE provisions.
Discussion: It is up to each State to
determine when and on what basis to
accept another State’s determination
that a particular teacher is highly
qualified. Additionally, each State
determines whether to consider a
teacher from another State to be both
fully certified and competent in each
subject area.
Changes: None.
Comment: One commenter requested
specific guidance on how to design a
multi-subject HOUSSE for special
education teachers.
Discussion: The Department’s non-
regulatory guidance on Improving
Teacher Quality State Grants issued on August 3, 2005 (available at http://
www.ed.gov/programs/teacherqual/
guidance.doc.) provides the following
guidance to States when developing
their HOUSSE procedures (see question
A–10):
•Do the HOUSSE procedures provide
an ‘‘objective’’ way of determining
whether teachers have adequate subject-
matter knowledge in each core academic
subject they teach?
•Is there a strong and compelling
rationale for each part of the HOUSSE
procedures?
•Do the procedures take into
account, but not primarily rely on,
previous teaching experience?
•Does the plan provide solid
evidence that teachers have mastered
the subject-matter content of each of the
core academic subjects they are
teaching? (Note: experience and
association with content-focused groups
or organizations do not necessarily
translate into an objective measure of
content knowledge.)
•Has the State consulted with core
content specialists, teachers, principals,
and school administrators?
•Does the State plan to widely
distribute its HOUSSE procedures, and
are they presented in a format
understandable to all teachers?
Changes: None.
Comment: A few commenters asked
whether the additional time allowed for
teachers living in rural areas who teach
multiple subjects applies to special
education teachers. One commenter
requested that teachers in rural areas
have three extra years after the date of
employment to meet the standards.
Another commenter stated it will be
difficult for these teachers to meet the
highly qualified special education
teacher requirements even with an
extended deadline.
Discussion: The Department’s policy
on flexibility for middle and high school
teachers in rural schools applies to
special education teachers. Under this
policy, announced on March 15, 2004,
States may permit LEAs eligible to
participate in the Small Rural School
Achievement (SRSA) program that
employ teachers who teach multiple
subjects and are highly qualified in at
least one core academic subject, to have
until the end of the 2006–07 school year
for these teachers to be highly qualified
in each subject that they teach. Newly-
hired teachers in these covered LEAs
have three years from the date of hire to
become highly qualified in each core
academic subject that they teach. More
information about this policy is
available in the Department’s
nonregulatory guidance, Improving
Teacher Quality State Grants (August 3, 2005), which can be found on the
Department’s Web site at: http://
www.ed.gov/programs/teacherqual/
guidance.doc.
Changes: None.
Comment: Some commenters
requested a definition of ‘‘new’’ special
education teacher and asked whether it
applies to teachers hired after the date
of enactment of the Act, December 3,
2004, or after the 2005–06 school year.
One commenter asked whether a fully
certified regular education teacher who
enrolls in a special education teacher
training program would be considered
‘‘new’’ to the profession when he or she
completes the training program.
Discussion: Under the Act, mere
completion of a special education
teacher training program is not a
sufficient predicate for being considered
a highly qualified special education
teacher. Section 602(10)(B) of the Act
requires full State certification or
licensure as a special education teacher,
and this would apply to teachers who
are already certified or licensed as a
regular education teacher, as well as to
other individuals.
On the question of when a person is
‘‘new to the profession,’’ the
Department’s non-regulatory guidance
on Improving Teacher Quality State
Grants issued on August 3, 2005,
clarifies that States have the authority to
define which teachers are new and not
new to the profession; however, those
definitions must be reasonable. The
guidance further states that the
Department strongly believes that a
teacher with less than one year of
teaching experience is ‘‘new’’ to the
profession (see Question A–6). (The
guidance is available at http://
www.ed.gov/programs/teacherqual/
guidance.doc). This guidance is
applicable to determinations of when a
person is new or not new to the
profession under section 602(10)(C) and
(D)(ii) of the Act and §300.18(c) and
(d)(2).
Under section 602(10)(D)(iii) of the
Act, and reflected in §300.18(d)(3),
there is additional flexibility for ‘‘a new
special education teacher’’ who is
teaching multiple subjects and is highly
qualified in mathematics, language arts,
or science, to demonstrate competence
in the other core academic subjects in
which the teacher teaches in the same
manner as is required for an elementary,
middle, or secondary school teacher
who is not new to the profession, which
may include a single, high objective
uniform State standard of evaluation
covering multiple subjects, not later
than 2 years after the date of
employment. The phrase ‘‘2 years after
the date of employment’’ in section
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602(10)(D)(iii) of the Act is interpreted
to mean 2 years after employment as a
special education teacher.
For purposes of this provision, we
consider it appropriate to consider a
fully certified regular education teacher
who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
‘‘new special education teacher’’ when
they are first hired as a special
education teacher. We will add language
to new §300.18(g) (proposed §300.18(f))
to make this clear.
Changes: We have restructured
§300.18(g) (proposed §300.18(f)) and
added a new paragraph (g)(2) to permit
a fully certified regular education
teacher who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
new special education teacher when
first hired as a special education
teacher.
Comment: Some commenters
recommended that the regulations
clarify how co-teaching fits with the
highly qualified special education
teacher requirements. A few
commenters stated that a special
education teacher should be considered
a highly qualified teacher if co-teaching
with a highly qualified general
education teacher. One commenter
stated that co-teaching will encourage
districts to work toward more inclusive
settings for children with disabilities
while also ensuring that teachers with
appropriate qualifications are in the
classroom. One commenter supported
co-teaching as a method for special
education teachers to learn core content
knowledge and be supported by the
general education teacher. One teacher
recommended that a highly qualified
general education teacher supervise
teachers who do not meet the highly
qualified special education teacher
requirements.
Discussion: The term ‘‘co-teaching’’
has many different meanings depending
on the context in which it is used.
Whether and how co-teaching is
implemented is a matter that is best left
to State and local officials’ discretion.
Therefore, we decline to include
language regarding co-teaching in these
regulations. Regardless of whether co-
teaching models are used, States and
LEAs must ensure that teachers meet the
highly qualified teacher requirements in
34 CFR 200.56 and section 9101(23) of
the ESEA and the highly qualified
special education teacher requirements
in §300.18 and section 602(10) of the
Act, as well as the personnel
requirements in §300.156 and section
612(a)(14) of the Act.
Changes: None. Comment: One commenter
recommended requiring schools to post
the credentials of educational personnel
in a place with public access, and to
include in the procedural safeguards
notice a parent’s right to request the
credentials of any teacher who supports
the child in an educational
environment. Another commenter stated
that parents should have access to
records documenting the type of
supervision that is being provided when
a teacher or other service provider is
under the supervision of a highly
qualified teacher. One commenter stated
that the ESEA requires districts to
provide parents with information about
the personnel qualifications of their
child’s classroom teachers and asked
whether this requirement applies to
special education teachers.
Discussion: There is nothing in the
Act that authorizes the Department to
require schools to publicly post the
credentials of educational personnel or
to provide parents with information
about the qualification of their child’s
teachers and other service providers.
Section 615 of the Act describes the
guaranteed procedural safeguards
afforded to children with disabilities
and their parents under the Act but does
not address whether parents can request
information about the qualifications of
teachers and other service providers.
However, section 1111(h)(6) of the
ESEA requires LEAs to inform parents
about the quality of a school’s teachers
in title I schools. The ESEA requires that
at the beginning of each school year, an
LEA that accepts title I, part A funding
must notify parents of children in title
I schools that they can request
information regarding their child’s
classroom teachers, including, at a
minimum: (1) Whether the teacher has
met the State requirements for licensure
and certification for the grade levels and
subject matters in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide parents with timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to those special
education teachers who teach core
academic subjects in title I schools. Changes: None.
Rule of Construction (New §300.18(f))
(Proposed §300.18(e))
Comment: A number of commenters
stated that the rule of construction in
new §300.18(f) (proposed §300.18(e))
and §300.156(e) should use the same
language. One commenter stated that in
order to prevent confusion, the right of
action limitations regarding highly
qualified teachers in new §300.18(f)
(proposed §300.18(e)) and personnel
qualifications in §300.156(e) should use
consistent language regarding
individual and class actions, and clearly
underscore that the limitations are
applicable to both administrative and
judicial actions. One commenter
recommended reiterating the language
from section 612(a)(14)(D) of the Act
that nothing prevents a parent from
filing a State complaint about staff
qualifications. Another commenter
expressed concern because new
§300.18(f) (proposed §300.18(e)) and
§300.156(e) may be construed to
prevent due process hearings when an
LEA or SEA fails to provide a highly
qualified teacher.
Discussion: We agree that the rule of
construction in new §300.18(f)
(proposed §300.18(e)) and §300.156(e)
should be the same. We will change the
regulations to clarify that a parent or
student may not file a due process
complaint on behalf of a student, or file
a judicial action on behalf of a class of
students for the failure of a particular
SEA or LEA employee to be highly
qualified; however, a parent may file a
complaint about staff qualifications with
the SEA. In addition to permitting a
parent to file a complaint with the SEA,
an organization or an individual may
also file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§300.151 through 300.153.
Changes: We have added ‘‘or to
prevent a parent from filing a complaint
about staff qualifications with the SEA
as provided for under this part’’ in new
§300.18(f) (proposed §300.18(e)).
Comment: Several commenters
recommended that the regulations
specify that the failure of an SEA or LEA
to provide a child with a disability a
highly qualified teacher can be a
consideration in the determination of
whether a child received FAPE, if the
child is not learning the core content
standards or not meeting IEP goals.
However, a few commenters
recommended that the regulations
clarify that it is not a denial of FAPE if
a special education teacher is not highly
qualified.
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Discussion: If the only reason a parent
believes their child was denied FAPE is
that the child did not have a highly
qualified teacher, the parent would have
no right of action under the Act on that
basis. The rules of construction in new
§300.18(f) (proposed §300.18(e)) and
§300.156(e) do not allow a parent or
student to file a due process complaint
for failure of an LEA or SEA to provide
a highly qualified teacher.
Changes: None.
Comment: One commenter expressed
concern with the rule of construction in
new §300.18(f) (proposed §300.18(e))
because there are no requirements to
develop a specific enforcement system
to ensure that teachers meet the highly
qualified standard. A few commenters
recommended changing the rule of
construction so that States meet their
supervisory responsibilities under the
Act if LEAs in the State are sanctioned
under the ESEA for not having highly
qualified teachers.
Some commenters recommended
clarifying that when the SEA or LEA
employs an individual who is not
highly qualified, States meet their
responsibilities for general supervision
under the Act through the notice and
other sanction procedures identified
under the ESEA.
One commenter stated that the
regulations are silent with regard to SEA
actions when meeting the general
supervision requirements under the Act,
and noted that unless the regulations are
expanded to clarify that SEA
enforcement procedures under
compliance monitoring are limited to
ESEA enforcement procedures, the
highly qualified teacher requirements of
an individual teacher may
inappropriately become the target for a
finding of noncompliance. This
commenter further stated that the ESEA
contains specific procedures for failure
of a district to comply with the highly
qualified teacher provisions, and if the
SEA also exercises sanctioning authority
under the Act, schools could be
punished twice under two separate
provisions of Federal law for the same
infraction. The commenter
recommended that to avoid double
jeopardy the regulations should clarify
that the ESEA enforcement procedures
for a district’s failure to hire a highly
qualified teacher follow the provisions
of the ESEA, not the Act.
Discussion: The implementation and
enforcement of the highly qualified
teacher standards under the ESEA and
the Act complement each other. The
Office of Elementary and Secondary
Education (OESE) currently monitors
the implementation of the highly
qualified teacher standards for teachers of core academic subjects under the
ESEA. This includes special education
teachers who teach core academic
subjects.
The Office of Special Education
programs (OSEP) collects data about
special education personnel
qualifications and requires that SEAs
establish and maintain qualifications to
ensure that personnel essential to
carrying out the purposes of Part B of
the Act are appropriately and
adequately prepared and trained. Those
personnel must also have the content
knowledge and skills to serve children
with disabilities, consistent with
§300.156.
OESE and OSEP will share their data
to ensure that the highly qualified
teacher requirements under the ESEA
and the Act are met. This sharing of
information will also prevent schools
from being punished twice for the same
infraction.
Changes: None.
Teachers Hired by Private Elementary
and Secondary Schools (New
§300.18(h)) (Proposed §300.18(g))
Comment: Some commenters agreed
with new §300.18(h) (proposed
§300.18(g)), which states that the highly
qualified special education teacher
requirements do not apply to teachers
hired by private elementary schools and
secondary schools. However, many
commenters disagreed, stating that
children placed by an LEA in a private
school are entitled to receive the same
high quality instruction as special
education children in public schools. A
few commenters stated that LEAs will
place children in private schools to
avoid hiring highly qualified teachers.
Some commenters stated that public
funds should not be used for any school
that is not held to the same high
standards as public schools. Other
commenters stated that children with
the most significant disabilities who are
placed in private schools are children
with the most need for highly qualified
teachers. A few commenters stated that
this provision is contrary to the intent
of the ESEA and the Act to support the
educational achievement of children
with disabilities. Other commenters
stated that if instruction by a highly
qualified teacher is a hallmark of FAPE,
it should be an element of FAPE in any
educational setting in which the child is
enrolled by a public agency.
A few commenters recommended that
States have the discretion to determine
whether and to what extent the highly
qualified teacher requirements apply to
teachers who teach publicly-placed and
parentally-placed children with
disabilities. The commenters stated that the SEA is in the best position to weigh
the needs of private school children for
highly qualified teachers and to assess
what effect these requirements would
have on the shortage of special
education teachers in the State. One
commenter asked whether the highly
qualified teacher requirements apply to
providers in private residential
treatment centers where children with
disabilities are placed to receive FAPE.
Discussion: New §300.18(h)
(proposed §300.18(g)) accurately
reflects the Department’s position that
the highly qualified special education
teacher requirements do not apply to
teachers hired by private elementary
schools and secondary schools. This
includes teachers hired by private
elementary schools and secondary
schools who teach children with
disabilities. Consistent with this
position and in light of comments
received regarding the requirements for
private school teachers providing
equitable services for parentally-placed
private school children with disabilities
under §300.138, we will add language
to new §300.18(h) (proposed
§300.18(g)) to clarify that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities
under §300.138.
Changes: We have added language in
new §300.18(h) (proposed §300.18(g))
to clarify that the highly qualified
special education teacher requirements
also do not apply to private school
teachers who provide equitable services
to parentally-placed private school
children with disabilities under
§300.138.
Homeless Children (§300.19)
Comment: Several commenters
requested adding the definition of
homeless children in the regulations so
that it is readily accessible to parents,
advocates, and educators.
Discussion: The term homeless
children is defined in the McKinney-
Vento Homeless Assistance Act. For the
reasons set forth earlier in this notice,
we are not adding the definitions of
other statutes to these regulations.
However, we will include the current
definition of homeless children in
section 725 (42 U.S.C. 11434a) of the
McKinney-Vento Homeless Assistance
Act, as amended, 42 U.S.C. 11431 et seq.
(McKinney-Vento Act) here for
reference.
The term homeless children and
youths—
(A) means individuals who lack a
fixed, regular, and adequate nighttime
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residence (within the meaning of
section 103(a)(1)); and
(B) includes—
(i) children and youths who are
sharing the housing of other persons
due to loss of housing, economic
hardship, or a similar reason; are living
in motels, hotels, trailer parks, or
camping grounds due to the lack of
alternative adequate accommodations;
are living in emergency or transitional
shelters; are abandoned in hospitals; or
are awaiting foster care placement;
(ii) children and youths who have a
primary nighttime residence that is a
public or private place not designed for
or ordinarily used as a regular sleeping
accommodation for human beings
(within the meaning of section
103(a)(2)(C));
(iii) children and youths who are
living in cars, parks, public spaces,
abandoned buildings, substandard
housing, bus or train stations, or similar
settings; and
(iv) migratory children (as such term
is defined in section 1309 of the
Elementary and Secondary Education
Act of 1965) who qualify as homeless
for the purposes of this subtitle because
the children are living in circumstances
described in clauses (i) through (iii).
Changes: None.
Comment: One commenter stated that
regulations are needed to address school
selection and enrollment provisions
under the McKinney-Vento Act.
Another commenter recommended that
the regulations include the McKinney-
Vento Act’s requirement that school
stability for homeless children be
maintained during periods of residential
mobility and that homeless children
enrolled in new schools have the ability
to immediately attend classes and
participate in school activities.
Discussion: We appreciate the
commenters’ concerns, but do not
believe it is necessary to duplicate the
requirements of the McKinney-Vento
Act in these regulations. We believe that
these issues, as well as other issues
regarding children with disabilities who
are homeless, would be more
appropriately addressed in non-
regulatory guidance, in which more
detailed information and guidance can
be provided on how to implement the
requirements of the Act and the
McKinney-Vento Act to best meet the
needs of homeless children with
disabilities. We will work with the
Office of Elementary and Secondary
Education to provide guidance and
disseminate information to special
education teachers and administrators
regarding their responsibilities for
serving children with disabilities who
are homeless. Changes: None.
Indian and Indian Tribe (§300.21)
Comment: One commenter expressed
support for combining and moving the
definition of Indian and Indian tribe
from current §300.264 to the definitions
section of these regulations because the
term is applicable in instances not
related to BIA schools. However,
another commenter stated that the
definition was unnecessary because the
purpose of the Act is to ensure that
every child has FAPE.
Discussion: The definitions of Indian
and Indian tribe are included in
sections 602(12) and (13) of the Act,
respectively, and are, therefore,
included in subpart A of these
regulations. Subpart A includes
definitions for those terms and phrases
about which we are frequently asked
and which we believe will assist SEAs
and LEAs in implementing the
requirements of the Act. Including the
definitions of Indian and Indian tribe in
the definitions section does not in any
way affect the provision of FAPE to all
eligible children under the Act.
Changes: None.
Comment: One commenter requested
omitting ‘‘State Indian tribes’’ that are
not also federally-recognized tribes from
the definition of Indian and Indian tribe
stating that Federal recognition of an
Indian tribe should be a predicate for
the tribe’s eligibility for Federal
programs and services. One commenter
expressed concern that including ‘‘State
Indian tribes’’ in the definition could
imply that the Secretary of the Interior
is responsible for providing special
education and related services or
funding to all State Indian tribes.
Discussion: Section 602(13) of the Act
and §300.21(b) define Indian tribe as
‘‘any Federal or State Indian tribe’’ and
do not exclude State Indian tribes that
are not federally-recognized tribes. We
will add a new paragraph (c) to §300.21
clarifying that the definition of Indian
and Indian tribe is not intended to
indicate that the Secretary of Interior is
required to provide services or funding
to a State Indian tribe that is not listed
in the Federal Register list of Indian
entities recognized as eligible to receive
services from the United States,
published pursuant to Section 104 of
the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a–1.
Changes: A new paragraph (c) has
been added to §300.21 to provide this
clarification.
Comment: One commenter stated that
it was unclear how many States have
defined Indian tribes that are not
defined by the Federal government and
asked what the effect would be on the provision of services by including State
Indian tribes in the definition. Another
commenter stated that including State
Indian tribes in the definition of Indian
and Indian tribe implies that children of
State-recognized tribes are considered
differently than other children.
Discussion: As noted in the
discussion responding to the previous
comment, the list of Indian entities
recognized as eligible to receive services
from the United States is published in
the Federal Register, pursuant to
Section 104 of the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C.
479a–1. The Federal government does
not maintain a list of other State Indian
tribes. Including State Indian tribes that
are not federally recognized in the
definition does not affect who is
responsible under the Act for the
provision of services to children with
disabilities who are members of State
Indian tribes. Under section 611(h)(1) of
the Act, the Secretary of the Interior is
responsible for providing special
education and related services to
children age 5 through 21 with
disabilities on reservations who are
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. With respect to all other
children aged 3 through 21 on
reservations, the SEA of the State in
which the reservation is located is
responsible for ensuring that all the
requirements of Part B of the Act are
implemented.
Changes: None.
Individualized Family Service Plan
(§300.24)
Comment: A few commenters
recommended including the entire
definition of individualized family
service plan in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion: Adding the entire
definition of individualized family
service plan in section 636 of the Act,
which includes information related to
assessment and program development;
periodic review; promptness after
assessment; content of the plan; and
parental consent, would unnecessarily
add to the length of the regulations.
However, the required content of the
IFSP in section 636(d) of the Act is
added here for reference.
The individualized family service
plan shall be in writing and contain—
(1) A statement of the infant’s or
toddler’s present levels of physical
development, cognitive development,
communication development, social or
emotional development, and adaptive
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development, based on objective
criteria;
(2) a statement of the family’s
resources, priorities, and concerns
relating to enhancing the development
of the family’s infant or toddler with a
disability;
(3) a statement of the measurable
results or outcomes expected to be
achieved for the infant or toddler and
the family, including pre-literacy and
language skills, as developmentally
appropriate for the child, and the
criteria, procedures, and timelines used
to determine the degree to which
progress toward achieving the results or
outcomes is being made and whether
modifications or revisions of the results
or outcomes or services are necessary;
(4) a statement of specific early
intervention services based on peer-
reviewed research, to the extent
practicable, necessary to meet the
unique needs of the infant or toddler
and the family, including the frequency,
intensity, and method of delivering
services;
(5) a statement of the natural
environments in which early
intervention services will appropriately
be provided, including a justification of
the extent, if any, to which the services
will not be provided in a natural
environment;
(6) the projected dates for initiation of
services and the anticipated length,
duration, and frequency of the services;
(7) the identification of the service
coordinator from the profession most
immediately relevant to the infant’s or
toddler’s or family’s needs (or who is
otherwise qualified to carry out all
applicable responsibilities under this
part) who will be responsible for the
implementation of the plan and
coordination with other agencies and
persons, including transition services;
and
(8) the steps to be taken to support the
transition of the toddler with a
disability to preschool or other
appropriate services.
Changes: None.
Infant or Toddler With a Disability
(§300.25)
Comment: A few commenters
recommended including the entire
definition of infant or toddler with a
disability in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion: We agree with the
commenters and, therefore, will include
the definition of infant or toddler with
a disability from section 632(5) of the
Act in these regulations for reference. Changes: Section 300.25 has been
revised to include the entire definition
of infant or toddler with a disability
from section 632(5) of the Act.
Institution of Higher Education
(§300.26)
Comment: One commenter
recommended including the definition
of institution of higher education in
these regulations.
Discussion: The term institution of
higher education is defined in section
101 of the Higher Education Act of
1965, as amended, 20 U.S.C. 1021 et
seq. (HEA). For the reasons set forth
earlier in this notice, we are not adding
definitions from other statutes to these
regulations. However, we are including
the current definition here for reference.
(a) Institution of higher education—
For purposes of this Act, other than title
IV, the term institution of higher
education means an educational
institution in any State that—
(1) Admits as regular students only
persons having a certificate of
graduation from a school providing
secondary education, or the recognized
equivalent of such a certificate;
(2) is legally authorized within such
State to provide a program of education
beyond secondary education;
(3) provides an educational program
for which the institution awards a
bachelor’s degree or provides not less
than a 2-year program that is acceptable
for full credit toward such a degree;
(4) is a public or other nonprofit
institution; and
(5) is accredited by a nationally
recognized accrediting agency or
association, or if not so accredited, is an
institution that has been granted
preaccreditation status by such an
agency or association that has been
recognized by the Secretary for the
granting of preaccreditation status, and
the Secretary has determined that there
is satisfactory assurance that the
institution will meet the accreditation
standards of such an agency or
association within a reasonable time.
(b) Additional Institutions Included—
For purposes of this Act, other than title
IV, the term institution of higher
education also includes—
(1) Any school that provides not less
than a 1-year program of training to
prepare students for gainful
employment in a recognized occupation
and that meets the provision of
paragraphs (1), (2), (4), and (5) of
subsection (a); and
(2) a public or nonprofit private
educational institution in any State that,
in lieu of the requirement in subsection
(a)(1), admits as regular students
persons who are beyond the age of compulsory school attendance in the
State in which the institution is located.
Changes: None.
Comment: One commenter requested
that we add language to the regulations
that would allow Haskell and Sipi,
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731 et seq., to be included in the
definition of institution of higher
education.
Discussion: The Haskell and Sipi
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731 et seq. meet the statutory
definition of institution of higher
education in section 602(17) of the Act
because they meet the definition of the
term in section 101 of the HEA. The Act
does not include specific institutions in
the definition of institution of higher
education, nor do we believe it is
necessary to add specific institutions to
the definition in §300.26.
Changes: None.
Limited English Proficient (§300.27)
Comment: One commenter requested
specific information about bilingual
qualified personnel and qualified
interpreters. Some commenters
recommended including the definition
of ‘‘limited English proficient’’ in the
regulations.
Discussion: Each State is responsible
for determining the qualifications of
bilingual personnel and interpreters for
children with limited English
proficiency.
The term limited English proficient is
defined in the ESEA. For the reasons set
forth earlier in this notice, we are not
adding the definitions from other
statutes to these regulations. However,
we will include the current definition in
section 9101(25) of the ESEA here for
reference.
The term limited English proficient
when used with respect to an
individual, means an individual—
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to
enroll in an elementary school or
secondary school;
(C)(i) who was not born in the United
States or whose native language is a
language other than English;
(ii)(I) who is a Native American or
Alaska Native, or a native resident of the
outlying areas; and
(II) who comes from an environment
where a language other than English has
had a significant impact on the
individual’s level of English language
proficiency; or
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46565 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
(iii) who is migratory, whose native
language is a language other than
English, and who comes from an
environment where a language other
than English is dominant; and
(D) whose difficulties in speaking,
reading, writing, or understanding the
English language may be sufficient to
deny the individual—
(i) the ability to meet the State’s
proficient level of achievement on State
assessments described in section
1111(b)(3);
(ii) the ability to successfully achieve
in classrooms where the language of
instruction is English; or
(iii) the opportunity to participate
fully in society.
Changes: None.
Local Educational Agency (§300.28)
Comment: One commenter suggested
revising §300.28 to ensure that all
responsibilities and rights attributed to
an LEA apply to an ESA.
Discussion: We believe that the
provisions in §300.12 and §300.28 are
clear that ESAs have full responsibilities
and rights as LEAs. We, therefore,
decline to revise §300.28.
Changes: None.
Comment: None.
Discussion: Through its review of
charter schools’ access to Federal
funding, it has come to the Department’s
attention that additional guidance is
needed regarding whether charter
schools that are established as their own
LEAs must be nonprofit entities in order
to meet the definition of LEA in
§300.28. The definition of LEA in
§300.28(b)(2) specifically includes a
public charter school that is established
as an LEA under State law and that
exercises administrative control or
direction of, or performs a service
function for, itself. For purposes of the
Act, the definitions of charter school,
elementary school, and secondary
school in §§300.7, 300.13, and 300.36,
respectively, require that a public
elementary or secondary charter school
be a nonprofit entity. Therefore, a public
elementary or secondary charter school
established as its own LEA under State
law, also must be a nonprofit entity.
Although these regulations do not
specifically define nonprofit, the
definition in 34 CFR §77.1 applies to
these regulations. In order to eliminate
any confusion on this issue, we will
revise the definition of LEA to reflect
that a public elementary or secondary
charter school that is established as its
own LEA under State law must be a
nonprofit entity.
Changes: For clarity, we have revised
§300.28(b)(2) by inserting the term
‘‘nonprofit’’ before ‘‘charter school that is established as an LEA under State
law.’’
Comment: One commenter stated that
§300.28(c) is in error from a technical
drafting perspective because it does not
follow the statutory language in section
602(19)(C) of the Act. The commenter
also suggested adding a definition of
‘‘BIA funded school,’’ rather than
adding a new definition of LEA related
to BIA funded schools.
Discussion: We agree that §300.28(c)
does not accurately reflect the statutory
language in section 602(19)(C) of the Act
and, as written, could be interpreted as
defining BIA funded schools. This was
not our intent. Rather, the intent was to
include ‘‘BIA funded schools’’ in the
definition of LEA, consistent with
section 602(19)(C) of the Act.
In order to correct the technical
drafting error, we will change
§300.28(c) to accurately reflect section
602(19)(C) of the Act. We decline to add
a definition of ‘‘BIA funded schools.’’
The Act does not define this term and
the Department does not believe that it
is necessary to define the term.
Changes: In order to correct a
technical drafting error, §300.28(c) has
been revised to be consistent with
statutory language.
Native Language (§300.29)
Comment: A few commenters
expressed support for retaining the
definition of native language, stating
that it is important to clarify that sign
language is the native language of many
children who are deaf. One commenter
stated it is important to clarify that the
language normally used by the child
may be different than the language
normally used by the parents. Another
commenter stated that the definition of
native language does not adequately
cover individuals with unique language
and communication techniques such as
deafness or blindness or children with
no written language.
Discussion: The definition of native
language was expanded in the 1999
regulations to ensure that the full range
of needs of children with disabilities
whose native language is other than
English is appropriately addressed. The
definition clarifies that in all direct
contact with the child (including an
evaluation of the child), native language
means the language normally used by
the child and not that of the parents, if
there is a difference between the two.
The definition also clarifies that for
individuals with deafness or blindness,
or for individuals with no written
language, the native language is the
mode of communication that is
normally used by the individual (such
as sign language, Braille, or oral communication). We believe this
language adequately addresses the
commenters’ concerns.
Changes: None.
Parent (§300.30)
Comment: Several commenters
objected to the term ‘‘natural parent’’ in
the definition of parent because
‘‘natural parent’’ presumes there are
‘‘unnatural parents.’’ The commenters
recommended using ‘‘birth parent’’ or
‘‘biological parent’’ throughout the
regulations.
Discussion: We understand that many
people find the term ‘‘natural parent’’
offensive. We will, therefore, use the
term ‘‘biological parent’’ to refer to a
non-adoptive parent.
Changes: We have replaced the term
‘‘natural parent’’ with ‘‘biological
parent’’ in the definition of parent and
throughout these regulations.
Comment: A significant number of
commenters recommended retaining the
language in current §300.20(b), which
states that a foster parent can act as a
parent if the biological parent’s
authority to make educational decisions
on the child’s behalf have been
extinguished under State law, and the
foster parent has an ongoing, long-term
parental relationship with the child; is
willing to make the educational
decisions required of parents under the
Act; and has no interest that would
conflict with the interest of the child.
A few commenters stated that current
§300.20(b) better protects children’s
interests and should not be removed.
Another commenter stated that
removing current §300.20 will have
unintended consequences for the many
foster children who move frequently to
new homes because there will be
confusion as to who has parental rights
under the Act. A few commenters stated
that short-term foster parents may not
have the knowledge of the child or the
willingness to actively participate in the
special education process, which will
effectively leave the child without a
parent.
One commenter stated that §300.30
needs to be changed to protect
biological and adoptive parents from
arbitrary decisions by educational
officials who lack the legal authority to
make educational decisions for the child
and to ensure that when no biological or
adoptive parent is available, a person
with a long-term relationship with, and
commitment to, the child has decision-
making authority.
Discussion: Congress changed the
definition of parent in the Act. The
definition of parent in these regulations
reflects the revised statutory definition
of parent in section 602(23) of the Act.
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46566 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
The Department understands the
concerns expressed by the commenters,
but believes that the changes requested
would not be consistent with the intent
of the statutory changes. In changing the
definition of parent in the Act, Congress
incorporated some of the wording from
the current regulations and did not
incorporate in the new definition of
parent, the current foster parent
language referenced by the commenters.
Changes: None.
Comment: One commenter
recommended allowing a foster parent
who does not have a long-term
relationship to be the parent, if a court,
after notifying all interested parties,
determines that it is in the best interest
of the child.
Discussion: Section 300.30(b)(2)
clearly states that if a person is specified
in a judicial order or decree to act as the
parent for purposes of §300.30, that
person would be considered the parent
under Part B of the Act.
Changes: None.
Comment: One commenter stated that
§300.30(a)(2) withdraws the rights of
biological parents under the Act without
due process of law.
Discussion: We do not agree with the
commenter. If more than one person is
attempting to act as a parent,
§300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. We do not believe that provisions
regarding lack of legal authority or
judicial orders or decrees would apply
unless there has already been a
determination, through appropriate
legal processes, that the biological
parent should not make educational
decisions for the child or that another
person has been ordered to serve as the
parent.
Changes: None.
Comment: One commenter stated that
§300.30(a)(2) is unwieldy and difficult
to implement because it requires
extensive fact finding by the LEA to
determine whether any contractual
obligations would prohibit the foster
parent from acting as a parent.
Discussion: The statutory language
concerning the definition of parent was
changed to permit foster parents to be
considered a child’s parent, unless State
law prohibits a foster parent from
serving as a parent. The language in the
regulations also recognizes that similar
restrictions may exist in State regulations or in contractual agreements
between a State or local entity and a
foster parent, and should be accorded
similar deference. We believe it is
essential for LEAs to have knowledge of
State laws, regulations, and any
contractual agreements between a State
or local entity and a foster parent to
ensure that the requirements in
§300.30(a)(2) are properly
implemented. States and LEAs should
develop procedures to make this
information more readily and easily
available so that LEAs do not have to
engage in extensive fact finding each
time a child with a foster parent enrolls
in a school.
Changes: None.
Comment: One commenter stated that
the regulations need to clarify that
guardians ad litem do not meet the
definition of a parent except for wards
of the State where consent for the initial
evaluation has been given by an
individual appointed by the judge to
represent the child in the educational
decisions concerning the child.
Discussion: We agree that guardians
with limited appointments that do not
qualify them to act as a parent of the
child generally, or do not authorize
them to make educational decisions for
the child, should not be considered to
be a parent within the meaning of these
regulations. What is important is the
legal authority granted to individuals
appointed by a court, and not the term
used to identify them. Whether a person
appointed as a guardian ad litem has the
requisite authority to be considered a
parent under this section depends on
State law and the nature of the person’s
appointment. We will revise
§300.30(a)(3) to clarify that a guardian
must be authorized to act as the child’s
parent generally or must be authorized
to make educational decisions for the
child in order to fall within the
definition of parent.
Changes: We have added language in
§300.30(a)(3) to clarify when a guardian
can be considered a parent under the
Act.
Comment: One commenter requested
adding a ‘‘temporary parent’’ appointed
in accordance with sections 615(b)(2) or
639(a)(5) of the Act to the definition of
parent.
Discussion: There is nothing in the
Act that would prevent a temporary
surrogate parent from having all the
rights of a parent. Note 89 of the Conf.
Rpt., p. 35810, provides that appropriate
staff members of emergency shelters,
transitional shelters, independent living
programs, and street outreach programs
would not be considered to be
employees of agencies involved in the
education or care of unaccompanied youth (and thus prohibited from serving
as a surrogate parent), provided that
such a role is temporary until a
surrogate parent can be appointed who
meets the requirements for a surrogate
parent in §300.519(d). This provision is
included in §300.519(f), regarding
surrogate parents. Therefore, we do not
believe it is necessary to add
‘‘temporary parent’’ to the definition of
parent in §300.30.
Changes: None.
Comment: A few commenters stated
that the definition of parent is
confusing, especially in light of the
definition of ward of the State in new
§300.45 (proposed §300.44) and the
LEA’s obligation to appoint a surrogate
parent. These commenters stated that
§300.30 should cross-reference the
definition of ward of the State in new
§300.45 (proposed §300.44) and state
that the appointed surrogate parent for
a child who is a ward of the State is the
parent.
Discussion: Section 615(b)(2) of the
Act does not require the automatic
appointment of a surrogate parent for
every child with a disability who is a
ward of the State. States and LEAs must
ensure that the rights of these children
are protected and that a surrogate parent
is appointed, if necessary, as provided
in §300.519(b)(1). If a child who is a
ward of the State already has a person
who meets the definition of parent in
§300.30, and that person is willing and
able to assume the responsibilities of a
parent under the Act, a surrogate parent
might not be needed. Accordingly, we
do not believe it is necessary to make
the changes suggested by the
commenters.
Changes: None.
Comment: One commenter expressed
concern that public agencies will
require biological or adoptive parents to
affirmatively assert their rights or to take
action in order to be presumed to be the
parent. The commenter requested
clarifying in §300.30(b)(1) that
biological or adoptive parents do not
have to take affirmative steps in order
for the presumption to apply.
Discussion: The biological or adoptive
parent would be presumed to be the
parent under these regulations, unless a
question was raised about their legal
authority. There is nothing in the Act
that requires the biological or adoptive
parent to affirmatively assert their rights
to be presumed to be the parent. We
continue to believe that §300.30(b)(1) is
clear and, therefore, will not make the
changes requested by the commenters.
Changes: None.
Comment: Some commenters
recommended removing ‘‘when
attempting to act as a parent under this
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46567 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
part’’ in §300.30(b)(1). A few
commenters stated that there is no
explanation of what it means for a
biological parent to ‘‘attempt to act as a
parent.’’ Another commenter stated that
the regulations do not set any guidelines
for determining how a public agency
decides if a biological or adoptive
parent is attempting to act as a parent.
One commenter stated ‘‘attempting to
act’’ would require LEAs to make
determinations about a biological
parent’s decision-making authority and
this should be left up to courts to
determine. One commenter stated that
the regulations permit multiple persons
to act as a child’s parent and do not
adequately set forth a process to
determine who should be identified as
the actual parent for decision-making
purposes. The commenter further stated
that the regulations do not set out a
procedure or a timeframe by which
public agency officials should
determine if a biological parent has
retained the right to make educational
decisions for his or her child.
One commenter stated that the
definition of parent gives school
districts excessive power; for example a
school could appoint a surrogate parent
if the foster parent was excessively
demanding. The commenter further
stated that a clearer order of priority and
selection mechanism with judicial
oversight needs to be in place so that
school districts cannot ‘‘parent shop’’
for the least assertive individual, and so
that relatives, foster parents, social
workers, and others involved with the
child will know who has educational
decision making authority.
One commenter questioned whether
§300.30(b) helps identify parents or
confuses situations in which the person
to be designated the parent is in dispute.
Another commenter stated that the
requirements in §300.30(b) place the
responsibility of determining who
serves as the parent of a child in foster
care directly on the shoulders of school
administrators who are not child
welfare experts. The commenter
recommended that a foster parent
automatically qualify as a parent when
the rights of the child’s biological
parents have been extinguished and the
foster parent has a long-term
relationship with the child, no conflict
of interest, and is willing to make
educational decisions.
Discussion: Section 300.30(b) was
added to assist schools and public
agencies in determining the appropriate
person to serve as the parent under Part
B of the Act in those difficult situations
in which more than one individual is
‘‘attempting to act as a parent’’ and
make educational decisions for a child. It recognizes the priority of the
biological or adoptive parent and the
authority of the courts to make
decisions, and does not leave these
decisions to school administrators.
The phrase ‘‘attempting to act as a
parent’’ is generally meant to refer to
situations in which an individual
attempts to assume the responsibilities
of a parent under the Act. An individual
may ‘‘attempt to act as a parent’’ under
the Act in many situations; for example,
if an individual provides consent for an
evaluation or reevaluation, or attends an
IEP Team meeting as the child’s parent.
We do not believe it is necessary or
possible to include in these regulations
the numerous situations in which an
individual may ‘‘attempt to act as a
parent.’’
Section 300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. Section 300.30(b)(2) provides that if
a person (or persons) is specified in a
judicial order or decree to act as the
parent for purposes of §300.30, that
person would be the parent under Part
B of the Act. We do not believe that it
is necessary for these regulations to
establish procedures or a timeline for a
public agency to determine whether a
biological parent has retained the right
to make educational decisions for a
child. Such procedures and timelines
will vary depending on how judicial
orders or decrees are routinely handled
in a State or locality, and are best left
to State and local officials to determine.
Changes: None.
Comment: A few commenters
recommended modifying §300.30(b)(2)
to clarify that a court has the discretion
to decide who has the right to make
educational decisions for a child. One
commenter recommended clarifying
that the judicial decree referred to in
§300.30(b)(2) relates specifically to
divorce situations, rather than situations
involving children who are wards of the
State. Another commenter stated that
§300.30(b)(2) appears to be aimed at
situations where the court has
designated a parent, such as in a
custody decree, and that it is not clear
what the provision adds.
Discussion: Section 300.30(b)(2)
specifically states that if a judicial
decree or order identifies a person or
persons to act as the parent of a child
or to make educational decisions on
behalf of a child, then that person would be determined to be the parent.
It was intended to add clarity about who
would be designated a parent when
there are competing individuals under
§300.30(a)(1) through (4) who could be
considered a parent for purposes of this
part. It is not necessary to specify or
limit this language to provide that the
judicial decree or order applies to
specific situations, such as divorce or
custody cases. However, it should not
authorize courts to appoint individuals
other than those identified in
§300.30(a)(1) through (4) to act as
parents under this part. Specific
authority for court appointment of
individuals to provide consent for
initial evaluations in limited
circumstances is in §300.300(a)(2)(c).
Authority for court appointment of a
surrogate parent in certain situations is
in §300.519(c).
Changes: We have revised
§300.30(b)(2) to limit its application to
individuals identified under
§300.30(a)(1) through (4) and have
deleted the phrase ‘‘except that a public
agency that provides education or care
for the child may not act as the parent’’
as unnecessary.
Comment: One commenter
recommended allowing foster parents to
act as parents only when the birth
parent’s rights have been extinguished
or terminated. A few commenters
requested that the regulations clarify the
circumstances under which a foster
parent can take over educational
decision making. One commenter stated
that allowing a foster parent to act as a
parent would disrupt the special
education process.
Discussion: Under §300.30(a)(2), a
foster parent can be considered a parent,
unless State law, regulations, or
contractual obligations with a State or
local entity prohibit a foster parent from
acting as a parent. However, in cases
where a foster parent and a biological or
adoptive parent attempt to act as the
parent, §300.30(b)(1) clarifies that the
biological or adoptive parent is
presumed to be the parent, unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child. Section
300.30(b)(2) further clarifies that if a
person or persons such as a foster parent
or foster parents is specified in a
judicial order or decree to act as the
parent for purposes of §300.30, that
person would be the parent under Part
B of the Act. We do not believe that
further clarification is necessary.
Changes: None.
Comment: A few commenters
recommended that ‘‘extinguished under
State law’’ be defined to mean both
temporary and permanent termination
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46568 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
of parental rights to make educational
decisions because this would allow
courts to make more timely decisions
regarding the role of a parent and not
feel bound to wait for a full termination
of parental rights.
Discussion: The phrase ‘‘extinguished
under State law’’ is not used in the Act
or these regulations. The phrase was
used in the definition of parent in
current §300.20(b)(1). The comparable
provision in these regulations is in
§300.30(b)(1), which refers to situations
in which the ‘‘biological or adoptive
parent does not have legal authority to
make educational decisions for the
child.’’ We do not believe that either of
these phrases affects the timeliness of
decision making by courts regarding
parental rights.
Changes: None.
Comment: Some commenters stated
that ‘‘consistent with State law’’ should
be included in §300.30(b)(2) in order to
honor local laws already in place to
protect these children.
Discussion: We do not believe the
change recommended by the
commenters is necessary. Courts issue
decrees and orders consistent with
applicable laws.
Changes: None.
Comment: One commenter stated that
it would not be wise to completely
exclude an agency involved in the
education or care of the child from
serving as a parent because situations in
which an LEA acts as a parent are very
rare and only occur under very unusual
circumstances.
Discussion: The exclusion of an
agency involved in the education or care
of the child from serving as a parent is
consistent with the statutory prohibition
that applies to surrogate parents in
sections 615(b)(2) and 639(a)(5) of the
Act.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify the responsibilities of the LEA
when a biological or adoptive parent
and a foster parent attempt to act as the
parent. Although the regulations state
that the biological or adoptive parent
must be presumed to be the parent
unless the biological or adoptive parent
has been divested of this authority by a
court, the commenter stated that the
regulations are not clear as to whether
the LEA has the duty to notify the
biological or adoptive parent,
accommodate his or her schedule, or
otherwise take steps to facilitate the
biological or adoptive parent’s
participation.
One commenter recommended
clarifying the relative rights of a
biological or adoptive parent and a foster parent when a child is in foster
care and the foster parent is not
prohibited by the State from acting as a
parent.
Discussion: Section 300.30(b)(1) states
that when more than one party is
qualified under §300.30(a) to act as the
parent, the biological or adoptive parent
is presumed to be the parent (unless a
judicial decree or order identifies a
specific person or persons to act as the
parent of a child). The biological or
adoptive parent has all the rights and
responsibilities of a parent under the
Act, and the LEA must provide notice
to the parent, accommodate his or her
schedule when arranging meetings, and
involve the biological or adoptive parent
in the education of the child with a
disability. Thus, if a child is in foster
care (and the foster parent is not
prohibited by the State from acting as a
parent) and the biological or adoptive
parent is attempting to act as a parent,
the biological or adoptive parent is
presumed to be the parent unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child or a judicial
decree or order identifies a specific
person or persons to act as the parent of
a child.
Changes: None.
Comment: A few commenters stated
that it is unclear when or under what
circumstances a biological or adoptive
parent ceases or surrenders their rights
to a foster parent to make educational
decisions for a child. One commenter
stated that the regulations should define
clearly the situations when this would
occur and the level of proof that must
be shown by the party seeking to make
educational decisions on behalf of a
child. The commenter stated that only
under the most extreme and compelling
circumstances should a court be able to
appoint another individual to take the
place of a biological or adoptive parent.
Discussion: It would be inappropriate
and beyond the authority of the
Department to regulate on the
termination of parental rights to make
educational decisions. It is the
responsibility of a court to decide
whether to appoint another person or
persons to act as a parent of a child or
to make educational decisions on behalf
of a child.
Changes: None.
Comment: One commenter requested
clarifying to whom LEAs must provide
notice, or obtain consent in situations
where there are disputes between
biological or adoptive parents (e.g.,
when parents separate or divorce).
Discussion: In situations where the
parents of a child are divorced, the
parental rights established by the Act apply to both parents, unless a court
order or State law specifies otherwise.
Changes: None.
Comment: A few commenters
recommended clarifying in the
regulations that a private agency that
contracts with a public agency for the
education or care of the child may not
act as a parent.
Discussion: A private agency that
contracts with a public agency for the
education or care of the child, in
essence, works for the public agency,
and therefore, could not act as a parent
under the Act. We do not believe it is
necessary to regulate on this matter.
Changes: None.
Parent Training and Information Center
(§300.31)
Comment: One commenter requested
describing a parent training and
information center (PTI) and a
community parent resource center
(CPRC) in the regulations, rather than
referencing section 671 or 672 of the
Act.
Discussion: We do not believe it is
necessary to include these descriptions
in the regulations. Section 671 of the
Act describes the program requirements
for a PTI and section 672 of the Act
describes the program requirements for
a CPRC. These sections describe the
activities required of PTIs and CPRCs, as
well as the application process for
discretionary funding under Part D of
the Act, and would unnecessarily add to
the length of the regulations.
Changes: None.
Comment: One commenter stated that,
in order for a State or LEA to be
considered for funding under the Act,
the regulations should require
partnerships with the PTIs and the
CPRCs, as well as input from PTIs and
CPRCs on assessing State and local
needs, and developing and
implementing a plan to address State
and local needs.
Discussion: We disagree with the
commenter. There is nothing in the Act
that requires States or LEAs, as a
condition of funding, to obtain input
from PTIs and CPRCs in assessing needs
or developing and implementing a plan
to address State or local needs. States
and LEAs are free to do so, but it is not
a requirement for funding.
Changes: None.
Public Agency (§300.33)
Comment: One commenter stated that
the term public agency is not in the Act
and noted that no State has created a
new type of public education agency
beyond LEAs and SEAs. The commenter
stated that including the definition of
public agency in the regulations,
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therefore, raises concerns regarding the
responsibility and authority for future
special education services.
Discussion: The definition of public
agency refers to all agencies responsible
for various activities under the Act. The
terms ‘‘LEA’’ or ‘‘SEA’’ are used when
referring to a subset of public agencies.
We disagree that the definition raises
concerns about the responsibility and
authority for future educational services
because the term public agency is used
only for those situations in which a
particular regulation does not apply
only to SEAs and LEAs.
During our internal review of the
NPRM, we found several errors in the
definition of public agency. Our intent
was to use the same language in current
§300.22. We will, therefore, correct
these errors to be consistent with
current §300.22. Additionally, we will
clarify that a charter school must be a
nonprofit charter school. As noted in
the discussion regarding §300.28(b)(2),
we clarified that a charter school
established as its own LEA under State
law, must be a nonprofit charter school.
Changes: We have removed the
phrase ‘‘otherwise included as’’ the
second time it appears, and replaced it
with ‘‘a school of an’’ in §300.33. We
have also changed ‘‘LEAs’’ to ‘‘LEA’’
and ‘‘ESAs’’ to ‘‘ESA’’ the third time
these abbreviations appear in §300.33.
Related Services (§300.34)
Related Services, General (§300.34(a))
Comment: One commenter requested
defining related services as enabling a
child with a disability to receive FAPE
in the LRE.
Discussion: The definition of related
services is consistent with section
601(26) of the Act, which does not refer
to LRE. The Department believes that
revising the regulations as requested
would inappropriately expand the
definition in the Act. Furthermore, the
regulations in §300.114(a)(2)(ii) already
prevent placement of a child outside the
regular education environment unless
the child cannot be satisfactorily
educated in the regular education
environment with the use of
supplementary aids and services.
Therefore, we see no need to make the
change suggested by the commenter.
Changes: None.
Comment: We received numerous
requests to revise §300.34 to add
specific services in the definition of
related services. A few commenters
recommended including marriage and
family therapy. One commenter
recommended adding nutrition therapy
and another commenter recommended
adding recreation therapy. A significant number of commenters recommended
adding art, music, and dance therapy.
One commenter recommended adding
services to ensure that medical devices,
such as those used for breathing,
nutrition, and other bodily functions,
are working properly. One commenter
requested adding programming and
training for parents and staff as a related
service.
A few commenters requested
clarification on whether auditory
training and aural habilitation are
related services. One commenter asked
whether hippotherapy should be
included as a related service. Other
commenters recommended adding
language in the regulations stating that
the list of related services is not
exhaustive. A few commenters asked
whether a service is prohibited if it is
not listed in the definition of related
services.
Discussion: Section 300.34(a) and
section 602(26) of the Act state that
related services include other
supportive services that are required to
assist a child with a disability to benefit
from special education. We believe this
clearly conveys that the list of services
in §300.34 is not exhaustive and may
include other developmental, corrective,
or supportive services if they are
required to assist a child with a
disability to benefit from special
education. It would be impractical to
list every service that could be a related
service, and therefore, no additional
language will be added to the
regulations.
Consistent with §§300.320 through
300.328, each child’s IEP Team, which
includes the child’s parent along with
school officials, determines the
instruction and services that are needed
for an individual child to receive FAPE.
In all cases concerning related services,
the IEP Team’s determination about
appropriate services must be reflected in
the child’s IEP, and those listed services
must be provided in accordance with
the IEP at public expense and at no cost
to the parents. Nothing in the Act or in
the definition of related services
requires the provision of a related
service to a child unless the child’s IEP
Team has determined that the related
service is required in order for the child
to benefit from special education and
has included that service in the child’s
IEP.
Changes: None.
Comment: One commenter
recommended adding behavior
interventions to the list of related
services, stating that while positive
behavioral interventions and supports
are often provided by one of the
professionals listed in §300.34(c), other types of specialists also often provide
them.
Discussion: The list of related services
in §300.34 is consistent with section
602(26) of the Act and, as noted above,
we do not believe it is necessary to add
additional related services to this list.
We agree with the commenter that there
may be many professionals in a school
district who are involved in the
development of positive behavioral
interventions. Including the
development of positive behavioral
interventions in the description of
activities under psychological services
(§300.34(b)(10)) and social work
services in schools (§300.34(b)(14)) is
not intended to imply that school
psychologists and social workers are
automatically qualified to perform these
services or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes: None.
Exception; Services That Apply to
Children With Cochlear Implants
(§300.34(b))
Comment: Many commenters opposed
the exclusion of surgically implanted
devices from the definition of related
services. Many commenters stated that
the Act does not exclude the
maintenance or programming of
surgically implanted devices from the
definition of related services, and that
the regulations should specifically state
that related services includes the
provision of mapping services for a
child with a cochlear implant. A few
commenters stated that the issue of
mapping cochlear implants needs to be
clarified so that schools and parents
understand who is responsible for
providing this service. One commenter
requested that the regulations clearly
specify that optimization of a cochlear
implant is a medical service and define
mapping as an audiological service.
Discussion: The term ‘‘mapping’’
refers to the optimization of a cochlear
implant and is not included in the
definition of related services.
Specifically, ‘‘mapping’’ and
‘‘optimization’’ refer to adjusting the
electrical stimulation levels provided by
the cochlear implant that is necessary
for long-term post-surgical follow-up of
a cochlear implant. Although the
cochlear implant must be properly
mapped in order for the child to hear
well in school, the mapping does not
have to be done in school or during the
school day in order for it to be effective.
The exclusion of mapping from the
definition of related services reflects the
language in Senate Report (S. Rpt.) No.
108–185, p. 8, which states that the
Senate committee did not intend that
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mapping a cochlear implant, or even the
costs associated with mapping, such as
transportation costs and insurance co-
payments, be the responsibility of a
school district. These services and costs
are incidental to a particular course of
treatment chosen by the child’s parents
to maximize the child’s functioning, and
are not necessary to ensure that the
child is provided access to education,
regardless of the child’s disability,
including maintaining health and safety
while in school. We will add language
in §300.34(b) to clarify that mapping a
cochlear implant is an example of
device optimization and is not a related
service under the Act.
Changes: We have added ‘‘(e.g.,
mapping)’’ following ‘‘functioning’’ in
§300.34(b) to clarify that mapping a
surgically implanted device is not a
related service under the Act.
Comment: A significant number of
commenters stated that children with
cochlear implants need instruction in
listening and language skills to process
spoken language, just as children with
hearing loss who use hearing aids, and
requested that the regulations clarify
that excluding the optimization of
device functioning from the definition
of related services does not impact a
child’s access to related services such as
speech and language therapy, assistive
listening devices, appropriate classroom
acoustics, auditory training, educational
interpreters, cued speech transliterators,
and specialized instruction.
One commenter requested that the
regulations explicitly state whether a
public agency is required to provide
more speech and language services or
audiology services to a child with a
cochlear implant. Another commenter
requested that the regulations clarify
that optimization only refers to access to
assistive technology, such as assistive
listening devices (e.g., personal
frequency modulation (FM) systems)
and monitoring and troubleshooting of
the device function that is required
under proper functioning of hearing
aids.
Discussion: Optimization generally
refers to the mapping necessary to make
the cochlear implant work properly and
involves adjusting the electrical
stimulation levels provided by the
cochlear implant. The exclusion of
mapping as a related service is not
intended to deny a child with a
disability assistive technology (e.g., FM
system); proper classroom acoustical
modifications; educational support
services (e.g., educational interpreters);
or routine checking to determine if the
external component of a surgically
implanted device is turned on and
working. Neither does the exclusion of mapping as a related service preclude a
child with a cochlear implant from
receiving the related services (e.g.,
speech and language services) that are
necessary for the child to benefit from
special education services. As the
commenters point out, a child with a
cochlear implant may still require
related services, such as speech and
language therapy, to process spoken
language just as other children with
hearing loss who use hearing aids may
need those services and are entitled to
them under the Act if they are required
for the child to benefit from special
education. Each child’s IEP Team,
which includes the child’s parent along
with school officials, determines the
related services, and the amount of
services, that are required for the child
to benefit from special education. It is
important that the regulations clearly
state that a child with a cochlear
implant or other surgically implanted
medical device is entitled to related
services that are determined by the
child’s IEP Team to be necessary for the
child to benefit from special education.
Therefore, we will add language in
§300.34(b) to clarify that a child with a
cochlear implant or other surgically
implanted medical device is entitled to
those related services that are required
for the child to benefit from special
education, as determined by the child’s
IEP Team.
Changes: We have reformatted
§300.34(b) and added a new paragraph
(2) to clarify that a child with a cochlear
implant or other surgically implanted
device is entitled to the related services
that are determined by the child’s IEP
Team to be required for the child to
benefit from special education. We have
also added the phrase ‘‘services that
apply to children with surgically
implanted devices, including cochlear
implants’ to the heading in §300.34(b).
Comment: One commenter expressed
concern that excluding the optimization
of device functioning and maintenance
of the device as related services will
establish different standards for serving
children with cochlear implants versus
children who use hearing aids and other
external amplification devices, and
recommended clarifying that routine
monitoring of cochlear implants and
other surgically implanted devices to
ensure that they are functioning in a
safe and effective manner is permitted
under the Act.
A few commenters stated that some
schools are interpreting the exclusion of
device optimization, functioning, and
maintenance to mean that they do not
have to help the child change a battery
in the externally worn speech processor
connected with the surgically implanted device, make certain that it is turned on,
or help the child to learn to listen with
the cochlear implant. One commenter
stated that children with cochlear
implants should have the same services
as children who use a hearing aid when
the battery needs changing or
equipment breaks down.
One commenter stated that §300.34(b)
is confusing and should explicitly state
that the exception of the optimization of
device functioning, maintenance of the
device, or replacement of the device is
limited to surgically implanted devices.
The commenter stated that the language
could erroneously lead to an
interpretation that this exception is
applicable to all medical devices. One
commenter expressed concern that this
misinterpretation could put insulin
pumps and other medical devices that
are required for the health of the child
in the same category as cochlear
implants.
A few commenters stated that it is
important to clarify that excluding the
optimization of device functioning and
the maintenance of the device should
not be construed to exclude medical
devices and services that children need
to assist with breathing, nutrition, and
other bodily functions while the child is
involved with education and other
school-related activities.
One commenter stated that a school
nurse, aide, teacher’s aide, or any other
person who is qualified and trained
should be allowed to monitor and
maintain, as necessary, a surgically
implanted device.
Discussion: A cochlear implant is an
electronic device surgically implanted
to stimulate nerve endings in the inner
ear (cochlea) in order to receive and
process sound and speech. The device
has two parts, one that is surgically
implanted and attached to the skull and,
the second, an externally worn speech
processor that attaches to a port in the
implant. The internal device is intended
to be permanent.
Optimization or ‘‘mapping’’ adjusts or
fine tunes the electrical stimulation
levels provided by the cochlear implant
and is changed as a child learns to
discriminate signals to a finer degree.
Optimization services are generally
provided at a specialized clinic. As we
discussed previously regarding §300.34,
optimization services are not a covered
service under the Act. However, a
public agency still has a role in
providing services and supports to help
children with cochlear implants.
Particularly with younger children or
children who have recently obtained
implants, teachers and related services
personnel frequently are the first to
notice changes in the child’s perception
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of sounds that the child may be missing.
This may manifest as a lack of attention
or understanding on the part of the
child or frustration in communicating.
The changes may indicate a need for
remapping, and we would expect that
school personnel would communicate
with the child’s parents about these
issues. To the extent that adjustments to
the devices are required, a specially
trained professional would provide the
remapping, which is not considered the
responsibility of the public agency.
In many ways, there is no substantive
difference between serving a child with
a cochlear implant in a school setting
and serving a child with a hearing aid.
The externally worn speech processor
connected with the surgically implanted
device is similar to a hearing aid in that
it must be turned on and properly
functioning in order for the child to
benefit from his or her education.
Parents of children with cochlear
implants and parents of children with
hearing aids both frequently bring to
school extra batteries, cords, and other
parts for the hearing aids and externally
worn speech processors connected with
the surgically-implanted devices,
especially for younger children. The
child also may need to be positioned so
that he or she can directly see the
teacher at all times, or may need an FM
amplification system such as an audio
loop.
For services that are not necessary to
provide access to education by
maintaining the health or safety of the
child while in school, the distinguishing
factor between those services that are
not covered under the Act, such as
mapping, and those that are covered,
such as verifying that a cochlear implant
is functioning properly, in large
measure, is the level of expertise
required. The maintenance and
monitoring of surgically implanted
devices require the expertise of a
licensed physician or an individual
with specialized technical expertise
beyond that typically available from
school personnel. On the other hand,
trained lay persons or nurses can
routinely check an externally worn
processor connected with a surgically
implanted device to determine if the
batteries are charged and the external
processor is operating. (As discussed
below, the Act does require public
agencies to provide those services that
are otherwise related services and are
necessary to maintain a child’s health or
safety in school even if those services
require specialized training.) Teachers
and related services providers can be
taught to first check the externally worn
speech processor to make sure it is
turned on, the volume and sensitivity settings are correct, and the cable is
connected, in much the same manner as
they are taught to make sure a hearing
aid is properly functioning. To allow a
child to sit in a classroom when the
child’s hearing aid or cochlear implant
is not functioning is to effectively
exclude the child from receiving an
appropriate education. Therefore, we
believe it is important to clarify that a
public agency is responsible for the
routine checking of the external
components of a surgically implanted
device in much the same manner as a
public agency is responsible for the
proper functioning of hearing aids.
The public agency also is responsible
for providing services necessary to
maintain the health and safety of a child
while the child is in school, with
breathing, nutrition, and other bodily
functions (e.g., nursing services,
suctioning a tracheotomy, urinary
catheterization) if these services can be
provided by someone who has been
trained to provide the service and are
not the type of services that can only be
provided by a licensed physician.
(Cedar Rapids Community School
District v. Garret F., 526 U.S. 66 (1999)).
Changes: We have added new
§300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted devices. The
requirement for the routine checking of
hearing aids has been removed from
proposed §300.105 and included in
new §300.113(a). The requirement for
routine checking of an external
component of a surgically implanted
medical device has been added as new
§300.113(b). The requirements for
assistive technology devices and
services remain in §300.105 and the
heading has been changed to reflect this
change. We have also included a
reference to new §300.113(b) in new
§300.34(b)(2).
Comment: A few commenters stated
that specialized cochlear implant
audiologists who are at implant centers
or closely associated with them should
program cochlear implants. One
commenter stated that, typically, school
audiologists and school personnel do
not have the specialized experience to
program cochlear implants.
Discussion: The personnel with the
specific expertise or licensure required
for the optimization (e.g., mapping) of
surgically implanted devices are
decisions to be made within each State
based on applicable State statutes and
licensing requirements. Since mapping
is not covered under the Act, personnel
standards for individuals who provide
mapping services are beyond the scope
of these regulations.
Changes: None. Audiology (§300.34(c)(1))
Comment: One commenter stated that
the definition of audiology does not
reflect current audiology practice in
schools and recommended new
language to include services for children
with auditory-related disorders,
provision of comprehensive audiologic
habilitation and rehabilitation services;
consultation and training of teachers
and other school staff; and involvement
in classroom acoustics.
Discussion: The definition of
audiology is sufficiently broad to enable
audiologists to be involved in the
activities described by the commenter.
We do not believe it is necessary to
change the definition to add the specific
functions recommended by the
commenter.
Changes: None.
Comment: A few commenters
requested adding mapping services for a
child with a cochlear implant to the
definition of audiology.
Discussion: For the reasons discussed
previously in this section, §300.34(b)
specifically excludes the optimization of
a surgically implanted device from the
definition of related services. This
includes mapping of a cochlear implant.
Changes: None.
Comment: One commenter stated that
the definition of audiology appears to be
limited to children who are deaf or hard
of hearing, and recommended adding
language to allow children without
expressive speech to receive such
services.
Discussion: The term audiology, as
defined in §300.34(c)(1), focuses on
identifying and serving children who
are deaf or hard of hearing. It is not
necessary to add language in the
regulations regarding children without
expressive speech because the
determining factor of whether audiology
services are appropriate for a child is
whether the child may be deaf or hard
of hearing, not whether a child has
expressive speech.
Changes: None.
Early Identification and Assessment of
Disabilities (§300.34(c)(3))
Comment: Some commenters noted
that ‘‘early identification and
assessment of disabilities’’ was removed
from the list of related services in
§300.34(a).
Discussion: ‘‘Early identification and
assessment of disabilities’’ was
inadvertently omitted from the list of
related services in §300.34(a).
Changes: ‘‘Early identification and
assessment’’ will be added to the list of
related services in §300.34(a).
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Interpreting Services (§300.34(c)(4))
Comment: One commenter
recommended that the definition of
interpreting services requires that such
services be provided by a qualified
interpreter who is able to effectively,
accurately, and impartially use any
specialized vocabulary, both receptively
and expressively. A few commenters
strongly recommended requiring
interpreting services to be provided by
qualified interpreters to ensure
equivalent communication access and
effective communication with, and for,
children who are deaf or hard of
hearing. The commenter stated that
personnel standards for interpreters
vary greatly across SEAs and LEAs, and
requiring qualified interpreters would
be consistent with the definition of
other related services included in these
regulations such as physical therapy
and occupational therapy.
One commenter recommended
defining the function of an interpreter as
a person who facilitates communication
between children who are deaf or hard
of hearing, staff, and children,
regardless of the job title.
Discussion: Section 300.156,
consistent with section 612(a)(14) of the
Act, clarifies that it is the responsibility
of each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities. It is
not necessary to add more specific
functions of individuals providing
interpreting services, as recommended
by the commenters. States are
appropriately given the flexibility to
determine the qualifications and
responsibilities of personnel, based on
the needs of children with disabilities in
the State.
Changes: None.
Comment: A few commenters
recommended including American sign
language and sign language systems in
the definition of interpreting services.
Discussion: The definition of
interpreting services is sufficiently
broad to include American sign
language and sign language systems,
and therefore, will not be changed. We
believe it is important to include sign
language transliteration (e.g., translation
systems such as Signed Exact English
and Contact Signing), in addition to sign
language interpretation of another
language (e.g., American sign language)
in the definition of interpreting services,
and will add this language to
§300.34(c)(4)(i). Changes: We have added language to
§300.34(c)(4)(i) to include sign language
transliteration.
Comment: A few commenters
recommended changing the definition
of interpreting services to clarify that the
need for interpreting services must be
based on a child’s disability and not
degree of English proficiency.
Discussion: The definition of
interpreting services clearly states that
interpreting services are used with
children who are deaf or hard of
hearing. The nature and type of
interpreting services required for
children who are deaf or hard of hearing
and also limited in English proficiency
are to be determined by reference to the
Department’s regulations and policies
regarding students with limited English
proficiency. For example, the
Department’s regulations in 34 CFR part
100, implementing Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d,
require that recipients of Federal
financial assistance ensure meaningful
access to their programs and activities
by students who are limited English
proficient, including those who are deaf
or hard of hearing. The requirement to
provide services to students who are
limited English proficient and others is
also governed by various Department
policy memoranda including the
September 27, 1991 memorandum,
‘‘Department of Education Policy
Update on Schools’ Obligations Toward
National Origin Minority Students With
Limited English Proficiency’’; the
December 3, 1985 guidance document,
‘‘The Office for Civil Rights’ Title VI
Language Minority Compliance
Procedures’’; and the May 1970
memorandum to school districts,
‘‘Identification of discrimination and
Denial of Services on the Basis of
National Origin,’’ 35 FR 11595. These
documents are available at http://
www.lep.gov. We do not believe
additional clarification is necessary.
Changes: None.
Comment: One commenter stated that
the definition of interpreting services
appears to be limited to children who
are deaf or hard of hearing, and
recommended adding language to allow
children without expressive speech to
receive such services.
Discussion: Interpreting services, as
defined in §300.34(c)(4), clearly states
that interpreting services are used with
children who are deaf and hard of
hearing. Therefore, a child who is not
deaf or hard of hearing, but who is
without expressive speech, would not
be considered eligible to receive
interpreting services as defined in
§300.34(c)(4). However, such a child
could be considered eligible for speech- language pathology services, consistent
with §300.34(c)(15).
Changes: None.
Comment: Some commenters
recommended including
communication access real-time
transcription (CART) services in the
definition of interpreting services
because these services are being used
with increasing frequency in
postsecondary education and
employment settings, and familiarity
and experience with CART services may
better prepare children who are deaf or
hard of hearing to transition to higher
education and employment
environments. A few commenters stated
that the definition of interpreting
services appears to limit interpreting
services to the methods listed in
§300.34(c)(4), which exclude tactile and
close vision interpreting for children
who are deaf-blind.
Discussion: Although the definition of
interpreting services is written broadly
to include other types of interpreting
services, we believe that it is important
to include in the definition services in
which oral communications are
transcribed into real-time text.
Therefore, we are adding language to
§300.34(c)(4) to refer to transcription
services and include several examples
of transcription systems used to provide
such services.
We also believe that it is important
that the definition of interpreting
services include services for children
who are deaf-blind. However, because
there are many types of interpreting
services for children who are deaf-blind,
in addition to tactile and close vision
interpreting services, we will add a
more general statement to include
interpreting services for children who
are deaf-blind, rather than listing all the
different methods that might be used for
children who are deaf-blind.
Changes: We have restructured
§300.34(c)(4) and added ‘‘and
transcription services such as
communication real-time translation
(CART), C-Print, and TypeWell’’ to the
definition of interpreting services in
paragraph (c)(4)(i). We have also added
a new paragraph (c)(4)(ii) to include
interpreting services for children who
are deaf-blind.
Medical Services (§300.34(c)(5))
Comment: One commenter stated that
the definition of medical services is not
in the Act and recommended that the
definition be broader than the decision
in Cedar Rapids Community School
Dist. v. Garrett F., 526 U.S. 66 (1999),
which the definition appears to follow.
Discussion: The list of related services
in §300.34(a) includes medical services
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for diagnostic and evaluation purposes,
consistent with section 602(26) of the
Act. The Department continues to
believe that using language from the Act
to define medical services is essential.
Defining medical services more broadly,
as recommended by the commenter,
would not be consistent with the Act.
Changes: None.
Orientation and Mobility Services
(§300.34(c)(7))
Comment: Several commenters
supported including travel training in
the definition of orientation and
mobility services and recommended
adding a reference to the definition of
travel training in new §300.39(b)(4)
(proposed §300.38(b)(4)). However,
other commenters stated that travel
training should appear as a distinct
related service and should not be
included in the definition of orientation
and mobility services because children
who are blind and visually impaired
receive this type of instruction from
certified orientation and mobility
specialists. One commenter stated that
the regulations should specify that
travel training is for children with
cognitive or other disabilities.
Discussion: We believe that including
travel training in the definition of
orientation and mobility services may be
misinterpreted to mean that travel
training is available only for children
who are blind or visually impaired or
that travel training is the same as
orientation and mobility services. We
will, therefore, remove travel training
from §300.34(c)(7). This change,
however, does not diminish the services
that are available to children who are
blind or visually impaired.
Travel training is defined in new
§300.39(b)(4) (proposed §300.38(b)(4))
for children with significant cognitive
disabilities and any other children with
disabilities who require this instruction,
and, therefore, would be available for
children who are blind or visually
impaired, as determined by the child’s
IEP Team. Travel training is not the
same as orientation and mobility
services and is not intended to take the
place of appropriate orientation and
mobility services.
Changes: We have removed ‘‘travel
training instruction’’ from
§300.34(c)(7)(ii) to avoid confusion
with the definition of travel training in
new §300.39(b)(4) (proposed
§300.38(b)(4)), and to clarify that travel
training is not the same as orientation
and mobility services and cannot take
the place of appropriate orientation and
mobility services.
Comment: One commenter
recommended that the regulations specify who is qualified to provide
travel training instruction and stated
that it is critical that skills such as street
crossing be taught correctly.
Discussion: Section 300.156,
consistent with section 612(a)(14) of the
Act, requires each State to establish
personnel qualifications to ensure that
personnel necessary to carry out the
purposes of the Act are appropriately
and adequately prepared and trained
and have the content knowledge and
skills to serve children with disabilities.
It is, therefore, the State’s responsibility
to determine the qualifications that are
necessary to provide travel training
instruction.
Changes: None.
Parent Counseling and Training
(§300.34(c)(8))
Comment: A few commenters stated
that the definition of parent counseling
and training in §300.34(c)(8) is not
included in the definition of related
services in section 602(26)(A) of the Act
and, therefore, should not be included
in the regulations.
Discussion: Paragraphs (i) and (ii) of
§300.34(c)(8), regarding assisting
parents in understanding the special
needs of their child, and providing
parents with information about child
development, respectively, are protected
by section 607(b) of the Act, and cannot
be removed. Section 300.34(c)(8)(iii),
regarding helping parents acquire the
skills to allow them to support the
implementation of their child’s IEP or
IFSP, was added in the 1999 regulations
to recognize the more active role of
parents as participants in the education
of their children. Although not included
in the Act, we believe it is important to
retain this provision in these regulations
so that there is no question that parent
counseling and training includes
helping parents acquire skills that will
help them support the implementation
of their child’s IEP or IFSP.
Changes: None.
Comment: One commenter
recommended that the regulations
describe the responsibility of LEAs to
provide parent counseling and training.
Discussion: As with other related
services, an LEA only is responsible for
providing parent counseling and
training if a child’s IEP Team
determines that it is necessary for the
child to receive FAPE. To include this
language in the definition of parent
counseling and training, moreover,
would be unnecessarily duplicative of
§300.17(d), which states that FAPE
means special education and related
services that are provided in conformity
with an IEP that meets the requirements
in §§300.320 through 300.324. Changes: None.
Physical Therapy (§300.34(c)(9))
Comment: One commenter
recommended the definition of physical
therapy include related therapeutic
services for children with degenerative
diseases.
Discussion: We do not believe the
suggested change is necessary because
the definition of physical therapy is
broadly defined and could include
therapeutic services for children with
degenerative diseases. It is the
responsibility of the child’s IEP Team to
determine the special education and
related services that are necessary for a
child to receive FAPE. There is nothing
in the Act that prohibits the provision
of therapeutic services for children with
degenerative diseases, if the IEP Team
determines they are needed for an
individual child and, thereby, includes
the services in the child’s IEP.
Changes: None.
Comment: One commenter stated that
the definition of physical therapy in
§300.34(c)(9) is circular and requested
that a functional definition be provided.
Discussion: The definition of physical
therapy has been in the regulations
since 1977 and is commonly accepted
by SEAs, LEAs, and other public
agencies. We do not believe it is
necessary to change the definition.
Changes: None.
Psychological Services (§300.34(c)(10))
Comment: One commenter
recommended that the definition of
psychological services include strategies
to facilitate social-emotional learning.
Discussion: We do not believe the
definition should be revised to add a
specific reference to the strategies
recommended by the commenter. The
definition of psychological services is
sufficiently broad to enable
psychologists to be involved in
strategies to facilitate social-emotional
learning.
Changes: None.
Comment: One commenter stated that
unless the definition of psychological
services includes research-based
counseling, schools will argue that they
are required to provide counseling
services delivered by social workers
because counseling is included in the
definition of social work services in
schools.
Discussion: We do not believe
including research-based counseling in
the definition of psychological services
is necessary. Including counseling in
the definition of social work services in
schools in §300.34(c)(14) is intended to
indicate the types of personnel who
assist in this activity and is not intended
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either to imply that school social
workers are automatically qualified to
perform counseling or to prohibit other
qualified personnel from providing
counseling, consistent with State
requirements.
Changes: None.
Comment: One commenter stated that
other related services personnel, in
addition to school psychologists, should
be permitted to develop and deliver
positive behavioral intervention
strategies.
Discussion: There are many
professionals who might also play a role
in developing and delivering positive
behavioral intervention strategies. The
standards for personnel who assist in
developing and delivering positive
behavioral intervention strategies will
vary depending on the requirements of
the State. Including the development
and delivery of positive behavioral
intervention strategies in the definition
of psychological services is not intended
to imply that school psychologists are
automatically qualified to perform these
duties or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes: None.
Recreation (§300.34(c)(11))
Comment: A few commenters
requested modifying the definition of
recreation to include therapeutic
recreation services provided by a
qualified recreational therapist, which
include services that restore, remediate,
or rehabilitate to improve functioning
and independence, and reduce or
eliminate the effects of illness or
disability.
Discussion: We do not believe it is
necessary to change the definition of
recreation as recommended by the
commenters because the definition is
sufficiently broad to include the
services mentioned by the commenters.
Changes: None.
School Health Services and School
Nurse Services (Proposed School Nurse
Services) (§300.34(c)(13))
Comment: Some commenters noted
that while ‘‘school health services’’ is
included in the list of related services in
§300.34(a), it is not defined, which will
result in confusion about the
relationship between ‘‘school health
services’’ and ‘‘school nurse services.’’
Some commenters stated that adding
the definition of school nurse services
and eliminating the definition of school
health services must not narrow the
range of related services available to
children. One commenter recommended
that the definition of school nurse
services allow school nurse services to be provided by other qualified persons,
as well as a qualified school nurse,
because the majority of schools do not
have a school nurse on staff. One
commenter requested that the
regulations clarify that schools can
continue to use registered nurses or
other personnel to provide school nurse
services, consistent with State law.
Another commenter stated that there is
well-established case law upholding the
obligation of an SEA and LEA to
provide health-related services
necessary for a child to benefit from
special education.
Discussion: School health services
was retained in the definition of related
services in §300.34(a). However, the
definition of school health services was
inadvertently removed in the NPRM. To
correct this error, we will add school
health services to the definition of
school nurse services and clarify that
school health services and school nurse
services means health services that are
designed to enable a child with a
disability to receive FAPE. We will also
add language to clarify that school nurse
services are provided by a qualified
school nurse and that school health
services are provided by either a
qualified school nurse or other qualified
person. We recognize that most schools
do not have a qualified school nurse on
a full-time basis (i.e., a nurse that meets
the State standards for a qualified
school nurse), and that many schools
rely on other qualified school personnel
to provide school health services under
the direction of a school nurse.
Therefore, we believe it is important to
retain the definition of school health
services and school nurse services in
these regulations.
With the changes made in §300.34(c),
it is not necessary for the reference to
‘‘school nurse services’’ in §300.34(a) to
include the phrase, ‘‘designed to enable
a child with a disability to receive a free
appropriate public education as
described in the IEP of the child.’’ We
will, therefore, remove this phrase in
§300.34(a).
Changes: Section 300.34(c)(13) has
been revised to include a definition of
school health services and school nurse
services. Additional language has been
added to clarify who provides school
health services and school nurse
services. We have also modified
§300.34(a) by deleting the redundant
phrase, ‘‘designed to enable a child with
a disability to receive a free appropriate
public education as described in the IEP
of the child.’’
Comment: One commenter stated that
adding school nurse services to the
definition of related services makes it
more burdensome for the delivery of services to children who are medically-
fragile.
Discussion: It is unclear how adding
school nurse services to the definition of
related services affects services to
children who are medically fragile. As
defined in §300.34(c)(13), school health
services and school nurse services are
designed to enable a child with a
disability to receive FAPE as described
in the child’s IEP. A child who is
medically fragile and needs school
health services or school nurse services
in order to receive FAPE must be
provided such services, as indicated in
the child’s IEP.
Changes: None.
Comment: One commenter stated that
the definition of school nurse services
should include services that enable a
child with a disability to receive FAPE
in the LRE. Another commenter stated
that school nurses can be extremely
supportive of children with disabilities
receiving FAPE in the LRE and
recommended changing the regulations
to ensure that parents understand that
the definition of related services
includes school nurse services.
Discussion: The LRE requirements in
§§300.114 through 300.120 provide,
that to the maximum extent appropriate,
children with disabilities are to be
educated with children who are not
disabled. It is not necessary to repeat
this requirement in the definition of
school health services and school nurse
services.
We agree that school health services
and school nurse services are important
related services. Section 300.34(a) and
section 602(26)(A) of the Act are clear
that the definition of related services
includes school health services and
school nurse services. The IEP Team, of
which the parent is an integral member,
is responsible for determining the
services that are necessary for the child
to receive FAPE. We, therefore, do not
believe that it is necessary to add a
regulation requiring public agencies to
ensure that parents understand that
related services include school health
services and school nurse services.
Changes: None.
Comment: One commenter stated that
including the phrase, ‘‘designed to
enable a child with a disability to
receive a free appropriate public
education’’ in §300.34(c)(13) in relation
to school nurse services, is unnecessary
and confusing.
Discussion: As stated in §300.34(a),
the purpose of related services is to
assist a child with a disability to benefit
from special education. We believe it is
necessary to specify that school health
services and school nurse services are
related services only to the extent that
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the services allow a child to benefit
from special education and enable a
child with a disability to receive FAPE.
Changes: None.
Social Work Services in Schools
(§300.34(c)(14))
Comment: One commenter
recommended including strategies to
facilitate social-emotional learning in
the definition of social work services in
schools. A few commenters stated that
the role of the school social worker is
evolving and recommended that the
definition include the role of social
workers as integral members of pre-
referral teams that deliver interventions
to decrease the number of referrals to
special education. One commenter
recommended that the definition
include a reference to the social
worker’s role in addressing the relevant
history and current functioning of an
individual within his or her
environmental context, rather than
referring to social-developmental
histories. Another commenter stated
that social workers are trained to find
resources in the home, school, and
community and recommended
including such language in the
definition.
Discussion: The definition of social
work services in schools is sufficiently
broad to include the services described
by the commenters and we do not
believe the definition should be revised
to add these more specific functions.
Changes: None.
Comment: One commenter stated that
the definition of social work services in
schools removes language from the 1983
regulations that states that social work
services allow children with disabilities
to maximize benefit from the learning
program. The commenter stated that this
is a higher standard than what is
required in §300.34(c)(14), which only
requires that services enable a child to
learn as effectively as possible, and,
therefore, the 1983 definition should be
retained, consistent with section 607(b)
of the Act.
Discussion: We disagree with the
commenter. The definition of social
work services in schools in the 1977
regulations included ‘‘mobilizing school
and community resources to enable the
child to receive maximum benefit from
his or her educational program.’’ As
explained in the preamble to the final
1992 regulations, the phrase ‘‘to receive
maximum benefit’’ was intended only to
provide that the purpose of activities
carried out by personnel qualified to
provide social work services in schools
is to mobilize resources so that a child
can learn as effectively as possible in his
or her educational program. The language in the preamble to the final
1992 regulations also clarified that this
provision did not set a legal standard for
that program or entitle the child to a
particular educational benefit. The
preamble further explained that, during
the public comment period for the 1992
regulations, commenters raised
concerns that the term ‘‘maximum
benefit’’ appeared to be inconsistent
with the decision by the United States
Supreme Court in Board of Education v.
Rowley, 458 U.S. 176 (1982). Therefore,
the phrase was revised to read ‘‘to learn
as effectively as possible in his or her
educational program.’’ This is the same
phrase used in the 1999 regulations and
in these regulations in
§300.34(c)(14)(iv). Because the language
in the 1977 final regulations did not
entitle a child to any particular benefit,
the change made in 1992 did not lessen
protections for a child, and, therefore, is
not subject to section 607(b) of the Act.
Changes: None.
Comment: One commenter
recommended adding a reference to
‘‘functional behavioral assessments’’ in
§300.34(c)(14)(v) because functional
behavioral assessments should always
precede the development of behavioral
intervention strategies. Another
commenter expressed concern that
§300.34(c)(14)(iv), regarding social
work services to mobilize school and
community resources to enable the
child to learn as effectively as possible,
creates a potential for litigation. The
commenter asked whether a school
district could face a due process hearing
for failure to mobilize community
resources if there are no community
resources to address the needs of the
child or family.
Discussion: The definition of social
work services in schools includes
examples of the types of social work
services that may be provided. It is not
a prescriptive or exhaustive list. The
child’s IEP Team is responsible for
determining whether a child needs
social work services, and what specific
social work services are needed in order
for the child to receive FAPE. Therefore,
while conducting a functional
behavioral assessment typically
precedes developing positive behavioral
intervention strategies, we do not
believe it is necessary to include
functional behavioral assessments in the
definition of social work services in
schools because providing positive
behavioral intervention strategies is just
an example of a social work service that
might be provided to a child if the
child’s IEP Team determines that such
services are needed for the child to
receive FAPE. Similarly, if a child’s IEP
Team determines that mobilizing community resources would not be an
effective means of enabling the child to
learn as effectively as possible because
there are no community resources to
address the needs of the child, the IEP
Team would need to consider other
ways to meet the child’s needs. While
there is the possibility that a due
process hearing might be filed based on
a failure to mobilize community
resources that do not exist, we do not
believe that such a claim could ever be
successful, as the regulation does not
require the creation of community
resources that do not exist.
Changes: None.
Speech-language Pathology Services
(§300.34(c)(15))
Comment: One commenter stated that
children who need speech therapy
should have it for a full classroom
period, five days a week, and not be
removed from other classes to receive
this related service.
Discussion: It would be inconsistent
with the Act to dictate the amount and
location of services for all children
receiving speech-language pathology
services, as recommended by the
commenter. As with all related services,
section 614(d)(1)(A)(i)(IV) of the Act
provides that the child’s IEP Team is
responsible for determining the services
that are needed for the child to receive
FAPE. This includes determining the
type of related service, as well as the
amount and location of services.
Changes: None.
Comment: One commenter stated that
the definition of speech-language
pathology services appears to be limited
to children who are deaf or hard of
hearing, and recommended adding
language to the regulations to allow
children without expressive speech to
receive such services.
Discussion: There is nothing in the
Act or the regulations that would limit
speech-language pathology services to
children who are deaf or hard of hearing
or to children without expressive
speech. The definition of speech-
language pathology services specifically
includes services for children who have
language impairments, as well as speech
impairments.
Changes: None.
Comment: One commenter requested
the definition of speech-language
pathology services specify the
qualifications and standards for speech-
language professionals. Another
commenter requested that the definition
require a highly qualified provider to
deliver speech-language services. One
commenter requested that the definition
require a speech-language pathologist to
provide speech-language services.
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46576 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Discussion: Consistent with §300.156
and section 612(a)(14) of the Act, it is
up to each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities.
Section 300.156(b), consistent with
section 614(a)(14)(B) of the Act,
specifically requires that these
personnel qualifications must include
qualifications for related services
personnel. Establishing qualifications
for individuals providing speech-
language services in these regulations
would be inconsistent with these
statutory and regulatory requrements.
Changes: None.
Comment: One commenter stated that
the roles and responsibilities for speech-
language pathologists in schools have
been expanded to help all children gain
language and literacy skills and
recommended that the definition of
speech-language pathology services be
revised to include consultation and
collaboration with other staff members
to plan and implement special
intervention monitoring programs and
modify classroom instruction to assist
children in achieving academic success.
The commenter also recommended
including services for other health
impairments, such as dysphagia, in the
definition of speech-language pathology
services.
Discussion: The Act provides for
speech-language pathology services for
children with disabilities. It does not
include speech-language pathology
services to enable all children to gain
language and literacy skills, as
suggested by the commenter. It would,
therefore, be inconsistent with the Act
to change the definition of speech-
language pathology services in the
manner recommended by the
commenter. We believe that the
definition is sufficiently broad to
include services for other health
impairments, such as dysphagia, and
therefore, decline to revise the
definition to include this specific
service.
Changes: None.
Transportation (§300.34(c)(16))
Comment: A few commenters stated
that the definition of transportation
should require transportation to be
provided between school and other
locations in which IEP services are
provided. Other commenters requested
that the definition explicitly define
transportation as door-to-door services,
including provisions for an aide to escort the child to and from the bus
each day.
Discussion: A child’s IEP Team is
responsible for determining whether
transportation between school and other
locations is necessary in order for the
child to receive FAPE. Likewise, if a
child’s IEP Team determines that
supports or modifications are needed in
order for the child to be transported so
that the child can receive FAPE, the
child must receive the necessary
transportation and supports at no cost to
the parents. We believe the definition of
transportation is sufficiently broad to
address the commenters’ concerns.
Therefore, we decline to make the
requested changes to the definition.
Changes: None.
Comment: Some commenters
recommended removing the term
‘‘special transportation’’ from the
definition of transportation because the
term gives the impression that adapted
buses are used for a separate and
different transportation system, when,
in fact, adapted buses are part of the
regular transportation fleet and system.
These commenters stated that adapted
buses should only be used as a separate,
special transportation service if the
child’s IEP indicates that the
transportation needs of the child can be
met only with transportation services
that are separate from the transportation
services for all children.
Discussion: We do not believe it is
necessary to make the change requested
by the commenters. It is assumed that
most children with disabilities will
receive the same transportation
provided to nondisabled children,
consistent with the LRE requirements in
§§300.114 through 300.120, unless the
IEP Team determines otherwise. While
we understand the commenter’s
concern, adapted buses may or may not
be part of the regular transportation
system in a particular school system. In
any case, if the IEP Team determines
that a child with a disability requires
transportation as a related service in
order to receive FAPE, or requires
supports to participate in integrated
transportation with nondisabled
children, the child must receive the
necessary transportation or supports at
no cost to the parents.
Changes: None.
Scientifically Based Research (new
§300.35)
Comment: A number of commenters
requested that the regulations include a
definition of scientifically based
research.
Discussion: The definition of
scientifically based research is
important to the implementation of Part B of the Act and, therefore, we will
include a reference to the definition of
that term in section 9101(37) of the
ESEA.
For the reasons set forth earlier in this
notice, we are not including definitions
from other statutes in these regulations.
However, we will include the current
definition of scientifically based
research in section 9101(37) of the
ESEA here for reference.
Scientifically based research—
(a) Means research that involves the
application of rigorous, systematic, and
objective procedures to obtain reliable
and valid knowledge relevant to
education activities and programs; and
(b) Includes research that—
(1) Employs systematic, empirical
methods that draw on observation or
experiment;
(2) Involves rigorous data analyses
that are adequate to test the stated
hypotheses and justify the general
conclusions drawn;
(3) Relies on measurements or
observational methods that provide
reliable and valid data across evaluators
and observers, across multiple
measurements and observations, and
across studies by the same or different
investigators;
(4) Is evaluated using experimental or
quasi-experimental designs in which
individuals, entities, programs, or
activities are assigned to different
conditions and with appropriate
controls to evaluate the effects of the
condition of interest, with a preference
for random-assignment experiments, or
other designs to the extent that those
designs contain within-condition or
across-condition controls;
(5) Ensures that experimental studies
are presented in sufficient detail and
clarity to allow for replication or, at a
minimum, offer the opportunity to build
systematically on their findings; and
(6) Has been accepted by a peer-
reviewed journal or approved by a panel
of independent experts through a
comparably rigorous, objective, and
scientific review.
Changes: A cross-reference to the
definition of scientifically based
research in section 9101(37) of the
ESEA has been added as new §300.35.
Subsequent definitions have been
renumbered accordingly.
Secondary School (New §300.36)
(Proposed §300.35)
Comment: One commenter requested
clarification regarding the definition of
secondary school and whether ‘‘grade
12’’ refers to the regular grade 12
curriculum aligned to State academic
achievement standards under the ESEA
or a limit on the number of years
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children with a disabilities can spend in
school.
Discussion: The term ‘‘grade 12’’ in
the definition of secondary school has
the meaning given it under State law. It
is not intended to impose a Federal
limit on the number of years a child
with a disability is allowed to complete
his or her secondary education, as some
children with disabilities may need
more than 12 school years to complete
their education.
Changes: None.
Services Plan (New §300.37) (Proposed
§300.36)
Comment: One commenter stated that
the term services plan is not in the Act
and, therefore, should be removed.
However, the commenter stated that if
the definition of services plan remained
in the regulations, it should reflect the
fact that parentally-placed private
school children are not entitled to
FAPE.
Discussion: The definition of services
plan was included to describe the
content, development, and
implementation of plans for parentally-
placed private school children with
disabilities who have been designated to
receive equitable services. The
definition cross-references the specific
requirements for the provision of
services to parentally-placed private
school children with disabilities in
§300.132 and §§300.137 through
300.139, which provide that parentally-
placed private school children have no
individual right to special education
and related services and thus are not
entitled to FAPE. We do not believe
further clarification is necessary.
Changes: None.
Special Education (New §300.39)
(Proposed §300.38)
Comment: One commenter requested
modifying the definition of special
education to distinguish special
education from other forms of
education, such as remedial
programming, flexible grouping, and
alternative education programming. The
commenter stated that flexible grouping,
diagnostic and prescriptive teaching,
and remedial programming have
expanded in the general curriculum in
regular classrooms and the expansion of
such instruction will only be
encouraged with the implementation of
early intervening services under the Act.
Discussion: We believe the definition
of special education is clear and
consistent with the definition in section
602(29) of the Act. We do not believe it
is necessary to change the definition to
distinguish special education from the other forms of education mentioned by
the commenter.
Changes: None.
Individual Special Education Terms
Defined (New §300.39(b)) (Proposed
§300.38(b))
Comment: A few commenters
provided definitions of
‘‘accommodations’’ and ‘‘modifications’’
and recommended including them in
new §300.39(b) (proposed §300.38(b)).
Discussion: The terms
‘‘accommodations’’ and ‘‘modifications’’
are terms of art referring to adaptations
of the educational environment, the
presentation of educational material, the
method of response, or the educational
content. They are not, however,
examples of different types of
‘‘education’’ and therefore we do not
believe it is appropriate to define these
terms of art or to include them in new
§300.39(b) (proposed §300.38(b)).
Changes: None.
Physical Education (New §300.39(b)(2))
(Proposed §300.38(b)(2))
Comment: One commenter requested
that adaptive physical education be
subject to the LRE requirements of the
Act.
Discussion: The requirements in
§§300.114 through 300.120 require that,
to the maximum extent appropriate,
children with disabilities are educated
with children who are nondisabled.
This requirement applies to all special
education services, including adaptive
physical education. We see no need to
repeat this requirement specifically for
the provision of adaptive physical
education.
Changes: None.
Specially Designed Instruction (New
§300.39(b)(3)) (Proposed §300.38(b)(3))
Comment: One commenter stated that
the regulations should strengthen the
requirements ensuring children access
to the general curriculum, because many
children with disabilities still do not
have the tools they need or the teachers
with expertise to access the general
curriculum.
Discussion: We believe the regulations
place great emphasis on ensuring that
children with disabilities have access to
the general education curriculum. New
§300.39(b)(3) (proposed §300.38(b)(3))
defines specially designed instruction as
adapting the content, methodology, or
delivery of instruction to address the
unique needs of the child and to ensure
access to the general curriculum so that
the child can meet the educational
standards within the jurisdiction of the
public agency that apply to all children.
In addition, ensuring that children with disabilities have access to the general
curriculum is a major focus of the
requirements for developing a child’s
IEP. For example, §300.320(a)(1)
requires a child’s IEP to include a
statement of how the child’s disability
affects the child’s involvement and
progress in the general education
curriculum; §300.320(a)(2)(i) requires
annual IEP goals to be designed to
enable the child to be involved in and
make progress in the general education
curriculum; and §300.320(a)(4) requires
the IEP to include a statement of the
special education and related services
the child will receive, as well as the
program modifications or supports for
school personnel that will be provided,
to enable the child to be involved in and
make progress in the general education
curriculum. We do not believe
additional language is necessary.
Changes: None.
Travel Training (New §300.39(b)(4))
(Proposed §300.38(b)(4))
Comment: A few commenters
recommended strengthening the
definition of travel training in new
§300.39(b)(4) (proposed §300.38(b)(4))
and adding travel training to new
§300.43 (proposed §300.42) (transition
services) to acknowledge that
transportation is vitally important for
children with disabilities to have full
participation in the community. The
commenters recommended that the
definition of travel training include
providing instruction to children with
disabilities, other than blindness, to
enable them to learn the skills and
behaviors necessary to move effectively
and safely in various environments,
including use of public transportation.
Discussion: We believe the definition
of travel training already acknowledges
the importance of transportation in
supporting children with disabilities to
fully participate in their communities.
New §300.43(a)(4) (proposed
§300.42(a)(4)) defines travel training to
include providing instruction that
enables children to learn the skills
necessary to move effectively and safely
from place to place in school, home, at
work and in the community. Therefore,
we do not believe that further
clarification is necessary. We also do
not believe that it is necessary to add
travel training to the definition of
transition services, as recommended by
the commenters. We believe that IEP
Teams already consider the importance
of transportation and travel training
services in the course of planning for a
student’s postsecondary transition
needs. It is unnecessary to state that
travel training includes instructing
children with disabilities other than
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blindness, as requested by the
commenters, because the definition of
travel training already states that travel
training is appropriate for any child
with a disability who requires this
instruction.
Changes: None.
Comment: A few commenters strongly
recommended clarifying that the
definition of travel training does not
include training for children with visual
impairments, regardless of whether they
have additional disabilities.
Discussion: Any child with a
disability, including a child with a
visual impairment, who needs travel
training instruction to receive FAPE, as
determined by the child’s IEP Team, can
receive travel training instruction. New
§300.39(b)(4) (proposed §300.38(b)(4))
specifically states that travel training
means providing instruction to children
with significant cognitive disabilities
and any other children with disabilities
who require this instruction. We,
therefore, decline to change the
definition, as recommended by the
commenters.
Changes: None.
Vocational Education (New
§300.39(b)(5)) (Proposed §300.38(b)(5))
Comment: A few commenters
recommended revising the definition of
vocational education to include
specially designed educational
programs that are directly related to the
preparation of individuals for paid or
unpaid employment or for additional
preparation for a career not requiring a
baccalaureate or advanced degree.
Discussion: We believe that the more
general reference to ‘‘organized
education programs’’ in the definition of
vocational education is accurate and
should not be changed to refer to
‘‘specially designed educational
programs,’’ as recommended by the
commenter, because some children with
disabilities will benefit from
educational programs that are available
for all children and will not need
specially designed programs.
Changes: None.
Comment: Some commenters stated
that Congress did not intend that the
definition of vocational education
would include vocational and technical
education. The commenters stated that
the addition of vocational and technical
education to the definition of vocational
education creates a right under the Act
to educational services that would be
extremely costly for States and LEAs to
implement.
Other commenters stated that
including the definition of vocational
and technical education from the Carl
D. Perkins Act expands FAPE beyond secondary education, which is an
unwarranted responsibility for school
districts. One commenter stated that the
definition could be interpreted to
require public agencies to provide two
years of postsecondary education for
students with disabilities. A few
commenters strongly recommended
removing the definition of vocational
and technical education.
Some commenters recommended
removing the reference to the
postsecondary level for a 1-year
certificate, an associate degree, and
industry-recognized credential in the
definition of vocational and technical
education. One commenter suggested
that proposed §300.38(b)(6)(i)(A)
conclude with the word ‘‘or’’ to clarify
that the sequence of courses is
discretionary.
Discussion: The definition of
vocational education was revised to
include the definition of vocational and
technical education in the Carl D.
Perkins Vocational and Applied
Technology Act of 1988, as amended, 20
U.S.C. 2301, 2302(29). However, based
on the comments we received, it is
apparent that including the definition of
vocational and technical education has
raised concerns and confusion regarding
the responsibilities of SEAs and LEAs to
provide vocational education.
Therefore, we will remove the definition
of vocational and technical education in
proposed §300.38(b)(6) and the
reference to vocational and technical
education in proposed §300.38(b)(5)(ii).
Changes: The definition of vocational
and technical education in proposed
§300.38(b)(6) has been removed.
Accordingly, the reference to vocational
and technical education in proposed
§300.38(b)(5)(ii)) has also been
removed.
Supplementary Aids and Services (New
§300.42) (Proposed §300.41)
Comment: A few commenters stated
that the definition of supplementary
aids and services should be changed to
mean aids, services, and other supports
provided in general education classes or
other settings to children with
disabilities, as well as to educators,
other support staff, and nondisabled
peers, if necessary, to support the
inclusion of children with disabilities.
Discussion: The definition of
supplementary aids and services in new
§300.42 (proposed §300.41) is
consistent with the specific language in
section 602(33) of the Act, and refers to
aids, services, and other supports for
children with disabilities. We do not
believe it is necessary to change the
definition to include providing aids,
services, and supports to other individuals because §300.320(a)(4)
requires each child’s IEP to include a
statement of the program modifications
or supports for school personnel that
will be provided to enable the child to
be involved in and make progress in the
general education curriculum, and to
participate in extracurricular and other
nonacademic activities.
As noted in the Analysis of Comments
and Changes section for subpart B, we
have clarified in §300.107(a) that States
must ensure that public agencies take
steps to provide nonacademic and
extracurricular services and activities,
including providing supplementary aids
and services determined appropriate
and necessary by the child’s IEP Team
to afford children with disabilities an
equal opportunity for participation in
those services and activities. We have,
therefore, revised the definition of
supplementary aids and services in new
§300.42 (proposed §300.41) to be
consistent with this change.
Changes: We have added language in
new §300.42 (proposed §300.41) to
clarify that supplementary aids and
services can be provided in
extracurricular and nonacademic
settings to enable children with
disabilities to be educated with
nondisabled children to the maximum
extent appropriate.
Comment: None.
Discussion: New §300.42 (proposed
§300.41) contains an incorrect reference
to §300.112. The correct reference
should be to §300.114.
Changes: We have removed the
reference to §300.112 and replaced it
with a reference to §300.114.
Transition Services (New §300.43)
(Proposed §300.42)
Comment: One commenter
recommended replacing the word
‘‘child’’ with ‘‘student’’ in the definition
of transition services.
Discussion: The definition of
transition services follows the language
in section 602(34) of the Act. The words
‘‘child’’ and ‘‘student’’ are used
throughout the Act and we have used
the statutory language in these
regulations whenever possible.
Changes: None.
Comment: One commenter
recommended that the regulations
include vocational and career training
through work-study as a type of
transition service. A few commenters
stated that the definition of transition
services must specify that a student’s
need for transition services cannot be
based on the category or severity of a
student’s disability, but rather on the
student’s individual needs.
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Discussion: We do not believe it is
necessary to change the definition of
transition services because the
definition is written broadly to include
a range of services, including vocational
and career training that are needed to
meet the individual needs of a child
with a disability. The definition clearly
states that decisions regarding transition
services must be made on the basis of
the child’s individual needs, taking into
account the child’s strengths,
preferences, and interests. As with all
special education and related services,
the student’s IEP Team determines the
transition services that are needed to
provide FAPE to a child with a
disability based on the needs of the
child, not on the disability category or
severity of the disability. We do not
believe further clarification is necessary.
Changes: None.
Comment: A few commenters stated
that the regulations do not define
‘‘functional’’ or explain how a student’s
functional performance relates to the
student’s unique needs or affects the
student’s education. The commenters
noted that the word ‘‘functional’’ is used
throughout the regulations in various
forms, including ‘‘functional
assessment,’’ ‘‘functional goals,’’
‘‘functional abilities,’’ ‘‘functional
needs,’’ ‘‘functional achievement,’’ and
‘‘functional performance,’’ and should
be defined to avoid confusion. One
commenter recommended either
defining the term or explicitly
authorizing States to define the term.
One commenter recommended
clarifying that ‘‘functional performance’’
must be a consideration for any child
with a disability who may need services
related to functional life skills and not
just for students with significant
cognitive disabilities. A few
commenters stated that the definition of
transition services must specify that
‘‘functional achievement’’ includes
achievement in all major life functions,
including behavior, social-emotional
development, and daily living skills.
Discussion: We do not believe it is
necessary to include a definition of
‘‘functional’’ in these regulations
because the word is generally used to
refer to activities and skills that are not
considered academic or related to a
child’s academic achievement as
measured on Statewide achievement
tests. There is nothing in the Act that
would prohibit a State from defining
‘‘functional,’’ as long as the definition
and its use are consistent with the Act.
We also do not believe it is necessary
for the definition of transition services
to refer to all the major life functions or
to clarify that functional performance
must be a consideration for any child with a disability, and not just for
students with significant cognitive
disabilities. As with all special
education and related services, the
student’s IEP Team determines the
services that are needed to provide
FAPE to a child with a disability based
on the needs of the child.
Changes: None.
Comment: One commenter requested
a definition of ‘‘results-oriented
process.’’
Discussion: The term ‘‘results-
oriented process,’’ which appears in the
statutory definition of transition
services, is generally used to refer to a
process that focuses on results. Because
we are using the plain meaning of the
term (i.e., a process that focuses on
results), we do not believe it is
necessary to define the term in these
regulations.
Changes: None.
Comment: A few commenters stated
that ‘‘acquisition of daily living skills
and functional vocational evaluation’’ is
unclear as a child does not typically
‘‘acquire’’ an evaluation. The
commenters stated that the phrase
should be changed to ‘‘functional
vocational skills.’’
Discussion: We agree that the phrase
is unclear and will clarify the language
in the regulation to refer to the
‘‘provision of a functional vocational
evaluation.’’
Changes: We have added ‘‘provision
of a’’ before ‘‘functional vocational
evaluation’’ in new §300.43(a)(2)(v) for
clarity.
Universal Design (New §300.44)
(Proposed §300.43)
Comment: Many commenters
requested including the full definition
of universal design in the regulations,
rather than providing a reference to the
definition of the term.
Discussion: The term universal design
is defined in the Assistive Technology
Act of 1998, as amended. For the
reasons set forth earlier in this notice,
we are not including in these
regulations full definitions of terms that
are defined in other statutes. However,
we will include the definition of this
term from section 3 of the Assistive
Technology Act of 1998, as amended, 29
U.S.C. 3002, here for reference.
The term universal design means a
concept or philosophy for designing and
delivering products and services that are
usable by people with the widest
possible range of functional capabilities,
which include products and services
that are directly accessible (without
requiring assistive technologies) and
products and services that are interoperable with assistive
technologies.
Changes: None.
Comment: Several commenters stated
that the definition of universal design
should be changed to include the
universal design of academic content
standards, curricula, instructional
materials, and assessments.
Discussion: The definition of
universal design is statutory. Congress
clearly intended that we use this
specific definition when it used this
term in the Act. We do not believe we
can change this definition as suggested
by the commenters.
Changes: None.
Subpart B—State Eligibility
FAPE Requirements
Free Appropriate Public Education
(FAPE) (§300.101)
Comment: One commenter
recommended revising §300.101 to
ensure that children with disabilities
who are suspended or expelled from
their current placement are provided
educational services consistent with
State academic achievement standards.
One commenter asked whether children
with disabilities who are suspended or
expelled from their current placement
must continue to be taught by highly
qualified teachers.
Discussion: We believe the concern
raised by the commenter is already
addressed by this regulation and
elsewhere in the regulations and that no
changes to §300.101 are necessary.
Section 300.530(d), consistent with
section 615(k)(1)(D) of the Act, clarifies
that a child with a disability who is
removed from his or her current
placement for disciplinary reasons,
irrespective of whether the behavior is
determined to be a manifestation of the
child’s disability, must be allowed to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting his or
her IEP goals. As the term ‘‘general
education curriculum’’ is used
throughout the Act and in these
regulations, the clear implication is that
there is an education curriculum that is
applicable to all children and that this
curriculum is based on the State’s
academic content standards.
Children with disabilities who are
suspended or expelled from their
current placement in public schools
must continue to be taught by highly
qualified teachers, consistent with the
requirements in §§300.156 and 300.18.
Private school teachers are not subject to
the highly qualified teacher
requirements under this part.
Changes: None.
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Comment: One commenter suggested
clarifying in §300.101 that FAPE must
be available to children with disabilities
in the least restrictive environment.
Discussion: We do not believe further
clarification is needed in §300.101, as
the matter is adequately covered
elsewhere in the regulations. Section
300.101 clarifies that, in order to be
eligible to receive funds under Part B of
the Act, States must, among other
conditions, ensure that FAPE is made
available to all children with specified
disabilities in mandated age ranges. The
term FAPE is defined in §300.17 and
section 602(9)(D) of the Act as
including, among other elements,
special education and related services,
provided at no cost to parents, in
conformity with an individualized
education program (IEP). Sections
300.114 through 300.118, consistent
with section 612(a)(5) of the Act,
implement the Act’s strong preference
for educating children with disabilities
in regular classes with appropriate aids
and supports. Specifically, §300.114
provides that States must have in effect
policies and procedures ensuring that,
to the maximum extent appropriate,
children with disabilities, including
children in public or private institutions
or other care facilities, are educated
with children who are nondisabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes: None.
Comment: A few commenters
recommended including language in
§300.101(a) specifying that children
with disabilities expelled or suspended
from the general education classroom
must be provided FAPE in the least
restrictive environment.
Discussion: The Department believes
it would not be appropriate to include
the requested language in this section
because services in these circumstances
are provided under somewhat different
criteria than is normally the case.
Section 300.530 clarifies the procedures
school personnel must follow when
removing a child with a disability who
violates a code of student conduct from
their current placement (e.g.,
suspension and expulsion). This
includes how decisions are made
regarding the educational services the
child receives and the location in which
they will be provided. School officials
need some reasonable amount of
flexibility in providing services to
children with disabilities who have violated school conduct rules, and
should not necessarily have to provide
exactly the same services, in the same
settings, to these children. Therefore, we
decline to regulate further in this regard.
Changes: None.
Comment: Some commenters
expressed concern that children with
disabilities have to fail or be retained in
a grade or course in order to be
considered eligible for special education
and related services.
Discussion: Section 300.101(c)
provides that a child is eligible to
receive special education and related
services even though the child is
advancing from grade to grade. Further,
it is implicit from paragraph (c) of this
section that a child should not have to
fail a course or be retained in a grade in
order to be considered for special
education and related services. A public
agency must provide a child with a
disability special education and related
services to enable him or her to progress
in the general curriculum, thus making
clear that a child is not ineligible to
receive special education and related
services just because the child is, with
the support of those individually
designed services, progressing in the
general curriculum from grade-to-grade
or failing a course or grade. The group
determining the eligibility of a child for
special education and related services
must make an individual determination
as to whether, notwithstanding the
child’s progress in a course or grade, he
or she needs or continues to need
special education and related services.
However, to provide additional clarity
we will revise paragraph (c)(1) of this
section to explicitly state that children
do not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Changes: Section 300.101(c)(1) has
been revised to provide that children do
not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Limitation—Exception to FAPE for
Certain Ages (§300.102)
Comment: One commenter requested
that the regulations clarify that children
with disabilities who do not receive a
regular high school diploma continue to
be eligible for special education and
related services. One commenter
expressed concern that the provision in
§300.102(a)(3)(ii) regarding children
with disabilities who have not been
awarded a regular high school diploma
could result in the delay of transition
services in the context of the child’s secondary school experience and
postsecondary goals.
Discussion: We believe that
§300.102(a)(3) is sufficiently clear that
public agencies need not make FAPE
available to children with disabilities
who have graduated with a regular high
school diploma and that no change is
needed to the regulations. Children with
disabilities who have not graduated
with a regular high school diploma still
have an entitlement to FAPE until the
child reaches the age at which eligibility
ceases under the age requirements
within the State. However, we have
reviewed the regulations and believe
that it is important for these regulations
to define ‘‘regular diploma’’ consistent
with the ESEA regulations in 34 CFR
§200.19(a)(1)(i). Therefore, we will add
language to clarify that a regular high
school diploma does not include an
alternative degree that is not fully
aligned with the State’s academic
standards, such as a certificate or
general educational development (GED)
credential.
We do not believe §300.102 could be
interpreted to permit public agencies to
delay implementation of transition
services, as stated by one commenter
because transition services must be
provided based on a child’s age, not the
number of years the child has remaining
in the child’s high school career.
Section 300.320(b), consistent with
section 614(d)(1)(A)(i)(VIII) of the Act,
requires each child’s IEP to include,
beginning not later than the first IEP to
be in effect when the child turns 16, or
younger if determined appropriate by
the IEP Team, appropriate measurable
postsecondary goals and the transition
services needed to assist the child in
reaching those goals.
Changes: A new paragraph (iv) has
been added in §300.102(a)(3) stating
that a regular high school diploma does
not include an alternative degree that is
not fully aligned with the State’s
academic standards, such as a certificate
or GED.
Comment: One commenter requested
clarification as to how States should
include children with disabilities who
require special education services
through age 21 in calculating, for
adequate yearly progress (AYP)
purposes, the percentage of children
who graduate with a regular high school
diploma in the standard number of
years. The commenter expressed
concern that States, in order to comply
with their high school graduation rate
academic outcome requirements under
the ESEA, will change the grade status
from 12th grade to 11th grade for those
children with disabilities who will
typically age out of the public education
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system under the Act. The commenter
further stated that this will affect the
exception to FAPE provisions in
§300.102 for children with disabilities
who require special education services
through age 21.
Discussion: The calculation of
graduation rates under the ESEA for
AYP purposes (34 CFR 200.19(a)(1)(i))
does not alter the exception to FAPE
provisions in §300.102(a)(3) for
children with disabilities who graduate
from high school with a regular high
school diploma, but not in the standard
number of years. The public agency
must make FAPE available until age 21
or the age limit established by State law,
even though the child would not be
included as graduating for AYP
purposes under the ESEA. In practice,
though, there is no conflict between the
Act and the ESEA, as the Department
interprets the ESEA title I regulations to
permit States to propose a method for
accurately accounting for students who
legitimately take longer than the
standard number of years to graduate.
Changes: None.
Residential Placement: (§300.104)
Comment: A few commenters
requested that the regulations clarify
that parents cannot be held liable for
any costs if their child with a disability
is placed in a residential setting by a
public agency in order to provide FAPE
to the child.
Discussion: Section 300.104,
consistent with section 612(a)(1) and
(a)(10)(B) of the Act, is a longstanding
provision that applies to placements
that are made by public agencies in
public and private institutions for
educational purposes and clarifies that
parents are not required to bear the costs
of a public or private residential
placement if such placement is
determined necessary to provide FAPE.
If a public agency determines in an
individual situation that a child with a
disability cannot receive FAPE from the
programs that the public agency
conducts and, therefore, placement in a
public or private residential program is
necessary to provide special education
and related services to the child, the
program, including non-medical care
and room and board, must be at no cost
to the parents of the child.
In situations where a child’s
educational needs are inseparable from
the child’s emotional needs and an
individual determination is made that
the child requires the therapeutic and
habilitation services of a residential
program in order to ‘‘benefit from
special education,’’ these therapeutic
and habilitation services may be
‘‘related services’’ under the Act. In such a case, the SEA is responsible for
ensuring that the entire cost of that
child’s placement, including the
therapeutic care as well as room and
board, is without cost to the parents.
However, the SEA is not responsible for
providing medical care. Thus, visits to
a doctor for treatment of medical
conditions are not covered services
under Part B of the Act and parents may
be responsible for the cost of the
medical care.
Changes: None.
Assistive Technology (§300.105)
Comment: One commenter
recommended removing §300.105 and
including the requirements in this
section in the definition of assistive
technology device in §300.5 and
assistive technology service in §300.6.
Discussion: Section 300.5 and §300.6
define the terms assistive technology
device and assistive technology service,
respectively. Section 300.105 is not part
of the definition of these terms, but
rather is necessary to specify the
circumstances under which public
agencies are responsible for making
available assistive technology devices
and assistive technology services to
children with disabilities.
Changes: None.
Comment: A few commenters
requested clarifying in §300.105(b)
whether hearing aids are included in the
definition of an assistive technology
device.
Discussion: An assistive technology
device, as defined in §300.5, means any
item, piece of equipment, or product
system that is used to increase,
maintain, or improve the functional
capabilities of a child with a disability.
The decision of whether a hearing aid
is an assistive technology device is a
determination that is made on an
individual basis by the child’s IEP
Team. However, even if the IEP Team
determines that a hearing aid is an
assistive technology device, within the
meaning of §300.5, for a particular
child, the public agency is responsible
for the provision of the assistive
technology device as part of FAPE, only
if, as specified in §300.105, the device
is required as part of the child’s special
education defined in §300.39, related
services defined in §300.34, or
supplementary aids and services
defined in §300.42.
As a general matter, public agencies
are not responsible for providing
personal devices, such as eyeglasses or
hearing aids that a child with a
disability requires, regardless of
whether the child is attending school.
However, if it is not a surgically
implanted device and a child’s IEP Team determines that the child requires
a personal device (e.g., eyeglasses) in
order to receive FAPE, the public
agency must ensure that the device is
provided at no cost to the child’s
parents.
Changes: None.
Comment: One commenter
recommended adding language to
§300.105(b) to include, in addition to
hearing aids, other hearing
enhancement devices, such as a
cochlear implant.
Discussion: Section 300.105(b), as
proposed, requires a public agency to
ensure that hearing aids worn in school
by children with hearing impairments,
including deafness, are functioning
properly. This is a longstanding
requirement and was included pursuant
to a House Committee Report on the
1978 appropriations bill (H. Rpt. No.
95–381, p. 67 (1977)) directing the
Department to ensure that children with
hearing impairments are receiving
adequate professional assessment,
follow-up, and services. The
Department believes that, given the
increase in the number of children with
disabilities with surgically implanted
devices (e.g., cochlear implants, vagus
nerve stimulators, electronic muscle
stimulators), and rapid advances in new
technologies to help children with
disabilities, it is important that these
regulations clearly address any
obligation public agencies have to
provide follow-up and services to
ensure that such devices are functioning
properly.
Section 602(1) of the Act clarifies that
the definition of assistive technology
device does not include a medical
device that is surgically implanted or
the replacement of such device. Section
602(26) of the Act also stipulates that
only medical services that are for
diagnostic and evaluative purposes and
required to assist a child with a
disability to benefit from special
education are considered a related
service. We believe Congress was clear
in its intent in S. Rpt. 108–185, p. 8,
which states:
[T]he definitions of ‘‘assistive technology
device’’ and ‘‘related services’’ do not
include a medical device that is surgically
implanted, or the post-surgical maintenance,
programming, or replacement of such device,
or an external device connected with the use
of a surgically implanted medical device
(other than the costs of performing routine
maintenance and monitoring of such external
device at the same time the child is receiving
other services under the act).
The Department believes, however,
that public agencies have an obligation
to change a battery or routinely check an
external component of a surgically
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implanted medical device to make sure
it is turned on and operating. However,
mapping a cochlear implant (or paying
the costs associated with mapping) is
not routine checking as described above
and should not be the responsibility of
a public agency. We will add language
to the regulations to clarify a public
agency’s responsibility regarding the
routine checking of external
components of surgically implanted
medical devices.
Changes: A new §300.113 has been
added with the heading, ‘‘Routine
checking of hearing aids and external
components of surgically implanted
medical devices.’’ Section 300.105(b),
regarding the proper functioning of
hearing aids, has been removed and
redesignated as new §300.113(a). We
have added a new paragraph (b) in new
§300.113 clarifying that, for a child
with a surgically implanted medical
device who is receiving special
education and related services under
this part, a public agency is responsible
for routine checking of external
components of surgically implanted
medical devices, but is not responsible
for the post-surgical maintenance,
programming, or replacement of a
medical device that has been surgically
implanted (or of an external component
of a surgically implanted medical
device).
The provisions in §300.105 have been
changed to conform with the other
changes to this section and the phrase
‘‘proper functioning of hearing aids’’ has
been removed from the heading.
Extended School Year Services
(§300.106)
Comment: Several commenters
recommended removing §300.106
because the requirement to provide
extended school year (ESY) services to
children with disabilities is not required
in the Act.
Discussion: The requirement to
provide ESY services to children with
disabilities who require such services in
order to receive FAPE reflects a
longstanding interpretation of the Act
by the courts and the Department. The
right of an individual child with a
disability to receive ESY services is
based on that child’s entitlement to
FAPE under section 612(a)(1) of the Act.
Some children with disabilities may not
receive FAPE unless they receive
necessary services during times when
other children, both disabled and
nondisabled, normally would not be
served. We believe it is important to
retain the provisions in §300.106
because it is necessary that public
agencies understand their obligation to
ensure that children with disabilities who require ESY services in order to
receive FAPE have the necessary
services available to them, and that
individualized determinations about
each disabled child’s need for ESY
services are made through the IEP
process.
Changes: None.
Comment: One commenter stated that
the ESY requirements in §300.106
should not be included as part of the
State eligibility requirements and would
be more appropriately included in the
definition of FAPE in §300.17.
Discussion: The definition of FAPE in
§300.17 is taken directly from section
602(9) of the Act. We believe the ESY
requirements are appropriately included
under the FAPE requirements as a part
of a State’s eligibility for assistance
under Part B of the Act because the right
of an individual child with a disability
to ESY services is based on a child’s
entitlement to FAPE. As a part of the
State’s eligibility for assistance under
Part B of the Act, the State must make
FAPE available to all children with
disabilities residing in the State in
mandated age ranges.
Changes: None.
Comment: One commenter
recommended removing the word
‘‘only’’ in §300.106(a)(2) because it is
unduly limiting.
Discussion: The inclusion of the word
‘‘only’’ is intended to be limiting. ESY
services must be provided ‘‘only’’ if a
child’s IEP Team determines, on an
individual basis, in accordance with
§§300.320 through 300.324, that the
services are necessary for the provision
of FAPE to the child. We do not think
this language is overly restrictive;
instead, we think it is necessary for
providing appropriate parameters to the
responsibility of the IEP Team.
Changes: None.
Comment: A few commenters
suggested revising §300.106(a)(3)(i) to
specifically state that, in addition to
particular categories of disabilities,
public agencies may not limit ESY
services to particular age ranges. Other
commenters proposed adding
‘‘preschooler with a disability’’ to the
definition of ESY services in
§300.106(b)(1).
Discussion: The revisions
recommended by the commenters are
not necessary. Section 300.106(a)
clarifies that each public agency must
ensure that ESY services are available
for children with disabilities if those
services are necessary for the children to
receive FAPE. Section 300.101(a) clearly
states that FAPE must be available to all
children aged 3 through 21, inclusive,
residing in the State, except for children
ages 3, 4, 5, 18, 19, 20, or 21 to the extent that its application to those
children would be inconsistent with
State law or practice, or the order of any
court, regarding the provision of public
education to children of those ages. We
do not believe any further clarification
is necessary.
Changes: None.
Comment: One commenter requested
that language be added to
§300.106(b)(1)(i) to clarify that
providing ESY services to a child with
a disability beyond the normal school
year includes, but is not limited to,
before and after regular school hours, on
weekends, and during regular school
vacations.
Discussion: Typically, ESY services
are provided during the summer
months. However, there is nothing in
§300.106 that would limit a public
agency from providing ESY services to
a child with a disability during times
other than the summer, such as before
and after regular school hours or during
school vacations, if the IEP Team
determines that the child requires ESY
services during those time periods in
order to receive FAPE. The regulations
give the IEP Team the flexibility to
determine when ESY services are
appropriate, depending on the
circumstances of the individual child.
Changes: None.
Comment: One commenter suggested
adding language to §300.106 clarifying
that ‘‘recoupment and retention’’ should
not be used as the sole criteria for
determining the child’s eligibility for
ESY services.
Discussion: We do not believe the
commenter’s suggested change should
be made. The concepts of ‘‘recoupment’’
and ‘‘likelihood of regression or
retention’’ have formed the basis for
many standards that States use in
making ESY eligibility determinations
and are derived from well-established
judicial precedents. (See, for example,
Johnson v. Bixby Independent School
District 4, 921 F.2d 1022 (10th Cir.
1990); Crawford v. Pittman, 708 F.2d
1028 (5th Cir. 1983); GARC v. McDaniel,
716 F.2d 1565 (11th Cir. 1983)). States
may use recoupment and retention as
their sole criteria but they are not
limited to these standards and have
considerable flexibility in determining
eligibility for ESY services and
establishing State standards for making
ESY determinations. However, whatever
standard a State uses must be consistent
with the individually-oriented
requirements of the Act and may not
limit eligibility for ESY services to
children with a particular disability
category or be applied in a manner that
denies children with disabilities who
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require ESY services in order to receive
FAPE access to necessary ESY services.
Changes: None.
Nonacademic Services (§300.107)
Comment: One commenter
recommended adding more specific
language in §300.107 regarding services
and accommodations available for
nonacademic activities to ensure that
children with disabilities are fully
included in nonacademic activities.
Discussion: We agree with the
commenter. Section 300.107(a), as
proposed, requires public agencies to
take steps to provide nonacademic and
extracurricular services and activities in
a manner necessary to afford children
with disabilities an equal opportunity to
participate in those services and
activities. In addition,
§300.320(a)(4)(ii), consistent with
section 614(d)(1)(i)(IV)(bb) of the Act,
clarifies that an IEP must include a
statement of the special education and
related services and supplementary aids
and services to be provided to the child
to participate in extracurricular and
other nonacademic activities. We will
add language in §300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Changes: Additional language has
been added in §300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Comment: One commenter expressed
concern about including ‘‘nonacademic
services’’ in §300.107, because it is not
in the Act. The commenter stated that
services such as athletics, recreational
activities and clubs, counseling,
transportation and health services
should not be included in the
regulations because they may be costly
and are usually available on a limited
basis. One commenter stated that it is
confusing to include related services in
the examples of nonacademic services
and recommended that they be
removed.
Discussion: The list of nonacademic
and extracurricular services and
activities in §300.107(b) is not
exhaustive. The list provides public
agencies with examples of services and
activities that may afford children with
disabilities an equal opportunity for
participation in the services offered to other children of the public agency. We
disagree that the list of activities causes
confusion with related services, as we
think that the public can easily
recognize the difference between
academic counseling services, for
example, that are offered to all children,
and the type of counseling services that
might be included in a child’s IEP as a
related service. For these reasons, we
believe it is appropriate to maintain the
list of nonacademic and extracurricular
services and activities in §300.107,
including those services that are also
related services in §300.34.
Changes: None.
Physical Education (§300.108)
Comment: A few commenters stated
that, in some States, physical education
is not required for every nondisabled
child every year and this creates
situations in which children with
disabilities are in segregated physical
education classes. The commenters
recommended that the regulations
clarify the requirements for public
agencies to make physical education
available to children with disabilities
when physical education is not
available to children without
disabilities.
Discussion: Section 300.108 describes
two considerations that a public agency
must take into account to meet the
physical education requirements in this
section. First, physical education must
be made available equally to children
with disabilities and children without
disabilities. If physical education is not
available to all children (i.e., children
with and without disabilities), the
public agency is not required to make
physical education available for
children with disabilities (e.g., a district
may provide physical education to all
children through grade 10, but not to
any children in their junior and senior
years). Second, if physical education is
specially designed to meet the unique
needs of a child with a disability and is
set out in that child’s IEP, those services
must be provided whether or not they
are provided to other children in the
agency.
This is the Department’s longstanding
interpretation of the requirements in
§300.108 and is based on legislative
history that the intent of Congress was
to ensure equal rights for children with
disabilities. The regulation as
promulgated in 1977 was based on an
understanding that physical education
was available to all children without
disabilities and, therefore, must be made
available to all children with
disabilities. As stated in H. Rpt. No. 94–
332, p. 9, (1975): Special education as set forth in the
Committee bill includes instruction in
physical education, which is provided as a
matter of course to all non-handicapped
children enrolled in public elementary and
secondary schools. The Committee is
concerned that although these services are
available to and required of all children in
our school systems, they are often viewed as
a luxury for handicapped children.
We agree that §300.108(a) could be
interpreted to mean that physical
education must be made available to all
children with disabilities, regardless of
whether physical education is provided
to children without disabilities. We
will, therefore, revise paragraph (a) to
clarify that the public agency has no
obligation to provide physical education
for children with disabilities if it does
not provide physical education to
nondisabled children attending their
schools.
Changes: Section 300.108(a) has been
revised as described in the preceding
paragraph.
Full Education Opportunity Goal
(FEOG) (§300.109)
Comment: One commenter requested
that the regulations clarify how a State
communicates and monitors the
progress of the State’s FEOG.
Discussion: We do not believe it is
appropriate to regulate how a State
communicates and monitors its progress
toward the State’s FEOG. We believe the
State should have the flexibility needed
to implement the provisions of this
section and the State is in the best
position to make this determination.
Changes: None.
Program Options (§300.110)
Comment: A few commenters
recommended revising §300.110 to
require States to ensure that each public
agency have in effect policies,
procedures, and programs to provide
children with disabilities the variety of
educational programs and services
available to nondisabled children. The
commenters stated that §300.110 does
not provide any guidance to educators.
A few commenters stated that
‘‘vocational education is an outdated
term’’ and proposed replacing it with
‘‘career-technical and adult education’’
or ‘‘career and technical education.’’
Discussion: We do not believe it is
necessary to change §300.110. Under
this provision, States must ensure that
public agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency, whatever
those options are, and we are not aware
of any implementation problems with
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this requirement. We believe that it is
important that educators understand
that children with disabilities must have
access to the same range of programs
and services that a public agency
provides to nondisabled children and
that the regulation conveys this point.
We also do not believe it is necessary to
replace the term ‘‘vocational education’’
with the language recommended by the
commenter. The term is broad in its
meaning and generally accepted and
understood in the field and, therefore,
would encompass such areas as ‘‘career-
technical’’ and ‘‘technical education.’’
Changes: None.
Comment: Several commenters
requested that the regulations explicitly
state that a child with a disability who
has not yet received a regular high
school diploma or ‘‘aged out’’ of special
education may participate in dual
enrollment programs and receive
services in a postsecondary or
community-based setting if the IEP
Team decides it is appropriate.
Discussion: Section 300.110,
consistent with section 612(a)(2) of the
Act, requires States to ensure that public
agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency. This would
apply to dual enrollment programs in
post-secondary or community-based
settings. Therefore, a State would be
responsible for ensuring that a public
agency that offered dual enrollment
programs in post-secondary or
community-based settings to a
nondisabled student would have that
option available to a student with
disabilities whose IEP Team determined
that such a program would best meet the
student’s needs. However, we do not
believe that the Act requires public
agencies to provide dual enrollment
programs in post-secondary or
community-based settings for students
with disabilities, if such programs are
not available to nondisabled secondary
school students. Therefore, we are not
modifying the regulations.
Changes: None.
Child Find (§300.111)
Comment: Several commenters
expressed confusion about the child
find requirements in §300.111 and the
parental consent requirements in
§300.300, and requested clarification on
whether child find applies to private
school children and whether LEAs may
use the consent override procedures for
children with disabilities enrolled in
private schools. Two commenters
requested that §300.111(a)(1)(i) specify
that child find does not apply to private school children whose parents refuse
consent.
Discussion: This issue is addressed in
the Analysis of Comments and Changes
section for subpart D in response to
comments on §300.300.
Changes: None.
Comment: One commenter
recommended retaining current
§300.125(b) to ensure that the child find
requirements are retained for parentally-
placed private school children.
Discussion: Current §300.125(b) was
removed from these regulations because,
under the Act, States are no longer
required to have State policies and
procedures on file with the Secretary.
Furthermore, the Department believes
the requirements in §§300.111 and
300.131 adequately ensure that
parentally-placed private school
children are considered in the child find
process.
Changes: None.
Comment: One commenter requested
a definition of the term ‘‘private
school,’’ as used in §300.111.
Discussion: The term ‘‘private school’’
as used in §300.111 means a private
elementary school or secondary school,
including a religious school. The terms
elementary school and secondary school
are defined in subpart A of these
regulations. The term private is defined
in 34 CFR Part 77, which applies to this
program, and we see no need to include
those definitions here.
Changes: None.
Comment: One commenter requested
that the child find requirements in
§300.111(c)(2) include homeless
children.
Discussion: Homeless children are
already included in the child find
requirements. Section 300.111(a)(1)(i)
clarifies that the State must have
policies and procedures to ensure that
children with disabilities who are
homeless and who are in need of special
education and related services, are
identified, located, and evaluated. No
further clarification is needed.
Changes: None.
Comment: A few commenters
recommended including in §300.111
the requirements in current §300.125(c),
regarding child find for children from
birth through age two when the SEA
and lead agency for the Part C program
are different. The commenters stated
that this will ensure that children with
disabilities from birth through age two
are eligible to participate in child find
activities when the Part C lead agency
is not the SEA.
Discussion: The Department does not
believe it is necessary to retain the
language in current §300.125(c). The
child find requirements in §300.111 have traditionally been interpreted to
mean identifying and evaluating
children beginning at birth. While child
find under Part C of the Act overlaps, in
part, with child find under Part B of the
Act, the coordination of child find
activities under Part B and Part C is an
implementation matter that is best left
to each State. Nothing in the Act or
these regulations prohibits a Part C lead
agency’s participation, with the
agreement of the SEA, in the actual
implementation of child find activities
for infants and toddlers with
disabilities.
Changes: None.
Comment: One commenter
recommended removing §300.111(c)
because child find for children with
developmental delays, older children
progressing from grade to grade, and
highly mobile children is not
specifically required by the Act.
Discussion: The changes requested by
the commenter cannot be made because
they are inconsistent with the Act.
Section 300.111(a)(1)(i), consistent with
section 612(a)(3)(A) of the Act,
explicitly requires that all children with
disabilities residing in the State are
identified, located, and evaluated. This
includes children suspected of having
developmental delays, as defined in
section 602(3)(B) of the Act. We
recognize that it is difficult to locate,
identify, and evaluate highly mobile and
migrant children with disabilities.
However, we strongly believe it is
important to stress in these regulations
that the States’ child find
responsibilities in §300.111 apply
equally to such children. We also
believe it is important to clarify that a
child suspected of having a disability
but who has not failed, is making
academic progress, and is passing from
grade to grade must be considered in the
child find process as any other child
suspected of having a disability. As
noted earlier in the discussion regarding
§300.101, paragraph (c)(1) of §300.111
has been revised to clarify that children
do not have to fail or be retained in a
course or grade in order to be
considered for special education and
related services.
Changes: None.
Comment: One commenter requested
that §300.111 explicitly require that
children in residential facilities be
included in the public agency’s child
find process.
Discussion: We believe §300.111(a),
consistent with section 612(a)(3)(A) of
the Act, clarifies that the State must
ensure that all children with disabilities
residing in the State are identified,
located, and evaluated. This would
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include children in residential facilities.
No further clarification is necessary.
Changes: None.
Individualized Education Programs
(IEP) (§300.112)
Comment: One commenter objected to
including the reference to
§300.300(b)(3)(ii) in §300.112, stating
that it is not necessary to ensure
compliance with the requirement for an
IEP or IFSP to be developed, reviewed,
and revised for each child with a
disability.
Discussion: Section 300.300(b)(3)(ii)
states that if a parent refuses to consent
to the initial provision of special
education and related services, or the
parent fails to respond to a request to
provide consent for the initial provision
of special education and related
services, the public agency is not
required to convene an IEP meeting or
develop an IEP for the child. It is
necessary to include this reference in
§300.112 to clarify the circumstances
under which a public agency is not
required to develop an IEP for an
eligible child with a disability.
Changes: None.
Routine Checking of Hearing Aids and
External Components of Surgically
Implanted Medical Devices (§300.113)
Comment: None.
Discussion: New §300.113 is
addressed in the Analysis of Comments
and Changes section for subpart A in
response to comments on §300.34(b).
Changes: We have added new
§300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted medical devices.
The requirement for the routine
checking of hearing aids has been
removed from proposed §300.105 and
included in new §300.113(a). The
requirement for routine checking of an
external component of a surgically
implanted medical device has been
added as new §300.113(b). The
requirements for assistive technology
devices and services remain in
§300.105 and the heading has been
changed to reflect this change. We have
also included a reference to new
§300.113(b) in new §300.34(b)(2).
Least Restrictive Environment (LRE)
LRE Requirements (§300.114)
Comment: One commenter
recommended including language in the
regulations that respects and safeguards
parental involvement and protects the
rights of children with disabilities to be
educated in the least restrictive
environment (LRE).
Discussion: We believe that the LRE
requirements in §§300.114 through 300.120 address the rights of children
with disabilities to be educated in the
LRE, as well as safeguard parental
rights. Section 300.114, consistent with
section 612(a)(5) of the Act, requires
each public agency to ensure that, to the
maximum extent appropriate, children
with disabilities are educated with
children who are not disabled. Further,
§300.116 ensures that a child’s parent is
included in the group of persons making
the decision about the child’s
placement.
Changes: None.
Comment: A number of comments
were received regarding
§300.114(a)(2)(ii), which requires each
public agency to ensure that the removal
of children with disabilities from the
regular educational environment occurs
only when the nature or severity of the
disability is such that the education in
regular classes with the use of
supplementary aids and services cannot
be achieved satisfactorily. Many
commenters recommended replacing
‘‘regular educational environment’’ with
‘‘regular classroom’’ because ‘‘regular
classroom’’ is less likely to be
misinterpreted to mean any kind of
contact with children without
disabilities. A few commenters
expressed concern that using the phrase
‘‘regular educational environment’’
weakens the LRE protections. Another
commenter recommended the
regulations clarify that the ‘‘regular
educational environment’’ means the
participation of children with
disabilities with their nondisabled peers
in regular classrooms and other
educational settings including
nonacademic settings.
Discussion: Section 300.114(a)(2)(ii)
follows the specific language in section
612(a)(5)(A) of the Act and reflects
previous regulatory language. This
requirement is longstanding. We do not
believe the language should be revised,
as recommended by the commenters,
because ‘‘regular educational
environment’’ encompasses regular
classrooms and other settings in schools
such as lunchrooms and playgrounds in
which children without disabilities
participate.
Changes: None.
Comment: One commenter requested
revising §300.114(a)(2) to require a
public agency to document and justify
placements of children with disabilities
in environments outside the general
education classroom.
Discussion: The additional language
requested by the commenter is not
necessary and would impose
unwarranted paperwork burdens on
schools. Section 300.320(a)(5),
consistent with section 614(d)(1)(A)(i)(V) of the Act, already
requires a child’s IEP to include an
explanation of the extent, if any, to
which the child will not participate
with nondisabled children in the regular
class. As noted previously, parents are
a part of the group making placement
decisions. We believe these provisions
provide sufficient safeguards on the
placement process.
Changes: None.
Comment: One commenter stated that
the LRE requirements are often
misinterpreted to be a mandate to
include all children who are deaf or
hard of hearing in their local schools.
The commenter stated that the
placement decision for a child who is
deaf or hard of hearing should be based
on the child’s communication needs
and must be the environment that
presents the fewest language and
communication barriers to the child’s
cognitive, social, and emotional
development. Some commenters
cautioned that inclusive settings might
be inappropriate for a child who is deaf
and who requires communication
support and stated that the LRE should
be the place where a child can be
educated successfully. A few
commenters requested the regulations
clarify that all placement options must
remain available for children who are
deaf.
One commenter recommended
strengthening the requirement for a
continuum of alternative placements
and stated that a full range of placement
options is necessary to meet the needs
of all children with visual impairments.
Another commenter urged the
Department to ensure that children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) have access to appropriate
educational programming and services
at all times, including center-based
schools, which may be the most
appropriate setting for children with
low-incidence disabilities.
Discussion: The LRE requirements in
§§300.114 through 300.117 express a
strong preference, not a mandate, for
educating children with disabilities in
regular classes alongside their peers
without disabilities. Section
300.114(a)(2), consistent with section
612(a)(5)(A) of the Act, requires that, to
the maximum extent appropriate,
children with disabilities are educated
with children who are not disabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only when the
nature or severity of the disability is
such that education in regular classes
with the use of supplementary aids and
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services cannot be achieved
satisfactorily.
With respect to the recommendation
that the placement for children who are
deaf or hard of hearing be based on the
child’s communication needs,
§300.324(a)(2)(iv), consistent with
section 614(d)(3)(B)(iv) of the Act,
clarifies that the IEP Team, in
developing the IEP for a child who is
deaf or hard of hearing, must consider
the child’s language and communication
needs, opportunities for direct
communication with peers and
professional personnel in the child’s
language and communication mode, and
the child’s academic level and full range
of needs, including opportunities for
direct instruction in the child’s language
and communication mode.
With respect to strengthening the
continuum of alternative placement
requirements, nothing in the LRE
requirements would prevent an IEP
Team from making a determination that
placement in the local school is not
appropriate for a particular child.
Section 300.115 already requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities for special education
and related services. We believe this
adequately addresses the commenter’s
concern.
The process for determining the
educational placement for children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) is the same process used
for determining the educational
placement for all children with
disabilities. That is, each child’s
educational placement must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances, rather than by the child’s
category of disability, and must be based
on the child’s IEP. We believe the LRE
provisions are sufficient to ensure that
public agencies provide low-incidence
children with disabilities access to
appropriate educational programming
and services in the educational setting
appropriate to meet the needs of the
child in the LRE.
Changes: None.
Comment: One commenter requested
that the regulations clarify that children
with disabilities who are suspended or
expelled from school are entitled to be
educated with children who are not
disabled. The commenter stated that
this clarification is necessary to reduce
the use of home instruction as a
placement option for these children.
Discussion: The Act does not require
that children with disabilities suspended or expelled for disciplinary
reasons continue to be educated with
children who are not disabled during
the period of their removal. We believe
it is important to ensure that children
with disabilities who are suspended or
expelled from school receive
appropriate services, while preserving
the flexibility of school personnel to
remove a child from school, when
necessary, and to determine how best to
address the child’s needs during periods
of removal and where services are to be
provided to the child during such
periods of removals, including, if
appropriate, home instruction. Sections
300.530 through 300.536 address the
options available to school authorities
in disciplining children with disabilities
and set forth procedures that must be
followed when taking disciplinary
actions and in making decisions
regarding the educational services that a
child will receive and the location in
which services will be provided. We
believe including the language
recommended by the commenter would
adversely restrict the options available
to school personnel for disciplining
children with disabilities and
inadvertently tie the hands of school
personnel in responding quickly and
effectively to serious child behaviors
and in creating safe classrooms for all
children.
Changes: None.
Additional Requirement—State Funding
Mechanism (§300.114(b))
Comment: One commenter stated that
§300.114(b) does not adequately
address the requirements for funding
mechanisms relative to the LRE
requirements and requested that note 89
of the Conf. Rpt. be included in the
regulations.
Discussion: Section 300.114(b)
incorporates the language from section
612(a)(5)(B) of the Act and prohibits
States from maintaining funding
mechanisms that violate the LRE
provisions. We do not believe it is
necessary to provide additional
clarification in the regulations. While
we agree with the commenter that note
89 of the Conf. Rpt. makes clear
Congress’ intent that State funding
mechanisms support the LRE
requirements and do not provide an
incentive or disincentive for certain
placement decisions, we believe the
requirements in §300.114(b) accurately
capture the essence of the Conf. Rpt.
and including additional language in
this paragraph is not needed.
Changes: None.
Comment: One commenter urged the
Department to impose financial
sanctions on States that continue to base their funding on certain placement
decisions. A few commenters suggested
changing the requirement in
§300.114(b)(2) for States to provide an
assurance that the State will revise its
funding mechanism ‘‘as soon as
feasible’’ to ‘‘no later than the start of
the 2006–2007 school year.’’
Discussion: Section 300.114(b)(2)
incorporates the language in section
612(a)(5)(B)(ii) of the Act, and requires
that if a State does not have policies and
procedures to ensure that the State’s
funding mechanism does not violate the
LRE requirements, the State must
provide the Secretary an assurance that
the State will revise its funding
mechanism as soon as feasible. We do
not believe it is necessary to include in
these regulations a specific timeline for
a State to revise its funding mechanism,
if required to do so pursuant to
300.114(b)(2). We believe the statutory
language ‘‘as soon as feasible,’’ while
providing flexibility as to how each
State meets the requirement, is
sufficient to ensure States’ compliance
with this requirement.
Further, we believe the enforcement
options in §300.604 give the Secretary
sufficient means to address a State’s
noncompliance with the requirements
in §300.114(b)(2). Section 300.604
describes the enforcement options
available to the Secretary if the
Secretary determines that a State needs
assistance or intervention implementing
the requirements of Part B of the Act, or
that there is a substantial failure to
comply with any condition of an SEA’s
or LEA’s eligibility under Part B of the
Act. Enforcement options available to
the Secretary include, among others,
recovery of funds or withholding, in
whole or in part, any further payments
to the State under Part B of the Act.
Changes: None.
Continuum of Alternative Placements
(§300.115)
Comment: One commenter
recommended revising §300.115 so that
only the specific allowable alternative
settings listed in the definition of
special education in new §300.39
(proposed §300.38) (i.e., classroom,
home, hospitals, institutions) are
permitted.
Discussion: Section 300.115 requires
each public agency to ensure that a
continuum of alternative placements
(including instruction in regular classes,
special classes, special schools, home
instruction, and instruction in hospitals
and institutions) is available to meet the
needs of children with disabilities for
special education and related services.
The list of placement options in this
section only expands the settings
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mentioned in new §300.39 (proposed
§300.38) by recognizing the various
types of classrooms and settings for
classrooms in which special education
is provided. This continuum of
alternative placements is intended to
ensure that a child with a disability is
served in a setting where the child can
be educated successfully in the LRE.
Changes: None.
Comment: One commenter suggested
adding language to the regulations to
clarify that difficulty recruiting and
hiring qualified special education
teachers does not relieve an LEA of its
obligation to ensure a continuum of
alternative placements and to offer a full
range of services to meet the needs of
children with disabilities.
Discussion: We do not believe it is
necessary to include the language
suggested by the commenter, because
§300.116 is sufficiently clear that
placement decisions must be based on
the individual needs of each child with
a disability. Public agencies, therefore,
must not make placement decisions
based on a public agency’s needs or
available resources, including budgetary
considerations and the ability of the
public agency to hire and recruit
qualified staff.
Changes: None.
Comment: A few commenters
recommended revising §300.115(a) to
clarify that the continuum of alternative
placements must be available to eligible
preschool children with disabilities.
Discussion: It is not necessary to
revise §300.115(a) in the manner
suggested by the commenters. Section
300.116 clearly states that the
requirements for determining the
educational placement of a child with a
disability include preschool children
with disabilities and that such decisions
must be made in conformity with the
LRE provisions in §§300.114 through
300.118. This includes ensuring that a
continuum of services is available to
meet the needs of children with
disabilities for special education and
related services.
Changes: None.
Placements (§300.116)
Comment: One commenter
recommended the regulations clarify
that the regular class must always be
considered the first placement option.
Discussion: We do not believe it is
necessary to include the clarification
recommended by the commenter.
Section 300.116 clarifies that placement
decisions must be made in conformity
with the LRE provisions, and
§300.114(a)(2) already requires that
special classes, separate schooling or
other removal of children with disabilities from the regular education
environment only occurs if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes: None.
Comment: A few commenters
recommended revising §300.116 to
require that children with disabilities
have access to, and make progress in,
the general curriculum, and that
children receive the special education
and related services included in their
IEPs.
Discussion: The issues raised by the
commenters are already addressed
elsewhere in the regulations. The IEP
requirements in §300.320(a), consistent
with section 614(d) of the Act, clarify
that children with disabilities must be
provided special education and related
services and needed supplementary aids
and services to enable them to be
involved in and make progress in the
general curriculum. In addition,
§300.323(c)(2) requires that, as soon as
possible following the development of
an IEP, special education and related
services are made available to the child
in accordance with the child’s IEP. We
believe that these regulations adequately
address the commenters’ concerns, and
that no further clarification is necessary.
Changes: None.
Comment: One commenter stated that
the placement requirements in §300.116
encourage school districts to assign a
child with a disability to a particular
place or setting, rather than providing a
continuum of increasingly
individualized and intensive services.
The commenter suggested requiring that
the continuum of alternative placements
include a progressively more intensive
level of individualized, scientifically
based instruction and related services,
both with increased time and lower
pupil-teacher ratio, in addition to
regular instruction with supplementary
aids and services.
Discussion: The overriding rule in
§300.116 is that placement decisions for
all children with disabilities must be
made on an individual basis and ensure
that each child with a disability is
educated in the school the child would
attend if not disabled unless the child’s
IEP requires some other arrangement.
However, the Act does not require that
every child with a disability be placed
in the regular classroom regardless of
individual abilities and needs. This
recognition that regular class placement
may not be appropriate for every child
with a disability is reflected in the
requirement that LEAs make available a
range of placement options, known as a
continuum of alternative placements, to meet the unique educational needs of
children with disabilities. This
requirement for the continuum
reinforces the importance of the
individualized inquiry, not a ‘‘one size
fits all’’ approach, in determining what
placement is the LRE for each child
with a disability. The options on this
continuum must include the alternative
placements listed in the definition of
special education under §300.38
(instruction in regular classes, special
classes, special schools, home
instruction, and instruction in hospitals
and institutions). These options must be
available to the extent necessary to
implement the IEP of each child with a
disability. The group determining the
placement must select the placement
option on the continuum in which it
determines that the child’s IEP can be
implemented in the LRE. Any
alternative placement selected for the
child outside of the regular educational
environment must include appropriate
opportunities for the child to interact
with nondisabled peers, to the extent
appropriate to the needs of the children,
consistent with §300.114(a)(2)(i).
Because placement decisions must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances and based on the child’s
IEP, we do not believe it is appropriate
to require in the regulations that the
continuum of alternative placements
include a progressively more intensive
level of individualized scientifically
based instruction and related services as
suggested by the commenter.
Changes: None.
Comment: We received a number of
comments regarding the phrase, ‘‘unless
the parent agrees otherwise’’ in
proposed §300.116(b)(3) and (c). As
proposed, §300.116(b)(3) requires the
child’s placement to be as close as
possible to the child’s home, ‘‘unless the
parent agrees otherwise;’’ and
§300.116(c) requires that, unless the
child’s IEP requires some other
arrangement, the child must be
educated in the school that he or she
would attend if nondisabled, ‘‘unless
the parent agrees otherwise.’’ Many
commenters requested removing the
phrase ‘‘unless the parent agrees
otherwise,’’ because it is not included in
section 612(a)(5) of the Act and is not
necessary to clarify that a parent may
place his or her child in a charter,
magnet, or other specialized school
without violating the LRE requirements.
Other commenters suggested removing
the phrase and clarifying that a decision
by the child’s parent to send the child
to a charter, magnet, or other specialized
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school is not a violation of the LRE
requirements.
Several commenters stated that
including the phrase undermines the
statutory requirement for children with
disabilities to be placed in the LRE
based on their IEPs and allows more
restrictive placements based on parental
choice. Many commenters interpreted
this phrase to mean that placement is a
matter of parental choice even in public
school settings and stated that a child’s
LRE rights should not be overridden by
parental choice. One commenter stated
that the phrase might intimidate parents
into accepting inappropriate
placements.
A few commenters stated that this
phrase is unnecessary because the Act
already requires parents to be involved
in placement decisions, and expressed
concern that including this phrase in
the regulations could lead to confusion
and litigation. One commenter stated
that the phrase suggests that additional
consent is required if the parent chooses
to send the child to a charter, magnet,
or other specialized school.
Discussion: The phrase ‘‘unless the
parent agrees otherwise’’ in proposed
§300.116(b)(3) and (c) was added to
clarify that a parent may send the child
to a charter, magnet, or other specialized
school without violating the LRE
mandate. A parent has always had this
option; a parent who chooses this
option for the child does not violate the
LRE mandate as long as the child is
educated with his or her peers without
disabilities to the maximum extent
appropriate. However, we agree that this
phrase is unnecessary, confusing, and
may be misunderstood to mean that
parents have a right to veto the
placement decision made by the group
of individuals in §300.116(a)(1). We
will, therefore, remove the phrase.
Changes: We have removed the
phrase ‘‘unless the parent agrees
otherwise’’ in §300.116(b)(3) and (c).
Comment: One commenter disagreed
with the requirement in §300.116(b)(3)
that placements be as close as possible
to the child’s home, stating that the
requirement is administratively
prohibitive and beyond the scope of the
Act. The commenter stated that it is not
possible for school districts to provide
classes for children with all types and
degrees of disabilities in each school
building. The commenter stated that
‘‘placement’’ should be understood as
the set of services outlined in a child’s
IEP, and recommended that school
districts be permitted to provide these
services in the school building that is
most administratively feasible.
Discussion: We do not believe the
requirement imposes unduly restrictive administrative requirements. The
Department has consistently maintained
that a child with a disability should be
educated in a school as close to the
child’s home as possible, unless the
services identified in the child’s IEP
require a different location. Even though
the Act does not mandate that a child
with a disability be educated in the
school he or she would normally attend
if not disabled, section 612(a)(5)(A) of
the Act presumes that the first
placement option considered for each
child with a disability is the regular
classroom in the school that the child
would attend if not disabled, with
appropriate supplementary aids and
services to facilitate such placement.
Thus, before a child with a disability
can be placed outside of the regular
educational environment, the full range
of supplementary aids and services that
could be provided to facilitate the
child’s placement in the regular
classroom setting must be considered.
Following that consideration, if a
determination is made that a particular
child with a disability cannot be
educated satisfactorily in the regular
educational environment, even with the
provision of appropriate supplementary
aids and services, that child could be
placed in a setting other than the regular
classroom.
Although the Act does not require
that each school building in an LEA be
able to provide all the special education
and related services for all types and
severities of disabilities, the LEA has an
obligation to make available a full
continuum of alternative placement
options that maximize opportunities for
its children with disabilities to be
educated with nondisabled peers to the
extent appropriate. In all cases,
placement decisions must be
individually determined on the basis of
each child’s abilities and needs and
each child’s IEP, and not solely on
factors such as category of disability,
severity of disability, availability of
special education and related services,
configuration of the service delivery
system, availability of space, or
administrative convenience.
Changes: None.
Comment: One commenter requested
clarifying the difference, if any, between
‘‘placement’’ and ‘‘location.’’ One
commenter recommended requiring the
child’s IEP to include a detailed
explanation of why a child’s
educational needs cannot be met in the
location requested by the parent when
the school district opposes the parent’s
request for services to be provided to the
child in the school that the child would
attend if the child did not have a
disability. Discussion: Historically, we have
referred to ‘‘placement’’ as points along
the continuum of placement options
available for a child with a disability,
and ‘‘location’’ as the physical
surrounding, such as the classroom, in
which a child with a disability receives
special education and related services.
Public agencies are strongly encouraged
to place a child with a disability in the
school and classroom the child would
attend if the child did not have a
disability. However, a public agency
may have two or more equally
appropriate locations that meet the
child’s special education and related
services needs and school
administrators should have the
flexibility to assign the child to a
particular school or classroom, provided
that determination is consistent with the
decision of the group determining
placement. It also should be noted that,
under section 615(b)(3) of the Act, a
parent must be given written prior
notice that meets the requirements of
§300.503 a reasonable time before a
public agency implements a proposal or
refusal to initiate or change the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
Consistent with this notice requirement,
parents of children with disabilities
must be informed that the public agency
is required to have a full continuum of
placement options, as well as about the
placement options that were actually
considered and the reasons why those
options were rejected. While public
agencies have an obligation under the
Act to notify parents regarding
placement decisions, there is nothing in
the Act that requires a detailed
explanation in children’s IEPs of why
their educational needs or educational
placements cannot be met in the
location the parents’ request. We believe
including such a provision would be
overly burdensome for school
administrators and diminish their
flexibility to appropriately assign a
child to a particular school or
classroom, provided that the assignment
is made consistent with the child’s IEP
and the decision of the group
determining placement.
Changes: None.
Comment: One commenter
recommended including in the
regulations the Department’s policy that
a child’s placement in an educational
program that is substantially and
materially similar to the former
placement is not a change in placement.
Discussion: As stated by the
commenter, it is the Department’s
longstanding position that maintaining a
child’s placement in an educational
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program that is substantially and
materially similar to the former
placement is not a change in placement.
We do not believe further clarification is
necessary in the regulations, however,
as the distinction seems to be commonly
accepted and understood.
Changes: None.
Comment: Many commenters
suggested requiring a public agency to
pay all costs associated with providing
FAPE for a child in a private preschool,
including paying for tuition,
transportation and such special
education, related services and
supplementary aids and services as the
child needs, if an inclusive preschool is
the appropriate placement for a child,
and there is no inclusive public
preschool that can provide all the
appropriate services and supports.
Discussion: The LRE requirements in
§§300.114 through 300.118 apply to all
children with disabilities, including
preschool children who are entitled to
FAPE. Public agencies that do not
operate programs for preschool children
without disabilities are not required to
initiate those programs solely to satisfy
the LRE requirements of the Act. Public
agencies that do not have an inclusive
public preschool that can provide all the
appropriate services and supports must
explore alternative methods to ensure
that the LRE requirements are met.
Examples of such alternative methods
might include placement options in
private preschool programs or other
community-based settings. Paying for
the placement of qualified preschool
children with disabilities in a private
preschool with children without
disabilities is one, but not the only,
option available to public agencies to
meet the LRE requirements. We believe
the regulations should allow public
agencies to choose an appropriate
option to meet the LRE requirements.
However, if a public agency determines
that placement in a private preschool
program is necessary as a means of
providing special education and related
services to a child with a disability, the
program must be at no cost to the parent
of the child.
Changes: None.
Comment: One commenter suggested
clarifying that if a child’s behavior in
the regular classroom significantly
impairs the learning of the child or
others, that placement would not meet
the child’s needs and would not be
appropriate for that child.
Discussion: Although the Act places a
strong preference in favor of educating
children with disabilities in the regular
classroom with appropriate aids and
supports, a regular classroom placement
is not appropriate for every child with a disability. Placement decisions are
made on a case-by-case basis and must
be appropriate for the needs of the
child. The courts have generally
concluded that, if a child with a
disability has behavioral problems that
are so disruptive in a regular classroom
that the education of other children is
significantly impaired, the needs of the
child with a disability generally cannot
be met in that environment. However,
before making such a determination,
LEAs must ensure that consideration
has been given to the full range of
supplementary aids and services that
could be provided to the child in the
regular educational environment to
accommodate the unique needs of the
child with a disability. If the group
making the placement decision
determines, that even with the provision
of supplementary aids and services, the
child’s IEP could not be implemented
satisfactorily in the regular educational
environment, that placement would not
be the LRE placement for that child at
that particular time, because her or his
unique educational needs could not be
met in that setting. (See Roncker v.
Walter, 700 F. 2d 1058 (6th Cir. 1983);
Devries v. Fairfax County School Bd.,
882 F. 2d 876, 879 (4th Cir. 1989);
Daniel R.R. v. State Bd. of Educ., 874 F.
2d 1036 (5th Cir. 1989); and A.W. v.
Northwest R–1 School Dist., 813 F.2d
158, 163 (8th Cir. 1987).)
Changes: None.
Nonacademic Settings (§300.117)
Comment: One commenter requested
that the regulations clarify that children
with disabilities should receive the
supplementary aids and services
necessary to ensure their participation
in nonacademic and extracurricular
services and activities.
Discussion: Section 300.117,
consistent with section 612(a)(5) of the
Act, requires that children with
disabilities participate in nonacademic
and extracurricular services and
activities with their nondisabled peers
to the maximum extent appropriate to
the needs of the child. The Act places
great emphasis on ensuring that
children with disabilities are educated,
to the maximum extent appropriate,
with children who are nondisabled and
are included in nonacademic and
extracurricular services and activities as
appropriate to the needs of the child.
We believe the public agency has an
obligation to provide a child with a
disability with appropriate aids,
services, and other supports, as
determined by the IEP Team, if
necessary to ensure the child’s
participation in nonacademic and
extracurricular services and activities. Therefore, we will clarify in §300.117
that each public agency must ensure
that children with disabilities have the
supplementary aids and services
determined necessary by the child’s IEP
Team for the child to participate in
nonacademic and extracurricular
services and activities to the maximum
extent appropriate to the needs of that
child.
Changes: We have added language to
§300.117 to ensure that children with
disabilities receive the supplementary
aids and services needed to participate
in nonacademic and extracurricular
services and activities.
Technical Assistance and Training
Activities (§300.119)
Comment: One commenter requested
that the regulations define ‘‘training.’’
Discussion: The Department intends
the term ‘‘training,’’ as used in
§300.119, to have its generally accepted
meaning. Training is generally agreed to
be any activity used to enhance one’s
skill or knowledge to acquire, maintain,
and advance knowledge, skills, and
abilities. Given the general
understanding of the term ‘‘training,’’
we do not believe it is necessary to
regulate on this matter.
Changes: None.
Children in Private Schools
Children With Disabilities Enrolled by
Their Parents in Private Schools
General Comments
Comment: Many comments were
received regarding the parentally-placed
private school children with disabilities
requirements in §§300.130 through
300.144. Many commenters supported
the changes to the regulations and
believed the regulations simplify the
processes for both private schools and
public schools. Numerous commenters,
however, expressed concern regarding
the implementation of the private
school requirements.
Many of the commenters expressed
concern with the requirement that the
LEAs where private elementary schools
and secondary schools are located are
now responsible for child find,
individual evaluations, and the
provision of services for children with
disabilities enrolled by their parents in
private schools located in the LEA.
These commenters described the private
school provisions in the Act and the
NPRM as burdensome and difficult to
understand.
Discussion: The revisions to the Act
in 2004 significantly changed the
obligation of States and LEAs to
children with disabilities enrolled by
their parents in private elementary
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schools and secondary schools. Section
612(a)(10)(A) of the Act now requires
LEAs in which the private schools are
located, rather than the LEAs in which
the parents of such children reside, to
conduct child find and provide
equitable services to parentally-placed
private school children with disabilities.
The Act provides that, in calculating
the proportionate amount of Federal
funds under Part B of the Act that must
be spent on parentally-placed private
school children with disabilities, the
LEAs where the private schools are
located, after timely and meaningful
consultation with representatives of
private elementary schools and
secondary schools and representatives
of parents of parentally-placed private
school children with disabilities, must
conduct a thorough and complete child
find process to determine the number of
parentally-placed children with
disabilities attending private elementary
schools and secondary schools located
in the LEAs. In addition, the obligation
of the LEA to spend a proportionate
amount of funds to provide services to
children with disabilities enrolled by
their parents in private schools is now
based on the total number of children
with disabilities who are enrolled in
private schools located in the LEA
whether or not the children and their
parents reside in the LEA.
We believe these regulations and the
additional clarification provided in our
responses to comments on §§300.130
through 300.144 will help States and
LEAs to better understand their
obligations in serving children with
disabilities placed by their parents in
private elementary schools and
secondary schools. In addition, the
Department has provided additional
guidance on implementing the
parentally-placed private school
requirements on the Department’s Web
site. We also are including in these
regulations Appendix B to Part 300—
Proportionate Share Calculation to
assist LEAs in calculating the
proportionate amount of Part B funds
that they must expend on parentally-
placed private school children with
disabilities attending private elementary
schools and secondary schools located
in the LEA.
Changes: We have added a reference
to Appendix B in §300.133(b).
Comment: Several commenters
expressed concern that §§300.130
through 300.144 include requirements
that go beyond the Act and
recommended that any requirement
beyond what is statutory be removed
from these regulations.
Discussion: In general, the regulations
track the language in section 612(a)(10)(A) of the Act regarding
children enrolled in private schools by
their parents. However, we determined
that including clarification of the
statutory language on parentally-placed
private school children with disabilities
in these regulations would be helpful.
The volume of comments received
concerning this topic confirm the need
to regulate in order to clarify the
statutory language and to help ensure
compliance with the requirements of the
Act.
Changes: None.
Comment: Some commenters
requested that the regulations provide
flexibility to States to provide services
to parentally-placed private school
children with disabilities beyond what
they would be able to do with the
proportionate share required under the
Act. A few of these commenters
requested that those States already
providing an individual entitlement to
special education and related services or
providing a full range of special
education services to parentally-placed
private school children be deemed to
have met the requirements in §§300.130
through 300.144 and be permitted to
continue the State’s current practices.
One commenter specifically
recommended allowing States that
provide additional rights or services to
parentally-placed private school
children with disabilities (including
FAPE under section 612 of the Act and
the procedural safeguards under section
615 of the Act), the option of requesting
that the Secretary consider alternate
compliance with these requirements
that would include evidence and
supporting documentation of alternate
procedures under State law to meet all
the requirements in §§300.130 through
300.144.
A few commenters requested that the
child find and equitable participation
requirements should not apply in States
with dual enrollment provisions where
children with disabilities who are
parentally-placed in private elementary
schools or secondary schools are also
enrolled in public schools for special
education and have IEPs and retain their
due process rights.
Discussion: The Act in no way
prohibits States or LEAs from spending
additional State or local funds to
provide special education or related
services for parentally-placed private
school children with disabilities in
excess of those required in §300.133
and section 612(a)(10)(A) of the Act,
consistent with State law or
administrative procedures. The Act,
however, does not provide the Secretary
with the authority to waive, in whole or
in part, the parentally-placed private school requirements in §§300.130
through 300.144 for States or LEAs that
spend State or local funds to provide
special education or related services
beyond those required under Part B of
the Act. The Secretary, therefore, cannot
consider alternative compliance with
the parentally-placed private school
provisions in the Act and these
regulations or consider States and LEAs
that use State and local funds to provide
services to parentally-placed private
school children with disabilities beyond
the required proportionate share of
Federal Part B funds, including
providing FAPE to such children, to
have met the statutory and regulatory
requirements governing parentally-
placed private school children with
disabilities. States and LEAs must meet
the requirements in the Act and these
regulations.
With regard to the comment
requesting that the child find and
equitable participation requirements for
parentally-placed private school
children with disabilities not apply in
States with dual enrollment, there is no
exception in the Act to the child find
and equitable participation
requirements of section 612(a)(10)(A) for
States that permit dual enrollment of a
child at a parent’s discretion. Therefore,
there is no basis to regulate to provide
such an exception. It would be a matter
of State or local discretion to decide
whether to have a dual enrollment
policy and, if established, how it would
be implemented. Whether dual
enrollment alters the rights of
parentally-placed private school
children with disabilities under State
law is a State matter. There is nothing,
however, in Part B of the Act that would
prohibit a State from requiring dual
enrollment as a condition for a
parentally-placed private school child
with a disability to be eligible for
services from a public agency. As long
as States and LEAs meet the
requirements in §§300.130 through
300.144, the local policy covering
enrollment is a matter of State and local
discretion.
Changes: None.
Comment: Several commenters
expressed concern regarding the
applicability of the child find and
equitable participation requirements in
§§300.130 through 300.144 for children
with disabilities who reside in one State
and are enrolled by their parents in
private elementary schools or secondary
schools located in another State. These
commenters recommended that the
regulations clarify whether the LEA in
the State where the private elementary
school or secondary school is located or
the LEA in the State where the child
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resides is responsible for conducting
child find (including individual
evaluations and reevaluations), and
providing and paying for equitable
services for children who are enrolled
by their parents in private elementary
schools or secondary schools.
Discussion: Section 612(a)(10)(A)(i)(II)
of the Act provides that the LEA where
the private elementary schools and
secondary schools are located, after
timely and meaningful consultation
with private school representatives, is
responsible for conducting the child
find process to determine the number of
parentally-placed children with
disabilities attending private schools
located in the LEA. We believe this
responsibility includes child find for
children who reside in other States but
who attend private elementary schools
and secondary schools located in the
LEA, because section 612(a)(10)(A)(i)(II)
of the Act is clear about which LEA is
responsible for child find and the Act
does not provide an exception for
children who reside in one State and
attend private elementary schools and
secondary schools in other States.
Under section 612(a)(10)(A)(i) of the
Act, the LEA where the private
elementary schools and secondary
schools are located, in consultation with
private school officials and
representatives of parents of parentally-
placed private school children with
disabilities, also is responsible for
determining and paying for the services
to be provided to parentally-placed
private school children with disabilities.
We believe this responsibility extends to
children from other States who are
enrolled in a private school located in
the LEA, because section
612(a)(10)(A)(i) of the Act clarifies that
the LEA where the private schools are
located is responsible for spending a
proportionate amount of its Federal Part
B funds on special education and
related services for children enrolled by
their parents in the private schools
located in the LEA. The Act does not
provide an exception for out-of-State
children with disabilities attending a
private school located in the LEA and,
therefore, out-of-State children with
disabilities must be included in the
group of parentally-placed children
with disabilities whose needs are
considered in determining which
parentally-placed private school
children with disabilities will be served
and the types and amounts of services
to be provided.
Changes: We have added a new
paragraph (f) to §300.131 clarifying that
each LEA where private, including
religious, elementary schools and
secondary schools are located must, in carrying out the child find requirements
in this section, include parentally-
placed private school children who
reside in the State other than where the
private schools they attend are located.
Comment: A few commenters
recommended the regulations clarify the
LEA’s obligation under §§300.130
through 300.144 regarding child find
and equitable participation for children
from other countries enrolled in private
elementary schools and secondary
schools by their parents.
Discussion: The obligation to consider
children with disabilities for equitable
services extends to all children with
disabilities in the State who are enrolled
by their parents in private schools
within each LEA’s jurisdiction.
Changes: None.
Comment: Several commenters
recommended the regulations clarify the
applicability of the child find and
equitable participation requirements in
§§300.130 through 300.144 for children
with disabilities, aged three through
five, enrolled by their parents in private
preschools or day care programs. Many
commenters recommended the
regulations clarify that preschool
children with disabilities should be
counted in determining the
proportionate share of funds available to
serve children enrolled in private
elementary schools by their parents.
Discussion: If a private preschool or
day care program is considered an
elementary school, as defined in
§300.13, the child find and equitable
services participation requirements in
§§300.130 through 300.144, consistent
with section 612(a)(10) of the Act, apply
to children with disabilities aged three
through five enrolled by their parents in
such programs. Section 300.13,
consistent with section 602(6) of the
Act, defines an elementary school as a
nonprofit institutional day or residential
school, including a public elementary
charter school, which provides
elementary education, as determined
under State law. We believe it is
important to clarify in the regulations
that children aged three through five are
considered parentally-placed private
school children with disabilities
enrolled in private elementary schools
only if they are enrolled in private
schools that meet the definition of
elementary school in §300.13.
Changes: We have added a new
§300.133(a)(2)(ii) to clarify that children
aged three through five are considered
to be parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets the definition of elementary school in
§300.13.
Definition of Parentally-Placed Private
School Children With Disabilities
(§300.130)
Comment: A few commenters
recommended removing ‘‘or facilities’’
from the definition of parentally-placed
private school children because it is not
defined in the Act or the regulations.
Another commenter recommended
including a definition of ‘‘facilities.’’
Discussion: Under section
612(a)(10)(A) of the Act, the obligation
to conduct child find and provide
equitable services extends to children
who are enrolled by their parents in
private elementary schools and
secondary schools. This obligation also
applies to children who have been
enrolled by their parents in private
facilities if those facilities are
elementary schools or secondary
schools, as defined in subpart A of the
regulations. Because facilities that meet
the definition of elementary school or
secondary school are covered under this
section, we believe it is important to
retain the reference to facilities in these
regulations. We will, however, revise
§300.130 to clarify that children with
disabilities who are enrolled by their
parents in facilities that meet the
definition of elementary school in
§300.13 or secondary school in new
§300.36 (proposed §300.35) would be
considered parentally-placed private
school children with disabilities.
Changes: Section 300.130 has been
revised to clarify that parentally-placed
private school children with disabilities
means children with disabilities
enrolled by their parents in private,
including religious, schools or facilities
that meet the definition of an
elementary school in §300.13 or
secondary school in §300.36.
Child Find for Parentally-Placed Private
School Children With Disabilities
(§300.131)
Comment: A few commenters
recommended permitting the LEA
where private schools are located to
request reimbursement from the LEA
where the child resides for the cost of
conducting an individual evaluation, as
may be required under the child find
requirements in §300.131.
One commenter recommended that
the LEA where private schools are
located be responsible for locating and
identifying children with disabilities
enrolled by their parents in private
schools and the LEA where the children
reside be responsible for conducting
individual evaluations.
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46592 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Discussion: Section 300.131,
consistent with section 612(a)(10)(A)(i)
of the Act, requires that the LEA where
private elementary schools and
secondary schools in which the child is
enrolled are located, not the LEA where
the child resides, is responsible for
conducting child find, including an
individual evaluation for a child with a
disability enrolled by the child’s parent
in a private elementary school or
secondary school located in the LEA.
The Act specifies that the LEA where
the private schools are located is
responsible for conducting both the
child find process and the initial
evaluation. Therefore, the LEA where
private schools are located may not seek
reimbursement from the LEA of
residence for the cost of conducting the
evaluation or to request that the LEA of
residence conduct the evaluation.
However, the LEA where the private
elementary school or secondary school
is located has options as to how it meets
its responsibilities. For example, the
LEA may assume the responsibility
itself, contract with another public
agency (including the public agency of
residence), or make other arrangements.
Changes: None.
Comment: One commenter
recommended permitting a parent who
enrolled a child in a private elementary
school or secondary school the option of
not participating in child find required
under §300.131.
Discussion: New §300.300(e)(4)
clarifies that parents who enroll their
children in private elementary schools
and secondary schools have the option
of not participating in an LEA’s child
find activities required under §300.131.
As noted in the Analysis of Comments
and Changes section for subpart D, once
parents opt out of the public schools,
States and school districts do not have
the same interest in requiring parents to
agree to the evaluation of their children
as they do for children enrolled in
public schools, in light of the public
agencies’ obligation to educate public
school children with disabilities. We
further indicate in the discussion of
subpart D that we have added new
§300.300(e)(4) (proposed §300.300(d))
to clarify that if the parent of a child
who is home schooled or placed in a
private school by the child’s parent at
the parent’s own expense does not
provide consent for an initial evaluation
or reevaluation, the public agency may
not use the due process procedures in
section 615 of the Act and the public
agency is not required to consider the
child for equitable services.
Changes: None.
Comment: Several commenters
recommended permitting amounts expended for child find, including
individual evaluations, to be deducted
from the required amount of funds to be
expended on equitable services for
parentally-placed private school
children with disabilities.
Discussion: The requested changes
would be inconsistent with the Act.
There is a distinction under the Act
between the obligation to conduct child
find activities, including individual
evaluations, for parentally-placed
private school children with disabilities,
and the obligation to use an amount of
funds equal to a proportionate amount
of the Federal Part B grant flowing to
LEAs to provide special education and
related services to parentally-placed
private school children with disabilities.
The obligation to conduct child find for
parentally-placed private school
children, including individual
evaluations, is independent of the
services provision. Further,
§300.131(d), consistent with section
612(a)(10)(A)(ii)(IV) of the Act, clarifies
that the costs of child find activities for
parentally-placed private school
children, including individual
evaluations, may not be considered in
determining whether the LEA has spent
an appropriate amount on providing
special education and related services to
parentally-placed private school
children with disabilities.
Changes: None.
Comment: One commenter requested
clarifying whether an LEA may exclude
children suspected of having certain
disabilities, such as those with specific
learning disabilities, in conducting
individual evaluations of suspected
children with disabilities enrolled in
private schools by their parents.
Discussion: The LEA where the
private elementary schools and
secondary schools are located must
identify and evaluate all children
suspected of having disabilities as
defined under section 602(3) of the Act.
LEAs may not exclude children
suspected of having certain disabilities,
such as those with specific learning
disabilities, from their child find
activities. The Department recommends
that LEAs and private elementary
schools and secondary schools consult
on how best to implement the State’s
evaluation criteria and the requirements
under this part for identifying children
with specific learning disabilities
enrolled in private schools by their
parents. This is explained in more detail
in the discussion of comments under
§300.307.
Changes: None.
Comment: A few commenters
expressed concern that parents who
place their children in private elementary schools and secondary
schools outside the district of residence,
and who are determined by the LEA
where the private schools are located,
through its child find process, to be
children with disabilities eligible for
special education and related services,
would have no knowledge of the special
education and related services available
for their children if they choose to
attend a public school in their district
of residence. A few commenters
suggested clarifying the obligation of the
LEA where the private school is located
to provide the district of residence the
results of an evaluation and eligibility
determination of the parentally-placed
private school child.
A few commenters recommended that
the parent of a child with a disability
identified through the child find process
in §300.131 be provided with
information regarding an appropriate
educational program for the child.
Discussion: The Act is silent on the
obligation of officials of the LEA where
private elementary schools and
secondary schools are located to share
personally identifiable information,
such as individual evaluation
information, with officials of the LEA of
the parent’s residence. We believe that
the LEA where the private schools are
located has an obligation to protect the
privacy of children placed in private
schools by their parents. We believe that
when a parentally-placed private school
child is evaluated and identified as a
child with a disability by the LEA in
which the private school is located,
parental consent should be required
before such personally identifiable
information is released to officials of the
LEA of the parent’s residence.
Therefore, we are adding a new
paragraph (b)(3) to §300.622 to make
this clear. We explain this revision in
more detail in the discussion of
comments under §300.622.
We believe the regulations adequately
ensure that parents of children enrolled
in private schools by their parents, who
are identified as children with
disabilities through the child find
process, receive information regarding
an appropriate educational program for
their children. Section 300.138(b)
provides that each parentally-placed
private school child with a disability
who has been designated to receive
equitable services must have a services
plan that describes the specific
education and related services that the
LEA where the private school is located
has determined it will make available to
the child and the services plan must, to
the extent appropriate, meet the IEP
content, development, review and
revision requirements described in
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section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
Furthermore, the LEA where the
private school is located must, pursuant
to §300.504(a) and section 615(d) of the
Act, provide the parent a copy of the
procedural safeguards notice upon
conducting the initial evaluation.
Changes: We have added a new
paragraph (b)(3) to §300.622 to require
parental consent for the disclosure of
records of parentally-placed private
school children between LEAs.
Comment: A few commenters stated
that §300.131 does not address which
LEA has the responsibility for
reevaluations.
Discussion: The LEA where the
private schools are located is
responsible for conducting
reevaluations of children with
disabilities enrolled by their parents in
private elementary schools and
secondary schools located within the
LEA. Reevaluation is a part of the LEA’s
child find responsibility for parentally-
placed private school children under
section 612(a)(10)(A) of the Act.
Changes: None.
Comment: One commenter expressed
concern that the regulations permit a
parent to request an evaluation from the
LEA of residence at the same time the
child is being evaluated by the LEA
where the private elementary school or
secondary school is located, resulting in
two LEAs simultaneously conducting
evaluations of the same child.
Discussion: We recognize that there
could be times when parents request
that their parentally-placed child be
evaluated by different LEAs if the child
is attending a private school that is not
in the LEA in which they reside. For
example, because most States generally
allocate the responsibility for making
FAPE available to the LEA in which the
child’s parents reside, and that could be
a different LEA from the LEA in which
the child’s private school is located,
parents could ask two different LEAs to
evaluate their child for different
purposes at the same time. Although
there is nothing in this part that would
prohibit parents from requesting that
their child be evaluated by the LEA
responsible for FAPE for purposes of
having a program of FAPE made
available to the child at the same time
that the parents have requested that the
LEA where the private school is located
evaluate their child for purposes of
considering the child for equitable
services, we do not encourage this
practice. We note that new
§300.622(b)(4) requires parental consent for the release of information about
parentally-placed private school
children between LEAs; therefore, as a
practical matter, one LEA may not know
that a parent also requested an
evaluation from another LEA. However,
we do not believe that the child’s best
interests would be well-served if the
parents requested evaluations of their
child by the resident school district and
the LEA where the private school is
located, even though these evaluations
are conducted for different purposes. A
practice of subjecting a child to repeated
testing by separate LEAs in close
proximity of time may not be the most
effective or desirable way of ensuring
that the evaluation is a meaningful
measure of whether a child has a
disability or of providing an appropriate
assessment of the child’s educational
needs.
Changes: None.
Comment: Some commenters
requested the regulations clarify which
LEA (the LEA of residence or the LEA
where the private elementary schools or
secondary schools are located) is
responsible for offering FAPE to
children identified through child find
under §300.131 so that parents can
make an informed decision regarding
their children’s education.
Discussion: If a determination is made
by the LEA where the private school is
located that a child needs special
education and related services, the LEA
where the child resides is responsible
for making FAPE available to the child.
If the parent makes clear his or her
intention to keep the child enrolled in
the private elementary school or
secondary school located in another
LEA, the LEA where the child resides
need not make FAPE available to the
child. We do not believe that a change
to the regulations is necessary, as
§300.201 already clarifies that the
district of residence is responsible for
making FAPE available to the child.
Accordingly, the district in which the
private elementary or secondary school
is located is not responsible for making
FAPE available to a child residing in
another district.
Changes: None.
Comment: One commenter requested
clarification of the term ‘‘activities
similar’’ in §300.131(c). Another
commenter recommended clarifying
that these activities include, but are not
limited to, activities relating to
evaluations and reevaluations. One
commenter requested that children with
disabilities parentally-placed in private
schools be identified and evaluated as
quickly as possible.
Discussion: Section 300.131(c),
consistent with section 612(a)(10)(A)(ii)(III) of the Act, requires
that, in carrying out child find for
parentally-placed private school
children, SEAs and LEAs must
undertake activities similar to those
activities undertaken for their publicly
enrolled or publicly-placed children.
This would generally include, but is not
limited to, such activities as widely
distributing informational brochures,
providing regular public service
announcements, staffing exhibits at
health fairs and other community
activities, and creating direct liaisons
with private schools. Activities for child
find must be completed in a time period
comparable to those activities for public
school children. This means that LEAs
must conduct child find activities,
including individual evaluations, for
parentally-placed private school
children within a reasonable period of
time and without undue delay, and may
not wait until after child find for public
school children is conducted. In
addition, evaluations of all children
suspected of having disabilities under
Part B of the Act, regardless of whether
they are enrolled by their parents in
private elementary schools or secondary
schools, must be conducted in
accordance with the requirements in
§§300.300 through 300.311, consistent
with section 614(a) through (c) of the
Act, which describes the procedures for
evaluations and reevaluations for all
children with disabilities. We believe
the phrase ‘‘activities similar’’ is
understood by SEAs and LEAs and,
therefore, it is not necessary to regulate
on the meaning of the phrase.
Changes: None.
Provision of Services for Parentally-
Placed Private School Children With
Disabilities—Basic Requirement
(§300.132)
Comment: Several commenters
expressed confusion regarding which
LEA is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child, the
district of the child’s residence or the
LEA where the private school is located.
Discussion: We believe §300.133,
consistent with section 612(a)(10)(A) of
the Act, is sufficiently clear that the
LEA where the private elementary
schools and secondary schools are
located is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child. These
provisions provide that the LEA where
the private elementary and secondary
schools are located must spend a
proportionate amount of its Federal
funds available under Part B of the Act
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46594 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
for services for children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools located in the LEA. The Act
does not permit an exception to this
requirement. No further clarification is
needed.
Changes: None.
Comment: One commenter
recommended the regulations clarify
which LEA in the State is responsible
for providing equitable services to
parentally-placed private school
children with disabilities who attend a
private school that straddles two LEAs
in the State.
Discussion: The Act does not address
situations where a private school
straddles more than one LEA. However,
the Act does specify that the LEA in
which the private school is located is
responsible for providing special
education to children with disabilities
placed in private schools by their
parents, consistent with the number of
such children and their needs. In
situations where more than one LEA
potentially could assume the
responsibility of providing equitable
services, the SEA, consistent with its
general supervisory responsibility,
determines which LEA in the State is
responsible for ensuring the equitable
participation of children with
disabilities attending that private
school. We do not believe that the
situation is common enough to warrant
a change in the regulations.
Changes: None.
Comment: A few commenters
recommended revising the heading for
§300.132(b) to clarify that LEAs, not
SEAs, are responsible for developing
service plans.
Discussion: We agree with the
commenters that the heading for
§300.132(b) should be changed to
accurately reflect the requirement and to
avoid confusion.
Changes: We have revised the heading
for §300.132(b) by removing the
reference to SEA responsibility.
Comment: One commenter requested
requiring in §300.132(c) that data on
parentally-placed private school
children with disabilities be submitted
to the Department. Another commenter
agreed, stating that the data should be
submitted the same day as the annual
child count.
Discussion: The purpose of the child
count under §300.132(c) is to determine
the amount of Federal funds that the
LEA must spend on providing special
education and related services to
parentally-placed private school
children with disabilities in the next
fiscal year. We are not requiring States
to submit these data to the Department as the Department does not have a
programmatic or regulatory need to
collect this information at this time.
Section 300.644 permits the SEA to
include in its annual report of children
served those parentally-placed private
school children who are eligible under
the Act and receive special education or
related services. We believe this is
sufficient to meet the Department’s need
to collect data on this group of children
and we do not wish to place an
unnecessary data collection and
paperwork burden on States.
Changes: None.
Expenditures (§300.133)
Comment: One commenter requested
the regulations clarify whether an LEA
must spend its entire proportionate
share for parentally-placed private
school children with disabilities by the
end of a fiscal year or could carry over
any remaining funds into the next fiscal
year.
Discussion: We agree with the
commenter that a provision should be
included in these regulations to clarify
that, if an LEA has not expended for
equitable services all of the
proportionate amount of Federal funds
to be provided for parentally-placed
private school children with disabilities
by the end of the fiscal year for which
Congress appropriated the funds, the
LEA must obligate the remaining funds
for special education and related
services (including direct services) to
parentally-placed private school
children with disabilities during a carry-
over period of one additional year.
Changes: A new paragraph (a)(3) has
been added to §300.133 to address the
carry over of funds not expended by the
end of the fiscal year.
Comment: None.
Discussion: It has come to our
attention that there is some confusion
among States and LEAs between the
count of the number of children with
disabilities receiving special education
and related services as required under
section 618 of the Act, and the
requirement under section
612(a)(10)(A)(i)(II) of the Act that each
LEA conduct an annual count of the
number of parentally-placed private
school children with disabilities
attending private schools in the LEA.
We will, therefore, revise the heading
(child count) for §300.133(c) and the
regulatory language in §300.133(c) to
avoid any confusion regarding the
requirements in paragraph (c).
Changes: Section 300.133(c) has been
revised as described above.
Comment: One commenter
interpreted §300.133(d) to require that:
(1) LEAs provide services to parentally- placed private school children with
disabilities with funds provided under
the Act and (2) LEAs no longer have the
option of using local funds equal to, and
in lieu of, the Federal pro-rated share
amount. This commenter recommended
that LEAs continue to be allowed to use
local funds for administrative
convenience.
Discussion: The commenter’s
interpretation is correct. The Act added
the supplement, not supplant
requirement in section
612(a)(10)(A)(i)(IV), which is included
in §300.133(d). This requirement
provides that State and local funds may
supplement, but in no case supplant the
proportionate amount of the Federal
Part B funds that must be expended
under this provision. Prior to the change
in the Act, if a State was spending more
than the Federal proportional share of
funds from State or local funds, then the
State would not have to spend any
Federal Part B funds. That is no longer
permissible under the Act.
Changes: None.
Comment: A few commenters
requested revising §300.133 to include
home-schooled children with
disabilities in the same category as
parentally-placed private school
children with disabilities.
Discussion: Whether home-schooled
children with disabilities are considered
parentally-placed private school
children with disabilities is a matter left
to State law. Children with disabilities
in home schools or home day cares must
be treated in the same way as other
parentally-placed private school
children with disabilities for purposes
of Part B of the Act only if the State
recognizes home schools or home day
cares as private elementary schools or
secondary schools.
Changes: None.
Consultation (§300.134)
Comment: Some commenters
recommended requiring, in §300.134(e),
that the LEA include, in its written
explanation to the private school, its
reason whenever: (1) The LEA does not
provide services by a professional
directly employed by that LEA to
parentally-placed private school
children with a disability when
requested to do so by private school
officials; and (2) the LEA does not
provide services through a third party
provider when requested to do so by the
private school officials.
Discussion: Section 300.134(e)
incorporates the language from section
612(a)(10)(A)(iii)(V) of the Act and
requires the LEA to provide private
school officials with a written
explanation of the reasons why the LEA
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chose not to provide services directly or
through contract. We do not believe that
the additional language suggested by the
commenter is necessary because we
view the statutory language as sufficient
to ensure that the LEA meets its
obligation to provide private school
officials a written explanation of any
reason why the LEA chose not to
provide services directly or through a
contract.
Changes: None.
Written Affirmation (§300.135)
Comment: Several commenters
recommended requiring LEAs to
forward the written affirmation to the
SEA, because this information is
important for the SEA to exercise
adequate oversight over LEAs with
respect to the participation of private
school officials in the consultation
process.
Discussion: Section 300.135,
regarding written affirmation, tracks the
language in section 612(a)(10)(A)(iv) of
the Act. Including a requirement in the
regulations that the LEA must submit a
copy of signed written affirmations to
the SEA would place reporting burdens
on the LEA that are not required by the
Act and that we do not believe are
warranted in this circumstance. We
expect that in most circumstances
private school officials and LEAs will
have cooperative relationships that will
not need State involvement. If private
school officials believe that there was
not meaningful consultation, they may
raise that issue with the SEA through
the procedures in §300.136. However,
there is nothing in the Act or these
regulations that would preclude a State
from requiring LEAs to submit a copy of
the written affirmation obtained
pursuant to §300.135, in meeting its
general supervision responsibilities
under §300.149 or as a part of its
monitoring of LEAs’ implementation of
Part B of the Act as required in
§300.600. Consistent with
§300.199(a)(2) and section 608(a)(2) of
the Act, a State that chooses to require
its LEAs to submit copies of written
affirmations to the SEA beyond what is
required in §300.135 would have to
identify, in writing, to the LEAs located
in the State and to the Secretary, that
such rule, regulation, or policy is a
State-imposed requirement that is not
required by Part B of the Act or these
regulations.
Changes: None.
Compliance (§300.136)
Comment: One commenter
recommended revising §300.136 to
permit an LEA to submit a complaint to
the State if private school officials do not engage in meaningful consultation
with the LEA.
Discussion: Section 300.136,
consistent with section 612(a)(10)(A)(v)
of the Act, provides that a private school
official has the right to complain to the
SEA that the LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school official. The provisions in the
Act and the regulations apply to the
responsibilities of the SEA and its LEAs
and not to private schools or entities.
Because the requirements of the Act do
not apply to private schools, we do not
believe requiring SEAs to permit an LEA
to submit a complaint to the SEA
alleging that representatives of the
private schools did not consult in a
meaningful way with the LEA would
serve a meaningful purpose. The
equitable services made available under
Part B of the Act are a benefit to the
parentally-placed private school
children and not services provided to
the private schools.
Changes: None.
Comment: Several commenters
recommended revising §300.136 to
allow States to determine the most
appropriate procedures for a private
school official to submit a complaint to
the SEA that an LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school officials. Many of these
commenters stated that requiring such
complaints be filed pursuant to the State
complaint procedures in §§300.151
through 300.153 is not required by the
Act and recommended we remove this
requirement.
Discussion: We agree with the
commenters that section
612(a)(10)(A)(v) of the Act does not
stipulate how a private school official
must submit a complaint to the SEA that
the LEA did not engage in consultation
that was meaningful and timely, or did
not give due consideration to the views
of the private school official. We also
agree with the commenters that the SEA
should have flexibility to determine
how such complaints will be filed with
the State. We will, therefore, revise
§300.136(a) to remove the requirement
that private school officials must file a
complaint with the SEA under the State
complaint procedures in §§300.151
through 300.153. States may, if they so
choose, use their State complaint
procedures under §§300.151 through
300.153 as the means for a private
school to file a complaint under
§300.136.
Changes: Section 300.136 has been
revised to remove the requirement that a private school official submit a
complaint to the SEA using the
procedures in §§300.151 through
300.153.
Equitable Services Determined
(§300.137)
Comment: One commenter
recommended removing §300.137(a),
stating it is discriminatory and that
parentally-placed private school
children must receive the same amount
of services as children with disabilities
in public schools.
Discussion: Section 300.137(a) reflects
the Department’s longstanding policy,
consistent with section 612(a)(10) of the
Act, and explicitly provides that
children with disabilities enrolled in
private schools by their parents have no
individual entitlement to receive some
or all of the special education and
related services they would receive if
enrolled in the public schools. Under
the Act, LEAs only have an obligation
to provide parentally-placed private
school children with disabilities an
opportunity for equitable participation
in the services funded with Federal Part
B funds that the LEA has determined,
after consultation, to make available to
its population of parentally-placed
private school children with disabilities.
LEAs are not required to spend more
than the proportionate Federal share on
those services.
Changes: None.
Equitable Services Provided (§300.138)
Comment: Several commenters
requested clarifying whether the
requirement in §300.138(a) that services
provided to parentally-placed private
school children with disabilities be
provided by personnel meeting the same
standards (i.e., highly qualified teacher
requirements) as personnel providing
services in the public schools applies to
private school teachers who are
contracted by the LEA to provide
equitable services.
Discussion: As discussed in the
Analysis of Comments and Changes
section, in the response to comments on
§300.18, it is the Department’s position
that the highly qualified special
education teacher requirements do not
apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. Further, it is the
Department’s position that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities.
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In addition to the revision we are
making to new §300.18(h) (proposed
§300.18(g)) to make this position clear,
we also will revise §300.138(a)(1) to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements.
Changes: We have revised
§300.138(a)(1) as indicated.
Comment: A few commenters
requested clarifying the process for
developing a services plan and
explaining how a services plan differs
from an IEP.
Discussion: We do not believe that
additional explanation in the regulation
is needed. Under §300.138(b), each
parentally-placed private school child
with a disability who has been
designated by the LEA in which the
private school is located to receive
special education or related services
must have a services plan. The services
plan must describe the specific special
education and related services offered to
a parentally-placed private school child
with a disability designated to receive
services. The services plan also must, to
the extent appropriate, meet the IEP
content, development, review, and
revision requirements described in
section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
The LEA must ensure that a
representative of the private school
attends each meeting to develop the
services plan and if the representative
cannot attend, use other methods to
ensure participation by the private
school, including individual or
conference telephone calls.
Children with disabilities enrolled in
public schools or who are publicly-
placed in private schools are entitled to
FAPE and must receive the full range of
services under Part B of the Act that are
determined by the child’s IEP Team to
be necessary to meet the child’s
individual needs and provide FAPE.
The IEPs for these children generally
will be more comprehensive than the
more limited services plans developed
for parentally-placed private school
children with disabilities designated to
receive services.
Changes: None.
Comment: A few commenters
recommended revising the definition of
services plan to clarify that an IEP could
serve as the services plan; otherwise,
States that provide IEP services to
parentally-placed private school children with disabilities would be
required to develop a services plan and
an IEP.
Discussion: We do not believe it is
appropriate to clarify in the regulations
that the IEP can serve as the services
plan because, as stated elsewhere in this
preamble, a services plan should only
describe the specific special education
and related services offered to a
parentally-placed private school child
with a disability designated to receive
services. We believe that using an IEP in
lieu of a services plan for these children
may not be appropriate in light of the
fact that an IEP developed pursuant to
section 614(d) of the Act will generally
include much more than just those
services that a parentally-placed private
school child with a disability may
receive, if designated to receive services.
There is nothing, however, in these
regulations that would prevent a State
that provides more services to
parentally-placed private school
children with disabilities than they are
required to do under the Act to use an
IEP in place of a services plan,
consistent with State law.
Changes: None.
Location of Services and Transportation
(§300.139)
Comment: A few commenters asked
for clarification as to how the location
where services will be provided to
parentally-placed private school
children with disabilities is determined.
Discussion: Under §300.134(d), how,
where, and by whom special education
and related services are provided to
parentally-placed private school
children with disabilities are subjects of
the process of consultation among LEA
officials, private school representatives,
and representatives of parents of
parentally-placed private school
children with disabilities. Further,
§300.137(b)(2) clarifies that, after this
consultation process, the final decision
with respect to the services provided to
eligible parentally-placed private school
children with disabilities is made by the
LEA.
Changes: None.
Comment: Some commenters
recommended specifying that providing
services on the premises of private
elementary schools and secondary
schools is the preferred means of
serving parentally-placed private school
children with disabilities. A few
commenters recommended revising
§300.139(a) to stipulate that services
‘‘should’’ or ‘‘must’’ be provided on the
premises of private schools, unless there
is a compelling rationale for these
services to be provided off-site. In
contrast, several commenters objected to the statement in the preamble to the
NPRM that services should be provided
on-site unless there is a compelling
rationale to provide services off-site. A
few of these commenters stated that the
Act does not indicate a preference for
one location of services over another
and the Department has no authority to
provide such a strong comment on this
issue.
Discussion: Services offered to
parentally-placed private school
children with disabilities may be
provided on-site at a child’s private
school, including a religious school, to
the extent consistent with law, or at
another location. The Department
believes, in the interests of the child,
LEAs should provide services on site at
the child’s private school so as not to
unduly disrupt the child’s educational
experience, unless there is a compelling
rationale for these services to be
provided off-site. The phrase ‘‘to the
extent consistent with law’’ is in section
612(a)(10)(A)(i)(III) of the Act. We
interpret this language to mean that the
provision of services on the premises of
a private school takes place in a manner
that would not violate the Establishment
Clause of the First Amendment to the
U.S. Constitution and would not be
inconsistent with applicable State
constitutions or law. We, therefore, do
not have the statutory authority to
require that services be provided on-
site.
Changes: None.
Comment: A few commenters
expressed concern that §300.139(b),
regarding transportation services, goes
beyond the requirements in the Act and
should be removed. A few commenters
stated that transportation is a related
service and should be treated as such
with respect to parentally-placed
children with disabilities in private
schools.
Discussion: We do not agree that
transportation services should be
removed from §300.139(b). If services
are offered at a site separate from the
child’s private school, transportation
may be necessary to get the child to and
from that other site. Failure to provide
transportation could effectively deny
the child an opportunity to benefit from
the services that the LEA has
determined through consultation to
offer its parentally-placed private school
children with disabilities. In this
situation, although transportation is not
a related service, as defined in §300.34,
transportation is necessary to enable the
child to participate and to make the
offered services accessible to the child.
LEAs should work in consultation with
representatives of private school
children to ensure that services are
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provided at sites, including on the
premises of the child’s private school,
so that LEAs do not incur significant
transportation costs.
However, for some children with
disabilities, special modifications in
transportation may be necessary to
address the child’s unique needs. If the
group developing the child’s services
plan determines that a parentally-placed
private school child with a disability
chosen to receive services requires
transportation as a related service in
order to receive special education
services, this transportation service
should be included as a related service
in the services plan for the child.
In either case, the LEA may include
the cost of the transportation in
calculating whether it has met the
requirement of §300.133.
Changes: None.
Due Process Complaints and State
Complaints (§300.140)
Comment: Several commenters
expressed concern that the right of
parents of children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools to file a due process complaint
against an LEA is limited to filing a due
process complaint that an LEA has
failed to comply with the child find and
evaluation requirements, and not an
LEA’s failure to provide special
education and related services as
required in the services plan. A few
commenters recommended that the
regulations clarify whether the parent
should file a due process complaint
with the LEA of residence or with the
LEA where the private school is located.
Discussion: Section 615(a) of the Act
specifies that the procedural safeguards
of the Act apply with respect to the
identification, evaluation, educational
placement, or provision of FAPE to
children with disabilities. The special
education and related services provided
to parentally-placed private school
children with disabilities are
independent of the obligation to make
FAPE available to these children.
While there may be legitimate issues
regarding the provision of services to a
particular parentally-placed private
school child with a disability an LEA
has agreed to serve, the due process
provisions in section 615 of the Act and
§§300.504 through 300.519 do not
apply to these disputes, because there is
no individual right to these services
under the Act. Disputes that arise about
these services are properly subject to the
State complaint procedures under
§§300.151 through 300.153.
Child find, however, is a part of the
basic obligation that public agencies have to all children with disabilities,
and failure to locate, identify, and
evaluate a parentally-placed private
school child would be subject to due
process. Therefore, the due process
provisions in §§300.504 through
300.519 do apply to complaints that the
LEA where the private school is located
failed to meet the consent and
evaluation requirements in §§300.300
through 311.
In light of the comments received, we
will clarify in §300.140 that parents of
parentally-placed private school
children with disabilities may file a due
process complaint with the LEA in
which the private school is located (and
forward a copy to the SEA) regarding an
LEA’s failure to meet the consent and
evaluation requirements in §§300.300
through 300.311. We also will clarify
that a complaint can be filed with the
SEA under the State complaint
procedures in §§300.151 through
300.153 that the SEA or LEA has failed
to meet the requirements in §§300.132
through 300.135 and §§300.137 through
300.144. There would be an exception,
however, for complaints filed pursuant
to §300.136. Complaints under
§300.136 must be filed in accordance
with the procedures established by each
State under §300.136.
Changes: Proposed §300.140(a)(2) has
been redesignated as new paragraph (b).
A new paragraph (b)(2) has been added
to this section to clarify that any due
process complaint regarding the
evaluation requirements in §300.131
must be filed with the LEA in which the
private school is located, and a copy
must be forwarded to the SEA. Proposed
§300.140(b) has been redesignated as
new paragraph (c), and has been revised
to clarify that a complaint that the SEA
or LEA has failed to meet the
requirements in §§300.132 through
300.135 and §§300.137 through 300.144
can be filed with the SEA under the
State complaint procedures in
§§300.151 through 300.153. Complaints
filed pursuant to §300.136 must be filed
with the SEA under the procedures
established under §300.136(b).
Comment: A few commenters
requested clarification as to whether a
parent of a parentally-placed private
school child should request an
independent educational evaluation at
public expense under §300.502(b) with
the LEA of residence or the LEA where
the private school is located.
Discussion: We do not believe that
this level of detail needs to be included
in the regulation. If a parent of a
parentally-placed child disagrees with
an evaluation obtained by the LEA in
which the private school is located, the
parent may request an independent educational evaluation at public
expense with that LEA.
Changes: None.
Use of Personnel (§300.142)
Comment: Several commenters
requested clarifying language regarding
who must provide equitable services to
parentally-placed private school
children with disabilities.
Discussion: Under section
612(a)(10)(A)(vi)(I) of the Act, equitable
services must be provided by employees
of a public agency or through contract
by the public agency with an individual,
association, agency, organization, or
other entity. Section 300.142(a) provides
that an LEA may use Part B funds to
make public school personnel available
in other than public facilities to the
extent necessary to provide equitable
services for parentally-placed children
with disabilities attending private
schools and if those services are not
otherwise provided by the private
school to children as a benefit provided
to all children attending that school.
Under §300.142(b), an LEA may use
Part B funds to pay for the services of
an employee of a private school to
provide equitable services if the
employee performs the services outside
of his or her regular hours of duty and
the employee performs the services
under public supervision and control.
We believe that the regulation is
sufficiently clear on this point.
Changes: None.
Property, Equipment, and Supplies
(§300.144)
Comment: A few commenters
requested clarification as to whether
private school officials may purchase
equipment and supplies with Part B
funds to provide services to parentally-
placed private school children with
disabilities designated to receive
services.
Discussion: We do not believe the
additional clarification suggested by the
commenters is necessary. Section
300.144, consistent with section
612(a)(10)(A)(vii) of the Act, already
requires that the LEA must control and
administer the funds used to provide
special education and related services to
parentally-placed private school
children with disabilities, and maintain
title to materials, equipment, and
property purchased with those funds.
Thus, the regulations and the Act
prevent private school officials from
purchasing equipment and supplies
with Part B funds.
Changes: None.
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46598 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Children With Disabilities in Private
Schools Placed or Referred by Public
Agencies
Applicability of §§300.146 Through
300.147 (§300.145)
Comment: One commenter stated that
§§300.145 through 300.147 are
unnecessary and solely administrative,
because these sections are addressed in
the Act and the proposed regulations
provide no additional information on
the application of the statutory
requirements.
Discussion: We do not agree with the
commenter that the provisions in
§§300.146 through 300.147 are
unnecessary and solely administrative.
We believe it is necessary to retain these
requirements in the regulations,
consistent with section 612(a)(10)(B) of
the Act, to ensure that public agencies
are fully aware of their obligation to
ensure that children with disabilities
who are placed in or referred to a
private school or facility by public
agencies are entitled to receive FAPE to
the same extent as they would if they
were placed in a public agency school
or program.
Changes: None.
Responsibility of SEA (§300.146)
Comment: Many commenters
disagreed with the exception to the
‘‘highly qualified teacher’’ requirements
in paragraph (b) of this section and
stated that the ‘‘highly qualified
teacher’’ requirements should apply to
private school teachers of children with
disabilities placed or referred by public
agencies. Several commenters stated
that these children are likely to have
more severe disabilities and, therefore,
have a greater need for highly qualified
teachers than children served in public
schools.
Several commenters stated that
exempting teachers in private schools
from the requirement to be ‘‘highly
qualified’’ in situations where children
with disabilities are publicly-placed in
order to receive FAPE is not consistent
with the requirement that the education
provided to children in such settings
meet the standards that apply to
children served by public agencies, or
with the ESEA and the goal in the Act
of helping all children with disabilities
achieve high standards.
A few commenters supported the
exception to ‘‘highly qualified teacher’’
requirements. One commenter stated
that States should make their own
decisions in this area in light of resource
constraints.
One commenter opposed the
expenditure of public school funds for
the education of publicly-placed private school children by teachers who do not
meet the ‘‘highly qualified’’
requirements.
Discussion: Section 602(10) of the Act
states that ‘‘highly qualified’’ has the
meaning given the term in section 9101
of the ESEA, which clarifies that the
requirements regarding highly qualified
teachers apply to public school teachers
and not teachers teaching as employees
of private elementary schools and
secondary schools. As we stated in the
Analysis of Comments and Changes
section regarding §300.138 in this
subpart and §300.18 in subpart A, it is
the Department’s position that the
highly qualified teacher requirements
do not apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. We agree with the
commenters that, in many instances, a
public agency may choose to place a
child with a severe disability and with
more intensive educational needs in a
private school or facility as a means of
providing FAPE. When the public
agency chooses to place a child with a
significant disability, or any child with
a disability, in a private school as a
means of providing FAPE, the public
agency has an obligation to ensure that
the child receives FAPE to the same
extent the child would if placed in a
public school, irrespective of whether
the private school teachers meet the
highly qualified teacher requirements in
§§300.18 and 300.156(c). FAPE
includes not just the special education
and related services that a child with a
disability receives, but also includes an
appropriate preschool, elementary and
secondary school education in the State
involved. The required special
education and related services must be
provided at public expense, at no cost
to the parent, in accordance with an IEP,
and the education provided to the child
must meet the standards that apply to
educational services provided by the
SEA and LEA (except for the highly
qualified teacher requirements in
§§300.18 and 300.156(c)). In addition,
the SEA must ensure that the child has
all the rights of a child with a disability
who is served by a public agency.
We do not agree with the premise of
the commenters that not requiring
private school teachers who provide
services to publicly-placed children
with disabilities to meet the highly
qualified teacher requirements means
that the education provided to these
children in the private school setting
does not meet the standards that apply
to children with disabilities served by
the public agency. States have flexibility in developing standards that meet the
requirements of the Act. The standards
that SEAs apply to private schools that
contract with public agencies to provide
FAPE to children with disabilities, are,
so long as they meet the requirements of
Part B of the Act and its regulations, a
State matter. Federal law does not
encourage or prohibit the imposition of
additional requirements as a condition
of placing these children in the private
school.
With regard to the comment opposing
the use of public school funds for the
education of publicly-placed private
school children by teachers who do not
meet the highly qualified teacher
requirements, a State or public agency
may use whatever State, local, Federal,
and private sources of support that are
available in the State to meet the
requirements of the Act. We believe
restricting the use of public school
funds as requested by the commenter
would not only be inconsistent with the
Act, but also may unnecessarily limit a
public agency’s options for providing
FAPE to its publicly-placed children
with disabilities.
Changes: None.
Comment: A few commenters
recommended requiring States to have
rules, regulations, and contracts
requiring private schools that accept
publicly-placed children with
disabilities to guarantee that children
with disabilities receive FAPE and their
parents retain all of the protections
mandated for public schools, including
the right to pendency placements if the
parents challenge the decisions of the
private school to terminate the
children’s placements. One commenter
recommended that the regulations
clarify that private schools serving
children placed by a public agency are
not exempt from the obligation to
provide FAPE.
Discussion: The Act does not give
States and other public agencies
regulatory authority over private schools
and does not place requirements on
private schools. The Act imposes
requirements on States and public
agencies that refer to or place children
with disabilities in private schools for
the purposes of providing FAPE to those
children because the public agency is
unable to provide FAPE in a public
school or program. The licensing and
regulation of private schools are matters
of State law. The Act requires States and
public agencies, including LEAs, to
ensure that FAPE is made available to
all children with disabilities residing in
the State in mandatory age ranges, and
that the rights and protections of the Act
are extended to eligible children and
their parents. If the State or public
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agency has placed children with
disabilities in private schools for
purposes of providing FAPE to those
children, the State and the public
agency must ensure that these children
receive the required special education
and related services at public expense,
at no cost to the parents, in accordance
with each child’s IEP. It is the
responsibility of the public agency to
determine whether a particular private
school in which the child with a
disability will be placed for purposes of
providing FAPE meets the standards
that apply to the SEA and LEA and that
a child placed by a public agency be
afforded all the rights, including FAPE,
that the child would otherwise have if
served by the public agency directly.
Changes: None.
Comment: One commenter stated that,
in cases where the public agency places
a child in a private school or residential
treatment facility for the purposes of
providing FAPE, the public agency
should be required to determine and
inform the private school or residential
treatment facility about the person or
persons who have the legal authority to
make educational decisions for the
child.
Discussion: The change requested by
the commenter is not needed because
the public agency, not the private
agency, is responsible for providing
FAPE to a child who is placed by the
public agency in a private school.
Consistent with §300.146 and section
612(a)(10)(B) of the Act, a public agency
that places a child with a disability in
a private school or facility as a means
of carrying out the requirements of Part
B of the Act, must ensure that the child
has all the rights of a child with a
disability who is served by a public
agency, which includes ensuring that
the consent requirements in §300.300
and sections 614(a)(1)(D) and 614(c) of
the Act are followed. A public agency
must, therefore, secure the needed
consent from the person or persons who
have the legal authority to make such
decisions, unless the public agency has
made other arrangements with the
private school or facility to secure that
consent. We do not believe it is
necessary or appropriate to require the
public agency to inform the private
school or facility of the persons or
persons who have the legal authority to
make educational decisions for the child
because this will depend on the specific
arrangements made by the public
agency with a private school or facility
and, should, therefore, be determined by
the public agency on a case by case
basis.
Changes: None. Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Placement of Children by Parents When
FAPE Is at Issue (§300.148)
Comment: Several commenters
recommended retaining in these
regulations the requirement in current
§300.403(b) that disagreements between
a parent and the LEA regarding the
availability of a FAPE and the question
of financial responsibility, are subject to
the due process procedures in section
615 of the Act.
Discussion: The provision in current
§300.403(b) was in the 1983 regulations
and, therefore, should have been
included in the NPRM in light of section
607(b) of the Act. Section 607(b) of the
Act provides that the Secretary cannot
publish final regulations that would
procedurally or substantively lessen the
protections provided to children with
disabilities in the regulations that were
in effect on July 20, 1983. We will revise
§300.148 to include the requirement in
current §300.403(b).
Changes: Section 300.148 has been
revised to include the requirement in
current §300.403(b) that disagreements
between a parent and a public agency
regarding the availability of a program
appropriate for the child and the
question of financial responsibility are
subject to the due process procedures in
§§300.504 through 300.520.
Comment: One commenter requested
revising the regulations to eliminate
financial incentives for parents to refer
children for special education and then
unilaterally placing their child in
private schools without first receiving
special education and related services
from the school district. The commenter
stated that it should be clear that a
unilateral placement in a private school
without first receiving special education
and related services from the LEA does
not require the public agency to provide
reimbursement for private school
tuition.
One commenter stated that proposed
§300.148(b) goes beyond the Act and
only applies if the court or hearing
officer finds that the agency had not
made FAPE available to the child in a
timely manner prior to enrollment in
the private school. The commenter
stated that a determination that a
placement is ‘‘appropriate,’’ even if it
does not meet the State standards that
apply to education provided by the SEA
or LEAs, conflicts with the SEA’s or
LEA’s responsibility to ensure FAPE to
children with disabilities.
Discussion: The provision in
§300.148(b) that a parental placement
does not need to meet State standards in order to be ‘‘appropriate’’ under the Act
is retained from current §300.402(c) to
be consistent with the Supreme Court’s
decisions in School Committee of the
Town of Burlington v. Department of
Education, 471 U.S. 359 (1985)
(Burlington) and Florence County
School District Four v. Carter, 510 U.S.
7 (1993) (Carter). Under the Supreme
Court’s decision in Carter, a court may
order reimbursement for a parent who
unilaterally withdraws his or her child
from a public school that provides an
inappropriate education under the Act
and enrolls the child in a private school
that provides an education that is
otherwise proper under the Act, but
does not meet the State standards that
apply to education provided by the SEA
and LEAs. The Court noted that these
standards apply only to public agencies’
own programs for educating children
with disabilities and to public agency
placements of children with disabilities
in private schools for the purpose of
providing a program of special
education and related services. The
Court reaffirmed its prior holding in
Burlington that tuition reimbursement is
only available if a Federal court
concludes ‘‘both that the public
placement violated IDEA, and that the
private school placement was proper
under the Act.’’ (510 U.S. at 12). We
believe LEAs can avoid reimbursement
awards by offering and providing FAPE
consistent with the Act either in public
schools or in private schools in which
the parent places the child. However, a
decision as to whether an LEA’s offer or
provision of FAPE was proper under the
Act and any decision regarding
reimbursement must be made by a court
or hearing officer. Therefore, we do not
believe it is appropriate to include in
these regulations a provision relieving a
public agency of its obligation to
provide tuition reimbursement for a
unilateral placement in a private school
if the child did not first receive special
education and related services from the
LEA.
This authority is independent of the
court’s or hearing officer’s authority
under section 612 (a)(10)(C)(ii) of the
Act to award reimbursement for private
placements of children who previously
were receiving special education and
related services from a public agency.
Changes: None.
SEA Responsibility for General
Supervision and Implementation of
Procedural Safeguards
SEA Responsibility for General
Supervision (§300.149)
Comment: One commenter requested
that the Department clarify in these
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regulations how the requirements for
SEA responsibility in §300.149 apply
with respect to children attending BIA-
funded schools who are sent to State
prisons, including whether the Office of
Indian Education Programs in the
Department of the Interior can delegate
the responsibility of ensuring that the
requirements of Part B of the Act are
met by the State prison. The commenter
further requested clarification regarding
tribally controlled detention facilities
that incarcerate a student from a
different reservation than the
reservation where the student attended
a BIA-funded school.
Discussion: As a general matter, for
educational purposes, students who
were enrolled in a BIA-funded school
and are subsequently convicted as an
adult and incarcerated in a State run
adult prison are the responsibility of the
State where the adult prison is located.
Section 612(a)(11)(C) of the Act and
§300.149(d) allow flexibility to States in
that the Governor, or another individual
pursuant to State law, can designate a
public agency in the State, other than
the SEA, as responsible for ensuring that
FAPE is made available to eligible
students with disabilities who are
convicted under State law and
incarcerated in the State’s adult prisons.
This provision does not apply to the
Secretary of the Interior. Therefore, the
Office of Indian Education Programs
cannot delegate the responsibility of
ensuring that the requirements of Part B
of the Act are met by the State prison.
The Act does not specifically address
who is responsible for education of
students with disabilities in tribally
controlled detention facilities. However,
the Secretary of the Interior is only
responsible for students who are
enrolled in schools operated or funded
by the Department of the Interior.
Changes: None.
Comment: One commenter
recommended adding a heading prior to
§300.149 to separate this section from
the regulations governing private
schools.
Discussion: We agree with the
commenter that a heading should be
added to separate the private school
provisions from other State eligibility
requirements.
Changes: We have added a heading
before §300.149 to separate the private
school provisions from the provisions
relating to the SEA’s responsibility for
general supervision and implementation
of procedural safeguards.
State Complaint Procedures (§§300.151
through 300.153)
Comment: We received several
comments questioning the statutory basis for the State complaint provisions
in §§300.151 through 300.153. One
commenter stated that the Act includes
only two statutory references to State
complaints and both references
(sections 612(a)(14)(E) and 615(f)(3)(F)
of the Act) immediately follow statutory
prohibitions on due process remedies.
One commenter stated that Congress
did not require SEAs to create a
complaint system and that section
1232c(a) of the General Education
Provisions Act, 20 U.S.C. 1232c(a)
(GEPA), provides only that the
Department may require a State to
investigate and resolve all complaints
received by the State related to the
administration of an applicable
program. The commenter stated that the
permissive wording of this provision
suggests that the Secretary or the
Department can choose not to require a
complaint investigation and resolution
mechanism, particularly when such
mechanism is unnecessary or, as in the
case of the Act, effectively preempted by
more specific requirements in the Act
governing the applicable program.
Another commenter concluded that
there is no basis for the State complaint
procedures in §§300.151 through
300.153 because the Act only allows
complaints to be filed with the State in
two situations: (1) By private school
officials, regarding consultation and
child find for parentally-placed private
school children pursuant to section
612(a)(10)(A)(i) and (10)(A)(iii) of the
Act, and (2) by parents, regarding
personnel qualifications in section
612(a)(14)(E) of the Act. The commenter
stated that in both cases, the Act does
not detail a complaint process.
Discussion: Although Congress did
not specifically detail a State complaint
process in the Act, we believe that the
State complaint process is fully
supported by the Act and necessary for
the proper implementation of the Act
and these regulations. We believe a
strong State complaint system provides
parents and other individuals an
opportunity to resolve disputes early
without having to file a due process
complaint and without having to go to
a due process hearing. The State
complaint procedures are referenced in
the following three separate sections of
the Act: (1) Section 611(e)(2)(B)(i) of the
Act, which requires that States spend a
portion of the amount of Part B funds
that they can use for State-level
activities on complaint investigations;
(2) Section 612(a)(14)(E) of the Act,
which provides that nothing in that
paragraph creates a private right of
action for the failure of an SEA or LEA
staff person to be highly qualified or
prevents a parent from filing a complaint about staff qualifications with
the SEA, as provided for under this part;
and (3) Section 615(f)(3)(F) of the Act,
which states that ‘‘[n]othing in this
paragraph shall be construed to affect
the right of a parent to file a complaint
with the State educational agency.’’
Paragraph (f)(3) is titled ‘‘Limitations on
Hearing’’ and addresses issues such as
the statute of limitations and that
hearing issues are limited to the issues
that the parent has raised in their due
process notice. The Senate Report
explains that this provision clarifies that
‘‘nothing in section 615 shall be
construed to affect a parent’s right to file
a complaint with the State educational
agency, including complaints of
procedural violations’ (S. Rpt. No. 108–
185, p. 41).
Furthermore, the State complaint
procedures were a part of the initial Part
B regulations in 1977 (45 CFR
121a.602). These regulations were
moved into part 76 of the Education
Department General Administrative
Regulations (EDGAR) in the early 1980s,
and were returned to the Part B
regulations in 1992 (after the
Department decided to move the
regulations out of EDGAR and place
them in program regulations for the
major formula grant programs).
Although the State complaint
procedures have changed in some
respects in the years since 1977, the
basic right of any individual or
organization to file a complaint with the
SEA alleging any violation of program
requirements has remained the same.
For these reasons, we believe the State
complaint procedures should be
retained in the regulations.
Changes: None.
Comment: Several commenters stated
that use of the term ‘‘complaint’’ in
reference to due process complaints and
State complaint procedures is
confusing. One commenter requested
that we use the phrase ‘‘due process
hearing request’’ instead of ‘‘due process
complaint’’ in the regulations to avoid
confusion between the two processes.
Discussion: Section 615 of the Act
uses the term ‘‘complaint’’ to refer to
due process complaints. We have used
the phrase ‘‘due process complaint’’
instead of the statutory term
‘‘complaint’’ throughout these
regulations to provide clarity and
reduce confusion between due process
complaints in section 615 of the Act and
complaints under the State complaint
procedures in §§300.151 through
300.153. We believe this distinction is
sufficient to reduce confusion and it is
not necessary to add further clarification
regarding the use of the term
‘‘complaint’’ in these regulations.
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The regulations for State complaints
under §§300.151 through 300.153
provide for the resolution of any
complaint, including a complaint filed
by an organization or an individual from
another State alleging that the public
agency violated a requirement of Part B
of the Act or of part 300. The public
agency must resolve a State complaint
within 60 days, unless there is a time
extension as provided in §300.152(b).
Due process complaints, as noted in
§300.507, however, may be filed by a
parent or a public agency, consistent
with §§300.507 through 300.508 and
§§300.510 through 300.515.
Changes: None.
Adoption of State Complaint Procedures
(§300.151)
Comment: Many commenters
recommended that only issues related to
violations of the law should be subject
to the State complaint process. One
commenter stated that the State
complaint procedures should be used
only for systemic violations that reach
beyond the involvement of one child in
a school.
A few commenters requested that the
regulations clarify that the State
complaint procedures can be used for
the denial of appropriate services and
the failure to provide FAPE in
accordance with a child’s IEP. However,
some commenters requested that the
regulations clarify that disputes
involving appropriateness of services
and whether FAPE was provided should
be dealt with in a due process hearing.
One commenter stated that the State
complaint procedures should be used to
investigate whether required procedures
were followed and not to determine if
evaluation data and student-specific
data support the IEP Team’s
determination of what is appropriate for
the child. The commenter went on to
state that the procedures for
administrative hearings permit the
examination and cross-examination of
expert witnesses and establishing the
credibility of the testimonies, which are
the functions of a hearing officer, not
SEA complaint specialists.
Discussion: Some commenters, as
noted above, seek to limit the scope of
the State complaint system. We believe
the broad scope of the State complaint
procedures, as permitted in the
regulations, is critical to each State’s
exercise of its general supervision
responsibilities. The complaint
procedures provide parents,
organizations, and other individuals
with an important means of ensuring
that the educational needs of children
with disabilities are met and provide the
SEA with a powerful tool to identify and correct noncompliance with Part B
of the Act or of part 300. We believe
placing limits on the scope of the State
complaint system, as suggested by the
commenters, would diminish the SEA’s
ability to ensure its LEAs are in
compliance with Part B of the Act and
its implementing regulations, and may
result in an increase in the number of
due process complaints filed and the
number of due process hearings held.
We do not believe it is necessary to
clarify in the regulations that the State
complaint procedures can be used to
resolve a complaint regarding the denial
of appropriate services or FAPE for a
child, since §300.153 is sufficiently
clear that an organization or individual
may file a written complaint that a
public agency has violated a
requirement of Part B of the Act or part
300. The State complaint procedures
can be used to resolve any complaint
that meets the requirements of
§300.153, including matters concerning
the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
We believe that an SEA, in resolving
a complaint challenging the
appropriateness of a child’s educational
program or services or the provision of
FAPE, should not only determine
whether the public agency has followed
the required procedures to reach that
determination, but also whether the
public agency has reached a decision
that is consistent with the requirements
in Part B of the Act in light of the
individual child’s abilities and needs.
Thus, the SEA may need to review the
evaluation data in the child’s record, or
any additional data provided by the
parties to the complaint, and the
explanation included in the public
agency’s notice to the parent as to why
the agency made the determination
regarding the child’s educational
program or services. If necessary, the
SEA may need to interview appropriate
individuals, to determine whether the
agency followed procedures and applied
standards that are consistent with State
standards, including the requirements of
Part B of the Act, and whether the
determination made by the public
agency is consistent with those
standards and supported by the data.
The SEA may, in its effort to resolve a
complaint, determine that interviews
with appropriate individuals are
necessary for the SEA to obtain the
relevant information needed to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or of
part 300. However, such interviews
conducted by the SEA, as part of its
effort to resolve a State complaint, are not intended to be comparable to the
requirement in section 615(h)(2) of the
Act, which provides any party to a due
process hearing the right to present
evidence and confront, cross-examine,
and compel the attendance of witnesses.
In addition, a parent always has the
right to file a due process complaint and
request a due process hearing on any
matter concerning the identification,
evaluation, or educational placement of
his or her child, or the provision of
FAPE and may seek to resolve their
disputes through mediation. It is
important to clarify that when the
parent files both a due process
complaint and a State complaint on the
same issue, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not a part of the due process
hearing must be resolved using the State
complaint procedures in §300.152,
including using the time limit and
procedures in paragraphs (b) and (d) of
§300.152. (See §300.152(c)(1)). Under
the Act, the decision reached through
the due process proceedings is the final
decision on those matters, unless a party
to the hearing appeals that decision by
requesting State-level review, if
applicable, or by bringing a civil action
in an appropriate State or Federal court.
Changes: None.
Comment: A few commenters
requested amending §300.151(a)(2) to
specifically include school personnel
and teacher organizations in the list of
entities to whom the SEA must
disseminate the State complaint
procedures. Another commenter
requested that representatives of private
schools or residential treatment
facilities be included on the list of
entities to whom the State must
disseminate complaint procedures.
Discussion: Section 300.151(a)(2)
already requires the State to widely
disseminate the State complaint
procedures in §§300.151 through
300.153 to parents and other interested
parties, including parent training and
information centers, protection and
advocacy organizations, independent
living centers, and other appropriate
entities. There is nothing in these
regulations that would prevent a State
from disseminating information about
the State complaint procedures to
school personnel, teacher organizations,
or representatives of private schools or
residential facilities. However, we
believe this decision is best left to the
States. We do not believe that there is
a need to add these entities to the
mandatory distribution as individuals
involved in the education of children
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46602 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
with disabilities are generally
acquainted with these procedures.
Changes: None.
Remedies for Denial of Appropriate
Services (§300.151(b))
Comment: Many commenters
requested retaining current
§300.660(b)(1), regarding the awarding
of monetary reimbursement as a remedy
for denial of appropriate services. One
commenter stated that the regulations
should clarify that States continue to
have authority to award monetary
reimbursement, when appropriate. A
few commenters stated that the
regulations should clarify that monetary
reimbursement is not appropriate for a
majority of State complaints. Some
commenters stated that removing
current §300.660(b)(1) creates
ambiguity and may result in increased
litigation because parents may choose to
use the more costly and time-consuming
due process system if they believe that
monetary relief is not available to them
under the State complaint system. Some
commenters stated that removing
current §300.660(b)(1) implies that
monetary reimbursement is never
appropriate. A few commenters stated
that removing the monetary
reimbursement provision in current
§300.660(b)(1) suggests that the
Department no longer supports the use
of this remedy. A few commenters
requested that the regulations clarify
that compensatory services are an
appropriate remedy when the LEA has
failed to provide appropriate services.
Discussion: The SEA is responsible
for ensuring that all public agencies
within its jurisdiction meet the
requirements of the Act and its
implementing regulations. In light of the
SEA’s general supervisory authority and
responsibility under sections 612(a)(11)
and 616 of the Act, we believe the SEA
should have broad flexibility to
determine the appropriate remedy or
corrective action necessary to resolve a
complaint in which the SEA has found
that the public agency has failed to
provide appropriate services to children
with disabilities, including awarding
monetary reimbursement and
compensatory services. To make this
clear, we will change §300.151 to
include monetary reimbursement and
compensatory services as examples of
corrective actions that may be
appropriate to address the needs of the
child.
Changes: We have added
‘‘compensatory services or monetary
reimbursement’’ as examples of
corrective actions in §300.151(b)(1).
Comment: One commenter stated that
the remedies available in §300.151(b) are silent about whether the
complainant may be reimbursed for
attorneys’ fees and requested
clarification as to whether
reimbursement is permissible for State
complaints. Another commenter
requested that the language in section
615(i)(3)(B) of the Act, regarding the
awarding of attorneys’ fees for due
process hearings, be included in the
State complaint procedures as a way to
limit repetitive, harassing complaints.
Discussion: The awarding of
attorneys’ fees is not addressed in
§300.151(b) because the State complaint
process is not an administrative
proceeding or judicial action, and,
therefore, the awarding of attorneys’ fees
is not available under the Act for State
complaint resolutions. Section
615(i)(3)(B) of the Act clarifies that a
court may award attorneys’ fees to a
prevailing party in any action or
proceeding brought under section 615 of
the Act. We, therefore, may not include
in the regulations the language from
section 615(i)(3)(B) of the Act, as
suggested by the commenters, because
State complaint procedures are not an
action or proceeding brought under
section 615 of the Act.
Changes: None.
Minimum State Complaint Procedures
(§300.152)
Time Limit; Minimum Procedures
(§300.152(a))
Comment: One commenter suggested
changing §300.152(a)(1), to include
situations when the SEA is the subject
of a complaint. Another commenter
recommended that the State complaint
procedures include how the SEA should
handle a complaint against the SEA for
its failure to supervise the LEA or
failure to provide direct services when
given notice that the LEA has failed to
do so.
Discussion: We do not believe it is
necessary to specify in the regulations
how the SEA should handle a complaint
filed against the SEA because §300.151
clarifies that, if an organization or
individual files a complaint, pursuant to
§§300.151 through 300.153, that a
public agency has violated a
requirement of Part B of the Act or part
300, the SEA must resolve the
complaint. Pursuant to §300.33 and
section 612(a)(11) of the Act, the term
public agency includes the SEA. The
SEA must, therefore, resolve any
complaint against the SEA pursuant to
the SEA’s adopted State complaint
procedures. The SEA, however, may
either appoint its own personnel to
resolve the complaint, or may make
arrangements with an outside party to resolve the complaint. If it chooses to
use an outside party, however, the SEA
remains responsible for complying with
all procedural and remediation steps
required in part 300.
Changes: None.
Comment: One commenter suggested
that the regulations include language
requiring an on-site investigation unless
the SEA determines that it can collect
all evidence and fairly determine
whether a violation has occurred with
the evidence provided by the
complainant and a review of records.
Discussion: We do not believe the
regulations should require the SEA to
conduct an on-site investigation in the
manner suggested by the commenter
because we believe §300.152(a)(1) is
sufficient to ensure that an independent
on-site investigation is carried out if the
SEA determines that such an
investigation is necessary to resolve a
complaint. The minimum State
complaint procedures in §300.152 are
intended to be broad in recognition of
the fact that States operate differently
and standards appropriate to one State
may not be appropriate in another State.
Therefore, the standards to be used in
conducting an on-site investigation are
best determined by the State.
Changes: None.
Comment: One commenter stated that
§300.152 would allow an unlimited
period of time to resolve complaints and
requested that the regulations limit the
complaint resolution process to 30 days,
similar to the procedures when a due
process hearing is requested. A few
commenters requested that the 60-day
time limit be lengthened to 90 days,
given that many complaints involve
complex issues and multiple interviews
with school administrators.
Discussion: Section 300.152 does not
allow an unlimited period of time to
resolve a complaint. Paragraph (a) of
this section provides that an SEA has a
time limit of 60 days after a complaint
is filed to issue a written decision to the
complainant that addresses each
allegation in the complaint (unless,
under paragraph (b) of this section,
there is an extension for exceptional
circumstances or the parties agree to
extend the timeline because they are
engaged in mediation or in other
alternative means of dispute resolution,
if available in the State). We believe the
right of parents to file a complaint with
the SEA alleging any violation of Part B
of the Act or part 300 to receive a
written decision within 60 days is
reasonable in light of the SEA’s
responsibilities in resolving a complaint
pursuant to its complaint procedures,
and is appropriate to the interest of
resolving allegations promptly. In
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addition, the 60-day time limit for
resolving a State complaint is a
longstanding requirement and States
have developed their State complaint
procedures based on the 60-day time
limit. We believe altering this timeframe
would be unnecessarily disruptive to
States’ developed complaint procedures.
For these reasons, we do not believe it
is appropriate to change the time limit
as recommended by the commenters.
Changes: None.
Comment: One commenter expressed
concern that the regulations are silent as
to how an amended State complaint
should be handled. One commenter
expressed concern about resolving
complaints within the 60-day time limit
when the complainant submits
additional information about the
complaint and amends the complaint.
The commenter requested that in such
cases, the regulations should allow the
60-day time limit to begin from the date
the State receives the amended
complaint.
Discussion: Section 300.152 provides
that the complaint must be resolved 60
days after a complaint is filed and that
the complainant must be given an
opportunity to submit additional
information, either orally or in writing,
about the allegations in the complaint.
Generally, if the additional information
a parent submits is on the same or
related incident, it would be part of the
amended complaint. If the information
submitted by the complainant is on a
different or unrelated incident,
generally, the new information would
be treated as a separate complaint. On
the other hand, if the information
submitted by the complainant were on
the same incident, generally, the new
information would be treated as an
amendment to the original complaint. It
is, ultimately, left to each State to
determine whether the new information
constitutes a new complaint or whether
it is related to a pending complaint. We
believe the decision regarding whether
the additional information is a new
complaint or an amendment to an
existing complaint, is best left to the
State. The State must have the flexibility
to make this determination based on the
circumstances of a particular complaint
and consistent with its State complaint
process and, therefore, we do not
believe it is appropriate to regulate
further on this matter.
There are no provisions in Part B of
the Act or in these regulations that
permit the 60-day time limit to begin
from the date the State receives an
amended complaint, if additional
information submitted by the
complainant results in an amendment to
the complaint. However, §300.152(b) permits an extension of the 60-day time
limit if exceptional circumstances exist
or the parent and the public agency
agree to extend the time limit to attempt
to resolve the complaint through
mediation.
Changes: None.
Comment: One commenter requested
clarification regarding the time limit for
a public agency to respond with a
proposal to resolve the complaint.
Discussion: The 60-day time limit to
resolve a complaint does not change if
a public agency decides to respond to
the complaint with a proposal to resolve
the complaint. However, §300.152(b)(2)
permits the 60-day time limit to be
extended under exceptional
circumstances or if the parent and
public agency agree to engage in
mediation or in other alternative means
of dispute resolution, if available in the
State.
Changes: None.
Comment: One commenter expressed
concern that §300.152(a) could limit the
SEA’s investigation of a complaint to an
exchange of papers since the SEA is not
required to conduct an on-site
investigation.
Discussion: Section 300.152 provides
that the SEA must review all relevant
information and, if it determines it to be
necessary, carry out an independent on-
site investigation in order to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or part
300. We believe the SEA is in the best
position, and should have the
flexibility, to determine what
information is necessary to resolve a
complaint, based on the facts and
circumstances of the individual case. It
is true that, in some cases, a review of
documents provided by the parties may
be sufficient for the SEA to resolve a
complaint and that conducting an on-
site investigation or interviews with
staff, for example, may be unnecessary.
The SEA, based on the facts in the case,
must decide whether an on-site
investigation is necessary. We also
believe requiring an on-site
investigation for each State complaint
would be overly burdensome for public
agencies and unnecessary.
Changes: None.
Comment: A few commenters
requested adding language to proposed
§300.152(a)(3) to allow an SEA to
provide opportunities for resolving the
complaint through mediation and other
informal mechanisms for dispute
resolution with any party filing a
complaint, not only the parents. Some
commenters requested that the
regulations clarify that mediation is the
appropriate method to resolve State complaints regarding the denial of
appropriate services.
A few commenters expressed concern
that the phrase ‘‘[w]ith the consent of
the parent’’ in proposed §300.152(a)(3)
implies that complaints are
disagreements between parents and
public agencies, rather than allegations
of violations of a child’s or a parent’s
rights under the Act.
A few commenters supported the use
of mediation to resolve a complaint, but
requested that alternative means of
dispute resolution be deleted. Other
commenters expressed concern that
providing yet another means of
initiating mediation or other dispute
resolution is unnecessary because these
options are already available to parties
who wish to use them. A few
commenters requested that the
regulations define alternative means of
dispute resolution.
Discussion: Section 300.152(a)(3) was
proposed to encourage meaningful,
informal, resolution of disputes between
the public agency and parents,
organizations, or other individuals by
providing an opportunity for parties to
resolve disputes at the local level
without the need for the SEA to resolve
the matter. We believe that, at a
minimum, the State’s complaint
procedures should allow the public
agency that is the subject of the
complaint the opportunity to respond to
a complaint by proposing a resolution
and provide an opportunity for a parent
who has filed a complaint and the
public agency to resolve a dispute by
voluntarily engaging in mediation.
However, we do not believe that the
SEA should be required to offer other
alternative means of dispute resolution,
and so will remove the reference to
these other alternatives from the
minimum procedures in §300.152(a)(3).
We believe it is important to retain
the provision in §300.152(a)(3)(ii)
(proposed §300.152(a)(3)(B)), with
modification, to reinforce the use of
voluntary mediation as a viable option
for resolving disputes between the
public agency and the parents at the
local level prior to the SEA
investigating, if necessary, and resolving
a dispute. Resolving disputes between
parties at the local level through the use
of mediation, or other alternative means
of dispute resolution, if available in the
State, will be less adversarial and less
time consuming and expensive than a
State complaint investigation, if
necessary, or a due process hearing and,
ultimately, children with disabilities
will be the beneficiaries of a local level
resolution.
Requiring that the public agency
provide an opportunity for the parent
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who has filed a complaint and the
public agency to voluntarily engage in
mediation in an effort to resolve a
dispute is an appropriate minimum
requirement and consistent with the
statutory provision in section 615(e) of
the Act that voluntary mediation be
made available to parties (i.e., parent
and public agency) to disputes
involving any matter under Part B of the
Act, including matters arising prior to
the filing of a due process complaint.
However, the statute does not require
that mediation be available to other
parties, and we believe it would be
burdensome to expand, through
regulation, new §300.152(a)(3)(ii)
(proposed §300.152(a)(3)(B)) to require
that States offer mediation to non-
parents. Although we do not believe we
should regulate to require that
mediation be offered to non-parents,
there is nothing in the Act or these
regulations that would preclude an SEA
from permitting the use of mediation, or
other alternative dispute resolution
mechanisms, if available in the State, to
resolve a State complaint filed by an
organization or individual other than a
parent, and we will add language to
§300.152(b)(1)(ii) to permit extensions
of the timeline if the parties are
voluntarily engaged in any of these
dispute resolution procedures. In fact,
we encourage SEAs and their public
agencies to consider alternative means
of resolving disputes between the public
agency and organizations or other
individuals, at the local level, consistent
with State law and administrative
procedures. It is up to each State,
however, to determine whether non-
parents can use mediation or other
alternative means of dispute resolution.
Section 615(e) of the Act makes clear
that mediation is a voluntary
mechanism for resolving disputes and
may not be used to delay or deny a
parent’s right to a due process hearing
on the parent’s due process complaint,
or to deny any other rights afforded
under Part B of the Act. In light of the
fact that mediation is a voluntary
process, the parties only need to agree
to engage in mediation and it is not
necessary to obtain parental written
consent to engage in this voluntary
process. We will, therefore, change new
§300.152(a)(3)(ii) (proposed
§300.152(a)(3)(B)) by removing the
phrase ‘‘[w]ith the consent of the
parent’’ and adding a reference to
§300.506.
We do not believe it is necessary to
include in the regulations a definition of
the term ‘‘alternative means of dispute
resolution’’ because the term is
generally understood to refer to other
procedures and processes that States have found to be effective in resolving
disputes quickly and effectively but
does not include those dispute
resolution processes required under the
Act or these final regulations.
Changes: We have changed new
§300.152(a)(3)(ii) (proposed
§300.152(a)(3)(B)) by removing ‘‘with
the consent of the parent’’ and ‘‘or other
alternative means of dispute resolution’’
and adding a reference to §300.506. We
have also amended §300.152(b)(1)(ii), as
stated above, to clarify that a public
agency’s State complaint procedures
must permit an extension of the 60-day
time limit if a parent (or individual or
organization, if mediation, or other
alternative means of dispute resolution
is available to the individual or
organization under State procedures)
who has filed a complaint and the
public agency voluntarily agree to
extend the time to engage in mediation
or other alternative means of dispute
resolution, if available in the State.
Comment: A few commenters stated
that the agreement to extend the 60-day
time limit (to allow the parties to engage
in mediation, or alternative means of
dispute resolution, or both) should meet
the consent requirements in §300.9.
One commenter requested an extension
of the 60-day time limit to resolve
complaints when mediation is
underway.
Discussion: We do not agree that
consent, as defined in §300.9, should be
required to extend the 60-day time limit
because it would add burden and is not
necessary. It is sufficient to require
agreement of the parties. At any time
that either party withdraws from
mediation or other alternative means of
dispute resolution, or withdraws
agreement to the extension of the time
limit, the extension would end. We
believe §300.152(b) is sufficiently clear
that an extension of the 60-day time
limit is permissible if exceptional
circumstances exist with respect to a
particular complaint, or if the parent
and the public agency agree to extend
the time to engage in mediation. We also
believe it would be permissible to
extend the 60-day time limit if the
public agency and an organization or
other individual agree to engage in an
alternative means of dispute resolution,
if available in the State, and the parties
agree to extend the 60-day time limit.
We will revise §300.152(b)(1)(ii) to
include this exception.
Changes: We have revised
§300.152(b)(1)(ii) to clarify that it
would be permissible to extend the 60-
day time limit if the parties agree to
engage in other alternative means of
dispute resolution, if available in the
State. Comment: Several commenters
requested that §300.152(a) be modified
to include language allowing parents, in
addition to the public agency, an
opportunity to submit a proposal to
resolve the complaint.
Discussion: We do not believe it is
necessary to include the language in
§300.152(a) as suggested by the
commenter because §300.153(b)(4)(v)
already requires that the signed written
complaint submitted to the SEA by the
complainant include a proposed
resolution to the problem. A parent who
is a complainant must include a
proposed resolution to the problem to
the extent known and available to the
parent at the time the complaint is filed.
Changes: None.
Complaints Filed Under This Section
and Due Process Hearings Under
§300.507 or §§300.530 Through
300.532 (§300.152(c))
Comment: A few commenters
requested that the regulations include a
provision to allow parents to use the
State complaint process to enforce
agreements reached in mediation and
resolution sessions. One commenter
expressed concern that if an SEA does
not have authority to enforce
agreements arising from mediation and
resolution sessions, the burden will be
on a parent to incur costs necessary to
file a petition with a court to have the
agreement enforced.
Discussion: The Act provides that the
enforcement and implementation of
agreements reached through mediation
and resolution sessions may be obtained
through State and Federal courts.
Section 300.506(b)(7), consistent with
section 615(e)(2)(F)(iii) of the Act, states
that a written, signed mediation
agreement is enforceable in any State
court of competent jurisdiction or in a
district court of the United States.
Similarly, §300.510(c)(2), consistent
with section 615(f)(1)(B)(iii)(II) of the
Act, states that a written settlement
agreement resulting from a resolution
meeting is enforceable in any State court
of competent jurisdiction or in a district
court of the United States.
However, as noted in the Analysis of
Comments and Changes for subpart E,
we have added new §300.537 that
allows, but does not require, a State to
have mechanisms or procedures that
permit parties to mediation or
resolution agreements to seek
enforcement of those agreements and
decisions at the SEA level. We believe
this provision is sufficient to allow
States the flexibility to determine what
mechanisms or procedures, if any, may
be appropriate to enforce such
agreements, including utilizing their
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State complaint procedures, if they
choose to do so, so long as the
mechanisms or procedures are not used
to deny or delay a parent’s right to seek
enforcement through State and Federal
courts.
Changes: None.
Comment: Numerous commenters
requested that current §300.661(c)(3),
regarding the SEA’s responsibility to
resolve complaints alleging a public
agency’s failure to implement due
process decisions, be retained. Many
commenters raised concerns that
removing this language will lead to
more litigation. One commenter stated
that parents would be forced to litigate
due process decisions, which will
prolong the denial of FAPE to children.
Another commenter stated that not
allowing States to enforce a hearing
officer’s decision encourages litigation
because it is the only avenue for relief.
Several commenters stated that parents
are placed at a disadvantage because
they may not have the resources to file
in State or Federal court.
Discussion: The SEA’s obligation to
implement a final hearing decision is
consistent with the SEA’s general
supervisory responsibility, under
sections 612(a)(11) and 616 of the Act,
over all education programs for children
with disabilities in the State, which
includes taking necessary and
appropriate actions to ensure that the
provision of FAPE and all the
requirements in Part B of the Act and
part 300 are carried out. However, we
agree that the requirements from current
§300.661(c)(3) should be retained for
clarity.
Changes: We have added the
requirement in current §300.661(c)(3) as
new §300.152(c)(3).
Comment: Numerous commenters
requested retaining current
§300.661(c)(1), which requires that any
issue in the complaint that is not a part
of a due process complaint be resolved
using the applicable State complaint
timelines and procedures. One
commenter stated that §300.152(c)(1)
requires the State to set aside an entire
complaint if due process proceedings
commence with respect to any subject
that is raised in the complaint. A few
commenters expressed concern that if
issues in a State complaint, which are
not part of a due process complaint, are
not investigated until the due process
complaint is resolved, children may go
without FAPE for extended periods of
time. These commenters also stated that
parents are likely to file for due process
on every issue of concern, rather than
using the more expeditious and less
expensive State complaint procedures. Discussion: We agree that language in
current §300.661(c), requiring that
States set aside any part of a State
complaint that is being addressed in a
due process hearing, until the
conclusion of the hearing and resolve
any issue that is not a part of the due
process hearing, should be retained.
Changes: We have revised
§300.152(c)(1) by adding the
requirements in current §300.661(c)(1)
to the regulations.
Comment: One commenter stated that
the regulations do not address the
disposition of a complaint if a parent
and a public agency come to a
resolution of a complaint through
mediation. One commenter
recommended that the regulations
provide guidance on how an SEA
should handle a complaint that is
withdrawn. Another commenter
requested clarification on what should
occur if an SEA does not approve of the
agreement reached between the parent
and the public agency.
Discussion: We do not believe it is
necessary to regulate on these matters,
as recommended by the commenters.
Section 615(e)(2)(F) of the Act and
§300.506(b)(7) clarify that an agreement
reached through mediation is a legally
binding document enforceable in State
and Federal courts. Therefore, an
agreement reached through mediation is
not subject to the SEA’s approval. We
strongly encourage parties to resolve a
complaint at the local level without the
need for the SEA to intervene. If a
complaint is resolved at the local level
or is withdrawn, no further action is
required by the SEA to resolve the
complaint.
Changes: None.
Comment: One commenter suggested
including language in the regulations
that would require parties to provide
evidence under threat of perjury.
Another commenter stated that the State
complaint process should be non-
adversarial and that neither party
should have the right to review the
other’s submissions or to cross-examine
the other party.
Discussion: We do not believe it is
appropriate to include the language
suggested by the commenters because
we believe requiring parties to provide
evidence under the threat of perjury,
permitting parties to review
submissions, and allowing one party to
cross-examine the other party are
contrary to the intent of the State
complaint process. The State complaint
process is intended to be less
adversarial than the more formal filing
of a due process complaint and possibly
going to a due process hearing. To make
the changes requested by the commenters will serve only to make the
State complaint process more
adversarial and will not be in the best
interest of the child. The State
complaint procedures in §§300.151
through 300.153 do not require parties
to provide evidence, nor do they require
that a State allow parties to review the
submissions of the other party or to
cross-examine witnesses.
Changes: None.
Filing a Complaint (§300.153)
Comment: One commenter
recommended the regulations include a
limit on the number of times that an
individual may file a State complaint
against a public agency.
Discussion: An SEA is required to
resolve any complaint that meets the
requirements of §300.153, including
complaints that raise systemic issues,
and individual child complaints. It
would be inconsistent with the Act’s
provisions in section 616 regarding
enforcement and the Act’s provisions in
section 612 regarding general
supervision for an SEA to have a State
complaint procedure that removes or
limits a party’s right to file a complaint
that a public agency has violated a
requirement of Part B of the Act or part
300, including limiting the number of
times a party can file a complaint with
the SEA. Therefore, it is not appropriate
to include in the regulations the
language suggested by the commenter,
nor should the SEA include in its State
complaint procedures any restriction on
the number of times a party can file a
complaint, as long as the complaint
meets the requirements of §300.153.
Changes: None.
Comment: Many commenters
requested retaining current §300.662(c),
which permits a complaint to be filed
about a violation that occurred more
than one year prior to the date the
complaint is received if the violation is
continuing or the complainant is
requesting compensatory services for a
violation that occurred more than three
years prior to the date the complaint is
received.
Some commenters requested that the
regulations permit a parent to have as
much time to file a State complaint as
a parent would have to file a due
process complaint (two years, unless
provided otherwise by State law). One
commenter stated that extensions of the
statute of limitations should be granted
when circumstances warrant an
extension.
Another commenter suggested adding
language providing that the timeline
begins when a parent first learns about
the violation. A few commenters stated
that parents need a longer statute of
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limitations for State complaints because
they do not always know about
violations when they occur and may not
fully understand how the violation
affects their child’s education.
Several commenters stated that
Congress did not intend to create a one-
year statute of limitations for State
complaints when it created a two-year
statute of limitations for due process
hearings. Several commenters stated
that there is no evidence that Congress
intended to change the current three-
year statute of limitations on the
parents’ right to file a State complaint
when the violation is ongoing or
compensatory services are being
requested.
Discussion: We believe a one-year
timeline is reasonable and will assist in
smooth implementation of the State
complaint procedures. The references to
longer periods for continuing violations
and for compensatory services claims in
current §300.662(c) were removed to
ensure expedited resolution for public
agencies and children with disabilities.
Limiting a complaint to a violation that
occurred not more than one year prior
to the date that the complaint is
received will help ensure that problems
are raised and addressed promptly so
that children receive FAPE. We believe
longer time limits are not generally
effective and beneficial to the child
because the issues in a State complaint
become so stale that they are unlikely to
be resolved. However, States may
choose to accept and resolve complaints
regarding alleged violations that
occurred outside the one-year timeline,
just as they are free to add additional
protections in other areas that are not
inconsistent with the requirements of
the Act and its implementing
regulations. For these reasons, we do
not believe it is necessary to retain the
language in current §300.662(c).
We do not believe it is appropriate to
change the timeline to begin when a
parent first learns about the violation, as
suggested by the commenter, because
such a provision could lead to some
complaints being filed well beyond one
year from the time the violation actually
occurred. This also would make the
issue of the complaint so stale that the
SEA would not be able to reasonably
resolve the complaint and recommend
an appropriate corrective action.
As we stated earlier in the Analysis of
Comments and Changes for this subpart,
Congress did not specifically address or
detail a State complaint process in the
Act; nor did Congress express an
opinion regarding the time limit for
filing a complaint under a State’s
complaint process.
Changes: None. Comment: Several commenters stated
that §300.153(c) appears to indicate that
if a State complaint, is also the subject
of a due process complaint, the time
period to file the complaint is two years,
rather than the one-year time limit
applicable for all other State complaints.
Several commenters stated that this
provision should be removed and that a
one-year limitation should apply to all
State complaints, regardless of whether
a request for a due process hearing is
filed on the issue(s) in the complaint.
Discussion: If a State complaint
contains multiple issues of which one or
more is part of a due process hearing,
the one-year statute of limitations would
apply to the issues that are resolved
under the State complaint procedures;
the State due process statute of
limitations would apply to the issues
that are the subject of the due process
hearing. We agree that the language in
§300.153 is confusing and will amend
the language to remove the reference to
the due process complaint.
Changes: We have removed the
phrase, ‘‘Except for complaints covered
under §300.507(a)(2)’’ in §300.153(c).
Comment: Some commenters
recommended removing the
requirement in §300.153(d) that
requires the party filing the complaint to
forward a copy of the complaint to the
LEA or public agency serving the child
at the same time the party files the
complaint with the SEA. One
commenter stated that filing a complaint
is onerous enough for parents, without
including an extra step of requiring a
copy of the complaint to be forwarded
to the school. One commenter stated
that this poses an unnecessary
paperwork burden on parents. A few
commenters stated that forwarding a
copy of the complaint to the LEA should
be the responsibility of the SEA, not the
parents.
One commenter expressed concern
that requiring the party filing the
complaint to forward a copy of the
complaint to the LEA or public agency
serving the child will discourage
parents or school personnel whistle
blowers from filing a complaint and
recommended instead, that the
regulations require SEAs to provide the
LEA with a concise statement of fact
upon which the complaint is based and
the provisions of laws and rules that are
at issue. A few commenters requested
including language in §300.153(d)
giving the SEA discretion to protect the
confidentiality of the complainant. A
few commenters recommended
removing the requirement in
§300.153(b)(3) for the written complaint
to include the signature and contact
information for the complainant. Discussion: The purpose of requiring
the party filing the complaint to forward
a copy of the complaint to the LEA or
public agency serving the child, at the
same time the party files the complaint
with the SEA, is to ensure that the
public agency involved has knowledge
of the issues and an opportunity to
resolve them directly with the
complaining party at the earliest
possible time. The sooner the LEA
knows that a complaint is filed and the
nature of the issue(s), the quicker the
LEA can work directly with the
complainant to resolve the complaint.
We believe the benefit of having the
complainant forward a copy of the
complaint to the LEA or public agency
far outweigh the minimal burden placed
on the complainant because it will lead
to a faster resolution of the complaint at
the local level. For these reasons, we
also do not believe it is more efficient
to have the SEA forward the complaint
to the public agency or provide the
public agency with a statement
summarizing the complaint.
We do not believe that the complaint
procedures should provide for the
confidentiality of the complainant. The
complainant should not remain
unknown to the public agency that is
the subject of the complaint because
that public agency needs to know who
the complainant is and something about
the complaint (consistent with
§300.153) before it can be expected to
resolve the issues. We believe it is
reasonable to require a party to file a
signed complaint and provide contact
information to the SEA in order to
ensure the credibility of the complaint
and provide the SEA with the basic
contact information necessary for the
SEA to handle complaints
expeditiously. If the SEA receives a
complaint that is not signed, as required
in §300.153, the SEA may choose to
dismiss the complaint.
Changes: None.
Comment: One commenter expressed
concern that a parent must have legal
knowledge in order to correctly file a
State complaint.
Discussion: Contrary to the
commenter’s assertion that a parent
must have legal knowledge to file a
complaint, we believe the State
complaint procedures, which are under
the direct control of the SEA, provide
the parent and the school district with
mechanisms that allow them to resolve
differences without having to resort to a
more costly and cumbersome due
process complaint, which, by its nature,
is litigious. We believe if a State
effectively implements its State
complaint procedures, both parents and
public agencies will generally find the
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process efficient and easy to initiate. We
further believe that the requirement in
§300.509 that each SEA must develop
model forms to assist parents in filing a
State complaint in accordance with
§§300.151 through 300.153, and in
filing a due process complaint in
accordance with §§300.507(a) and
300.508(a) through (c), will make the
process of filing such complaints much
easier for parents and others.
Changes: We have made a minor
wording change in §300.153(b)(4) for
clarity.
Comment: One commenter stated that
the complainant should not have to
propose a resolution to the problem, as
required in §300.153(b)(4)(v), in order
to have the State investigate a
complaint.
Discussion: Section 300.153(b)(4)(v)
requires the complainant to propose a
resolution to the complaint only to the
extent known and available to the
complainant at the time the complaint
is filed. We believe this proposed
resolution is necessary because it gives
the complainant an opportunity to state
what he or she believes to be the
problem and how the complainant
believes it can be resolved. This is
important because it gives the
complainant an opportunity to tell the
public agency what is wrong and what
it would take to fix the problem from
the complainant’s point of view. It also
will give the LEA an opportunity to
choose either to do as the complainant
requests or propose a solution that it
believes would resolve the issue raised
by the complainant. Thus, if successful,
the parties will avoid an adversarial
relationship and possibly the expense of
a due process hearing.
Changes: None.
Comment: One commenter requested
that §300.153(d) include language
allowing an LEA to appeal an SEA
finding to an administrative hearing or
the courts. Another commenter
expressed concern that the State
complaint procedures lack an appeals
process for parties that lose under the
State complaint procedures.
Discussion: The regulations neither
prohibit nor require the establishment of
procedures to permit an LEA or other
party to request reconsideration of a
State complaint decision. We have
chosen to be silent in the regulations
about whether a State complaint
decision may be appealed because we
believe States are in the best position to
determine what, if any, appeals process
is necessary to meet each State’s needs,
consistent with State law.
If a State chooses, however, to adopt
a process for appealing a State
complaint decision, such process may not waive any of the requirements in
§§300.151 through 300.153. Section
300.152 requires that the SEA issue a
final decision on each complaint within
60 calendar days after the complaint is
filed, unless the SEA extends the
timeline as provided in §300.152(b).
This means that, absent an appropriate
extension of the timeline for a particular
complaint, the State must issue a final
decision within 60 calendar days.
However, if after the SEA’s final
decision is issued, a party who has the
right to request a due process hearing
(that is, the parent or LEA) and who
disagrees with the SEA’s decision may
initiate a due process hearing, provided
that the subject of the State complaint
involves an issue about which a due
process hearing can be filed and the
two-year statute of limitations for due
process hearings (or other time limit
imposed by State law) has not expired.
Changes: None.
Method of Ensuring Services (§300.154)
Establishing Responsibility for Services
(§300.154(a))
Comment: One commenter suggested
posting interagency agreements on SEA
Web sites and in public buildings, and
making them available upon request.
Discussion: There is nothing in the
Act or these regulations that would
prohibit an SEA from posting
interagency agreements on Web sites, in
public buildings, or making them
available upon request. However, we
believe that it would be unnecessarily
burdensome to require SEAs to do so
and any decision regarding posting
interagency agreements is best left to the
States’ discretion.
Changes: None.
Comment: One commenter stated that
interagency agreements are important
because agencies other than SEAs (e.g.,
mental health agencies that place
children in residential facilities) are
responsible for providing special
educational services. The commenter
requested that the regulations specify
that residential facilities be allowed
reimbursement for providing
educational services and that children
in these facilities are entitled to FAPE.
Discussion: We do not believe it is
necessary to further clarify in the
regulations that children with
disabilities who are placed in
residential facilities by public agencies
are entitled to FAPE because §300.146,
consistent with section 612(a)(10)(B) of
the Act, provides that SEAs must ensure
that children with disabilities receive
FAPE when they are placed in or
referred to private schools or facilities
by public agencies. Whether residential facilities can receive reimbursement for
educational services will depend on
how States have apportioned financial
responsibility among State agencies and
we do not believe that regulating on this
issue is appropriate or necessary.
Changes: None.
Obligation of Noneducational Public
Agencies (§300.154(b))
Comment: One commenter expressed
concern that §300.154(b) allows LEAs
to discontinue services when there is a
dispute with other agencies and
requested the regulations require LEAs
to bear the ultimate responsibility for
providing services.
Discussion: We do not believe it is
necessary to further clarify that the LEA
is ultimately responsible for providing
services because §300.154(b)(2)
sufficiently requires that if a public
agency other than an educational agency
fails to provide or pay for the special
education and related services in
§300.154(b)(1), the LEA or State agency
responsible for developing the child’s
IEP must provide or pay for these
services to the child in a timely manner.
Disagreements about the interagency
agreements should not stop or delay the
receipt of the services described in the
child’s IEP. Section 300.103(c) also
addresses timely services and clarifies
that, consistent with §300.323(c), the
State must ensure there is no delay in
implementing a child’s IEP, including
any situation in which the source for
providing or paying for the special
education or related services to a child
is being determined. Section
612(a)(12)(A)(i) of the Act provides that
the financial responsibility of public
agencies (other than an educational
agency), including Medicaid and other
public insurers obligated under Federal
or State law or assigned responsibility
under State policy, must precede
financial responsibility of the LEA.
Changes: None.
Children With Disabilities Who Are
Covered by Public Benefits or Insurance
(§300.154(d))
Comment: One commenter expressed
concern regarding the use of a parent’s
public benefits or insurance to pay for
services required under Part B of the Act
because co-payments and other out-of-
pocket expenses would be a hardship to
low-income families. A few commenters
stated that services paid for by public
benefits or insurance would count
against a child’s lifetime cap.
Discussion: The commenters’
concerns are addressed in
§300.154(d)(2)(ii) and (d)(2)(iii). Section
300.154(d)(2)(ii) states that a public
agency may not require parents to incur
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an out-of-pocket expense, such as the
payment of a deductible or co-pay
amount, in filing a claim for services,
and may pay from funds reserved under
the Act, the cost that the parent would
otherwise be required to pay. In
addition, §300.154(d)(2)(iii) states that a
public agency may not use a child’s
benefits under a public benefits or
insurance program if that use would
decrease lifetime coverage or any other
insured benefit; result in the family
paying for services that would otherwise
be covered by the public benefits or
insurance program and that are required
for the child outside of the time the
child is in school; increase premiums or
lead to the discontinuation of benefits or
insurance; or risk loss of eligibility for
home and community-based waivers,
based on aggregate health-related
expenditures.
Changes: None.
Comment: One commenter suggested
changing ‘‘parental consent’’ to
‘‘informed parental consent.’’ One
commenter recommended requiring
public agencies to obtain parental
consent each time the public agency
seeks to access the parent’s public
benefits or insurance. Some commenters
recommended removing the
requirement to obtain parental consent
to use Medicaid benefits to pay for
services required under Part B of the
Act. A few commenters opposed
requiring parental consent, stating the
process is an administrative burden.
Other commenters recommended
waiving the requirement for consent if
the agency has taken reasonable
measures to obtain such consent or the
parent’s consent was given to the State
Medicaid Agency.
Discussion: In order for a public
agency to use the Medicaid or other
public benefits or insurance program in
which a child participates to provide or
pay for services required under the Act,
the public agency must provide the
benefits or insurance program with
information from the child’s education
records (e.g., services provided, length
of the services). Information from a
child’s education records is protected
under the Family Educational Rights
and Privacy Act of 1974, 20 U.S.C.
1232(g) (FERPA), and section 617(c) of
the Act. Under FERPA and section
617(c) of the Act, a child’s education
records cannot be released to a State
Medicaid agency without parental
consent, except for a few specified
exceptions that do not include the
release of education records for
insurance billing purposes. Parental
consent requires, among other things,
that the parent be fully informed in his
or her native language, or other mode of communication, consistent with §300.9.
Thus, there is no need to change
‘‘parental consent’’ to ‘‘informed
consent,’’ as recommended by one
commenter. However, we believe it
would avoid confusion for the
references to ‘‘consent’’ in paragraphs
(d) and (e) in §300.154 to be consistent.
Therefore, we will add a reference to
§300.9 in §300.154(d)(2)(iv)(A) and
delete ‘‘informed’’ from §300.154(e)(1).
We believe obtaining parental consent
each time the public agency seeks to use
a parent’s public insurance or other
public benefits to provide or pay for a
service is important to protect the
privacy rights of the parent and to
ensure that the parent is fully informed
of a public agency’s access to his or her
public benefits or insurance and the
services paid by the public benefits or
insurance program. Therefore, we will
revise §300.154(d)(2)(iv) to clarify that
parental consent is required each time
the public agency seeks to use the
parent’s public insurance or other
public benefits. We do not believe that
it would be appropriate to include a
provision permitting waiver of parental
consent in this circumstance, even
where a public agency makes reasonable
efforts to obtain the required parental
consent. However, we agree with the
commenter that a public agency could
satisfy parental consent requirements
under FERPA and section 617(c) of the
Act if the parent provided the required
parental consent to the State Medicaid
agency, and the consent satisfied the
Part B definition of consent in §300.9.
We also believe that it is important to
let parents know that their refusal to
allow access to their public benefits or
insurance does not relieve the public
agency of its responsibility to ensure
that all required services are provided at
no cost to the parents. We will,
therefore, add a new paragraph (B) to
§300.154(d)(2)(iv) to make this clear.
Finally, because we have referenced
the definition of consent in §300.9
throughout the rest of these regulations,
rather than the consent provisions in
§300.622, we have removed the
reference to §300.622.
Changes: Section 300.154(d)(2)(iv) has
been changed to clarify that consent
must be obtained each time the public
agency seeks to access a parent’s public
benefits or insurance and to clarify that
a parent’s refusal to allow access to the
parent’s public benefits or insurance
does not relieve the public agency of its
responsibility to ensure that all required
services are provided at no cost to the
parent. The reference to §300.622 has
been removed and we have added
‘‘consistent with §300.9’’ following
‘‘parental consent’’ in §300.154(d)(2)(iv)(A). For consistency,
we have removed ‘‘informed’’ before
‘‘consent’’ in §300.154(e)(1).
Comment: One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion: We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision
that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
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Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes: None.
Comment: One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion: We do not believe further
clarification is necessary because
§300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, §300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes: None.
Comment: One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion: We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes: None.
Comment: One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion: We do not believe further
clarification is necessary because
§300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, §300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes: None.
Personnel Qualifications (§300.156)
Comment: One commenter requested
that §300.156 use the term ‘‘standards’’
when referring to personnel
qualifications.
Discussion: We are not changing
§300.156 because its language follows the specific language in section
612(a)(14) of the Act. Current §300.136
refers to ‘‘personnel standards’’ but was
removed consistent with the changes in
section 612(a)(14) of the Act.
Changes: None.
Comment: Some commenters
requested that the personnel
qualification requirements in §300.156
apply to personnel who provide travel
instruction and teachers of children
with visual impairments. Other
commenters requested that personnel
who provide therapeutic recreation
services be required to meet the
personnel qualifications. Some
commenters requested that the
personnel qualifications apply to
preschool special education teachers.
Discussion: It is not necessary to list
the specific personnel who provide
services to children with disabilities
under the Act and to whom the
requirements in §300.156 apply because
the regulations are sufficiently clear that
all needed personnel are covered. This
includes personnel who provide travel
instruction or therapeutic recreation
services; teachers of children with
visual impairments, if such personnel
are necessary to carry out the purposes
of this part; and preschool teachers in
States where preschool teachers are
considered elementary school teachers.
Section 300.156(a), consistent with
section 612(a)(14)(A) of the Act, requires
each SEA to establish and maintain
personnel qualification requirements to
ensure that personnel necessary to carry
out the purposes of Part B of the Act and
part 300 are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Changes: None.
Comment: One commenter stated that
the regulations should define what it
means to be qualified to provide
services to children with disabilities
under the Act. The commenter stated
that the regulations do not include any
requirements for general education
teachers or administrators who are
involved in providing instruction and
services for children in special
education.
Discussion: It is not necessary to
change the regulations to define what it
means to be qualified to provide
services because we believe that, aside
from the ‘‘highly qualified’’
requirements for teachers and special
education teachers in ESEA and the Act,
other personnel qualifications are
appropriately left to the States, in light
of the variability in State circumstances.
Further, §300.156, consistent with
section 612(a)(14) of the Act, makes it
clear that it is the responsibility of the
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SEA, not the Federal government, to
establish and maintain qualifications for
personnel who provide services to
children with disabilities under the Act.
Changes: None.
Comment: One commenter objected to
the removal of the requirements for a
comprehensive system of personnel
development in current §300.135. The
commenter also stated that regular
education teachers need to be trained to
work with children with disabilities to
ensure that their inclusion in the regular
classroom is successful.
Discussion: Current §300.135
required States to have in effect a
system of personnel development to
ensure an adequate supply of qualified
special education, regular education,
and related services personnel. Section
612(a)(14) of the Act removed this
requirement. The removal of current
§300.135, however, does not diminish
the responsibility of each State to
establish and maintain qualifications to
ensure that personnel (including regular
education teachers) necessary to carry
out the purposes of the Act are
appropriately and adequately prepared
and trained, consistent with §300.156.
Changes: None.
Comment: Some commenters
recommended that the regulations
include language from note 97 of the
Conf. Rpt., p. 192, which requires SEAs
to establish rigorous qualifications for
related services providers to ensure that
children with disabilities receive the
appropriate quality and quantity of care.
Several commenters requested that the
regulations require SEAs to consult with
LEAs, other State agencies, the
disability community, and professional
organizations regarding appropriate
qualifications for related services
providers and different service delivery
models (e.g., consultative, supervisory,
and collaborative models).
Discussion: We believe that States
already have sufficient incentive to
ensure that related services providers
provide services of appropriate quality
so that children with disabilities can
achieve to high standards and that
further regulation in this area is not
necessary. Section 300.156(b),
consistent with section 612(a)(14)(B) of
the Act, includes the qualifications for
related services personnel. There is
nothing in the Act that requires SEAs to
consult with LEAs, other State agencies,
or other groups and organizations to
determine the appropriate qualifications
for related services providers and the
use of different service delivery models,
and while we agree that this is good
practice and encourage SEAs to
participate in such consultation, we do
not believe that we should regulate in this manner. States should have the
flexibility, based on each State’s unique
circumstances, to determine how best to
establish and maintain standards for all
personnel who are providers of special
education and related services.
Changes: None.
Comment: Numerous commenters
objected to §300.156(b) and the removal
of the requirement in current §300.136
for State professional requirements to be
based on the highest requirements in the
State. The commenters stated that the
removal of this requirement relaxes the
qualification standards for speech-
language pathologists and other related
services personnel. Several commenters
stated that speech-language
professionals should be required to have
advanced degrees (i.e., master’s level)
because a bachelor’s degree does not
provide adequate preparation. Many
commenters expressed concern that the
requirements in §300.156(b) will lead to
a decline in the quality of related
services provided to children with
disabilities in public schools. Other
commenters expressed concern that
increasing the standards will exacerbate
the shortage of related services
personnel experienced by large urban
school districts.
Discussion: We are not changing
§300.156 because it reflects the specific
language in section 612(a)(14) of the
Act, which was intended to provide
greater flexibility to SEAs to establish
appropriate personnel standards,
including the standards for speech-
language pathologists. As indicated in
note 97 of the Conf. Rpt., p. 192, section
612(a)(14) of the Act removes the
requirement for State professional
requirements to be based on the highest
requirements in the State because of
concerns that the previous law,
regarding the qualifications of related
services providers, established an
unreasonable standard for SEAs to meet,
and as a result, led to a shortage of
related services providers for children
with disabilities. We believe that States
can exercise the flexibility provided in
§300.156 and section 612(a)(14) of the
Act while ensuring appropriate services
for children with disabilities without
additional regulation.
Changes: None.
Comment: Many commenters
expressed concern that §300.156(b)
establishes qualifications for related
services providers in public schools that
are less rigorous than the qualifications
for related services providers who
provide Medicaid services or services in
other public settings, such as hospitals.
The commenters stated that less
rigorous qualifications would result in a
two-tiered system in which related services providers in public schools will
be less qualified than related services
providers in other public agencies.
Another commenter expressed concern
that the relaxation of standards for
speech-language pathologists would
cause LEAs to lose Medicaid funds that
are used to assist children with
disabilities.
Discussion: Section 300.156,
consistent with section 612(a)(14)(B)(i)
of the Act, clarifies that it is up to each
SEA to establish qualifications for
personnel to carry out the purposes of
the Act. This will require weighing the
various policy concerns unique to each
State. The qualifications of related
services providers required under
Medicaid, or in hospitals and other
public settings, and the fact that
Medicaid will not pay for providers who
do not meet Medicaid provider
qualifications should serve as an
incentive for States that want to bill for
medical services on children’s IEPs to
impose consistent requirements for
qualifications of related services
providers.
Changes: None.
Comment: Some commenters stated
that related services personnel should
be considered to have met the
qualifications in §300.156(b)(1),
regarding State-recognized certification,
licensing, registration or other
comparable requirements, if such
personnel hold an academic degree
consistent with their profession’s
national certification or State license to
practice; demonstrate satisfactory
progress toward full certification in the
schools as prescribed by the State; and
assume related services personnel
functions for a specified period not to
exceed three years.
A few commenters objected to the
requirement that related services
personnel must not have had
certification or licensure requirements
waived. One commenter stated that
emergency, temporary, or provisional
certificates are necessary for
professionals relocating from different
States or different countries, and
predicted that professionals with
emergency, temporary, or provisional
certification would work for contract
agencies to bypass the requirements.
Discussion: We believe the provisions
in §300.156(b) that State qualifications
for related services personnel must
include qualifications that are
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services, are
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46611 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
sufficient to ensure related services
personnel are qualified to provide
appropriate services to children with
disabilities while maintaining the
States’ flexibility to establish
appropriate personnel standards for
related services personnel. We do not
believe, therefore, that it is necessary to
include additional regulation as
suggested by commenters.
Section 300.156(b)(2)(ii) tracks the
statutory requirement in section
612(a)(14)(B)(ii) of the Act, which
requires that related services personnel
not have certification or licensure
requirements waived on an emergency,
temporary, or provisional basis. We do
not believe this provision unnecessarily
hinders States from hiring professionals
from other States or countries. States, in
examining the credentials of prospective
related services personnel from other
States or countries, may find that their
existing certification or licensure
requirements are ones that these related
services personnel could readily meet.
Because each State has full authority to
define and enforce its own requirements
that personnel must meet in order to
receive full State certification or
licensure, States that employ related
services personnel from other States or
countries may, consistent with State law
and policy, consider establishing a
separate category of certification that
would differ from emergency,
temporary, or provisional certification
in that the State would not be waiving
any training or experiential
requirements.
Changes: None.
Comment: One commenter
recommended using nationally
recognized standards to determine the
qualifications of related services
personnel. Another commenter
recommended requiring SEAs to
consider current professional standards
in establishing appropriate
qualifications for related services
personnel. One commenter requested
adding language to the regulations to
prevent professional organizations from
establishing personnel standards for
related services personnel that override
standards set by the SEA.
Discussion: We do not believe it is
necessary to regulate as suggested by the
commenters because these matters are
better left to States to decide as States
are in the best position to determine
appropriate professional requirements
for their States. There is nothing in the
Act that requires an SEA to determine
qualifications of related services
personnel based on nationally
recognized standards or current
professional standards. Professional
organizations may establish personnel standards for related services personnel
that differ from the standards
established by a State, but section
612(a)(14) of the Act clarifies that the
State is responsible for establishing and
maintaining personnel qualifications to
ensure that related services personnel
have the knowledge and skills to serve
children with disabilities under the Act.
Changes: None.
Comment: A few commenters
requested that the regulations specify
that an SEA, and not the State, has the
authority to establish certification and
licensure qualifications of related
services personnel.
Discussion: We do not believe it is
necessary to change the regulation
because §300.156(b), which follows the
language in section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
Changes: None.
Comment: Some commenters
requested that the regulations require
related services providers who do not
meet existing State standards to be
supervised by qualified personnel.
Discussion: Related services providers
who do not meet the personnel
qualifications established by the SEA
would not be considered qualified to
serve children with disabilities under
the Act even with supervision by
qualified personnel. Section 300.156(d),
consistent with section 612(a)(14)(D) of
the Act, clarifies that each State must
ensure that LEAs take measurable steps
to recruit, hire, train, and retain highly
qualified special education personnel to
provide special education and related
services to children with disabilities
under the Act.
Changes: None.
Comment: Some commenters
recommended that the regulations
require high standards for
paraprofessionals. Several commenters
requested guidance on the appropriate
use of paraprofessionals to ensure that
paraprofessionals and assistants are not
used as a means of circumventing
certification and licensing requirements
for related services providers. A few
commenters requested language
clarifying that the elimination of the
requirement that State professional
requirements be based on the highest
requirements in the State in current
§300.136(b) must not be used to justify
the inappropriate use of
paraprofessionals or related services
providers. Another commenter asked
that the regulations require States to ensure that paraprofessionals are
properly supervised at all times. One
commenter stated that the regulations
should clarify the use of State standards
for speech-language pathology
paraprofessionals.
Discussion: We believe the provisions
in §300.156, consistent with section
612(a)(14) of the Act, are sufficient to
ensure that paraprofessionals meet high
standards and that including additional
requirements in these regulations is
unnecessary. These provisions require
an SEA to establish and maintain
qualifications to ensure that personnel,
including paraprofessionals, are
appropriately and adequately prepared
and trained, and have the content
knowledge and skills to serve children
with disabilities; and require the
qualifications for paraprofessionals to be
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services. In
addition, the ESEA requires that
paraprofessionals working in a program
supported by title I of the ESEA,
including special education
paraprofessionals who assist in
instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals (March 1,
2004), which can be found on the
Department’s Web site at: http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
With regard to the commenter
requesting that the regulations clarify
the use of State standards for speech-
language paraprofessionals, we do not
believe it is appropriate to include
clarification regarding a specific
discipline in these regulations because
the Act requires States to establish and
maintain qualifications to ensure that
paraprofessionals, including speech-
language paraprofessionals, are
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46612 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
appropriately and adequately prepared
and trained.
Section 300.156(b)(2)(iii), consistent
with section 612(a)(14)(B)(iii) of the Act,
does specifically allow
paraprofessionals and assistants who are
appropriately trained and supervised, in
accordance with State law, regulation,
or written policy, to assist in providing
special education and related services to
children with disabilities under the Act.
However, this provision should not be
construed to permit or encourage the
use of paraprofessionals as a
replacement for teachers or related
services providers who meet State
qualification standards. To the contrary,
using paraprofessionals and assistants
as teachers or related services providers
would be inconsistent with the State’s
duty to ensure that personnel necessary
to carry out the purposes of Part B of the
Act are appropriately and adequately
prepared and trained. Paraprofessionals
in public schools are not directly
responsible for the provision of special
education and related services to
children with disabilities; rather, these
aides provide special education and
related services to children with
disabilities only under the supervision
of special education and related services
personnel. We believe the provision in
§300.156(b)(2)(iii) sufficiently ensures
that paraprofessionals and assistants are
adequately supervised and further
clarification in these regulations is
unnecessary.
The Act makes clear that the use of
paraprofessionals and assistants who are
appropriately trained and supervised
must be contingent on State law,
regulation, and written policy giving
States the option of determining
whether paraprofessionals and
assistants can be used to assist in the
provision of special education and
related services under Part B of the Act,
and, if so, to what extent their use
would be permissible. However, it is
critical that States that use
paraprofessionals and assistants to assist
in providing special education and
related services to children with
disabilities do so in a manner that is
consistent with the rights of children
with disabilities to FAPE under Part B
of the Act. There is no need to provide
additional guidance on how States and
LEAs should use paraprofessionals and
assistants because States have the
flexibility to determine whether to use
them, and, if so, to determine the scope
of their responsibilities.
Changes: None.
Comment: One commenter
recommended different requirements for
paraprofessionals who perform routine
tasks and those who perform specific activities to assist in the provision of
special education and related services.
Discussion: We do not see the need to
make a change to the regulations as
suggested by the commenter because,
under §300.156, consistent with section
612(a)(14) of the Act, SEAs have the
responsibility for establishing and
maintaining qualifications to ensure that
personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained.
Furthermore, SEAs and LEAs have the
flexibility to determine the tasks and
activities to be performed by
paraprofessionals and assistants, as long
as they are consistent with the rights of
children with disabilities to FAPE.
It should be kept in mind, however,
that the ESEA has different
requirements for paraprofessionals,
including special education
paraprofessionals, who assist in
instruction in title I schools versus
paraprofessionals in title I schools who
do not provide instructional support,
such as special education
paraprofessionals who solely provide
personal care services.
Changes: None.
Comment: A number of comments
were received on the qualifications for
special education teachers in
§300.156(c) that were similar to the
comments received regarding the
definition of highly qualified special
education teacher in §300.18.
Discussion: We combined and
responded to these comments with the
comments received in response to the
requirements in §300.18.
Changes: None.
Comment: Some commenters
requested that the regulations allow
alternative routes to certification for
related services personnel and other
non-teaching personnel, just as such
routes are allowed for highly qualified
teachers.
Discussion: As we stated earlier in
this section, section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
While the Act does not address
alternative routes to certification
programs for related services personnel
or other non-teaching personnel, there is
nothing in the Act or the regulations
that would preclude a State from
providing for alternate routes for
certification for related services
personnel or other non-teaching
personnel. It is, however, up to a State
to determine whether related services or non-teaching personnel participating in
alternative routes to certification
programs meet personnel requirements
established by the State, consistent with
the requirements in §300.156 and
section 612(a)(14) of the Act.
Changes: None.
Comment: Many commenters
recommended that §300.156 provide
more guidance to ensure that States and
LEAs implement proven strategies for
recruiting and retaining qualified
personnel. A few commenters stated
that this is especially important for
speech-language pathologists because
large caseloads, increased paperwork,
and lack of time for planning and
collaboration have been shown to
contribute to their burn out and
attrition. Several commenters
recommended that strategies to recruit
and retain qualified personnel include
reasonable workloads, improved
working conditions, incentive programs,
salary supplements, loan forgiveness,
tuition assistance, signing bonuses,
streamlined application processes, State
and national advertising venues, school
and university partnerships, release
time for professional development,
certification reciprocity between States,
grants to LEAs for recruitment and
retention programs, alternate
professional preparation models,
caseload size standards, and classroom
size standards.
One commenter requested that the
requirements to recruit, hire, train, and
retain highly qualified personnel in
§300.156(d) apply to paraprofessionals
who provide special education and
related services.
Discussion: The list of strategies
recommended by the commenters
includes many strategies that may be
effective in recruiting and retaining
highly qualified personnel; however, we
do not believe it is appropriate to
include these or other strategies in our
regulations because recruitment and
retention strategies vary depending on
the unique needs of each State and LEA.
States and LEAs are in the best position
to determine the most effective
recruitment and retention strategies for
their location.
With regard to the comment regarding
the applicability of §300.156(d) to
paraprofessionals who provide special
education and related services,
§300.156(d), consistent with section
612(a)(14)(C) of the Act, applies to all
personnel who provide special
education and related services under the
Act, including paraprofessionals.
Changes: None.
Comment: A few commenters stated
that the rule of construction in
§300.156(e) is inconsistent with the rule
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46613 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
of construction in the definition of
highly qualified teacher in proposed
§300.18(e). Some commenters requested
that the regulations clarify that the rule
of construction in §300.156(e) is
applicable to both administrative and
judicial actions.
A few commenters requested that the
regulations specify that a parent may
file a State complaint with the State
regarding failure of their child to receive
FAPE because staff is not highly
qualified. However, several commenters
stated that parents should not be
allowed to file a State complaint under
§§300.151 through 300.153 regarding
staff qualifications.
Discussion: We agree that the rules of
construction in both proposed
§300.156(e) and proposed §300.18(e)
must be revised so that both rules are
the same. The changes will clarify that
a parent or student may not file a due
process complaint on behalf of a
student, or file a judicial action on
behalf of a class of students for the
failure of a particular SEA or LEA
employee to be highly qualified;
however, a parent may file a complaint
about staff qualifications with the SEA.
In addition to permitting a parent to file
a State complaint with the SEA, an
organization or an individual may also
file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§300.151 through 300.153. We believe
that this is appropriate given the
wording of section 612(a)(14)(E) of the
Act ‘‘ * * * or to prevent a parent from
filing a complaint about staff
qualifications with the State educational
agency’’ and incorporated in the
regulations in §300.156(e) and new
§300.18(f) (proposed §300.18(e)). By
incorporating the wording from the
construction clause in section
612(a)(14)(E) of the Act in the
regulations as previously noted, parents
and other interested parties, may seek
compliance through the State complaint
process.
Changes: We have added ‘‘or a class
of students’’ to §300.156(e) to clarify
that a judicial action on behalf of a class
of students may not be filed for failure
of a particular SEA or LEA employee to
be highly qualified. We have substituted
the word, ‘‘employee’’ for ‘‘staff person’’
to be more precise and for consistency
with the rule of construction in new
§300.18(f) (proposed §300.18(e)). We
have also reformatted §300.156(e).
Comment: Some commenters
recommended adding language to the
regulations restricting a parent’s right to
file a complaint regarding an LEA’s
failure to take measurable steps to recruit, hire, train, and retain highly
qualified personnel.
Discussion: We believe the regulations
do not need clarification. Section
§300.151(a) is sufficiently clear that an
organization or individual may file a
State complaint under §§300.151
through 300.153 alleging a violation of
a requirement of Part B of the Act or of
this part. This includes the requirement
that an LEA take measurable steps to
recruit, hire, train, and retain highly
qualified personnel consistent with
section 612(a)(14)(D) of the Act.
Changes: None.
Comment: Some commenters
requested that the regulations clarify
that, unless the State has statutory
control over district staffing, parents
cannot obtain compensatory damages or
services or a private school placement
based on the lack of highly qualified
personnel.
Discussion: We do not agree that the
exception requested by the commenter
should be added to the regulations
because new §300.18(f) (proposed
§300.18(e)), and §300.156(e) are
sufficiently clear that nothing in part
300 shall be construed to create a right
of action on behalf of an individual
child for the failure of a particular SEA
or LEA staff person to be highly
qualified.
Changes: None.
Comment: One commenter
recommended that the qualifications of
all personnel should be made a matter
of public record.
Discussion: To do as the commenter
recommends would add burden for
local school personnel and it is not
required under the Act. In contrast, title
I of the ESEA required that LEAs
receiving title I funds provide parents,
at their request, the qualifications of
their children’s classroom teachers.
There is nothing in the Act or these
regulations, however, which would
prevent an SEA or LEA from adopting
such a policy should it wish to do so.
In the absence of a congressional
requirement in the Act, such policies
are matters best left to State law.
Section 1111(h)(6) of the ESEA
requires LEAs to inform parents about
the professional qualifications of their
children’s classroom teachers. The
ESEA requires that at the beginning of
each school year, an LEA that accepts
title I, part A funding must notify
parents of students in title I schools that
they can request information regarding
their children’s classroom teachers,
including, at a minimum: (1) Whether
the teacher has met the State
requirements for licensure and
certification for the grade levels and
subject-matters in which the teacher provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide each parent timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to special
education teachers who teach core
academic subjects in Title I schools.
Changes: None.
Performance Goals and Indicators
(§300.157)
Comment: Several commenters
recommended that the regulations retain
current §300.137(a)(2), which requires
that States have goals for the
performance of children with
disabilities in the State that are
consistent, to the maximum extent
appropriate, with other goals and
standards for all children established by
the State. The commenters specifically
objected to the removal of the word
‘‘maximum’’ before ‘‘extent
appropriate;’’ and the removal of the
word ‘‘all’’ before ‘‘children’’ in
§300.157(a)(4).
Discussion: Section 612(a)(15)(A)(iv)
of the Act specifically removed the
words in current §300.137(a)(2) that the
comment references. Therefore, we
believe that it would be contrary to the
intent of the statutory drafters to restore
these words to the regulatory provision.
Changes: None.
Comment: A few commenters
requested that the regulations in
§300.156(b) require States to involve
parent centers in establishing the
performance goals and indicators and
measurable annual objectives for
children with disabilities.
Discussion: We encourage broad
stakeholder involvement in the
development of performance goals,
indicators, and annual objectives for
children with disabilities, including the
involvement of parent centers. We see
no need to single out a particular group,
however. The regulations in §300.165(a)
already require specific public
participation in the adoption of policies
and procedures needed to demonstrate
eligibility under Part B, including this
requirement.
Changes: None.
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46614 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Participation in Assessments (Proposed
§300.160)
Comment: None.
Discussion: Participation in
assessments is the subject of a notice of
proposed rulemaking published in the
Federal Register on December 15, 2005
(70 FR 74624) to amend the regulations
governing programs under title I of the
ESEA and Part B of the Act, regarding
additional flexibility for States to
measure the achievement of children
with disabilities based on modified
achievement standards.
Changes: Therefore, we are removing
proposed §300.160 and designating the
section as ‘‘Reserved.’’
Supplementation of State, Local, and
Other Federal Funds (§300.162)
Comment: One commenter disagreed
with the removal of current §300.155,
which requires that States have policies
and procedures on file with the
Secretary to ensure that funds paid to
the State under Part B of the Act are
spent in accordance with the provisions
of Part B.
Discussion: Current §300.155 was
removed from these regulations
consistent with section 612(a)(17) of the
Act. The removal of this requirement is
also consistent with section 612(a) of
the Act, which requires a State to
submit a plan that provides assurances
to the Secretary that the State has in
effect policies and procedures to ensure
that the State meets the requirements of
the Act rather than submitting the actual
policies and procedures to the
Department. To alleviate burden,
Congress removed the statutory
provisions which required that States
have policies and procedures on file
with the Secretary to ensure that funds
paid to the State under Part B of the Act
are spent in accordance with the
provisions of Part B. OSEP continues to
have responsibility to ensure that States
are properly implementing the Act.
Given the statutory change that
Congress made to remove the prior
requirement, we believe it would be
inappropriate to include it in these
regulations.
Changes: None.
Maintenance of State Financial Support
(§300.163)
Comment: One commenter requested
that §300.163(c)(1), regarding waivers
for maintenance of State financial
support for exceptional or
uncontrollable circumstances, provide
examples of what would be considered
a precipitous and unforeseen decline in
the State’s financial resources.
Discussion: We decline to limit the
Secretary’s discretion in these matters in the abstract. The Secretary makes the
determinations regarding these waivers
on a case-by-case basis and given the
facts and circumstances at the time such
a request is made.
Changes: None.
Public Participation (§300.165)
Comment: Several commenters
objected to the removal of current
§§300.280 through 300.284, regarding
public participation, and recommended
that all provisions, including those
related to public hearings, comment
periods, and review of public comments
be restored.
Discussion: We do not believe it is
necessary to retain in the regulations the
requirements in current §§300.280
through 300.284 because the provisions
in §300.165 and GEPA, in 20 U.S.C.
1232d(b)(7), provide sufficient
opportunities for public participation.
We also believe retaining the
requirements in §§300.280 through
300.284 would place unnecessary
regulatory burden on States. Section
300.165(a) incorporates the language in
section 612(a)(19) of the Act, regarding
public participation in the adoption of
policies and procedures to implement
Part B of the Act, and requires States to
ensure that there are public hearings,
adequate notice of hearings, and an
opportunity for comment available to
the general public. Furthermore,
paragraph (b) of this section requires
States to comply with the public
participation requirements of GEPA, in
20 U.S.C. 1232d(b)(7), before submitting
a State plan under this part. In
accordance with the GEPA requirement,
the State must assure that it will provide
reasonable opportunities for
participation by local agencies,
representatives of the class of
individuals affected by programs under
this part and other interested
institutions, organizations, and
individuals in the planning for the
operation of programs under this part.
GEPA also requires that the State
publish each proposed State plan under
this part, in a manner that will ensure
circulation throughout the State, at least
60 days prior to the date on which the
State plan is submitted to the Secretary
or on which the State plan becomes
effective, whichever occurs earlier, with
an opportunity for public comments on
such plan to be accepted for at least 30
days. In addition, the State must comply
with any State-specific public
participation requirements in adopting
policies and procedures related to Part
B of the Act.
Changes: None.
Comment: One commenter requested
that the regulations define the meaning of ‘‘adequate notice’’ as it is used in
§300.165(a) to ensure that there is
adequate notice of public hearings prior
to adopting any policies and procedures
needed to comply with Part B of the
Act.
Discussion: We do not think it is
appropriate or necessary to include in
the regulations a definition of ‘‘adequate
notice’’ because what constitutes
‘‘adequate notice’’ will vary depending
on the unique circumstances in each
State and we believe States should have
the flexibility of determining and
applying a workable and reasonable
standard that meets their circumstances
to ensure public participation at public
hearings. We believe it would be
reasonable for the State to assume that
it provided adequate notice if, at its
public hearings, there were sufficient
representatives of the general public,
including individuals with disabilities
and parents of children with
disabilities, in attendance.
Changes: None.
Comment: One commenter requested
that the regulations require States to
provide notices of public hearings in
multiple languages and alternative
formats.
Discussion: It is unnecessary to
include regulations requiring States to
provide notice of public hearings in
multiple languages and alternative
formats. Public agencies are required by
other Federal statutes to take
appropriate actions to ensure that the
public has access, in alternative formats
and languages other than English, to
public hearings. The other Federal
statutory provisions that apply in this
regard are section 504 of the
Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR
part 104 (prohibiting discrimination on
the basis of disability by recipients of
Federal financial assistance), title II of
the Americans With Disabilities Act and
its implementing regulations in 28 CFR
part 35 (prohibiting discrimination on
the basis of disability by public entities,
regardless of receipt of Federal funds),
and title VI of the Civil Rights Act of
1964 and its implementing regulations
in 34 CFR part 100 (prohibiting
discrimination on the basis of race,
color, or national origin by recipients of
Federal financial assistance).
Changes: None.
Comment: One commenter requested
that the regulations require States to
work with the parent centers to identify
appropriate locations and times for
public hearings.
Discussion: There is nothing in the
Act or these regulations that would
prohibit a State from working with the
parent centers to identify appropriate
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46615 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
locations and times for public hearings,
but we see no need to require States to
do so. We believe that this matter
should be left to State discretion.
Changes: None.
Rule of Construction (§300.166)
Comment: One commenter requested
clarification regarding the use of Federal
funds to offset decreases in State
formula allocations to LEAs that use
attendance, enrollment, or inflation as
elements of the State funding formula
for special education.
Discussion: Section 300.166 was
added to incorporate language in section
612(a)(20) of the Act. It specifies that
States with laws that require a specific
level of funding to their LEAs cannot
use Federal Part B funds for this
purpose.
Changes: None.
State Advisory Panel
State Advisory Panel (§300.167)
Comment: One commenter stated that
§§300.167 through 300.169 are
unnecessary and do not add any
requirements beyond those in section
612(a)(21) of the Act. The commenter
recommended removing these
requirements and stated that they can be
adequately implemented through
guidance provided by the Department
and not through regulation.
Discussion: The requirements of the
State advisory panel in §§300.167
through 300.169 reflect the specific
language in section 612(a)(21) of the
Act. We believe it is necessary to
include these statutory requirements in
the regulations to provide parents,
public agencies, and others with
information on the requirements
applicable to State advisory panels.
Changes: None.
Comment: Several commenters
recommended retaining the procedures
to govern State advisory panels in
current §300.653 and strengthening the
requirements of notice and opportunity
for public comment at State advisory
panel meetings by mandating
publication of meeting dates, agendas,
and minutes on Web sites. A few
commenters stated that eliminating the
notice requirements and the opportunity
to participate in meetings in current
§300.653(d) and (e) will result in fewer
low income, hearing-impaired, and
foreign-language speaking parents
attending State advisory panel meetings.
One commenter expressed concern that
the removal of current §300.653 will
result in less panel visibility, less public
participation, and that State advisory
panels will become ‘‘rubber-stamps’’ for
positions taken by State officials. One commenter stated that the removal of
the requirements in current §300.653
weakens the protection of children with
disabilities, and, therefore, violates
section 607(b) of the Act.
Discussion: The requirements in
current §300.653 were removed to
provide greater State flexibility in the
operation of advisory panels. We do not
believe the removal of current §300.653
will mean that the States will not ensure
that State advisory panel meetings are
announced in advance and open to the
public because States generally have
adequate sunshine laws that ensure
public access to governmental agency
meetings. We do not believe it is
necessary to require that information
regarding State advisory panel meetings
be posted on State Web sites because
sunshine laws generally contain
provisions regarding meeting notices,
agendas, and the availability of minutes
of public meetings. However, it is
important that individuals consult the
laws governing their State and locality
on the issue of open meetings and
public access.
Section 607(b)(2) of the Act provides
that the Secretary may not implement,
or publish in final form, any regulation
pursuant to the Act that procedurally or
substantively lessens the protections
provided to children with disabilities as
embodied in regulations in effect on
July 20, 1983. We do not believe
removing from these regulations the
requirements in current §300.653
procedurally or substantively lessens
the protections provided to children
with disabilities pursuant to section
607(b)(2) of the Act because we do not
view public notice of advisory
committee meetings to be a protection
provided to children with disabilities.
Changes: None.
Membership (§300.168)
Comment: We received numerous,
specific requests to revise §300.168 to
add to the list of individuals who can
serve as members of the State advisory
panels. Some commenters
recommended requiring State advisory
panels to include representatives from
the Parent Training and Information
Centers and Community Parent
Resource Centers funded by the
Department under sections 671 and 672
of the Act because their representation
would ensure a diverse group of people
experienced with children with
different disabilities on the panels. One
commenter expressed concern that,
without representation from these
groups, panel members would make
recommendations based solely on their
individual circumstances and
backgrounds. A few commenters requested including school
psychologists and other student support
staff on State advisory panels. One
commenter suggested including a
representative of a residential treatment
facility as a member on State advisory
panels because children in these
facilities are a growing population and
have specialized needs. A few
commenters requested adding
representatives from centers for
independent living because these
individuals are experienced in
advocating for people with disabilities.
One commenter suggested including
State coordinators for education of
homeless children and youth. A few
commenters suggested including
disabled high school and postsecondary
students on the list because the
intended beneficiaries of the Act are
often denied a voice. A few commenters
proposed requiring each State advisory
panel to be racially, culturally,
linguistically, and socio-economically
representative of the State. One
commenter expressed concern that the
new regulations could lead States to
abruptly replace current panel members
causing discontinuity and decreasing
expertise, and recommended phasing in
the new requirements and allowing
panel members to complete their terms
of office.
Discussion: The membership of State
advisory panels is described in section
612(a)(21)(B) and (C) of the Act and the
Department does not agree that there is
a need to require additional
representatives or to change the panel
composition. However, nothing in the
Act or these regulations would prevent
the appointment of additional
representatives, if a State elected to add
these individuals. With respect to the
request to include State coordinators for
education of homeless children on the
panels, State and local officials who
carry out activities under the McKinney-
Vento Homeless Assistance Act are
already included in the list of
individuals identified to serve on the
State advisory panels in §300.168(a)(5).
Section 612(a)(21)(B) of the Act, as
reflected in §300.168, requires the State
advisory panel to be representative of
the State population and be composed
of individuals involved in, or concerned
with, the education of children with
disabilities. Also, the Act and these
regulations require a majority of the
panel members to be individuals with
disabilities or parents of children with
disabilities (ages birth through 26). We
also do not believe there is a need to
phase in the new requirements, as those
members that do not need to change
should provide sufficient continuity of
panel functions.
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46616 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Changes: None.
Duties (§300.169)
Comment: A few commenters
recommended requiring States to submit
any rules or regulations related to
children with disabilities to the State
advisory panel for consideration before
the rules are finalized. One commenter
requested requiring panel members to
take positions on State proposed rules
and regulations regarding the education
of children with disabilities and offer
their views to the appropriate State
agencies.
Discussion: Section 612(a)(21)(D) of
the Act clearly specifies the duties of
the State advisory panel and these
duties are accurately reflected in
§300.169. Paragraph (b) of this section
clarifies that the advisory panel must
comment publicly on any State
proposed rules or regulations regarding
the education of children with
disabilities. We believe §300.169(b) is
sufficient to ensure that the advisory
panel has the opportunity to consider
any State rules or regulations before
they are final and, accordingly, further
regulatory language is unnecessary.
Further, we believe it is inappropriate to
require that panel members ‘‘take
positions’’ on proposed rules and
regulations because to do so would be
overly controlling of the advisory panel
and may impact the panel’s ability to
effectively meet its statutory
responsibility of providing public
comment on State proposed rules and
regulations.
Changes: None.
Comment: Many commenters
suggested retaining current §300.652(b),
which requires State advisory panels to
provide advice for educating students
with disabilities in adult correctional
facilities. A few of these commenters
noted that students in adult correctional
facilities are members of one of the most
vulnerable populations.
Discussion: Given the breadth of the
State advisory panel’s statutory
responsibilities we removed from the
regulations all nonstatutory mandates
on the State advisory panel, including
the provision in current §300.652(b),
regarding advising on the education of
eligible students with disabilities who
have been convicted as adults and have
been incarcerated in adult prisons. We
believe placing such nonstatutory
mandates on the State advisory panel
may hinder the advisory panel’s ability
to effectively provide policy guidance
with respect to special education and
related services for children with
disabilities in the State. There is
nothing, however, that would prevent a
State from assigning other responsibilities to its State advisory
panel, as long as those other duties do
not prevent the advisory panel from
carrying out its responsibilities under
the Act.
Changes: None.
Access to Instructional Materials
(§300.172)
Comment: One commenter
recommended including the National
Instructional Materials Accessibility
Standard (NIMAS) in these regulations.
Discussion: We agree with the
commenter. The final NIMAS was
published in the Federal Register on
July 19, 2006 (71 FR 41084) and will be
included as Appendix C to Part 300—
National Instructional Materials
Accessibility Standard of these
regulations. We will add language in
§300.172(a) to refer to this location and
to reference the publication date of the
NIMAS in the Federal Register.
Changes: The final NIMAS has been
added as appendix C to part 300. We
have added language in §300.172(a) to
refer to the location of the NIMAS in
these regulations and the publication
date of the NIMAS in the Federal
Register.
Comment: Several commenters
expressed concern that the language
requiring States to adopt the NIMAS ‘‘in
a timely manner’’ is ambiguous and
could lead to delays in providing
instructional materials to children with
disabilities, inconsistencies across
States, and increased litigation. Several
commenters requested that the
regulations specify a timeline for States
to adopt the NIMAS. Some commenters
recommended requiring all States to
adopt the NIMAS by December 3, 2006.
However, one commenter stated that
States should not be given a deadline to
adopt the NIMAS.
A number of commenters requested
that the regulations define the meaning
of ‘‘adopt’’ in §300.172(a) and specify
what States must do to adopt the
NIMAS. Several commenters
recommended defining ‘‘adopt’’ to mean
that the State, through regulatory or
legislative procedures, designates
NIMAS as the only required source
format for publishers to convert print
instructional materials into specialized
formats for children with disabilities.
One commenter urged the Department
to define ‘‘adopt’’ to mean that a State
must accept a NIMAS file as satisfying
the publisher’s legal obligation to
provide accessible instructional
materials. Other commenters
recommended that the regulations
clearly state that adoption of the NIMAS
means that SEAs and LEAs must accept
and use electronic copies of instructional materials in the NIMAS
format that are provided by the
publishers.
Discussion: Section 300.172(a),
consistent with section 612(a)(23)(A) of
the Act, requires States to adopt the
NIMAS in a timely manner after the
publication of the NIMAS in the Federal
Register for the purpose of providing
instructional materials to blind or other
persons with print disabilities. As noted
in the discussion to the previous
comment, the NIMAS is included as
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard and was published in the
Federal Register on July 19, 2006 (71 FR
41084). The Department believes that
States should make every effort to adopt
the NIMAS in a timely manner
following the publication of the NIMAS
in the Federal Register, recognizing that
the timelines and requirements for
adopting new rules, policies, or
procedures vary from State to State.
States choosing to coordinate with the
NIMAC must, consistent with section
612(a)(23)(C) of the Act and §300.172(c)
of these regulations, not later than
December 3, 2006, as part of any print
instructional materials adoption
process, procurement contract, or other
practice or instrument used for purchase
of print instructional materials, enter
into a written contract with the
publisher of the print instructional
materials to: (1) Require the publisher to
prepare and, on or before delivery of the
print instructional materials, provide
the NIMAC with electronic files
containing the content of the print
instructional materials using the
NIMAS; or (2) purchase instructional
materials from the publisher that are
produced in, or may be rendered in,
specialized formats. Clearly, we would
expect that these States would have
adopted the NIMAS by December 3,
2006. We decline to require a specific
adoption date for all States, however,
given the lack of specificity in the Act.
We also decline to include a definition
of ‘‘adopt’’ in these regulations because
requirements for adopting new rules
and policies may vary from State to
State. The Department’s view is that it
is inherent in the adoption requirement
that, at a minimum, upon ‘‘adoption’’ of
the NIMAS, a State must accept and use
electronic copies of instructional
materials in the NIMAS format for the
purpose of providing instructional
materials to blind or other persons with
print disabilities. Under §300.172(a),
adopting the NIMAS is a State
responsibility and does not impose any
legal obligations on publishers of
instructional materials.
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46617 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Changes: We have made technical
changes in §300.172(c). For clarity, we
have replaced the phrase ‘‘not later
than’’ with ‘‘as of.’’ We have removed
the phrase ‘‘two years after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004’’ because it is unnecessary.
Comment: One commenter
recommended requiring States to
comply with the requirements for public
hearings and public comment in section
612(a)(19) of the Act before adopting
policies and procedures to implement
the requirements in §300.172 related to
access to instructional materials. The
commenter stated that all interested
members of the public, including
parents of children with disabilities, are
entitled to participate in designing the
plan for implementing these policies
and procedures.
Discussion: Section 300.165(a),
consistent with section 612(a)(19) of the
Act, requires States to hold public
hearings and receive public comment
before implementing any policies and
procedures needed to comply with Part
B of the Act. These public hearing and
public comment requirements apply to
the policies and procedures needed to
implement the requirements in
§300.172.
Changes: None.
Comment: One commenter requested
clarification on whether the NIMAS is
limited to print materials on the
medium of paper or also includes the
iconic representation of letters and
words.
Discussion: The NIMAS is the
standard established by the Secretary to
be used in the preparation of electronic
files of print instructional materials so
they can be more easily converted to
accessible formats, such as Braille. In
addition to print materials, the NIMAS
provides standards for textbooks and
related core materials where icons
replace text. Materials with icons will
be available if they are in printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act.
Changes: None.
Comment: A few commenters
recommended clarifying that providing
materials in accessible formats includes
changes in the depth, breadth, and
complexity of materials. Some
commenters stated that §300.172
should include language regarding
universal design of instructional
materials. Discussion: Section 300.172 is
consistent with section 612(a)(23) of the
Act and focuses specifically on
providing access to print instructional
materials using the NIMAS. The NIMAS
is designed to improve the quality and
consistency of print instructional
materials converted into accessible
formats for persons who are blind and
persons with print disabilities, not to
alter the content (e.g., the depth,
breadth, or complexity) of the print
instructional materials. While the
NIMAS is designed to make print
instructional materials more readily and
easily accessible to persons who are
blind and persons with print
disabilities, it is not intended to provide
materials that are universally designed.
Therefore, while the Department
acknowledges the importance of
universal design, it would be
inappropriate to reference universal
design in this section.
The NIMAS Development Center has
been charged with examining the need
for future changes in the NIMAS. This
Center, funded by the Department, is
looking at a variety of issues, including
the extent to which universal design
features should be incorporated into
future iterations of the NIMAS.
Information about the NIMAS
Development Center can be found at:
http://nimas.cast.org/.
Changes: None.
Comment: One commenter
recommended that books on tape be
made available in the same manner as
print materials.
Discussion: The conversion of text to
speech for digital talking books is one of
the accessible formats that can be
generated from a NIMAS file. The
NIMAS makes it possible for such
talking books to be generated more
efficiently so that children who need
them will receive them more quickly
than in the past. Such audio formats
will be made available for printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act. The
NIMAS does not pertain to books on
tape that are produced in sound studios.
Changes: None.
Comment: Many commenters
requested that the regulations specify
that providing instructional materials to
children with disabilities in a timely
manner means providing these materials
at the same time they are provided to
children without disabilities. One
commenter recommended defining ‘‘in a
timely manner’’ as the start of the school year or, for children who transfer
schools after the start of the school year,
within 30 days of the start of the school
year, regardless of whether a State
chooses to coordinate with the NIMAC.
Discussion: The Department agrees
that States should make every effort to
provide children with disabilities
accessible instructional materials at the
same time as other children receive
their instructional materials. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 19, which states,
‘‘The committee feels strongly that
instructional materials should be
provided to blind and print disabled
students at the same time their fellow
students without print disabilities are
receiving the same materials.’’ This
position also is consistent with H. Rpt.
No. 108–77, pp. 97–98.
However, the Department recognizes
that this may not be possible in all
circumstances, for example, when a
child with a disability transfers to a new
school in the middle of a school year.
Additionally, there could be
circumstances beyond the control of the
public agency that could prevent
children with disabilities who need
instructional materials in accessible
formats from receiving them at the same
time as instructional materials are
provided to other children, such as if
the public agency’s contractor is unable
to produce the instructional materials in
an accessible format because of some
unforeseen circumstance. In situations
such as these, it is understandable that
the accessible format materials may not
be immediately available. Therefore, we
will add a provision to the regulations
to specify that in order to meet their
obligation to provide accessible format
instructional materials in a timely way,
public agencies must take all reasonable
steps to make those instructional
materials available at the same time as
instructional materials are provided to
other children. Reasonable steps, for
example, would include requiring
publishers or other contractors to
provide instructional materials in
accessible formats by the beginning of
the school year for children whom the
public agency has reason to believe will
be attending its schools. Reasonable
steps also might include having a means
of acquiring instructional materials in
accessible formats as quickly as possible
for children who might transfer into the
public agency in the middle of the year.
Reasonable steps would not include
withholding instructional materials
from other children until instructional
materials in accessible formats are
available. To clarify that the obligation
to make instructional materials available
in a timely manner applies even to
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46618 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
States that coordinate with the NIMAC,
we are adding a new provision to that
effect. We also are clarifying that the
definitions in §300.172(e) apply to each
State and LEA, whether or not the State
or LEA chooses to coordinate with the
NIMAC.
Changes: We have amended
paragraph (b) in §300.172 by adding a
new paragraph (b)(4) requiring the SEA
to ensure that all public agencies take
all reasonable steps to provide
instructional materials in accessible
formats to children with disabilities
who need those instructional materials
at the same time as other children
receive instructional materials. We have
reorganized paragraph (c) and added a
new paragraph (c)(2) requiring States
that coordinate with the NIMAC to
provide accessible materials in a timely
manner. We have also amended
paragraph (e) by adding a new
paragraph (e)(2) to clarify that the
definitions in §300.172(e)(1) apply to
each SEA and LEA whether or not the
SEA or LEA chooses to coordinate with
the NIMAC. We have made technical
changes to §300.172(e) and renumbered
§300.172(e) to be consistent with this
change.
Comment: Many commenters
expressed concern that the regulations
fail to ensure timely access to
instructional materials for children with
other types of disabilities besides print
disabilities. One commenter
recommended clarifying that children
do not have to be blind or have print
disabilities to fit into the description of
children who need accessible materials.
However, another commenter stated that
§300.172(b)(3), which require SEAs to
be responsible for providing accessible
materials for children for whom
assistance is not available from the
NIMAC, should be removed because the
Act does not include these
requirements.
A few commenters requested adding a
regulation to clarify that the
requirements in §300.172 do not apply
if an SEA is not responsible for
purchasing textbooks. The commenters
stated that if an SEA cannot purchase
textbooks, it has no legal relationship
with textbook publishers and cannot
comply with the requirements in
§300.172.
Discussion: Timely access to
appropriate and accessible instructional
materials is an inherent component of a
public agency’s obligation under the Act
to ensure that FAPE is available for
children with disabilities and that
children with disabilities participate in
the general curriculum as specified in
their IEPs. Section 300.172(b)(3)
provides that nothing relieves an SEA of its responsibility to ensure that children
with disabilities who need instructional
materials in accessible formats, but who
do not fall within the category of
children who are eligible to receive
materials produced from NIMAS files
obtained through the NIMAC, receive
those instructional materials in a timely
manner. Therefore, we do not believe
that any further clarification is
necessary. Even SEAs that are not
directly responsible for purchasing
textbooks have this responsibility. In
short, we believe these regulations are
necessary to fully implement the Act.
Changes: None.
Comment: One commenter stated that
all children with disabilities should
receive assistance from the NIMAC.
Discussion: We disagree with the
commenter. Section 674(e) of the Act
limits the authority of the NIMAC to
provide assistance to SEAs and LEAs in
acquiring instructional materials for
children who are blind, have visual
disabilities, or are unable to read or use
standard print materials because of
physical limitations, and children who
have reading disabilities that result from
organic dysfunction, as provided for in
36 CFR 701.6. Clearly, SEAs and LEAs
that choose to use the services of the
NIMAC will be able to assist blind
persons or other persons with print
disabilities who need accessible
instructional materials through this
mechanism. However, SEAs and LEAs
still have an obligation to provide
accessible instructional materials in a
timely manner to other children with
disabilities who also may need
accessible materials even though their
SEA or LEA may not receive assistance
from the NIMAC, as provided in
§§300.172(b)(3) and 300.210(b).
Changes: None.
Rights and Responsibilities of SEAs
(§300.172(b))
Comment: Many commenters
expressed concern about allowing States
to choose not to coordinate with the
NIMAC. A few commenters stated that
coordination with the NIMAC should be
mandatory for all States. One
commenter recommended that the
Department strongly encourage States to
coordinate with the NIMAC, because it
may be difficult for States to provide the
assurances required in §300.172(b)(2) if
they choose not to coordinate with the
NIMAC. A few commenters
recommended that States that cannot
demonstrate a past history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC. Discussion: It would be inconsistent
with section 612(a)(23)(B) of the Act to
make coordination with the NIMAC
mandatory for all States or to require
certain States to coordinate with the
NIMAC (e.g., States that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner), as suggested by the
commenters. Section 612(a)(23)(B) of
the Act provides that nothing in the Act
shall be construed to require any SEA to
coordinate with the NIMAC.
Changes: None.
Comment: Several commenters
requested that the regulations clearly
define the process for a State to choose
not to coordinate with the NIMAC. A
few commenters requested additional
details on what assurances States must
provide if they choose not to coordinate
with the NIMAC. Other commenters
requested that State assurances provide
the public with information to evaluate
the capacity of the State to provide
materials to children who are blind or
have print disabilities. Some
commenters stated that the assurances
provided by States that choose not to
coordinate with the NIMAC should be
done annually and in writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which States choose not to coordinate
with the NIMAC. A few commenters
requested that the Department publish
the assurances made by SEAs that
choose not to coordinate with the
NIMAC. Some commenters stated that
SEAs that choose to coordinate with the
NIMAC should be required to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC.
Discussion: Section 300.172(b)(2),
consistent with section 612(a)(23)(B) of
the Act, requires SEAs that choose not
to coordinate with the NIMAC to
provide an assurance to the Secretary
that the agency will provide
instructional materials to blind persons
and other persons with print disabilities
in a timely manner. As part of a State’s
application for Part B funds, §300.100
and section 612(a) of the Act require
States to provide assurances to the
Secretary that the State has in effect
policies and procedures to ensure that
the State meets the conditions of
eligibility. (The Part B Annual State
Application for 2006, OMB No. 1820–
0030, can be found at: http://
www.ed.gov/fund/grant/apply/osep/
2006apps.html.)
Therefore, the Department will
compile a list of the States that choose
to coordinate with the NIMAC and those
that do not, and will make this list
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46619 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
available on OSEP’s monitoring Web
site at: http://www.ed.gov/policy/
speced/guid/idea/monitor/index.html.
Section 612(a)(23)(B) of the Act does
not mandate that States coordinate with
the NIMAC or place conditions on
which States can choose to coordinate
with the NIMAC. Therefore, it is
unnecessary to require a State’s
assurance to include information on its
capacity to provide instructional
materials to children who are blind or
have print disabilities, as commenters
recommended.
We do not believe it is appropriate to
regulate to require States to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC. Under
§300.149 and section 612(a)(11) of the
Act, States are responsible for ensuring
that LEAs in the State meet the
requirements of the Act, including
providing instructional materials to
blind persons or other persons with
print disabilities in a timely manner. As
stated in §300.210 and section
613(a)(6)(B) of the Act, if an LEA
chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Changes: None.
Comment: Some commenters
proposed that the regulations require
States that choose not to coordinate
with the NIMAC to annually report to
the public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the State has
taken to ensure that materials will be
provided at the same time as materials
are provided to children without
disabilities. One commenter stated that,
if a State chooses not to coordinate with
the NIMAC, the State should be
required to submit data to the
Department on the number of children
with print disabilities served by the
State and when those children received
the accessible version of print
instructional materials compared with
when other children received their
materials. Other commenters
recommended that States choosing not
to coordinate with the NIMAC should
be required to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion: It would be unfair to
impose additional data collection and
reporting requirements, such as those
requested by the commenters, only on
those States that choose not to
coordinate with the NIMAC. All States, regardless of whether they choose to
coordinate with the NIMAC, must
ensure that children with disabilities
who need instructional materials in
accessible formats receive instructional
materials in a timely manner, consistent
with §300.172(b)(3).
Furthermore, even States that choose
to coordinate with the NIMAC will need
to take steps to ensure that the
instructional materials for children
eligible to receive print instructional
materials derived from NIMAS files are
received in a timely manner. As
provided in section 674(e)(3)(A) of the
Act, the NIMAC is a distribution center
for NIMAS files obtained from
publishers, SEAs, and LEAs. Section
612(a)(23) of the Act requires SEAs that
choose to coordinate with the NIMAC to
enter into written contracts with
publishers to require the publishers to
provide electronic files using the
NIMAS to the NIMAC on, or before,
delivery of the print instructional
materials to the SEA.
The NIMAC is not responsible for
converting NIMAS files to the accessible
formats needed by the children eligible
to receive print instructional materials
derived from NIMAS files. All States
will need to arrange to have the NIMAS
files converted to student-ready versions
of instructional materials in the
accessible formats needed by these
children.
Changes: None.
Comment: One commenter requested
that the Department provide
information and training to States and
LEAs on the NIMAC so that they can
make an informed choice regarding
whether to coordinate with the NIMAC.
Another commenter recommended that
the Department provide written
guidance for States and LEAs regarding
the NIMAS and the NIMAC.
Discussion: The Department
recognizes the need to provide
information to SEAs and LEAs regarding
the NIMAS and the NIMAC and will
provide technical assistance through the
NIMAS Technical Assistance Center
after the Department has approved the
NIMAC procedures.
Changes: None.
Preparation and Delivery of Files
(§300.172(c))
Comment: One commenter
recommended that the regulations
require instructional materials provided
to children with disabilities to be
complete and accurate. Another
commenter requested requiring
publishers to provide copies of the
original books to the NIMAC along with
the electronic files, because a copy of
the original book is necessary for alignment of page numbers and
descriptions of pictures.
Discussion: We understand and
appreciate the importance of having a
copy of the original material to ensure
accuracy of the files. However, the
NIMAC is not responsible for ensuring
the accuracy of materials, aligning page
numbers, or describing pictures. Rather,
the NIMAC is a distribution center for
NIMAS files obtained from publishers,
SEAs, and LEAs. Consistent with
section 674(e)(3)(A) of the Act, the
duties of the NIMAC are to receive and
maintain a catalog of print instructional
materials prepared in the NIMAS format
and made available to the NIMAC by the
textbook publishing industry, SEAs, and
LEAs. Accessible, student-ready
versions of instructional materials are
created from NIMAS source files by
national third-party conversion
organizations; regional or State
conversion sources; desktop
applications created by software
developers; or curriculum publishers
that produce accessible alternate format
versions for direct sale to SEAs and
LEAs. The Act does not authorize the
Department to impose obligations on
such entities to provide accurate
materials. States and LEAs that contract
with such entities, however, may wish
to require the accuracy of such
materials, including the alignment of
page numbers and descriptions of
pictures, as part of their agreements.
Changes: None.
Comment: One commenter suggested
that the regulations permit an SEA to
receive assistance from the NIMAC,
even if the SEA is not formally
coordinating with the NIMAC.
Discussion: The Act does not require
the NIMAC to provide assistance to
SEAs if the SEA has chosen not to
coordinate with the NIMAC. However,
there is nothing in the Act that would
prevent the NIMAC from doing so. As
stated in section 674(e)(2)(B) of the Act,
the NIMAC must provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary and
secondary schools, in accordance with
such terms and procedures as the
NIMAC may prescribe. Providing this
access could include assisting an SEA,
even if the SEA has chosen not to
coordinate with the NIMAC.
Changes: None.
Comment: One commenter
recommended that the regulations
include an accountability mechanism so
that parents and schools know whether
the State or LEA is responsible for the
timely delivery of instructional
materials.
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46620 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Discussion: Whether instructional
materials are purchased by the State or
LEA is a State matter. The Act does not
authorize the Department to impose
obligations on States or LEAs with
respect to the process for timely
delivery of instructional materials.
Changes: None.
Comment: One commenter
emphasized the need to track the
progress and monitor the advancement
of accessible materials on a national and
regional level. Another commenter
stated that there is a need to establish
SEA and LEA baseline data regarding
the timeliness, quality, and quantity of
alternate formats in schools. One
commenter stated that States should be
required to publicize information
regarding whether the State is meeting
its responsibilities to provide accessible
materials to persons who are blind or
other persons with print disabilities in
a timely manner.
Discussion: We believe that it would
be overly burdensome to require States
to collect and report data on the
timeliness, quality, and quantity of
alternate formats provided to children
with disabilities in order to track the
availability of accessible materials for
children with disabilities on a regional
or national level. Under the State
complaint procedures, States are
responsible for resolving complaints
alleging violations of requirements
under the Act, including this one.
Changes: None.
Comment: One commenter requested
information on the scope of the
NIMAC’s responsibilities.
Discussion: The duties of the NIMAC
are specified in section 674(e)(2) of the
Act and include: (a) receiving and
maintaining a catalog of print
instructional materials prepared in the
NIMAS format; (b) providing access to
print instructional materials in
accessible media, free of charge to blind
or other persons with print disabilities
in elementary schools and secondary
schools; and (c) developing, adopting,
and publishing procedures to protect
against copyright infringement, with
respect to print instructional materials
provided under sections 612(a)(23) and
613(a)(6) of the Act.
Section 674(c) of the Act provides that
NIMAC’s duties apply to print
instructional materials published after
July 19, 2006, the date on which the
final rule establishing the NIMAS is
published in the Federal Register (71
FR 41084). The Department interprets
‘‘publish’’ to have the plain meaning of
the word, which is to issue for sale or
distribution to the public. The NIMAC’s
duties, therefore, apply to print
instructional materials made available to the public for sale after the NIMAS
is published in the Federal Register.
However, this does not relieve SEAs and
LEAs of their responsibility to provide
accessible instructional materials in a
timely manner, regardless of when the
instructional materials were
‘‘published.’’
Changes: None.
Comment: A few commenters
expressed concern that the regulations
do not specify the structure and
operation of the NIMAC. One
commenter requested that the
Department provide more information
about the operation of the NIMAC.
Another commenter recommended that
the NIMAC’s management board
include representatives of authorized
entities. One commenter requested
information on the legal protections that
the Department will provide to the
NIMAC. Another commenter requested
specific information on the process and
timing of the funding of the NIMAC.
One commenter recommended a
timeline with a series of activities (e.g.,
establishment of a cooperative
agreement, cost projections) to ensure
that the NIMAC is operational. Another
commenter recommended that the
Department develop a process to ensure
that the files included in the NIMAC are
NIMAS compliant, complete, and of the
highest quality. One commenter
expressed concern about how NIMAS
files will be bundled and delivered to
the NIMAC.
Discussion: We do not believe that
regulations on the structure, operation,
or budget of the NIMAC are necessary.
Section 674(e) of the Act establishes the
NIMAC through the American Printing
House for the Blind (APH) and allows
the NIMAC to prescribe terms and
procedures to perform its duties under
the Act. The Department’s Office of
Special Education Programs (OSEP) will
oversee the administration of the
NIMAC through a cooperative
agreement with the APH and will work
with the NIMAC to establish its
structure, operating procedures, and
budget. The NIMAC procedures will be
available on the NIMAC Web site at:
http://www.nimac.us.
Changes: None.
Comment: One commenter stated that
the duties of the NIMAC to receive and
maintain electronic files of instructional
materials provided by publishers should
not be misconstrued as imposing a duty
on the NIMAC itself to use the NIMAS
files to reproduce the instructional
materials in accessible formats for
children with print disabilities.
Discussion: The Act clarifies that the
NIMAC is not responsible for producing
instructional materials in accessible formats. As stated in section 674(e)(2) of
the Act, the NIMAC receives and
maintains a catalog of print
instructional materials prepared in the
NIMAS, and made available to the
NIMAC by the textbook publishing
industry, SEAs, and LEAs.
Changes: None.
Comment: One commenter expressed
concern about clear guidance regarding
electronic rights. Another commenter
recommended that the regulations
require the NIMAC to develop a user
agreement that any entity seeking access
to a NIMAS file must sign. The
commenters stated that the agreement
should detail the entities that are
eligible under Federal copyright law
and the Act to access the NIMAS files,
the alternate formats that may be
produced, and any other restrictions on
the dissemination and use of NIMAS
files.
One commenter stated that the
regulations should require that the
authorized entities have full, complete,
and immediate access to deposited files
and clarify that the authorized entities
are responsible for reproducing the
instructional materials in an accessible
format and therefore, the files housed by
the NIMAC should be free of charge.
Another commenter stated that the
Department should ensure that NIMAS
books are available to all authorized
entities and the appropriate State
organizations within five days after the
books are deposited in the NIMAC.
Discussion: We do not believe it is
appropriate or necessary to regulate on
the authorized entities eligible to have
access to the NIMAS files. Under
section 674(e)(2)(C) of the Act, the
NIMAC is required to develop, adopt,
and publish procedures to protect
against copyright infringement, with
respect to the print instructional
materials produced using the NIMAS
and provided by SEAs and LEAs to
blind persons or other persons with
print disabilities. Such procedures will
address, for example, information
regarding the authorized entities that are
eligible to have access to NIMAS files,
responsibilities of such authorized
entities, and how and when access will
be provided. The NIMAC procedures
will be available on the NIMAC Web
site at: http://www.nimac.us.
Changes: None.
Comment: One commenter suggested
several changes in the process to make
Braille copies of instructional materials
including constructing directions for
choosing answers in universal terms,
such as ‘‘write the correct response,’’
rather than ‘‘circle’’ or ‘‘underline;’’
describing, in writing, visuals that
cannot be easily interpreted; using hard
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46621 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
paper for Braille and raised drawings,
rather than thermoform; using hard-
bound bindings for text, rather than
plastic spiral binders; using audio
formats as supplemental materials; and
using simple graphics with easy access
to map keys on the same page.
Discussion: Procedures for Braille
transcribers and for conversion entities
are the responsibility of SEAs and LEAs
and, as such, are beyond the scope of
these regulations.
Changes: None.
Comment: One commenter
recommended that software companies
routinely create desktop publishing
programs that contain text to speech
capabilities.
Discussion: It is beyond the
Department’s authority to impose
requirements on software companies.
Changes: None.
Comment: One commenter
recommended that a NIMAS style guide
be developed that is textbook specific.
Discussion: The NIMAS Technical
Assistance Center will develop a best
practices Web page with exemplars and
a style guide. This technical assistance
resource will be available at: http://
nimas.cast.org.
Changes: None.
Assistive Technology (§300.172(d))
Comment: A few commenters
requested that the regulations clarify
that the ‘‘assistive technology
programs,’’ referred to in §300.172(d),
are the programs established in each
State pursuant to the Assistive
Technology Act of 1998, as amended.
Discussion: Section 300.172(d) and
section 612(a)(23)(D) of the Act provide
that in carrying out the requirements in
§300.172, the SEA, to the maximum
extent possible, must work
collaboratively with the State agency
responsible for assistive technology
programs. Section 612(a)(23)(D) of the
Act does not refer to any particular
assistive technology program. Therefore,
we interpret broadly the phrase ‘‘State
agency responsible for assistive
technology programs’’ to mean the
agency determined by the State to be
responsible for assistive technology
programs, which may include programs
established under section 4 of the
Assistive Technology Act of 1998, as
amended.
Changes: None.
Definitions (§300.172(e))
Comment: Several commenters
requested that §300.172(e) include the
full definition of terms, rather than the
citations to the definitions in the laws.
A number of commenters requested that the regulations include a definition of
‘‘persons with print disabilities.’’
Discussion: We have published the
NIMAS as Appendix C to Part 300—
National Instructional Materials
Accessibility Standard of these
regulations, which will include the
definition of NIMAS from section
674(e)(3)(B) of the Act.
The definition of the NIMAC in new
§300.172(e)(1)(ii) (proposed
§300.172(e)(2)) and section
612(a)(23)(E)(i) of the Act refers to the
center established pursuant to section
674(e) of the Act. Paragraph (e)(1) in
section 674 of the Act establishes the
center at the APH and paragraph (e)(2)
outlines the duties of the NIMAC. We
do not believe it is necessary to include
this information in the regulations in
order to implement the requirements of
the Act, but will include it here for the
convenience of the readers.
National Instructional Materials
Access Center or NIMAC means the
center established pursuant to section
674(e) of the Act. Section 674(e) of the
Act provides, in part, that—
(1) In general. The Secretary shall
establish and support, through the
American Printing House for the Blind,
a center to be known as the ‘‘National
Instructional Materials Access Center’’
not later than one year after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004.
(2) Duties. The duties of the NIMAC
are the following:
(A) To receive and maintain a catalog
of print instructional materials prepared
in the NIMAS, as established by the
Secretary, made available to such center
by the textbook publishing industry,
State educational agencies, and local
educational agencies.
(B) To provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary schools
and secondary schools, in accordance
with such terms and procedures as the
NIMAC may prescribe.
(C) To develop, adopt and publish
procedures to protect against copyright
infringement, with respect to the print
instructional materials provided under
sections 612(a)(23) and 613(a)(6).
The definitions of blind persons or
other persons with print disabilities and
specialized format both refer to statutes
other than the Act. For the reasons set
forth earlier in this notice, we are
referencing the definitions of terms in
§300.172(e), rather than adding them to
these regulations. However, we will
include them here for the convenience
of the readers. The Library of Congress regulations
(36 CFR 701.6(b)(1)) related to the Act
to Provide Books for the Adult Blind
(approved March 3, 1931, 2 U.S.C. 135a)
provide that blind persons or other
persons with print disabilities include:
(i) Blind persons whose visual acuity,
as determined by competent authority,
is 20/200 or less in the better eye with
correcting glasses, or whose widest
diameter if visual field subtends an
angular distance no greater than 20
degrees.
(ii) Persons whose visual disability,
with correction and regardless of optical
measurement, is certified by competent
authority as preventing the reading of
standard printed material.
(iii) Persons certified by competent
authority as unable to read or unable to
use standard printed material as a result
of physical limitations.
(iv) Persons certified by competent
authority as having a reading disability
resulting from organic dysfunction and
of sufficient severity to prevent their
reading printed material in a normal
manner.
Competent authority is defined in 36
CFR 701.6(b)(2) as follows:
(i) In cases of blindness, visual
disability, or physical limitations
‘‘competent authority’’ is defined to
include doctors of medicine, doctors of
osteopathy, ophthalmologists,
optometrists, registered nurses,
therapists, professional staff of
hospitals, institutions, and public or
welfare agencies (e.g., social workers,
case workers, counselors, rehabilitation
teachers, and superintendents).
(ii) In the case of a reading disability
from organic dysfunction, competent
authority is defined as doctors of
medicine who may consult with
colleagues in associated disciplines.
Specialized formats has the meaning
given the term in section 121(d)(4) of
title 17, United States Code:
(A) Braille, audio, or digital text
which is exclusively for use by blind or
other persons with disabilities.
(B) With respect to print instructional
materials, includes large print formats
when such materials are distributed
exclusively for use by blind or other
persons with disabilities.
Changes: As noted earlier, we have
amended paragraph (e) of §300.172 by
adding a new paragraph (e)(2) to clarify
that the definitions in §300.172(e)(1)
apply to each SEA and LEA whether or
not the SEA or LEA chooses to
coordinate with the NIMAC. We have
made technical changes to §300.172(e)
and renumbered §300.172(e) to be
consistent with this change.
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46622 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Prohibition on Mandatory Medication
(§300.174)
Comment: A few commenters
expressed concern that the regulations
do not provide sufficient guidance on
what school personnel can
communicate to parents regarding
medication. The commenters stated that
in the absence of additional guidance,
the regulations have the unintended
effect of preventing school personnel
from speaking openly with parents
regarding classroom behavior, options
for addressing behavior problems, and
the impact of a child’s medication on
classroom behavior. Further, the
commenters requested that the
regulations do more to encourage school
personnel to recommend evaluations for
children with behavior problems and
communicate openly with parents about
the effectiveness of treatment, and
protect school personnel. Other
commenters recommended requiring
school personnel to inform parents if
they suspect that a child’s behavior may
be related to a disability.
Discussion: We believe that §300.174
provides sufficient guidance on what
school personnel can and cannot
communicate to parents regarding a
child’s medication. Paragraph (a)
clarifies that school personnel cannot
require parents to obtain a prescription
for medication for a child as a condition
of attending school, receiving an
evaluation to determine if a child is
eligible for special education services,
or receiving special education and
related services under the Act.
Paragraph (b) clearly permits classroom
personnel to speak with parents or
guardians regarding a child’s academic
and functional performance, behavior in
the classroom or school, or the need for
an evaluation to determine the need for
special education or related services.
We do not believe that further
regulations are needed to encourage
school personnel to recommend
evaluations for children with behavior
problems or to require school personnel
to inform parents if they suspect a
child’s behavior may be related to a
disability. The child find requirements
in §300.111 clarify that States must
have in effect policies and procedures to
ensure that all children with disabilities
residing in a State and who are in need
of special education and related
services, are identified, located, and
evaluated.
Changes: None.
States’ Sovereign Immunity (New
§300.177)
Comment: None.
Discussion: In developing the
proposed regulations, we incorporated those provisions of subpart A that apply
to States. We inadvertently omitted the
provisions in section 604 of the Act,
regarding States’ sovereign immunity.
We have added these to the regulations
in new §300.177. In paragraph (a), we
have clarified that the statutory
language means that a State must waive
immunity in order to receive Part B
funds. This is the longstanding
interpretation of the Department and is
consistent with Federal Circuit Courts’
decisions interpreting this statutory
language. (See, e.g., Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272 (5th Cir.
2005); M.A. ex rel. E.S. v. State-
Operated Sch. Dist., 344 F.3d 335 (3rd
Cir. 2003); Little Rock Sch. Dist. v.
Mauney, 183 F.3d 816 (8th Cir. 1999);
Marie O. v. Edgar, 131 F.3d 610 (7th Cir.
1997).)
Changes: We have added the
provisions in section 604 of the Act,
regarding States’ sovereign immunity, to
new §300.177.
Department Procedures (§§300.178
Through 300.186)
Comment: One commenter stated that
the requirements in §§300.179 through
300.183, regarding the notice and
hearing procedures before the Secretary
determines a State is not eligible to
receive a grant under Part B of the Act,
are unnecessary and go beyond what is
required in section 612(d) of the Act.
The commenter recommended removing
§§300.179 through 300.183 and
including additional language in
§300.178 clarifying that the Secretary
has the authority to develop specific
administrative procedures to determine
if States meet statutory requirements for
eligibility under Part B of the Act and
that such procedures must include
notification of eligibility or non-
eligibility, an opportunity for a hearing,
and an opportunity for appeal of the
hearing decision.
Discussion: The Department does not
agree with the commenter that the
notification and hearing procedures
included in §§300.179 through 300.183
are unnecessary and go beyond what is
required in section 612(d) of the Act.
Section 612(d)(2) of the Act states that
the Secretary shall not make a final
determination that a State is not eligible
to receive a grant under this part until
after providing the State with reasonable
notice and an opportunity for a hearing.
When the Secretary proposes to deny a
State’s eligibility to receive a grant
under Part B of the Act, withhold funds,
or take other enforcement action, it is
important to all parties that the process
through which those issues will be
decided is clearly described, so that
time, money, and effort are not spent resolving procedural questions instead
of the underlying issues. For these
reasons, we believe it is important to
retain §§300.179 through 300.183 in the
regulations.
Changes: None.
Judicial Review (§300.184)
Comment: One commenter requested
that we clarify in the regulations the
status of a State’s operation of a program
or eligibility to receive a grant under
Part B of the Act while a final judicial
decision is pending with respect to the
State’s eligibility under section 612 of
the Act.
Discussion: Under section 612(a) of
the Act, States must meet certain
conditions in order to be eligible for a
grant under the Part B program. Under
section 612(d) of the Act, if the
Secretary, after notice and an
opportunity for a hearing, makes a final
determination that a State is not eligible
for a grant, the Secretary may not award
funds to the State. The procedures in
§§300.179 through 300.183 detail the
process through which the Secretary
notifies a State of a proposed
ineligibility determination, the hearing
available to the State to dispute this
proposal, and the process through
which the Secretary makes a final
determination. The Secretary’s final
determination may be appealed through
the judicial review procedure described
in section 616(e)(8) of the Act and
§300.184. We decline to address this
issue more specifically in the
regulations, however, as we think the
regulations already adequately convey
the idea that only States that the
Secretary determines to be eligible can
receive a grant.
Changes: None.
By-Pass for Children in Private Schools
(§§300.190 through 300.198)
Comment: One commenter stated that
§§300.190 through 300.198 are
unnecessary because the Act gives
sufficient authority for the Secretary to
implement a by-pass for children with
disabilities enrolled in private
elementary schools and secondary
schools.
Discussion: Section 300.190 retains
the authority for a by-pass in current
§300.480 and includes additional
authority for a by-pass, consistent with
section 612(f)(1) of the Act, in cases
where the Secretary determines that an
SEA, LEA, or public agency has
substantially failed, or is unwilling, to
provide for equitable participation of
parentally-placed private school
children with disabilities. When the
Secretary authorizes a by-pass it is
important that all parties understand the
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46623 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
process by which the Secretary
determines the funds that will be
deducted from the State’s allocation
under Part B of the Act to provide
services, as well as the actions that are
required before the Secretary takes any
final action to implement a by-pass.
When such processes and procedures
are clearly described, time, money, and
effort are not spent resolving procedural
questions. The requirements in
§§300.190 through 300.198 provide this
information and we believe are
necessary to clarify and ensure effective
implementation of the by-pass
provisions in the Act. We are making
one change to §300.191(d) to clarify that
the Secretary deducts amounts the
Secretary determines necessary to
implement a by-pass from the State’s
allocations under sections 611 and 619
of the Act.
Changes: In §300.191(d) we have
substituted a reference to sections 611
and 619 of the Act for a reference to Part
B of the Act.
Show Cause Hearing (§300.194)
Comment: One commenter opposed
allowing a lawyer for the SEA or LEA
to present oral and written evidence and
arguments at a show cause hearing
because parents are often intimidated by
having to face a lawyer.
Discussion: Section 300.194(a)(3)
provides an opportunity for an SEA,
LEA, or other public agency, and
representatives of private elementary
schools and secondary schools to be
represented by legal counsel and to
submit oral or written evidence or
arguments at a hearing to show cause
why a by-pass should not be
implemented. Parents are not parties to
this hearing and generally would not
appear before the show cause hearing
officer, and would, therefore, not be
intimidated by a participating lawyer.
We believe that it is only fair that the
party to the hearing (SEA, LEA, or other
public agency, and representatives of
private schools) be provided the option
to be represented by legal counsel
because legal counsel will generally
represent the Department, as a party to
the hearing.
Changes: None.
State Administration (§300.199)
Comment: One commenter indicated
that §300.199 is improperly placed in
the regulations under the general
heading ‘‘By-pass for Children in Private
Schools.’’
Discussion: We agree with the
commenter that §300.199 does not
belong under the general heading ‘‘By-
Pass for Children in Private Schools.’’ Changes: A new undesignated center
heading entitled ‘‘State Administration’’
will be added immediately preceding
§300.199 to separate that section from
the regulations related to
implementation of the by-pass
provisions of the Act.
Comment: One commenter
recommended including in §300.199 a
requirement that States may not
eliminate from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations.
Discussion: Section 300.199
incorporates the requirement in section
608 of the Act that any rulemaking
related to the Act conducted by the
State conform to the purposes of the
Act. Consistent with section 608 of the
Act, §300.199 makes clear that each
State that receives funds under Part B of
the Act must ensure that any State rules,
regulations, and policies relating to 34
CFR part 300 conform to the provisions
of 34 CFR part 300. We do not believe
it is necessary to add a provision in
§300.199 prohibiting States from
eliminating from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations, as requested by the
commenter. If a State were to do so, the
State’s rules, regulations, and policies
would not conform to the provisions in
34 CFR part 300. Under this provision,
a State, and not the Secretary,
determines whether a particular rule,
regulation, or policy conforms to the
purposes of the Act.
Changes: None.
Comment: Some commenters
expressed concern that the mandate to
minimize State rules and regulations
might discourage States from
developing beneficial programs, and,
therefore, should not pertain to policies
that promote best practices, increased
parental involvement, educating
children in the least restrictive
environment, and improving access to
the general curriculum. One commenter
recommended including a statement in
the regulations that a State would not be
penalized for exceeding the minimum
requirements of the Act. A few
commenters stated that the services
provided by the Act were intended to be
a ‘‘floor,’’ rather than a ‘‘ceiling’’ and
recommended a pilot program to
encourage States to adopt rules that best
serve the needs of children with
disabilities.
Discussion: We do not agree that the
regulations discourage States from
developing beneficial programs or
establishing rules that best serve the
needs of children with disabilities. In
fact, §300.199(b), consistent with section 608(b) of the Act, requires State
rules, regulations, and policies under
the Act to support and facilitate LEA
and school-level system improvement
designed to enable children with
disabilities to meet challenging State
student academic achievement
standards.
Section 300.199(a), consistent with
section 608(a) of the Act, is intended to
minimize the number of rules,
regulations, and policies to which LEAs
and schools are subject under the Act,
and to identify in writing any rule,
regulation, or policy that is State-
imposed and not required under the Act
and its implementing regulations. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 10, which states
‘‘Through section 608(a), the committee
is in no way attempting to reduce State
input or State practice in this area, but
intends to make clear what is a Federal
obligation and what is a State or local
educational agency requirement for the
Act.’’ We believe it is important for
parents, teachers, school administrators,
State lawmakers, and others to
understand what is required under the
Act, and, therefore, do not believe that
§300.199 should be changed.
Changes: None.
Subpart C—Local Educational Agency
Eligibility
Consistency With State Policies
(§300.201)
Comment: Some commenters
recommended requiring LEAs to seek
input from parents of children with
disabilities in the development of LEA
policies, procedures, and programs.
Discussion: Section 300.201,
consistent with section 613(a)(1) of the
Act, requires each LEA to have in effect
policies, procedures, and programs that
are consistent with State policies and
procedures. It is up to each State and its
LEAs to determine the manner in which
LEAs develop their policies, procedures,
and programs, consistent with State law
and procedures. The Act does not
authorize the Department to impose
additional obligations on States or LEAs
with respect to the development of LEA
policies, procedures, and programs.
Changes: None.
Maintenance of effort (§§300.202
through 300.205)
Comment: A few commenters stated
that the maintenance of effort
requirements are complicated and
unnecessary and should be eliminated
or simplified.
Discussion: Sections 300.202 through
300.205, regarding maintenance of effort
and the LEA’s use of funds received
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46624 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
under Part B of the Act, reflect the
specific statutory requirements in
section 613(a)(2) of the Act, as well as
necessary information regarding the
implementation of these requirements.
Much of the additional information in
§§300.202 through 300.205 was
included in various sections throughout
the current regulations. We continue to
believe that this information is
necessary for the proper implementation
of the Act. Section 300.204(e), which
has been newly added to the
regulations, includes the assumption of
costs by the high cost fund as an
additional condition under which an
LEA may reduce its level of
expenditures. We believe this provision
is necessary because LEAs should not be
required to maintain a level of fiscal
effort based on costs that are assumed
by the SEA’s high cost fund.
In short, we have tried to present the
regulations relating to LEA maintenance
of effort in a clear manner, while being
consistent with the language of the Act
(which we do not have the authority to
change) and including only as much
additional information as is necessary to
ensure proper implementation of the
Act.
Changes: None.
Comment: One commenter stated that
LEAs should be permitted to use a
reasonable amount of their Part B funds
to meet the Act’s requirements relating
to student assessment, outcomes,
complaints, compliance monitoring,
mediation, and due process hearings.
Discussion: With one exception,
nothing in the Act or these regulations
would prevent an LEA from using its
Part B allotment for the activities noted
by the commenter, so long as the
expenditures meet the other applicable
requirements under the Act and
regulations.
LEAs may not use their Part B funds
to support the mediation process
described in §300.506. Consistent with
section 615(e)(2)(D) of the Act,
§300.506(b)(4) requires the State (not
the LEA) to bear the cost of that
mediation process. Although LEAs may
not use their Part B funds to support the
mediation process required under
§300.506(b)(4), they may use their Part
B funds to support alternative mediation
processes that they offer. Some LEAs
(and States) offer alternative mediation
processes, in addition to the mediation
process required under section 615 of
the Act. These alternative mediation
processes generally were established
prior to the Federal mandate for
mediation and some LEAs (and States)
continue to offer parents the option of
using these alternative mediation
processes to resolve disputes. Therefore, if an LEA has an alternative mediation
process, it may use its Part B funds for
this process, so long as parents are
provided access to the required
mediation process under section 615 of
the Act and are not required to use an
alternative mediation process in order to
engage in the mediation process
provided under section 615 of the Act.
Changes: None.
Comment: Several commenters
requested clarifying that ‘‘per capita’’ in
§300.203(b) means the amount per
child with a disability in an LEA.
Discussion: We do not believe it is
necessary to include a definition of ‘‘per
capita’’ in §300.203(b) because we
believe that, in the context of the
regulations, it is clear that we are using
this term to refer to the amount per
child with a disability served by the
LEA.
Changes: None.
Exception to Maintenance of Effort
(§300.204)
Comment: One commenter
recommended expanding the exceptions
to the maintenance of effort
requirements in §300.204(a) to include
negotiated reductions in staff salaries or
benefits so that LEAs are not penalized
for being proactive in reducing costs.
Another commenter recommended
revising §300.204 to allow LEAs to
apply for a waiver of the maintenance
of effort requirements in cases of fiscal
emergencies.
Discussion: Section 300.204(a)
through (d) reflects the language in
section 613(a)(2)(B) of the Act and
clarifies the conditions under which
LEAs may reduce the level of
expenditures below the level of
expenditures for the preceding year.
Nothing in the Act permits an exception
for negotiated reductions in staff salaries
or benefits or financial emergencies.
Accordingly, to expand the exceptions
to the maintenance of effort
requirements, as recommended by the
commenters, would be beyond the
authority of the Department.
Changes: None.
Comment: Some commenters
requested clarification as to whether the
exceptions to the maintenance of effort
requirements apply to an LEA that uses
funds from its SEA’s high cost fund
under §300.704(c) during the preceding
year.
Discussion: We do not believe further
clarification is necessary because
§300.204(e) clearly states that the
assumption of costs by a State-operated
high cost fund under §300.704(c) would
be a permissible reason for reducing
local maintenance of effort. This
provision was included in the proposed regulations in recognition that the new
statutory authority in section 611(e)(3)
of the Act that permits States to
establish a fund to pay for some high
costs associated with certain children
with disabilities could logically and
appropriately result in lower
expenditures for some LEAs.
Changes: None.
Adjustments to Local Fiscal Efforts in
Certain Fiscal Years (§300.205)
Comment: A few commenters stated
that the link between early intervening
services and reductions in maintenance
of effort in §300.205(d) is not in the Act.
Some commenters expressed concern
that this requirement forces an LEA to
choose between providing early
intervening services and directing local
funds toward nondisabled children. One
commenter stated that linking the use of
funds for early intervening services to
reduction in maintenance of effort in
§300.205 is not logical and was not the
intent of Congress.
Discussion: The link between
reductions in local maintenance of effort
(reflected in §300.205(d)) and the
amount of Part B funds that LEAs may
use to provide early intervening services
(reflected in §300.226) is established in
the Act. Section 300.205(d) tracks the
statutory language in section
613(a)(2)(C)(iv) of the Act and
§300.226(a) tracks the statutory
language in section 613(f)(1) of the Act.
Section 300.205(d) states that the
amount of funds expended by an LEA
for early intervening services under
§300.226 counts toward the maximum
amount of expenditures that an LEA
may reduce in its local maintenance of
effort. Section 300.226(a) clearly states
that the amount of Part B funds an LEA
may use to provide early intervening
services may not exceed 15 percent of
the funds the LEA receives under Part
B of the Act less any amount reduced
by the LEA under §300.205.
As noted in the NPRM, the
Department believes it is important to
caution LEAs that seek to reduce their
local maintenance of effort in
accordance with §300.205(d) and use
some of their Part B funds for early
intervening services under §300.226
because the local maintenance of effort
reduction provision and the authority to
use Part B funds for early intervening
services are interconnected. The
decision that an LEA makes about the
amount of funds that it uses for one
purpose affects the amount that it may
use for the other. Appendix D to Part
300—Maintenance of Effort and Early
Intervening Services includes examples
that illustrate how §§300.205(d) and
300.226(a) affect one another.
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46625 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
Changes: We have added a reference
to Appendix D in §300.226(a).
Schoolwide Programs Under Title I of
the ESEA (§300.206)
Comment: A few commenters
recommended specifying in §300.206(b)
that LEAs can use only funds provided
under section 611 of the Act (and not
section 619 of the Act) to carry out a
schoolwide program under section 1114
of the ESEA. The commenters stated
that this change is necessary so that the
per capita amount of Federal Part B
funds used to carry out a schoolwide
program is not artificially inflated by
including preschool grant funds that are
used to serve children ages three
through five who are not placed in a
title I school.
Discussion: Section 613(a)(2)(D) of the
Act specifically provides that an LEA
may use any funds it receives under Part
B of the Act to carry out schoolwide
programs under title I of the ESEA. Part
B funds include any funds an LEA
receives under sections 611 and 619 of
the Act.
Changes: None.
Personnel Development (§300.207)
Comment: A few commenters
suggested requiring LEAs to train their
personnel through research-based
practices in order to ensure that
personnel are appropriately and
adequately prepared to implement Part
B of the Act.
Discussion: We believe the regulations
already address the commenters’
concern and reflect the Department’s
position that high-quality professional
development, including the use of
scientifically based instructional
practices, is important to ensure that
personnel have the skills and
knowledge necessary to improve the
academic achievement and functional
performance of children with
disabilities. Section 300.207, consistent
with section 613(a)(3) of the Act,
requires each LEA to ensure that all
personnel necessary to carry out Part B
of the Act are appropriately prepared,
subject to the requirements in §300.156
and section 2122 of the ESEA.
Section 300.156(a), consistent with
section 612(a)(14) of the Act, clearly
states that each State must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Further, section 2122(b)(1)(B) of the
ESEA requires an LEA’s application to
the State for title II funds (Preparing,
training, and recruiting high quality
teachers and principals) to address how the LEA’s activities will be based on a
review of scientifically based research.
Changes: None.
Purchase of Instructional Materials
(§300.210)
Comment: One commenter
recommended requiring LEAs to hold
public hearings that meet the
requirements in section 612(a)(19) of the
Act before adopting its policies and
procedures to purchase instructional
materials. The commenter stated that all
interested members of the public,
including parents of children with
disabilities, are entitled to participate in
designing the plan to meet the
requirements in §300.210.
Discussion: The Act does not require
LEAs to hold public hearings before
implementing new policies and
procedures. This is a matter for each
State to determine, based on its rules
governing public hearings and public
comment. Therefore, we do not believe
it is appropriate for these regulations to
require LEAs to hold public hearings
and receive public comment on the
LEA’s purchase of instructional
materials, as requested by the
commenter.
Changes: None.
Comment: One commenter stated that
the requirements in §300.210(b)(3) are
unnecessary and should be removed
because the Act does not require LEAs
to provide accessible materials for
children with disabilities for whom
assistance is not available from the
NIMAC.
Discussion: We believe that
§300.210(b)(3) is necessary because
timely access to appropriate and
accessible instructional materials is an
inherent component of an LEA’s
obligation under the Act to ensure that
FAPE is available for all children with
disabilities and that children with
disabilities participate in the general
curriculum as specified in their IEPs.
Because the NIMAC is not required to
serve all children with disabilities who
need accessible materials, we believe it
is important that the regulations make
clear that LEAs are still responsible for
ensuring that children with disabilities
who need instructional materials in
accessible formats, but who do not fall
within the definition of children who
are eligible to receive materials
produced from NIMAS files obtained
through the NIMAC, receive them in a
timely manner. We, therefore, decline to
delete §300.210(b)(3).
Changes: None.
Comment: A significant number of
commenters expressed concern about
allowing LEAs to choose not to
coordinate with the NIMAC. A few commenters stated that coordination
with the NIMAC should be mandatory
for all LEAs. Other commenters
recommended that LEAs that cannot
demonstrate a history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC.
Discussion: It would be inconsistent
with section 613(a)(6)(B) of the Act to
make coordination with the NIMAC
mandatory for all LEAs or to require
certain LEAs to coordinate with the
NIMAC (e.g., LEAs that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner). Section 613(a)(6)(B) of
the Act provides that nothing in the Act
shall be construed to require any LEA to
coordinate with the NIMAC.
Changes: None.
Comment: Several commenters
requested that the regulations clearly
define the process LEAs must go
through if they choose not to coordinate
with the NIMAC. A few commenters
requested additional details on what
assurances LEAs must provide if they
choose not to coordinate with the
NIMAC. A few commenters requested
that LEA assurances provide the public
with information to evaluate the
capacity of the LEA to provide materials
to children who are blind or have print
disabilities. Some commenters stated
that the assurances provided by LEAs
that choose not to coordinate with the
NIMAC should be done annually and in
writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which LEAs choose not to coordinate
with the NIMAC. A few commenters
recommended requiring LEAs to report
to the Department whether they choose
to coordinate with the NIMAC. Some
commenters requested that the
Department publish the assurances
made in accordance with §300.210(b)
by LEAs that choose not to coordinate
with the NIMAC.
Discussion: The process by which
LEAs choose not to coordinate with the
NIMAC and the assurances that LEAs
must provide if they choose not to
coordinate with the NIMAC are
determined by each State. Section
300.210(b)(2), consistent with section
613(a)(6)(B) of the Act, states that, if an
LEA chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Therefore, it would be unnecessary and
burdensome to require LEAs to provide
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46626 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
assurances to the Department or to
require LEAs to report to the
Department whether they choose to
coordinate with the NIMAC. Each State
has its own mechanisms and processes
for obtaining assurances from its LEAs,
and we believe it would be
inappropriate for these regulations to
define the process by which LEAs
inform the SEA that they choose not to
coordinate with the NIMAC or to
specify the content of the assurances
that LEAs must provide to the SEA if
they choose not to coordinate with the
NIMAC. Similarly, it is up to each State
to determine whether and how the State
will provide information to the public
about LEAs in the State that choose not
to coordinate with the NIMAC.
Changes: None.
Comment: Some commenters
proposed that the regulations require
LEAs that choose not to coordinate with
the NIMAC to annually report to the
public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the LEA has
taken to ensure that materials are
provided at the same time as materials
are provided to children without
disabilities. Other commenters
recommended requiring LEAs that
choose not to coordinate with the
NIMAC to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion: We believe that imposing
additional data collection and reporting
requirements, such as those requested
by the commenters, on LEAs that choose
not to coordinate with the NIMAC is a
matter that is best left to the States.
States are responsible for ensuring that
accessible instructional materials are
provided in a timely manner to all
children with disabilities who need
them, and are, therefore, in the best
position to know what controls, if any,
are needed in their State to ensure that
LEAS comply with the requirements in
§300.210(b)(3). All LEAs, regardless of
whether they choose to coordinate with
the NIMAC, must ensure that children
with disabilities who need instructional
materials in accessible formats receive
them in a timely manner, consistent
with §300.210(b)(3).
Changes: None.
Comment: A few commenters
requested that the Department provide
information to LEAs on the NIMAC and
the NIMAS so that LEAs can make an
informed choice regarding whether to
coordinate with the NIMAC.
Discussion: The Department
recognizes the need to provide
information to LEAs regarding the NIMAC and the NIMAS. The
Department has already provided
numerous informational sessions on the
NIMAC and NIMAS and more are
planned following the publication of the
regulations and approval of the NIMAC
procedures. Information about the
NIMAC Technical Assistance Center is
available at the following Web site:
http://www.aph.org/nimac/index.html.
Information on the NIMAS can be
obtained at: http://nimas.cast.org.
Changes: None.
Early Intervening Services (§300.226)
Comment: One commenter
recommended clarifying that early
intervening services should not be used
to delay the evaluation of children
suspected of having a disability.
Discussion: We believe that
§300.226(c), which states that nothing
in §300.226 will be construed to delay
appropriate evaluation of a child
suspected of having a disability, makes
clear that early intervening services may
not delay an appropriate evaluation of a
child suspected of having a disability.
Changes: None.
Comment: One commenter expressed
concern that the requirements for early
intervening services do not adequately
protect the child’s right to FAPE and
recommended that the requirements
include provisions regarding notice,
consent, and withdrawal of consent, as
well as guidelines for referrals for
evaluation.
Discussion: Children receiving early
intervening services do not have the
same rights and protections as children
identified as eligible for services under
sections 614 and 615 of the Act. Section
300.226(c), consistent with section
613(f)(3) of the Act, is clear that early
intervening services neither limit nor
create a right to FAPE.
Changes: None.
Comment: Some commenters
recommended that the regulations
specify how long a child may receive
early intervening services before an
initial evaluation for special education
services under §300.301 is conducted.
Discussion: We do not believe it is
appropriate or necessary to specify how
long a child can receive early
intervening services before an initial
evaluation is conducted. If a child
receiving early intervening services is
suspected of having a disability, the
LEA must conduct a full and individual
evaluation in accordance with
§§300.301, 300.304 and 300.305 to
determine if the child is a child with a
disability and needs special education
and related services.
Changes: None. Comment: A few commenters
suggested clarifying that Part B funds for
early intervening services should not be
used for any child previously identified
as being a child with a disability.
Discussion: A child previously
identified as being a child with a
disability who currently does not need
special education or related services
would not be prevented from receiving
early intervening services. For example,
a child who received special education
services in kindergarten and had
services discontinued in grade 1
(because the public agency and the
parent agreed that the child was no
longer a child with a disability), could
receive early intervening services in
grade 2 if the child was found to be in
need of additional academic and
behavioral supports to succeed in the
general education environment. We
believe that language should be added
to §300.226 to clarify that early
intervening services are for children
who are not currently identified as
needing special education or related
services.
Changes: We have modified
§300.226(a) to clarify that early
intervening services are available to
children who currently are not
identified as needing special education
or related services.
Comment: One commenter
recommended specifying that unless
LEAs have significant over-
identification and over-representation of
minority students in special education,
LEAs may not use Federal Part B funds
for early intervening services unless
they can demonstrate that all eligible
children are receiving FAPE. Another
commenter suggested prohibiting the
use of Part B funds for early intervening
services if an LEA is not providing
FAPE to all eligible children.
Discussion: The Act does not restrict
the use of funds for early intervening
services only to LEAs that can
demonstrate that all eligible children
with disabilities are receiving FAPE.
Section 613(f)(1) of the Act generally
permits LEAs to use funds for early
intervening services for children in
kindergarten through grade 12 (with a
particular emphasis on children in
kindergarten through grade 3) who have
not been identified as needing special
education or related services, but who
need additional academic and
behavioral support to succeed in a
general education environment. No
other restrictions on this authority, such
as a requirement that the LEA first
demonstrate that it is providing FAPE to
all eligible children, are specified or
appropriate. The authority to use some
Part B funds for early intervening
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46627 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
services has the potential to benefit
special education, as well as the
education of other children, by reducing
academic and behavioral problems in
the regular educational environment
and reducing the number of referrals to
special education that could have been
avoided by relatively simple regular
education interventions. Therefore, we
believe the use of Part B funds for early
intervening services should be
encouraged, rather than restricted.
In one instance, however, the Act
requires the use of funds for early
intervening services. Under section
618(d)(2)(B) of the Act, LEAs that are
identified as having significant
disproportionality based on race and
ethnicity with respect to the
identification of children with
disabilities, the placement of children
with disabilities in particular
educational settings, and the incidence,
duration, and type of disciplinary
actions taken against children with
disabilities, including suspensions and
expulsions, are required to reserve the
maximum amount of funds under
section 613(f)(1) of the Act to provide
early intervening services to children in
the LEA, particularly to children in
those groups that were significantly
over-identified. This requirement is in
recognition of the fact that significant
disproportionality in special education
may be the result of inappropriate
regular education responses to academic
or behavioral issues.
Changes: None.
Comment: One commenter
recommended permitting LEAs to spend
funds for early intervening services on
literacy instruction programs that target
at-risk limited English proficient
students.
Discussion: There is nothing in the
Act that would preclude LEAs from
using Part B funds for early intervening
services, including literacy instruction,
that target at-risk limited English
proficient students who have not been
identified as needing special education
or related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Changes: None.
Comment: One commenter requested
clarification as to whether ESAs or other
public institutions or agencies, in
addition to LEAs, have the authority to
provide early intervening services.
Discussion: We do not believe any
clarification is necessary because
§300.226, consistent with section 613(f)
of the Act, states that LEAs may use Part
B funds to develop and implement
coordinated early intervening services.
As defined in §300.28(b), local educational agency or LEA includes
ESAs and any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public nonprofit charter school that is
established as an LEA under State law.
Changes: None.
Comment: Some commenters
suggested modifying the regulations to
permit children age 3 through 21 to
receive early intervening services. The
commenters stated that this change
would allow schools to provide early
academic and behavioral supports to
preschool children.
Discussion: Early intervening services
may not be used for preschool children.
Section 300.226(a) tracks the statutory
language in section 613(f)(1) of the Act,
which states that early intervening
services are for children in kindergarten
through grade 12, with a particular
emphasis on children in kindergarten
through grade 3.
Changes: None.
Comment: One commenter
recommended clarifying in the
regulations that early intervening
services are not equivalent to early
intervention services.
Discussion: We do not believe any
changes are necessary to the regulations
to clarify the difference between early
intervening services provided under
Part B of the Act and early intervention
services provided under Part C of the
Act. Following is a description of the
two types of services:
Early intervening services provided
under section 613(f) of the Act are
services for children in kindergarten
through grade 12 (with a particular
emphasis on children in kindergarten
through grade 3) who have not been
identified as needing special education
and related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Early intervention services, on the
other hand, are services for children
birth through age two that are designed
to meet the developmental needs of
infants and toddlers with disabilities
under section 632 in Part C of the Act.
Section 632(5)(A) of the Act defines
infant or toddler with a disability as a
child under the age of three years who
(a) is experiencing developmental
delays in one or more of the areas of
cognitive development, physical
development, communication
development, social or emotional
development, and adaptive
development, or (b) has a diagnosed
physical or mental condition that has a
high probability of resulting in
developmental delay. In addition, some States also provide early intervention
services to infants and toddlers who are
at risk of having a developmental delay.
The Part C regulations will address, in
detail, the early intervention services
provided under section 632 of the Act.
Changes: None.
Comment: One commenter asked
whether the reference to scientifically
based academic and behavioral
interventions in §300.226(b) means that
such interventions must be aligned with
recommended practices and peer-
reviewed research.
Discussion: Section 300.226(b)
follows the specific language in section
613(f)(2) of the Act and requires that in
implementing coordinated, early
intervening services, an LEA may
provide, among other services,
professional development for teachers
and other personnel to enable such
personnel to deliver scientifically based
academic and behavioral interventions.
The use of the term scientifically based
in §300.226(b) is intended to be
consistent with the definition of the
term scientifically based research in
section 9101(37) of the ESEA. Because
this definition of scientifically based
research is important to the
implementation of Part B of the Act, a
reference to section 9101(37) of the
ESEA has been added in new §300.35,
and the full definition of the term has
been included in the discussion of new
§300.35. Under the definition,
scientifically based research must be
accepted by a peer-reviewed journal or
approved by a panel of independent
experts through a comparably rigorous,
objective, and scientific review. We
expect that the professional
development activities authorized under
§300.226(b)(1) will be derived from
scientifically based research. The statute
and regulations do not refer to
‘‘recommended practices,’’ which is a
term of art that, generally, refers to
practices that the field has adopted as
‘‘best practices,’’ and which may or may
not be based on evidence from
scientifically based research.
Changes: None.
Comment: Several commenters
requested including related services
personnel, including speech
pathologists and school psychologists,
in the development and delivery of
educational and behavioral evaluations,
services, and supports for teachers and
other school staff to enable them to
deliver coordinated, early intervening
services.
Discussion: State and local officials
are in the best position to make
decisions regarding the provision of
early intervening services, including the
specific personnel to provide the
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46628 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
services and the instructional materials
and approaches to be used. Nothing in
the Act or regulations prevents States
and LEAs from including related
services personnel in the development
and delivery of educational and
behavioral evaluations, services, and
supports for teachers and other school
staff to enable them to deliver
coordinated, early intervening services.
Changes: None.
Comment: Several commenters
recommended revising the regulations
to allow public agencies to use Part B
funds for early intervening services to
purchase supplemental instructional
materials to support the activities in
§300.226(b).
Discussion: We agree that
supplemental instructional materials
may be used, where appropriate, to
support early intervening activities. The
Conf. Rpt. in note 269 provides that
[E]arly intervening services should make
use of supplemental instructional materials,
where appropriate, to support student
learning. Children targeted for early
intervening services under IDEA are the very
students who are most likely to need
additional reinforcement to the core
curriculum used in the regular classroom.
These are in fact the additional instructional
materials that have been developed to
supplement and therefore strengthen the
efficacy of comprehensive core curriculum.
We believe the terms ‘‘services’’ and
‘‘supports’’ in §300.226(b)(2) are broad
enough to include the use of
supplemental instructional materials.
Accordingly, we believe that it is
unnecessary to add further clarification
regarding the use of supplemental
instructional materials in §300.226. Of
course, use of funds for this purpose is
subject to other requirements that apply
to any use of funds, such as the
limitation on purchase of equipment in
section 605 of the Act and applicable
requirements in 34 CFR Parts 76 and 80.
Changes: None.
Comment: Several commenters
requested requiring LEAs to provide
parents with written notice regarding
their child’s participation in early
intervening services, the goals for such
services, and an opportunity to refuse
services. Some commenters requested
requiring LEAs to inform parents of
their child’s progress in early
intervening services at reasonable
intervals.
Discussion: Section 300.226,
consistent with section 613(f) of the Act,
gives LEAs flexibility to develop and
implement coordinated, early
intervening services for children who
are not currently receiving special
education services, but who require
additional academic and behavioral support to succeed in a regular
education environment. Early
intervening services will benefit both
the regular and special education
programs by reducing academic and
behavioral problems in the regular
education program and the number of
inappropriate referrals for special
education and related services. It would
be overly restrictive and beyond the
Department’s authority to modify the
regulations to include the additional
requirements suggested by the
commenters.
Changes: None.
Comment: One commenter stated that
data should be collected regarding the
effectiveness of early intervening
services. Several commenters requested
requiring LEAs to report to the SEA, and
make available to the public, the
number of children receiving early
intervening services, the length of time
the children received the services, the
impact of the services, and the amount
of Federal Part B funds used for early
intervening services.
Discussion: Section 300.226(d),
consistent with section 613(f)(4) of the
Act, requires LEAs that develop and
maintain coordinated, early intervening
services to annually report to their SEA
on the number of children receiving
early intervening services and the
number of those children who
eventually are identified as children
with disabilities and receive special
education and related services during
the preceding two year period (i.e., the
two years after the child has received
early intervening services). We believe
that these data are sufficient to provide
LEAs and SEAs with the information
needed to determine the impact of early
intervening services on children and to
determine if these services reduce the
number of referrals for special education
and related services. Requiring LEAs to
collect and report data on the
implementation of early intervening
services beyond what is specifically
required in section 613(f)(4) of the Act
is unnecessary and would place
additional paperwork burdens on LEAs
and SEAs.
Changes: None.
Comment: Some commenters
requested that the meaning of the terms
‘‘subsequently’’ and ‘‘preceding two
year period’’ in §300.226(d)(2) be
clarified.
Discussion: Section 300.226(d)(2),
consistent with section 613(f)(4)(B) of
the Act, requires LEAs to report on the
number of children who are provided
early intervening services who
subsequently receive special education
and related services under Part B of the
Act during the preceding two years to determine if the provision of these
services reduces the number of overall
referrals for special education and
related services. The Department
intends for LEAs to report on children
who began receiving special education
services no more than two years after
they received early intervening services.
For the preceding two year period, the
LEA would report on the number of
children who received both early
intervening services and special
education services during those two
years.
Changes: None.
Direct Services by the SEA (§300.227)
Comment: Some commenters
requested that the regulations specify
that SEAs providing direct services
must make placement decisions based
on the child’s individual needs and
must comply with all requirements for
providing FAPE in the LRE.
Discussion: We do not believe any
changes to the regulations are necessary
because §300.227(b), consistent with
section 613(g)(2) of the Act, clearly
states that SEAs providing direct special
education and related services must do
so in accordance with Part B of the Act.
Accordingly, the special education and
related services provided under
§300.227 would be subject to the
placement requirements in §300.116
and the LRE requirements in §300.114
and section 612(a)(5) of the Act.
Changes: None.
Disciplinary Information (§300.229)
Comment: One commenter
recommended clarifying that not all
student disciplinary records can be
transmitted by public agencies.
Discussion: We believe that §300.229
is clear that not all student disciplinary
records can be transmitted by public
agencies. Section 300.229(a) provides
that public agencies can transmit
disciplinary information on children
with disabilities only to the extent that
the disciplinary information is included
in, and transmitted with, the student
records of nondisabled children. Section
300.229(b) specifies the disciplinary
information that may be transmitted,
which includes a description of any
behavior engaged in by the child that
required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child.
Changes: None.
Comment: Some commenters
requested that the required transmission
of student records include both the
child’s current IEP and any statement of
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current or previous disciplinary action
related to weapons, drugs, or serious
bodily injury that has been taken against
the child.
Discussion: It is important to clarify
that the Act does not require the
transmission of student disciplinary
information when the child transfers
from one school to another. Rather,
section 613(i) of the Act allows each
State to decide whether to require its
public agencies to include disciplinary
statements in student records and
transmit such statements with student
records when a child transfers from one
school to another. The State’s policy on
transmitting disciplinary information
must apply to both students with
disabilities and students without
disabilities.
Section 300.229(b) provides that if a
State requires its public agencies to
include disciplinary statements in
student records, these disciplinary
statements may include a description of
any behavior engaged in by the child
that required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child; disciplinary actions taken against
a child related to weapons, drugs, or
serious bodily injury also could be
included in these descriptions. If a State
adopts such a policy, §300.229(c)
requires that the transmission of any of
the child’s student records include the
child’s current IEP and any statement of
current or previous disciplinary action
that has been taken against the child.
Therefore, with regard to the
commenters’ request that the
transmission of student records include
any statement of current or previous
disciplinary action related to weapons,
drugs, or serious bodily injury that has
been taken against the child, this
information would be transmitted only
to the extent that disciplinary
statements are included in, and
transmitted with, the student records of
nondisabled children.
Changes: None.
Comment: One commenter
recommended requiring that the
transmission of a student’s records
include functional behavioral
assessments and behavior intervention
plans.
Discussion: Any existing functional
behavioral assessments and behavioral
intervention plans would be part of the
materials that must be transmitted
under §300.323(g). In addition, if a
State requires student records to include
disciplinary information and the child
transfers from one school to another,
§300.229(c) requires that the transmission of any of the child’s
student records include the child’s
current IEP. Functional behavioral
assessments and behavior intervention
plans are not required components of
the IEP under §300.320. However, if a
State considers functional behavioral
assessments and behavior intervention
plans to be part of a student’s IEP, this
information would be required to be
transmitted when the child transfers
from one school to another, consistent
with §300.229(c).
Changes: None.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
Parental Consent (§300.300)
Comment: A few commenters noted
that the terms, ‘‘consent,’’ ‘‘informed
consent,’’ ‘‘agree,’’ and ‘‘agree in
writing’’ are used throughout the
regulations and stated that differences
between the terms should be clarified.
One commenter recommended that the
regulations include the term ‘‘informed’’
every time the term ‘‘parental consent’’
is used.
Discussion: The use of these terms
throughout the regulations is consistent
with their use in the Act. The definition
of consent in §300.9 includes the
requirement that a parent be fully
informed of all information relevant to
the activity for which consent is sought.
The definition also requires that a
parent agree in writing to carrying out
the activity for which the parent’s
consent is sought. Therefore, whenever
the term ‘‘consent’’ is used in these
regulations, it means that the consent is
both ‘‘informed’’ and ‘‘written.’’
Similarly, the terms ‘‘consent,’’
‘‘informed consent,’’ ‘‘parental
consent,’’ and ‘‘written informed
consent,’’ as used in these regulations,
all are intended to have the same
meaning.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as
‘‘consent.’’ ‘‘Agree’’ or ‘‘agreement’’
refer to an understanding between the
parent and the LEA about a particular
question or issue. There is no
requirement that an agreement be in
writing unless specifically stated in the
Act and regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify what the required safeguards are
if parents elect to receive notices
electronically or provide electronic or
digital signatures for consents, such as
consent for an initial evaluation. Discussion: Section 300.505,
consistent with section 615(n) of the
Act, permits parents to elect to receive
prior written notices, procedural
safeguards notices, and due process
complaint notices by an electronic mail
communication, if the public agency
makes that option available. The Act
does not specify documentation
requirements if the public agency makes
the electronic notice delivery option
available to parents, and we believe that
this is a matter that is best left to States
and LEAs that choose to use the
electronic communication option.
In addition, States that wish to utilize
electronic or digital signatures for
consent may do so if they choose.
Consent under §300.9(b) requires a
parent to understand and agree in
writing to the carrying out of the activity
for which the parent’s consent is sought.
Therefore, States that permit the use of
electronic or digital signatures for
parental consent would need to take the
necessary steps to ensure that there are
appropriate safeguards to protect the
integrity of the process.
Changes: None.
Parental Consent for Initial Evaluation
(§300.300(a))
Comment: One commenter
recommended that the regulations
require a public agency to conduct the
following activities to obtain parental
consent for an initial evaluation:
identify the child’s parents and their
address and phone number; contact
social service providers for children
who are wards of the State; provide
parents with copies of the Act; and
inform parents of the consequences of
withholding consent.
Discussion: The regulations already
provide sufficient safeguards regarding
consent, and we believe that the
changes requested would be unduly
burdensome. As a matter of practice,
public agencies begin the process of
obtaining parental consent by
identifying the parent and contacting
the parent by phone or through written
correspondence, or speaking to the
parent in parent-teacher conferences.
We do not believe it is necessary to
regulate to require public agencies to
contact social service agencies to obtain
consent for children who are wards of
the State because it may not always be
necessary or appropriate, for example,
when a child who is a ward of the State
has a foster parent who can act as a
parent, consistent with §300.30(a)(2).
Additionally, section 614(a)(1)(D)(iii)(I)
of the Act provides that the public
agency must make reasonable efforts to
obtain informed parental consent for
children who are wards of the State and
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46630 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
not residing with the parent. Public
agencies are in the best position to
determine, on a case-by-case basis,
when it is necessary to contact social
service providers to assist in obtaining
parental consent for children who are
wards of the State.
We also do not believe that additional
regulations are necessary to require
public agencies to inform parents of the
consequences of withholding consent
for an initial evaluation or to provide
parents with copies of the Act. Section
300.503, consistent with section
615(c)(1) of the Act, already requires
that prior written notice be provided to
parents before an initial evaluation,
which will explain, among other things,
why the agency is proposing to conduct
the evaluation; a description of each
evaluation procedure, assessment,
record, or report the agency used as a
basis for proposing to conduct the
evaluation; and sources for the parent to
contact to obtain assistance in
understanding the provisions under the
Act. Additionally, §300.504(a)(1),
consistent with section 615(d)(1)(A)(i) of
the Act, requires the public agency to
provide a copy of the procedural
safeguards to parents upon initial
referral for an evaluation, which
provides information about parents’
rights under the Act. Although we do
not believe the recommended
requirements should be added to the
regulations, we will add the cross-
references to the consent requirements
in §300.9, and the requirements for
prior written notice and the procedural
safeguards notice in §§300.503 and
300.504, respectively, to §300.300(a).
Changes: We have added cross-
references to §§300.9, 300.503, and
300.504 in §300.300(a).
Comment: One commenter
recommended revising
§300.300(a)(1)(ii) and using the
statutory language in section
614(a)(1)(D)(i) of the Act to require that
parental consent for evaluation may not
be construed as consent for placement
for receipt of special education and
related services.
Discussion: We believe it is
appropriate to use the phrase, ‘‘initial
provision of services’’ in
§300.300(a)(1)(ii), rather than the
statutory phrase ‘‘consent for placement
for receipt of special education and
related services,’’ in section
614(a)(1)(D)(i) of the Act to clarify that
consent does not need to be sought
every time a particular service is
provided to the child. In addition, the
distinction between consent for an
initial evaluation and consent for initial
services is more clearly conveyed in
§300.300(a)(1)(ii) than in the statutory language, and is consistent with the
Department’s longstanding position that
‘‘placement’’ refers to the provision of
special education services, rather than a
specific place, such as a specific
classroom or specific school. We,
therefore, decline to change the
regulation, as requested by the
commenter.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify whether the reference to
‘‘parent’’ in §300.300(a)(2) means
‘‘biological or adoptive parent’’ or
anyone who meets the definition of
parent in §300.30.
Discussion: Section 300.300(a)(2)
applies to circumstances in which the
child is a ward of the State and is not
residing with the child’s parents, and
requires the public agency to make
reasonable efforts to obtain parental
consent from the parent for an initial
evaluation. The reference to ‘‘parent,’’ in
this context, refers to anyone who meets
the definition of parent in §300.30,
consistent with section 614(a)(1)(D)(iii)
of the Act.
Changes: None.
Comment: One commenter requested
clarification on the interplay between
new §300.300(a)(2) (proposed
§300.300(a)(2)(ii)), regarding
circumstances when the public agency
is not required to obtain informed
parental consent for an initial
evaluation of a child who is a ward of
the State, and the requirements in
§300.519(c), which require that a
surrogate parent be appointed for a
child who is a ward of the State.
Discussion: New §300.300(a)(2)
(proposed §300.300(a)(2)(ii)), consistent
with section 614(a)(1)(D)(iii)(II) of the
Act, creates an exception to the parental
consent requirements for initial
evaluations for a child who is a ward of
the State who is not residing with the
child’s parent if the public agency has
made reasonable efforts to obtain the
parent’s consent, but is unable to
discover the whereabouts of the parent,
the rights of the parent of the child have
been terminated under State law, or the
rights of the parent to make educational
decisions have been subrogated by a
judge under State law and consent for
the initial evaluation has been given by
an individual appointed by the judge to
represent the child. New §300.300(a)(2)
(proposed §300.300(a)(2)(ii)) permits
the public agency to proceed with the
child’s initial evaluation without first
obtaining the requisite parental consent
only in the circumstances detailed in
§300.300(a)(2). Therefore, when one or
more of the circumstances in
§300.300(a)(2) are met and a surrogate has not yet been appointed, the public
agency need not postpone the child’s
evaluation to await the appointment of
a surrogate. This is appropriate because
in situations involving requests for
initial evaluations, in most cases a
surrogate parent has not yet been
appointed and delaying an initial
evaluation until after a surrogate is
appointed and has given consent may
not be in the best interests of the child.
In contrast, in most situations involving
consent for reevaluation, a surrogate
parent should already have been
appointed under §300.519 if no parent
can be identified, the public agency has
been unable to locate a parent, the child
is a ward of the State or the child is an
unaccompanied homeless youth.
Therefore, we do not think it is
appropriate to apply the provisions in
§300.300(a)(2) to reevaluation
situations.
Nothing in this section is intended to
relieve a public agency of its obligation
to ensure that the rights of a child who
is a ward of the State are protected
through the appointment of a surrogate
parent in accordance with the
procedures in §300.519(b) through (h).
Once a surrogate parent is appointed in
accordance with the procedures in
§300.519(b) through (h), that person
assumes the responsibilities of a parent
under the Act, and the public agency
must seek consent from that individual.
Moreover, if a child has a foster
parent who can act as a parent, as
defined in §300.30(a)(2), or a person
such as a grandparent or step-parent
who is legally responsible for the child’s
welfare, and that person’s whereabouts
are known or the person can be located
after reasonable efforts by the public
agency, parental consent would be
required for the initial evaluation.
We believe that the phrase ‘‘except as
provided in paragraph (a)(2) of this
section (regarding consent for wards of
the State)’’ in proposed §300.300(a)(1)(i)
may incorrectly convey that a public
agency is not required to make
reasonable efforts to obtain informed
consent from the parent of a child who
is a ward of the State, or from a
surrogate parent, foster parent, or other
person meeting the definition of a
parent in §300.30(a). Therefore, we will
remove the phrase. To clarify that the
provisions in §300.300(a)(2) apply only
to initial evaluations, and not
reevaluations, we will modify both
§§300.300(a)(2) and (c)(1).
Changes: We have removed the
phrase ‘‘except as provided in paragraph
(a)(2) of this section (regarding consent
for wards of the State)’’ in
§300.300(a)(1)(i), for clarity. We have
also added introductory language to
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46631 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
§300.300(a)(2) to specify that it applies
only to initial evaluations, and we have
changed the cross-reference in
§300.300(c)(1) to refer to
§300.300(a)(1).
Comment: One commenter
recommended that the regulations
specify the minimum steps that public
agencies must take to obtain consent for
initial evaluations from parents of
children who are wards of the State.
Another commenter recommended that
the regulations define ‘‘reasonable
efforts,’’ as used in new
§300.300(a)(1)(iii) (proposed
§300.300(a)(2)(i)). One commenter
recommended requiring LEAs to
maintain documentation of their efforts
to obtain parental consent for initial
evaluations, including attempts to
obtain consent by telephone calls, visits
to the parent’s home, and
correspondence in the parent’s native
language. Several commenters requested
that the requirements in current
§300.345(d) be included in new
§300.300(a)(2)(i) (proposed
§300.300(a)(2)(ii)(A)). Current
§300.345(d) requires a public agency to
document the specific steps it has taken
to arrange a mutually convenient time
and place for an IEP Team meeting (e.g.,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment) and it is cross-
referenced in current §300.505(c)(2) to
identify documentation of the
reasonable measures that an LEA took to
obtain consent for a reevaluation.
Discussion: We believe it is important
to emphasize that a public agency must
make reasonable efforts to obtain
informed consent from the parent for an
initial evaluation to determine whether
the child is a child with a disability.
This includes the parent of a child who
is a ward of the State. Therefore, we will
add a new paragraph (a)(1)(iii) to
§300.300 to make clear that a public
agency must make reasonable efforts to
obtain informed parental consent
whenever a public agency seeks to
conduct an initial evaluation of a child
to determine whether the child is a
child with a disability. This requirement
applies to all children including
children who are wards of the State.
With the addition of this new
paragraph, the requirement for public
agencies to make reasonable efforts to
obtain informed consent from the parent
for an initial evaluation for children
who are wards of the State in
§300.300(a)(2)(i) is no longer necessary
and will be removed.
We also agree with the commenters
that a public agency should document
and make the same reasonable efforts to obtain consent for an initial evaluation
from a parent, including a parent of a
child who is a ward of the State, that are
required when a public agency attempts
to arrange a mutually convenient time
and place for an IEP Team meeting (e.g.,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment), and will add a
new paragraph (d)(5) to make this clear.
We recognize that the statute uses both
‘‘reasonable measures’’ and ‘‘reasonable
efforts’’ when referring to a public
agency’s responsibility to obtain
parental consent for an evaluation,
initial services, and a reevaluation. We
believe these two phrases, when used in
this context, have the same meaning
and, therefore, have used ‘‘reasonable
efforts’’ throughout the regulations
related to parental consent for
consistency.
Changes: We have added a new
paragraph (a)(1)(iii) to §300.300 to
require a public agency to make
reasonable efforts to obtain informed
parental consent for an initial
evaluation. We will remove
§300.300(a)(2)(i) because it is redundant
with the new paragraph. Section
300.300(a)(2) has been reformatted
consistent with the removal of
paragraph (a)(2)(i). We also have added
a new paragraph (d)(5) to §300.300 to
require a public agency to document its
attempts to obtain parental consent
using the procedures in §300.322(d).
Comment: A few commenters asked
whether a public agency must obtain
consent for an initial evaluation from
the biological or adoptive parent of the
child when there is another person who
meets the definition of parent in
§300.30. Another commenter
recommended the regulations clarify
whether a public agency must seek
informed consent for an initial
evaluation from a biological or adoptive
parent when a surrogate parent has
already been appointed.
Discussion: Section 300.30(b)(1)
provides that, when more than one
party is qualified to act as a parent, the
biological or adoptive parent, when
attempting to act as the parent under the
Act, must be presumed to be the parent,
unless the biological or adoptive parent
does not have legal authority to make
educational decisions for the child.
If a surrogate parent already has been
appointed because the public agency,
after reasonable efforts, could not locate
a parent, the public agency would not
have to again attempt to contact other
individuals meeting the definition of
parent in §300.30 to seek consent.
Changes: None. Comment: One commenter
recommended that the regulations
clarify whether the qualifications of a
judge-appointed surrogate parent in
§300.519(c) would apply to new
§300.300(a)(2)(iii) (proposed
§300.300(a)(2)(ii)(C)), regarding consent
for an initial evaluation for a child who
is a ward of the State.
Discussion: Section
614(a)(1)(D)(iii)(II)(cc) of the Act, which
is the basis for new §300.300(a)(2)(iii)
(proposed §300.300(a)(2)(ii)(C)),
provides that the public agency is not
required to obtain informed consent
from the parent for an initial evaluation
of a child who is a ward of the State and
is not living with the child’s parent if
the rights of the parent to make
educational decisions have been
subrogated by a judge in accordance
with State law and consent for an initial
evaluation has been given by an
individual appointed by the judge to
represent the child. This is a special
situation, limited only to children who
are wards of the State not living with a
parent and limited only to the situation
of seeking consent for an initial
evaluation. A person appointed under
this provision is not a surrogate parent
as that term is used in these regulations.
The requirements of §300.519(c) do not
apply to persons authorized to provide
consent for initial evaluations under
this provision.
It is noteworthy that the provision in
new §300.300(a)(2)(iii) (proposed
§300.300(a)(2)(ii)(C)) is only a limited
exception to the requirement to obtain
informed parental consent for an initial
evaluation. Most children will not have
a surrogate parent already appointed at
this stage of their involvement with
services under the Act. However, if a
child has a surrogate parent appointed
under §300.519(c), and the rights of that
person to make educational decisions
for the child have not been subrogated
by a judge under State law, the public
agency would have to seek informed
parental consent from that person.
Changes: None.
Comment: One commenter
recommended revising §300.300(a)(3) to
prohibit a public agency from pursuing
an initial evaluation without parental
consent. Another commenter
recommended requiring a public agency
to use the due process procedures to
conduct an initial evaluation if the
parent does not provide consent and the
public agency believes that the child
would not otherwise receive needed
services. A few commenters stated that
§300.300(a)(3) is inconsistent with
statutory language and opposed
language stating that the public agency
may, but is not required to, pursue the
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46632 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
initial evaluation of a child whose
parents have refused to consent or failed
to respond to a request for consent.
Discussion: Section 300.300(a)(3) is
consistent with section 614(a)(1)(D)(ii)
of the Act, which states that a public
agency may pursue the initial
evaluation of a child using the
procedural safeguards if a parent does
not provide consent or fails to respond
to a request to provide consent for an
initial evaluation. Consistent with the
Department’s position that public
agencies should use their consent
override procedures only in rare
circumstances, §300.300(a)(3) clarifies
that a public agency is not required to
pursue an initial evaluation of a child
suspected of having a disability if the
parent does not provide consent for the
initial evaluation. State and local
educational agency authorities are in the
best position to determine whether, in a
particular case, an initial evaluation
should be pursued.
Changes: None.
Comment: A few commenters
recommended clarifying the parental
consent requirements for an initial
evaluation. Many commenters
recommended that LEAs maintain
documentation that the parent has been
fully informed and understands the
nature and scope of the evaluation. One
commenter recommended that the
regulations require that informed
parental consent for an initial
evaluation be documented in writing.
Discussion: Section 300.300(a)(1)(i),
consistent with section 614(a)(1)(D)(i)(I)
of the Act, is clear that the public
agency proposing to conduct an initial
evaluation to determine if a child
qualifies as a child with a disability
under §300.8 must obtain consent from
the parent of the child before
conducting the evaluation. Consent, as
defined in §300.9, means that the
parent has been fully informed in his or
her native language, or other mode of
communication, and understands and
agrees in writing to the initial
evaluation. The methods by which a
public agency seeks to obtain parental
consent for an initial evaluation (beyond
the requirement that the public agency
use the parent’s native language or
mode of communication) and how a
public agency documents its efforts to
obtain the parent’s written consent are
appropriately left to the discretion of
SEAs and LEAs.
Changes: None.
Comment: A few commenters
recommended that the regulations
include language clarifying that a public
agency is not in violation of the FAPE
requirements if the public agency does
not pursue an initial evaluation when the parent refuses to consent or fails to
respond to a request for consent. One
commenter recommended adding
language to the regulations to clarify
that if a parent refuses to consent to an
initial evaluation, the child would not
be considered to be a child with a
disability.
Discussion: While we agree that a
public agency would not be in violation
of the FAPE requirements for failing to
pursue an initial evaluation through due
process, we do not believe that a change
to the regulations is necessary. The
FAPE requirements in §§300.101
through 300.112, consistent with section
612(a) of the Act, apply only to a child
with a disability, as defined in §300.8
and section 602(3) of the Act. A child
would not be considered a child with a
disability under the Act if the child has
not been evaluated in accordance with
§§300.301 through 300.311 and
determined to have one of the
disabilities in §300.8(a), and because of
that disability, needs special education
and related services.
Further, §300.534(c)(1), consistent
with section 615(k)(5)(C) of the Act,
provides that a public agency would not
be deemed to have knowledge that a
child is a child with a disability, for
disciplinary purposes, if a parent has
not allowed the child to be evaluated or
refuses services under the Act.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify that the public agency is not in
violation of the child find requirements
if the public agency does not pursue an
initial evaluation when the parent
refuses to consent or fails to respond to
a request for consent.
Discussion: We agree that States and
LEAs should not be considered to be in
violation of their obligation to locate,
identify, and evaluate children
suspected of being children with
disabilities under §300.111 and section
612(a)(3) of the Act if they decline to
pursue an evaluation (or reevaluation)
to which a parent has refused or failed
to consent. We will add language to the
regulations to make this clear.
Changes: We have added language to
§300.300(a)(3) and (c)(1) to clarify that
a State or public agency does not violate
the requirements of §300.111 and
§§300.301 through 300.311 if it declines
to pursue an evaluation or reevaluation
to which a parent has refused or failed
to consent.
Comment: A few commenters
recommended that the regulations
define ‘‘fails to respond’’ as used in
§300.300(a)(3).
Discussion: Section 300.300(a)(3),
consistent with section 614(a)(1)(D)(ii)(I) of the Act, states that if a parent of a
child enrolled in public school, or
seeking to be enrolled in public school,
does not provide consent for an initial
evaluation, or the parent ‘‘fails to
respond’’ to a request to provide
consent, the public agency may, but is
not required to, pursue the initial
evaluation of the child by utilizing the
procedural safeguards, if appropriate,
except to the extent inconsistent with
State law relating to such parental
consent. The meaning of ‘‘fails to
respond,’’ in this context, is generally
understood to mean that, in spite of a
public agency’s efforts to obtain consent
for an initial evaluation, the parent has
not indicated whether the parent
consents or refuses consent to the
evaluation. We believe the meaning is
clear in the regulations and, therefore,
decline to define the phrase in these
regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
include language to require a public
agency to provide the following
information (in the parent’s native
language) to a parent who refuses
consent or fails to respond to a request
for consent for an initial evaluation: The
reasons why the public agency believes
the child may be eligible for special
education; confirmation that the
requested evaluation and any
subsequent special education services
will be provided at no cost and
scheduled in cooperation with parents
with transportation provided; The
nature of the evaluations and
credentials of evaluators; the types of
special education services that the child
could receive if eligible; and the risks of
delaying an evaluation.
Discussion: The prior written notice
requirements in §300.503, consistent
with section 615(c)(1) of the Act,
address many of the concerns raised by
the commenter. Consistent with
§300.503(b) and (c), prior notice must
be given to the parents when a public
agency proposes to evaluate a child and
would explain why the public agency
believes the child needs an evaluation
to determine whether the child is a
child with a disability under the Act;
describe each evaluation procedure,
assessment, record, or report the agency
used as a basis for proposing that the
child needs an evaluation; explain that
the parents have protection under the
Act’s procedural safeguards; provide
sources for parents to contact to obtain
assistance in understanding the
provisions of the Act; and describe other
factors that are relevant to the agency’s
proposal to conduct the evaluation of
the child.
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46633 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
In addition to the prior written notice,
§300.504(a)(1), consistent with section
615(d)(1)(A)(i) of the Act, requires that
a copy of the procedural safeguards
notice be given to parents upon an
initial referral or parental request for an
evaluation. Consistent with §300.503(c)
and §300.504(d), the prior written
notice and the procedural safeguards
notice, respectively, must be written in
language understandable to the general
public and be provided in the native
language of the parent or other mode of
communication used by the parent,
unless it is clearly not feasible to do so.
As a matter of practice, public
agencies provide parents with general
information about the special education
and related services that are available to
eligible children with disabilities and
inform the parent that the public
agency’s evaluation is provided at no
cost. We believe that this information,
along with the information provided in
the prior written notice and procedural
safeguards notice, will help a parent
determine whether there are any risks of
delaying an evaluation. Therefore, we
do not believe additional regulations are
necessary.
With regard to information regarding
an evaluator’s credentials, we do not
believe it is necessary to require public
agencies to provide this information to
parents because §300.304(c)(1)(v) and
section 614(b)(3)(A)(iv) of the Act
require the public agency to ensure that
the evaluation is conducted by trained
and knowledgeable personnel.
If transportation to an evaluation
outside the school environment is
necessary, the public agency would
have to provide it, as a part of its
obligation to ensure that all eligible
children are located, identified, and
evaluated. However, we do not believe
that the parents need to be notified of
this fact because, in most cases, children
can be evaluated at school during the
school day and there is no requirement
that a parent be present during the
evaluation. Thus, requiring that all
parents be notified about transportation
to evaluations would be unnecessarily
burdensome.
Changes: None.
Parental Consent for Services
(§300.300(b))
Comment: A few commenters
requested that the Department address
situations in which a child is receiving
special education services and a parent
wants to withdraw consent or refuse
services because the parent believes the
child no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to continue to provide special education
and related services to a child whose
parents withdraw consent for the
continued provision of special
education and related services.
Discussion: We are considering the
question of whether parents who
previously consented to the initiation of
special education services should have
the right to subsequently remove their
child from special education services.
We anticipate publishing a notice of
proposed rulemaking in the near future
seeking public comment on this issue.
Changes: None.
Comment: One commenter
recommended changing the regulations
to allow the public agency to provide
services in anticipation of receiving
parental consent when the public
agency initiates a due process hearing to
obtain parental consent for initial
services.
Discussion: To implement the change
requested by the commenter would be
inconsistent with the Act. Section
614(a)(1)(D)(i)(II) of the Act requires a
public agency to obtain informed
parental consent before providing initial
special education and related services to
a child. In addition, a public agency
may not initiate a due process hearing
to provide special education and related
services to a child when a parent refuses
to consent to initial services, consistent
with section 614(a)(1)(D)(ii)(II) of the
Act. A child whose parent has refused
consent for initial services would not be
provided special education and related
services and would continue to receive
general education services.
Changes: None.
Comment: A few commenters
requested that the regulations clarify the
meaning of ‘‘initial provision of
services’’ as used in §300.300(b).
Discussion: We believe §300.300(b) is
clear that the ‘‘initial provision of
services’’ means the first time a parent
is offered special education and related
services after the child has been
evaluated in accordance with the
procedures in §§300.301 through
300.311, and has been determined to be
a child with a disability, as defined in
§300.8.
Changes: None.
Comment: One commenter requested
that the regulations permit mediation
when a parent of a child refuses to
consent to the provision of special
education and related services. A few
commenters recommended revising the
regulations to require a public agency to
use the due process procedures, or other
alternative dispute resolution
procedures, if a parent refuses to
consent to initial services. Discussion: Section 300.300(b)(2),
consistent with section
614(a)(1)(D)(ii)(II) of the Act, is clear
that if a parent fails to respond or
refuses to consent to initial services, the
public agency may not use the
mediation procedures in §300.506 or
the due process procedures in
§§300.507 through 300.516 in order to
obtain agreement or a ruling that the
services may be provided to a child.
Changes: None.
Comment: One commenter stated that
additional documentation is necessary if
a parent does not provide consent for
initial services and suggested adding
language to the regulations to require
public agencies to document the steps
they have taken to obtain parental
consent for initial services and to
maintain them in the child’s permanent
file. Another commenter recommended
requiring that the parent’s refusal to
consent for initial services occur during
a properly convened IEP Team meeting.
The commenter also suggested requiring
that the documentation of a parent’s
refusal to provide consent include
evidence that all options waived by the
parent have been explained, that the
parent has refused services, and the
reasons for the parent’s refusal.
Discussion: We believe that a public
agency must make reasonable efforts to
obtain informed consent from the parent
for the initial provision of special
education and related services to the
child and will make this clear in
§300.300(b). We noted in our
discussion regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation to determine whether the
child is a child with a disability, that we
added a new paragraph (d)(5) to
§300.300 that provides that to meet the
reasonable efforts requirement, a public
agency must document its attempts to
obtain consent using the procedures in
§300.322(d). We believe a public agency
should make these same reasonable
efforts to obtain parental consent for
initial services, and will include this in
new §300.300(d)(5).
We do not believe it is necessary or
appropriate to require a public agency to
maintain additional documentation,
beyond that required in new
§300.300(d)(5), of a parent’s refusal to
provide consent for initial services or to
prescribe where this documentation
must be obtained or maintained. Public
agencies understand the importance of
properly documenting a parent’s refusal
to consent to the initial provision of
special education and related services
and are in the best position to determine
any additional documentation that is
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46634 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
necessary and where to obtain and
maintain such documentation.
Changes: We have added a new
paragraph (b)(2) to §300.300 to clarify
that the public agency must make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services to the child. Subsequent
paragraphs have been renumbered
accordingly. We also have included a
reference to new §300.300(b)(2) in new
§300.300(d)(5) that requires a public
agency to document its attempts to
obtain consent using the procedures in
§300.322(d).
Comment: One commenter
recommended adding language to
clarify that if a parent does not consent
to initial services, the child would be
considered a part of the general
education enrollment and subject to the
same disciplinary provisions as
nondisabled children.
Discussion: The language requested
by the commenter is not necessary
because section 615(k)(5)(C) of the Act
already provides for situations in which
a parent refuses consent for initial
services and the child subsequently
engages in behavior that violates a code
of student conduct. Section
300.534(c)(1), consistent with section
615(k)(5)(C) of the Act, provides that a
public agency would not be deemed to
have knowledge that a child is a child
with a disability if the parent of the
child has not allowed an evaluation of
the child pursuant to §§300.301
through 300.311, or has refused services
under this part. Therefore, such a child
would not be able to assert any of the
protections provided to children with
disabilities under the Act, and would be
subject to the same disciplinary
procedures as any other child.
Changes: None.
Comment: A few commenters
recommended requiring a public agency
to refer parents who do not provide
consent for initial services to the State’s
PTI center so that the parents can be
advised of the benefits of special
education and their rights and
responsibilities under the Act.
Discussion: We do not believe it
would be appropriate to require a public
agency to refer parents to a particular
agency or program. Such matters are
best left to States and LEAs to decide
and should not be included in the
regulations.
Changes: None.
Comment: One commenter
recommended that the regulations
require a public agency to report a
parent for suspected child abuse or
neglect to the appropriate agency if the
public agency believes that the parent’s failure or refusal to consent to initial
services meets the definition of child
abuse or neglect under the State’s
mandatory reporting law.
Discussion: It is not necessary to
include the requirement recommended
by the commenter in these regulations,
as the issue would already be addressed
by State law, if under State law a
parent’s failure to consent to initial
services under the Act was considered
child abuse or neglect.
Changes: None.
Comment: Numerous commenters
expressed concern about new
§300.300(b)(4)(ii) (proposed
§300.300(b)(3)(ii)), which provides that
if a parent fails to consent for initial
services or refuses to respond to a
request for consent, the public agency is
not required to convene an IEP Team
meeting or develop an IEP for the child.
A few commenters stated that this
should be permitted only when a parent
refuses services, but not when a parent
fails to respond to a request for consent
for initial services. A few commenters
stated that the regulations should be
revised to clarify that this applies only
to subsequent IEP Team meetings, not
the initial IEP Team meeting. One
commenter recommended revising the
regulations to require an IEP Team
meeting to be held and an IEP
developed to provide a basis for
informed consent.
Discussion: New 300.300(b)(4)(ii)
(proposed §300.300(b)(3)(ii)) follows
the specific language in section
614(a)(1)(D)(ii)(III)(bb) of the Act and
reflects the new provision in the Act
that relieves public agencies of any
potential liability for failure to convene
an IEP Team meeting or develop an IEP
for a child whose parents have refused
consent or failed to respond to a request
for consent to the initial provision of
special education and related services. It
does not, however, prevent a public
agency from convening an IEP Team
meeting and developing an IEP for a
child as a means of informing the parent
about the services that would be
provided with the parent’s consent.
Changes: None.
Comment: A few commenters
questioned how a parent could be
adequately informed of the services the
parent is refusing if the public agency is
not required to develop an IEP when the
parent refuses to consent to the initial
provision of special education and
related services.
Discussion: We understand the
commenters’ concern that a parent of a
child with a disability who refuses to
consent to the provision of special
education and related services may not
fully understand the extent of the special education and related services
their child would receive without the
development of an IEP for their child.
However, we do not view the consent
provisions of the Act as creating the
right of parents to consent to each
specific special education and related
service that their child receives. Instead,
we believe that parents have the right to
consent to the initial provision of
special education and related services.
‘‘Fully informed,’’ in this context,
means that a parent has been given an
explanation of what special education
and related services are and the types of
services that might be found to be
needed for their child, rather than the
exact program of services that would be
included in an IEP.
Changes: None.
Comment: One commenter stated that
the regulations should include sanctions
for parents who repeatedly fail to
respond to requests for consent from
public agencies, such as paying the
costs incurred by agencies attempting to
obtain consent.
Discussion: The Act does not
authorize sanctions against parents who
fail to respond to requests for consent.
Changes: None.
Parental Consent for Reevaluations
(§300.300(c))
Comment: Several commenters
recommended allowing public agencies
to use the due process procedures to
override a parent’s refusal to consent to
a reevaluation.
Discussion: Override of parental
refusal to consent to a reevaluation is
already addressed in the regulations.
Section 300.300(c) states that each
public agency must obtain informed
parental consent in accordance with
§300.300(a)(1) prior to conducting any
reevaluation of a child with a disability.
Section 300.300(a)(3) allows a public
agency to override parental refusal to
consent to an initial evaluation by
utilizing the mediation procedures
under §300.506 or the due process
procedures under §§300.507 through
300.516. The cross-reference in
§300.300(c)(1)(i) to the provision in
§300.300(a)(1) provides the basis for
allowing a public agency to override the
parent’s refusal of consent to a
reevaluation. However, we believe it is
important to state this more directly and
will, therefore, add language to
§300.300(c)(1) to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
procedural safeguards in subpart E of
this part.
Changes: We have restructured
§300.300(c)(1) and added a new
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46635 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
§300.300(c)(1)(ii) to clarify that a public
agency may, but is not required to,
pursue a reevaluation using the
procedural safeguards.
Comment: One commenter requested
that the regulations clarify a public
agency’s responsibilities for a
reevaluation if the agency has taken
reasonable measures to obtain consent
and the parent has failed to respond.
Discussion: We do not believe that
further clarification in the regulations is
necessary. Section 300.300(c)(2),
consistent with section 614(c)(3) of the
Act, is clear that a public agency may
conduct a reevaluation of a child with
a disability, if the public agency can
demonstrate that it has made reasonable
efforts to obtain such consent and the
child’s parent has failed to respond to
a request for consent.
Changes: None.
Comment: One commenter
recommended that the regulations
require a public agency to obtain
parental consent for any tests needed for
a reevaluation that were not used for the
initial evaluation or previous
reevaluations.
Discussion: We do not agree that a
change should be made. Section
614(c)(3) of the Act, which is
incorporated in §300.300(c), already
requires a public agency to obtain
parental consent before conducting any
tests needed for a reevaluation,
regardless of whether the tests differ
from tests used in previous evaluations
of the child.
Changes: None.
Comment: Many commenters
recommended retaining current
§300.505(c)(2), which requires a public
agency to document the specific
reasonable measures it has taken to
obtain parental consent for a
reevaluation, including detailed records
of telephone calls made or attempted
and the results of those calls; copies of
any correspondence sent to the parents
and any responses received; and
detailed records of visits made to the
parents’ home or place of employment
and the results of those visits. One
commenter suggested that if the
requirements in current §300.505(c)(2)
were not retained, the regulations
should define reasonable measures as at
least three good-faith attempts to contact
a parent. Many commenters stated that
current §300.505(c)(2) must be retained
because it is protected by section 607(b)
of the Act, which provides that the
Secretary may not publish final
regulations that would procedurally or
substantively lessen the protections
provided to children with disabilities in
the regulations that were in effect on
July 20, 1983. Discussion: We agree that the
requirements in current §300.505(c)(2)
should be retained. We noted in our
discussions regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation and the initial provision of
services, that we added a new paragraph
(d)(5) to §300.300 that provides that to
meet the reasonable efforts requirement,
a public agency must document its
attempts to obtain consent using the
procedures in §300.322(d). These are
the same procedures in current
§300.505(c)(2). Therefore, we will
include a reference to §300.300(c)(2)(i)
in new §300.300(d)(5).
Changes: We included a reference to
§300.300(c)(2)(i) in new §300.300(d)(5).
Other Consent Requirements
(§300.300(d))
Comment: Many commenters
recommended that the regulations
include language clarifying that a public
agency is not authorized to override the
lack of parental consent for an initial
evaluation for children who are home
schooled or placed in a private school
by the parents at their own expense.
One commenter recommended
removing the phrase ‘‘public school or
seeking to enroll in public school’’ in
§300.300(a)(3) to permit a public agency
to override lack of parental consent for
children who are home schooled or
placed in a private school by parents at
their own expense.
Discussion: We agree with the
commenters who recommended that, for
children who are home schooled or
placed in a private school by their
parents at their own expense, consent
override should not be permitted. We
will add a new paragraph (4) to
§300.300(d) to make this clear.
There are compelling policy reasons
why the Act’s consent override
procedures should be limited to
children who are enrolled, or who are
seeking to enroll, in public school.
Because the school district has an
ongoing obligation to educate a public
school child it suspects has a disability,
it is reasonable for a school district to
provide the parents with as much
information as possible about their
child’s educational needs in order to
encourage them to agree to the provision
of special education services to meet
those needs, even though the parent is
free, ultimately, to reject those services.
The school district is accountable for
the educational achievement of all of its
children, regardless of whether parents
refuse the provision of educationally
appropriate services. In addition,
children who do not receive appropriate
educational services may develop behavioral problems that have a
negative impact on the learning
environment for other children.
By contrast, once parents opt out of
the public school system, States and
school districts do not have the same
interest in requiring parents to agree to
the evaluation of their children. In such
cases, it would be overly intrusive for
the school district to insist on an
evaluation over a parent’s objection. The
Act gives school districts no regulatory
authority over private schools.
Moreover, the Act does not require
school districts to provide FAPE to
children who are home schooled or
enrolled in private schools by their
parents.
Public agencies do have an obligation
to actively seek parental consent to
evaluate children attending private
schools (including children who are
home schooled, if a home school is
considered a private school under State
law) who are suspected of being
children with disabilities under the Act,
in order to properly identify the number
of private school children with
disabilities and consider those children
as eligible for equitable services under
§§300.132 through 300.144. However,
this obligation does not extend to
overriding refusal of parental consent to
evaluate parentally-placed private
school children.
Section 300.300(a)(3) provides that a
public agency may override parental
consent for an initial evaluation only for
children who are enrolled in public
school or seeking to be enrolled in
public school, so we are not making the
suggested change in §300.300(a)(3).
Changes: We have added a new
paragraph (4) to §300.300(d) to clarify
that consent override is not permitted
for children who are home schooled or
placed in private schools by their
parents.
Evaluations and Reevaluations
Initial Evaluations (§300.301)
Request for Initial Evaluation
(§300.301(b))
Comment: Several commenters
recommended that teachers and related
services providers be included as
individuals who can refer a child for an
initial evaluation. A few commenters
requested clarification as to whether
States can authorize other individuals
who are acting on behalf of a public
agency (e.g., family court, probation
officers, staff from other public
agencies) to refer a child for an initial
evaluation, and whether individuals
responsible for protecting the welfare of
a child who are not acting on behalf of
an SEA or LEA, such as physicians and
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46636 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
social workers, can refer a child for an
initial evaluation.
Discussion: Section 614 (a)(1)(A) of
the Act provides that an SEA, other
State agency, or LEA shall conduct a full
and individual evaluation of a child
before the provision of special
education and related services. In
§300.301(a), we interpret this language
as requiring public agencies, as that
term is defined in §300.33, to conduct
evaluations, because those are the only
agencies in the State responsible for
providing FAPE to eligible children.
The same language is used in section
614(a)(1)(B) of the Act to describe the
agencies that may initiate a request for
an initial evaluation to determine if a
child is a child with a disability. We
similarly interpret this language to be
referring to the entities that are public
agencies under §300.33. Therefore,
§300.301(b) states that either a parent or
a public agency may initiate a request
for an initial evaluation. The language
does not include employees of SEAs or
LEAs (e.g., teachers and related services
providers), unless they are acting for the
SEA or LEA, or of other State agencies
(e.g., probation officers, social workers,
or staff from State agencies that are not
public agencies as defined in §300.33).
The requirements in §300.301(b)
pertain to the initiation of an evaluation
under §§300.301 through 300.305 and
should not be confused with the State’s
child find responsibilities in §300.111
and section 612(a)(3) of the Act. The
child find requirements permit referrals
from any source that suspects a child
may be eligible for special education
and related services. Child find
activities typically involve some sort of
screening process to determine whether
the child should be referred for a full
evaluation to determine eligibility for
special education and related services.
Therefore, persons such as employees of
the SEA, LEA, or other public agencies
responsible for the education of the
child may identify children who might
need to be referred for an evaluation.
However, it is the parent of a child and
the public agency that have the
responsibility to initiate the evaluation
procedures in §§300.301 through
300.311 and section 614 of the Act.
Changes: None.
Comment: Several commenters stated
that the regulations should clarify that
the 60-day timeframe in §300.301(c) to
complete an evaluation does not begin
if a parent requests an initial evaluation,
the LEA denies the request, and the
parent challenges the LEA’s decision in
a due process hearing.
Discussion: We believe the regulations
already address the commenters’
concern. Section 300.301(b) provides that a parent may initiate a request for
an initial evaluation to determine if the
child is a child with a disability. If the
public agency agrees to conduct the
evaluation, §300.304(a) requires the
public agency to provide notice to the
parents, in accordance with §300.503,
that describes any evaluation
procedures that the agency proposes to
conduct. The public agency must obtain
informed consent for the evaluation,
consistent with §§300.9 and 300.300,
prior to conducting the evaluation. The
60-day timeframe begins when the
public agency receives the consent for
evaluation.
If, however, the public agency does
not suspect that the child has a
disability and denies the request for an
initial evaluation, the public agency
must provide written notice to the
parents, consistent with §300.503(b)
and section 615(c)(1) of the Act, which
explains, among other things, why the
public agency refuses to conduct an
initial evaluation and the information
that was used as the basis to make that
decision. The parent may challenge
such a refusal by requesting a due
process hearing, but the timeline for
conducting the evaluation does not
begin prior to parental consent for
evaluation. A parent would not be able
to give consent under this part without
knowing what specific evaluation
procedures the public agency is
proposing to conduct.
Changes: None.
Comment: A few commenters
recommended that the regulations
clarify whether a public agency has the
right to deny a parent’s request for an
initial evaluation.
Discussion: The regulations are
sufficiently clear on this point. Section
300.503(a), consistent with section
615(b)(3) of the Act, provides that a
public agency may refuse to initiate or
change the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child, if the
public agency provides written notice.
This includes situations in which a
public agency wishes to deny a parent’s
request for an initial evaluation. The
written notice must meet the
requirements in §300.503(b). Thus, for
situations in which a public agency
wishes to deny a parent’s request for an
initial evaluation, the written notice
would provide, among other things, an
explanation of why the public agency
refuses to conduct an initial evaluation
and the information that was used to
make that decision. A parent may
challenge the public agency’s refusal to
conduct an initial evaluation by
requesting a due process hearing.
Changes: None. Procedures for Initial Evaluation
(§300.301(c))
Comment: Numerous commenters
requested that the regulations clarify
when the 60-day timeframe for a public
agency to conduct an initial evaluation
begins. One commenter requested that
the 60-day timeframe include
completing both the evaluation and
eligibility determination.
Several commenters recommended
reducing the timeframe for evaluations
from 60 days to 30 days. Some
commenters recommended that the 60-
day timeframe be 60 school days. A few
commenters stated that the timeframe
for evaluation should be longer if
additional time is required for specific
assessments, such as behavioral
assessments or other assessments based
on scientific practices.
Discussion: It would be inconsistent
with the Act to reduce the timeframe
from 60 days to 30 days, require the 60-
day timeframe to be 60 school days,
extend the timeframe for particular
types of assessments, or require that the
60-day timeframe cover both the
evaluation and determination of
eligibility. Section 614(a)(1)(C)(i)(I) of
the Act requires an initial evaluation to
be conducted within 60 days of
receiving parental consent for the
evaluation or, if the State establishes a
timeframe within which the evaluation
must be conducted, within that
timeframe. The regulations in
§300.301(c) reflect this requirement.
Changes: None.
Comment: A few commenters asked
whether a State could establish a
timeframe of more than 60 days to
complete an initial evaluation. A
significant number of commenters
recommended that if a State establishes
its own timeframe within which an
evaluation must be conducted, that the
timeframe be less, but not more, than 60
days. Several commenters
recommended that if a State has its own
timeframe for evaluation, the timeframe
should be reasonable and ‘‘reasonable’’
should be defined. Some commenters
recommended that if a State’s timeframe
is greater than 60 days, the Department
should provide guidance to the State
and to parents in that State. One
commenter recommended that if a State
establishes its own timeframe, the State
must offer parents an adequate
opportunity to assert their procedural
rights.
Discussion: Section 300.301(c),
consistent with section 614(a)(1)(C)(i)(I)
of the Act, requires an initial evaluation
to be completed within 60 days of
receiving parental consent for
evaluation or, if the State establishes a
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46637 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
timeframe within which the evaluation
must be conducted, within such
timeframe. The Department declines to
require that a State-established
timeframe be less than 60 days or to
place additional requirements on States
with timeframes of greater than 60 days
because the Act gives States the
authority to establish different
timeframes and imposes no restrictions
on State exercise of that authority. We
believe this is evidence of an intent to
permit States to make reasoned
determinations of the appropriate
period of time in which evaluations
should be conducted based on
particular State circumstances.
Changes: None.
Comment: Numerous commenters
requested clarification regarding the
timeframe to complete an initial
evaluation and convene the IEP Team.
A few commenters stated that the
timeframe from referral to IEP
development could be as long as 120
calendar days (30 days from referral to
consent; 60 days from consent to the
eligibility determination; and 30 days
from the eligibility determination to
development of the IEP), and
recommended that this timeframe be 60
days.
One commenter recommended that
public agencies provide consent forms
to parents promptly after a referral for
evaluation has been made so that the
child’s evaluation is not delayed. A few
commenters asked how promptly an
LEA must seek parental consent
following a referral for evaluation, and
whether an LEA can wait until
September to obtain consent if a referral
is made in June or July.
Discussion: We cannot change the
timeframe for an initial evaluation
specified in section 614(a)(1)(C) of the
Act. Section 614(a)(1)(C) of the Act
requires that an initial evaluation be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the timeframe established by the
State. Section 300.323(c) is a
longstanding requirement that a meeting
be held to develop the child’s IEP
within 30 days of determining that a
child needs special education and
related services. We decline, however,
to specify the timeframe from referral
for evaluation to parental consent, or the
timeframe from the completion of an
evaluation to the determination of
eligibility, as we are not in a position to
determine the maximum number of
days that should apply to these periods
in all circumstances.
However, it has been the
Department’s longstanding policy that
evaluations be conducted within a
reasonable period of time following the agency’s receipt of parental consent, if
the public agency agrees that an initial
evaluation is needed to determine
whether a child is a child with a
disability. Likewise, the Department
believes that eligibility decisions should
be made within a reasonable period of
time following the completion of an
evaluation.
The child find requirements in
§300.111 and section 612(a)(3)(A) of the
Act require that all children with
disabilities in the State who are in need
of special education and related services
be identified, located, and evaluated.
Therefore, it would generally not be
acceptable for an LEA to wait several
months to conduct an evaluation or to
seek parental consent for an initial
evaluation if the public agency suspects
the child to be a child with a disability.
If it is determined through the
monitoring efforts of the Department or
a State that there is a pattern or practice
within a particular State or LEA of not
conducting evaluations and making
eligibility determinations in a timely
manner, this could raise questions as to
whether the State or LEA is in
compliance with the Act.
With regard to the total timeframe
from referral to IEP development, this
will vary based on a number of factors,
including the timing of parental consent
following referral for an evaluation and
whether a State establishes its own
timeframe to conduct an initial
evaluation. Given such factors, we do
not believe it is feasible to further
regulate on this timeframe.
Changes: None.
Comment: Numerous commenters
recommended that an initial evaluation
be conducted in an expedited timeframe
for children who are homeless or in the
custody of a child welfare agency. The
commenters stated that public agencies
should take into consideration the date
on which the child was first referred for
evaluation by any public agency.
Discussion: Congress recognized the
unique problems homeless children face
and included several new provisions in
the Act to ensure that homeless children
and youth with disabilities have access
to the same services and supports as all
other children with disabilities. The
Department recognizes that the high
mobility rates of some homeless
children with disabilities (as well as
other children, including some children
who are in the custody of a State child
welfare agency) pose unique challenges
when a child is referred for an
evaluation, but moves to another district
or State before an evaluation can be
initiated or completed. In such cases,
the Department believes it is important
that the evaluations be completed as expeditiously as possible, taking into
consideration the date on which the
child was first referred for evaluation in
any LEA. However, the high mobility
rate of these children and their potential
range of evaluation needs means that
any specific expedited timeframe could
be both too long to ensure that all
children are evaluated before they
move, and too short to be reasonable in
all circumstances. There is nothing,
however, in Part B of the Act or these
regulations that would prohibit a State
from establishing its own policies to
address the needs of homeless children,
including adopting a timeframe for
initial evaluations that is less than 60
days.
Changes: None.
Exception (§300.301(d))
Comment: Numerous commenters
requested clarification regarding
whether the 60-day timeframe for initial
evaluations could be extended by
mutual agreement between the parent
and the public agency. A few
commenters asked whether the 60-day
timeframe could be extended for reasons
other than the exceptions listed in
§300.301(d), and whether a State could
include other exceptions in its State
policies and procedures.
Discussion: Congress was clear in
limiting the exceptions to the 60-day
timeframe to the situations in section
614(a)(1)(C)(ii) of the Act. Therefore, we
do not believe it is appropriate to
include in the regulations other
exceptions, such as permitting a parent
and a public agency to mutually agree
to extend the 60-day timeframe or to
include exceptions to the timeframe,
that would be in addition to those in the
Act and listed in §300.301(d). However,
the Act gives States considerable
discretion with a State-adopted
timeframe. A State could adopt a
timeframe of 60 days or some other
number of days, with additional
exceptions.
Changes: None.
Comment: A number of comments
were received requesting clarification
on the provision in §300.301(d)(1),
which allows an extension of the 60-day
or State-established timeframe to
complete an initial evaluation if the
parent of a child repeatedly fails or
refuses to produce the child for an
evaluation. A few commenters asked
whether the exception applies when a
child is not available because of
absences on the days the evaluation is
scheduled. Several commenters stated
that ‘‘produce’’ does not necessarily
mean the child’s physical presence in
school. Other commenters requested
that the regulations define ‘‘repeatedly
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46638 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
fails’’ and ‘‘refuses to produce’’ so that
LEAs do not have to engage in
exhaustive efforts to obtain access to the
child to complete the evaluation.
One commenter recommended that
the regulations clarify that an LEA must
document that it has made several
attempts to address the parent’s
concerns and clarify any confusion the
parent may have about the evaluation,
as well as address issues that make it
difficult for the parent to bring the child
to a scheduled evaluation, such as lack
of transportation and childcare.
Discussion: Section 300.301(d)
follows the specific language in section
614(a)(1)(C)(ii)(II) of the Act. We do not
believe it is appropriate or reasonable to
define ‘‘repeatedly fails’’ or ‘‘refuses to
produce’’ because the meaning of these
phrases will vary depending on the
specific circumstances in each case. For
example, situations in which a child is
absent on the days the evaluation is
scheduled because the child is ill would
be treated differently than if a parent
repeatedly fails to keep scheduled
appointments. Similarly, situations in
which a parent fails to keep scheduled
appointments when a public agency
repeatedly schedules the evaluation to
accommodate the parent’s schedule
would be treated differently than
situations in which a public agency
makes no attempt to accommodate a
parent’s schedule.
We do not believe it is necessary to
clarify that an LEA must document that
it has made several attempts to address
a parent’s concerns and issues about the
evaluation. As a matter of practice,
LEAs attempt to address parent’s
concerns and issues prior to scheduling
an evaluation because repeated
cancellations of appointments or
repeated failures to produce the child
for an evaluation are costly in terms of
staff time and effort.
Changes: None.
Comment: Numerous commenters
recommended that there be an
exception to the 60-day timeframe when
a child transfers to a new school before
an evaluation is completed.
Discussion: The exception referred to
by the commenters is already in the
regulations. Section 300.301(d)(2),
consistent with section 614(a)(1)(C)(ii)(I)
of the Act, states that the 60-day or
State-established timeframe does not
apply when a child transfers to a new
school before an evaluation is
completed, if the new public agency is
making sufficient progress to ensure
prompt completion of the evaluation,
and the parent and new public agency
agree to a specific time when the
evaluation will be completed. While the
exception to the 60-day timeframe, as stated in section 614(a)(1)(C)(ii)(I) of the
Act and paragraph (d)(2) of this section,
only applies when a child transfers to a
school located in another public agency,
we do not believe the language in
paragraph (d)(2), as proposed in the
NPRM, is necessarily clear on this
matter. We, therefore, have added
language in paragraph (d)(2) to provide
additional clarity. We believe it is
important that it is understood that the
60-day or State-established timeframe
does not apply when a child transfers
from one school to another school in the
same public agency. When a child
transfers from one school to another
school in the same public agency, we
expect that an initial evaluation will be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the State-established timeframe.
Changes: We have added language to
§300.301(d)(2) to clarify that the
exception to the 60-day or State-
established timeframe only applies
when a child transfers to a new school
located in another public agency.
Comment: Several comments were
received on the provision in new
§300.301(e) (proposed
§300.301(d)(2)(ii)) that allows an
exception to the 60-day or State-
established timeframe, only if the new
public agency is making sufficient
progress to ensure a prompt completion
of the evaluation and the parent and
new public agency agree to a specific
time when the evaluation will be
completed. One commenter stated that
schools would be unable to meet the 60-
day timeframe for children who transfer
from another public agency if the new
public agency has not been notified of
the evaluation timeframe. Another
commenter recommended that
exceptions to the 60-day timeframe
should not be permitted because the
term ‘‘sufficient progress’’ is not
defined. A few commenters requested
that the regulations define ‘‘sufficient
progress.’’
One commenter stated that there
might be legitimate reasons for not
completing an evaluation within the 60-
day timeframe, such as differences in
the assessment instruments used in the
previous and new public agency, and
requested that the regulations provide
guidance on how a public agency
should determine if appropriate
progress is being made.
One commenter recommended that if
there is no date certain when an
evaluation must be completed when a
child transfers public agencies, the new
public agency should conduct an
evaluation within 60 days of the
enrollment date of the child; make
reasonable efforts to obtain evaluation information from the previous public
agency; and consider any available
evaluation information from the
previous public agency.
One commenter recommended
requiring the new public agency to
contact the previous public agency
within five days to request a report of
any actions taken to transfer the child’s
records, copies of completed
evaluations, a copy of the child’s file,
and an estimate as to when the
information will be sent. The
commenter stated that public agencies
should be required to keep records of
such attempts to inform parents of all
actions through written communication.
The commenter stated that if the
information is not received within 15
days, the new public agency should be
required to begin a new evaluation and
complete it within the 60-day or State-
established timeframe.
Discussion: The exceptions to the 60-
day or State-established timeframe must
be permitted because they are statutory.
Section 614(a)(1)(C)(ii)(I) of the Act,
which is incorporated in
§300.300(d)(2), provides that the 60-day
or State-established timeframe does not
apply if a child enrolls in a school
served by the public agency after the
relevant timeframe has begun, and prior
to a determination by the child’s
previous public agency as to whether
the child is a child with a disability.
The exception applies only if the
subsequent public agency is making
sufficient progress to ensure prompt
completion of the evaluation, and the
parent and subsequent public agency
agree to a specific time when the
evaluation will be completed.
We do not believe it is necessary to
define the phrase ‘‘sufficient progress’’
because the meaning will vary
depending on the specific
circumstances in each case. As one
commenter noted, there may be
legitimate reasons for not completing
the evaluation within the 60-day
timeframe, such as differences in
assessment instruments used in the
previous and new public agencies, and
the length of time between a child
leaving one school and enrolling in the
next school. Therefore, we believe that
whether a new public agency is making
sufficient progress to ensure prompt
completion of an evaluation is best left
to the discretion of State and local
officials and parents to determine.
It would be over-regulating to specify
the number of days within which a new
public agency must request a child’s
records from the previous public agency
or to require the new public agency to
document its attempts to obtain the
records and keep parents informed of all
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46639 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
actions through written communication.
We note, however, that §300.304(c)(5),
consistent with section 614(b)(3)(D) of
the Act, requires each public agency to
ensure that the evaluations of children
with disabilities who transfer from one
school district to another school district
in the same school year are coordinated
with the children’s prior and
subsequent schools, as necessary, and as
expeditiously as possible, to ensure
prompt completion of full evaluations.
Additionally, new §300.323(g)
(proposed §300.323(e)(2)), consistent
with section 614(d)(2)(C)(ii) of the Act,
requires the new school in which the
child enrolls to take reasonable steps to
promptly obtain the child’s records
(including the IEP and supporting
documents and any other records
relating to the provision of special
education or related services to the
child) from the previous public agency
in which the child was enrolled. The
previous public agency in which the
child was enrolled must also take
reasonable steps to promptly respond to
the request from the new public agency.
We believe that these requirements will
help to ensure that a child’s records are
promptly received by the new public
agency.
The Act does not require the
evaluation of a child who is transferring
to a new school to be completed within
60 days of the enrollment date of the
child, as recommended by one
commenter, and we do not believe that
such a requirement should be included
in the regulations. The completion of
evaluations for children who transfer to
another school are subject to multiple
factors and we decline to regulate on a
specific timeframe that would apply in
all circumstances.
Changes: None.
Comment: One commenter
recommended sanctions against a new
public agency that fails to make an effort
to complete an evaluation of a child
who transfers to another school that was
begun by a previous public agency. The
commenter stated that the previous
public agency should also be sanctioned
for failure to cooperate with a new
public agency or for otherwise impeding
the ability of the new public agency to
complete the evaluation promptly.
Discussion: As part of its general
supervisory responsibilities in §300.149
and section 612(a)(11) of the Act, each
SEA is responsible for ensuring that the
requirements of Part B of the Act are
followed, including the requirements for
children who transfer from one public
agency to another public agency within
the school year. Whether sanctions
against a particular LEA are appropriate
should be determined by the SEA in the first instance, as they are in the best
position to determine what sanctions,
technical assistance, or combination of
the two are likely to lead to future
compliance. For that reason, we decline
to regulate with more specificity in this
area.
Changes: None.
Screening for Instructional Purposes Is
Not Evaluation (§300.302)
Comment: One commenter requested
clarification on the difference between
screening and evaluation and
recommended that the regulations
include specific examples of what
constitutes screening, including testing
instruments that are appropriate to be
used for screening to determine
appropriate instructional strategies.
Many commenters recommended
permitting States to determine the
screening process for identifying
appropriate instructional strategies.
One commenter stated that
‘‘screening’’ is too loosely defined and
may be confused with State regulations
that require screening for a child’s
entrance into school. The commenter
recommended that the regulations
address issues such as the need for
parental consent prior to screening and
a timeframe for screening subsequent to
a request.
Discussion: An ‘‘evaluation,’’ as used
in the Act, refers to an individual
assessment to determine eligibility for
special education and related services,
consistent with the evaluation
procedures in §§300.301 through
300.311. ‘‘Screening,’’ as used in
§300.302 and section 614(a)(1)(E) of the
Act, refers to a process that a teacher or
specialist uses to determine appropriate
instructional strategies. Screening is
typically a relatively simple and quick
process that can be used with groups of
children. Because such screening is not
considered an evaluation under
§§300.301 through 300.311 to
determine eligibility for special
education services, parental consent is
not required.
Section 300.302 does not address
screening for a child’s entrance into
school under a State’s rules. Screening
required under a State’s rules for a
child’s entrance into school is the
responsibility of the State and is not
within the purview of the Act. We
believe that the provisions in §§300.301
through 300.311, regarding evaluations,
and §300.302, regarding screening for
instructional purposes, are clear, and
therefore, we do not believe it is
necessary to add language to the
regulations.
We decline to provide specific
examples of testing instruments to determine appropriate instructional
strategies because this will vary based
on the age of the child and the subject
matter, and is best left to State and local
officials to determine. Likewise, the
process for screening, including the
timeframe to complete the screening
process, is a decision that is best left to
State and local officials to determine,
based on the instructional needs of the
children.
Changes: None.
Comment: One commenter asked
whether the provisions in §300.302,
regarding screening, apply to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. One commenter noted that
§300.302 refers to screening of a child
by a teacher or a specialist and asked
who would be considered a specialist.
Another commenter requested
clarification regarding the term
‘‘instructional strategies for curriculum
implementation,’’ as used in §300.302.
Discussion: Section 300.302,
consistent with section 614(a)(1)(E) of
the Act, states that the screening of a
child by a teacher or specialist to
determine appropriate instructional
strategies is not considered an
evaluation for purposes of determining
eligibility for special education and
related services. This applies to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. Such screening, therefore,
could occur without obtaining informed
parental consent for screening.
We believe the determination of who
is considered a ‘‘specialist’’ should be
left to the discretion of the public
agency and should not be specified in
the regulations. The term, ‘‘instructional
strategies for curriculum
implementation’’ is generally used to
refer to strategies a teacher may use to
more effectively teach children.
Changes: None.
Comment: One commenter
recommended clarification regarding
whether States can develop and
implement policies that permit
screening of children to determine if
evaluations are necessary.
Discussion: There is nothing in the
Act that requires a State to, or prohibits
a State from, developing and
implementing policies that permit
screening children to determine if
evaluations are necessary. However,
screening may not be used to delay an
evaluation for special education and
related services. If a child is referred for
an evaluation to determine eligibility for
special education and related services,
the public agency must implement the
requirements in §§300.301 through
300.311 and adhere to the 60-day or the
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State-established timeframe to complete
the evaluation.
Changes: None.
Reevaluations (§300.303)
Comment: A few commenters
recommended clarifying that a parent is
not required to provide a reason for
requesting a reevaluation. Several
commenters recommended that the
regulations require a public agency to
provide prior written notice if a parent
requests a reevaluation within a year
and the public agency refuses the
request.
Discussion: Section 300.303(b),
consistent with section 614(a)(2)(A)(ii)
of the Act, states that a reevaluation may
occur if the child’s parent or teacher
requests a reevaluation. There is no
requirement that a reason for the
reevaluation be given and we agree that
a reevaluation cannot be conditioned on
the parent providing a reason for
requesting a reevaluation.
Section 300.303(b), consistent with
section 614(a)(2)(B) of the Act, provides
that a reevaluation may occur not more
than once a year and must occur at least
once every three years, unless the parent
and the public agency agree otherwise.
If a parent requests more than one
reevaluation in a year and the public
agency does not believe a reevaluation
is needed, we believe the regulations are
clear that the public agency must
provide the parents with written notice
of the agency’s refusal to conduct a
reevaluation, consistent with §300.503
and section 615(c)(1) of the Act. We do
not believe additional regulations are
necessary to address this specific
instance of a public agency’s refusal to
initiate a reevaluation and the written
notice requirements in §300.503.
Changes: None.
Comment: A few commenters
requested clarification regarding
whether an evaluation that assesses
skills that were not previously assessed
in the same related services area would
be considered an evaluation or
reevaluation. One commenter, asked, for
example, if a speech-language
evaluation was conducted to assess a
child’s speech impairment one year,
would an evaluation the following year
to assess the child’s language abilities be
considered an evaluation or
reevaluation?
Discussion: An initial evaluation of a
child is the first complete assessment of
a child to determine if the child has a
disability under the Act, and the nature
and extent of special education and
related services required. Once a child
has been fully evaluated, a decision has
been rendered that a child is eligible for
services under the Act, and the required services have been determined, any
subsequent evaluation of a child would
constitute a reevaluation. In the
example provided by the commenter,
the second evaluation would be
considered a reevaluation.
Changes: None.
Comment: One commenter
recommended that reevaluations be
required at least once every three years
because a child’s mental and physical
profile changes in three years, and thus,
so would the child’s educational needs.
Another commenter recommended
requiring LEAs to inform parents that
information from the most recent
evaluation, which could be three or
more years old if the parent agrees that
a reevaluation is unnecessary, will be
used in the development of a child’s
IEP.
A few commenters recommended an
accountability process for LEAs that do
not conduct reevaluations at least every
three years. The commenters
recommended requiring LEAs to report
to the State the number of children with
disabilities who qualified for, but were
not given a three-year reevaluation;
provide prior written notice to parents
if the LEA determines that a three-year
reevaluation is not necessary, including
the justification for such determination;
and inform the parent in writing in the
parent’s language that a three-year
reevaluation will be conducted if the
parent disagrees with the LEA’s
determination.
One commenter recommended
requiring an LEA that does not conduct
a reevaluation at least once every three
years to justify the reasons in writing,
especially if there is evidence that the
child is not meeting the State’s
academic achievement standards.
Discussion: Section 300.303(b)(2),
consistent with section 614(a)(2)(B)(ii)
of the Act, requires a reevaluation to
occur at least once every three years,
unless the parent and the public agency
agree that a reevaluation is unnecessary.
It would be overly burdensome to
require an LEA to report to the State the
number of children with disabilities
who qualified for, but were not given a
three-year reevaluation. Similarly, it
would be overly burdensome to require
LEAs to inform parents that information
from the most recent evaluation will be
used to develop a child’s IEP or to
justify to the parent in writing the LEA’s
reasons for not conducting a
reevaluation every three years if the
parent and the agency have already
agreed that a reevaluation is
unnecessary.
If a parent requests a reevaluation and
the public agency disagrees that a
reevaluation is needed, the public agency must provide prior written
notice to the parent, consistent with
§300.503, that explains, among other
things, why the agency refuses to
conduct the reevaluation and the
parent’s right to contest the agency’s
decision through mediation or a due
process hearing.
In situations where a public agency
believes a reevaluation is necessary, but
the parent disagrees and refuses consent
for a reevaluation, new
§300.300(c)(1)(ii) is clear that the public
agency may, but is not required to,
pursue the reevaluation by using the
consent override procedures described
in §300.300(a)(3).
Changes: None.
Comment: One commenter
recommended the following
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed based on
alternate achievement standards: (a)
Prohibiting the public agency from
automatically determining that a three-
year reevaluation is not needed; (b)
requiring the public agency to consider
whether the child has been correctly
identified to be assessed against
alternate achievement standards; and (c)
requiring a review of evaluation data to
determine whether the child is, to the
extent possible, being educated in the
general curriculum and assessed with
instruments aligned with that
curriculum.
Discussion: We do not believe
changes to the regulations are necessary
to address the commenter’s concerns.
The Act does not include any special
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed against
alternate achievement standards. It
would be inconsistent with the
individualized evaluation and
reevaluation procedures in section
614(b) and (c) of the Act for a public
agency to automatically determine that
reevaluations are unnecessary for a
specific group of children. In
determining whether a reevaluation is
needed, the parent and the public
agency must consider the child’s
educational needs, which may include
whether the child is participating in the
general education curriculum and being
assessed appropriately.
Changes: None.
Comment: One commenter
recommended clarifying that parents
have the right to prevent the over-testing
of their child and that the requirements
for reevaluations do not diminish the
rights of parents to make decisions
regarding the reevaluation. Several
commenters recommended that the
regulations require States to establish
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additional procedural safeguards to
ensure that parents who agree that a
reevaluation is unnecessary are aware of
the implications of their decision.
Discussion: There is nothing in the
Act to suggest that the requirements for
reevaluations in §300.303 diminish the
rights of parents. As stated in §300.303,
consistent with section 614(a)(2) of the
Act, a parent can request a reevaluation
at any time, and can agree with the
public agency to conduct a reevaluation
more frequently than once a year.
Likewise, a parent and a public agency
can agree that a reevaluation is not
necessary. We believe that in reaching
an agreement that a reevaluation is
unnecessary, as provided for in
§300.303(b), the parent and public
agency will discuss the advantages and
disadvantages of conducting a
reevaluation, as well as what effect a
reevaluation might have on the child’s
educational program. Therefore, we do
not agree with the commenter that
additional procedural safeguards are
necessary to ensure that parents who
agree that a reevaluation is unnecessary
are aware of the implications of their
decision.
Changes: None.
Comment: Many commenters
requested that the opportunity to waive
a reevaluation occur only after the IEP
Team has reviewed extant data to
determine whether additional data are
needed to determine the child’s
eligibility and the educational needs of
the child.
Discussion: The review of existing
data is part of the reevaluation process.
Section 300.305(a), consistent with
section 614(c)(1) of the Act, is clear that,
as part of any reevaluation, the IEP
Team and other qualified professionals,
as appropriate, must review existing
evaluation data, and on the basis of that
review, and input from the child’s
parents, identify what additional data, if
any, are needed to determine whether
the child continues to have a disability,
and the educational needs of the child.
Therefore, the opportunity for a parent
and the public agency to agree that a
reevaluation is unnecessary occurs
before a reevaluation begins. It would be
inconsistent with the Act to implement
the commenters’ recommendation.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that waiving a three-year
reevaluation must not be adopted as
routine agency policy or practice and
should only be used in exceptional
circumstances. Another commenter
recommended that the regulations
require the LEA to offer parents a
reevaluation at least annually when a parent agrees that a three-year
reevaluation is not needed. Another
commenter recommended that the
regulations clarify that a reevaluation
may be warranted more than once a year
if the child’s condition changes or new
information becomes available that has
an impact on the child’s educational
situation.
Discussion: It is not necessary to add
language clarifying that waiving three-
year reevaluations must not be a routine
agency policy or practice because the
regulations are clear that this is a
decision that is made individually for
each child by the parent of the child and
the public agency. Section
300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, states that a
reevaluation must occur at least once
every three years, unless the parent and
the public agency agree that a
reevaluation is unnecessary. When a
parent and a public agency agree that a
three-year reevaluation is unnecessary,
there is no requirement that the public
agency offer the parent a reevaluation
each year. We do not believe that it is
necessary to have such a requirement
because if parents who have waived a
three year reevaluation later decide to
request an evaluation, they can do so.
Also, public agencies have a continuing
responsibility to request parental
consent for a reevaluation if they
determine that the child’s educational
or related services needs warrant a
reevaluation.
We do not believe additional
regulations are needed to clarify that a
reevaluation can occur more than once
a year. Section 300.303(b)(1), consistent
with section 614(a)(2)(B)(i) of the Act,
already provides that a reevaluation can
occur more than once a year if the
parent and the public agency agree that
a reevaluation is needed.
Changes: None.
Comment: One commenter asked
whether the agreement between the
parent and the public agency that a
reevaluation is unnecessary is the same
as parental consent in §300.9.
Discussion: An agreement between a
parent and a public agency is not the
same as parental consent in §300.9.
Rather, an agreement refers to an
understanding between a parent and the
public agency and does not need to
meet the requirements for parental
consent in §300.9.
Changes: None.
Comment: One commenter
recommended that the regulations
clarify that when a parent obtains an
independent educational evaluation
(IEE) and provides new information to
the public agency, a reevaluation could
be conducted more than once a year so that the public agency can verify the
results of the IEE.
Discussion: The changes
recommended by the commenter are
unnecessary. Section 300.303(b)(1),
consistent with section 614(a)(2)(B)(i) of
the Act, is clear that a reevaluation can
be conducted more than once a year if
the parent and the public agency agree
that it is necessary. Therefore, in the
situation presented by the commenter, if
the results of an IEE provide new
information that the public agency and
the parent agree warrant a reevaluation,
the parent and the public agency could
agree to conduct a reevaluation.
Changes: None.
Comment: One commenter asked
whether an IEE is considered a
reevaluation and whether an IEE is
prohibited within less than a year of the
public agency’s most recent evaluation.
Discussion: An IEE would be
considered as a potential source of
additional information that the public
agency and parent could consider in
determining whether the educational or
related services needs of the child
warrant a reevaluation, but it would not
be considered a reevaluation. There is
no restriction on when a parent can
request an IEE.
Changes: None.
Evaluation Procedures (§300.304)
Notice (§300.304(a))
Comment: Numerous commenters
recommended that the regulations
clarify that the requirement for prior
written notice to parents in §300.304(a)
is satisfied if the public agency notifies
the parent of the type(s) of assessment(s)
that will be conducted. One commenter
stated that the prior written notice
requirements for evaluations should be
satisfied if the public agency notifies the
parent of the type(s) of assessment(s)
that will be conducted, the method(s) of
assessment, and the persons who will
conduct the assessment(s).
Discussion: It would be inconsistent
with the Act for a public agency to limit
the contents of the prior written notice
in the manner requested by the
commenters. In addition to describing
the evaluation procedures the agency
proposes to use, as required in
§300.303(a), section 615(c)(1) of the Act
requires the prior written notice to
include an explanation of why the
agency proposes to evaluate the child; a
description of each evaluation
procedure, assessment, record, or report
the agency used as a basis for requesting
the evaluation; a statement that the
parents have protection under the
procedural safeguards of the Act, and if
this notice is not an initial referral for
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evaluation, the means by which a copy
of the procedural safeguards can be
obtained; sources for the parents to
contact to obtain assistance in
understanding the provisions of the Act;
a description of other options that were
considered and why these reasons were
rejected; and a description of other
factors that are relevant to the agency’s
proposal to request consent for an
evaluation.
Changes: None.
Comment: A few commenters stated
that the notice to parents regarding the
evaluation procedures the agency
proposes to use must be provided in the
native language of the parents, and
recommended that this requirement be
clarified in §300.304.
Discussion: Information regarding the
evaluation procedures the agency
proposes to use, as required in
§300.303(a), is included in the prior
written notice required in
§300.503(c)(1)(ii). Section
300.503(c)(1)(ii) requires, that the prior
written notice to parents be provided in
the native language of the parent or
other mode of communication used by
the parent, unless it is clearly not
feasible to do so. We see no need to
repeat these requirements in §300.304
and believe that doing so could cause
confusion about the status of other
applicable requirements that would not
be repeated in this section.
Changes: None.
Conduct of Evaluation (§300.304(b))
Comment: One commenter asked
whether the ‘‘procedure’’ referred to in
§300.304(b)(2) is the same as the
‘‘measure or assessment’’ referred to in
section 614(b)(2)(B) of the Act. Another
commenter recommended changing
§300.304(b)(2) to follow the statutory
language.
Discussion: Section 300.304(b)(2), as
proposed, states that the public agency
may not use any single ‘‘procedure’’ as
the sole criterion for determining
whether a child is a child with a
disability and for determining an
appropriate educational program for the
child. Section 614(b)(2)(B) of the Act
states that in conducting an evaluation,
the LEA must not use any single
‘‘measure or assessment’’ as the sole
criterion for determining whether a
child is a child with a disability or
determining an appropriate educational
program for the child. We agree that the
statutory language should be used in
§300.304(b)(2) because use of the term
‘‘procedure,’’ rather than ‘‘measurement
or assessment,’’ could be confusing.
Changes: We have changed
‘‘procedure’’ to ‘‘measurement or assessment’’ in §300.304(b)(2),
consistent with the statutory language.
Comment: One commenter
recommended adding the word
‘‘always’’ to §300.304(b) to state that the
public agency must ‘‘always’’ conduct
an evaluation in accordance with the
requirements in §300.304(b)(1) through
(b)(3).
Discussion: Adding the word
‘‘always’’ to §300.304(b) would not
change the requirements for conducting
an evaluation consistent with
§300.304(b). The regulation already
requires a public agency to conduct the
evaluation in accordance with
§300.304(b)(1) through (b)(3) and there
are no exceptions to that requirement.
Therefore, we decline to change
§300.304(b) in the manner
recommended by the commenter.
Changes: None.
Comment: One commenter
recommended that the regulations
define ‘‘technically sound instruments’’
and ‘‘relative contribution’’ in
§300.304(b)(3). Another commenter
recommended that the instruments used
in reevaluations to determine whether
the child continues to have a disability
should be based on scientific research
methods.
Discussion: Section 300.304(b)(3)
follows the specific language in section
614(b)(2)(C) of the Act and requires that
the evaluation of a child use technically
sound instruments that may assess the
relative contribution of cognitive and
behavioral factors, in addition to
physical and developmental factors.
‘‘Technically sound instruments’’
generally refers to assessments that have
been shown through research to be valid
and reliable. Therefore, it would be
redundant to add language requiring
that instruments used in reevaluations
be based on scientific research methods,
as recommended by one commenter.
The phrase ‘‘relative contribution,’’ as
used in §300.304(b)(3), generally means
that assessment instruments that allow
the examiner to determine the extent to
which a child’s behavior is a result of
cognitive, behavioral, physical, or
developmental factors may be used in
evaluating a child in accordance with
§300.304. Because the meaning of
‘‘relative contribution’’ is context
specific, we do not believe it should be
defined in these regulations.
Changes: None.
Other Evaluation Procedures
(§300.304(c))
Comment: One commenter
recommended clarifying that differences
in language and socialization practices
must be considered when determining
eligibility for special education and related services, including biases related
to the assessment.
Discussion: We do not believe that the
clarification requested by the
commenter is necessary. The Act and
these regulations recognize that some
assessments may be biased and
discriminatory for children with
differences in language and
socialization practices. Section
614(b)(3)(A)(i) of the Act requires that
assessments and other evaluation
materials used to assess a child under
the Act are selected and administered so
as not to be discriminatory on a racial
or cultural basis. Additionally, in
interpreting evaluation data for the
purpose of determining eligibility of a
child for special education and related
services, §300.306(c) requires each
public agency to draw upon information
from a variety of sources, including
aptitude and achievement tests, parent
input, teacher recommendations, as well
as information regarding a child’s
physical condition, social or cultural
background, and adaptive behavior. We
believe that these provisions provide
adequate protection for the concerns
raised by the commenter.
Changes: None.
Comment: One commenter requested
that the regulations clarify that a public
agency should not use the ‘‘not clearly
feasible’’ exception in §300.304(c)(1)(ii)
to improperly limit a child’s right to be
evaluated in the child’s native language
or other mode of communication.
Discussion: Section 300.304(c)(1)(ii),
consistent with section 614(b)(3)(A)(ii)
of the Act, requires that assessments and
other evaluation materials used to assess
a child be provided and administered in
the child’s native language or other
mode of communication and in the form
most likely to yield accurate
information on what the child knows
and can do, unless it is clearly not
feasible to so provide or administer. We
agree that this provision should not be
improperly used to limit evaluations in
a child’s native language, but we do not
believe that a change to the regulations
is necessary or that it would prevent
inappropriate application of the existing
rule.
Changes: None.
Comment: One commenter
recommended including ‘‘behavior’’ in
the list of areas to be evaluated in
§300.304(c)(4). Another commenter
recommended requiring a functional
behavioral assessment to be part of a
child’s evaluation whenever any
member of the IEP Team requests it or
raises concerns about the child’s
behavior. One commenter asked why
physical assessments were not included
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in the list of assessments that should be
conducted.
Discussion: Section 300.304(c)(4)
requires the public agency to ensure that
the child is assessed in all areas related
to the suspected disability. This could
include, if appropriate, health, vision,
hearing, social and emotional status,
general intelligence, academic
performance, communicative status, and
motor abilities. This is not an
exhaustive list of areas that must be
assessed. Decisions regarding the areas
to be assessed are determined by the
suspected needs of the child. If a child’s
behavior or physical status is of
concern, evaluations addressing these
areas must be conducted. No further
clarification is necessary.
Changes: None.
Comment: Many commenters
recommended that the evaluation report
include a description of the extent to
which an assessment varied from
standard conditions because there are
few assessments that produce valid and
reliable information for English
language learners suspected of having a
disability. Several commenters stated
that it is standard practice for
professionals administering assessments
to include information in their reports
when assessments are conducted using
nonstandard conditions. One
commenter recommended that the
regulations require all evaluation
reports to clearly indicate the language
or other mode of communication used
in assessing a child and a determination
of whether using such language or other
mode of communication yielded
accurate information.
Discussion: As stated by several
commenters, it is standard test
administration practice to include in the
evaluation report the extent to which an
assessment varied from standard
conditions, including the language or
other mode of communication that was
used in assessing a child. It is, therefore,
unnecessary to include this requirement
in the regulations.
Changes: None.
Comment: Many commenters
recommended that the regulations
require public agencies to provide
parents with evidence that the
assessments to be used are reliable and
valid for their particular use, as well as
assurances that the assessments will be
administered in the child’s primary
language or mode of communication.
The commenters also recommended that
public agencies be required to provide
parents with information regarding the
assumptions being made about the tests
and the inferences that can be drawn
from the test results. Discussion: Section 300.304(a),
consistent with section 614(b)(1) of the
Act, requires the public agency to
provide notice to the parents of a child
with a disability, in accordance with
§300.503, that describes the evaluation
procedures the agency proposes to
conduct. To require public agencies to
provide all parents with the specific
information recommended by the
commenters would be burdensome for
public agencies, and could be
overwhelming for some parents, and
therefore, we decline to add such a
requirement to the regulations. While
we understand that some parents will
want the detailed information
mentioned by the commenter, parents
can always request such additional
information before providing informed
written consent for the evaluation or
reevaluation.
Changes: None.
Comment: A few commenters
recommended that the regulations
require comprehensive psychological
and educational evaluations to rule out
alternate causes of functional
impairments in academic achievement.
Discussion: We believe the regulations
already address the commenters’
concerns and we do not believe any
further clarification is necessary.
Section 300.304(c)(6) requires that
evaluations are sufficiently
comprehensive to identify all of the
child’s special education and related
services needs, whether or not
commonly linked to the disability
category in which the child has been
identified. In addition, §300.306(b),
consistent with section 614(b)(5) of the
Act, states that a child must not be
determined to be a child with a
disability if the determinant factor for
that determination is lack of appropriate
instruction in reading or math, or
limited English proficiency.
Changes: None.
Comment: Several commenters
recommended that the requirements in
new §300.301(d)(2) and (e) (proposed
§300.301(d)(2)(i) and (ii)), regarding
children who transfer to another public
agency before an initial evaluation is
completed, should be cross-referenced
in §300.304(c)(5).
Discussion: We agree that a cross-
reference in §300.304(c)(5) is
appropriate.
Changes: We have added ‘‘consistent
with §300.301(d)(2) and (e),’’ following
‘‘possible’’ in §300.304(c)(5).
Comment: None.
Discussion: In reviewing
§300.304(c)(5), we determined that
§300.304(c)(5) should be amended to
refer to children with disabilities who
transfer to another public agency ‘‘in the same school year’’ rather than ‘‘in the
same academic year’’ because that is the
term most commonly understood by
parents and school officials.
Changes: We have changed ‘‘academic
year’’ to ‘‘school year’’ in
§300.304(c)(5).
Comment: One commenter
recommended adding language
regarding scientifically based special
education and related services to
§300.304(c)(6).
Discussion: Section 300.304(c)(6)
requires that the evaluation of a child
with a disability be sufficiently
comprehensive to identify all the child’s
special education and related services
needs, whether or not commonly linked
to the disability category in which the
child has been classified. We believe
that the focus on providing scientifically
based special education and related
services is clear in the Act and these
regulations and do not believe it is
necessary to refer to ‘‘scientifically
based’’ services each time we refer to
special education and related services.
Therefore, we decline to add this
language in §300.304(c)(6), as requested
by the commenter.
Changes: None.
Additional Requirements for
Evaluations and Reevaluations
(§300.305)
Review of Existing Evaluation Data
(§300.305(a))
Comment: One commenter stated that
a comma should be added after ‘‘current
classroom-based’’ in §300.305(a)(1)(ii)
to clarify that a review of existing
evaluation data for a child must include,
as appropriate, data from three types of
assessments: Current classroom-based,
local, or State assessments.
Discussion: We agree with the
commenter and will revise the language
consistent with the commenter’s
suggestion and consistent with section
614(c)(1)(A)(ii) of the Act. The changes
will clarify that a review of existing
evaluation data on a child must include,
as appropriate, current classroom-based,
local, or State assessment data.
Changes: We have inserted a comma
following ‘‘classroom based’’ and
‘‘local’’ in §300.305(a)(1)(ii), consistent
with the statutory language.
Comment: One commenter asked
whether a public agency must conduct
a reevaluation when a reevaluation is
requested to determine the child’s
educational and functional needs, but
the child’s eligibility for special
education and related services is not in
question.
Discussion: Section 300.305(a)(2),
consistent with section 614(c)(1)(B) of
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the Act, states that one of the purposes
of a reevaluation is to determine the
educational needs of the child,
including whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the child’s IEP
goals and to participate in the general
education curriculum. Thus, if a
reevaluation is requested to determine
the child’s educational needs when the
child’s continued eligibility is not in
question, the public agency must either
conduct the reevaluation or provide
notice to the parents as to why the
public agency believes a reevaluation is
unnecessary.
Changes: None.
Requirements if Additional Data Are
Not Needed (§300.305(d))
Comment: One commenter requested
that the regulations define or remove the
phrase ‘‘qualified professionals, as
appropriate’’ in §300.305(d)(1).
Discussion: Section 300.305(d)(1)
follows the specific language in section
614(c)(1) of the Act and refers to the
decision made by the IEP Team and
‘‘other qualified professionals, as
appropriate’’ regarding whether
additional data are needed to determine
whether a child continues to be a child
with a disability and the child’s
educational needs. The phrase,
‘‘qualified professionals, as appropriate’’
is used to provide flexibility for public
agencies to include other professionals
who may not be a part of the child’s IEP
Team in the group that determines if
additional data are needed to make an
eligibility determination and determine
the child’s educational needs. We
believe that public agencies should have
flexibility in determining how to define
‘‘qualified professionals’’ and we do not
believe a definition should be included
in the regulations.
Changes: None.
Evaluations Before Change in Eligibility
(Proposed Evaluations Before Change in
Placement) (§300.305(e))
Comment: One commenter stated that
the heading for §300.305(e),
‘‘Evaluations before change in
placement’’ should be changed because
the regulations that follow do not deal
with changes in placement. Another
commenter requested clarification
regarding the meaning of the term
‘‘placement.’’ The commenter stated
that §300.305(e) uses the term to mean
that special education services are no
longer required, but that this is not the
meaning when used in the context of
alternative educational placements. The
commenter also asked whether moving
a child from a self-contained classroom to a resource room is a change of
placement.
Discussion: We agree that the heading
for §300.305(e) should be changed to
more accurately reflect the requirements
in this subsection. We will, therefore,
change the heading to ‘‘Evaluations
before change in eligibility,’’ which is
consistent with the heading in section
614(c)(5) of the Act.
With regard to the commenter’s
question about whether moving a child
from a self-contained classroom to a
resource room would be a change of
placement, we believe that it would be,
as it would change the child’s level of
interaction with his or her nondisabled
peers. However, as noted previously, the
term ‘‘change of placement’’ should not
have been used in connection this
regulation.
In the example provided by the
commenter, generally, if a child is
moved from a self-contained classroom
to a resource room, it is likely that the
child’s current IEP cannot be
implemented in the resource room,
because the educational program in the
resource room is likely to be
substantially and materially different
than the educational program in the
self-contained classroom or the
educational program in the resource
room would change the level of
interaction with nondisabled peers.
Therefore, this situation would likely be
a change of placement under the Act.
Changes: We have removed the
heading ‘‘Evaluations before change in
placement’’ in §300.305(e) and replaced
it with ‘‘Evaluations before change in
eligibility’’ for clarity and consistency
with the heading in section 614(c)(5) of
the Act.
Comment: Many commenters
recommended that evaluations for other
institutions (e.g., vocational
rehabilitation agencies, colleges and
universities) should be required before a
child graduates from secondary school
with a regular diploma or exceeds the
age limit for FAPE. However, a number
of commenters disagreed and stated that
public agencies should not be required
to conduct evaluations that will be used
to meet the entrance or eligibility
requirements of another institution or
agency. One commenter requested
clarification regarding whether schools
must provide updated evaluations for
college testing and admissions purposes
and recommended including language
in the regulations that explicitly states
that public agencies are not required to
conduct tests that are needed for
admission to postsecondary programs.
Another commenter recommended that
the regulations clarify that LEAs have
responsibility for providing the postsecondary services that are included
in the summary of the child’s academic
achievement and functional
performance.
One commenter requested requiring a
reevaluation before a child exits the
school system. Another commenter
recommended clarifying that a
comprehensive evaluation is not
required for children aging out of
special education.
A number of commenters provided
recommendations on the information
that should be included in the summary
of a child’s academic and functional
performance required in §300.305(e)(3).
Commenters suggested that the
summary report should include
information about the child’s disability;
the effect of the disability on the child’s
academic and functional performance
(sufficient to establish eligibility under
the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act, if
appropriate); any needed modifications
or adaptations essential to the child’s
success; the child’s most recent
evaluations by professionals, including
the child’s academic achievement and
functional performance levels; assistive
technology and other supports used by
the child; and any modifications and
supports that would facilitate the child’s
successful transition to postsecondary
education or employment.
Discussion: We do not believe that the
regulations should require public
agencies to conduct evaluations for
children to meet the entrance or
eligibility requirements of another
institution or agency because to do so
would impose a significant cost on
public agencies that is not required by
the Act. While the requirements for
secondary transition are intended to
help parents and schools assist children
with disabilities transition beyond high
school, section 614(c)(5) in the Act does
not require a public agency to assess a
child with a disability to determine the
child’s eligibility to be considered a
child with a disability in another
agency, such as a vocational
rehabilitation program, or a college or
other postsecondary setting. The Act
also does not require LEAs to provide
the postsecondary services that may be
included in the summary of the child’s
academic achievement and functional
performance. We believe it would
impose costs on public agencies not
contemplated by the Act to include such
requirements in the regulations.
It would be inconsistent with the Act
to require public agencies to conduct
evaluations for children who are exiting
the school system because they exceed
the age for eligibility under State law.
Section 300.305(e)(2), consistent with
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46645 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
section 614(c)(5)(B)(i) of the Act, is clear
that an evaluation in accordance with
§§300.304 through 300.311 is not
required before the termination of a
child’s eligibility under the Act due to
graduation from secondary school with
a regular diploma or due to exceeding
the age eligibility for FAPE under State
law.
Section 300.305(e)(3), consistent with
section 614(c)(5)(B)(ii) of the Act, states
that the summary required when a child
graduates with a regular diploma or
exceeds the age eligibility under State
law must include information about the
child’s academic achievement and
functional performance, as well as
recommendations on how to assist the
child in meeting the child’s
postsecondary goals. The Act does not
otherwise specify the information that
must be included in the summary and
we do not believe that the regulations
should include a list of required
information. Rather, we believe that
State and local officials should have the
flexibility to determine the appropriate
content in a child’s summary, based on
the child’s individual needs and
postsecondary goals.
Changes: None.
Comment: One commenter stated that
public agencies should not be required
to conduct an evaluation of a child who
graduates with a regular diploma
because a regular diploma means that
the child has met the same requirements
and achieved the same or similar level
of competency as the child’s
nondisabled classmates. The commenter
also requested that the regulations
define a regular diploma to mean that
the child has reached a comparable
level of achievement as the child’s
nondisabled classmates.
Discussion: Section 300.305(e)(2)
specifically states that a public agency
does not need to evaluate a child with
a disability who graduates with a
regular diploma. In addition, as noted in
the Analysis of Comments and Changes
section for subpart B, we have clarified
in §300.101(a)(3)(iv) that a regular
diploma does not include alternate
degrees, such as a general educational
development (GED) credential. We do
not believe that any further clarification
with respect to the definition of ‘‘regular
diploma’’ is necessary.
Changes: None.
Determination of Eligibility (§300.306)
Comment: One commenter
recommended that the regulations
require public agencies to provide
parents with copies of all evaluations at
no cost. However, another commenter
stated that evaluations are often lengthy
and requested clarification as to whether public agencies must provide
copies of evaluations to parents at no
cost.
Discussion: Section 300.306(a)(2),
consistent with section 614(b)(4)(B) of
the Act, requires that a copy of the
evaluation report and the
documentation of determination of
eligibility be given to the parent. We
have added language to §300.306(a)(2)
to clarify that the public agency must
provide these copies at no cost to the
parent.
With regard to providing parents with
copies of all evaluations, §300.501(a),
consistent with section 615(b)(1) of the
Act, affords parents an opportunity to
inspect and review all education records
with respect to the identification,
evaluation, and educational placement
of the child, and the provision of a
FAPE to the child. Specific procedures
for access to records are contained in
the confidentiality provisions in
§§300.610 through 300.627.
Section 300.613 requires a public
agency to permit a parent to inspect and
review any education records relating to
their child that are collected,
maintained, or used by the agency
under the Act. The right to inspect and
review records includes the right to a
response from the agency to reasonable
requests for explanations and
interpretations of the records; the right
to request that the agency provide
copies of the records containing the
information if failure to provide those
copies would effectively prevent the
parent from exercising the right to
inspect and review the records; and the
right to have a representative of the
parent inspect and review the records.
To the extent that the commenters may
have been concerned about free copies
of evaluation documents that would not
be provided under the above
regulations, we decline to regulate
further, as we believe that the cited
provisions adequately balance the
interests of the parents for free copies
and the public agencies in controlling
costs.
Changes: We have added language to
§300.306(a)(2) to clarify that the
evaluation report and the
documentation of determination of
eligibility must be provided at no cost
to the parent.
Comment: One commenter
recommended that parents receive
evaluation reports prior to an IEP Team
meeting because the reports may have
information that parents need to
participate in making decisions about
the IEP. The commenter stated that, if
parents receive reports at meetings,
rather than before the meetings, they
cannot be active participants. Another commenter stated that parents should be
provided with copies of documents
related to the determination of
eligibility at least five days prior to the
eligibility determination meeting.
Discussion: The Act does not establish
a timeline for providing a copy of the
evaluation report or the documentation
of determination of eligibility to the
parents and we do not believe that a
specific timeline should be included in
the regulations because this is a matter
that is best left to State and local
discretion. It is, however, important to
ensure that parents have the information
they need to participate meaningfully in
IEP Team meetings, which may include
reviewing their child’s records. Section
300.613(a) requires a public agency to
comply with a parent request to inspect
and review existing education records,
including an evaluation report, without
unnecessary delay and before any
meeting regarding an IEP, and in no case
more than 45 days after the request has
been made. This includes the right to a
response from the public agency to
reasonable requests for explanations and
interpretations of records, consistent
with §300.613(b)(1).
While it would be appropriate for
parents to review documents related to
the determination of eligibility prior to
the eligibility determination, there is no
requirement that eligibility be
determined at an IEP Team meeting and
it would not be appropriate for a public
agency to provide documentation of the
determination of eligibility prior to
discussing a child’s eligibility for
special education and related services
with the parent. Section 300.306(a)(1)
and section 614(b)(4)(A) of the Act
require that a group of qualified
professionals and the parent determine
whether the child is a child with a
disability. Therefore, providing
documentation of the eligibility
determination to a parent prior to a
discussion with the parent regarding the
child’s eligibility would indicate that
the public agency made its
determination without including the
parent and possibly, qualified
professionals, in the decision.
Changes: None.
Special Rule for Eligibility
Determination (§300.306(b))
Comment: A number of commenters
recommended other factors that should
be ruled out before a child is
determined to be a child with a
disability. Many commenters stated that
a child should not be determined to be
a child with a disability if the
determinant factor is lack of instruction
in English language development or lack
of access to State content standards. A
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46646 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
few commenters expressed concern
regarding subjective judgments about
the definition of ‘‘appropriate
instruction.’’ One commenter stated that
determining the quality of reading
instruction that children received in the
past might be difficult, if not
impossible, especially when children
are referred for an evaluation after they
enter middle school or are highly
mobile.
Discussion: We agree that a child
should not be determined to be a child
with a disability if the determinant
factor is lack of access to State content
standards, and we believe this is
implicit in section 614(b)(5) of the Act,
which states that a child must not be
determined to be a child with a
disability if the determinant factor is
lack of appropriate instruction in
reading (including the essential
components of reading instruction, as
defined in the ESEA) or lack of
instruction in math.
During the Department’s internal
review of these regulations, we noted
that, while §300.306(b)(1)(i) refers to
lack of ‘‘appropriate’’ instruction in
reading, there is no similar qualifier for
math. We believe it is equally important
that a child not be determined to be a
child with a disability if the
determinant factor is the lack of
‘‘appropriate’’ instruction in math.
Therefore, we will revise
§300.306(b)(1)(ii) to make this clear.
We are unclear what the commenter
means by lack of instruction in English
language development. However, if a
child’s low achievement is a result of
limited English proficiency or lack of
access to instruction in reading, the
child must not be determined to be a
child with a disability, consistent with
section 614(b)(5) of the Act.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. While
information regarding the quality of
instruction a child received in the past
may be helpful in determining whether
a child is eligible for special education
services, it is not essential. Schools,
however, must ensure that the
determinant factor in deciding that a
child is a child with a disability is not
a lack of appropriate instruction in
reading and math.
Changes: We have added
‘‘appropriate’’ in §300.306(b)(1)(ii) to
refer to a ‘‘lack of appropriate
instruction in math.’’
Comment: Some commenters
requested that we include in the
regulations the essential components of
reading instruction defined in the ESEA. Discussion: For reasons set forth
elsewhere in this preamble, we are not
adding definitions to these regulations
from statutes other than the Act.
However, the definition of the essential
components of reading instruction from
section 1208(3) of the ESEA is included
here for reference.
Essential Components of Reading
Instruction—The term ‘‘essential
components of reading instruction’’
means explicit and systematic
instruction in—
(A) Phonemic awareness;
(B) Phonics;
(C) Vocabulary development;
(D) Reading fluency, including oral
reading skills; and
(E) Reading comprehension strategies.
Changes: None.
Procedures for Determining Eligibility
and Educational Need (Proposed
Procedures for Determining Eligibility
and Placement) (§300.306(c))
Comment: None.
Discussion: During the review of these
regulations, we noted that section
614(b)(4) of the Act refers to procedures
for determining eligibility and
‘‘educational need,’’ rather than
procedures for determining eligibility
and ‘‘placement,’’ as in the heading for
proposed §300.306(c). Therefore, we
will change the heading in §300.306(c)
to be consistent with section 614(b)(4) of
the Act.
Changes: We have replaced
‘‘placement’’ with ‘‘educational need’’
in the heading to §300.306(c),
consistent with section 614(b)(4) of the
Act.
Additional Procedures for Identifying
Children With Specific Learning
Disabilities
Specific Learning Disabilities
(§300.307)
Comment: Numerous commenters
supported proposed §300.307(a)(1),
which allowed States to prohibit LEAs
from using a severe discrepancy
between IQ and achievement
(discrepancy models) to determine
eligibility under the specific learning
disability (SLD) category. However,
many commenters supported the use of
discrepancy models and requested that
the regulations allow discrepancy
models to continue to be used.
Numerous commenters stated that
§300.307(a)(1) exceeds statutory
authority and that LEAs should be
permitted to use discrepancy models.
Many commenters cited Conf. Rpt. 108–
779 and stated that Congress did not
intend to prohibit LEAs from using
discrepancy models. Discussion: The Department agrees
that proposed §300.307(a)(1) should be
removed. We believe this will improve
the clarity of the regulations and make
it easier for parents and professionals to
understand. With respect to permitting
LEAs to use discrepancy models, even
with the removal of §300.307(a)(1),
States are responsible for developing
criteria to determine whether a child is
a child with a disability, as defined in
§300.8 and section 602(3) of the Act,
including whether a particular child
meets the criteria for having an SLD.
Under section 614(b)(6) of the Act,
States are free to prohibit the use of a
discrepancy model. States, including
States that did not use a discrepancy
model prior to the Act, are not required
to develop criteria that permit the use of
a discrepancy model.
Changes: We have removed
§300.307(a)(1) and redesignated the
subsequent provisions in §300.307.
Comment: Many commenters stated
that response to intervention (RTI)
should be considered one component of
the evaluation process and not the sole
component. Another commenter stated
that neither a discrepancy model nor an
RTI model alone can correctly identify
children with SLD and that other data
are needed, such as informal and formal
assessments, histories, and observations.
One commenter stated that all relevant
and available evaluation data, such as
the nature and type of evaluation,
evaluator qualifications, and outcome
data should be considered. One
commenter recommended that RTI be
tied to the general evaluation
procedures. Another commenter
recommended referencing the
evaluation procedures in §300.309 to
clarify that RTI must be used as one
component of the evaluation process to
determine eligibility for special
education and related services. Several
commenters stated that relying solely on
an RTI model would result in larger
numbers of children being identified
with an SLD.
Discussion: Consistent with
§300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for
special education and related services.
This requirement applies to all children
suspected of having a disability,
including those suspected of having an
SLD.
To simplify new §300.307(a)(2)
(proposed §300.307(a)(3)) and remove
unnecessary repetition, we will: (a)
Remove the phrase ‘‘as part of the
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46647 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
1Tilly III, W. D. (2002). School psychology as a
problem solving enterprise. In A. Thomas & J.
Grimes (Eds.), Best Practices in School Psychology
IV. Washington D.C.: National Association of
School Psychologists; VanDerHeyden, A.M, Witt,
J.C, & Gilbertson, D. (in press). Effect of a problem
solving intervention on the accurate identification
of children. Journal of School Psychology; Marston,
D., Muyskens, P., Lau, M., & Canter, A. (2003).
Problem-solving model for decision making with
high incidence disabilities: The Minneapolis
experience. Learning Disabilities Research and
Practice, 18, 187–200; Gresham, F., VanDerHeyden,
A.M, & Witt, J.C. (in press). Response to
intervention in the identification of learning
disabilities: Empirical support and future
challenges. School Psychology Review; National
Association of State Directors of Special Education
(2005). Response to intervention: policy
considerations and implementations. Alexandria
VA: Author.
evaluation procedures described in
§300.304;’’ and (b) replace ‘‘process that
determines if the child responds to
scientific, research-based intervention’’
with ‘‘process based on the child’s
response to scientific, research-based
intervention.’’ Section 300.311(a)(7) will
also be revised, consistent with this
language.
Changes: We have revised new
§300.307(a)(2) (proposed
§300.307(a)(3)) and §300.311(a)(7) for
clarity.
Comment: Several commenters
recommended changing new
§300.307(a)(2) (proposed
§300.307(a)(3)) to require that State
criteria ‘‘may’’ rather than ‘‘must’’
permit a process that determines if a
child responds to research-based
intervention in order to be consistent
with section 614(b)(6)(B) of the Act.
Discussion: Making the requested
change to new §300.307(a)(2) (proposed
§300.307(a)(3)) would be inconsistent
with the Act. Section 614(b)(6)(B) of the
Act gives LEAs the option of using a
process that determines if a child
responds to research-based
interventions.
Changes: None.
Comment: Several commenters
recommended that the regulations
include a statement that discrepancy
models have been discredited and that
there is no evidence that they can be
applied in a valid and reliable manner.
Several commenters recommended that
the Department urge States, at least
through guidance, to eliminate
provisions under State laws that permit
the use of discrepancy models.
Discussion: We do not believe it is
appropriate to add language in the
regulations discouraging the use of
discrepancy models to identify children
with SLD. We removed current
§300.541(a)(2), which required States to
use a discrepancy model to determine
whether a child has an SLD, because
section 614(b)(6) of the Act now
specifies that an LEA shall not be
required to consider a severe
discrepancy in determining whether a
child has an SLD. New §300.307(a)(2)
(proposed §300.307(a)(3)) requires
States to permit the use of a process that
examines whether the child responds to
scientific, research-based interventions
as part of the information reviewed to
determine whether a child has an SLD.
The regulations reflect the Department’s
position on the identification of
children with SLD and our support for
models that focus on assessments that
are related to instruction and promote
intervention for identified children.
Changes: None. Comment: One commenter
recommended that any guidance the
Department issues on RTI models
should emphasize that RTI represents a
shift in how children are identified for
special education services and not just
an additional task that special education
teachers must do.
Discussion: Consensus reports and
empirical syntheses indicate a need for
major changes in the approach to
identifying children with SLD. Models
that incorporate RTI represent a shift in
special education toward goals of better
achievement and improved behavioral
outcomes for children with SLD because
the children who are identified under
such models are most likely to require
special education and related services.
We will consider addressing this issue
in future guidance.
Changes: None.
Comment: Many commenters stated
that the elimination of discrepancy
models would result in an inability to
identify children with SLD who are
gifted. One commenter stated that a
scatter of scores should be used to
identify children with SLD who are
gifted.
Discussion: Discrepancy models are
not essential for identifying children
with SLD who are gifted. However, the
regulations clearly allow discrepancies
in achievement domains, typical of
children with SLD who are gifted, to be
used to identify children with SLD.
Changes: None.
Comment: Many commenters opposed
the use of RTI models to determine
whether a child has an SLD, stating that
there is a lack of scientific evidence
demonstrating that RTI models correctly
identify children with SLD. One
commenter stated that RTI is a
subjective method of determining
whether treatment is effective and is not
a treatment itself. A few commenters
requested additional research
demonstrating the efficacy of the wide-
scale use of RTI models. Some
commenters stated that research on the
use of RTI models has been conducted
only in the area of reading in the
primary grades and pointed to the lack
of scientific data on achievement gains
or long-term success. One commenter
stated that there is no evidence that RTI
is effective for non-native speakers of
English and minority populations.
Another commenter stated that RTI
would fail to identify young children
with SLD. One commenter stated that
when a child fails to respond to an
intervention, it is unclear why the child
failed (e.g., inappropriate intervention,
ineffective teaching, unreasonable
expectations). One commenter stated
that longitudinal data are needed to determine if children who succeed in an
RTI process later become eligible under
the category of SLD based on reading
fluency and comprehension difficulties,
or difficulties in other academic areas,
such as mathematics problem-solving or
written expression.
Discussion: The Act requires that
LEAs be permitted to use a process that
determines if a child responds to
research-based interventions. Further,
there is an evidence base to support the
use of RTI models to identify children
with SLD on a wide scale, including
young children and children from
minority backgrounds. These include
several large-scale implementations in
Iowa (the Heartland model; Tilly, 2002);
the Minneapolis public schools
(Marston, 2003); applications of the
Screening to Enhance Equitable
Placement (STEEP) model in
Mississippi, Louisiana, and Arizona
(VanDerHeyden, Witt, & Gilbertson, in
press); and other examples (NASDE,
2005).
1While it is true that much of the
research on RTI models has been
conducted in the area of reading, 80 to
90 percent of children with SLD
experience reading problems. The
implementation of RTI in practice,
however, has included other domains.
RTI is only one component of the
process to identify children in need of
special education and related services.
Determining why a child has not
responded to research-based
interventions requires a comprehensive
evaluation.
Changes: None.
Comment: One commenter expressed
concern about how LEAs will conduct
evaluations for children suspected of
having an SLD who attend private
schools because requiring an RTI
process could become entangled with
the private school’s instructional
practices. The commenter
recommended clarifying that child find
does not require an LEA to use RTI to
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46648 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
identify children with SLD who are
attending private schools.
Discussion: An RTI process does not
replace the need for a comprehensive
evaluation. A public agency must use a
variety of data gathering tools and
strategies even if an RTI process is used.
The results of an RTI process may be
one component of the information
reviewed as part of the evaluation
procedures required under §§300.304
and 300.305. As required in
§300.304(b), consistent with section
614(b)(2) of the Act, an evaluation must
include a variety of assessment tools
and strategies and cannot rely on any
single procedure as the sole criterion for
determining eligibility for special
education and related services.
It is up to each State to develop
criteria to determine whether a child
has a disability, including whether a
particular child has an SLD. In
developing their criteria, States may
wish to consider how the criteria will be
implemented with a child for whom
systematic data on the child’s response
to appropriate instruction is not
available. However, many private
schools collect assessment data that
would permit a determination of how
well a child responds to appropriate
instruction. The group making the
eligibility determination for a private
school child for whom data on the
child’s response to appropriate
instruction are not available may need
to rely on other information to make
their determination, or identify what
additional data are needed to determine
whether the child is a child with a
disability. However, under §300.306(b),
a public agency may not identify any
public or private school child as a child
with a disability if the determinant
factor is lack of appropriate instruction
in reading or math.
Changes: None.
Comment: One commenter stated that
adoption of new procedures for
evaluating children suspected of having
an SLD should not penalize or
declassify children who under prior
procedures were found to have an SLD.
The commenter recommended using the
requirements in §300.305, rather than
data from a child’s response to a
scientific, research-based intervention
process, to consider whether a child
continues to have an SLD.
Discussion: An RTI process does not
replace the need for a comprehensive
evaluation, and a child’s eligibility for
special education services cannot be
changed solely on the basis of data from
an RTI process. Consistent with
§300.303 and section 614(a)(2) of the
Act, a child with a disability must be
reevaluated if the public agency determines that the educational or
related services needs of the child
warrant a reevaluation or if the child’s
parent or teacher requests a
reevaluation. A reevaluation must occur
no more than once a year, unless the
parent and the public agency agree
otherwise, and at least once every three
years, unless the parent and the public
agency agree that a reevaluation is
unnecessary, to determine whether the
child continues to have a disability and
to determine the educational needs of
the child. Reevaluations must be
conducted in accordance with
§§300.304 through 300.311. In addition,
as noted in §300.305(e)(1), except for
children at the end of their secondary
school career, a reevaluation must be
done before determining that a child is
no longer a child with a disability. In
conducting a reevaluation, as noted in
§300.305, consistent with section 614(c)
of the Act, the IEP Team and other
qualified professionals must review
existing evaluation data on the child
including evaluations provided by the
parents of the child; current classroom-
based, local, or State assessments and
classroom-based observations; and
observations by teachers and related
services providers.
The results of an RTI process may be
one component of the information
reviewed as part of the reevaluation
process. It is up to each State to develop
criteria to determine whether a child
continues to have a disability, including
whether a particular child has an SLD.
States that change their eligibility
criteria for SLD may want to carefully
consider the reevaluation of children
found eligible for special education
services using prior procedures. States
should consider the effect of exiting a
child from special education who has
received special education and related
services for many years and how the
removal of such supports will affect the
child’s educational progress,
particularly for a child who is in the
final year(s) of high school. Obviously,
the group should consider whether the
child’s instruction and overall special
education program have been
appropriate as part of this process. If the
special education instruction has been
appropriate and the child has not been
able to exit special education, this
would be strong evidence that the
child’s eligibility needs to be
maintained.
Changes: None.
Alternative Research-Based Procedures
(New §300.307(a)(3)) (Proposed
§300.307(a)(4))
Comment: Many commenters
expressed support for allowing the use of alternative research-based procedures
to determine whether a child has an
SLD. However, a few commenters stated
that the use of alternative research-
based procedures should be removed
because there is no indication that these
procedures will assist in identifying a
child with an SLD and because the Act
does not use this term.
Discussion: New §300.307(a)(3)
(proposed §300.307(a)(4)) recognizes
that there are alternative models to
identify children with SLD that are
based on sound scientific research and
gives States flexibility to use these
models. For example, a State could
choose to identify children based on
absolute low achievement and
consideration of exclusionary factors as
one criterion for eligibility. Other
alternatives might combine features of
different models for identification. We
believe the evaluation procedures in
section 614(b)(2) and (b)(3) of the Act
give the Department the flexibility to
allow States to use alternative, research-
based procedures for determining
whether a child has an SLD and is
eligible for special education and
related services.
Changes: None.
Comment: One commenter stated that
alternative research-based procedures
are not based on scientific research and
should therefore be removed.
Discussion: The Department does not
support the use of identification
procedures that are not based on
scientific research. Models or
procedures that claim to assist in
identifying a child with an SLD, but
which are not based on sound scientific
research, are not appropriate and should
not be adopted by LEAs or States.
Changes: None.
Comment: A few commenters stated
that the meaning of alternative research-
based procedures is unclear and should
be defined. One commenter stated that
there would be inappropriate
interventions and procedures without
further clarification as to the meaning of
alternative research-based procedures.
Discussion: As noted in the Analysis
of Comments and Changes section for
subpart A, we have added the definition
of scientifically based research from
section 9101(37) of the ESEA to the
definitions section of these regulations.
This definition is the most appropriate
definition to include in these
regulations, given the importance
Congress placed on aligning the Act
with the ESEA. The Department does
not intend to dictate how extensive the
research must be or who, within an LEA
or State, should determine that the
research is of high quality. We believe
that this is a matter best left to State and
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46649 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
local officials because determining the
presence of an appropriate instructional
process is part of the State-adopted
criteria. This addition should provide
the clarity requested by the commenters.
Changes: We have added a definition
of scientifically based research to
§300.35, giving the term the definition
in section 9101(37) of the ESEA.
Consistency With State Criteria
(§300.307(b))
Comment: Several commenters
expressed concern about allowing States
to decide on the approach to
determining whether a child has an
SLD, and requested the Department
develop criteria to be used across the
nation. However, numerous commenters
supported the development of State
criteria and requiring public agencies to
use the State criteria to determine
whether a child has an SLD. Many
commenters stated that this requirement
is necessary to prevent inconsistent
eligibility requirements among LEAs in
a State. Other commenters stated that
the requirement exceeds statutory
authority and that LEAs should be
allowed to make decisions about the
criteria and methods to identify
children with SLD.
Discussion: The Department believes
that eligibility criteria must be
consistent across a State to avoid
confusion among parents and school
district personnel. The Department also
believes that requiring LEAs to use State
criteria for identifying children with
disabilities is consistent with the State’s
responsibility under section 612(a)(3) of
the Act to locate, identify, and evaluate
all eligible children with disabilities in
the State. We believe this provides the
Department with the authority to
require a public agency to use State
criteria in determining whether a child
has an SLD, consistent with §§300.307
through 300.311.
Changes: None.
Comment: A few commenters
requested requiring States to adopt and
implement only one model to determine
whether a child has an SLD. However,
several commenters requested that
States and LEAs have the flexibility to
use more than one model. One
commenter noted that States need
flexibility to determine eligibility
criteria until there is greater
understanding of the effectiveness of
evidence-based protocols in identifying
children with SLD.
Discussion: There is nothing in the
Act that would require a State to use
one model of identification to identify a
child with an SLD. We do not believe
the regulations should include such a
requirement, because section 614(b)(6) of the Act indicates that some flexibility
in the selection of models of
identification by LEAs can be
appropriate, if permitted by the State.
Changes: None.
Comment: One commenter
recommended that the Department
require States to develop a plan to
implement Statewide eligibility criteria
that includes dissemination of research-
based models, collecting data on the use
of such models, providing professional
development on the State’s criteria, and
implementing appropriate services and
instruction.
Discussion: We agree that it could be
helpful for States to develop a plan to
implement any new SLD criteria, as
recommended by the commenter.
However, we do not believe States
should be required to adopt such a plan,
as this is a matter that is best left to
individual States to decide.
Changes: None.
Group Members (§300.308)
Comment: Several commenters
requested an explanation of the use of
‘‘group members’’ rather than ‘‘team
members’’ to describe the group that
determines whether a child suspected of
having an SLD is a child with a
disability. One commenter stated that
the eligibility determination is an IEP
Team function and, therefore, using the
term ‘‘group members’’ is inappropriate.
One commenter stated that §300.308 is
confusing because the group seems to be
the same as the IEP Team.
Discussion: The change from ‘‘team
members’’ to ‘‘group members’’ was
made in the 1999 regulations to
distinguish this group from the IEP
Team, because the team of qualified
professionals and the parent in
§300.306(a)(1) that makes the eligibility
determination does not necessarily have
the same members as an IEP Team. In
some States, this group of professionals
may have the same individuals as the
IEP Team, but in other States, this is not
the case. We inadvertently referred to
‘‘team members’’ in 300.309(a)(2)(ii)
and, therefore, will change this to
‘‘group.’’
Changes: We have changed ‘‘team
members’’ to ‘‘group’’ in
§300.309(a)(2)(ii) to be consistent with
§300.306(a)(1).
Comment: Several commenters stated
that the requirements for the
qualifications of the group members in
proposed §300.308(a) are unnecessary
and should be removed because they are
not included in the Act, are overly
prescriptive, and add another set of
procedural requirements. On the other
hand, a number of commenters
recommended additional or different qualifications that should be required of
the group members in §300.308. Several
commenters recommended that the
group members be qualified to conduct
assessments in the area of ‘‘cognition’’
rather than ‘‘intellectual development’’
to ensure that specific cognitive abilities
are assessed, rather than global
intellectual abilities.
Several commenters recommended
that proposed §300.308(a)(2), requiring
group members to apply ‘‘critical
analysis’’ to the data, be changed to
require group members to apply
‘‘clinical’’ analysis to the data. One
commenter stated that clinical analysis
should be defined and suggested a
definition that includes professional
judgment informed by empirical
research, training, and experience, and
guided by interpretation of patterns in
evaluation findings from a number of
sources (e.g., test scores; interviews;
work samples; observational data; and
information from parents, school
personnel, and other related services
providers).
A few commenters recommended
requiring evaluations to be completed
by certified speech-language
pathologists and school psychologists to
ensure that qualified professionals
conduct the assessments. One
commenter recommended that the
examples of the areas for diagnostic
assessments be preceded by ‘‘such as’’
to avoid a misinterpretation that a
speech-language pathologist, for
example, is mandated to participate in
every SLD determination.
Several commenters agreed with the
professional competencies for the group
members described in §300.308(a).
However, one commenter stated that
‘‘collectively qualified’’ is too broad a
term and should be more narrowly
defined. Another commenter stated that
there is no way to ensure that the group
members possess the necessary
expertise unless there is a mechanism to
determine whether the group members
have the specified competencies in
proposed §300.308(a).
One commenter stated that, although
professionals from more than one
discipline may be qualified to
administer certain assessments, they do
not bring the same expertise to the
process. One commenter asked if a
special education teacher, a regular
education teacher, and parent were all
that would be necessary if they
collectively met the competency
requirements.
Several commenters stated that the
list of professionals in proposed
§300.308(b) for the eligibility group
should be removed and decisions about
group members left to schools and
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46650 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
2Donovan, M.S., & Cross, C.T. (2002). Minority
students in special and gifted education.
Washington, DC: National Academy Press; Bradley,
L., Danielson, & Hallahan, D.P. (Eds.). Identification
of learning disabilities: Research to practice.
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L
(2000). Cognitive processing of low achievers and
children with reading disabilities: A selective meta-
analytic review of the published literature. The
School Psychology Review, 29, 102–119; Steubing,
K.K., Fletcher, J.M., LeDoux, J.M., Lyon, G.R.,
Shaywitz, S.E., & Shoywitz B.A. (2002). Validity of
IQ-discrepancy, classifications of reading
disabilities: A meta-analysis. American Educational
Research Journal, 39, 469–518.
districts. Other commenters stated that
the requirements for the eligibility
group should be the same as those for
the group that determines the eligibility
of children suspected of all other
disabilities.
Many commenters recommended that
additional or different professionals
should be included in the group.
Numerous commenters recommended
including speech-language pathologists
in the group because of their expertise
in reading and conducting individual
diagnostic assessments in the areas of
speech and language.
A few commenters stated that a
school psychologist should be a
required member of the group, rather
than listed as ‘‘if appropriate.’’ One of
these commenters stated that, even if
school psychologists are no longer
required to administer assessments to
determine whether there is a
discrepancy between the child’s
achievement and ability, school
psychologists conduct assessments
related to cognitive functioning,
behavior, and other issues that may
affect a child’s learning.
Numerous commenters recommended
requiring the special education teacher
who is part of the eligibility group to
have expertise in the area of SLD.
However, one commenter stated that it
is unnecessary for a special education
teacher to be part of the group because
the teacher would not have any
instructional experience with the yet-to-
be identified child and nothing in the
Act requires special education teachers
to possess any diagnostic expertise in
the area of SLD.
One commenter recommended that
the group include a teacher with
experience in teaching children who are
failing or at-risk for failing, in addition
to a general education and special
education teacher. Several commenters
recommended adding a reading
specialist as a required member. A few
commenters recommended including a
social worker as a required member,
stating that it is important that one of
the members examine the child’s home
and community environment to rule out
environmental and economic factors as
a primary source of the child’s learning
difficulties. Another commenter
recommended adding a guidance
counselor as a required member. One
commenter recommended including a
school nurse and stated that a school
nurse can contribute information about
educationally relevant medical findings.
One commenter stated that a reading
teacher and an educational therapist
should always be included in the group.
A few commenters were not familiar
with the role of an educational therapist and requested a definition or
elimination of the term from the list of
‘‘other professionals.’’ One commenter
stated that two of the three professionals
listed as ‘‘other professionals’’ (school
psychologist, reading teacher,
educational therapist) are not
credentialed and questioned why they
were included in the group.
Discussion: The Department has
considered the diversity of comments
received and, given the lack of
consensus about which individuals
should be included in the group that
makes eligibility determinations for
children suspected of having an SLD,
believes that the requirements in current
§300.540 should be retained. Current
§300.540 states that the eligibility group
for children suspected of having SLD
must include the child’s parents and a
team of qualified professionals, which
must include the child’s regular teacher
(or if the child does not have a regular
teacher, a regular classroom teacher
qualified to teach a child of his or her
age) or for a child of less than school
age, an individual qualified by the SEA
to teach a child of his or her age; and
at least one person qualified to conduct
individual diagnostic examinations of
children, such as a school psychologist,
speech-language pathologist or remedial
reading teacher. We believe this allows
decisions about the specific
qualifications of the members to be
made at the local level, so that the
composition of the group may vary
depending on the nature of the child’s
suspected disability, the expertise of
local staff, and other relevant factors.
For example, for a child suspected of
having an SLD in the area of reading, it
might be important to include a reading
specialist as part of the eligibility group.
However, for a child suspected of
having an SLD in the area of listening
comprehension, it might be appropriate
for the group to include a speech-
language pathologist with expertise in
auditory processing disorders. Current
§300.540 provides flexibility for schools
and districts, and ensures that the group
includes individuals with the
knowledge and skills necessary to
interpret the evaluation data and make
an informed determination as to
whether the child is a child with an
SLD, and the educational needs of the
child.
Changes: Section 300.308 has been
changed to include the requirements
from current §300.540.
Determining the Existence of a Specific
Learning Disability (§300.309)
Comment: One commenter stated that
there is no authority in the Act for the SLD eligibility requirements outlined in
§300.309.
Discussion: We agree that the
statutory language is broad and does not
include the specific requirements to
determine whether a child suspected of
having an SLD is a child with a
disability. The purpose of these
regulations, however, is to provide
details to assist States in the appropriate
implementation of the Act. We believe
the requirements in §300.309 are
necessary to ensure that States have the
details necessary to implement the Act.
Changes: None.
Comment: One commenter stated that
RTI was Congress’ preference for
determining eligibility under SLD, and
therefore, the criteria for RTI should be
the first paragraph of §300.309
(Determining the existence of a specific
learning disability).
Discussion: The Department believes
that the criteria in §300.309 are
presented in a logical order and are
consistent with the Act.
Changes: None.
Comment: One commenter stated that
a discrepancy between intellectual
ability and achievement can
differentiate between children with
disabilities and children with general
low achievement, and noted that the
problems with discrepancy models have
been in implementation, rather than in
the concept itself for identifying
children with SLD.
Discussion: There is a substantial
research base summarized in several
recent consensus reports (Donovan &
Cross, 2002; Bradley et al., 2003) and
meta-analyses (Hoskyn & Swanson,
2000; Steubing et al., 2002) that does not
support the hypothesis that a
discrepancy model by itself can
differentiate children with disabilities
and children with general low
achievement.
2Therefore, we disagree
with the comment because such a
differentiation is not possible with any
single criterion, including RTI.
Changes: None.
Comment: One commenter requested
retaining the language in current
§300.541, regarding the use of
discrepancy models.
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46651 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
3Bradley, R., Danielson, L., & Hallahan, D.P.
(Eds.). (2002). Identification of learning disabilities:
Research to practice. Mahwah, NJ: Erlbaum.
4Bijou, S.W. (1942). The psychometric pattern
approach as an aid to clinical assessment—a
review. American Journal of Mental Deficiency, 46,
354–362.
5Kavale, K. (2002). Discrepancy models in the
identification of learning disabilities. In R. Bradley,
L. Danielson, & D.P. Hallahan (Eds.). Identification
of learning disabilities: Research to practice (pp.
370–371). Mahwah, NJ: Erlbaum.
6Cronbach, L.J. (1957). The two disciplines of
scientific psychology. American Psychologist, 12,
671–684.
7Fletcher, J.M., Denton, C., & Francis, D.J. (2005).
Validity of alternative approaches for the
identification of LD: Operationalizing unexpected
underachievement. Journal of Learning Disabilities,
38, 545–552; Reschly, D.J., & Tilly, W.D. (1999).
Reform trends and system design alternatives. In
D.J. Reschly, W.D. Tilly, III, and J.P. Grimes (Eds.).
Special education in transition: Functional
assessment and noncategorical programming.
Longmont, CO: Sopris West.
Discussion: Section 614(b)(6) of the
Act prohibits States from requiring a
discrepancy approach to identify
children with SLD. Current §300.541
requires a discrepancy determination
and is, therefore, inconsistent with the
Act.
Changes: None.
Comment: One commenter requested
that the eligibility group be allowed to
consider the results from standardized,
individualized testing (not just
criterion-based testing or functional
assessments) in the eligibility
determination.
Discussion: Nothing in the Act or
these regulations would preclude the
eligibility group from considering
results from standardized tests when
making eligibility determinations.
Changes: None.
Comment: Many commenters
recommended adding the concept of
psychological processing disorders to
the eligibility criteria in §300.309.
Several commenters noted that the
criteria in §300.309 do not fully address
the definition of SLD in §300.8(c)(10),
which includes a processing disorder in
one or more of the basic psychological
processes. Several commenters stated
that, without requiring documentation
of a basic psychological processing
disorder, the number of children
identified with SLD will significantly
increase and the use of assessment tools
that have the potential to significantly
guide instruction will decrease. Several
commenters stated that failure to
consider individual differences in
cognitive processing skills reverses
more than 20 years of progress in
cognitive psychology and
developmental neuroscience. One
commenter stated that identifying a
basic psychological processing disorder
would help ensure that children
identified with an SLD are not simply
victims of poor instruction. One
commenter stated that the shift away
from requiring diagnostic assessments
in the area of cognition would make it
conceptually impossible to document
that a child has a disorder in one or
more of the basic psychological
processes, as required in the definition
of SLD in §300.8(c)(10).
Discussion: The Department does not
believe that an assessment of
psychological or cognitive processing
should be required in determining
whether a child has an SLD. There is no
current evidence that such assessments
are necessary or sufficient for
identifying SLD. Further, in many cases,
these assessments have not been used to
make appropriate intervention
decisions. However, §300.309(a)(2)(ii)
permits, but does not require, consideration of a pattern of strengths or
weaknesses, or both, relative to
intellectual development, if the
evaluation group considers that
information relevant to an identification
of SLD. In many cases, though,
assessments of cognitive processes
simply add to the testing burden and do
not contribute to interventions. As
summarized in the research consensus
from the OSEP Learning Disability
Summit (Bradley, Danielson, and
Hallahan, 2002), ‘‘Although processing
deficits have been linked to some SLD
(e.g., phonological processing and
reading), direct links with other
processes have not been established.
Currently, available methods for
measuring many processing difficulties
are inadequate. Therefore,
systematically measuring processing
difficulties and their link to treatment is
not yet feasible * * *. Processing
deficits should be eliminated from the
criteria for classification * * *.’’ (p.
797).
3Concerns about the absence of
evidence for relations of cognitive
discrepancy and SLD for identification
go back to Bijou (1942;
4see Kavale,
2002) 5. Cronbach (1957) 6characterized
the search for aptitude by treatment
interactions as a ‘‘hall of mirrors,’’ a
situation that has not improved over the
past few years as different approaches to
assessment of cognitive processes have
emerged (Fletcher et al., 2005; Reschly
& Tilly, 1999)
7.
Changes: None.
Comment: Several commenters
requested that the regulations include a
definition of ‘‘intellectual
development.’’
Discussion: We do not believe it is
necessary to define ‘‘intellectual
development’’ in these regulations.
Intellectual development is included in
§300.309(a)(2)(ii) as one of three standards of comparison, along with age
and State-approved grade-level
standards. The reference to ‘‘intellectual
development’’ in this provision means
that the child exhibits a pattern on
strengths and weaknesses in
performance relative to a standard of
intellectual development such as
commonly measured by IQ tests. Use of
the term is consistent with the
discretion provided in the Act in
allowing the continued use of
discrepancy models.
Changes: None.
Comment: Several commenters stated
that intra-individual differences,
particularly in cognitive functions, are
essential to identifying a child with an
SLD and should be included in the
eligibility criteria in §300.309.
Discussion: As indicated above, an
assessment of intra-individual
differences in cognitive functions does
not contribute to identification and
intervention decisions for children
suspected of having an SLD. The
regulations, however, allow for the
assessment of intra-individual
differences in achievement as part of an
identification model for SLD. The
regulations also allow for the
assessment of discrepancies in
intellectual development and
achievement.
Changes: None.
Comment: One commenter requested
guidance on how to determine whether
a child was provided with learning
experiences appropriate for the child’s
age, as required in §300.309(a)(1).
Discussion: While such guidance
might be helpful, we believe SEAs and
LEAs are in the best position to provide
guidance on age-appropriate learning
experiences.
Changes: None.
Comment: Several commenters
expressed support for the requirements
in §300.309(a)(1) and stated that the
first element of determining eligibility
for an SLD is a finding that the child
does not achieve commensurate with
the child’s age in one or more of the
eight areas when provided with learning
experiences appropriate to the child’s
age. However, several commenters
requested requiring that eligibility
determinations for an SLD include
evidence that the child’s achievement
level is not commensurate with the
child’s age and ability (emphasis
added). One commenter indicated that
knowledge of a child’s ability level is
important to ensure that a determination
is not based on deficits in areas not
related to cognitive processing (e.g., lack
of opportunity to learn, social or
emotional disturbances), and to prevent
misdiagnosis of children with mental
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8Burns, M., Appleton, J., Stehouwer, J. (2005).
Meta-analytic review of responsiveness-to-
intervention research: Examining field-based and
research-implemented models. Journal of
Psychoeducational Assessment, 23, 381–394.
retardation and SLD. One commenter
stated that §300.309(a)(1) would allow
any child who failed to achieve
commensurate with his or her age to be
considered to have an SLD, and this will
increase the number of children referred
for special education and related
services.
Several commenters expressed
concern that the eligibility
determination for SLD is based on
whether the child achieves
commensurate with his or her age
because current practice uses normative
data that are based on grade level. These
commenters recommended clarifying
that grade level or classmate
performance should also be considered.
Discussion: The first element in
identifying a child with SLD should be
a child’s mastery of grade-level content
appropriate for the child’s age or in
relation to State-approved grade-level
standards, not abilities. This emphasis
is consistent with the focus in the ESEA
on the attainment of State-approved
grade-level standards for all children.
State-approved standards are not
expressed as ‘‘norms’’ but represent
benchmarks for all children at each
grade level. The performance of
classmates and peers is not an
appropriate standard if most children in
a class or school are not meeting State-
approved standards. Furthermore, using
grade-based normative data to make this
determination is generally not
appropriate for children who have not
been permitted to progress to the next
academic grade or are otherwise older
than their peers. Such a practice may
give the illusion of average rates of
learning when the child’s rate of
learning has been below average,
resulting in retention. A focus on
expectations relative to abilities or
classmates simply dilutes expectations
for children with disabilities.
We will modify §300.309(a)(1) to
clarify that, as a first element in
determining whether a child has an
SLD, the group must determine that the
child does not demonstrate achievement
that is adequate for the child’s age or the
attainment of State-approved grade-level
standards, when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards in one or more of
the areas listed in §300.309(a)(1). The
reference to ‘‘State-approved grade-level
standards’’ is intended to emphasize the
alignment of the Act and the ESEA, as
well as to cover children who have been
retained in a grade, since age level
expectations may not be appropriate for
these children. The reference to
‘‘instruction’’ will be added to
emphasize that children may not be identified as having SLD if there is no
documentation of appropriate
instruction, consistent with the Act and
the ESEA. Consistent with this change,
we will add a reference to ‘‘State-
approved grade-level standards’’ in
§§300.309(a)(2)(i) and (ii). We will also
combine proposed §300.311(a)(5) and
(6) into §300.311(a)(5) to ensure
consistency with the requirements in
§300.309(a).
Changes: We have modified
§300.309(a)(1) and §§300.309(a)(2)(i)
and (ii), and combined proposed
§300.311(a)(5) and (6) into
§300.311(a)(5) to ensure consistency
with the requirements in §300.309(a).
Comment: Several commenters
expressed support for including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD. However, several
commenters recommended removing
reading fluency from the list in
§300.309(a)(1), stating that a weakness
in reading fluency, in isolation, does not
indicate a reading disability.
Discussion: No assessment, in
isolation, is sufficient to indicate that a
child has an SLD. Including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD makes it more likely
that a child who is gifted and has an
SLD would be identified. Fluency
assessments are very brief and highly
relevant to instruction. We, therefore, do
not believe that reading fluency should
be removed from §300.309(a)(1).
Changes: None.
Comment: Many commenters stated
that eligibility criteria based on RTI
models will result in dramatic increases
in referrals, special education
placements, and legal problems. One
commenter stated that the eligibility
criteria in §300.309 do not provide
sufficient checks and balances to ensure
that only those children who truly
require special education are identified
as having SLD. A few commenters
stated that using an RTI model would
result in incorrectly identifying
underachieving children as having SLD.
Discussion: We do not believe that
eligibility criteria based on RTI models
will result in dramatic increases in
referrals and special education
placements. Well-implemented RTI
models and models that identify
problems early and promote
intervention have reduced, not
increased, the number of children
identified as eligible for special
education services and have helped
raise achievement levels for all children in a school. 8We believe that the
regulations do provide sufficient checks
to ensure that only children who need
special education and related services
are identified as having SLD.
Changes: None.
Comment: Several commenters stated
that the language in §300.309(a)(2)(ii) is
very confusing and should be rewritten.
Many commenters stated that the word
‘‘or’’ instead of ‘‘and’’ should be used
between §300.309(a)(2)(i) and
§300.309(a)(2)(ii), because otherwise a
child could be identified with an SLD
because he or she failed to meet passing
criteria on a State assessment, and
failure to make sufficient progress on a
State-approved assessment alone is not
grounds for a determination that a child
has an SLD. Several commenters stated
that the phrase, ‘‘pattern of strengths
and weaknesses in performance,
achievement, or both’’ is a typographical
error because it is repeated twice.
Discussion: We do not agree that
‘‘and’’ should be used instead of ‘‘or’’
between §300.309(a)(2)(i) and (ii),
because this would subject the child to
two different identification models. We
agree that failing a State assessment
alone is not sufficient to determine
whether a child has an SLD. However,
failing a State assessment may be one
factor in an evaluation considered by
the eligibility group. As required in
§300.304(b)(1), consistent with section
614(b)(2)(A) of the Act, the evaluation
must use a variety of assessment tools
and strategies to gather relevant
information about the child. Further,
§300.304(b)(2), consistent with section
614(b)(2)(B) of the Act, is clear that
determining eligibility for special
education and related services cannot be
based on any single measure or
assessment as the sole criterion for
determining whether a child is a child
with a disability.
We agree that §300.309(a)(2)(ii) could
be stated more clearly and will rewrite
it to state that the eligibility group can
determine that a child has an SLD if the
child meets the criteria in
§300.309(a)(1) and exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age and State-approved
grade-level standards, or intellectual
development, that is determined by the
group to be relevant to the identification
of an SLD.
Changes: We have changed
§300.309(a)(2)(ii) for clarity.
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Comment: Several commenters
requested a definition of ‘‘State-
approved results.’’ One commenter
stated that the language was extremely
confusing and that ‘‘State-approved
results’’ could be interpreted to mean
approved results that are equivalent to
proficiency on State assessments under
the ESEA, and this could lead to
eligibility determinations for a very
large group of older children with poor
reading performance for whom it would
be nearly impossible to make sufficient
progress to become proficient readers.
This commenter recommended
changing the language to refer to a
child’s failure to achieve a rate of
learning to make sufficient progress
based on ‘‘State-defined criteria.’’
Another commenter recommended
substituting ‘‘State achievement
standards’’ for ‘‘State approved results.’’
Discussion: The intention is to refer to
State assessments approved under the
ESEA. We have changed ‘‘State-
approved results’’ to ‘‘State-approved
grade-level standards.’’ We believe this
change adequately addresses the
commenters concerns.
Changes: We have removed ‘‘State-
approved results’’ and inserted in its
place ‘‘State-approved grade-level
standards’’ in §300.309 and §300.311.
Comment: One commenter stated that
including ‘‘State-approved results’’ in
§300.309(a)(2)(i) means that there is no
Federal definition of SLD.
Discussion: States must develop
criteria for determining whether a child
has an SLD that are consistent with the
Federal requirements in §§300.307
through 300.311 and the definition of
SLD in §300.8(c)(10).
Changes: None.
Comment: A few commenters stated
that using the criteria in §300.309(a)(2),
a child could meet State standards and
still be identified as a child with an
SLD.
Discussion: We agree with the
commenters. Accelerated growth
toward, and mastery of, State-approved
grade-level standards are goals of
special education. Furthermore, as
stated in §300.101, the fact that a child
is advancing from grade to grade does
not make a child with a disability
ineligible for special education and
related services. However, consistent
with §300.8, the group making the
eligibility determination must conclude
both that the child has an SLD and, that,
because of that disability, the child
needs special education and related
services.
Changes: None.
Comment: Many commenters
requested more detail and specific
guidelines on RTI models, such as information on who initiates the RTI
process and who should be involved in
the process; how one ensures there is a
strong leader for the RTI process; the
skills needed to implement RTI models;
the role of the general education
teacher; how to determine that a child
is not responsive to instruction,
particularly a child with cultural and
linguistic differences; the number of
different types of interventions to be
tried; the responsibility for monitoring
progress; the measurement of treatment
integrity; and ways to document
progress. One commenter stated that it
is imperative that the regulations allow
the flexibility necessary to
accommodate the array of RTI models
already in use.
Several commenters requested that
the Department define and set a
standard for responsiveness that calls
for demonstrated progress and
improvement in the rate of learning, to
indicate that a child can function in the
classroom. Several commenters stated
that there would be a dramatic increase
in the number of children identified
with an SLD without a clearly defined
system in place.
Discussion: There are many RTI
models and the regulations are written
to accommodate the many different
models that are currently in use. The
Department does not mandate or
endorse any particular model. Rather,
the regulations provide States with the
flexibility to adopt criteria that best
meet local needs. Language that is more
specific or prescriptive would not be
appropriate. For example, while we
recognize that rate of learning is often a
key variable in assessing a child’s
response to intervention, it would not
be appropriate for the regulations to set
a standard for responsiveness or
improvement in the rate of learning. As
we discussed earlier in this section, we
do not believe these regulations will
result in significant increases in the
number of children identified with SLD.
Changes: None.
Comment: One commenter stated that,
without additional clarity, eligibility
criteria will vary substantially among
States and that States will have
definitions that are suited to their
individual preferences, rather than a
universal sense of what constitutes
eligibility under SLD based on the
research and national standards of
professional practice.
Discussion: State eligibility criteria
must meet the requirements in
§§300.307 through 300.111 and LEAs
must use these State-adopted criteria.
We believe that, although these
provisions allow States some flexibility
in how children with SLD are identified, the requirements in these
provisions will ensure that SLD criteria
do not vary substantially across States.
Changes: None.
Comment: One commenter stated that,
without more clarity in the
requirements for RTI models, there
would be an increase in the number of
eligibility disputes between parents and
school districts.
Discussion: We do not believe more
clarity in the requirements for RTI
models is necessary. States can avoid
disputes over eligibility determinations
by developing clear criteria, consistent
with the regulatory parameters, and
providing staff with the necessary
guidance and support to implement the
criteria.
Changes: None.
Comment: One commenter urged the
Department to encourage States to
convene a group of education,
disability, and parent stakeholders to
discuss and design a model approach to
early identification of children with
SLD.
Discussion: The Department agrees
that it is important to identify children
with SLD early and to provide the
necessary instruction and supports to
avoid referrals to special education. The
extent to which States involve other
interested parties (e.g., disability groups,
parent groups) in the design or
development of such a system is a
decision that should be made by each
State.
Changes: None.
Comment: A few commenters stated
that professional development
requirements to implement RTI models
should be incorporated into the
regulations so RTI models are not
haphazardly implemented. One
commenter stated that before RTI can be
used systematically as part of the
special education identification process,
school districts must have
administrative support at all levels,
ongoing professional development for
all staff, and coordination with
institutions of higher education. Several
commenters recommended encouraging
States to develop efficient, collaborative
evaluation systems. One commenter
recommended requiring regular
education teachers to address the needs
of children with different learning
styles, identify early and appropriate
interventions for children with
behavioral challenges, and understand
and use data and assessments to
improve classroom practices and
learning.
Discussion: We agree that
administrative support, professional
development, and coordination with
teacher training programs would be
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46654 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
helpful in the effective implementation
of RTI models. We also agree that
efficient and collaborative evaluation
systems should be developed, and that
all teachers, including regular education
teachers, should be trained to address
the needs of children with different
learning styles, identify early and
appropriate interventions for children
with behavioral challenges, and
understand and use data and
assessments to improve classroom
practices and learning. However,
professional development requirements
are a State responsibility, consistent
with §300.156 and section 612(a)(14) of
the Act, and it would be inappropriate
for the Department to include specific
professional development requirements
in these regulations.
Changes: None.
Comment: One commenter stated that
if a State prohibits the use of a
discrepancy model, there would not be
sufficient time or funds necessary to
effectively train staff. Several
commenters asked that there be a
transition period so that personnel can
be adequately trained in RTI or other
forms of assessment and observation.
Discussion: It is not necessary for
these regulations to require a transition
period for implementing RTI models,
particularly because there are many
schools and districts currently
implementing RTI models. Under the
requirements in section 614(b)(6) of the
Act, which took effect July 1, 2005,
States should have developed
mechanisms to permit LEAs to use RTI
models. States may need to make
adjustments based on these final
regulations. Nothing in these regulations
requires an LEA to drop current
practices in favor of a new model with
no transition. Obviously, a plan would
need to be developed when changing to
an RTI model, including strategies for
implementation and professional
development.
Changes: None.
Comment: Many commenters stated
that the use of RTI models would be
costly, requiring massive staff training
and resources. Many commenters
recommended ways in which the
Department could support States in
improving identification and
interventions for children with SLD.
Commenters’ recommendations
included the following: long-term,
Statewide pilot studies on assessments
and interventions for children with
SLD; methods to increase the use of RTI;
guidance on establishing appropriate
timelines for instructional interventions;
and information on new scientifically
based approaches to identifying
children with SLD. Discussion: The Department
recognizes the need for technical
assistance and training to implement
RTI models and is directing technical
assistance funds under Part D of the Act,
administered by the Department’s Office
of Special Education Programs (OSEP),
toward this effort. OSEP plans to
develop and disseminate an RTI
resource kit and devote additional
resources to technical assistance
providers to assist States in
implementing RTI models. OSEP will
also continue to identify and develop
model RTI implementation sites and
evaluate SLD identification models in
math and reading. In addition, the
Comprehensive Center on Instruction,
jointly funded by OSEP and the Office
of Elementary and Secondary Education
(OESE), will provide technical
assistance to States on RTI
implementation.
Changes: None.
Comment: Many commenters
supported examining the pattern of
strengths and weaknesses in
determining whether a child is
considered to have an SLD. A number
of commenters stated that it is important
that groups use a process to determine
whether a child responds to scientific,
research-based interventions, as well as
consider relevant, empirically validated
patterns of strengths and weaknesses in
achievement, performance, or both,
relative to intellectual development.
One commenter stated that ‘‘pattern of
strengths and weaknesses in
performance’’ in §300.309(a)(2)(ii) is
insufficiently defined and without a
clearer definition of ‘‘pattern,’’ schools
will continue the wait-to-fail model.
One commenter recommended
clarifying the meaning of ‘‘weakness,’’
stating that weakness does not mean
failure, and that there may be specific
actions that could address weaknesses
in performance that would result in
failure if left alone.
Discussion: Patterns of strengths and
weaknesses commonly refer to the
examination of profiles across different
tests used historically in the
identification of children with SLD. We
believe that the meaning of ‘‘pattern of
strengths and weaknesses’’ is clear and
does not need to be clarified in these
regulations.
Changes: None.
Comment: Some commenters stated
that using a pattern of strengths and
weaknesses in a child’s performance to
identify a child with an SLD could be
misinterpreted to identify children,
other than children with disabilities,
who are underperforming due to
cultural factors, environmental or
economic disadvantage, or low effort. Discussion: Section 300.309(a)(3) is
clear that children should not be
identified with SLD if the
underachievement is primarily the
result of a visual, hearing, or motor
disability; mental retardation; emotional
disturbance; cultural factors; or
environmental or economic
disadvantage. The eligibility group
makes the determination after the
evaluation of the child is completed.
Therefore, we believe that there is
minimal risk that a child who is
underachieving due to these factors will
be identified as having an SLD.
Changes: None.
Comment: Some commenters
recommended using ‘‘cognitive ability’’
in place of ‘‘intellectual development’’
because ‘‘intellectual development’’
could be narrowly interpreted to mean
performance on an IQ test. One
commenter stated that the term
‘‘cognitive ability’’ is preferable because
it reflects the fundamental concepts
underlying SLD and can be assessed
with a variety of appropriate assessment
tools. A few commenters stated that the
reference to identifying a child’s pattern
of strengths and weaknesses that are not
related to intellectual development
should be removed because a cognitive
assessment is critical and should always
be used to make a determination under
the category of SLD.
Discussion: We believe the term
‘‘intellectual development’’ is the
appropriate reference in this provision.
Section 300.309(a)(2)(ii) permits the
assessment of patterns of strengths and
weakness in performance, including
performance on assessments of
cognitive ability. As stated previously,
‘‘intellectual development’’ is included
as one of three methods of comparison,
along with age and State-approved
grade-level standards. The term
‘‘cognitive’’ is not the appropriate
reference to performance because
cognitive variation is not a reliable
marker of SLD, and is not related to
intervention.
Changes: None.
Comment: One commenter reviewed
the list of factors in §300.309(a)(3) that
must be ruled out as primary reasons for
a child’s performance and asked
whether children with other health
impairments (OHI), traumatic brain
injury (TBI), or speech impairments
would overlap with the SLD definition.
Several commenters noted that many
children with hearing, visual, or motor
disabilities; mental retardation; or
emotional disturbances (ED) also have
concomitant learning disabilities that go
unidentified, and that these children
end up with lower academic and
functional achievement levels than they
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should because an important
contributing factor to their learning
problems has not been addressed.
Several commenters recommended
adding language to the regulations
stating that a child with a disability
other than an SLD may also be
identified with an SLD.
Discussion: Children with one of the
disabilities in §300.8 should be
identified as a child with a disability
using the category that is most
appropriate for the child. Some children
may be identified under other disability
categories, such as OHI, TBI, ED, or
speech impairment, and may also have
low achievement and even meet SLD
criteria. Services must meet the child’s
needs and cannot be determined by the
child’s eligibility category. We believe it
is unnecessary to add language
regarding SLD as a concomitant
disability.
Changes: None.
Comment: One commenter asked
what kind of assessment identifies
culture as a primary cause of academic
performance deficits and recommended
removing the requirement in
§300.309(a)(3)(iv) unless there are
objective methods to determine whether
a child’s low performance is a result of
cultural factors.
Discussion: The identification of the
effect of cultural factors on a child’s
performance is a judgment made by the
eligibility group based on multiple
sources of information, including the
home environment, language
proficiency, and other contextual factors
gathered in the evaluation. The
Department believes that the
identification of children with SLD will
improve with models based on
systematic assessments of a child’s
response to appropriate instruction, the
results of which are one part of the
information reviewed during the
evaluation process to determine
eligibility for special education and
related services. States and public
agencies must follow the evaluation
procedures in §§300.304 and 300.305
and section 614(b) of the Act, including
using assessments and other evaluation
materials that do not discriminate on a
racial or cultural basis, consistent with
§300.304(c)(1)(i) and section
614(b)(3)(A)(i) of the Act.
Changes: None.
Comment: Many commenters
recommended that limited English
proficiency be among the factors that
the eligibility group must rule out as a
primary factor affecting a child’s
performance.
Discussion: Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, is clear that a child must not be identified as a child with a disability
if the determinant factor for that
determination is limited English
proficiency. However, we agree that it is
important to re-emphasize this
requirement in §300.309 and will add
this to the list of factors that the
eligibility group must rule out as a
primary factor affecting a child’s
performance.
Changes: We have added a new
paragraph (vi) to §300.309(a)(3) to
include ‘‘limited English proficiency’’ in
the list of factors that must be ruled out
as a primary factor affecting a child’s
performance before determining that a
child is eligible for special education
services under the category of SLD.
Comment: Numerous commenters
supported the requirement in
§300.309(b)(1) for data demonstrating
that a child suspected of having an SLD
has been provided with high-quality,
research-based instruction in regular
education settings delivered by
qualified personnel. Several
commenters stated that this requirement
should apply to all children and asked
why this requirement is confined to
only children suspected of having SLD.
One commenter stated that if schools
would use proven best practices, there
would be fewer children in need of
special education in the later grades.
However, one commenter stated that it
is incorrect to assume that any child
who is not responding to interventions
must have an SLD when there are a
myriad of reasons why children may not
be responding to instruction. One
commenter recommended adding ‘‘to
the extent practicable’’ to acknowledge
that scientific research-based
interventions are not available in many
areas, particularly in mathematics. One
commenter recommended decreasing
the emphasis on research-based
instruction.
Discussion: Sections 300.306(b)(1)(i)
and (ii), consistent with section
614(b)(5)(A) and (B) of the Act,
specifically state that children should
not be identified for special education if
the achievement problem is due to lack
of appropriate instruction in reading or
mathematics. This issue is especially
relevant to SLD because lack of
appropriate instruction in these areas
most commonly leads to identifying a
child as having an SLD. All children
should be provided with appropriate
instruction provided by qualified
personnel. This is an important tenet of
the Act and the ESEA. Both the Act and
the ESEA focus on doing what works as
evidenced by scientific research and
providing children with appropriate
instruction delivered by qualified
teachers. Changes: None.
Comment: We received a number of
comments concerning the requirement
for high-quality, research-based
instruction provided by qualified
personnel. One commenter stated that it
would be difficult for rural school
districts to meet this requirement
because of staffing requirements in the
regular education setting. Several
commenters stated that the requirement
for high-quality, research-based
instruction exceeds statutory authority
and should be removed, because it
provides a basis for challenging any
determination under the category of
SLD. One commenter asked for
clarification regarding the legal basis for
providing high-quality, research-based
instruction if the child is not
determined eligible for special
education. Another commenter stated
that attorneys will read §300.309(b) as
providing a legal entitlement to ESEA,
research-based instruction and data-
based documentation for every child
considered for eligibility under the
category of SLD, and that when this
standard is not met, will bring the
matter to a due process hearing and
request compensatory education.
Numerous commenters requested a
definition of high-quality, research-
based instruction. One commenter
asked who validates that the research
meets the highest quality. Another
commenter asked that the regulations
specify how much research a program
must undergo before it is deemed to be
research-based. One commenter stated
that the Department must address how
States determine whether a child has
been provided with a high-quality,
research-based instructional program;
whether appropriate classroom
interventions were delivered; and
whether an intervention has been
successful. One commenter stated that
the absence of additional clarification
would result in great disparity in States’
policies and lead to inappropriate
interventions and procedures. One
commenter recommended that there be
evidence that the instruction is effective
for the child’s age and cultural
background.
A few commenters recommended that
children who are not progressing
because they have not received
research-based instruction by a qualified
teacher should immediately receive
intensive, high-quality, research-based
instruction by qualified personnel. One
commenter expressed concern that
§300.309(b) restricts referrals to only
those children who have received high-
quality, research-based instruction from
qualified teachers. One commenter
stated that a child’s eligibility to receive
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special education services under the
category of SLD appears to be
contingent on the LEA’s commitment to
providing effective regular education
services by qualified staff, and, as such,
a child with an SLD is held hostage by
a system that is not working. One
commenter asked whether the eligibility
group can make a determination that a
child has an SLD in the absence of a
child’s response to high-quality
research-based instruction.
Several commenters stated that the
lack of research-based instruction by a
qualified teacher should not limit a
child’s eligibility for services. Another
commenter recommended clarifying
that a child should not be found
ineligible under the category of SLD
because the child either did not respond
to a scientific, research-based
intervention during a truncated
evaluation, or because the child was not
provided an opportunity to respond to
such an intervention.
Discussion: Watering down a focus on
appropriate instruction for any children,
including children with disabilities or
children living in rural areas would be
counter to both the Act and the ESEA.
However, we agree that the requirement
for high quality, research-based
instruction exceeds statutory authority.
The Act indicates that children should
not be eligible for special education if
the low achievement is due to lack of
appropriate instruction in reading or
math. Therefore, we will change the
regulations to require that the eligibility
group consider evidence that the child
was provided appropriate instruction
and clarify that this means evidence that
lack of appropriate instruction was the
source of underachievement.
The eligibility group should not
identify a child as eligible for special
education services if the child’s low
achievement is the result of lack of
appropriate instruction in reading or
math. Eligibility is contingent on the
ability of the LEA to provide
appropriate instruction. Determining the
basis of low achievement when a child
has been given appropriate instruction
is the responsibility of the eligibility
group.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. Schools should
have current, data-based evidence to
indicate whether a child responds to
appropriate instruction before
determining that a child is a child with
a disability. Children should not be
identified as having a disability before
concluding that their performance
deficits are not the result of a lack of
appropriate instruction. Parents of children with disabilities have due
process rights that allow them to file a
complaint on any matter that relates to
the identification, evaluation, and
educational placement of their child
with a disability, and the provision of
FAPE to their child.
Changes: We have revised the
introductory material in §300.309(b) to
emphasize that the purpose of the
review is to rule out a lack of
appropriate instruction in reading or
math as the reason for a child’s
underachievement. We have also
revised §300.309(b)(1) to refer to
appropriate instruction rather than high-
quality, research-based instruction, and
removed the cross reference to the
ESEA.
Comment: One commenter stated that
many reading programs claim to be
research-based, but lack credible
evidence of the program’s effectiveness.
Discussion: Programs that claim to be
research-based, but which are not based
on sound scientific research, should not
be considered research-based
instruction by a State or LEA.
Changes: None.
Comment: One commenter asked
what criteria should be used to
determine that the child was provided
with appropriate high quality, research-
based instruction, especially when the
child has been home schooled or
attends a private school. One
commenter asked about children
referred for evaluation from charter
schools and expressed concern that
these children would not be eligible
under the category of SLD because they
did not have instruction delivered by
qualified personnel.
Discussion: As part of the evaluation,
the eligibility group must consider
whether the child received appropriate
instruction from qualified personnel.
For children who attend private schools
or charter schools or who are home-
schooled, it may be necessary to obtain
information from parents and teachers
about the curricula used and the child’s
progress with various teaching
strategies. The eligibility group also may
need to use information from current
classroom-based assessments or
classroom observations. On the basis of
the available information, the eligibility
group may identify other information
that is needed to determine whether the
child’s low achievement is due to a
disability, and not primarily the result
of lack of appropriate instruction. The
requirements for special education
eligibility or the expectations for the
quality of teachers or instructional
programs are not affected, and do not
differ, by the location or venue of a
child’s instruction. Changes: None.
Comment: Many commenters
requested a definition of ‘‘qualified
personnel.’’ One commenter stated that
teachers should be trained to deliver the
program of instruction and simply
saying they should be highly qualified
is not sufficient. One commenter
recommended removing the phrase
‘‘qualified personnel’’ in §300.309(b)(1),
because it is likely to be interpreted to
mean that instruction must be delivered
by highly qualified teachers, as defined
in the ESEA.
Discussion: Section 300.156 and
section 614(a)(14) of the Act are clear
that each State is responsible for
establishing and maintaining personnel
qualifications to ensure that personnel
are appropriately and adequately
prepared and trained, including that
those personnel have the content
knowledge and skills to serve children
with disabilities. Consistent with
§300.18 and section 602(10) of the Act,
a public school teacher, including a
special education teacher, who teaches
core academic subjects must meet the
highly qualified teacher standards under
the Act. The term that is used in
§300.309(b)(1), ‘‘qualified personnel,’’
does not, and should not be interpreted
to, require that private school teachers
be ‘‘highly qualified’’ to deliver the
instruction discussed in §300.309(b)(1).
Changes: None.
Comment: One commenter asked
whether the regulations require an LEA
to provide high-quality, research-based
instruction in the regular education
setting prior to, or as part of, the referral
process before the group can determine
whether a child has an SLD. One
commenter recommended that research-
based interventions occur prior to a
referral to special education. Several
commenters stated that an evaluation to
assess all areas of suspected disability
should follow an assessment of a child’s
response to instruction.
Discussion: What is important is that
the group making the eligibility decision
has the information that it needs to rule
out that the child’s underachievement is
a result of a lack of appropriate
instruction. That could include
evidence that the child was provided
appropriate instruction either before, or
as a part of, the referral process.
Evidence of appropriate instruction,
including instruction delivered in an
RTI model, is not a substitute for a
complete assessment of all of the areas
of suspected need. As discussed earlier
in this section, we have revised
§300.309(b) to make this clear.
Changes: As discussed previously, we
have revised §300.309(b).
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Comment: One commenter
recommended that data be maintained
on the number of children identified
with SLD.
Discussion: Data are maintained on
the number of children identified with
SLD. Section 618 of the Act requires
States to report annually to the
Department the number and percentage
of children with disabilities by
disability category, in addition to race,
ethnicity, limited English proficiency
status, and gender.
Changes: None.
Comment: Many commenters
recommended reinforcing the role of
parents in determining whether a child
has an SLD by adding language to
§300.309(b) stating that the child’s
parents and the group of qualified
professionals must consider whether the
child is a child with a disability.
Discussion: Section 300.306(a)(1),
consistent with section 614(b)(4)(A) of
the Act, is clear that the parent of the
child is included in eligibility
determinations. Section 300.309(a)
cross-references the group in §300.306,
which includes the parent. We believe
this adequately addresses the role of the
parent and that no changes are
necessary.
Changes: None.
Comment: One commenter requested
a definition of ‘‘data-based
documentation.’’
Discussion: Data-based
documentation refers to an objective
and systematic process of documenting
a child’s progress. This type of
assessment is a feature of strong
instruction in reading and math and is
consistent with §300.306(b)(1)(i) and
(ii) and section 614(b)(5)(A) and (B) of
the Act, that children cannot be
identified for special education if an
achievement problem is due to lack of
appropriate instruction in reading or
math.
Changes: None.
Comment: Numerous commenters
supported requiring data-based
documentation of repeated assessments
of achievement at reasonable intervals
to be provided to parents during the
time the child is receiving instruction.
One commenter emphasized the
importance of documenting that the
interventions used are data based and
implemented with fidelity. One
commenter stated that data-based
documentation should be provided to
all parents of children with disabilities,
not just children suspected of having
SLD. However, several commenters
stated that requiring data-based
documentation of repeated assessments
is an additional bureaucratic
requirement that is overly prescriptive and costly, and will require additional
paperwork.
Discussion: We believe that one of the
most important aspects of good teaching
is the ability to determine when a child
is learning and then to tailor instruction
to meet the child’s individual needs.
Effective teachers use data to make
informed decisions about the
effectiveness of a particular
instructional strategy or program. A
critical hallmark of appropriate
instruction is that data documenting a
child’s progress are systematically
collected and analyzed and that parents
are kept informed of the child’s
progress. Assessments of a child’s
progress are not bureaucratic, but an
essential component of good
instruction.
Changes: None.
Comment: Several commenters
requested definitions for ‘‘repeated
assessments’’ and ‘‘reasonable
intervals.’’
Discussion: Instructional models vary
in terms of the frequency and number of
repeated assessments that are required
to determine a child’s progress. It would
be inappropriate for the Department to
stipulate requirements in Federal
regulations that would make it difficult
for districts and States to implement
instructional models they determine
appropriate to their specific
jurisdictions.
Changes: None.
Comment: One commenter
recommended removing the
requirement for data-based
documentation of repeated assessments
of achievement at reasonable intervals
because it would make it impossible to
determine eligibility if a child is new to
a school district and district personnel
do not have a child’s records with such
information.
Discussion: We do not believe
removing the requirement is the
appropriate solution to the commenter’s
problem. States will need to adopt
criteria for determining how to provide
such data for children new to a district.
Children should not be identified as
having SLD if there is no evidence of
appropriate instruction.
Changes: None.
Comment: One commenter expressed
concern that §300.309(b)(2), requiring
parents to be informed of their child’s
repeated failure to perform well on
assessments, could be interpreted to
refer to the assessments under the ESEA
and that this would mean that a child
must perform poorly over a period of
several school years to be considered for
eligibility under the category of SLD.
Discussion: While the results of a
child’s performance on assessments under the ESEA may be included as
data documenting a child’s progress,
relying exclusively on data from
Statewide assessments under the ESEA
would likely not meet the requirement
for repeated assessments at ‘‘reasonable
intervals,’’ as required by these
regulations. It is possible that a State
could develop other assessments tied to
the State approved test that would meet
these requirements.
Changes: None.
Comment: Numerous commenters
asked how long an intervention should
continue before determining a child has
not made adequate progress and a
referral for an evaluation to determine
eligibility for special education is made.
Several commenters recommended that
if a child is not making progress within
45 days, an evaluation should take
place. Other commenters recommended
a time limit of 90 days. One commenter
recommended the regulations include a
range of active intervention days, not
just a waiting period, within which the
IEP Team expects to notice a change,
and recommended between 45–75
school days. One commenter suggested
6–10 weeks as an appropriate period of
time.
A few commenters recommended
requiring States to establish reasonable
time limits for decision making. Several
commenters recommended requiring the
IEP Team and the parents to agree on an
appropriate period of time.
Several commenters stated that unless
a timeline is specified in the
regulations, there would be different
standards occurring throughout the
country. A few commenters expressed
concern that if time limits were not
clarified, school districts and parents
would interpret the timelines
differently, which would result in
contentious situations and litigation.
One commenter stated that a parent
could sue for compensatory services if,
after requesting an evaluation, the LEA
requires an assessment of how the child
responds to high quality research-based
instruction.
Several commenters stated that the
lack of a specific timeline means that an
evaluation could be indefinitely delayed
and children denied services. Several
commenters recommended adding
language to the regulations to ensure
that RTI models could not be used to
delay an evaluation of a child suspected
of having a disability, access to special
education and related services, or
protections under the Act.
In addition to requesting a definition
of an ‘‘appropriate period of time,’’ a
few commenters requested a definition
of ‘‘adequate progress’’ and
recommended adding language to
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46658 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
require States to define ‘‘adequate
progress.’’ One commenter stated that a
child’s rate of learning needs to be
examined carefully. One commenter
offered a definition of a
‘‘developmentally appropriate rate’’ as
the time or the number of repetitions
required to have at least 85 percent of
children at the same age or grade level
acquire and retain the particular skill or
academic levels, as established by
research or by experience with the
delivery of that curriculum or program.
Discussion: Instructional models vary
in terms of the length of time required
for the intervention to have the intended
effect on a child’s progress. It would not
be appropriate for the Department to
establish timelines or the other
requirements proposed by the
commenters in Federal regulations,
because doing so would make it difficult
for LEAs to implement models specific
to their local school districts. These
decisions are best left to State and local
professionals who have knowledge of
the instructional methods used in their
schools.
The Department believes that good
instruction depends on repeated
assessments of a child’s progress. This
allows teachers to make informed
decisions about the need to change their
instruction to meet the needs of the
child, and also provides parents with
information about their child’s progress
so that they can support instruction and
learning at home. Parents should be
informed if there are concerns about
their child’s progress and should be
aware of the strategies being used to
improve and monitor their child’s
progress.
We understand the commenters’
requests for more specific details on
timelines and measures of adequate
progress. However, as noted above,
these decisions are best left to
professionals who have knowledge
about the instructional models and
strategies used in their States and
districts.
We also understand the commenters’
concerns that the requirements in
§300.309(b) may result in untimely
evaluations or services and that parents
must be fully informed about the
school’s concerns about their child’s
progress and interventions provided by
the school. Therefore, we will combine
proposed §300.309(c) and (d), and
revise the new §300.309(c) to ensure
that the public agency promptly
requests parental consent to evaluate a
child suspected of having an SLD who
has not made adequate progress when
provided with appropriate instruction,
which could include instruction in an
RTI model, and whenever a child is referred for an evaluation. We will also
add a new §300.311(a)(7)(ii) to ensure
that the parents of a child suspected of
having an SLD who has participated in
a process that evaluates the child’s
response to scientific, research-based
intervention, are notified about the
State’s policies regarding collection of
child performance data and the general
education services that will be
provided; strategies to increase their
child’s rate of learning; and their right
to request an evaluation at any time. If
parents request an evaluation and
provide consent, the timeframe for
evaluation begins and the information
required in §300.309(b) must be
collected (if it does not already exist)
before the end of that period.
Changes: We have combined
proposed §300.309(c) and (d), and
revised the new paragraph (c) in
§300.309 to require the public agency to
promptly request parental consent to
evaluate a child suspected of having an
SLD who has not made adequate
progress when provided appropriate
instruction, and whenever a child is
referred for an evaluation. We also have
added a new §300.311(a)(7)(ii) to
require that the eligibility report include
evidence that when a child has
participated in an RTI process, the
parents were informed of State policies
regarding child performance data that
would be collected and the general
education services that would be
provided; strategies to support the
child’s rate of learning; and a parent’s
right to request an evaluation at any
time.
Comment: Many commenters
recommended clarifying when parental
consent for evaluation should be
obtained and when the 60-day timeline
to complete an evaluation begins.
Several commenters recommended
ensuring that the 60-day timeline for
evaluation applies regardless of the
evaluation model used. One commenter
asked how scientific research-based
interventions could be completed
within a 60-day evaluation timeline.
One commenter stated that 60 days may
not be enough time to appropriately
determine whether a child responds to
instruction, particularly for children
who have not had exposure to such
interventions (e.g., children entering the
public school system for the first time).
One commenter asked if the intent of
the regulations is to allow a
determination that a child has an SLD
to take place outside the timeline for an
initial evaluation, and stated that
without clarification of the intersection
between an RTI process (that may, by
definition, require additional time
beyond that which is permitted for an evaluation) and the required period of
time for an initial assessment, the
regulations would cause confusion and
result in improper evaluations and
eligibility determinations.
Several commenters recommended
that the regulations address the need for
an extension of the timeline and allow
States to set an alternative timeline
without a written agreement. Several
commenters requested adding a
provision for an extended timeline, with
parental consent, in exceptional
circumstances. Several commenters
stated that the language regarding an
extension of timelines is confusing.
Discussion: Section 300.309(c), as
revised, clarifies that if a child has not
made adequate progress after an
appropriate period of time, a referral for
an evaluation must be made. As
required in §300.301(c), the initial
evaluation must be conducted within 60
days of receiving consent for an
evaluation (or if the State establishes a
timeframe within which the evaluation
must be completed, within that
timeframe). Models based on RTI
typically evaluate the child’s response
to instruction prior to the onset of the
60-day period, and generally do not
require as long a time to complete an
evaluation because of the amount of
data already collected on the child’s
achievement, including observation
data. RTI models provide the data the
group must consider on the child’s
progress when provided with
appropriate instruction by qualified
professionals as part of the evaluation.
Section 300.309(b)(1) requires that the
eligibility group consider data on the
child’s progress when provided with
appropriate instruction by qualified
professionals as part of this evaluation.
These data, along with other relevant
information, will assist the eligibility
group in determining whether the
child’s low achievement is attributable
to a lack of appropriate instruction. As
required in §300.306(b)(1)(i) and (ii),
consistent with section 614(b)(5)(A) and
(B) of the Act, a child cannot be
identified as a child with a disability if
the determinant factor for that
determination is lack of appropriate
instruction in reading or math.
Based on their review of the existing
data, and input from the child’s parents,
the eligibility group must decide, on a
case-by-case basis, depending on the
needs of the child and the information
available regarding the child, what
additional data, if any, are needed to
determine whether the child is a child
with a disability, and the educational
needs of the child. If the eligibility
group determines that additional data
are needed and that these data cannot be
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obtained within the 60-day timeframe
(or the timeframe established by the
State), new §300.309(c) (proposed
§300.309(d)) allows the extension of the
timeframe with mutual written
agreement of the child’s parent and the
eligibility group.
Changes: None.
Comment: One commenter asked how
the 60-day timeframe would be followed
if the time extends over school breaks.
Discussion: The 60-day timeframe
refers to 60 calendar days and would
include school breaks.
Changes: None.
Comment: Several commenters stated
that the regulations appear to set up a
separate process and procedure for the
evaluation and identification of children
with SLD, and then impose the
timeframe and procedures that apply to
the evaluation of all other disability
categories. One commenter stated that
the timeframe for evaluating children
with SLD is less stringent than for other
disability categories and is, therefore,
discriminatory.
Discussion: Although there are
additional criteria and procedures for
evaluating and identifying children
suspected of having SLD, the group
must also comply with the procedures
and timelines that apply to all
evaluations, including evaluations for
SLD. Evaluation of children suspected
of having SLD must follow the same
procedures and timeframes required in
§§300.301 through 300.306, in addition
to those in §§300.307 through 300.311.
Changes: None.
Comment: One commenter stated that
‘‘appropriate period of time’’ should be
replaced with ‘‘reasonable period of
time’’ because courts are accustomed to
deciding what constitutes a reasonable
timeframe in various evaluation
contexts.
Discussion: It is not necessary to
change ‘‘appropriate period of time’’ to
‘‘reasonable period of time,’’ because the
terms here have similar meanings and
are commonly understood to be
synonymous.
Changes: None.
Comment: One commenter requested
that the regulations clarify who should
refer a child for an evaluation to
determine eligibility for special
education services.
Discussion: Under §300.301(b), and
consistent with the requirements in
§300.300 and section 614(a)(1)(D) of the
Act, either a parent of a child or a public
agency may initiate a request for an
evaluation at any time to determine if
the child is a child with a disability. We
do not believe that further clarification
is necessary.
Changes: None. Comment: One commenter stated that
a school district should retain its
discretion not to evaluate a child subject
to the parent’s right to contest the
decision through due process
procedures.
Discussion: The commenter’s concern
is already addressed in §300.111, which
provides that an LEA must identify,
locate, and evaluate children who are in
need of special education and related
services. If an LEA refuses to evaluate a
child, the LEA must provide prior
written notice, consistent with §300.503
and section 615(b)(3) of the Act. The
parent can challenge this decision
through a due process hearing.
Changes: None.
Observation (§300.310)
Comment: Many commenters
recommended removing the observation
requirements in §300.310, stating that
they are costly and overly prescriptive
and have no statutory basis. One
commenter stated that the requirements
for determining eligibility under the
category of SLD are so specific that the
observation requirements are
unnecessary.
Discussion: The observation
requirements for children suspected of
having SLD have been in the regulations
since before 1983. Important
information can be obtained about a
child through observation in the
classroom, or for a child less than
school age, in an environment
appropriate for a child of that age.
Objective observations are essential to
assessing a child’s performance and
should be a part of routine classroom
instruction and are not costly or overly
prescriptive. We believe the observation
requirements are an important matter to
regulate clearly. We will, therefore,
change §300.310(a) through §300.310(c)
to clearly state that the public agency
must ensure appropriate observation
and documentation of the child’s
academic performance and behavior in
the areas of difficulty to determine
whether a child has an SLD.
Changes: We have changed
§300.310(a) through §300.310(c) to
clearly state the observation
requirements in determining whether a
child has an SLD.
Comment: Several commenters
supported requiring a member of the
group to be trained in observation.
Many commenters requested
clarification regarding what it means to
be trained in observation. One
commenter stated that there are no
established training protocols or
uniform professional standards for
conducting an observation. Discussion: We agree that the
requirement for an individual to be
trained in observation is unclear and
should be removed. States are
responsible for determining specific
personnel qualification requirements,
and, for the reasons stated under
§300.308, States and LEAs should
determine appropriate group
membership.
Changes: We have removed the
phrase ‘‘trained in observation’’ from
§300.310(a).
Comment: Several commenters stated
that the public agency should determine
the most appropriate individual to
conduct the observation. One
commenter recommended specifying a
reading specialist to conduct the
observation when the child’s learning
problems involve reading. Another
commenter stated that the observer
should not be limited to a member of
the eligibility group. One commenter
stated that it is not necessary to obtain
parental consent for the observation.
Discussion: The person conducting
the observation should be a member of
the eligibility group because
information from the observation will be
used in making the eligibility
determination. If information is
available from an observation conducted
as part of routine classroom instruction
that is important for the eligibility group
to consider, the eligibility group should
include the person who conducted that
routine classroom. This will eliminate
redundant observations and save time
and resources. Parental consent is not
required for observations conducted as
part of routine classroom instruction
and monitoring of the child’s
performance before the child is referred
for an evaluation.
If an observation has not been
conducted, or additional observation
data are needed, the decision as to
which person should conduct the
observation is best left to members of
the eligibility group, based on the type
of information that is needed to make
the eligibility determination and
identify the child’s needs. Parental
consent is required for observations
conducted after the child is suspected of
having a disability and is referred for an
evaluation. We will revise §300.310 to
clarify the different ways in which
observation data may be obtained and to
clarify that parental consent is required
for observations conducted after the
child is suspected of having a disability
and is referred for an evaluation.
Changes: We have revised §300.310
to specify in paragraph (a) that the
public agency must ensure that the
child is observed in the child’s learning
environment. A new §300.310(b) has
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46660 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
been added to require the eligibility
group to use the information obtained
from the routine classroom observation
or conduct a new observation and to
require parental consent for
observations conducted after the child is
suspected of having a disability and is
referred for an evaluation. Proposed
§300.310(b) has been redesignated as
new §300.310(c).
Comment: One commenter requested
clarification regarding the definition of
an ‘‘appropriate’’ environment in which
to conduct the observation of a child
who is less than school age, as well as
guidance in determining what such an
environment would be for children who
are out of school.
Discussion: The eligibility group is in
the best position to determine the
environment appropriate for a child
who is less than school age or out of
school.
Changes: None.
Comment: One commenter requested
clear guidance about the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation.
Discussion: We decline to provide
specific guidance on the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation because this relationship
will necessarily vary depending on how
classrooms are structured and teacher
responsibilities assigned. Such
decisions are best made at the local
level. Generally, we would expect that
the child’s general education teacher
would have data from routine classroom
instruction and would work with the
other members of the eligibility group to
determine what additional data, if any,
are needed to determine whether a child
has an SLD. A special education teacher
who is experienced in working with
children with SLD, for example, might
have suggestions on ways to structure a
particular observation session to obtain
any additional information that is
needed, and may be able to assist the
general education teacher in gathering
the data.
Changes: None.
Comment: One commenter
recommended requiring an observation
for any child suspected of having a
disability, not just those suspected of
having an SLD.
Discussion: Observation data will
generally be a part of the existing data
reviewed for any child suspected of
having a disability. Section
300.305(a)(1) requires the eligibility
group for any child suspected of having
a disability to review existing evaluation data, including classroom-based
observations and observations by
teachers and related services providers.
We do not believe that requiring an
observation of children suspected of
other disabilities is necessary, however,
as identification of those other
disabilities is not always as dependent
on classroom performance and behavior
as is identification of children with
SLD.
Changes: None.
Specific Documentation for the
Eligibility Determination (Proposed
Written Report) (§300.311)
Comment: Several commenters
supported the requirements for the
written report, stating that they provide
a useful framework for practitioners.
However, several commenters stated
that the requirements for the written
report should be removed because they
go beyond the requirements of the Act
and impose additional procedural and
paperwork burdens for school
personnel. Several commenters stated
that the report is much more detailed
than the evaluation and eligibility report
for children with other disabilities, and
stated that this could discourage schools
from evaluating children suspected of
having SLD.
Discussion: Section 614(b)(4)(B) of the
Act requires the public agency to
provide a copy of the evaluation report
and the documentation of determination
of eligibility to the parents for all
children evaluated under the Act.
Section 300.311 specifies the content for
the evaluation report for children
suspected of having SLD. States and
LEAs have more discretion over the
specific content of an evaluation report
for children suspected of having a
disability under the other disability
categories. Therefore, whether the SLD
evaluation report is more detailed or
burdensome than other evaluation
reports would depend on State and local
requirements. We believe that the
elements of the report specified in
§300.311 provide important checks to
prevent misidentification and ensure
that children who actually have SLD are
identified.
Changes: None.
Comment: Several commenters
recommended that the written report
include statements regarding the
existence of a psychological processing
disorder and the basis for making the
determination; whether the child
achieved commensurate with the child’s
age and ability; whether the child
achieved commensurate with the child’s
age and intellectual development;
whether the child achieved
commensurate with the child’s peers; and whether there are strengths and
weaknesses in performance or cognitive
abilities in one or more of the areas in
§300.309(a) that require special
education and related services.
Discussion: We decline to change the
content of the written report in the
manner recommended by the
commenters because the statements that
commenters recommended be included
in the written report are inconsistent
with the eligibility requirements for
children with SLD in §300.309.
Changes: None.
Comment: One commenter
recommended including an assurance
that the eligibility determination was
made in accordance with
§300.306(c)(1), regarding procedures for
determining eligibility and placement,
and §300.8(c)(10), regarding the
definition of specific learning disability.
Discussion: Section 300.311(b)
requires each member of the eligibility
group to certify in writing whether the
report reflects the particular member’s
conclusion about whether the child has
an SLD, and if it does not reflect his or
her conclusion, submit a separate
statement presenting his or her
conclusions. There is no need for any
additional assurances.
Changes: None.
Comment: One commenter stated that
including ‘‘evaluation report’’ in the
description of the written report is
confusing because it is unclear whether
the evaluation report is something
additional to the written report.
Discussion: The information required
in the written report in §300.311 is a
part of the documentation of eligibility
required in §300.306(a)(2). Section
300.306(b) and (c) lists the requirements
for eligibility determinations for all
children suspected of having a
disability, including children suspected
of having SLD. Section 300.311 provides
specific elements that must be
addressed in the report for children
suspected of having SLD. Two separate
reports are not necessary as long as the
information in §300.311 is included in
the documentation of the eligibility
determination in §300.306(a)(2). We
agree that this should be clarified.
Therefore, we will change the heading
for §300.311 from ‘‘Written report’’ to
‘‘Specific documentation for the
eligibility determination’’ and will
modify the language in §300.311(a)
accordingly.
Changes: We have changed the
heading for §300.311 and modified
§300.311(a) to clarify that the
requirements in §300.311 are in
addition to the requirements for the
documentation of the eligibility
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46661 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
determination required in
§300.306(a)(2).
Comment: Several commenters
requested that the written report include
the determination of the group
concerning the effects of cultural
factors, limited English proficiency, and
environmental or economic
disadvantage to be consistent with all
the elements in §300.309(a)(3).
Discussion: We agree that it is
important to emphasize the importance
of considering such factors in
determining eligibility under SLD and
will add these factors in §300.311(a).
Changes: We have added a new
paragraph (6) to §300.311(a) to require
the written report to include a statement
on the effects of cultural factors, limited
English proficiency, environmental, or
economic disadvantage.
Comment: Several commenters
requested clarification of what happens
if a group member disagrees with the
report and agreement is never reached.
Other commenters asked whether
services are delayed pending a group
consensus; whether the submission of a
separate statement is synonymous with
a veto for eligibility; whether it matters
which group member submits a separate
report; and whether each group member
has equal standing.
Discussion: The eligibility group
should work toward consensus, but
under §300.306, the public agency has
the ultimate responsibility to determine
whether the child is a child with a
disability. Parents and school personnel
are encouraged to work together in
making the eligibility determination. If
the parent disagrees with the public
agency’s determination, under
§300.503, the public agency must
provide the parent with prior written
notice and the parent’s right to seek
resolution of any disagreement through
an impartial due process hearing,
consistent with the requirements in
§300.503 and section 615(b)(3) of the
Act.
Every effort should be made to resolve
differences between parents and school
staff through voluntary mediation or
some other informal dispute resolution
process. However, as stated in
§300.506(b)(1)(ii) and section
615(e)(2)(A)(ii) of the Act, mediation or
other informal procedures may not be
used to deny or delay a parent’s right to
a due process hearing, or to deny any
other rights afforded under Part B of the
Act.
Changes: None. Individualized Education Programs
Definition of Individualized Education
Program (§300.320)
General (§300.320(a))
We received numerous comments
requesting that we require the IEP to
include additional content that is not in
the Act. Under section 614(d)(1)(A)(ii)(I)
of the Act, the Department cannot
interpret section 614 of the Act to
require public agencies to include
additional information in a child’s IEP
that is not explicitly required under the
Act. Therefore, we generally have not
included these comments in our
analysis and discussion of §300.320.
Comment: One commenter requested
that §300.320 refer to a ‘‘student with
a disability’’ instead of a ‘‘child with a
disability.’’
Discussion: The words ‘‘child’’ and
‘‘student’’ are used interchangeably
throughout the Act. The regulations
follow the statutory language whenever
possible. In §300.320, we used the term
‘‘child with a disability,’’ consistent
with section 614(d) of the Act.
Changes: None.
Comment: Many commenters
recommended that the regulations
include a definition of ‘‘functional’’ as
it is used, for example, in ‘‘functional
performance’’ in §300.320(a)(1) and
‘‘functional goals’’ in §300.320(a)(2).
Some commenters suggested defining
‘‘functional’’ as the acquisition of
essential and critical skills needed for
children with disabilities to learn
specific daily living, personal, social,
and employment skills, or the skills
needed to increase performance and
independence at work, in school, in the
home, in the community, for leisure
time, and for postsecondary and other
life long learning opportunities. One
commenter recommended that the
regulations include examples of
functional skills and how functional
skills should be measured.
Discussion: It is not necessary to
include a definition of ‘‘functional’’ in
these regulations because we believe it
is a term that is generally understood to
refer to skills or activities that are not
considered academic or related to a
child’s academic achievement. Instead,
‘‘functional’’ is often used in the context
of routine activities of everyday living.
We do not believe it is necessary to
include examples of functional skills in
the regulations because the range of
functional skills is as varied as the
individual needs of children with
disabilities. We also decline to include
examples of how functional skills are
measured because this is a decision that
is best left to public agencies, based on the needs of their children. However, it
should be noted that the evaluation
procedures used to measure a child’s
functional skills must meet the same
standards as all other evaluation
procedures, consistent with
§300.304(c)(1).
Changes: None.
Comment: One commenter
recommended revising §300.320(a) to
state that ‘‘an IEP includes’’ rather than
‘‘an IEP must include’’ in order to reflect
the specific language in section 614(d)
of the Act. The commenter stated that
use of the word ‘‘must’’ limits the
contents of an IEP to the items listed in
§300.320(a).
Discussion: The word ‘‘must’’ is used
in §300.320(a) to clarify that an IEP is
required to include the items listed in
§300.320(a). We believe it is important
to retain this language in §300.320(a).
Under section 614(d)(1)(A)(ii)(I) of the
Act, section 614 of the Act cannot be
interpreted to require content in the IEP
beyond that which is specified in the
Act.
Changes: None.
Comment: One commenter requested
clarifying the meaning of ‘‘appropriate’’
as used, for example, in
§300.320(a)(1)(ii) to refer to a child’s
participation in ‘‘appropriate’’ activities.
Discussion: The word ‘‘appropriate’’
in these regulations does not have a
different meaning from its common
usage. Generally, the word
‘‘appropriate’’ is used to mean
‘‘suitable’’ or ‘‘fitting’’ for a particular
person, condition, occasion, or place.
Changes: None.
Comment: Some commenters
recommended requiring the IEP to
include a statement of the relevant
social and cultural background of a
child and how those factors affect the
appropriate participation, performance,
and placement of the child in special
education.
Discussion: Section 614(d)(1)(A)(ii)(I)
of the Act precludes the Department
from interpreting section 614 of the Act
to require public agencies to include
information in a child’s IEP other than
what is explicitly required in the Act.
Therefore, we cannot require the IEP to
include the statement requested by the
commenters. However, a child’s social
or cultural background is one of many
factors that a public agency must
consider in interpreting evaluation data
to determine if a child is a child with
a disability under §300.8 and the
educational needs of the child,
consistent with §300.306(c)(1)(i).
Changes: None.
Comment: One commenter stated that
adapted physical education should be
part of a child’s IEP. Another
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46662 Federal Register/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
commenter recommended that travel
training be required in the IEP.
Discussion: The definition of special
education in new §300.39 (proposed
§300.38) includes adapted physical
education and travel training. We do not
believe adapted physical education and
travel training should be mandated as
part of an IEP because, as with all
special education and related services,
each child’s IEP Team determines the
special education and related services
that are needed to meet each child’s
unique needs in order for the child to
receive FAPE. In addition, section
614(d)(1)(A)(ii)(I) of