[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12605-12654]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-16]

[[pp. 12605-12654]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities

[[Continued from page 12604]]

[[Page 12605]]

transportation is required. Section Sec. 300.454(b)(1)(iii) has been
revised to specify that where services are provided is a subject of
consultation between the LEAs and representatives of private school
children. The notes following this section in the NPRM have been
removed.

Complaints (Sec. 300.457)

    Comment: Several commenters objected to Sec. 300.457(a) because
they believed that a child in a private school should be able to
receive a due process hearing on complaints about services once the LEA
has decided to provide services to that child. Most of those commenters
indicated that there may be legitimate issues regarding whether the LEA
complied with obligations to a specific child it had agreed to serve.
    One commenter agreed with the position in the NPRM that if FAPE
does not apply to private school children, due process also would not
apply. Another commenter suggested that due process also should not
apply to the child find obligations described in Sec. 300.451.
    Discussion: Section 615(a) of the Act specifies that the procedural
safeguards of the Act apply with respect to the 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
disabilities an LEA has agreed to serve, due process should not apply,
as there is no individual right to these services under the IDEA.
Disputes that arise about these services are properly subject to the
State complaint procedures, which are available to address
noncompliance with any requirement of Part B.
    On the other hand, child find is a part of the basic obligation to
make a FAPE available to all children with disabilities in the
jurisdiction of the public agency, and so failure to properly evaluate
a parentally-placed private school child would be subject to due
process.
    Changes: A new paragraph (b) has been added to specify that due
process procedures do apply to child find activities, including
evaluations.

Requirement That Funds not Benefit a Private School (Sec. 300.459)

    Comment: One commenter asked how an LEA is to discern whether funds
are being used to benefit the private school. Another questioned
whether this provision is consistent with other provisions that allow
funds to be used by an LEA to provide staff development for special and
regular education personnel, consultative services and provisions that
permit other children to also benefit when a teacher or other provider
is providing special education or related services to a child with a
disability.
    Discussion: LEAs should use reasonable measures in assessing
whether Federal funds are being used to benefit private schools. This
provision does not prohibit private school teachers from participating
in staff development activities regarding the provisions of IDEA when
their participation can be accommodated.
    If consultation services are provided to a private school teacher
as a means of providing special education and related services to a
particular private school child with a disability and that teacher uses
the acquired skills in providing education to other children, whatever
benefit those other children receive is incidental to the publicly
funded services and is not prohibited by this provision.
    On the other hand, if an LEA simply gave a private school an amount
of money rather than itself providing or purchasing services for
parentally-placed private school children with disabilities, in
addition to violating the requirements of Secs. 300.453 and 300.454,
would raise very significant concerns about compliance with
Sec. 300.459(a).
    In the interest of regulating only where necessary, the regulations
do not further specify measures of when a private school is benefiting
from the Federal funds.
    Changes: None.

Use of Private School Personnel (Sec. 300.461)

    Comment: One commenter noted that private school personnel used to
provide services to private school children under Part B should be
required to meet the same standards as public school employees
providing those services to public or private school children.
    Discussion: Section 300.455 specifies that services provided to
private school children must be provided by personnel meeting the same
standards as those providing services in public schools. This would
apply to private school personnel who, under Sec. 300.461, are being
used to provide services under Secs. 300.450-300.462 to private school
children with disabilities.
    Changes: A technical change has been made to Sec. 300.461 to make
clear that the services addressed are those provided in accordance with
Secs. 300.450-300.462.

Requirements Concerning Property, Equipment and Supplies for the
Benefit of Private School Children With Disabilities (Sec. 300.462)

    Comment: One commenter asked whether costs for inventory control
can be considered as a part of the proportionate share of the LEA's
Part B funds that are to be expended for providing services to private
school children. The commenter also asked for specificity regarding the
procedures to be used for maintaining administrative control of all
property, equipment and supplies acquired for the benefit of private
school children.
    Discussion: Reasonable and necessary costs for inventory control of
property, equipment and supplies located in a private school related to
providing special education and related services to private school
children with disabilities can be considered a part of the cost of
providing special education and related services to private school
children with disabilities. Effective procedures for ensuring
administrative control will vary depending on local considerations.
    Changes: None.

Subpart E Procedural Safeguards

General Responsibility of Public Agencies; Definitions (Sec. 300.500)

    Comment: One commenter asked whether the definition of
``evaluation'' at Sec. 300.500(b)(2) precludes the use of tests which
are based on the general curriculum and which may be used with all
children in a school or class as the primary means of evaluation.
Another commenter asked if any evaluation after an initial evaluation
is considered a reevaluation. It was also suggested that the revocation
of consent only be allowed before the first day of the child's
placement. There was also a request that the note (which concerns the
non-retroactivity of a revocation by a parent of their consent) be
included in the text of the regulation.
    Some commenters also wanted a definition of ``educational
placement'' included in Sec. 300.500(b), consistent with prior policy
issuances regarding the definition.
    Discussion: The statutory changes to the evaluation procedures that
are reflected in Secs. 300.530-300.536 make clear that an
``evaluation'' will include review of existing data, which may include
results on tests or other procedures that are based on the general
curriculum and may be used with all children in a grade, school, or
class. The definition of ``evaluation'' in the NPRM

[[Page 12606]]

at proposed Sec. 300.500(b)(2) had not been updated to recognize this
change in the statute. Therefore, a change has been made to eliminate
the last sentence in the proposed definition of ``evaluation'' so that
it does not imply that an evaluation may not include a review of a
child's performance on a test or procedure used with all children in a
grade, school or class. This change does not mean that a public agency
must obtain parental consent before administering a test used with all
children unless otherwise required. (See Sec. 300.505(a)(3)). Section
300.532 sets forth the procedures required to individually evaluate a
child. Section 300.533 addresses the use of existing evaluation data
which can include information available on the results of tests and
procedures used for all children in a school, grade or class.
    To distinguish an initial evaluation from a reevaluation, an
initial evaluation of a child is the first completed assessment of a
child to determine if he or she has a disability under IDEA, and the
nature and extent of special education and related services required.
Once a child has been fully evaluated the first time in a State, a
decision has been rendered that a child is eligible under IDEA, and the
required services have been determined, any subsequent evaluation of a
child would constitute a reevaluation.
    Regarding revocation of parental consent, parents cannot be forced
to consent to decisions related to their child's education. However, it
would be impractical to allow a parent to retroactively apply a
revocation of consent where parental consent is required. Thus, once a
parent consents to an educational decision concerning their child, be
it an evaluation or provision of service(s), any revocation of their
consent once the action to which they initially consented has been
carried out will not affect the validity of the action. Since the non-
retroactivity of a parent's revocation of consent is based on the
Department's interpretation of the statute, and is important to make
clear to all parties, it should be set forth in the regulation itself.
    The educational placement of a child focuses on the implementation
of a child's IEP and cannot be defined generally given that each child
has different educational needs. Section 300.552 addresses the meaning
of educational placement by describing the factors involved in making a
placement decision and explains the concept in the context of the least
restrictive environment. There is no additional benefit to defining
further the term educational placement at Sec. 300.500.
    Changes: The note following this section has been deleted and
Sec. 300.500(b)(1)(iii) has been amended by adding language to clarify
that a revocation of consent does not have retroactive effect if the
action consented to has already occurred. Section Sec. 300.500(b)(2)
has been amended by removing the last sentence of that paragraph.

Opportunity to Examine Records; Parent Participation in Meetings
(Sec. 300.501)

    Comment: Some commenters asked that the term ``all'' with respect
to meetings in Sec. 300.501(a)(2) be deleted as that term is not used
in the statute, as well as delete the term ``all'' with respect to the
term ``education records'' and replace it with ``special.'' Another
suggestion was to require in Sec. 300.501(a)(1) that copies of tests
given to a child and manuals to interpret such tests be made available
for the parents to review. One commenter asked whether therapy notes
are considered educational records and another asked that the public
agency be required to specify time periods within which the inspection
and review right must be carried out.
    Several commenters expressed concern that the definition of
``meetings'' was too narrow; the commenters recommended the definition
be drafted to insure that it means any event where decisions are made
regarding a child's identification, evaluation or placement. Others
asked that the definition be removed entirely. It was also requested
that the potential for any confusion regarding informal meetings held
by school personnel be eliminated. Several commenters recommended
deleting the reference at Sec. 300.501(a)(2)(ii) to the provision of
FAPE, claiming this would overly broaden the meetings at which parents
should be given the chance to attend, precluding the ability for
internal meetings without the parents. A commenter also asked that
Sec. 300.501(a)(2) include the opportunity to attend eligibility
meetings.
    Commenters also asked that Sec. 300.501(b)(2) be amended to include
in the definition of ``meetings'' those that occur via conference call
or video conferencing, not just face-to-face meetings. Several comments
advised that the language as proposed at Sec. 300.501(b)(2) might
result in parents being excluded from curriculum planning meetings for
individual children under the guise of ``teaching methodology, lesson
plans or coordination of service provision'' meetings. There were
several recommendations that there be a specific timeline for giving
parents notice of meetings, such as at least 10 business days before a
meeting.
    Regarding placements, many commenters stated that parents should be
informed by public agencies of the various alternative placements
available, not just the one ultimately chosen, and the reasons for
rejecting the other potential placements. Further, it was suggested
that the language in Sec. 300.501(c)(1) be placed in the IEE section of
the regulations.
    Several commenters also stated that video-conferencing (referenced
in Sec. 300.501(c)(3)) would be costly and prohibitive for many
schools. Some thought the language in Sec. 300.501(c)(5), ``whatever
action is necessary'', was too broad and should be a reasonable or
feasible standard. There were also concerns that Sec. 300.501(c)(5)
should not require schools to ensure participation and comprehension by
the parents, but that they should make reasonable attempts to ensure
parents participate and understand.
    Discussion: The statute specifically states that parents have the
right to participate in meetings regarding identification, evaluation,
placement or FAPE. Paragraph (b)(2) describes the types of discussions
that do not fall within this requirement. The term ``all'' should be
deleted to be consistent with the statutory language.
    The term ``all education records'' is from the statutory reference
to ``all records relating to such child'' at section 615(b)(1) of the
Act. The Department has always interpreted the term to mean all of the
child's education records to be consistent with the purpose of IDEA and
the applicable confidentiality provisions of the General Education
Provisions Act at 20 U.S.C. 1232g, also known as the Family Educational
Rights and Privacy Act of 1974 (FERPA) as directed by section 617(c) of
the Act.
    Education records are defined at Sec. 300.560 by reference to the
definition of education records in 34 CFR part 99 (the regulations
implementing FERPA). The term means those records that are directly
related to a student and are maintained by an educational agency or
institution or by a party acting for the agency or institution. Given
the definition, it follows that tests taken by a child are included in
the education records available for review by a parent. The discussion
following Sec. 300.562 in the attachment further discusses what is
considered an education record of a child and the timelines for
parental inspection and review of education records.
    Regarding the definition of ``meetings,'' the proposed definition
was

[[Page 12607]]

intended to make clear that parents have the right to be notified of
and attend meetings which, generally, are scheduled in advance, and in
which public agency personnel are to come together at the same time,
whether face-to-face or via conference calls or video-conferencing, to
discuss, and potentially resolve, any of the issues described in
paragraph (b)(2).
    Informal discussions among teachers and administrators, which may
or may not be pre-arranged, are not meetings for which parents must
receive notice and the opportunity to attend. Whether or not a meeting
is prearranged is not the deciding factor in determining whether
parents would have the right to attend; rather, the fact that the
meeting is to discuss and potentially resolve one or more of the issues
identified in paragraph (b)(2) triggers the parents' right to be
involved.
    In practical terms, this means that meetings to which the child's
parents must be afforded the opportunity to attend cannot be convened
without providing parents with reasonable notice. However, in the
interest of regulating only where necessary, the first sentence of
paragraph (b)(2) would be removed and no specific timeline regarding
parental notice of meetings would be added.
    The right of parents to participate in meetings where the provision
of FAPE to their child is being discussed is statutory. The point of
the provision is to ensure parents have the opportunity to participate
in discussions where substantive decisions regarding their child's
education are made--a key principle of the IDEA Amendments of 1997.
Eligibility determinations are the focus of the identification process
and are already part of Sec. 300.501(a)(2). A parent's role in the
eligibility determination also is addressed under Sec. 300.534 of these
regulations.
    With respect to placement, if parents are to be meaningfully
involved in the placement decision for their child it is necessary that
they understand the various placement options. It is implicit in the
requirement that parents be ensured the opportunity to be members of
any group making the placement decision, that whatever placement
options are available to a child will be fully discussed and analyzed
at placement meetings, allowing input from all the participants.
    Relocating the language at Sec. 300.501(c)(1) in the IEE section of
the regulations does not make sense since the purpose of
Sec. 300.501(c) is placement and that of IEE's is evaluation.
    Whether or not video-conferencing, as well as other methods for
enabling full participation in meetings by those with a right to
attend, are used is dependent on the particular circumstances, and no
one method is mandated. If one effective option would be more costly in
a particular situation than another, there is no mandate that the more
costly alternative be chosen.
    Section 300.501(c)(4) explains that placement decisions may be made
by public agencies without the parents if the agency is unable to
obtain the parents' participation in the decision and documents its
attempts to ensure their involvement. Once a parent makes clear that he
or she will be involved in the placement decision-making process,
Sec. 300.501(c)(5) requires that the agency ensure that the parent is
actually able to participate in, which includes understanding, the
process. However, it is possible that even if an agency makes
reasonable efforts, consistent with Sec. 300.501(c)(5), to ensure a
parent's participation, the parent is still not able to meaningfully
participate. Thus, it appears useful to clarify the regulation.
    Changes: Section 300.501(a)(2) has been amended to delete the word
``all'; Sec. 300.501(b)(2) (definitions of ``meetings'') has been
amended by replacing ``a prearranged event in which'' with ``when;''
and deleting ``and place;'' and Sec. 300.501(c)(5) has been revised to
refer to reasonable efforts to ensure parent participation.

Independent Educational Evaluation (Sec. 300.502)

    Comment: Some commenters thought that allowing the public agency to
initiate a hearing regarding parental requests for independent
educational evaluations (IEE), without allowing parents the right to
likewise initiate a hearing, would cause excessive litigation. Further,
it was suggested that States be required to develop clear criteria for
acceptance of IEEs as the primary means of determining eligibility.
    One commenter asked that a formula be established for reimbursing
parents who assume the responsibility of establishing eligibility for
their children. Several commenters urged that an IEE must be consistent
with the requirements of a full and individual evaluation under
Secs. 300.530-300.536. It was also suggested that although the criteria
under which an IEE is obtained at public expense should be the same as
the criteria used by the public agency when it initiates an evaluation,
reasonable travel should be allowed when community professional
resources are limited.
    A few comments requested limiting the cost of an IEE to a
reasonable and customary charge, as well as restricting the type of
evaluation conducted, such as evaluating only educational, not medical,
needs.
    Comments were received recommending that before a parent may
request an IEE, there must have been an LEA evaluation, the results
with which the parents disagree. The commenters stated that parents who
refuse to consent to a public evaluation and then demand an IEE at
public expense should not receive an IEE, unless they can demonstrate a
legitimate reason for refusing to consent to the undertaking of a
public evaluation.
    Commenters both supported and opposed Notes 1 and 2, some wishing
their deletion and some wanting them included as part of the
regulations. Many commenters suggested that parents should explain why
they disagreed with the public evaluation, or that the public agency
should be able to request such information and have time to alleviate
the parents' concerns, and that the parent should request a hearing if
he or she wants one so the burden to demonstrate that the evaluation
was appropriate would not fall solely on the public agency.
    There were several requests for a definition of unnecessary delay
in Sec. 300.502(b), some proposing 10 calendar or school days from the
receipt of a request for an IEE.
    Discussion: The purpose of requiring the public agency to either
initiate a due process hearing if it wishes to challenge a parent's
request for an IEE, or otherwise provide an IEE at public expense, is
to require public agencies to respond to IEE requests and to ensure
parents are able to obtain an IEE as set forth in section 615(b)(1) of
the Act. There is no corresponding need to specify that a parent also
has the right to initiate a due process hearing since if a public
agency does not do so it must provide the IEE at public expense.
    IEEs would be only one element in the eligibility determination
since the evaluation team reviews the existing evaluation data and then
determines what additional data are needed to determine whether the
child has or continues to have a covered disability, the child's
present levels of performance and whether the child needs or continues
to need special education and related services (see Sec. 300.533(a) and
(b)). Methods in addition to IEEs are to be used to determine whether a
child is eligible under IDEA. Therefore, the results of IEEs cannot be
the sole determining factor for eligibility.
    Under IDEA, it is the public agency's responsibility to establish
eligibility. If parents are willing to assume the

[[Page 12608]]

responsibility, on behalf of the public agency, for having the
assessment of their child under IDEA done, they should be reimbursed
for the assessment methods agreed upon by the public agency and
parents. The agreement between the parents and public agency would
depend on their special circumstances so regulating on this issue would
not be helpful. However, this procedure would not be an IEE.
    Since Sec. 300.502(e)(1) states that IEEs at public expense are to
be conducted pursuant to the same criteria that apply to evaluations
conducted by public agencies, it follows that the requirements at
Secs. 300.530-300.536 would apply to the IEEs. Note also that for an
IEE obtained by a parent either at public or private expense to be
considered by the public agency, such IEE must meet agency criteria.
Therefore, the parents must be able to have access to the relevant
agency criteria. To that end, Note 2 should be deleted and, in modified
form, included in the text of the regulation at Secs. 300.502(a)(2),
300.502(c)(1), and 300.502(e)(1).
    There is nothing in the regulations with respect to IEEs, or
evaluations in general, that would prevent reasonable travel for
necessary services not available in the community.
    Since public agencies must provide parents with information about
where IEEs may be obtained, provided the options are consistent with
Secs. 300.530-300.536, public agencies have some discretion in the cost
if it is at public expense. Further, evaluations of children under IDEA
are to cover all areas of suspected disability, which may include
medical examinations for purposes of determining the child's
disability. There may be situations in which a child's educational
needs are intertwined with a child's health needs, therefore, stating
that the types of evaluations conducted are only those regarding
educational need does not add any useful clarity.
    The right of a parent to obtain an IEE is triggered if the parent
disagrees with a public initiated evaluation. Therefore, if a parent
refuses to consent to a proposed public evaluation in the first place,
then an IEE at public expense would not be available since there would
be no public evaluation with which the parent can disagree. If the
parent believes the proposed public evaluation is inappropriate, he or
she may pursue an appropriate publicly-funded evaluation via the
mediation or due process procedures under Secs. 300.506-300.509.
    With respect to Note 1, while it would be helpful for parents to
explain their disagreement over a public evaluation, there is nothing
in the statute which prevents parents from obtaining an IEE if they did
not express their concerns first. Therefore, Note 1 would be deleted
and the regulation changed to state that the public agency may request
an explanation from the parents regarding their concerns when the
parent files a request for an IEE at public expense. However, such an
explanation may not be required of the parents and the provision of an
IEE, or initiation of a due process hearing to defend the public
evaluation, may not be delayed unreasonably regardless of whether or
not the parent explains his or her concerns to the public agency.
    Since the necessity or reasonableness of a delay is case specific,
no definition of these terms has been added.
    Changes: Note 2 has been deleted and Sec. 300.502(a)(2) and (e)(1)
have been amended to provide that on request for an IEE, parents are
provided with information about where an IEE may be obtained and the
agency criteria applicable to IEEs and that those criteria are
consistent with the parent's right to an IEE.
    Note 1 has been deleted and Sec. 300.502(b) has been revised to
explain that an explanation of parent disagreement with an agency
evaluation may not be required and the public agency may not delay
either providing the IEE at public expense or, alternatively,
initiating a due process hearing.

Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)

    Comment: One commenter stated that Sec. 300.503(b)(8) should be
removed, believing it to exceed the statute and because an explanation
of State complaint procedures is given in the procedural safeguards
notice. The commenter also believed it is inconsistent to inform
parents about the State complaint process without the other two
(mediation and due process appeals) being explained.
    Several commenters asked for specific types of organizations to be
listed in Sec. 300.503(b)(7), such as parent training institutes.
Another commenter wanted the title of Sec. 300.503 to be changed to
``Prior Notice by the Public Agency Before Implementing an IEP.''
    Several commenters asked that a note be added to explain when the
notice needs to be sent.
    Requests were received to delete Sec. 300.503(b)(6) and to insert
the phrase ``unless it is clearly not feasible to do so'' as stated in
Sec. 300.503(c)(ii) whenever language or mode of communication is
addressed. It was also suggested that a note be added that an LEA must
document its attempts at accessing resources to assist in translating
or interpreting information.
    Discussion: Section 300.503(b)(8) was proposed to enhance the
awareness of parents of low cost and less adversarial mechanisms for
resolving disputes with school districts. Therefore, it makes sense to
require State complaint procedures to be explained along with due
process and mediation rather than in this notice. Since
Sec. 300.503(b)(6) requires that parents be advised of the existence of
procedural safeguards and, if the written notice is not part of an
initial referral for an evaluation, be told how a copy of the
procedural safeguards notice can be obtained, it would be useful and
appropriate to add a specific requirement for an explanation of the
State complaint process in Sec. 300.504(b).
    Procedural safeguard notices must be given to the parents, at a
minimum, upon the four events set forth at Sec. 300.504(a); between
those events and the statement mandated at Sec. 300.503(b)(6), agencies
should have ample instances in which they must provide parents with
effective notice of the various processes for challenging proposed
action. Therefore, Sec. 300.503(b)(8) should be deleted and moved to
Sec. 300.504(b).
    The types of organizations which exist to help parents understand
IDEA are varied and depend on the particular State. Therefore, a list
of such organizations in the regulations would not be feasible.
    The regulation is already clear on when the prior written notice
must be given: a reasonable time before the public agency proposes or
refuses to initiate or change the child's identification, evaluation,
educational placement or provision of FAPE. If parental consent is
required for the proposed action, the notice may be given when parental
consent is requested. Further, the notice is required at times other
than only before implementing a child's IEP so the title should not be
changed.
    Section 300.503(b)(6) is taken directly from the statute. In
addition, it is difficult to understand when it would not be feasible
to add the statement required by Sec. 300.503(b)(6).
    It is not necessary to add a note requiring an agency to document
its efforts to translate or interpret the notice pursuant to
Sec. 300.503(c)(2)(i) and (ii) since Sec. 300.503(c)(2)(iii) requires
that the agency can show that Sec. 300.503(c)(2)(i) and (ii) have been
met.
    Changes: Section 300.503(b)(8) has been deleted and moved to
Sec. 300.504(b).

[[Page 12609]]

Procedural Safeguards Notice (Sec. 300.504)

    Comment: Several commenters were opposed to specifying the times
procedural safeguards notice are to be given to the parents, claiming
such requirements are expensive and burdensome. One commenter asked
that the terms ``opportunity to present complaints'' and ``due process
hearings'' be clarified since the two terms seem to mean the same thing
for purposes of the procedural safeguards notice. Other commenters
objected to Secs. 300.504(a)(2), 300.504(b)(7), and 300.507(c)(2)(iii).
    There were several suggested additions to the timing and contents
of the procedural safeguards notice. Commenters suggested that the
procedural safeguards notice: (1) Also be required when there is a
decision to remove a child from his or her current educational
placement for disciplinary actions resulting from behaviors described
in Sec. 300.520 or Sec. 300.521, or for a period of more than 10 school
days for other violations; (2) contain information with respect to the
transfer of rights at the age of majority and the circumstances under
which tuition reimbursement may be denied; (3) contain information on
the use of private and public insurance to pay for Part B services; (4)
contain information as to where parents can receive help in
understanding procedural safeguards; (5) state that a public agency may
not deny a parent's right to a due process hearing if the parent fails
to participate in a meeting to encourage mediation; and (6) include a
complete listing of all times when the safeguards notice is to be
provided.
    Discussion: The minimum times the procedural safeguards notice must
be given to parents is set forth in the statute at section 615(d)(1).
The fourth requirement, that the notice be given upon receipt of
request for a due process hearing, comes from the requirement at
section 615(d)(1)(C) that the notice be given upon registration of a
complaint under section 615(b)(6).
    The longstanding interpretation of the statutory mandate at section
615(b)(6) that parents have the opportunity to present complaints
relating to their child's identification, evaluation, educational
placement and provision of FAPE, is that they have an opportunity to
request a due process hearing. Therefore, Sec. 300.504(b)(5) should be
modified to make clear that the opportunity to be explained is that of
presenting complaints to initiate due process hearings pursuant to
Sec. 300.507. Section 300.504(b)(10) as stated is then clearer in that
it refers to an explanation of the actual due process hearing
procedures. Also, in adding Sec. 300.504(b)(14), a corresponding change
to the first paragraph of Sec. 300.504(b) must be made to reference
State complaint process.
    Sections 300.504(a)(2) and (b)(7) are required by the statute. The
provision in Sec. 300.504(c)(2)(iii) has been in the regulations since
1977 and there is no basis for changing the requirement given that
purpose is to ensure that parents receive assistance in understanding
the notice.
    Regarding the several suggested additions to the timing and
contents of the procedural safeguards: (1) Sec. 300.504(b)(7) as
written addresses situations where children are disciplined and placed
in interim alternative educational placements; (2) Sec. 300.504(b)(8)
as written addresses situations resulting in reduction of reimbursement
of private school tuition; (3) Sec. 300.347(c) requires that at least
one year before the student reaches the age of majority under State law
the parents and the student will receive notice of the projected
transfer of rights through the IEP; (4) Sec. 300.142(e) specifies that
private insurance can only be used with informed parent consent and
that public insurance can only be used if it will not result in a cost
to parents; (5) Sec. 300.503(b)(7) already includes sources for parents
to use to help in understanding their rights; and (6)
Sec. 300.504(b)(9) already requires that the mediation process, which
includes parental rights therein, be fully explained.
    The information on the content and timing of the procedural
safeguards notice is not included in the statutory description of the
contents of this notice.
    Changes: As discussed under Sec. 300.503, a new Sec. 300.504(b)(14)
has been added to address State complaint procedures. The first
paragraph of Sec. 300.504(b) is amended to recognize this change.
Section 300.504(b)(5) is amended to refer to presenting complaints to
initiate due process hearings.

Parental Consent (Sec. 300.505)

    Comment: A few comments suggested that the term ``informed'' be
inserted before ``parental consent'' in Sec. 300.505(a)(1).
    Several commenters believe that parental consent should be required
for all reevaluations, not just those where new tests are necessary.
Other commenters also requested that the term ``new test'' be changed
to encompass other evaluation procedures. Others stated that the term
``new test'' confused rather than clarified when consent needed to be
obtained and requested that it be clarified or deleted. Some commenters
suggested that an explanation be added to clarify that where additional
data are needed in order to reevaluate a child, parental consent is
required. There were also questions regarding the necessity of consent
for adapted or modified assessments if not part of a reevaluation, such
as ongoing classroom evaluations (e.g. the Brigance) and counseling.
    Several commenters believe that parental consent should be required
before special education services are discontinued, for example, upon
graduation. A few commenters recommended that reevaluations for
children who are suspended for more than 10 days or expelled should be
able to proceed even if parental consent is not given.
    The use of Sec. 300.345(d) procedures to meet the reasonable
measures requirement of Sec. 300.505(c) was opposed by some commenters,
several of whom believe that documenting efforts to obtain parental
consent should be sufficient. Some also wanted reasonable measures to
be defined more specifically.
    Several comments advocated deleting Note 3 and others believed Note
3 should be incorporated into the regulation. Further, it was
recommended that the clarification in Note 2 be revised to state that
the public agency consider implementing its procedures to override a
parent's refusal to consent to services the public agency believes are
necessary for the child to receive FAPE, rather than requiring the
public agency to implement such override procedures.
    Discussion: Parental consent must be informed to be consistent with
the statute and meaningful. Further, adding the word ``informed'' at
Sec. 300.505(a)(1) is consistent with the definition, in
Sec. 300.500(b)(1), of consent.
    In order for children to receive FAPE, the IDEA Amendments of 1997
emphasized the importance of parent involvement in their children's
evaluation and placement. The statute requires informed parental
consent prior to a child's initial evaluation for special education and
related services, as well as any reevaluations. The intent of this
statutory change was not to require school districts to obtain parental
consent before reviewing existing data about the child and the child's
performance, an activity that school districts, as a matter of good
practice, should be engaged in as an on-going practice.

[[Page 12610]]

    To require parental consent for collection of this type of
information would impose a significant burden on school districts with
little discernable benefit to the children served under these
regulations. The statute provides that in some instances, an evaluation
team may determine that additional data are not needed for an
evaluation or reevaluation. In all instances, parents have the
opportunity to be part of the team which makes that determination.
Therefore, no parental consent is necessary if no additional data are
needed to conduct the evaluation or reevaluation.
    To make this clear and to respond to commenters who believed that
requiring parental consent only when conducting a new test as part of
the reevaluation was too narrow, the regulation should be revised to
specify that parental consent must be obtained before conducting an
evaluation or reevaluation, to delete proposed paragraph (a)(1)(iii)
and add a new provision to state that parental consent need not be
obtained before reviewing existing data as a part of an evaluation or
reevaluation or before administering a test or other evaluation that is
administered to all children unless consent is required of all parents.
    Parental consent would be necessary if a test is conducted as a
part of an evaluation or reevaluation, and when any assessment
instrument is administered as part of an evaluation or reevaluation.
However, schools would not be required by these regulations to obtain
parental consent for teacher and related service provider observations,
ongoing classroom evaluation, or the administration of or review of the
results of adapted or modified assessments that are administered to all
children in a class, grade, or school.
    If a child is about to graduate or otherwise stop receiving special
education and related services, Sec. 300.503's prior notice
requirements would be triggered. Section 300.503 requires that written
notice must be sent to the parents before a proposed change in
identification, evaluation, placement, or the provision of FAPE is
effective, thereby allowing the parent the opportunity to object to the
proposal. It is not appropriate to regulate further on this issue here.
    Paragraph (b) of this section addresses the procedures an agency
can use if it wants to pursue an evaluation or reevaluation, but the
parents have refused consent. The agency may seek to do the evaluation
or reevaluation by using the due process or mediation procedures under
Part B of the Act unless doing so would be inconsistent with State law
relating to parent consent. Proposed Notes 1 and 3, and the second part
of proposed Note 2 were attempts to clarify the interplay between the
Federal requirement to provide FAPE and any State laws and policies
which may not permit educational agencies to override refusals of
parents to consent to evaluations and reevaluations.
    In practical terms, if a State does not allow the agency to
override a parent's refusal for an initial evaluation or reevaluation
which the agency deems necessary in order to provide FAPE, the agency,
under paragraph (b), must follow the requirements of State law. In
cases where the evaluation or reevaluation is necessary in order to
determine that the child is or continues to be a child with a
disability under Part B of the Act, and State law prohibits an agency
from overriding a parental refusal to consent, the agency may have no
recourse but to not provide, or not continue to provide, services under
the Act to the child.
    On the other hand, if State law does not prohibit the agency from
overriding a parental refusal to consent to an evaluation or
reevaluation, and the agency believes that an evaluation or
reevaluation is necessary in order to provide FAPE, the agency would
have to take appropriate action.
    If State law provided a mechanism different than due process or
mediation under Part B as the means to override a parent refusal of
consent, and the agency deems the evaluation or reevaluation necessary
in order to provide FAPE, the agency would use the State mechanism to
pursue the evaluation. If State law permits agencies to override a
parental refusal to consent to an evaluation or reevaluation, but does
not specify the procedures to use, and the agency determines that the
evaluation or reevaluation was necessary in order to provide FAPE to
the child, the agency would use the due process and mediation
procedures under Part B of the Act.
    Of course, if an agency proposed an evaluation or reevaluation and
the parent refused consent, the agency could reconsider whether its
proposed evaluation or reevaluation was necessary, if the circumstances
warrant. However, in light of the general decision to remove all notes
from the regulations implementing Part B of the Act, the notes should
be removed.
    Paragraph (c) of this section addresses situations in which an
agency seeks parental consent for a reevaluation, but the parent fails
to respond. Given the importance of parental involvement, the
procedures a public agency must use to demonstrate that it has taken
reasonable measures to obtain parental consent pursuant to
Sec. 300.505(d) should be consistent with the procedures in
Sec. 300.345(d) that a public agency must use to inform and encourage
parents to attend IEP meetings. The methods described in
Sec. 300.345(d) are examples of how to attempt and document the steps
that the public agency has taken to obtain parental participation in an
IEP meeting, and are applicable to a public agency's attempts to obtain
parental consent pursuant to 34 CFR 300.505.
    Section 300.345(d) does not require a public agency to take all of
the steps mentioned before conducting the meeting. A public agency may
use a method which is different from the ones listed at Sec. 300.345(d)
to demonstrate that it has attempted to obtain parental consent as long
as it can demonstrate that its methods were appropriate. Therefore, the
language concerning the use of the Sec. 300.345(d) procedures to meet
the reasonable measure requirement of Sec. 300.505(c) should be
retained.
    Under paragraph (d) of this section if a State adopts consent
requirements in addition to those required in Sec. 300.505(a)(1),
public agencies are not excused from their obligation to provide FAPE
because a parent refuses to consent unless the public agency has taken
the steps necessary to resolve the matter. In order to resolve the
disagreement with the parent, it is appropriate for the public agency
to use informal means initially, such as a parent conference. However,
if these informal means prove unsuccessful, the public agency must use
its override procedures if it continues to believe that the disputed
service or activity is needed in order for the child to receive FAPE.
    Paragraph (e) of this section contained a typographical error
because it should have referred to consent required under paragraphs
(a) and (d), consistent with the prior regulations. With regard to
paragraph (e), it is important to recognize that except for the service
or activity for which consent is required under paragraphs (a) and (d),
parent refusal to consent to one service or benefit may not be used to
deny the parent or child any other service or benefit available to
them. For example, if a State requires parental consent to the
provision of all services identified in the IEP, and the parent refuses
to consent to physical therapy services included in the IEP, the agency
is not relieved of its obligation to implement those portions of the
IEP to which the parent consents. Similarly, a parent

[[Page 12611]]

refusal to consent to a reevaluation may not be used to deny a child
the right to participate in a class trip. A parent refusal to consent
to the collection of additional data that a public agency believes is
needed as a part of a reevaluation may not be used to deny the child
the services that are not in dispute. In addition, a parent refusal to
consent to the collection of additional data that the agency thinks
necessary to determine whether the child continues to be a child with a
disability may not result in the exclusion of the child from special
education and related services because Sec. 300.534(c)(1), which
reflects the statutory requirements of section 614(c)(5), requires a
full evaluation before determining that a child is no longer a child
with a disability. To make this point more clearly, paragraph (e) would
be revised.
    Changes: Section 300.505(a)(1) has been amended to refer to
``informed parent consent,'' and to delete the unnecessary reference to
programs providing special education and related services. A reference
to reevaluation has been added to paragraph (a)(1)(i), paragraph
(a)(1)(iii) has been deleted, and a new paragraph (a)(3) added to
specify that parental consent is not required before reviewing existing
evaluation data as a part of an evaluation or reevaluation or for
administering a test used with all children unless consent is required
of all parents. Paragraph (e) has been revised to provide that a public
agency may not use a parental refusal to consent to one service or
benefit under paragraphs (a) and (d) to deny the parent or child
another service, benefit, or activity, except as may be required by
these regulations. The notes following this section have been removed.

Mediation (Sec. 300.506)

    Comment: Several commenters asked that the terms ``SEA'' and
``LEA'' be used in lieu of ``public agency'' since the statute uses
those terms. There were also requests for a clarification of the
State's responsibility for the costs of the mediation process.
    There were a few requests for clarification of who may be
mediators, such as whether or not former LEA employees would be able to
be mediators. There were comments asking for more restrictions on who
could be a mediator and comments asking for fewer restrictions,
especially where a public school district already has certain mediators
under state law or regulation. The latter commenters believe the
restrictions should only address employees of an agency that is
providing direct services to a child who is the subject of the
mediation or any state agency described in Sec. 300.20.
    There was also the suggestion that LEA employees be permitted to
serve as mediators, however, either party would have the right to
reject such selection. The commenters pointed out that there is no
similar prohibition against LEA employees being hearing officers and
several questioned whether the restrictions were therefore necessary.
Some commenters suggested that the regulation make clear that multiple
mediators or mediation panels are allowed, i.e., that a single mediator
is not required for each mediation.
    Other comments recommended that Note 1 be deleted, while others
asked that it be included in the text of the regulation. With regard to
Note 1, for situations in which agreement on a mediator could not be
reached, commenters sought additional guidance in the regulation.
    Other suggestions for the mediation process included promoting
mediation even before a due process hearing is requested and allowing
an LEA to select a mediator who it believes is best able to resolve
issues in dispute. There were comments that mediation should be allowed
to occur via telephone when necessary. Several commenters asked that
the agreement reached in mediation be added to the child's IEP as soon
as possible after the agreement is reached, however not later than 10
days from the agreement. Commenters also requested that the regulation
specify that the written mediation agreement would be as enforceable as
a due process hearing decision, and that mediation discussions may be
disclosed in any proceeding brought to enforce a mediation agreement.
    Some comments stated that there appeared to be a conflict between
Secs. 300.506(d)(1) and 300.506(d)(2). The former allows a public
agency to require parents who elect not to go to mediation to meet with
a disinterested party to learn about the mediation process. The latter
states that if a parent does not participate in the informational
meeting regarding mediation the public agency may not deny or delay the
parent's right to due process hearing. The comments suggested changing
Sec. 300.506(d)(1) to state that the procedures may ``request'' not
``require'' the parents to learn about mediation. A few comments
requested a specific definition of the term ``disinterested party'' and
parent information and training centers, as well as clarification of
any supervision required over disinterested parties. There were also
comments which asked that LEAs be required to mediate if the parents
agree, as well as be required to attend a mediation informational
meeting if it chooses not to mediate.
    Discussion: Mediation is an important alternative system for
resolution of disputes under Part B. However, in order for mediation to
be effective, it must be an attractive alternative to both public
agencies and parents and it must be an impartial system which brings
the proper parties into a confidential discussion of the issues and
allows for a binding agreement that resolves the dispute.
    The statute clearly states that the option of mediation must be
available whenever a due process hearing is requested. No further
requirement would be added to the regulations. However, States or other
public agencies are strongly encouraged to offer mediation or other
alternative systems of dispute resolution prior to the filing of a
request for a due process hearing, and whenever a dispute arises.
    An expanded use of mediation should enable prompt resolution of
disputes and lead to a decrease in the use of costly and divisive due
process proceedings and civil litigation. Mediation may also be useful
in resolving State complaints under Secs. 300.660-300.662.
    The term ``public agency'' in the regulation appropriately includes
State and local educational agencies as well as other agencies in the
State that may have responsibility for the education of children with
disabilities because it ensures access to the mediation process,
regardless of the agency that provides educational services. The
requirement that the State bear the cost of the mediation process is
clearly set out in the regulation; however, the regulation should be
revised to correctly refer to the meetings to encourage the use of
mediation. In addition, the potential savings of mediation, when
compared to litigation, make it an attractive, low-cost option for most
public agencies.
    While there is nothing in the Part B regulations that precludes
parents and LEA employees from attempting to resolve disputes through
an informal process, the use of current LEA employees as mediators
would make mediation a much less attractive alternative to parents. The
regulatory provisions regarding the impartiality of mediators and the
requirement of specialized expertise in laws and regulations relating
to the provision of special education and related services are intended
to be more stringent than the Federal requirements for impartial
hearing officers to ensure that mediation is a more attractive option
for parents, and an effective option for both parties. The use of a
single mediator in the

[[Page 12612]]

mediation process is important for clear communication and
accountability.
    Paragraph (b)(1)(iii) of this section, which repeats statutory
language, is clear that each mediation be conducted by one mediator, as
opposed to a panel or multiple mediators.
    Another factor that will determine the success of mediation within
a State is the selection process for mediators. It is important to note
that with respect to paragraph (b)(2) of this section, the Senate and
House Committee Reports on Pub. L. 105-17 include the following
statement:

    * * * the bill provides that the State shall maintain a list of
individuals who are qualified mediators. The Committee intends that
whenever such a mediator is not selected on a random basis from that
list, both the parents and the agency are involved in selecting the
mediator, and are in agreement with the individual who is selected.
(S. Rep. No. 105-17, p. 27 (1997); H. Rep. No. 105-95, p. 106
(1997).)

    The success of a mediation system will be closely related to both
parties' trust and commitment to the process. The first test of that
process will be the selection of the mediator. Parties that mistrust
the mediator selection process may be less likely to reach agreement on
substantive issues. Therefore, reflecting the language of the
Committees' reports on this topic, a change should be made to the
regulation to specify that if a mediator is not selected on a random
basis from the State-maintained list, both parties are involved in
selecting the mediator and are in agreement with the selection of the
individual who will mediate.
    Like hearing officers, mediators must be able to be paid by the
State, without impacting their impartiality. Language similar to that
used for impartial hearing officers should be added to the regulation
to clarify that even though a mediator is paid for his or her services
as a mediator, such payment does not make that mediator an employee for
purposes of impartiality.
    The regulatory requirement for the use of a qualified mediator
instructed in effective mediation techniques will ensure that decisions
about the effectiveness of specific techniques, such as the need for
face-to-face negotiations, telephone communications, or IEP
implementation provisions, will be based upon the mediator's
independent judgment and expertise. Therefore, it is not necessary to
regulate on these issues.
    The enforceability of a mediation agreement, like the
enforceability of other binding agreements, including settlement
agreements, will be based upon applicable State and Federal law. With
regard to the provision in paragraph (b)(6) of this section that
mediation discussions must be confidential and may not be used in any
subsequent due process hearings or civil proceedings, the Senate and
House Committee Reports on Pub. L. 105-17 note that ``nothing in this
bill shall supersede any parental access rights under the Family
Educational Rights and Privacy Act of 1974 or foreclose access to
information otherwise available to the parties.'' (S. Rep. No. 105-17,
p. 27 (1997); H. Rep. No. 105-95, p. 107 (1997)). The Reports also
include an example of a confidentiality pledge, which makes clear that
the intent of this provision is to protect discussions that occur in
the mediation process from use in subsequent due process hearings and
civil proceedings under the Act, and not to exempt from discovery,
because it was disclosed during mediation, information that otherwise
would be subject to discovery.
    Regarding the perceived conflict between Sec. 300.506(d)(1) and
(d)(2), the mediation process, including meetings to discuss the
benefits of mediation, should not be used to deny or delay parents' due
process hearing rights. The purpose behind Sec. 300.506(d)(2) is to
ensure that in situations where parents are unwilling or unable to
cooperate with a public agency regarding a meeting to discuss the
benefits of mediation, there is still a timely resolution of the due
process hearing. In general, a hearing officer should not extend the
timelines for a due process hearing based on the fact that there is a
pending mediation in the case unless both parties have agreed to that
extension. If mediation is used in the resolution of a State complaint,
it should not be viewed as creating, in and of itself, an exceptional
circumstance justifying an extension of the 60 day time line. While the
State or local educational agency may require that the parent attend
the meeting to receive an explanation of the benefits of mediation and
to encourage its use, a parent's failure to attend this meeting prior
to the due process hearing should not be used to justify delay or
denial of the hearing or the hearing decision.
    It is not necessary to define the terms ``parent training and
information centers'' or ``community parent resource center'' since
they are established by statute. To allow flexibility with regard to
the designation of a ``disinterested party'' by the parent
organizations or an appropriate alternative dispute resolution entity,
no definition would be provided. Consistent with the general decision
to remove all notes from these final regulations, Notes 1 and 2 would
be removed.
    Changes: A new paragraph (b)(2)(ii) is added to specify that the
mediator be selected from the list on a random basis, such as a
rotation, or that both parties are involved in selecting the mediator
and agree with the selection of the individual who will mediate. Notes
1 and 2 have been removed. Paragraph (b)(3) has been revised to refer
to the meetings to encourage the use of mediation.
    Another new paragraph (c)(2) is added to clarify that payment for
mediator services does not make the mediator an employee for purposes
of impartiality.

Impartial Due Process Hearing; Parent Notice (Sec. 300.507)

    Comment: There were several comments requesting changes to
Sec. 300.507. With regard to the model form for hearing requests, some
commenters requested that where the public agency requests the due
process hearing, the public agency would provide the notice requested
of the parents at Sec. 300.507(c)(1) and (c)(2). Others requested that
parent information and training centers and the general public be
required to assist in developing the model form required in
Sec. 300.507(a)(3).
    The Department also received comments asking that
Sec. 300.507(c)(4) be modified so that LEAs can ask a hearing officer
to delay a due process hearing for a reasonable period of time until
the parents provide the district with the required pre-hearing notice.
Some commenters suggested that parents be informed of free and low cost
legal advocacy as a matter of routine, not just after requesting a due
process hearing. Other commenters sought additional language specifying
that LEAs be barred from coming to a due process hearing with a new IEP
developed without direct parental input and based on the information
given by the parents in the hearing request.
    Commenters also requested that the statutory provisions regarding
attorneys' fees at sections 615(i)(3)(D) and (F) of the Act be included
in this regulation. Others requested that the term ``or refusal to
initiate or change'' be added to Sec. 300.507(c)(2)(iv).
    Some commenters asked that the Department delete Note 1, while
others asked that Note 1 be written into the regulation itself.
    Discussion: The prior written notice requirement of Sec. 300.503 is
sufficient to inform parents of what the public agency is proposing.
Therefore, any hearing request by the public agency on

[[Page 12613]]

that proposal would not require an additional notice by the agency.
Another notice would be repetitive and overly burdensome. Likewise,
many public agencies already have existing model forms for hearing
requests. Since the statute and regulation specify the information
which parents must disclose in the hearing request, additional input
from parent information and training centers or the general public is
unnecessary and would create additional burdens without much benefit.
    The Senate and House Committee Reports on Pub. L. 105-17 note that
attorneys' fees to prevailing parents may be reduced if the attorney
representing the parents did not provide the public agency with
specific information about the child and the basis of the dispute
described in paragraphs (c)(1) and (2) of this section. With respect to
the intent of the new notice provision, the Reports include the
following statement:

    * * * The Committee believes that the addition of this provision
will facilitate an early opportunity for schools and parents to
develop a common frame of reference about problems and potential
problems that may remove the need to proceed to due process and
instead foster a partnership to resolve problems. (S. Rep. No. 105-
17, p. 25 (1997); H. R. Rep. No. 105-95, p. 105 (1997)).

    The changes to Sec. 300.513 clarify the potential for reduction of
attorneys' fees in cases where proper notice is not given by the
parents' attorney. Therefore, a reference to attorneys' fees is not
necessary here.
    Matters such as what evidence should and should not be presented
and requests for extensions of time, should be handled on a case-by-
case basis by the impartial hearing officer presiding over the hearing.
It has also been the Department's long-standing position that Part B of
the Act and the regulations under Part B do not provide any authority
for a public agency to deny a parent's request for an impartial due
process hearing, even if the agency believes that the parent's issues
are not new. Thus, the determination of whether or not a parent's
request for a hearing is based on new issues can only be made by an
impartial hearing officer.
    The request for modification of the regulation at
Sec. 300.507(c)(2)(iv) to include situations where the nature of the
problem is the public agency's refusal to initiate or change the
provision of a free appropriate public education, is consistent with
the requirements of Sec. 300.507(a)(1). In light of the general
decision to remove all notes from these final regulations, Notes 1 and
2 should be removed.
    Changes: Section 300.507(c)(2)(iv) is amended to make clear that a
problem may have arisen as a result of an agency's proposal or refusal
to act. Notes 1 and 2 have been removed.

Impartial Hearing Officer (Sec. 300.508)

    Comment: The Department received several comments requesting
amendments to the regulation on hearing officers in two main aspects--
qualifications and public notice of such qualifications. In the first
area, commenters stated that persons who are employees of any LEA,
persons who were employees of an SEA or LEA and were involved in the
care or education of any child in the past 5 years, and attorneys who
represent primarily the school district or parents cannot be hearing
officers. In the second area, commenters requested that hearing
officers be required to take training and competency examinations
designed by this Department and supplemented with State-specific
elements. Several commenters also want SEAs to publish the criteria
they use to choose hearing officers and that the list of all the
hearing officers and their credentials be provided to parents
requesting a due process hearing. Commenters also suggested that the
regulation require that if a sublist of hearing officers is generated
for a particular hearing, the parents or their representative be
present at the meetings where the sublist is selected. Further,
commenters asked that the statement of the qualifications of hearing
officers be updated annually and the impartiality of a hearing officer
be determined by an objective standard, such as a State's Code of
Judicial Conduct.
    Discussion: The regulation, in conjunction with State ethics
requirements for attorneys and judges, are sufficient to address the
concerns raised by commenters with regard to potential conflicts. In
States where there are no formal ethical standards for administrative
hearing officers, the issue should be addressed within the State. A
prior employee of an LEA or SEA should not be barred from serving as a
hearing officer where there is no personal or professional interest
that would conflict with his or her objectivity in the hearing. Hearing
officers, like judges, are capable of making independent determinations
of potential conflicts of interest, including a determination of
whether he or she has knowledge or information about a particular child
derived from outside the hearing process which would impact upon his or
her impartiality.
    Although numerous commenters asked for national standards,
training, and examinations for impartial hearing officers, decisions
about training and hearing officer selection, including the use of
sublists, should be left to States. Since hearing officers' decisions
are subject to judicial review, there is a strong incentive for States
to choose qualified hearing officers, conduct appropriate training and
establish standards of expertise. Hearing decisions that are not
soundly decided will lead to further litigation, be more likely to be
reversed and create higher costs. In addition, reviewing courts are
less likely to give judicial deference to a hearing officer where his
or her qualifications show no expertise in the area of special
education.
    Changes: None.

Hearing Rights (Sec. 300.509)

    Comment: There were several specific comments regarding hearing
rights. With respect to the additional disclosure of information, some
commenters stated that the time frame should be 5 school days, not
business days, prior to a hearing, and the recommendations should be
clarified as written recommendations which may be summaries of oral
recommendations. A few commenters also suggested that
Sec. 300.509(a)(3) and (b) use the same standard of business days to
avoid confusion.
    With respect to the parental hearing rights, some commenters
suggested that since it sometimes not in the interest of the child to
be present at the hearing, the parents should have the right to have
the child who is the subject of the hearing present for only a portion
of the hearing. There were also comments that a free written record is
too expensive for States to provide, as well as comments that a
verbatim recording should be at no cost to the parents.
    With respect to general hearing rights, commenters asked that
evidence that has not been disclosed within the appropriate time frame
not be allowed unless agreed to by both parties or for good cause shown
for the failure to disclose in advance. Commenters also asked that the
regulations state that the only pre-hearing discovery allowed is the
exchange of information set forth in Sec. 300.509. Finally, commenters
requested that hearing decisions be made available to the public at
least on a quarterly basis.
    Discussion: The establishment of two separate time frames for the
prehearing disclosure of documents because the term ``5 business days''
is used in Sec. 300.509(b)(1) and the term ``5 days'' is used in
paragraph (a)(3) of this section will lead to confusion and additional
litigation and costs. In order to prevent

[[Page 12614]]

this, the time frame for disclosure would be set to 5 business days
prior to the hearing. This change would be consistent with prior
interpretations by the Department, which recognized that the intent of
prehearing disclosure is to avoid surprise by either party at the
hearing. The hearing officer has discretion to determine the
consequences of not meeting the disclosure time line, and may prohibit
the introduction of the evidence or may allow the rescheduling of the
hearing so that timely disclosure is possible.
    Some States chose to allow the use of other discovery procedures
prior to a due process hearing. States should continue to have this
discretion as they are not prohibited from doing so by Part B.
    Access to a written verbatim record of the hearing is vital for
parents to exercise their full due process rights. Although there are
costs associated with the statutorily mandated shift of the choice
between an electronic or written record of the hearing from the public
agency, as newer technologies are better capable of generating accurate
transcriptions, these costs will decrease.
    Parents must continue to have the choice to have the child be
present for all or part of the hearing, at their discretion. For some
youth with disabilities, observing and even participating in the
hearing will be a self-empowering experience in which they can learn to
advocate for themselves. This long-standing choice should not be taken
away from parents. This choice takes on added significance in light of
the new provisions that allow States to transfer parental rights to
students at the age of majority. Under this new authority, there may be
more situations where students will have to be present at and
participate in due process hearings.
    Implicit in the requirement that hearing decisions be made
available to the public, is the requirement that they be made available
within a reasonable amount of time. Therefore, no specific time
requirement is needed in the regulation.
    Changes: Paragraph (a)(3) of this section is changed to require
disclosure at least 5 business days before the hearing.

Finality of Decision; Appeal; Impartial Review (Sec. 300.510)

    Comment: Several comments regarding the availability of SEA hearing
decisions, asked that such decisions be distributed directly to various
organizations and allow parents to receive the findings under
Sec. 300.510(b)(2)(vi) in an electronic format. Other comments
requested that hearing officers be allowed to amend decisions once they
are final to correct for technical errors, similar to Rule 60 of the
Federal Rules of Civil Procedure.
    One commenter asked that Notes 1 and 2 be incorporated into the
regulation itself and several commenters pointed out that the reference
in Sec. 300.510(b)(2)(iii) should be to Sec. 300.509 not Sec. 300.508.
    Discussion: There were two typographical errors in the proposed
regulation with respect to references to other sections. In
Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508 should be to
Sec. 300.509 consistent with the prior regulatory reference. In
Sec. 300.510(d), the reference to Sec. 300.511 should be to
Sec. 300.512, also consistent with the prior regulatory reference.
    The reference in Sec. 300.510(b)(vi) to written findings and
decision should be changed to be consistent with Sec. 300.509(a)(5) and
allow the choice of electronic or written findings of fact and
decision.
    It is not necessary to regulate on whether hearing officers are
allowed to amend their decisions for technical errors. This matter is
left to the discretion of hearing officers and States; however, proper
notice should be given to parents if State procedures allow for
amendments and a reconsideration process may not delay or deny parents'
right to a decision within the time periods specified for hearings and
appeals.
    It has been the Department's position that the SEA may conduct its
review either directly or through another State agency acting on its
behalf. However, the SEA remains responsible for the final decision on
review. In addition, all parties have the right to continue to be
represented by counsel at the State administrative review level,
whether or not the reviewing official determines that a further hearing
is necessary. If the reviewing official decides to hold a hearing to
receive additional evidence, the other rights in Sec. 300.509 relating
to hearings also apply. However, in light of the general decision to
remove all notes from these final regulations, Notes 1 and 2 would be
removed.
    Changes: In Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508
has been changed to Sec. 300.509. In Sec. 300.510(d), the reference to
Sec. 300.511 has been changed to Sec. 300.512. The reference in
Sec. 300.510(b)(2)(vi) to written findings and decision has been
changed to be consistent with Sec. 300.509(a)(5) and allow the choice
of ``electronic or written findings of fact and decision.'' Notes 1 and
2 have been removed.

Timelines and Convenience of Hearings and reviews (Sec. 300.511)

    Comment: A few comments were received regarding Sec. 300.511 which
requested that (1) the 45 and 30 day timelines be specified as 45 and
30 school days; (2) it be clear that hearing officers have discretion
to deny requests for extensions of time since extensions may delay
hearings for a long time; and (3) delete Sec. 300.511(a) or change it
to make the SEA responsible for timelines.
    Discussion: There is not sufficient consensus or evidence of need
to change the long-standing interpretation of the hearing and review
timelines from calendar days to ``school days.'' In addition, the
potential impact of no ``school days'' during the summer months would
make the delay in parents' access to due process hearings and decisions
unreasonable.
    The use of the word ``may'' instead of ``shall'' in
Sec. 300.511(c), means that the granting of specific extensions of time
are at the discretion of the hearing or review officer. It is not
necessary to clarify that this discretion means that requests for
extensions can be denied as well as granted since this is implicit in
the regulation.
    There is no need to change the regulation to reflect the State's
responsibility for compliance with timelines because in addition to the
language in this regulation, Sec. 300.600 continues to hold the State
ultimately responsible for noncompliance.
    Changes: None.

Civil Action (Sec. 300.512)

    Comment: A commenter pointed out that Sec. 300.512 had a few
typographical errors since the reference to Sec. 300.510(b)(2) should
be to Sec. 300.510(b)(1) and the reference to Sec. 300.510(e) should be
to Sec. 300.510(b).
    Discussion: There were typographical errors in this section in the
NPRM, however the reference to Sec. 300.510(b)(2) should be to
Sec. 300.510(b) and the reference to Sec. 300.510(e) should be to
Sec. 300.510(b).
    Changes: The reference to Sec. 300.510(b)(2) has been changed to
Sec. 300.510(b) and the reference to Sec. 300.510(e) has been changed
to Sec. 300.510(b).

Attorneys' Fees (Sec. 300.513)

    Comment: Many commenters requested that Sec. 300.513 include the
provisions from sections 615(i)(3)(D) and (F) of the Act regarding
instances where attorneys fees are prohibited or may be reduced.
Several commenters also asked that a note be added to state that
attorneys' fees may be awarded if

[[Page 12615]]

an IEP team meeting occurs after a hearing request but before the
hearing.
    Several commenters requested that the note on hearing officers be
deleted, stating that the awarding of attorneys' fees should be left to
the courts. One commenter stated that if hearing officers are allowed
to award attorneys' fees, they should be trained in, and use, the
criteria used by Federal courts in determining attorneys' fees.
    One commenter also asked that Sec. 300.513(b) be deleted.
    Discussion: By inserting all the statutory provisions regarding
attorneys' fees into the regulations, most of the suggestions will be
adequately addressed and additional clarity will be added.
    Based upon the absence of consensus, the Department will continue
to allow maximum flexibility to States for structuring the process by
which parents who are prevailing parties under Part B of the Act may
request attorneys' fees reimbursement.
    It is important to maintain paragraph (b)(1) of this section,
because the limited Federal resources under the Act should be used to
provide special education and related services and not be used to
promote litigation of disputes. Further, that paragraph has been
modified to make it clear that the prohibition against using Part B
funds for attorney's fees also applies to the related costs of a party
in an action or proceeding, such as depositions, expert witnesses,
settlements, and other related costs. In addition, a new paragraph
(b)(2) of this section has been added to clarify that the prohibition
in paragraph (b)(1) does not preclude a public agency from using funds
under Part B of the Act to conduct an action or preceding under section
615 of the Act, such as the cost of paying a hearing officer and
providing the place for conducting the action or proceeding.
    In light of the general decision to remove all notes from the final
regulations under the Act, the note following this section in the NPRM
would be removed. The proposed note was merely intended to suggest that
States could choose as a matter of State law to permit hearing officers
to award attorneys' fees to parents who are prevailing parties under
Part B of the Act, and not to require that they do so, or imply that
IDEA would be the source of the authority for granting hearing officers
that role. If a State allows hearing officer's to award attorney's
fees, requirements regarding training on attorneys fees would be a
State matter.
    Changes: Paragraph (b) has been revised to prohibit use of funds
provided under Part B for related costs. The regulation has been
amended to include all of the provisions of section 615(i)(3)(C)-(G) of
the Act. The note following this section has been removed.

Child's Status During Proceedings (Sec. 300.514)

    Comment: Although a few commenters agreed with the provision in
Sec. 300.514(c), many commenters objected to it. Section 300.514(c)
states that if the decision in a due process hearing or administrative
appeal agrees with the parents that a change of placement is
appropriate, the decision must be treated as an agreement between the
State or local agency and the parents for purposes of maintaining the
child's placement pursuant to Sec. 300.514(a). Commenters saw this
provision as one-sided and suggested that it be limited to where there
is agreement by all the parties. In the alternative, commenters
suggested that the provision be deleted and that decisions as to
whether a hearing officer's or review official's decision constitutes
an agreement be left to the courts.
    Commenters requested a definition of the term ``current
placement,'' with some suggesting that the definition include the
current location where the child receives services.
    Some of the comments indicated confusion as to which proceedings
are referenced in Sec. 300.514. Commenters were unsure whether the
regulation references only the administrative and judicial due process
proceedings established by section 615 of the Act, or also the State
complaint procedures established by Secs. 300.660-300.662.
    Commenters requested that when referring to parents in this
regulation, students who have reached the age of majority also be
referenced. Further clarification also was requested regarding a
parent's right to remove his or her child from the current placement
and place them elsewhere during the pendency of the applicable
proceedings if the parent believes FAPE is not being provided.
    Discussion: The provisions maintaining the child's current
educational placement pending proceedings regarding a complaint is a
right afforded to parents to protect children with disabilities from
being subjected to a new program that parents believe to be
inappropriate. The provisions are intended to apply only to the due
process proceedings and the subsequent civil action, if any, brought
under section 615 of the Act, and not to the State complaint procedures
in Secs. 300.660-300.662, which are authorized by the General Education
Provisions Act. This position is consistent with the Department's prior
interpretation.
    It is important to note that these provisions would only apply
where there is a dispute between the parent and the public agency that
is the subject of administrative or judicial proceedings. If there is
no such dispute that is the subject of a proceeding, then the placement
may be changed and this section does not apply.
    This section does not permit a child's placement to be changed by
the public agency during proceedings regarding a complaint, unless the
parents and agency agree otherwise. While the placement may not be
changed unilaterally by the public agency, this does not preclude the
parent from changing the placement at their own expense and risk. It is
also important to note that this provision does not preclude the agency
from using its normal procedures for dealing with children who are
endangering themselves or others, including, as appropriate to the
circumstances, seeking injunctive relief from a court of competent
jurisdiction. In addition, even where there is disagreement between the
parents and the public agency, the provisions of Sec. 300.521 still
allow a hearing officer to change the placement of a child with a
disability who is substantially likely to injure self or others to an
appropriate interim alternative educational setting for not more than
45 days.
    Paragraph (c) is based on long-standing judicial interpretation of
the Act's pendency provision that when a State hearing officer's or
State review official's decision is in agreement with parents that a
change in placement is appropriate, that decision constitutes an
agreement by the State agency and the parents for purposes of
determining the child's current placement during subsequent appeals.
See, e.g., Burlington School Committee v. Dept. Of Educ., 471 U.S. 359,
371 (1985); Susquentia School District v. Raelee S., 96 F.3d 78, 84
(3rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990). Paragraph (c) of this section
incorporates this interpretation. However, this provision does not
limit either party's right to seek appropriate judicial review under
Sec. 300.512, it only shifts responsibility for maintaining the
parent's proposed placement to the public agency while an appeal is
pending in those instances in which the State hearing officer or State
review official determines that the parent's proposed change of
placement is appropriate.

[[Page 12616]]

    The term ``current placement'' is not readily defined. While it
includes the IEP and the setting in which the IEP is implemented, such
as a regular classroom or a self-contained classroom, the term is
generally not considered to be location-specific. In addition, it is
not intended that a child with disabilities remain in a specific grade
and class pending an appeal if he or she would be eligible to proceed
to the next grade and the corresponding classroom within that grade.
    There is no need to add a reference to children with disabilities
who reach the age of majority in this regulation. The transfer of
parental rights at the age of majority is discussed in another section
of the regulations, Sec. 300.517, and will not be referenced in every
other section to which it applies.
    There is also no need to address the parents' ability to change the
child's placement unilaterally at their own expense since this issue is
addressed in Sec. 300.403.
    Consistent with the general decision to remove all notes from these
regulations, the note would be removed.
    Changes: The note has been removed.

Surrogate Parents (Sec. 300.515)

    Comment: Several commenters suggested that the regulation include
clear procedures for terminating surrogate parents who do not
appropriately fulfill their responsibilities and include in those
procedures the consideration of the student's opinion. Relatedly, some
commenters recommended that the regulation state that LEAs cannot
impose sanctions or threaten sanctions if surrogate parents make
decisions the LEA opposes.
    There were also comments regarding the selection of surrogate
parents. Some commenters asked that surrogates not be employees of
private agencies who are involved in the education or care of the child
since there is a potential conflict of interest where the public agency
contracts with and pays the private agencies to provide services for
the child. Another suggestion was that child welfare workers not be
surrogate parents, but that foster parents be allowed, if qualified.
One commenter agreed that representatives of the welfare system should
not be surrogate parents but believed foster care representatives
should also be barred. One commenter asked that the regulation require
public agencies to assign surrogate parents designated by a parent,
provided such persons meet the qualifications, thereby giving parents
the right to voluntarily designate a surrogate parent and rescind such
designation at any time.
    Some comments also stated that Sec. 300.19(b)(2) conflicts with
Sec. 300.515 because in Sec. 300.515 the appointment of a surrogate
parent is mandatory if the child is a ward of the State, regardless of
whether the child has a foster parent who meets the ``parent'' criteria
in Sec. 300.19(b)(2). The comments recommended including an exception
from the mandate of surrogate parent appointments for any ward of the
State whose foster parent is a parent in accordance with
Sec. 300.19(b)(2).
    Discussion: There is insufficient evidence of a wide-spread problem
of irresponsible surrogate parents which would require regulatory
procedures for termination. Therefore, the issue of the need for
procedures for termination of surrogates is left to the discretion of
States. There is also insufficient evidence of public agency
retaliation against surrogate parents. Since there are other civil
rights statutes and regulations that prohibit discrimination, including
retaliation, against individuals who exercise their rights under
Federal law, including the right of individuals to assist individuals
with disabilities without retaliation or coercion, there is no need to
address this issue in this regulation.
    Proposed paragraph (c)(2)(i) of this section reflected the
statutory requirement at section 615(b)(2) that a surrogate parent not
be an employee of the SEA, LEA or any other agency that is involved in
the education or care of the child. It is very important that the
surrogate parent adequately represents the educational interest of the
child, and not the interests of a particular agency. In the case of
other governmental agencies, even agencies that are not involved in the
education of the child, there is the possibility of a conflict between
the interest of the child and those of the employee of the agency
because some educational decisions will have an impact on whether an
educational agency or some other governmental agency will be
responsible for paying for services for the child. In situations where
a child is in the care of a nonpublic agency that has no role in the
education of the child, however, an employee of that agency may be the
person best suited to serve as a surrogate for the child because of his
or her knowledge of the child and concern for the child's well-being
and would not, simply by virtue of his or her employment situation,
have an interest that could conflict with the interest of the child. In
such a case, that individual should not be prohibited from serving as a
surrogate as long as he or she had no other interest that conflicts
with the interest of the child and has knowledge and skills that will
ensure adequate representation of the child.
    Paragraph (a) of this section requires that the public agency
ensure that the rights of the child are protected if the child is a
ward of the State. Paragraph (b) sets out that the duty includes a
determination of whether the child needs a surrogate parent and if so,
the assignment of one. The proposed regulation at Sec. 300.19(b)(2) has
been renumbered at Sec. 300.20 and now clarifies that the definition of
a parent may include a foster parent unless State law prohibits it, and
if certain other conditions are met. In situations where a child who is
a ward of the State has a foster parent who meets the definition of
parent in Sec. 300.20 and the foster parent is acting as the parent,
the public agency should determine if there is a need for a surrogate
parent, and whether further steps are necessary to ensure that the
rights of the child are protected. In most cases where the foster
parent meets the definition of a parent and is acting as the parent,
there would be no need to appoint a surrogate, unless the agency
determined that in the particular circumstances of the case a surrogate
was necessary to ensure that the rights of the child were protected.
    Changes: Paragraph (c) has been amended to permit a public agency
to appoint as a surrogate an employee of a nonpublic agency that
provides only non-educational care to the child. Paragraph (d)(1) has
been deleted. Paragraph (d)(2) has been redesignated as paragraph (d)
and the reference to paragraph (d)(1) is deleted.

Transfer of Parental Rights at Age of Majority (Sec. 300.517)

    Comment: There were several comments on the transfer of rights for
incarcerated youths which requested clarification whether the transfer
occurs regardless of age.
    Commenters also requested clarification of what the transfer of
rights to the child means for the parent, i.e., does the parent retain
the right to any of the due process protections.
    Commenters suggested that Sec. 300.517 should refer to
Sec. 300.347(c) which deals with when and how students are to be
notified of their impending transfer of rights. There was also a
request for clarification regarding parental involvement in
modifications to IEPs or placements when there is a bona fide security
or compelling penological interest.
    Commenters also requested guidelines for determining if a student
cannot provide informed consent with respect

[[Page 12617]]

to his or her educational program. Some interpreted the proposed
regulation as requiring a competency determination prior to every
transfer, deemed this unreasonable, and proposed that notice to parents
is sufficient. Some recommended that the IEP team make the decision of
whether a competency assessment is required and appoint a surrogate
when the team decides the child is not able to provide informed consent
for his or her educational program. Several commenters asked why the
term ``another appropriate individual'' was used instead of ``guardian
or surrogate parent'' as defined in Sec. 300.515.
    Some commenters asked that the Department allow a State which
doesn't have a law regarding transfer of rights at age of majority to
implement an interim policy pending legislative change.
    Commenters also recommended that an independent advocate, not a
teacher or LEA administrator but who is paid by the LEA, be available
for each student to whom rights have transferred, to be present at all
IEP discussions when parents are not present so that coercion by the
school is prevented.
    Discussion: It is not necessary to delineate the specific parental
rights that transfer under this section because the statute and
regulations fully set out the rights afforded to parents under Part B.
The statute and paragraph (a)(1) of this section allow States, under
State law, to transfer all parental rights to children with
disabilities who reach the age of majority, with the exception of the
right to notice which is both retained by the parents and transfers to
the student. For children with disabilities who are incarcerated in
adult or juvenile Federal, State or local correctional institutions,
the State, under State law, may transfer all parental rights, including
the notice rights, at the age of majority.
    The IEP provisions regarding notice prior to the age of majority,
do not have to be explained or referenced in this section of the
regulations. While the requirement in Sec. 300.347(c) that beginning at
least one year before the student reaches the age of majority under
State law the IEP must include a statement that the student has been
informed of the rights that will transfer to him or her upon reaching
the age of majority, does relate to this regulation, it is separate and
distinct from the notice provisions in Sec. 300.517(a)(3) requiring
notice to the parent and child at the time of transfer--when the child
actually reaches the age of majority.
    This regulation does not need to address specifically the right to
parental participation in IEP meetings for youth with disabilities
convicted as adult and incarcerated in adults prisons whose parental
rights have not transferred at the age of majority. These individuals
would have the same rights as other youth with disabilities whose
parental rights have not transferred as set out in section
Sec. 300.345. There is also no further need to address IEP and
placement requirements that do not apply to modifications of IEP or
placement for youth with disabilities convicted as an adult and
incarcerated in an adult prison because the provisions are already set
out at Sec. 300.311(c)(2).
    The requirement in paragraph (a) of this section regarding State
provision for transfers of parental rights at the age of majority under
State law generally does not require a statutory change if the State
already has a State law regarding age of majority that applies to all
children (except in cases of incompetency). A State may not transfer
rights at age of majority in the absence of a State law on age of
majority that applies to all children, except those children determined
incompetent under State law.
    With regard to the transfer of rights in situations where the
competency of an individual with a disability is challenged, currently,
most States have laws, rules, and procedures that allow a general
determination of incompetency for an individual with a disability who
has reached the age of majority. These laws and procedures usually
require a formal proceeding and provide for the appointment of a
general guardianship where the individual is found not to be competent
under the applicable legal standard. The transfer of the Part B
parental rights under State law must be consistent with State
competency laws, that is, where parental rights transfer to the
individual at the age of majority, and the individual is found to be
incompetent, the appointed guardian would exercise Part B rights
pursuant to their guardianship. In some States, there may be additional
laws and procedures that allow for a lesser determination of competency
for specific purposes, such as competency for providing informed
consent with respect to the individual's educational program.
    The special rule at Sec. 300.517(b) only applies to States who,
under State law, allow for this lesser determination of competency--a
determination of the ability to provide informed consent with respect
to the educational program of the student. Under the provision in the
special rule that specifies appointing ``the parent, or, if the parent
is not available, another appropriate individual,'' a guardian or
surrogate parent could be an appropriate individual to represent the
educational interests of the student.
    Changes: Paragraph (b) has been revised to make clear that it only
applies if a State has a State mechanism lesser competency proceedings.

Discipline in general

(For a general overview of major changes in the discipline
provisions from the NPRM to these final regulations, please refer to
the preamble.)

    Comment: Several commenters asked that the regulations include only
the statutory language with respect to all provisions concerning
discipline. The vast majority of commenters, however, asked that the
regulations provide more specificity than the statute regarding
discipline. In many cases, these commenters provided proposals for how
the regulations should interpret the statute. Others asked that the
regulations give schools the ability to deal differently with children
with articulation problems and those with behavior disorders.
    Discussion: Including only the statutory language on discipline in
the final regulations, would not be helpful. The vast majority of the
comments received concerning discipline demonstrate overwhelmingly the
need to regulate in order to clarify the statutory language. To rely
solely on the statutory language would encourage needless litigation.
There is no statutory basis for treating children with disabilities
differently under the discipline provisions because of the nature of
their disability.
    Change: None.

Authority of school personnel (Sec. 300.520)

    Comment: A number of commenters were concerned about the provisions
in the proposed regulations that required development of behavioral
assessment plans and determinations regarding manifestation after the
child had been removed for more than 10 school days in a school year
because they believed that these responses should only be required if
the removal constituted a ``change of placement.'' These commenters
asked that the term ``change of placement'' be defined in the
regulation as indicated in Note 1 to the proposed regulations, in order
to incorporate what they saw as the law's intent to allow building-
level administrators some discretion to temporarily remove a child from
their current educational placement if necessary to prevent disruption
or ensure the safety of other children. Many of these commenters asked
that

[[Page 12618]]

the regulations clarify the distinction between removal of a student
for disciplinary reasons and removal of a student for behavior
management purposes.
    Some commenters supported Note 1 as it clarified that schools
continued to have the ability to remove children with disabilities from
their current placement for limited periods of time when necessary,
even though the child had previously been removed earlier that school
year. Some commenters asked who is contemplated to be making the
determination regarding a change in placement.
    Some commenters proposed modifications to the change of placement
standard described in Note 1 to this section to recognize that there
could be circumstances when continued short term suspensions may be
used without reconvening the IEP team if the IEP team has addressed the
behavior through changes to the IEP or placement and agrees that
removal from the child's current educational placement is an
appropriate intervention.
    Other commenters believed that the regulations should provide even
more latitude to schools about when to convene an IEP meeting to review
or develop a behavior assessment plan and conduct a manifestation
determination, when for example, the behavior occurred repeatedly, or
involved minor offenses. Some of these commenters thought that the IEP
team should have the discretion to determine the need for a behavioral
assessment or behavioral intervention plan on an individual basis.
    Some commenters believed that paragraph (c) of the proposed
regulations (and similar provisions in Secs. 300.121 and 300.523(b))
exceed statutory authority by permitting school authorities to remove a
child with disabilities from the child's current educational placement
for up to 10 school days in a school year before the behavior
assessment plan, services, or manifestation determination must be done.
Many of these commenters indicated that any suspension is an indication
that the child with a disability is having problems and the school
should be required to initiate the behavioral assessment plan at the
earliest indication of difficulty. For the same reasons, these
commenters asked that the regulations not include references to
suspensions without the provision of educational services.
    Some commenters basically agreed with the position taken in
paragraph (c) and Secs. 300.121 and 300.523(b) but believed that the
content of Note 2 should be strengthened by adding support for review
of the IEP for any short suspension that in the judgment of the parent
or other member of the IEP team, requires reconsideration of behavioral
interventions or other IEP revisions. Some commenters noted that
paragraph (c) needed further clarification, as school personnel cannot
reasonably be expected to predict future conduct of a child.
    Discussion: The obligation to conduct a functional behavioral
assessment or to review an existing behavioral intervention plan is not
linked in the statute only to situations that constitute a ``change of
placement.'' As a policy matter, it makes a great deal of sense to
attend to behavior of children with disabilities that is interfering
with their education or that of others, so that the behavior can be
addressed, even when that behavior will not result in a change in
placement. In fact, IDEA now emphasizes a proactive approach to
behaviors that interfere with learning by requiring that, for children
with disabilities whose behavior impedes their learning or that of
others, the IEP team consider, as appropriate, and address in the
child's IEP, ``strategies, including positive behavioral interventions,
strategies, and supports to address the behavior.'' (section
614(d)(3)(B)(i)).
    On the other hand, there is merit to the argument that schools
should not have to repeatedly convene IEP team meetings to address the
behavior of children who already have behavior intervention plans,
unless there is a need. The position that services and the development
of a behavioral assessment plan are not triggered if a child with
disabilities is removed from his or her current placement for 10 school
days or less in a given school year is based on the language of the
statute at section 612(a)(1)(A) and section 615(k)(1)(B), as
interpreted in light of the legislative history of the Act, which notes
that the statute was designed to ``reinforce and clarify the
understanding of Federal policy on this matter, which is currently
found in the statute, case law, regulations, and informal policy
guidance.'' (S. Rep. No. 105-17, p. 28; H.R. Rep. No. 105-95, p. 108
(1997)).
    In light of the Department's longstanding position that children
with disabilities could be removed from their current educational
placement for not more than 10 consecutive school days without
educational services, the 10 day in a school year window before the
educational services and behavioral assessment plan are triggered is a
reasonable interpretation of the statute. This interpretation gives
school officials reasonable flexibility for dealing with minor
infractions of school rules by children with disabilities, yet ensures
that children with disabilities are not cut off from educational
services and that their behavior is appropriately addressed.
    In order to clarify the ability of school personnel to temporarily
remove a child from the current educational placement when necessary to
ensure the safety of other children or to prevent disruption of the
learning environment, the concept of ``change of placement'' that was
referred to in Note 1 to this section in the NPRM should be
incorporated into the regulations. The Department has long interpreted
the IDEA to permit schools to remove a child with a disability from his
or her current placement when necessary, even though the child had
previously been removed earlier that school year, as long as the
removal does not constitute a ``change of placement.''
    The ``change of placement'' description will also make clear that
the new statutory language at section 612(k)(1)(A) of the Act regarding
the authority of school personnel to remove children with disabilities
for not more than 10 school days, to the same extent as nondisabled
children, does not permit using repeated disciplinary removals of 10
school days or less as a means of avoiding the normal change of
placement protections under Part B. Whether a pattern of removals
constitutes a ``change of placement'' would be determined on a case by
case basis by the public agency and subject to review through due
process and judicial proceedings. The regulation concerning change of
placement would only apply to removals for disciplinary reasons.
    If a child who is being removed from his or her current educational
placement has already been the subject of a special IEP team meeting to
develop a behavioral intervention plan or review its implementation,
the IEP team should not have to meet to review that plan as long as the
team members individually review the plan, unless one or more of the
team members believe that the plan needs to be modified. In this way,
the IEP team will be monitoring the implementation of the behavioral
intervention strategies in the IEP or behavioral intervention plan but
would not have to repeatedly reconvene each time removals from the
child's current placement are carried out.
    In light of the comments received and the reasons previously
discussed, proposed Note 2 would be deleted.
    Comments concerning the timing of manifestation determinations, and
changes made in response to those

[[Page 12619]]

comments are addressed in this attachment under Sec. 300.523.
    Change: A new section Sec. 300.519 has been added regarding change
of placement in the context of removals under Secs. 300.520-300.529,
reflecting concepts from proposed note 1. Section 300.520(a)(1) has
been revised to clarify that more than one suspension each of which may
be for up to 10 school days would be permitted in a school year, as
long as repeated suspensions do not constitute a change of placement,
and the removals are consistent with treatment of similarly situated
children without disabilities. Paragraph (a)(1) of this section also
has been revised to clarify the need to provide services when a child
with a disability has been removed for more than 10 school days in a
school year. Section 300.520(b) has been revised to require, when a
child is first removed for more than 10 school days in a school year
and for subsequent removals that constitute a change in placement, an
IEP team meeting to develop a functional behavioral assessment plan and
a subsequent behavioral intervention plan or to review an existing
behavioral intervention plan and its implementation. Section 300.520(c)
has been revised to specify that if the child is subsequently removed
and that removal is not a change in placement, the IEP team does not
have to meet to review the behavioral intervention plan unless one or
more team members believes that modifications are needed to the plan or
the plan's implementation. Proposed Notes 1 and 2 have been deleted.
    Comment: A number of commenters had suggestions for clarifications
of the terms used in paragraph (a). Some wanted the regulations to
specify whether days of suspension includes days of in-school
suspension, bus suspensions, or portions of a school day. Others asked
whether an in-school suspension would be considered a part of the days
of suspension if the student continued to receive the academic
instruction called for in the student's IEP during that period. Others
suggested that the term ``suspension'' be revised to specify that
school personnel can order a short term suspension of 10 or fewer
consecutive school days or cumulative days which may exceed 10 school
days in a school year but do not constitute a change in placement.
    Discussion: An in-school suspension would not be considered a part
of the days of suspension addressed in paragraph (a) of this section as
long as the child is afforded the opportunity to continue to
appropriately progress in the general curriculum, continue to receive
the services specified on his or her IEP and continue to participate
with nondisabled children to the extent they would have in their
current placement. Portions of a school day that a child had been
suspended would be included in determining whether the child had been
removed for more than 10 cumulative school days or subjected to a
change of placement under Sec. 300.519.
    Whether a bus suspension would count as a day of suspension would
depend on whether the bus transportation is a part of the child's IEP.
If the bus transportation is a part of the child's IEP, a bus
suspension would be treated as a suspension under Sec. 300.520 unless
the public agency provides the bus service in some other way, because
that transportation is necessary for the child to obtain access to the
location where all other services will be delivered. If the bus
transportation is not a part of the child's IEP, a bus suspension would
not be a suspension under Sec. 300.520. In those cases, the child and
his or her parents would have the same obligations to get to and from
school as a nondisabled child who had been suspended from the bus.
However, public agencies should attend to whether the behavior on the
bus is similar to behavior in a classroom that is addressed in an IEP
and whether bus behavior should be addressed in the IEP or behavioral
intervention plan for the child.
    It is important that both school personnel and parents understand
that school personnel may remove a child with a disability from his or
her current placement for not more than 10 school days at a single
time, but that there is no specific limit on the number of days in a
school year that a child may be removed. (See, discussion of
Sec. 300.121 regarding when services must be provided.) However, school
authorities may not remove a child with disabilities from the child's
current educational placement if that removal constitutes a change of
placement under Sec. 300.519, unless they are specifically authorized
to do so under Sec. 300.520(a)(2) (school personnel unilateral removal
for weapons and drug offenses) or unless the parents of the child do
not object to a longer removal or the behavior is determined to not be
a manifestation of the child's disability. If a removal does constitute
a change of placement under Sec. 300.519 that is not permitted under
Sec. 300.520(a)(2), school personnel must follow appropriate change of
placement procedures, including prior parent notice, and the right of
the parent to invoke the ``stay-put'' rule of Sec. 300.513.
    Change: Paragraph (a)(1) of this section is revised to specify that
school personnel may order removals of a child with a disability from
the child's current placement for not more than 10 consecutive school
days so long as the removal does not constitute a change in placement
under Sec. 300.519.
    Comment: A number of commenters were concerned that the term
``carries'' in paragraph (a)(2)(i) is too narrow and wanted the
regulation to also cover the child who was in possession of a weapon at
school, including instances when the child obtained the weapon at
school. Others thought that paragraph (a)(2)(i) should apply to
situations when a child knowingly carries a weapon to school, similar
to the standard in paragraph (a)(2)(ii) regarding knowing possession or
use of illegal drugs.
    Discussion: The statutory language ``carries a weapon to school or
to a school function'' is ambiguous as to whether it includes instances
in which a child acquires a weapon while at school. In light of the
clear intent of Congress in the Act to expand the authority of school
personnel to immediately address weapons offenses at school, the
Department's opinion is that this language also covers instances in
which the child is found to have a weapon at school that he or she
obtained while at school.
    Change: None.
    Comment: A number of commenters asked for more clarification about
the various provisions regarding removals from a child's current
placement, suspensions of 10 days or less, 45-day placements, and, for
children whose behavior is determined not a manifestation of their
disability, other disciplinary measures, including the possibility of
expulsion, related to one another. For example, some commenters asked
for specificity about whether a child could be subject to a
disciplinary suspension, including the 45-day interim alternative
educational setting placements more than once in a school year.
    Some commenters asked whether the behavior assessment plan and
manifestation determination need to be done within the first 10 days of
a 45-day placement. Some asked whether schools can keep children with
disabilities in the 45-day placement even if the behavior is determined
to be a manifestation of the child's disability, or even if program
adjustments in the child's ``current placement'' are agreed on before
the expiration of the 45-day placement.
    Commenters also asked how the 45-day placement rules should be
applied when the behavior leading to the removal occurs in the last few
days of the school year. A few asked how 45-

[[Page 12620]]

day placements differ from any other removal for more than 10 days or
whether 45-day placements should merely be considered exceptions to the
``stay put'' provision. Others also inquired about the total number of
days that a child with disabilities could be suspended in a year.
    Others asked for clarity about whether school districts could
suspend beyond the 10 day and 45 day periods mentioned in this section
and whether children with disabilities could ever be expelled. Some
commenters asked that the regulations emphasize the optional nature of
the ability to use the 45-day placement and encourage the return of
children with disabilities to their regular educational placement at
the earliest appropriate time.
    Discussion: If parents and school personnel agree about a proposed
change of placement for disciplinary reasons, the rules concerning the
amount of time that a child with a disability may be removed from his
or her educational placement in Secs. 300.520 and 300.521 do not have
to be used. However, services must be provided consistent with the
requirements of Sec. 300.121(a).
    These regulations do not prohibit a child with a disability from
being subjected to a disciplinary suspension, including more than one
placement in a 45-day interim alternative educational setting in any
given school year, if that is necessary in an individual case (e.g., a
child might be placed in an alternative setting for up to 45 days for
bringing a weapon to school in the fall and for up to 45 days for using
illegal drugs at school in the spring).
    If a child engages in one of the behaviors identified in
Sec. 300.520(a)(2) (carrying a weapon to school or a school function or
knowing possession or use of illegal drugs or selling or soliciting the
sale of a controlled substance at school or a school function), the
school may first remove the child for up to 10 consecutive school days
(providing services as necessary under Sec. 300.121(d)) while convening
the IEP team to determine the interim alternative educational setting
under Sec. 300.522. At the end of that 10 day period, or earlier, if
feasible, the child would be placed into the interim alternative
educational setting for up to 45 days.
    The placements contemplated under Secs. 300.520(a)(2) and 300.521
(removal by hearing officer based on determination of substantial
likelihood of injury in current placement) are specific exceptions to
the obligation to maintain the child in the child's current placement
if the parent disagrees with a proposed change of placement and
therefore, may continue even if the child's behavior is determined to
be a manifestation of the child's disability. The purpose of
Secs. 300.520(a)(2) and 300.521 placements is to enable school
personnel to ensure learning environments that are safe and conducive
to learning for all and to give those officials and parents the
opportunity to determine what is the appropriate placement for the
child.
    Interim alternative educational settings under Sec. 300.520(a)(2)
are limited to 45 calendar days, unless extended under Sec. 300.526(c)
for a child who would be dangerous to return to the child's placement
before the removal. The fact that school is in recess during a portion
of the 45 days does not ``stop the clock'' on the 45 days during the
school recess.
    There is no specific limit on the total number of days during a
school year that a child with disabilities can be suspended. In
addition, as explained in more detail in the discussion under
Sec. 300.524, if a child's behavior is determined not to be a
manifestation of the child's disability, the child may be disciplined
in the same manner as nondisabled children, including suspension and
expulsion, except that FAPE, consistent with Sec. 300.121(d), must be
provided.
    The 45-day interim alternative educational settings are not
mandatory. If the parents agree with school officials to a change in
the child's placement there is no need to use a 45-day interim
alternative educational setting. In some instances school officials or
hearing officers may determine that a shorter period of removal is
appropriate and that a child can be returned to his or her current
educational placement at an earlier time.
    Change: None.
    Comment: A number of commenters asked for guidance regarding the
terms in paragraph (b) regarding functional behavioral assessment, and
behavioral intervention plan. Some asked that functional behavioral
assessment should not be construed to be overly prescriptive. These
commenters believed that behavioral assessments should be flexible so
that the team can consider the various situational, environmental and
behavioral circumstances involved.
    Some commenters proposed that a functional behavioral assessment be
defined as a process which searches for an explanation of the purpose
behind a problem behavior, and that behavior intervention plan be
defined as IEP provisions which develop, change, or maintain selected
behaviors through the systematic application of behavior change
techniques. Some commenters suggested that positive behavioral
interventions and strategies should include strategies and services
designed to assist the child in reaching behavioral goals which will
enhance the child's learning and, as appropriate, the learning of
others. Some asked whether a functional behavior assessment is an
evaluation requiring parent consent before it is done. Others asked
whether a behavioral assessment could be a review of existing data that
can be completed at that IEP meeting. Some asked whether a behavioral
intervention plan needed to be a component of a child's IEP, and the
relationship of this to the positive behavioral interventions mentioned
in the IEP sections of the regulations.
    Discussion: In the interests of regulating only when necessary, no
change is made regarding what constitutes a functional behavioral
assessment, or a behavioral intervention plan. IEP teams need to be
able to address the various situational, environmental and behavioral
circumstances raised in individual cases. A functional behavioral
assessment may be an evaluation requiring parent consent if it meets
the standard identified in Sec. 300.505(a)(3). In other cases, it may
be a review of existing data that can be completed at the IEP meeting
called to develop the assessment plan under paragraph (b)(1) of this
section. If under Sec. 300.346 (a) and (c), IEP teams are proactively
addressing a child's behavior that impedes the child's learning or that
of others in the development of IEPs, those strategies, including
positive behavioral interventions, strategies and supports in the
child's IEP will constitute the behavioral intervention plan that the
IEP team reviews under paragraph (b)(2) of this section.
    Change: None.
    Comment: Some commenters stated that paragraph (b)(1) should not
require the development of appropriate behavioral interventions within
10 days of removing a child from the current placement as it is
operationally unworkable. Some commenters asked that the regulations
also require that the IEP team determine whether an existing behavior
plan has been fully implemented, and if not, take steps to ensure its
implementation without delay. Other commenters stated that the term
suspension'' in paragraph (b)(1) should be replaced with ``removal.''
    Discussion: Paragraph (b)(1) in the NPRM was not intended to
require the development of appropriate behavioral interventions within
10 days of

[[Page 12621]]

removing a child from the current placement. Instead, it was intended
to require that the LEA implement the assessment plan and ensure that
the IEP team, after that assessment, develops appropriate behavioral
interventions to address the child's behavior and implements those
interventions as quickly as possible. Because it is unlikely that these
steps could occur at the same time, a change should be made to the
regulations to clarify that the LEA convene an IEP meeting, within 10
business days of removing the child, to develop an assessment plan,
and, as soon as practicable on completion of that plan, to develop
appropriate behavioral interventions to address that behavior. This
section also would be revised to clarify when the IEP team would have
to meet in instances in which there is an existing behavioral
intervention plan. The commenters are correct that the term ``removal''
should be used in paragraph (b)(1) rather than ``suspension'' because
it applies to all disciplinary actions under Sec. 300.520(a).
    Change: Paragraph (b) has been amended by replacing ``suspension''
with ``removal'' and to specify that the LEA convene an IEP meeting to
develop an assessment plan, and as soon as practicable on completion of
that plan, to develop appropriate behavioral interventions to address
that behavior.
    Comment: Some commenters asked that the regulations permit school
personnel, under Sec. 300.520(a)(2), and hearing officers, under
Sec. 300.521, to remove for up to 45 school days as opposed to calendar
days. Other commenters asked that the regulations use the term
``calendar days'' for all timelines in this section.
    Some commenters asked that the regulations permit school personnel
to remove to a 45-day interim alternative educational setting for an
assault. Other commenters asked that the 45-day limitation not apply to
behavior that is determined to be not a manifestation of the child's
disability.
    Discussion: As explained in detail in the discussion concerning the
regulatory definition of ``day,'' the statute uses the term ``school
day'' when that is intended. It also would be inappropriate to use
``calendar days'' for all timelines in this section as the statute uses
the term ``10 school days'' when that is intended.
    The statute does not authorize school personnel to remove children
with disabilities to an interim alternative educational setting for 45
days in cases of an assault. However, under Sec. 300.521, a public
agency may ask a hearing officer to order a child removed to an interim
alternative educational setting for not more than 45 days if
maintaining the child in the current placement is substantially likely
to result in injury to the child or to others.
    In addition, if necessary, school officials can seek appropriate
injunctive relief to move a child. The placements under
Secs. 300.520(a)(2) and 300.521 apply whether the behavior is or is not
a manifestation of the child's disability under Sec. 300.523. If the
behavior is determined not to be a manifestation of the child's
disability, the child may be subjected to the same disciplinary action
as a nondisabled child (which could be a removal for more than 45 days)
except that services must be provided consistent with Sec. 300.121(d).
    Change: None.
    Comment: Some commenters asked that paragraph (d) of the
regulations provide the complete definition of ``dangerous weapon'' and
``controlled substance.''
    Discussion: It is not advisable to provide the complete statutory
definitions of ``dangerous weapon'' and ``controlled substance'' in the
text of the regulations as the statute ties these definitions to the
content of other Federal law. If, for example, the Controlled
Substances Act were to be amended to change the definition of
``controlled substance'' in section 202(c) of that Act, the Part B
regulatory definition also would need conforming amendments. In
addition, the definition of ``controlled substance'' in section 202(c)
of the Controlled Substances Act is extensive and extremely detailed.
The Department will make this information widely available through a
variety of other means.
    Change: None.

Authority of Hearing Officer (Sec. 300.521)

    Comment: Several commenters stated that the hearing officer under
this section, in order to deal with dangerous situations, must be able
to immediately remove a child without the requirement of convening a
hearing. A number of these commenters believed that the hearing officer
under this section should be able to make a determination based on a
review of available information presented by the LEA, much like an LEA
requesting a temporary restraining order from a court. Other commenters
asked that the regulations specify that the hearing officer must be
impartial and qualified to assess the child's disability and the
circumstances surrounding the removal.
    Several commenters asked that the regulations explain that a school
district has the right to seek injunctive relief, such as a temporary
restraining order, when a student is a danger to self or others.
    Discussion: The statute provides that the hearing officer must be
able to determine that a public agency has demonstrated by substantial
evidence, which is defined as beyond a preponderance of the evidence,
that maintaining the child in the current placement is substantially
likely to result in injury to the child or others. This evidentiary
standard requires that the hearing officer weigh the evidence received
from both parties, rather than just information presented by the public
agency. Public agencies continue to have the right to seek injunctive
relief from a court when they believe they have the need to do so.
Hearing officers in expedited due process hearings must meet the same
standards of impartiality and knowledgeability as other hearing
officers under the Act.
    Change: None.
    Comment: Several commenters asked that paragraph (a) of this
section be revised to specify that the injury to the child or others
must be more than a minor injury. Others asked that the regulations not
require that the child would be an imminent threat to the safety or
health of other members of the school community before the child could
be removed.
    Several commenters requested that paragraph (c) be revised to
require the hearing officer to determine, rather than consider, whether
the public agency has made reasonable efforts to minimize the risk of
harm in the child's current placement. Other commenters asked that the
regulations specify that if the hearing officer finds that the current
placement is inappropriate, the hearing officer shall order that the
current placement be made appropriate rather than ordering an interim
alternative educational setting. Further, if the hearing officer finds
that the public agency has not made reasonable efforts to minimize the
risk of harm in the child's current placement, they urged, the hearing
officer must order the public agency to make the reasonable efforts to
minimize the risk of harm rather than ordering placement in an interim
alternative educational setting.
    Discussion: No changes will be made to the regulations regarding
the amount of injury that would be substantially likely to result if
the child is not removed. In addition, no changes will be made
regarding a hearing officer's decision making. In fashioning
appropriate relief, hearing officers will exercise their judgement in
the context of all the factors involved in an individual case.
    Change: None.

[[Page 12622]]

    Comment: A number of commenters requested clarification of the term
``beyond a preponderance of the evidence.'' Others asked that the term
be revised as the ``the preponderance of the evidence'' as that is the
highest evidence standard in civil litigation.
    Discussion: The phrase ``beyond a preponderance of the evidence''
is statutory.
    Change: None.

Determination of Setting (Sec. 300.522)

    Comment: A number of commenters asked that the regulations clarify
the relationship between the authority of school personnel in
Sec. 300.520(a)(1) to order the removal of a child with a disability
for not more than 10 school days, and the requirement in Sec. 300.522
that the alternative educational setting be determined by the IEP team.
These commenters noted that the school personnel need the authority to
remove under Sec. 300.520(a)(1) without input from the IEP team.
    A number of commenters requested clarification on when the IEP team
must make the determination of setting and where the child would be
while that determination was being made, particularly for children with
disabilities who already had been removed from their regular placement
for 10 days during that school year. Some of these commenters noted
that when a child is removed under Secs. 300.520(a)(2) or 300.521 the
alternative setting needs to be immediately available.
    Some commenters question where the child would be while the hearing
under Sec. 300.521 is being held, noting that Sec. 300.521(d) requires
the hearing officer's determination include deciding whether the
interim alternative educational setting meets the standards of
Sec. 300.522, and wondering when the IEP team would meet. Some
commenters asked that the regulations make clear that a child with a
disability can be removed from the child's current placement for up to
10 days before the IEP team would have to make the determination in
Sec. 300.522.
    Some commenters stated that requiring the IEP team to determine the
setting when a hearing officer removes a child exceeds the statute.
    Other commenters thought that the provisions of Sec. 300.522 are in
conflict with the authority of school personnel to order removal under
Sec. 300.520.
    Discussion: Under Secs. 300.519 and 300.520(a)(1), school personnel
have the authority to remove a child with disabilities for not more
than 10 consecutive school days (to the same extent as for nondisabled
children) except that the removal may not constitute a change of
placement. School personnel need the ability to remove a child with a
disability from the current educational placement under
Sec. 300.520(a)(1) and to provide educational services in some other
setting without waiting for an IEP team to make a determination about
that alternative educational setting in order to maintain a learning
environment conducive to learning for all children.
    At the same time there is a need to ensure that information about
the child's special education needs and current IEP be brought to bear
in decisionmaking about services to the child during short removals and
for those short periods before the IEP team can meet to determine
appropriate placement under Sec. 300.520(a)(2) or a hearing officer
determines the interim alternative educational setting under
Sec. 300.521. Therefore, a change should be made to Sec. 300.522(a) to
specify that the IEP team determines the interim alternative
educational setting under Sec. 300.520(a)(2).
    A change to Sec. 300.121(d) would specify that school personnel, in
consultation with the child's special education teacher, determine the
interim alternative educational setting for removals under
Sec. 300.520(a)(1)(removals by school personnel for 10 school days or
less). A child whose behavior subjects him or her to an interim
alternative educational setting under Sec. 300.520(a)(2)(weapons or
drugs) or Sec. 300.521(substantial likelihood of injury), may first be
removed by school personnel for not more than 10 consecutive school
days, or until the removal otherwise constitutes a change of placement
under Sec. 300.519, and during that 10 day or less removal, services,
as necessary under Sec. 300.121(d), would be provided as determined by
school personnel, in consultation with the child's special education
teacher. This will ensure that the need of school personnel to be able
to make these decisions swiftly is honored, while emphasizing the
learning needs of the child in that removal period. While the child is
in that 10 school day or less setting, the IEP team meetings and
expedited due process hearings under Secs. 300.522 and 300.521,
respectively, can be conducted so that the IEP team or hearing officer,
as the case may be, can determine the up to 45 day interim alternative
educational setting.
    When a hearing officer has determined that a child is substantially
likely to injure self or others in his or her current placement and is
ordering a 45 day interim alternative educational setting under
Sec. 300.521, the hearing officer is charged with determining whether
the interim alternative educational setting meets the statutory
requirements and not with selecting one that meets those requirements.
Permitting the school personnel, in consultation with the child's
special education teacher, to initially select and propose the interim
alternative educational setting is less administratively cumbersome for
school personnel than the scheme in the proposed regulation and helps
ensure that there is no undue delay in placement. The review of the
proposed placement by the hearing officer ensures that the setting will
meet statutory standards, thus protecting the rights of the child. The
hearing officer may revise or modify the proposed placement, or select
some other placement as necessary to meet that statutory standard. Of
course, in proposing an interim alternative educational setting, school
personnel may rely on the judgments of the child's IEP team if they
choose to do so. This position would be accomplished through the
regulatory change to Sec. 300.121(d) mentioned previously. The statute
at section 615(k)(3)(A) is clear that when school personnel are
removing a child for a weapons or drug offense, the IEP team determines
the interim alternative educational setting.
    Change: This section has been amended to specify that the
alternative educational setting referred to in Sec. 300.520(a)(2) is
determined by the IEP team. Section Sec. 300.521(d) has been revised to
recognize that the hearing officer reviews the adequacy of the interim
alternative educational setting proposed by school personnel who have
consulted with the child's special education teacher.
    Comment: A number of commenters suggested revisions to paragraph
(b) to provide certain limitations on the services that must be
provided in the interim alternative educational setting such as
specifying that the setting must be one that is immediately available
to students removed, the services on the child's current IEP will
continue to the extent feasible, or the child will continue to
participate in the general curriculum to the extent determined
appropriate by the IEP team. Others urged that the regulations make
clear that the interim alternative educational setting should not have
to be a setting that can provide all the same level of courses or
courses that are not a part of the core curriculum of the district
(i.e., would not have to provide honors level courses, electives,
advanced subject courses that are not part of the core

[[Page 12623]]

curriculum of the district) or are extracurricular activities and
sports. Others asked about classes such as chemistry, shop or physical
education that have specialized equipment or facilities. Some
commenters noted that it would not be reasonable and would be
prohibitively expensive and procedurally burdensome to require that
interim alternative education settings provide the same courses as
offered in regular schools. They argued that requiring that interim
alternative educational settings include the same courses as in regular
schools would discourage schools from taking appropriate measures to
deal with weapons, drugs and children who are dangerous to themselves
or others. Some commenters stated that they did not believe that the
services required for students whose behavior is not a manifestation of
their disability should be as extensive as those required for students
whose behavior is determined to be a manifestation of their disability.
    Some commenters asked that the regulations specify that services in
the interim alternative educational setting must be provided by
qualified personnel in a placement that is appropriate for the
student's age and level of development. Others asked that the IEP
written for the interim alternative educational setting should address
the services and modifications that will enable the child to meet the
child's current IEP goals in the alternative setting.
    Discussion: The statute describes the services that must be
provided to a child who has been placed in an interim alternative
educational setting, which must be applied to removals under
Secs. 300.520(a)(2) and 300.521, and these standards, with a minor
modification discussed later in this section, are reflected in
Sec. 300.522(b). The proposed regulation, at Sec. 300.121(c), had
indicated that the same standards should be applied to other types of
removals as well, that is, removals that did not constitute a change in
placement and long-term suspensions or expulsions under Sec. 300.524
for behavior that is determined not to be a manifestation of a child's
disability. However, as suggested by the comments received, there are
reasons why what would be required for these other types of removals
may be different than for 45 day interim alternative educational
settings. Therefore, the regulation at Sec. 300.121(d) would provide
that for removals under Secs. 300.520(a)(1) and 300.524, the public
agency provides services to the extent necessary to enable the child to
adequately progress in the general curriculum and advance toward
achieving the goals set out in the child's IEP, as determined by school
personnel, in consultation with the child's special education teacher,
if the removal is under Sec. 300.520(a)(1) or by the child's IEP team,
if the removal is under Sec. 300.524.
    Under these rules, the extent to which instructional services need
to be provided and the type of instruction to be provided would depend
on the length of the removal, the extent to which the child has been
removed previously, and the child's needs and educational goals. For
example, a child with a learning disability who is placed in a 45 day
placement will likely need far more extensive services in order to
progress in the general curriculum and advance appropriately toward
meeting the goals of the child's IEP than would a child who is removed
for only a few days, and is performing at grade level. Because the
services that are necessary for children with disabilities who have
been removed for disciplinary reasons will vary depending on the
individual facts of a particular case, no further specificity regarding
those services is appropriate.
    What constitutes the general curriculum is determined by the SEA,
LEA or school that the student attends, as appropriate under State law.
In some cases, honors level classes or electives are a part of the
general curriculum, and in others they may not be. With regard to
classes such as chemistry or auto mechanics that generally are taught
using a hands-on component or specialized equipment or facilities, and
that are considered to be a part of the general curriculum, there are a
variety of available instructional techniques and program modules that
could be used that would enable a child to continue to progress in the
general curriculum, although the child is not receiving instruction in
the child's normal school or facility. However, in order to assist in
clarifying that a school or district does not have to replicate every
aspect of the services that a child would receive if in his or her
normal classroom, a change would be made to refer to enabling the child
to continue to ``progress in'' the general curriculum, rather than
``participate in'' the general curriculum.
    Changes: Paragraph (b) has been revised to apply to removals under
Secs. 300.520(a)(2) and 300.521. Paragraph (b)(1) has been revised to
refer to enabling the child to continue to ``progress in'' the general
curriculum. Language has been added to Sec. 300.121(d) to provide that
for a child who has been removed under Sec. 300.520(a)(1) or
Sec. 300.524, the public agency provides services to the extent
necessary to enable the child to adequately progress in the general
curriculum and advance toward achieving the goals set out on the
child's IEP, as determined by school personnel in consultation with the
child's special education teacher if the removal is under
Sec. 300.520(a)(1) or by the child's IEP team if the removal is under
Sec. 300.524.
    Comment: Several commenters asked that the statutory language in
paragraph (b)(2) requiring that the interim alternative educational
setting address the child's behavior ``so that it does not recur'' be
replaced with language requiring the LEA to develop a program that
attempts to prevent the inappropriate behavior from recurring.
    Other commenters asked that a note be added to emphasize that the
interim alternative educational setting be designed to ensure FAPE and
to evaluate the behavior, the IEP services provided, and the previous
placement and to develop an IEP that will reduce the recurrence of the
behavior. Some commenters asked that the reference to other behavior in
this paragraph be rephrased to limit it to other current relevant
behavior. Others asked that the reference to days in a given school
year be removed.
    Discussion: In order to provide additional clarity on this point, a
change should be made to specify that those services and modifications
are designed to prevent the inappropriate behavior from recurring. In
light of the changes previously discussed that limit the application of
this section to removals under Secs. 300.520(a)(2) and 300.521, the
reference to other behavior would be removed, as these are now
addressed in Sec. 300.121(d).
    Change: Paragraph (b)(2) has been revised to clarify that it
applies to removals under Secs. 300.520(a)(2) and 300.521 and to
specify that the services and modifications to address the behavior are
designed to prevent the behavior from recurring.
    Comment: A number of commenters requested that the regulations
specify that home instruction could not be used as an interim
alternative educational setting. Others asked that the regulations
clarify that an interim alternative educational placement may be any
placement option, including, but not limited to home instruction.
Others asked for clarification of when home instruction would be an
appropriate placement for a child who is subject to disciplinary
action. Some commenters asked that the regulations specify that home
instruction and independent study would not generally be an interim

[[Page 12624]]

alternative educational setting. Others asked that home instruction be
prohibited as an interim alternative educational setting unless the
parents agree. Some commenters asked for guidance on what could be
considered an appropriate interim alternative educational setting for
rural or remote areas where there is only one school and no other
appropriate public facility.
    Discussion: Whether home instruction would be an appropriate
alternative educational setting under Sec. 300.522 would depend on the
particular circumstances of an individual case such as the length of
the removal, the extent to which the child previously has been removed
from their regular placement, and include consideration of the child's
needs and educational goals. (The proposed note following Sec. 300.551
regarding home instruction would be deleted.) In general, though,
because removals under Secs. 300.520(a)(2) and 300.521 will be for
periods of time up to 45 days, care must be taken to ensure that if
homebound instruction is provided for removals under Sec. 300.522, the
services that are provided will satisfy the requirements for a removal
under Sec. 300.522(b).
    Change: None.
    Comment: Some commenters asked that a provision be added to
Sec. 300.522 to specify that a hearing officer considering an interim
alternative educational setting may modify the setting determined by
the IEP team to meet the requirements of paragraph (b) of this section.
    Discussion: Hearing officers have the ability to modify the interim
alternative educational setting that has been proposed to them as
necessary to meet the standards of enabling the child to continue to
participate in the general curriculum, continue to receive those
services and modifications that will enable the child to meet the goals
on the child's current IEP and include services and modifications
designed to address the behavior so that it does not recur. As
previously explained, these final regulations do not require an IEP
team to propose an interim alternative educational setting to a hearing
officer under Sec. 300.521, although school districts are encouraged to
use the child's IEP team to make decisions about the interim
alternative educational setting that is proposed to the hearing
officer.
    Change: None.

Manifestation Determination Review (Sec. 300.523)

    Comment: A number of commenters expressed concern about paragraph
(b) of this section. On the one hand, a number of the commenters asked
that the reference to ``in a given school year'' be struck so that the
provision would permit no manifestation determination review whenever
the removal did not amount to a change of placement. On the other hand,
other commenters thought there was no basis in the statute for any
exception, and that a manifestation review would need to be conducted
whenever discipline was contemplated for a child with a disability.
Some commenters asked that the exception be expanded to include
situations when the child's IEP includes the use of short term
suspensions as an appropriate intervention, or where the IEP team has
otherwise addressed in the IEP the behavior that led to the removal.
Some commenters stated that paragraph (a)(1) should refer to procedural
safeguards under Sec. 300.504 rather than procedural safeguards under
this section. Other commenters noted that advance notification of
disciplinary action is unrealistic and that the regulations should note
that fact. Others asked that the regulations specify that prior written
notice was not required.
    Discussion: A manifestation determination is important when a child
has been removed and that removal constitutes a change of placement
under Sec. 300.519. If a removal is a change of placement under
Sec. 300.519, a manifestation determination will provide the IEP team
useful information in developing a behavioral assessment plan or in
reviewing an existing behavioral intervention plan under
Sec. 300.520(b). It will also inform determinations of whether or not a
public agency may implement a disciplinary action that constitutes a
change of placement for a child, other than those provided for in
Secs. 300.520(a)(2) and 300.521. Requiring a manifestation
determination for removals for less than 10 consecutive school days
that are not a change of placement under Sec. 300.519, would be of
limited utility and would impose unnecessary burdens on public agencies
as the determination often would be made after the period of removal
was over. Furthermore, limiting manifestation determination to removals
that constitute a change of placement under Sec. 300.519 is consistent
with the statutory language of section 615(k)(4)(A).
    However, if a child is being suspended for subsequent short periods
of time, parents can request an IEP meeting to consider whether the
child is receiving appropriate services, especially if they believe
that there is a relationship between the child's disability and the
behavior resulting in those suspensions. Public agencies are strongly
encouraged to grant any reasonable requests for IEP meetings.
Functional behavioral assessments and behavioral intervention plans are
to be completed in a timely manner whether required under
Sec. 300.520(b) or otherwise determined appropriate by the child's IEP
team (see Sec. 300.346(a)(2)(i)). In addition, if a child is
subsequently suspended for short periods of time, a parent or other
individual could question whether a change of placement, which would
require a manifestation determination, has occurred because of an
alleged pattern of removals.
    For clarity, a change should be made to refer to the procedural
safeguards notice under Sec. 300.504. Paragraph (a)(1) of this section
does not require prior written notice. It does require notice to
parents no later than the date on which the decision to take the action
is made. To that extent, it constitutes a limited exception to the
requirement to provide prior written notice in Sec. 300.503. Other
removals that do not constitute a change of placement do not require
prior written notice.
    Change: Paragraph (a) of this section has been revised to specify
that the manifestation determination review is done regarding behavior
described in Secs. 300.520(a)(2) and 300.521 or any removal that
constitutes a change of placement under Sec. 300.519. Paragraph (a)(1)
of this section has been amended to require that parents be provided
notice of procedural safeguards consistent with Sec. 300.504. Paragraph
(b) has been removed.
    Comment: A number of commenters requested clarification of the term
``other qualified personnel'' as used in proposed paragraph (c) of this
section. Some of these commenters asked that the regulations include
language like that in the note following Sec. 300.344 that in the case
of a child whose behavior impedes the learning of the child and others,
the IEP team should include someone knowledgeable about positive
behavioral strategies and supports. Others asked that the term not be
interpreted as including only school personnel but should include
persons familiar with the child and the child's disabilities, such as
the child's treating physician. Others wanted the regulations to
specify that the team include persons who are fully trained and
qualified to understand the child's disability. Many asked that term
also be added to references to the IEP team in proposed paragraphs (d),
(e) and (f) of this section. Some commenters asked that proposed
paragraph (c) clarify that the manifestation determination needs

[[Page 12625]]

to be made at an IEP meeting, as some districts are not holding IEP
team meetings for this purpose.
    Discussion: The language regarding the IEP team and other qualified
personnel is taken directly from the statute. The term ``other
qualified personnel'' may include individuals who are knowledgeable
about how a child's disability can impact on behavior or on
understanding the impact and consequences of behavior, and persons
knowledgeable about the child and his or her disabilities. For the sake
of clarity, references to the IEP team in paragraphs (c) and (d) of
this section should be expanded to include ``and other qualified
personnel.'' In order to clarify that the manifestation determination
review is done in a meeting, a change should be made to paragraph (b).
This review involves complex decision making that will be significantly
different from the very limited review that is done under
Sec. 300.520(b)(2) if no modifications are needed to a child's
behavioral intervention plan.
    Change: Redesignated paragraph (b) has been revised to specify that
the manifestation determination review is conducted at a meeting.
Redesignated paragraphs (c) and (d) have been amended by adding ``and
other qualified personnel'' after ``IEP team'' each time it is used.
    Comment: Several commenters were concerned that proposed paragraph
(d)(2)(ii) and (iii) put schools at a significant disadvantage by
having to prove the negative--that disability did not impair the
ability of the child to understand the impact and consequences of the
behavior and that disability did not impair the child's ability to
control behavior. Other commenters asked that the review process also
include consideration of any unidentified disability of the child and
the antecedent to the behavior that is subject to discipline and permit
record expungement if it is later determined that the child did not
commit the act that is the subject of the manifestation determination.
    Some commenters stated that proposed paragraph (e) created too
rigid a standard and asked that it be modified to give districts more
leeway if a mistake has been made.
    Discussion: The language in paragraphs (c)(2)(ii) and (iii) is
taken directly from the statute. Given that the review process includes
consideration of all relevant information, including evaluation and
diagnostic results, information supplied by the parents, observations
of the child and the child's current IEP and placement, the review
could include consideration of a previously unidentified disability of
the child and of the antecedent to the behavior that is subject to
discipline. If it is later determined that the child did not commit the
act that is subject to discipline, the question of record expungement
would be handled the same way such matters are addressed for
nondisabled children.
    The interpretation in paragraph (d) on how the manifestation
determination is made, using the standards described in paragraph (c),
is based on the explanation of the decision process in the
congressional committee reports on Pub. L. 105-17. Those reports state
that the determination described in Sec. 300.523(d):

. . . recognizes that where there is a relationship between a
child's behavior and a failure to provide or implement an IEP or
placement, the IEP team must conclude that the behavior was a
manifestation of the child's disability. Similarly, where the IEP
team determines that an appropriate placement and IEP were provided,
the IEP team must then determine that the remaining two standards
have been satisfied. This section is not intended to require an IEP
team to find that a child's behavior was a manifestation of a
child's disability based on a technical violation of the IEP or
placement requirements that are unrelated to the educational/
behavior needs of the child. (S. Rep. No. 105-17, p. 31; H. Rep. No.
109-95, pp. 110-111 (1997))

In light of the general decision to remove all notes from these final
regulations, however, Note 1 should be removed.

    Change: Note 1 has been removed.
    Comment: Many commenters asked that the content of the first
sentence of Note 2 be integrated into the regulations. The commenters
were divided, however, over the second sentence of Note 2. Some
supported the statement in the second sentence of the note, others
wanted the sentence to be revised to specify that children with
disabilities who have been placed in 45 day placements under
Secs. 300.520 and 300.521 must be returned to their regular placement
if their behavior is determined to be a manifestation of their
disability because of the principle that children with disabilities may
not be disciplined for behavior that is a manifestation of their
disability.
    Still others wanted the sentence revised to indicate that changes
to the child's IEP or placement or the implementation of either
``could'' as opposed to ``often should'' enable the child to return to
the regular placement. Other commenters asked that the second sentence
to Note 2 be removed as they believed that it was inconsistent with the
authority granted in Secs. 300.520 and 300.521 to change the placement
of a child with a disability to an interim alternative educational
setting for the same amount of time that a child without a disability
would be subject to discipline, but for not more than 45 days. Other
commenters asked that the regulations make clear that if behavior is a
manifestation of the child's disability, disciplinary action cannot be
taken against the child.
    Discussion: For clarity, the regulation should specify that if the
behavior is determined to be a manifestation of the child's disability,
the public agency must take immediate steps to remedy any deficiencies
found in the child's IEP or placement or their implementation. It would
be inconsistent with the public agency's obligation to ensure the
provision of FAPE to children with disabilities to fail to take
appropriate action to correct identified deficiencies in a child's IEP
or placement or the implementation of either.
    The 45-day placements in Secs. 300.520(a)(2), 300.521 and
300.526(c) are exceptions to the general rule that children with
disabilities may not be disciplined through a change of placement for
behavior that is a manifestation of their disability. If a child has
been placed in a 45-day placement under one of these sections and his
or her behavior is determined to be a manifestation of the disability
under Sec. 300.523, it may be possible to return the child to the
current educational placement before the expiration of the up to 45-day
period by correcting identified deficiencies in the implementation of a
child's IEP or placement. However, public agencies are not obliged to
return the child to the current placement before the expiration of the
45-day period (and any subsequent extensions under Sec. 300.526(c)) if
they do not choose to do so.
    Consistent with the general decision to remove all notes from these
final regulations, Note 2 would be removed.
    Change: A new paragraph has been added to clarify that if
deficiencies are identified in the child's IEP or placement or in their
implementation, the public agency must act to correct those
deficiencies. Note 2 has been removed.
    Comment: Some commenters asked that the regulations provide
distinctions between the types of services that must be provided in
interim alternative educational settings when behavior is and is not a
manifestation of the child's disability. For children whose behavior is
not a manifestation of their disability, these commenters asked that
FAPE be

[[Page 12626]]

defined as the LEA's ``core curriculum'' (the basic courses needed to
fulfill high school graduation requirements) unless the IEP team
determined that some more extensive services are required, so that it
would be clear that the LEA would not have to duplicate every possible
course offering at the alternative site. The commenters asked that this
rule also apply to the services provided to children who have properly
been long-term suspended or expelled for behavior that is determined
not to be a manifestation of disability.
    For children whose behavior is determined to be a manifestation of
disability, these commenters asked for clarification that an IEP team
can still take disciplinary action, if the IEP team feels that
providing consequences is appropriate. In addition, they asked that the
regulations make clear that an IEP team can change a student's
placement for behavior that is a manifestation of the disability, if
taking such action would be appropriate and consistent with the
student's needs.
    Discussion: A manifestation determination is necessary to determine
whether the placement for a child with a disability can be changed over
the objections of the child's parents through a long-term suspension
(other than the 45-day placement addressed in Secs. 300.520, 300.521
and 300.526(c)) or an expulsion. However, there is no basis in the
statute for differentiating the services that must be provided to
children with disabilities because their behavior is or is not a
manifestation of their disability. (See discussion of comments for
Secs. 300.121 and 300.522 for further discussion about services during
periods of disciplinary removal).
    Under section 504 of the Rehabilitation Act of 1973, if the
behavior is a manifestation of a child's disability, the child cannot
be removed from his or her current educational placement if that
removal constitutes a change of placement (other than a 45 day
placement under Secs. 300.520(a)(2), 300.521, and 300.526(c)), unless
the public agency and the parents otherwise agree to a change of
placement. If the behavior is related to the child's disability, proper
development of the child's IEP should include development of
strategies, including positive behavioral interventions, strategies and
supports to address that behavior, consistent with
Secs. 300.346(a)(2)(i) and (c). If the behavior is determined to be a
manifestation of a child's disability but has not previously been
addressed in the child's IEP, then the IEP team must meet to review and
revise the child's IEP so that the child will receive services
appropriate to his or her needs. Implementation of the behavioral
strategies identified in a child's IEP, including strategies designed
to correct behavior by imposing consequences, is appropriate under the
IDEA and section 504, even if the behavior is a manifestation of the
child's disability. However, if a child's IEP includes behavioral
strategies to address a particular behavior of the child, the
appropriate response to that behavior almost always would be to use the
behavioral strategies specified in the IEP rather than to implement a
disciplinary suspension. A change in placement that is appropriate and
consistent with the child's needs may be implemented subject to the
parent's procedural safeguards regarding prior notice (Sec. 300.503),
mediation (Sec. 300.506), due process (Secs. 300.507-300.513) and
pendency (Sec. 300.514).
    Change: None.
    Comment: Several commenters noted that a manifestation review
should not be required prior to determining punishment for incarcerated
students because prison disciplinary infractions raise bona fide
security and compelling penological interests that are outside the
purview of the education staff. However, commenters noted that a
manifestation review for these students may be useful in developing
appropriate behavior interventions.
    Discussion: Section 614(d)(6)(B) of the Act provides that for
children with disabilities who are convicted as adults under State law
and incarcerated in an adult prison, the child's IEP team may modify
the child's IEP or placement if the State has demonstrated a bona fide
security or compelling penological interest that cannot otherwise be
accommodated. (See also Sec. 300.311(c)(1)). A manifestation
determination would still be required for these individuals, in the
instances specified in paragraph (a) of this section.
    Change: None.
    Comment: Several additional notes were proposed. Several commenters
asked that a note be added to clarify that when a student with
disabilities has been properly expelled, the student does not have to
petition for readmission when the period of expulsion ends as the
school system must accept and serve the student in its schools. Others
asked for a note specifying that under section 504 of the
Rehabilitation Act children with disabilities may not be disciplined
for behavior that is a manifestation of their disability, and that
prior to taking any punitive action against a child with a disability,
appropriate personnel must determine that the behavior in question is
not a manifestation of the child's disability.
    Discussion: No new notes will be added. All notes are being removed
from these final regulations. Whether a student who has been properly
expelled must petition for readmission when the period of expulsion
ends generally will depend on how the public agency deals with children
without disabilities who return to school after a period of expulsion.
However, public agencies are reminded that for children with
disabilities, they have an ongoing obligation to make a FAPE available,
whether the child is expelled or not. Under Section 504 of the
Rehabilitation Act of 1973, children with disabilities may not be
disciplined for behavior that is a manifestation of their disability if
that disciplinary action constitutes a change of placement. That
principle is consistent with the changes made in this section.
    Change: None.

Determination That Behavior Was Not Manifestation of Disability
(Sec. 300.524)

    Comment: Some commenters asked that the regulations make clear that
if the behavior was not related to the child's disability the
discipline could include long-term suspensions and expulsions. Others
asked that the regulations clarify whether discipline would be limited
to the 45-day interim alternative educational placement or would be the
same disciplinary measures as for nondisabled students as long as FAPE
is provided and IEP services continued in another setting. Others
thought that the regulation should specify that no suspension or
expulsion could be for more than 45 days. Some commenters asked for
clarification of what would constitute an acceptable alternative
setting for children whose behavior is determined to not be a
manifestation of their disability.
    Several commenters requested that the regulations delete the
provisions of paragraph (c) of this section concerning placement
pending a parent appeal of a manifestation determination and the note
following, which addresses paragraph (c). Others stated that the
regulations should specify that if parents challenge a manifestation
determination, the child should remain in the alternative educational
setting until the resolution of that challenge. Still others asked that
the note mention that under Sec. 300.514, placement could change if the
parent and agency agreed to that other placement.
    Discussion: Under this section, if a determination is made
consistent with Sec. 300.523 that a child's behavior is not

[[Page 12627]]

a manifestation of his or her disability, the child may be subject to
the same disciplinary measures applicable to nondisabled children,
including long-term suspensions and expulsions, except that FAPE must
be provided consistent with section 612(a)(1) of the Act. In these
instances, the disciplinary removal from a regular placement could be
as long as the disciplinary exclusion applied to a nondisabled child,
and need not be limited to a 45-day interim alternative educational
placement, except that appropriate services must be provided to the
child. To make the point more clearly that if the behavior is
determined not to be a manifestation of the child's disability, that
child may be subjected to long-term suspension and expulsion with
appropriate services. To clarify what would constitute an acceptable
alternative setting for a child if the child's behavior is determined
to not be a manifestation of his or her disability, the reference in
paragraph (a) of this section has been changed to refer to
Sec. 300.121(c), which implements that statutory provision.
    Section 615(j) of the Act provides that the only exceptions to the
``pendency'' rule (Sec. 300.514) are those specified in section
615(k)(7) of the Act, concerning placement during parent appeals of 45-
day interim alternative educational placements, which is implemented by
Sec. 300.526. Paragraph (c) of this section merely reflects that
statutory arrangement. Section 300.526 governs a child's placement if a
parent challenges a manifestation determination while a child is in a
45-day interim alternative educational placement under
Secs. 300.520(a)(2) or 300.521. Section 300.514 makes clear that
placement may change if the agency and parent agree on an alternative
placement while a due process hearing is pending on other issues.
    Changes: The reference to section 612(a)(1) of the Act in paragraph
(a) is replaced with a reference to Sec. 300.121(c), paragraph (c) is
revised to refer to the placement rules of Sec. 300.526, and the note
is removed.

Parent Appeal (Sec. 300.525)

    Comment: Some commenters asked that the regulations specify that
parents must request a hearing in writing under this section. Other
commenters asked that the regulations make clear that any hearing
requested under this authority must be expedited, rather than
suggesting that only those hearings when the parent requests an
expedited hearing.
    Some commenters wanted the regulations to reflect that mediation
was an alternative to the expedited hearing procedure and encourage
parents to seek mediation before an expedited hearing. Some asked that
the regulations make clear that a parent's request for an expedited
hearing would not apply to removals for less than 10 days and would not
negate the discretion of school districts to use alternative judicial
remedies, such as temporary restraining orders. Some commenters noted
that paragraph (a)(1) of this section should be revised to apply only
to placements made pursuant to the discipline provisions of the Act,
and not other placement issues under the Act.
    Several commenters asked that proposed paragraph (b)(2) of this
section be revised to make clear that the standard of Sec. 300.521 that
is to be applied to 45-day placements under Sec. 300.520(a)(2) is the
``substantial evidence'' standard and does not include the
``substantially likely to result in injury'' test or other program
factors in Sec. 300.521, so as not to damage the new ability of school
districts to move students for up to 45 days for certain offenses
related to weapons and drugs.
    Discussion: The statute does not specify that parents request a
hearing in writing under the appeal procedures in this section. The
statute provides for expedited hearings in three circumstances, and
those are reflected in Secs. 300.521, 300.525, and 300.526. Mediation
is always encouraged as an alternative to a due process hearing, and
Sec. 300.506(a) makes clear that mediation must be available whenever a
hearing is requested under the provisions of Secs. 300.520-300.528.
Under the statute, it seems clear that a parent's right to an expedited
hearing is limited to placements pursuant to the discipline provisions
of the Act and not to other placement issues, such as disputes about
the adequacy of a child's current placement (unless raised in the
context of a manifestation issue).
    In addition, since the statute refers to decisions regarding
placement, rather than to disciplinary actions, a parent's right to an
expedited hearing is limited to disciplinary situations involving a
change of placement, which would occur if a child were removed from the
child's current placement for more than 10 school days at a time or if
there were a series of removals from the child's current educational
placement in a school year as described in Sec. 300.519. A parent's
request for an expedited due process hearing does not prevent a school
district from seeking judicial relief, through measures such as a
temporary restraining order, when necessary.
    The provisions of paragraph (b) of this section are statutory.
Section 615(k)(6)(B)(ii) does not refer solely to the ``substantial
evidence'' test in section 615(k)(2)(A), but to all the ``standards''
in section 615(k)(2)(Sec. 300.521 of these regulations).
    Changes: Paragraph (a)(1) has been changed to refer to any decision
regarding placement under Secs. 300.520-300.528.

Placement During Appeals (Sec. 300.526)

    Comment: Several commenters requested that paragraph (a) of this
section be amended by specifying that a parent's appeal of a hearing
officer decision must be heard by another hearing officer. Some
commenters thought that LEAs should not be required to seek expedited
hearings for students that remain a danger after 45 days and sought a
simplified procedure for extensions of the 45-day placement.
    Others thought that the possibility of an extension of an interim
alternative educational placement because a child remains dangerous
should be limited to a one-time extension that would require the
hearing officer to determine that there were no programmatic changes,
related services or supplemental aids or services that could be used to
mitigate the dangerousness of the original placement. These commenters
thought that any further efforts to keep the student in an alternative
placement should be heard by a court. Some commenters asked that the
note be deleted or modified by requiring, for example, that for an
extension the hearing officer consider whether the school district has
created delays or otherwise not acted in good faith. A few commenters
asked that any time an agency sought to extend an interim alternative
education placement because of continued dangerousness, the agency
first conduct a formal evaluation of the child.
    Discussion: It is not necessary to change the regulation to specify
that a parent's appeal of a hearing officer's decision must be heard by
another hearing officer, as it would violate the basic impartiality
requirement of Sec. 300.508(a)(2) to permit a hearing officer to hear
the appeal of his or her prior decision. Under paragraph (b) of this
section, unless shortened as the result of a hearing officer's decision
consistent with paragraph (a) of this section, a child would remain in
the interim alternative educational setting pursuant to
Secs. 300.520(a)(2) or 300.521 for the period of the exclusion (which
may be up to 45 days).
    If the public agency proposes to change the child's placement at
the end

[[Page 12628]]

of that interim alternative educational placement and the child's
parents request a due process hearing on that proposed change of
placement, the child returns to the child's placement prior to the
interim alternative educational setting at the end of that interim
placement, except as provided in paragraph (c) of this section. The
expedited hearing procedure set forth in paragraph (c) of this section
is drawn from the statute, which contemplates the same standards for
these expedited hearings as for those under Sec. 300.521.
    There is no statutory limit on the number of times this procedure
may be invoked in any individual case, and none is added to the
regulation. If, after a 45-day extension of an interim placement under
paragraph (c) of this section, an LEA maintains that the child is still
dangerous and the issue has not been resolved through due process, the
LEA may seek subsequent expedited due process hearings under paragraph
(c)(1) of this section. However, in light of the decision to remove all
notes from the regulations, the note would be removed.
    Changes: A new paragraph (c)(4) has been added to make clear that
the procedure in paragraph (c) may be repeated, if necessary. The note
has been removed.

Protection for Children not yet Eligible for Special Education and
Related Services (Sec. 300.527)

    Comment: A number of commenters expressed concern that the
statutory language that was reflected in paragraph (b) of this section
was too broad and thought that reasonable restrictions should be added
so that the issue of whether a ``basis of knowledge'' existed would not
have to be litigated for almost any child who was subjected to
disciplinary action.
    With respect to paragraph (b)(1), some commenters requested that
written parent concerns should be addressed to the director of special
education, other special education personnel of the agency, or the
child's teacher rather than to noninstructional personnel or personnel
not normally charged with child find responsibilities. Other commenters
asked that paragraph (b)(1) make clear that the parental expression of
concern must be more than a casual observation or vague statement and
must describe behavior indicative of a disability or reflect the need
for a special education evaluation. Other commenters asked for
specificity about how the determination about parents' English literacy
would be determined and asked that parental illiteracy in English be
rephrased as being unable to write.
    Some commenters asked that paragraph (b)(2) clarify the type,
severity, or degree of behavior or performance that would demonstrate
the need for services under the Act. For example, some asked that the
behavior or performance of the child would have to include
characteristics consistent with a category of disability under
Sec. 300.7 of the regulations. Others asked that this provision be
revised to require observation and documentation of the child's
performance or behavior demonstrating the need for special education
services by personnel who regularly work with the child.
    Some commenters requested that various sections of paragraph (b) be
time-limited to actions within the past year. Others asked that all of
paragraph (b) be limited to actions that have occurred within the
preceding two school years.
    With respect to paragraph (b)(4) of this section, many commenters
asked that the regulations make clear that casual communications
between agency personnel would not meet this standard. Some thought
that the agency personnel covered by this provision should be limited
to those providing regular or special education to the child reporting
concern to agency personnel who are normally responsible for initiating
the special education evaluation process. Others asked that expressions
of concern by appropriate agency personnel be a written expression of
the child's need for a special education evaluation. Some noted that
without the addition of reasonable limitations, this provision would
undermine responsible efforts, such as pre-referral strategies, to
limit identification of children for special education.
    Some commenters asked that paragraph (b) make clear that an agency
would not be considered to have a ``basis of knowledge'' merely because
a child is receiving services under some other program such as Title 1
of the Elementary and Secondary Education Act, a State- or locally-
developed compensatory education program, or consistent with Section
504 of the Rehabilitation Act of 1973. Others asked that the
regulations specify that if an evaluation has been done and a child
found ineligible for special education, that evaluation and
determination would not constitute a ``basis of knowledge'' under
paragraph (b). Others asked that agencies be able to demonstrate that
they responsibly addressed an expression of concern and concluded that
the available data were sufficient to determine that there was no
reason to evaluate the child.
    Discussion: In light of these comments, some changes would be made
to paragraph (b) of this section. With respect to paragraph (b)(1) of
this section, it is important to keep in mind that child find is an
important activity of school districts under the Act and all of the
staff of a school district should be at least aware enough of this
important school function that, whatever their role in the school, if
they receive a written expression of concern from a parent that a child
is in need of special education and related services, a referral to
appropriate school child find personnel should be made. Parents should
not be held accountable for knowing who in a school is the proper
person to contact if they are concerned that their child might need
special education. On the other hand, the statute makes clear that the
parental expression of concern must include enough information to
indicate that their child is in need of special education and related
services. The statutory provision expects that parents provide their
expressions of concern in writing if they are able to and does not
mention a particular language. Rather than refer to illiteracy; which
may have a variety of interpretations, the regulations should refer to
the parent not knowing how to write.
    In paragraph (b)(2) of this section, the behavior or performance of
the child sufficient to meet this standard should be tied to
characteristics associated with one of the disability categories
identified in the definition of child with a disability in order to
remove unnecessary uncertainty about the type, severity, or degree of
behavior or performance intended. Child find is an important function
of schools and school districts.
    School personnel should be held responsible for referring children
for evaluation when their behavior or performance indicates that they
may have a disability covered under the Act. Limiting paragraph (b)(2)
to instances in which personnel who regularly work with the child have
recorded their observation of a child's behavior or performance that
demonstrates a need for special education would inappropriately omit
those situations in which public agency personnel should have acted,
but failed to do so.
    Requested changes regarding time limitations on the standards in
paragraph (b) are not adopted. However, if as a result of one of the
forms of notice identified in this paragraph, a public agency has
either determined that the child was not eligible after conducting an
evaluation or determined that an

[[Page 12629]]

evaluation was not necessary, and has provided appropriate notice to
parents of that determination consistent with Sec. 300.503, the public
agency would not have a basis of knowledge under this paragraph because
of that notice. For example, if as the result of a parent request for
an evaluation, a public agency conducted an evaluation, determined that
the child was not a child with a disability, and provided proper notice
of that determination to the parents, the agency would not have a basis
of knowledge because of that parent request for an evaluation.
    If the parents disagreed with the eligibility determination
resulting from that evaluation, they would have the right to request a
due process hearing under Sec. 300.507. If the parents requested a
hearing, the protections of this part would apply. If they did not
request a hearing and the child subsequently engaged in behavior that
violated any rule or code of conduct of the public agency, including
behavior described in Secs. 300.520 or 300.521, and there was no
intervening event or action that would independently constitute a basis
of knowledge under paragraph (b), the public agency would not be deemed
to have knowledge (of a disability). In such a case, consistent with
paragraph (c), the parents could request an expedited evaluation, but
the public agency could subject the child to the same disciplinary
measures applied to children without disabilities engaging in
comparable behavior. An addition would be made to this section. In
order to clarify that if an agency responsibly addresses the behavior
or performance of a child or an expression of concern about that
behavior or performance the agency's knowledge of that behavior,
performance or expression of concern, does not preclude the agency from
subjecting the child to the same disciplinary measures applied to
children without disabilities who engage in comparable behaviors.
    In order to provide clarity to the content of paragraph (b)(4), a
change has been made to that provision. Public agencies should not be
held to have a basis for knowledge that a child was a child with a
disability merely because the child's teacher had expressed concern
about the child's behavior or performance that was unrelated to whether
the child had a disability. This provision would therefore be modified
to refer to expressions of concern to other agency personnel who have
responsibilities for child find or special education referrals in the
agency.
    The changes described in this discussion in regard to paragraph
(b)(2) and (b)(4) would clarify that a public agency will not be
considered to have a basis of knowledge under paragraph (b) of this
section merely because a child receives services under some other
program designed to provide compensatory or remedial services or
because a child is limited-English proficient. If the child is eligible
under section 504 and not the IDEA, discipline would have to be
consistent with the requirements of section 504.
    Changes: A technical change has been made to paragraph (a) to refer
to paragraph (b) of this section rather than ``this paragraph.'' The
parenthetical language in paragraph (b)(1) has been replaced with the
following statement: ``(or orally if the parent does not know how to
write or has a disability that prevents a written statement).''
Language is added to paragraph (b)(2) to clarify that the behavior or
performance is in relation to the categories of disability identified
in Sec. 300.7; and paragraph (b)(4) has been revised to refer to other
personnel who have responsibilities for child find or special education
referrals in the agency. Paragraph (c) has been redesignated as
paragraph (d) and a new paragraph (c) has been added to provide that if
an agency acts on one of the bases identified in paragraph (b),
determines that the child is not eligible, and provides proper notice
to the parents, and there are no additional bases of knowledge under
paragraph (b) that were not considered, the agency would not be held to
have a basis of knowledge under Sec. 300.527(b).
    Comment: Some commenters thought that paragraph (c) of this section
in the NPRM implied that a regular education child is entitled to some
placement while eligibility is being determined, and thought that
whether these students receive services while eligibility is being
determined should be left to the States. Others asked that the
regulations specify that the phrase ``educational placement'' in
proposed paragraph (c)(2)(ii) includes a suspension or expulsion
without services, while others thought that any disciplinary action
should be put on hold until the evaluation was completed. Others asked
that parents be involved in decisions about the child's educational
placement under this provision.
    Some commenters thought that more guidance should be provided about
an appropriate timeline for an expedited evaluation. Others asked that
an expedited evaluation when an agency had conducted an evaluation
within the past year could be reviewing those results and determining
whether other assessments would need to be conducted. Other commenters
wanted the regulations to make clear that a parent would have the right
to an independent educational evaluation if the parent disagrees with
the evaluation results and to the standard appeal rights and that a
court could enjoin improper exclusion during the pendency of the
evaluation and appeal process.
    Discussion: Redesignated paragraph (d) of this section does not
require the provision of services to a child while an expedited
evaluation is being conducted, if the public agency did not have a
basis for knowledge that the child was a child with a disability. An
educational placement under paragraph (d)(2)(ii) in those situations
can include a suspension or expulsion without services, if those
measures are comparable to measures applied to children without
disabilities who engage in comparable behavior. Of course, States and
school districts are free to choose to provide services to children
under this paragraph.
    There is no requirement that a disciplinary action be put on hold
pending the outcome of an expedited evaluation, or that the child's
parents be involved in placement decisions under paragraph (d)(2)(ii).
    No specific timeline for an expedited evaluation is included in the
regulations, as what may be required to conclude an evaluation will
vary widely depending on the nature and extent of a child's suspected
disability and the amount of additional information that would be
necessary to make an eligibility determination. However, the statute
and regulation specify that the evaluation in these instances be
``expedited'', which means that an evaluation should be conducted in a
shorter period of time than a normal evaluation. As Sec. 300.533 makes
clear, in some cases, an evaluation may be conducted based on a review
of existing data.
    With regard to an expedited evaluation, a parent's right to an
independent educational evaluation if they disagree with the results of
that evaluation and to normal appeal rights of that expedited
evaluation are not affected by this section. Courts have the ability to
enjoin improper exclusion of children from educational services in
appropriate circumstances.
    Changes: Language has been added to paragraph (d)(2)(ii) to make
clear that an educational placement under that provision may include
suspension or expulsion without educational services.

Expedited due Process Hearings (Sec. 300.528)

    Comment: Some commenters supported the time frames proposed for

[[Page 12630]]

expedited due process hearings in light of the need to get prompt
resolution of the various issues that are subject to these hearings. A
number of commenters expressed concern about being able to meet the
timelines proposed in paragraph (a) and suggested that the expedited
hearing timeline be set at some longer time such as 10 school days, 15
calendar days, 20 business days, or 20 school days, so that an orderly
hearing could be conducted, the parties' rights protected, and a well-
reasoned and legally sufficient decision could be rendered.
    Some commenters thought that this section should refer to
``expedited hearings'' rather than ``expedited due process hearings.''
Others noted the obligation of a hearing officer to schedule the
hearing quickly so that a decision could be reached within the time
frame. Some commenters asked that a provision be added to specify that
if a decision was not rendered within the time frame, the child would
remain in the alternative placement until the decision was issued,
while others asked that the child be returned to the regular placement
if the decision were not issued within that time frame.
    Some commenters were concerned that the provision proposed in
paragraph (b) not be read to reduce rights available to children and
parents under the law, and asked that a statement be added to the
regulation to specify that in no instance should the protections
afforded the student and parent under the Act be reduced.
    Some commenters asked that paragraph (c) provide an expedited
appeal process as well in light of the statutory emphasis on quick
resolution of disputes about disciplinary actions. Some commenters
asked that the regulations make clear that appeals of disputes under
Secs. 300.520-300.528 are to a State level review officer, if a State
has a two-tier due process system, and not to another due process
hearing officer.
    Discussion: Because of concerns that in some States it will not be
possible to conduct an orderly hearing and develop a well-reasoned,
legally sufficient decision within a 10 business day timeline, the
specific time limit would be removed and replaced with a requirement
that States establish a timeline for expedited due process hearings
that meet certain standards--it must result in written decisions being
mailed to the parties in less than 45 days, with no extensions of time
that result in a decision more that 45 days from the date of the
request for a hearing, and it must be the same period of time, whether
the hearing is requested by a public agency or parent. This will allow
States to develop a rule that is fairly applied to both parents and
school districts and is best suited to their particular needs and
circumstances.
    The regulations refer to expedited due process hearings rather than
expedited hearings to make clear that the procedural protections in
Secs. 300.508 and 300.509 are to be met. With regard to the hearings
provided for in section 615(k)(2) of the Act (Sec. 300.521 of the
regulations), the Committee reports accompanying Pub. L. 105-17 refer
to the hearings as ``expedited due process hearings.'' (S. Rep. No.
105-17, p. 31, H.R. Rep. No. 105-95 p. 111 (1997)) In addition, the
evidentiary standard specified in the statute for hearings under
Secs. 300.521 and 300.526(c) requires consideration of evidence
presented by both sides to a dispute, which rules out hearings which do
not permit each side an equal opportunity to present evidence.
Permitting a different standard to apply to expedited hearings on
parent appeals under Sec. 300.526(a) would be unfair to public
agencies. If a decision is not reached within the time frame specified,
the child's placement would be determined based on the other rules
provided in these regulations. For example, if a school district had
requested a hearing for the purpose of demonstrating that a child was
substantially likely to injure themselves or others if the child
remained in the current placement, the child could be removed from his
or her current placement for not more than 10 school days pending the
decision of the hearing officer, unless the child's parents and the
public agency agreed otherwise. (Sec. 300.519).
    If the child were in a 45-day interim alternative educational
setting and the parents appealed that determination, the child would
remain in that setting until the expiration of the 45 days or the
hearing officer's decision, whichever occurs first. (Sec. 300.526(a)).
If the child's parents oppose a proposed change of placement at the end
of a 45-day interim alternative educational setting, under
Sec. 300.526(b), the child returns to the child's prior placement at
the end of the interim placement, unless through another hearing and
decision by the hearing officer under Sec. 300.526(c), the interim
alternative educational setting is extended for an additional period of
time, not to exceed 45 days for each expedited hearing requested under
Sec. 300.526(c).
    Paragraph (b) of this section is designed to make clear that while
a State must insure that expedited due process hearings must meet the
requirements of paragraph (a) of this section, the State may alter
other State-imposed procedural rules from those it uses for hearings
under Sec. 300.507. This rule will ensure that the basic protections
regarding hearings under the Act are met, while enabling States to
adjust other procedural rules they may have superimposed on due process
hearings in light of the expedited nature of these hearings.
    No specific expedited appeal process is specified in the Act, and
none is added by these regulations. However, States should be able to
choose to adopt an expedited appeal procedure if they wish, including,
in States that have a two-tier normal due process procedure,
establishing a one-tier expedited hearing procedure (i.e., expedited
hearings conducted by the SEA) so that parties resort directly to a
State or Federal court, rather than appeal through a State-level appeal
procedure. Therefore, a change should be made to the regulation to
clarify that an appeal of an expedited due process hearing must be
consistent with Sec. 300.510.
    Changes: A technical change has been made to paragraph (a)(2) to
refer to Sec. 300.509 rather than Sec. 300.508. Paragraph (a)(1) has
been deleted and a new paragraph (b) has been added to provide that
each State establish a timeline for expedited due process hearings that
results in a written decision being mailed to the parties within 45
days, with no extensions permitted that result in decisions being
issued more than 45 days after the hearing request; and to require that
decisions be issued in the same period of time, whether the hearing is
requested by a parent or an agency. Paragraphs (a)(2) and (a)(3) have
been redesignated as paragraphs (a)(1) and (a)(2) and paragraphs (b)
and (c) have been redesignated as paragraphs (c) and (d). Redesignated
paragraph (d) has been revised to specify that expedited due process
hearings are appealable consistent with the Sec. 300.510. A
modification has been made to Sec. 300.526(a) regarding these appeals.

Referral to and Action by Law Enforcement and Judicial Authorities
(Sec. 300.529)

    Comment: Several commenters asked that paragraph (a) be modified to
clarify that reporting crimes to law enforcement authorities not
circumvent the school's responsibilities under IDEA to appropriately
evaluate and address children's behavior problems that are related to
their disabilities in a timely manner. Other commenters requested that
procedural safeguards similar to those in Secs. 300.520-300.528 be

[[Page 12631]]

incorporated into this section that would apply whenever an agency
makes a report of a crime by a child with a disability, including
conducting a manifestation determination on the relationship of the
behavior to the disability, applying the 10- and 45-day timelines to
any criminal or juvenile filing, notice to parents, and the right of
parents to appeal decisions and request due process. Some commenters
stated that any referral to juvenile or law enforcement authorities
should trigger notice to parents of the referral.
    Several commenters requested that the regulations specify that the
Act also permits school officials to press charges against a child with
a disability when they have reported a crime by that student.
    One commenter asked that paragraph (a) be modified to require that
a police report include a statement indicating that the student is in a
special education program and identify a contact person who can provide
additional information to appropriate authorities on request.
    Discussion: Paragraph (a) of Sec. 300.529 does not authorize school
districts to circumvent any of their responsibilities under the Act. It
merely clarifies that school districts do have the authority to report
crimes by children with disabilities to appropriate authorities and
that those State law enforcement and judicial authorities have the
ability to exercise their responsibilities regarding the application of
Federal and State law to crimes committed by children with
disabilities. The procedural protections that apply to reports of a
crime are established by criminal law, not the IDEA. Of course, it
would be a violation of Section 504 of the Rehabilitation Act of 1973
if a school were discriminating against children with disabilities in
how they were acting under this authority (e.g., if they were only
reporting crimes committed by children with disabilities and not
committed by nondisabled students).
    The Act does not address whether school officials may press charges
against a child with a disability when they have reported a crime by
that student. Again, school districts should take care not to exercise
their responsibilities in a discriminatory manner.
    With regard to indicating that a student is a special education
student and identifying a contact person who can provide appropriate
information to authorities to whom a crime is reported, as explained
more fully in the discussion on Sec. 300.529(b), under the
confidentiality requirements of these regulations (see, e.g.,
Sec. 300.571) and those of the Family Educational Rights and Privacy
Act (FERPA) (20 U.S.C. 1232g), personally identifiable information
(such as a student's status as a special education student) can only be
released with parental consent except in certain very limited
circumstances.
    Changes: None.
    Comment: A number of commenters asked that paragraph (b) of this
section include a reference to the requirements of FERPA and note that
public agencies must insure the confidentiality of records such as the
special education and disciplinary records referred to in this section.
Some asked that a provision be added making clear that a release to law
enforcement authorities could only be made pursuant to the requirements
of FERPA. Others asked whether this provision constituted an exception
to disclosure of education records under FERPA, and if so, that the
regulations make this clear. Some commenters noted that disclosure of
education records would be a significant burden on schools and that it
contradicts existing confidentiality and disclosure requirements. Some
commenters were concerned that other agencies would not maintain these
records in a way that would protect the often very sensitive
information that they contain.
    Discussion: Under sections 612(a)(8) and 617(c) of the Act, the
Secretary is directed to take appropriate action, in accordance with
FERPA to assure the confidentiality of personally identifiable
information contained in records collected or maintained by the
Secretary and by SEAs and LEAs (see Secs. 300.127, and 300.560-
300.577). The provisions of section 615(k)(9)(B) of the Act as
reflected in paragraph (b) of this section must be interpreted in a
manner that is consistent with the requirements of FERPA, and not as an
exception to the requirements of that law. In other words, the
transmission of special education and disciplinary records under
paragraph (b) of this section is permissible only to the extent that
such transmission is permitted under FERPA.
    If section 615(k)(9)(B) of the Act were construed to require, or
even permit, disclosures prohibited by FERPA, it arguably would violate
the equal protection rights of children with disabilities to be
protected against certain involuntary disclosures to authorities of
their confidential educational records to the same extent as their
nondisabled peers. To avoid this unconstitutional result, this
statutory provision must be read consistent with the disclosures
permitted under FERPA for the education records of all children.
    FERPA would permit disclosure of the special education and
disciplinary records mentioned in Sec. 300.529(b) only with the prior
written consent of the parent or a student aged 18 or older, or where
one of the exceptions to FERPA's consent requirements apply. (See also,
Sec. 300.571). For example, disclosure of special education and
disciplinary records would be permitted when the disclosure is made in
compliance with a lawfully issued subpoena or court order if the school
makes a reasonable attempt to notify the parent of the student of the
order or subpoena in advance of compliance. (34 CFR 99.31(a)(9)). This
prior notice requirement allows the parent to seek protective action
from the court, such as limiting the scope of the subpoena or quashing
it. Prior notice is not required when the disclosure is in compliance
with certain Federal grand jury or other law enforcement subpoenas. In
these cases, the waiver of the advance notification requirement applies
only when the law enforcement subpoena or court order contains language
that specifies that the existence or the contents of, or the
information furnished in response to, such subpoena or court order
should not be disclosed. (34 CFR 99.31(a)(9)(ii)). Additionally, under
FERPA, if the disclosure is in connection with an emergency and
knowledge of the information is necessary to protect the health or
safety of the student or other individuals (34 CFR 99.31(a)(10) and
99.36), disclosure may be made without parental consent. In addition,
schools may disclose education records without consent if a disclosure
is made pursuant to a State statute concerning the juvenile justice
system and the system's ability to effectively serve, prior to
adjudication, the student whose records are released. The State statute
must create an information sharing system, consisting only of State and
local officials, that protects against the redisclosure of a juvenile's
education records. (34 CFR 99.31(a)(5) and 99.38). For additional
information on the juvenile justice system provision and other
provisions under FERPA, refer to the U.S. Department of Education/U.S.
Department of Justice publication entitled Sharing Information: A Guide
to the Family Educational Rights and Privacy Act and Participation in
Juvenile Justice Programs. The publication can be downloaded from the
Family Policy Compliance Office's web site: www.ed.gov.office/OM/fpco
    In some instances, however, the Part 300 regulations are more
restrictive than FERPA. For example, the Part 300

[[Page 12632]]

regulations in the past prohibited disclosures without parent consent
to outside entities that FERPA would permit. (See proposed
Sec. 300.571(a) limiting disclosures without consent to officials of
participating agencies collecting or using the information under IDEA
and requiring consent before information is used for any purpose other
than meeting IDEA requirements.) Section 615(k)(9)(B) of the Act now
eliminates, with regard to children with disabilities who are accused
by schools of crimes, IDEA restrictions on the sharing of information
that is permissible under FERPA.
    Except in certain limited situations, information from special
education and disciplinary records may be disclosed only on the
condition that the party to whom the information is disclosed will not
disclose the information to any other party without the prior consent
of the parent. (34 CFR 99.33). This procedure should be sufficient to
ensure that those other parties maintain the records in a manner that
will protect the confidentiality of that information.
    Changes: Paragraph (b) of this section has been amended to make
clear that copies of a child's special education and disciplinary
records may be transmitted only to the extent that such transmission is
permitted under FERPA. Section 300.571 has been amended to note the
exception of this section.
    Comment: Some commenters asked that the regulations provide further
clarification about the disclosure of information described in
paragraph (b) by, for example, clarifying whether a request from a law
enforcement official is needed before a transfer, whether the LEA would
be permitted to determine the most appropriate official to receive the
records, and if all or part of the record is transmitted. Others asked
that the regulations specify that the records be transferred within a
short period of time so that they would be available for consideration
in decisions about the student's case or that some limitations be
imposed on what is transferred, such as records covering the past year,
or ``relevant'' records.
    Some commenters asked that the regulations impose some limitations
on this responsibility by defining ``appropriate authorities,''
``special education record,'' and ``disciplinary record.'' Others asked
that the regulations require SEAs to develop procedures regarding the
disclosure of education records to the appropriate authorities when
LEAs report a student's criminal activity because States' juvenile law
and criminal law enforcement systems are different.
    A few commenters asked that the agency reporting a crime be
responsible for ensuring that the child continues to receive FAPE in
accordance with the child's IEP with consultation with law enforcement,
judicial authorities, or any other agency responsible for the education
of incarcerated youth.
    Discussion: As explained in the prior discussion, FERPA limits the
extent to which disclosure of special education and disciplinary
records would be permitted. The circumstances that determine whether
records may be transmitted generally will determine whether a specific
request from a law enforcement official would need to be made, to whom
the records would be transmitted and the extent of the information
provided. In light of the fact-specific nature of the analysis
required, no specific definitions of terms used in paragraph (b) are
provided. The requirements of FERPA and its implementing regulations at
34 CFR Part 99 provide more specific guidance. The agency that is
responsible to ensure that a child receives FAPE when the child has
been accused of a crime and is in the custody of law enforcement and
judicial authorities will be determined by State law.
    Changes: None.

Procedures for Evaluation and Determination of Eligibility

Initial Evaluation (Sec. 300.531)

    Comment: A few commenters requested that this section be revised to
clarify that parents may request an initial evaluation, and some
requested that public agencies be required to conduct an initial
evaluation upon parent request. A few commenters requested that the
regulation be revised to require that, upon parent request, an initial
evaluation include new testing in all areas of suspected disability,
even if a determination is made, under Sec. 300.533(a), that no
additional data are needed. A few commenters requested that the
regulation be revised to specify the types of indicators, such as a
psychiatric hospitalization, that trigger the requirement that a child
be evaluated for possible disability.
    Other commenters requested that the regulation be revised to
clarify that initial evaluations are distinct from reevaluations, and
to require that initial evaluations be ``comprehensive,'' and include a
complete full and individual evaluation of the child in all areas of
suspected disability. A few commenters requested that Sec. 300.531 be
linked with Sec. 300.532(g), to make clear that a ``full and individual
initial evaluation'' under Sec. 300.531 means a comprehensive
evaluation in all areas of suspected disability.
    Discussion: The child find provisions of Sec. 300.125 require that
a public agency ensure that any child that it suspects has a disability
is evaluated. Under both prior law and these regulations, if a parent
requests an initial evaluation, the public agency must either: (1)
provide the parents with written notice of the agency's proposal to
conduct an initial evaluation if the agency suspects that the child has
a disability and needs special education and related services; or (2)
provide the parents with written notice of the agency's refusal to
conduct an initial evaluation if it does not suspect that the child has
a disability. The parent may challenge such a proposal or refusal by
requesting a due process hearing.
    If a group decision is made under Sec. 300.533(a) that no
additional data are needed as part of an initial evaluation, the public
agency is not required to conduct additional assessment as part of the
initial evaluation; however, the parents may challenge that decision by
initiating a due process hearing.
    The child find provisions in section 612(a)(3) and in these
regulations at Sec. 300.125 require that all eligible children be
identified, located and evaluated, and it is not necessary to establish
additional requirements regarding specific circumstances that trigger
an agency's responsibility to evaluate a child.
    Any initial evaluation or reevaluation of a child with a disability
must meet the requirements of Sec. 300.532; therefore, a child with a
disability must, as part of any initial evaluation or reevaluation, be
assessed in all areas of suspected disability (Sec. 300.532(g)).
However, as provided in Sec. 300.533(a) and explained above, the public
agency may not need to conduct assessment procedures to obtain
additional data in one or more areas of suspected disability depending
on what data are already available regarding the child.
    Changes: None.
    Comment: A few commenters requested that the regulations be revised
to provide guidelines for State timelines for completing initial
evaluations.
    Discussion: This issue is addressed in the discussion regarding
Sec. 300.342.
    Changes: None.

Evaluation Procedures (Sec. 300.532)

    Comment: Some commenters requested that the regulation be revised
to require that all tests and other evaluation materials and procedures
that are used to assess a child, including nonstandardized tests, be
validated for the specific purpose for which they are

[[Page 12633]]

used and administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the tests.
    Other commenters asked that the regulation be revised to require
that tests and other evaluation procedures be selected and administered
so as not to be discriminatory on a disability basis, and to prohibit
use of tests if there is controversy in the literature about a test's
validity for use with children with a particular disability unless a
local validation study has been conducted for the particular disability
that the child is suspected to have. A few commenters requested that
the regulation specify that evaluations that are conducted verbally
should use the language normally used by the child and not the language
used by the parents, if there is a difference between the two.
    A few commenters requested that the regulation be revised to
require that public agencies collect information regarding a child's
learning style(s) and needed methodologies as part of an evaluation,
because such information is critical in formulating appropriate
instructional methods to promote the child's learning. A few commenters
requested that the regulation be revised to require that three
individuals from different disciplines evaluate each child. A few
commenters requested that the regulation be revised to clarify that
tests and other materials used in evaluating each child must include a
full range of diagnostic techniques, including observations and
interview. A few commenters requested that Sec. 300.532(g) be revised
to require a comprehensive evaluation for all students, regardless of
their area of suspected disability, and a functional behavioral
assessment for each child who exhibits behavior that impedes learning.
    A few commenters requested that the regulation be revised to
require that initial evaluations and reevaluations address all of the
special factors that IEP teams must consider under Sec. 300.346(a)(2).
A few commenters asked that the regulation be revised to require that
evaluations provide information to enable public agencies to comply
with the requirements of Sec. 300.534(b)(1), which requires that a
child not be determined to be a child with a disability if the
determinant factor is a lack of instruction in reading or math.
    A few commenters requested that paragraphs (d), (e), and (f), and
Notes 1, 2, and 3, be deleted because they exceed the requirements in
the statute.
    A few commenters were concerned that Note 2 does not address the
broad array of unique circumstances in which it may be necessary, for
communication or other disability-specific reasons, to seek out an
appropriate evaluator who is not on the staff of the public agency.
    A few commenters raised concerns about valid assessment of Native
American children who are either Navajo-dominant speakers or bilingual.
They expressed particular concern regarding the limitations of
standardized written instruments in assessing children who speak
Navajo, which is a predominantly oral language, and asked for guidance
as to how Bureau of Indian Affairs schools will meet the requirements
in Sec. 300.532 regarding standardized assessment tools.
    A few commenters were concerned that the reference in Note 3 to
administration of assessment components by persons whose qualifications
do not meet standard conditions would appear to ``give permission'' for
the use of unqualified assessment personnel, and requested that this
reference be deleted from the note. Other commenters asked that Note 3
be deleted because it inappropriately implies that IDEA permits public
agencies to conduct assessments under ``substandard'' conditions.
    Several commenters requested that the substance of all of the notes
in the NPRM be incorporated into the text of the regulations, or that
the notes be deleted in their entirety.
    Discussion: The provisions of Sec. 300.532(c) regarding
requirements for standardized tests are consistent with section
614(b)(3)(B), which limits applicability of those requirements to
standardized tests. The selection of appropriate assessment instruments
and methodologies is appropriately left to State and local discretion.
    A public agency must ensure that: (1) the IEP team for each child
with a disability has all of the evaluation information it needs to
make required decisions regarding the educational program of the child,
including the consideration of special factors required by
Sec. 300.346(a)(2); and (2) the team determining a child's eligibility
has all of the information it needs to ensure that the child is not
determined to be a child with a disability if the determinant factor is
a lack of instruction in reading or math, as required by
Sec. 300.534(b)(1). It is not, therefore, necessary to establish an
additional requirement that evaluations address the requirements of
Sec. 300.346(a)(2) or Sec. 300.534(b)(1).
    Paragraphs (d), (e), and (f) were all among the provisions included
in the regulations as in effect on July 20, 1983, and are unaffected by
the IDEA Amendments of 1997.
    In evaluating each child with a disability, it is important for
public agencies to ensure that the evaluation is sufficiently
comprehensive to identify all of the child's special education and
related services needs, including any needs the child has that are
commonly linked to a disability category other than the disability in
which the child has been classified. Further, public agencies must
ensure that the services provided to each child under this part are
designed to meet all of the child's identified special education and
related services needs, and not those resulting only from the
disability area in which the child has been initially classified.
    As proposed Note 1 indicated, under Title VI of the Civil Rights
Act of 1964: (1) in order to properly evaluate a child who may be
limited English proficient, a public agency should assess the child's
proficiency in English as well as the child's native language to
distinguish language proficiency from disability needs; and (2) an
accurate assessment of the child's language proficiency should include
objective assessment of reading, writing, speaking, and understanding.
    Both Title VI and Part B require that a public agency ensure that
children with limited English proficiency are not evaluated on the
basis of criteria that essentially measure English language skills.
Sections 300.532 and 300.534(b) require that information about the
child's language proficiency must be considered in determining how to
conduct the evaluation of the child to prevent misclassification. In
keeping with the decision to eliminate all notes from the final
regulations, however, Note 1 has been removed. The text of Sec. 300.532
has been revised to require that assessments of children with limited
English proficiency must be selected and administered to ensure that
they measure the extent to which a child has a disability and needs
special education, and do not instead measure the child's English
language skills.
    Proposed Note 2 explained that paragraphs (a)(1)(i) and (2)(ii)
when read together require that even in situations where it is clearly
not feasible to provide and administer tests in the child's native
language or mode of communication for a child with limited English
proficiency, the public agency must still obtain and consider accurate
and reliable information that will enable the agency to make an
informed decision as to whether the child has a disability and the
effects of the disability on the child's educational needs. In some
situations, there may be

[[Page 12634]]

no one on the staff of a public agency who is able to administer a test
or other evaluation in a child's native language, as required under
paragraph (a)(2) of this section, but an appropriate individual is
available in the surrounding area. In that case a public agency could
identify an individual in the surrounding area who is able to
administer a test or other evaluation in the child's native language
include contacting neighboring school districts, local universities,
and professional organizations. This information will be useful to
school districts in meeting the requirements of the regulations, but
consistent with the general decision to remove all notes, Note 2 would
be removed.
    An assessment conducted under non standard conditions is not in and
of itself a ``substandard'' assessment. As proposed Note 3 clarified,
if an assessment is not conducted under standard conditions,
information about the extent to which the assessment varied from
standard conditions, such as the qualifications of the person
administering the test or the method of test administration, needs to
be included in the evaluation report. A provision has been added to the
regulation to make this point.
    This information is needed so that the team of qualified
professionals can evaluate the effects of these variances on the
validity and reliability of the information reported and to determine
whether additional assessments are needed. Again, while the proposed
note provided clarifying information on the regulatory requirements, in
keeping with the general decision to eliminate notes, Note 3 would be
removed.
    The provisions of the Act and Sec. 300.532, as revised to include a
provision regarding the use of nonstandard assessments, are sufficient
to ensure that the provisions of the regulation are appropriately
implemented for Navajo children, and no further changes are needed.
    Changes: Section 300.532 has been revised to require that
assessments of children with limited English proficiency must be
selected and administered to ensure that they measure the extent to
which a child has a disability and needs special education, and do not,
instead, measure the child's English language skills.
    A provision has been added to Sec. 300.532 to require that if an
assessment is not conducted under standard conditions, information
about the extent to which the assessment varied from standard
conditions, such as the qualifications of the person administering the
test or the method of test administration, must be included in the
evaluation report. Notes 1, 2, and 3 have been removed.
    A provision has been added to Sec. 300.532 to require that the
assessment be sufficiently comprehensive to identify all of a child's
special education and related services needs. A change also has been
made to Sec. 300.300 clarifying that services provided to each child
must be designed to meet all the child's identified special education
and related services needs.
    Paragraph (b) has been revised consistent with section 614(b)(2) of
the Act, to clarify that information about enabling the child to be
involved in and progress in the general curriculum or for a preschool
child to participate in appropriate activities may assist in
determining both whether the child has a disability and the content of
the child's IEP.

Determination of Needed Evaluation Data (Sec. 300.533)

    Comment: A few commenters requested that the regulation or a note
clarify that it is expected that typically some new tests or
assessments will be required as part of reevaluations. A number of
commenters were concerned that, absent more specific requirements
mandating the use of additional assessments, public agencies would rely
on outdated assessment information regarding the needs of children with
disabilities, especially since the needs of children with disabilities
may change significantly over time, and some requested that the
regulations be revised to define a maximum ``age'' for data that a
public agency may rely upon as part of an evaluation. A few other
commenters were concerned that the required IEP team participants often
would not have the appropriate qualifications and expertise to judge
the validity of existing data and to determine what if any additional
data are needed.
    A few others requested that the regulation be revised to require
that a public agency collect additional data to determine whether a
child continues to be a child with a disability, unless the agency
obtains signed, informed parent consent to not collect such additional
data, and that States be required to report on the number of such
parent ``waivers.'' Other commenters requested that the regulation or
note clarify that the provisions of Sec. 300.533(c) apply only to the
portion of a reevaluation that addresses whether a child continues to
be a child with a disability, and not the portion that addresses the
child's needs for special education and related services.
    A few commenters requested that parents be required to justify any
request for additional assessment data. A few other commenters
requested that public agencies be required to inform parents of their
right to request additional assessments to determine whether their
child has a disability.
    A few commenters thought that is was important to clarify that a
public agency may use data from prior assessments conducted by
individuals or agencies other than the public agency in determining
what additional data were needed.
    Some commenters requested that the note be deleted.
    Discussion: Whether additional data are needed as part of an
initial evaluation or reevaluation must be determined on a case-by-case
basis, depending upon the needs of the child and the information
available regarding the child, by a group that includes the individuals
described in Sec. 300.344 and other qualified professionals, as
appropriate.
    It is intended that the group review all relevant existing
evaluation data on a child, including that provided by the parents and,
where appropriate, data from evaluations conducted by other agencies. A
public agency must ensure that the group fulfilling these functions
include individuals beyond those described in Sec. 300.344 if necessary
to ensure that appropriate, informed decisions are made (see
Sec. 300.533).
    Requiring public agencies to obtain informed written consent
permitting them not to collect, as part of a reevaluation, additional
data to determine whether a child continues to be a child with a
disability, would exceed the requirements of the statute, as would
requiring States to report on the number of children for whom a
reevaluation does not include collecting additional data to determine
whether they continue to be children with disabilities.
    The provisions of Sec. 300.533(c) apply only to the collection of
additional data needed to determine whether a child continues to be a
child with a disability.
    It would not be consistent with the statute and these regulations
to require that parents ``justify'' any request for additional
assessment data. Parents must be included in the group that reviews
existing data and determines what additional data are needed, and, as
part of that group, they have the right to identify additional
assessment data that they believe are needed and to participate in the
decision regarding the need for those data. Both the statute and these
regulations require that the determination regarding the need for

[[Page 12635]]

additional data be based, in part, on input from the parents. Under
both the statute and these regulations, parents also have the right to
request an assessment, as part of a reevaluation, to determine whether
their child continues to have a disability under IDEA. However, this
right is limited to determinations of eligibility for services under
Part B. If the group reviewing the existing data does not believe
additional data are needed to determine a child's continued eligibility
under IDEA, but the parents want additional testing for reasons other
than continued eligibility under IDEA, such as admission to college,
the denial of the parent's request would be subject to due process.
    An additional requirement that parents be informed of their right
to request additional assessment data is not needed, as it is already
addressed by paragraph (c)(1)(iii).
    The proposed note clarified that the requirement in Sec. 300.533(a)
and Sec. 300.534(a)(1) that review of evaluation data and eligibility
decisions be made by groups that include ``qualified professionals,''
is intended to ensure that the group making these determinations
include 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 a disability under Sec. 300.7, and to
determine whether the child needs special education and related
services.
    The composition of the group will vary depending upon the nature of
the child's suspected disability and other relevant factors. For
example, if a student is suspected of having a learning disability, a
professional whose sole expertise is visual impairments would be an
inappropriate choice. If a student is limited English proficient, it
will be important to include a person in the group of qualified
professionals who is knowledgeable about the identification,
assessment, and education of limited English proficient students. While
the proposed note provided clarifying information on the regulatory
requirements, in keeping with the general decision to eliminate notes,
the note would be removed.
    Changes: The note has been removed. Paragraph (d) has been revised
to clarify that the parent's right to request an evaluation regarding
continued eligibility concerns services under Part B.
    Comment: Some commenters requested that the regulation be revised
to provide further guidance as to whether public agencies are required
to convene a meeting to review existing evaluation data on a child and
to determine what, if any, additional data are needed as part of the
evaluation. A few commenters stated their opinion that the Congress did
not intend to establish a new requirement for an additional meeting
that public agencies must convene. Others asked for clarity as to
whether a public agency could meet the requirements of Sec. 300.533(a)
by reviewing existing data and determining what additional data are
needed as part of the child's IEP meeting during the second year of the
three year evaluation cycle. A few commenters asked that the regulation
be revised to require that parents are entitled to participate in any
meeting held to review existing data.
    A few other commenters requested that the regulation be revised to
provide that only those members of the IEP team needed to review
current goals and objectives must participate in the review of existing
data, and that not all members involved in the initial placement need
be involved unless there is to be a change in the placement or
identification of the child.
    Discussion: Section 300.533(a) requires that a group that includes
the individuals described in Sec. 300.344 (regarding the IEP team) and
other qualified professionals, as appropriate, review the existing
evaluation data and determine what additional data are needed. Although
a public agency must ensure that the review of existing data and the
determination of any needed additional data must be made by a group,
including the parents, neither the statute nor these regulations
require that the public agency conduct a meeting for this purpose. A
State may, however, require such meetings.
    Section 300.501(a)(2)(i) requires that parents have an opportunity
to participate in meetings with respect to the evaluation of their
child with a disability. Therefore, if a public agency conducts a
meeting, as defined in Sec. 300.501(b)(2), to meet its responsibilities
under Sec. 300.533, the parents must have an opportunity to participate
in the meeting.
    Neither the statute nor these regulations requires that all
individuals who were involved in the initial placement of a child with
a disability be part of the group that, as part of a reevaluation of
the child reviews existing data and determines what additional data are
needed. Both the statute and the regulations require, however, that a
group that includes all of the individuals described in Sec. 300.344
for an IEP meeting, and other qualified professionals, as appropriate,
fulfill those functions.
    Changes: Paragraph (a) has been revised to refer to the group that
includes the individuals described in Sec. 300.344 and other qualified
individuals. A new paragraph (b) has been added to make clear that a
meeting is not required to review existing evaluation data.

Determination of Eligibility (Sec. 300.534)

    Comment: A few commenters requested that the regulation provide
further guidance regarding the standards and process public agencies
must use to ensure that lack of instruction in reading or math is not
the determinant factor in determining that a child is a child with a
disability. Other commenters requested that the regulation clarify that
proposed Sec. 300.534(b) does not mean that a child who has a
disability and requires special education and related services because
of that disability can be found ineligible simply because the child
also has been denied instruction in reading or math or because the
child has limited English proficiency.
    Some commenters asked for clarification as to whether, if the group
determines under Sec. 300.533 that no further data are needed, a public
agency may, without further evaluation, meet its obligation under
proposed Sec. 300.534(c) to evaluate a child with a disability before
determining that the child is no longer a child with a disability.
    A few commenters requested that the regulation be revised to
clarify the meaning of ``evaluation report.'' A few commenters
requested that the regulation be revised to require that a public
agency provide information to parents regarding the results of an
evaluation prior to conducting an IEP meeting, and other commenters
requested that the regulations specify a timeline for how quickly the
public agency must provide parents with a copy of the evaluation
report.
    A few commenters asked for clarification as to whether a public
agency must conduct an evaluation of a child with a disability before
the agency may graduate the child. (This issue is addressed in the
discussion regarding Sec. 300.121.)
    Discussion: The specific standards and process that public agencies
use to ensure that lack of instruction in reading or math is not the
determinant factor in determining that a child is a child with a
disability, and the content of an evaluation report, are appropriately
left by the statute to State and local discretion. However, a public
agency must ensure that a child who has a disability, as defined in
Sec. 300.7 (i.e., a child who has been evaluated in accordance with
Secs. 300.530-300.536 as

[[Page 12636]]

having one of the thirteen listed impairments, and who because of that
impairment needs special education and related services) is not
excluded from eligibility because that child also has limited English
proficiency or has had a lack of instruction in reading or math. (See
also Sec. 300.532, which has been revised to require that assessments
of children with limited English proficiency must be selected and
administered to ensure that they measure the extent to which a child
has a disability and needs special education, and do not instead
measure the child's English language skills.)
    The specific content of an evaluation report is appropriately left
by the statute to State and local discretion. Both the statute and the
regulations require that, upon completing the administration of tests
and other evaluation materials, a public agency must provide a copy of
the evaluation report and the documentation of determination of
eligibility to the parent, but neither establishes a timeline for
providing these documents to the parents; rather, this timeline is
appropriately left to State and local discretion. It is, however,
important to ensure that parents and other IEP team participants have
all the information they need to participate meaningfully in IEP
meetings. Indeed, Sec. 300.562(a) requires that a public agency comply
with a parent request to inspect and review existing educational
records, including an evaluation report, without unnecessary delay and
before any meeting regarding an IEP.
    A public agency must evaluate a child with a disability before
determining that the child is no longer a child with a disability, but
such a reevaluation is, like other reevaluations, subject to the
requirements of Sec. 300.533. Accordingly, if a group decision is made
under Sec. 300.533(a) that no additional data are needed to determine
whether the child continues to be a child with a disability, the public
agency must provide parents with the notice required by
Sec. 300.533(d)(1), and must provide such additional assessment(s) upon
parent request consistent with Sec. 300.533(d)(2).
    Changes: Paragraph (b) is revised to clarify that children are not
eligible if they need specialized instruction because of limited
English proficiency or lack of instruction in reading or math, but do
not need specialized instruction because of a disability, as defined in
Sec. 300.7. See discussion of comments received under Sec. 300.122
regarding a change to Sec. 300.534(c).

Procedures for Determining Eligibility and Placement (Sec. 300.535)

    Comment: Some commenters requested that parents be added to the
variety of sources from which the public agency will draw, under
Sec. 300.535(a)(1), in interpreting evaluation data for the purpose of
determining if a child is a child with a disability.
    Discussion: The proposed change is consistent with section
614(b)(4)(A), which requires that the parent be part of the team that
determines eligibility, and other provisions of the Act that stress the
importance of information provided by the parents.
    Changes: Section 300.535(a)(1) is revised to add ``parent input''
to the variety of sources from which the public agency will, under
Sec. 300.535(a)(1), draw in interpreting evaluation data for the
purpose of determining if a child is a child with a disability.
    Comment: A few commenters were concerned that the note
inappropriately implied that it is not necessary to use a team of
professionals and more than one assessment procedure to plan and
implement the evaluation for a child and to determine eligibility. A
few other commenters stated that the note inappropriately states that
all sources must be used for all children whose suspected disability is
mental retardation. Other commenters requested that the note be revised
to state that for some children information from additional sources,
such as an assessment of independent living skills, might be needed.
    Discussion: Section 300.532 requires that a variety of assessment
tools be used, that no single procedure be used as the sole criterion
for determining the eligibility or needs of a child with a disability,
and that the child be assessed in all areas of suspected disability.
Section 300.534 requires that a team of professionals and the parent
determine a child's eligibility.
    The proposed note did not in any way diminish these requirements.
It clarified that, consistent with the statute and these final
regulations, the point of Sec. 300.535(a)(1) is to ensure that more
than one source is used in interpreting evaluation data and in making
these determinations, and that although that subsection includes a list
of examples of sources that may be used by a public agency in
determining whether a child is a child with a disability, as defined in
Sec. 300.7, the agency would not have to use all the sources in every
instance. While the proposed note provided clarifying information on
the regulatory requirements, in keeping with the general decision to
eliminate notes, the note would be removed.
    Changes: The note has been removed.

Reevaluation (Sec. 300.536)

    Comment: Some commenters asked for clarification as to what
constitutes a reevaluation. A few of these commenters asked whether a
determination under Sec. 300.533(a) that no additional data are needed
as part of a reevaluation constitutes a reevaluation and whether parent
consent under Sec. 300.505(a)(iii) is required under such
circumstances.
    A few commenters requested clarification as to whether a public
agency must provide a reevaluation each time that a parent requests a
reevaluation. A few commenters asked that a Note clarify that a public
agency must conduct a reevaluation upon parent request, whether or not
the public agency agrees that a reevaluation is needed, while others
requested clarification that a public agency may refuse a parent
request for reevaluation and afford parents the opportunity for a due
process hearing to challenge the refusal. A few other commenters asked
for clarification as to whether a public agency must conduct an
evaluation whenever requested by the parent, regardless of the
frequency of such requests.
    A few commenters asked that the regulation be revised to require
that public agencies consider the need for a reevaluation of a child
with a disability at least once every three years, rather than require,
as in the NPRM, that a reevaluation be conducted at least once every
three years.
    Discussion: Under both prior law and the current regulations, if a
parent requests a reevaluation, the public agency must either: (1)
provide the parents with written notice of the agency's proposal to
conduct the reevaluation; or (2) provide the parents with written
notice of the agency's refusal to conduct a reevaluation. The parent
may challenge such a proposal or refusal by requesting a due process
hearing. If the agency conducts a reevaluation and the evaluation group
concludes that under Sec. 300.533(a) no additional data are needed to
determine whether the child continues to be a child with a disability,
the public agency must provide parents with the notice required by
Sec. 300.533(c)(1), and must provide such assessment upon parent
request.
    The statute specifically requires at section 614(a)(2) that ``a
reevaluation of each child with a disability is conducted ... at least
once every three years.'' However, in meeting this

[[Page 12637]]

requirement, a group will, pursuant to Sec. 300.533, review existing
data and determine what, if any, additional assessment data are needed.
Parent consent is not required for a review of existing data; however,
parent consent would be required before additional assessments are
conducted.
    Changes: None.
    Comment: A few commenters noted that Sec. 300.536(b) references
Sec. 300.530(b), a nonexistent subsection.
    Discussion: The noted reference is a typographical error.
    Changes: Section 300.536(b) has been revised to refer to
Sec. 300.530 rather than Sec. 300.530(b).

Additional Procedures for Evaluating Children With Specific Learning
Disability (Secs. 300.540--300.543)

    Comment: Commenters raised a variety of issues regarding the
regulatory provisions concerning the additional procedures for
evaluating children suspected of having specific learning disabilities.
However, none of those comments raised significant concerns about the
minor changes from prior regulations proposed in the NPRM, which were
designed merely to accommodate new statutory provisions regarding the
participation of parents in evaluation determinations and evaluation
reports and documentation of eligibility determinations applicable to
all eligibility determinations, including those regarding specific
learning disabilities.
    Discussion: As indicated in the preamble to the NPRM, the
Department is planning to conduct a careful, comprehensive review of
research, expert opinion and practical knowledge of evaluating and
identifying children with a specific learning disability over the next
several years to determine whether changes to the standards and process
for identifying children with a specific learning disability should be
proposed. Because that review has not been done, no further changes are
made to the regulations.
    Changes: None.

General LRE Requirements (Sec. 300.550)

    Comment: A number of commenters asked that the regulation be
revised to make clear that a child with a disability cannot be removed
from the regular class environment based on the type or degree of
modifications to the general curriculum that the child needs, or on the
types of related services that the child needs. Some commenters asked
that paragraph (b)(1) be revised to make clear that whatever the
setting selected, the child is educated in the general curriculum.
Others asked that paragraph (b)(2) be revised to require consideration
of positive behavioral supports in educating children with disabilities
in regular classes.
    A few commenters asked that a cross-reference to the exceptions in
Sec. 300.311(b) and (c) be added for students with disabilities
convicted as adults and incarcerated in adult prisons. Several
commenters asked that a note be added to specify that ESY services must
be provided in the LRE. Another asked that a note explain that the
reference to ``special classes'' in paragraph (b)(2) refers to special
classes based on special education needs rather than special classes
that the LEA makes available to all children, whether nondisabled or
disabled, such as remedial reading, art, or music classes.
    Discussion: Placement in the LRE requires an individual decision,
based on each child's IEP, and based on the strong presumption of the
IDEA that children with disabilities be educated in regular classes
with appropriate aids and supports, as reflected in paragraph (b) of
this section. The regulations always have required that placement
decisions be based on the individual needs of each child with a
disability and prohibited categorical decision-making.
    In addition, the new statutory provisions regarding IEPs, reflected
in the regulations at Sec. 300.347(a)(1) and (2) specify that IEPs must
include a statement of how the child's present levels of educational
performance affect the child's involvement and progress in the general
curriculum and a statement of measurable annual goals, including
benchmarks or short-term objectives for meeting the child's disability-
related needs to enable the child to be involved in and progress in the
general curriculum. These provisions apply regardless of the setting in
which the services are provided.
    Similarly, the IEP team, in developing the IEP under
Sec. 300.346(a)(2)(i), is required to consider positive behavioral
intervention, strategies and supports to address the behavior of a
child with a disability whose behavior impedes his or her learning or
that of others. These provisions are designed to foster the increased
participation of children with disabilities in regular education
environments or other less restrictive environments, not to serve as a
basis for placing children with disabilities in more restrictive
settings.
    The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires careful
consideration of whether the child can appropriately function in the
regular classroom if provided appropriate behavioral supports,
strategies and interventions. If the child can appropriately function
in the regular classroom with appropriate behavioral supports,
strategies or interventions, placement in a more restrictive
environment would be inconsistent with the least restrictive
environment provisions of the IDEA. If the child's behavior in the
regular classroom, even with the provision of appropriate behavioral
supports, strategies or interventions, would significantly impair the
learning of others, that placement would not meet his or her needs and
would not be appropriate for that child.
    The IDEA Amendments of 1997 place renewed emphasis on teaching
children with disabilities to the general curriculum and ensuring that
these children are included in State- and district-wide assessments of
educational achievement. Because, as commenters noted, one consequence
of heightened accountability expectations may be unwarranted decisions
to remove children with disabilities from regular classrooms so as to
avoid accountability for their educational performance, the regulations
should make clear that the type or extent of the modifications that the
child needs to the general curriculum not be used to inappropriately
justify the child's removal from education in regular, age-appropriate
classrooms. Therefore, a provision should be added to Sec. 300.552 to
provide that a child not be denied education in age-appropriate regular
classrooms solely because the child's education required modification
to the general curriculum. Under this provision, for example, a child
with significant cognitive disabilities could not be removed from
education in age-appropriate regular classrooms merely because of the
modifications he or she needs to the general curriculum. This provision
should not be read to require the placement of a child with a
disability in a particular regular classroom or course if more than one
regular age-appropriate classroom or course is available in a
particular grade or subject.
    A cross-reference to the exceptions in Sec. 300.311(b) and (c),
like that in Sec. 300.347(d), will make the regulations clearer and
more complete.
    As the discussion of Sec. 300.309 explains in more detail, while
ESY services must be provided in the LRE, public agencies are not
required to create new programs as a means of providing ESY services to
students with disabilities in integrated settings if the public agency
does not provide summer services for its nondisabled children.

[[Page 12638]]

    While the commenters are correct that the reference to ``special
classes'' in paragraph (b)(2) refers to special classes necessary to
meet special education needs, and not classes that an LEA makes
available to all children, such as remedial reading, or advanced
placement, art or music classes, paragraph (b)(1) provides that the LRE
provisions of the regulations are focused on educating children with
disabilities with nondisabled children to the maximum extent
appropriate. In that context, the reference to ``special classes'' is
to classes organized on the basis of disability and not classes that
are based on some other interest, need or ability of the students.
    Changes: A cross-reference to the requirements of Sec. 300.311(b)
and (c) has been added to paragraph (a).
    A new paragraph has been added to Sec. 300.552 prohibiting removal
of a child with a disability from an age-appropriate regular classroom
solely because of needed modifications in the general curriculum.

Continuum of Alternative Placements (Sec. 300.551)

    Comment: A number of commenters requested that the regulation
include a statement that a child does not need to fail in each of the
less restrictive options on the continuum before they are placed in a
more restrictive continuum placement that is appropriate to their
needs. These commenters felt that this was needed to insure that
children get appropriate services in a timely manner. Some commenters
requested that the regulations specify that the placement appropriate
for children who are deaf must be in a setting where the child's unique
communication, linguistic, social, academic, emotional, and cultural
needs can be met, including opportunities for interaction with
nondisabled peers.
    Discussion: The regulations do not require that a child has to fail
in the less restrictive options on the continuum before that child can
be placed in a setting that is appropriate to his or her needs. Section
300.550(b)(2) of the regulations however, does require that the
placement team consider whether the child can be educated in less
restrictive settings with the use of appropriate supplementary aids and
services and make a more restrictive placement only when they conclude
that education in the less restrictive setting with appropriate
supplementary aids and services cannot be achieved satisfactorily. New
statutory changes to the IEP development process make clear that the
IEP team considers the language and communication needs, opportunities
for direct communication with peers and professional personnel in the
child's language and communication mode, academic level and full range
of needs, including opportunities for direct instruction in the child's
language and communication mode in developing IEPs for children who are
deaf or hard of hearing. These requirements, which are included in the
regulations at Sec. 300.346(a)(2)(iv), should address the concerns
raised by the commenters. In light of this change, further regulation
is not necessary.
    Changes: None.
    Comment: A number of commenters expressed concern about the note
following this section regarding home instruction. Some stated that the
note should be struck because it implied that home instruction was an
appropriate placement for all medically fragile children and that this
was contrary to the requirement that placement be determined based on
the individual needs of each child. Some asked that the regulation
limit home instruction to those medically fragile children whose
treating physicians have certified are not able to participate in a
school setting with other children.
    Others disliked the note because they believed that home
instruction should be available in other instances when the IEP team
determines that such a placement is appropriate and should not be
limited by type of disability. Some commenters wanted the note to be
revised to make clear that home instruction could be available for
children with behavior problems and those in interim alternative
educational placements because they had been suspended or expelled from
school for disciplinary reasons if the IEP team determined that it was
the appropriate placement. Others asked that the note should be revised
to caution about the inappropriate use of home instruction as a
placement for children suspended and expelled, unless requested by the
parent for medical, health protection, or diagnostic evaluation
purposes. Some commenters asked that the note make clear that
discipline issues should be handled through the provision of
appropriate services in placements other than home.
    Some commenters asked that the note be modified to state that home
instruction services may be appropriate for young children if the IEP/
IFSP team determines appropriate. Other commenters asked that the
regulations make clear that home instruction services are an
appropriate modification of the IEP or placement for incarcerated youth
who are being kept in segregation, close custody or mental health
units.
    Discussion: Home instruction is, for school-aged children, the most
restrictive type of placement because it does not permit education to
take place with other children. For that reason, home instruction
should be relied on as the means of providing FAPE to a school-aged
child with a disability only in those limited circumstances when they
cannot be educated with other children even with the use of appropriate
related services and supplementary aids and services, such as when a
child is recovering from surgery. The implication in the note that
placement decisions could be based on the type of disability of a child
was unintended.
    Instruction at home may be the most natural environment for a young
child with a disability if the child's IEP/IFSP team so determines.
`Home instruction' may be an appropriate modification of an IEP or
placement under Sec. 300.311 for incarcerated youth who are being kept
in close custody, or segregation or in a mental health unit. The issue
of home instruction for children with disabilities who have been
suspended or expelled for behavior that is not a manifestation of their
disability is addressed under Sec. 300.522.
    Changes: The note has been deleted.

Placements (Sec. 300.552)

    Comment: A number of commenters asked that paragraph (a)(1) be
revised to require that parents be informed about the full range of
placement options, especially for children who are deaf or hard of
hearing. Often these commenters also asked that the regulations contain
a statement that the appropriate placement of a child who is deaf or
hard of hearing is the setting in which the child's unique
communication, linguistic, academic, social, emotional and cultural
needs can be met.
    One commenter asked that the regulations include standards for
numerical improvements in the percentages of children with disabilities
who are educated in regular classes and dates by which those standards
are to be met.
    Discussion: The discussion concerning Sec. 300.551 notes that the
IEP provisions of the regulations already incorporate statutory
language concerning the need to consider the particular needs of
children who are deaf or hard of hearing in developing appropriate
IEPs.
    Since placements are determined based on the needs of individual
children, and because the IDEA Amendments of 1997 provide that parents
of children with disabilities are members of any group that makes

[[Page 12639]]

decisions on the education placement of their child (section 614(f) of
the Act) it would seem to be unnecessary and unreasonably burdensome to
require LEAs to inform parents about the full range of placement
options.
    Under Sec. 300.501(c), parents must now be included in the group
making decisions about the educational placement of their child. In
view of the principle of regulating only if necessary, the regulations
are not changed in the ways suggested by these commenters.
    With respect to paragraph (a)(1) of this section, nothing in the
regulations would prohibit a public agency from allowing the group of
persons that makes the placement decision to also serve as the child's
IEP team, so long as all individuals described in Sec. 300.344 are
included. However, in the interest of limiting the use of notes in
these regulations, Note 1 would be removed.
    Changes: Note 1 has been removed. See discussion of comments
received under Sec. 300.550 regarding the addition of a new
Sec. 300.552(e) prohibiting removal of a child with a disability from
an age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
    Comment: A number of commenters asked for revisions to the
regulation designed to foster the inclusion of children with
disabilities in the schools and classrooms they would attend if not
disabled, such as explaining that children with disabilities could be
placed at another school only with compelling educational justification
and not for reasons of administrative convenience, or requiring that
the child be educated at the school that they would attend if not
disabled unless the child's educational needs require some other
placement. Others wanted the regulation to recognize the administrative
right to make geographic assignments so that not every facility in a
school district would need to be made accessible, as provided under the
Section 504 and Americans with Disabilities Act regulations.
    Discussion: LEAs are strongly encouraged to place children with
disabilities in the schools and classrooms they would attend if not
disabled. However, the regulatory provision has always provided that
each child with disabilities be educated in the school he or she would
attend if not disabled unless their IEP required some other
arrangement. (See, Sec. 300.552(c)). Physical accessibility of school
facilities is covered more fully by section 504 of the Rehabilitation
Act of 1973 (Section 504) and the Americans with Disabilities Act
(ADA).
    Changes: None.
    Comment: Some commenters felt that paragraph (d) of the regulation
required burdensome, unnecessary paperwork. Others requested its
deletion because they felt that too often a district is unwilling to
prevent potential harmful effects and uses this provision to make
segregated placements that are then presented as being ``in the child's
best interest.'' One commenter asked that this paragraph be revised to
emphasize how integration of children with disabilities and nondisabled
children and successful learning are now necessary conditions of one
another.
    Discussion: Paragraph (d) of this section does not impose paperwork
burdens. Paragraph (d) of this section provides important protections
for children with disabilities and helps ensure that they and their
teachers have the supports to prevent any harmful effect of a placement
on the child or on the quality of services that he or she needs. If the
placement team 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 time.
    Generally, as the commenter suggests, achievement test performance
of students in inclusive classes is the equivalent or better than
achievement test performance of others in segregated setting and self-
concept, social skills and problem solving skills improve for all
students in inclusive settings. Placement decisions, however, need to
consider the individual needs of each child.
    Changes: None.
    Comment: A number of commenters were concerned with placement
considerations for preschool-aged children with disabilities. Some
expressed support for the language in Note 2 regarding preschool
children with disabilities. Others thought that the language of the
note that indicated that school districts that did not operate regular
preschool programs might have to place preschool children with
disabilities in private preschool programs as a means of providing
services in the LRE should be struck as it was not required by the
statute, or would be costly to implement.
    Some thought the explanation about LRE for preschool children with
disabilities should be in the regulation, as it is important that
schools understand that they may meet the requirements of paragraph (c)
for preschool children with disabilities by participating in other
preschool programs such as Head Start, operated by other agencies,
through private agencies serving preschool-aged children, and by
locating preschool programs in elementary education schools that serve
all children.
    One commenter asked that the reference to `private school programs
for nondisabled children' be struck as suggestive that private schools
are not bound to comply with the ADA. Some commenters thought that the
note implied that a full continuum is not needed for preschool children
with disabilities and should be revised. Another commenter stated that
locating classes of preschool children with disabilities in regular
elementary schools is not an appropriate solution to meeting the LRE
for preschoolers and should be struck from the note.
    Discussion: Language has been added to the regulation to clarify
that the requirements of Sec. 300.552, as well as the other
requirements of Secs. 300.550-300.556, apply to all preschool children
with disabilities who are entitled to receive FAPE. Note 2 to this
section in the NPRM was intended to provide suggestions on how a public
agency may meet the LRE requirements if it does not generally provide
education to nondisabled preschool children. However, in light of the
general decision to remove all notes from these final regulations, the
note would be removed.
    Public agencies that do not operate programs for nondisabled
preschool children are not required to initiate those programs solely
to satisfy the requirements regarding placement in the LRE. For those
public agencies, the note provided some alternative methods for meeting
the LRE requirements. The examples in the note of placing preschool
children with disabilities in private preschool programs and locating
classes for preschool children with disabilities in regular elementary
schools as a means of meeting the LRE requirements were not intended to
limit the placements options on the continuum which may be used to meet
the LRE needs of preschool children. The full continuum of alternative
placements at 34 CFR 300.551, including integrated placement options,
such as community-based settings with typically developing age peers,
must be available to preschool children with disabilities.
    The overriding rule in this section is that placement decisions for
all children with disabilities, including preschool children, must be
made on an individual basis. The reference in the note to ``private
school programs for nondisabled children'' was not intended to suggest
that private schools are not required to comply with the ADA.

[[Page 12640]]

    The second part of Note 2 to proposed Sec. 300.552 cited language
from the 1976 published analysis of comments on the regulations
implementing Section 504 of the Rehabilitation Act of 1973. The issues
raised by that analysis (appropriate placement for a child with
disabilities whose behavior in a regular classroom significantly
impairs the education of other students, and placement of a child with
disabilities as close to home as possible) are addressed elsewhere in
this attachment.
    Changes: A reference to preschool children with disabilities has
been added to the introductory paragraph of Sec. 300.552. Note 2 has
been removed.
    Comment: Several commenters requested adding language that would
prohibit States from using a funding mechanism to provide financial
incentives to place children with disabilities in a particular type of
placement and to specify that State funding mechanisms must be
``placement neutral'.
    A number of commenters asked that the regulations explicitly
include a presumption that placement of children with disabilities is
in the regular class, and that the placement team must consider the use
of positive behavioral interventions, and supplementary aids and
services before concluding that placement in a regular class is not
appropriate for a child with a disability. Others asked that the
substance of Note 3 (explaining that if behavioral interventions are
incorporated into the IEP many otherwise disruptive children will be
able to participate in regular classrooms) be incorporated into the
regulations. Others felt that Note 3 added steps and services that
exceeded the statute.
    Discussion: Section 300.130(b) incorporates into the regulations
the new statutory provision that specifies that if a State has a
funding mechanism that distributes State funds on the basis of the type
of setting in which a child is served, that mechanism may not result in
placements that violate the LRE requirements, and if the State does not
have policies and procedures to ensure compliance with that obligation,
it provides the Secretary with an assurance that it will revise the
funding mechanism as soon as feasible. Given that requirement, no
further change is necessary here.
    A presumption of placement in a regular class is already embodied
in Sec. 300.550. Note 3 to this section in the proposed regulations
merely stated the reasonable conclusion that if behavioral
interventions are incorporated into the IEPs of children with
disabilities, many of these children, who without those services might
be disruptive, can be successfully educated in regular classrooms. Note
3 added no requirements or services that exceed the statute, as the
requirement to consider positive behavioral interventions, strategies,
and supports to address the behavior of children with disabilities
whose behavior impedes his or her learning or that of others, which is
contained in Sec. 300.346(a)(2)(i), is taken directly from section
614(d)(3)(B)(i) of the Act. Nevertheless, in the interest of
eliminating the use of notes in these regulations, Note 3 should be
removed, as it was merely an observation, based on the requirements of
the regulations.

Changes: Note 3 has been removed.

Nonacademic Settings (Sec. 300.553)

    Comment: None.
    Discussion: The note following this section in the NPRM pointed out
that this provision is related to the requirement in the regulations
for section 504 of the Rehabilitation Act of 1973, and emphasized the
importance of providing nonacademic services in as integrated a setting
as possible, especially for children whose educational needs
necessitate their being solely with other disabled children during most
of the day. Even children with disabilities in residential programs are
to be provided opportunities for participation with other children to
the maximum extent appropriate to their needs. However, in light of the
decision to remove all notes from these final regulations, the note
following this section would be removed.
    Changes: The note following this section has been removed.

Children in Public or Private Institutions (Sec. 300.554)

    Comment: One commenter thought that the language of this section
was ambiguous and left confusion as to whether special arrangements
with public and private institutions were required whether they were
needed or not. Another commenter proposed changes that would require
arrangements such as a memorandum of understanding with all public and
private institutions. One commenter thought that the note following
this section conflicted with other regulations concerning incarcerated
students and that those students should be excluded from the subject of
the note. Another commenter asked that the substance of the note be
incorporated into the regulation and that timelines for compliance be
included.
    Discussion: This section was not intended to require memoranda of
agreement or other special procedures that are not necessary to
effectively implement Sec. 300.550. Requiring agreements to be
developed that are not necessary for meeting the other LRE requirements
would be overly prescriptive.
    The requirement that disabled students be educated with nondisabled
students does apply to students with disabilities who are in
correctional facilities, to the extent that the requirement can be met
consistent with the terms of their incarceration, except to the extent
modified under the authority in Sec. 300.311. One way the LRE
requirements could be met for students with disabilities in prisons
would be to include them in the educational activities of nondisabled
prisoners and provide appropriate services in that environment. If a
State has transferred authority for the education of students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons to another agency, the other agency, not
the SEA, would have to ensure that LRE requirements are met as to that
class of students.
    The note following this section in the NPRM reflected the important
fact that, except as provided in Sec. 300.600(d) (regarding students
with disabilities in adult correctional facilities), children with
disabilities in public and private institutions are covered by the
requirements of these regulations, and that the SEA has an obligation
to ensure that each applicable agency and institution in the State
meets these requirements. Whatever the reasons for the child's
institutional placement, if he or she is capable of education in a
regular class, the child may not be denied access to education in a
regular class, consistent with Sec. 300.550(b). Timelines for
development of memoranda of agreement or other special implementation
procedures would be overly prescriptive. In light of the decision to
remove notes from these final regulations, the note would be removed.
    Changes: Section 300.554 has been reworded to clarify that special
arrangements with public and private institutions are only required if
needed to ensure that Sec. 300.550 is effectively implemented. A
technical change has been made to the regulation to make clear that the
SEA's responsibility does not include students with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons. The note following this section has been removed and a new
paragraph has been added to Sec. 300.300(a) to more generally

[[Page 12641]]

make the point that services and placement decisions must be based on a
child's individual needs and not category of disability.

Technical Assistance and Training Activities (Sec. 300.555)

    Comment: Some commenters asked that parents and advocates be
included in the training mentioned in paragraph (b) of this section.
Another commenter asked that the regulation make clear that education
support personnel as well as teachers and administrators are fully
informed and provided technical assistance and training necessary to
help them meet their LRE responsibilities. Another commenter wanted
SEAs to provide specific training and information on LRE for children
who are deaf and hard of hearing.
    Discussion: As a matter of good practice, SEAs and LEAs are
encouraged to develop opportunities for school personnel (including
related service providers, bus drivers, cafeteria workers, etc.) and
parents to learn together about all of the requirements under the Act
because these experiences will improve cooperation among school
personnel and between schools and parents and lead to improved services
for children with disabilities. However, regulation on this point is
not appropriate, as SEAs need the flexibility to respond to particular
circumstances in their jurisdictions. For the same reason, additional
specificity about the school personnel who need information and
training or the subject matter of that training is not appropriate.
    Changes: None.

Monitoring Activities (Sec. 300.556)

    Comment: One commenter asked that States be required to establish
criteria that would trigger monitoring reviews of LEA placement
procedures to ensure compliance with LRE requirements because of the
long history of violations of these provisions. Another asked that the
regulations specify that SEAs must initiate enforcement actions, if
appropriate.
    Discussion: SEAs, under their general supervisory responsibility,
are charged with ensuring that the requirements of the Act are met.
That responsibility includes monitoring LEA performance, providing
technical assistance and information on best practices, and requiring
corrective action and instituting enforcement actions when necessary.
The provisions of this section reinforce the active role SEAs need to
play in implementing the entire Act and emphasize the importance of the
LRE requirements in meeting the goals of the Act. The role of SEAs in
implementing the requirements of the Act will be carefully reviewed by
OSEP in its monitoring of States.
    Changes: None.

Access Rights (Sec. 300.562)

    Comment: A number of commenters were concerned about the types of
records to which parents have access under this section. For example,
some believed that the regulations should make clear that parents would
not have access to copyrighted materials such as test protocols, or
private notes of an evaluator or teacher. Others took the opposite
view, urging that whenever raw data or notes are used to make a
determination about a student, that information should be subject to
parent access. Commenters also requested clarity on the question of the
schools' liability for allowing parents access to records under these
regulations when other laws or contractual agreements prohibit such
disclosure.
    One commenter asked that the right be phrased as the right ``to
inspect and review all records relating to their children'' rather than
to ``all education records relating to their children.''
    Discussion: Part B incorporates and cross-references the Family
Educational Rights and Privacy Act (FERPA). Under Part B, the term
``education records'' means the type of records covered by FERPA as
implemented by regulations in 34 CFR part 99. Under Sec. 99.3 (of the
FERPA regulations), the term ``education records'' is broadly defined
to mean those records that are related to a student and are maintained
by an educational agency or institution. (FERPA applies to all
educational agencies and institutions to which funds have been made
available under any program administered by the Secretary of
Education.)
    Records that are not directly related to a student and maintained
by an agency or institution are not ``education records'' under FERPA
and parents do not have a right to inspect and review such records. For
example, a test protocol or question booklet which is separate from the
sheet on which a student records answers and which is not personally
identifiable to the student would not be a part of his or her
``education records.'' However, Part B and FERPA provide that an
educational agency or institution shall respond to reasonable requests
for explanations and interpretations of education records. (34 CFR
300.562(b)(1); 34 CFR 99.10(c)).
    Accordingly, if a school were to maintain a copy of a student's
test answer sheet (an ``education record''), the parent would have a
right under Part B and FERPA to request an explanation and
interpretation of the record. The explanation and interpretation by the
school could entail showing the parent the test question booklet,
reading the questions to the parent, or providing an interpretation for
the responses in some other adequate manner that would inform the
parent.
    With regard to parents having access to ``raw data or notes,''
FERPA exempts from the definition of education records under 34 CFR
99.3 those records considered to be ``sole possession records.''
FERPA's sole possession exception is strictly construed to mean
``memory-jogger'' type information. For example, a memory-jogger is
information that a school official may use as a reference tool and,
thus, is generally maintained by the school official unbeknownst to
other individuals.
    With respect to the issue of liability for disclosing information
to parents when other laws or contractual obligations would prohibit
it, public agencies are required to comply with the provisions of IDEA
and FERPA, and must ensure that State law and other contractual
obligations do not interfere with compliance with IDEA and FERPA.
Federal copyright law protects against the distribution of copies of a
copyrighted document, such as a test protocol. Since IDEA and FERPA
generally do not require the distribution of copies of an education
record, but rather parental access to inspect and review, Federal
copyright law generally should not be implicated under these
regulations.
    There is nothing in the legislative history of section 615(b)(1) of
the Act to suggest that it expanded the scope of information available
to parent examination beyond those records that they would have access
to under FERPA.

Changes: None.

    Comment: There were a variety of comments regarding the timeline in
paragraph (a) for agency compliance with a parent request to inspect
and review records. Some commenters thought it should be ``45 school
days'' rather than 45 calendar days. Others felt that 45 days was too
long, and that access should be provided usually within 10 days and no
longer than 30 days after the request. Others wanted a one business day
timeline if the agency has initiated an expedited due process hearing.
Another commenter asked that agencies have to respond to a request to
inspect and review before any meeting that parents now have the right
to attend, not just before IEP meetings and

[[Page 12642]]

due process hearings. Other commenters wanted access to be required at
least five days before an IEP meeting and wanted it made clear that if
State or local law provided for shorter timelines, that those timelines
must be met.
    Discussion: The 45 day timeline is taken from FERPA, to which these
regulations are tied by statute. FERPA requires that each educational
agency or institution establish appropriate procedures for the granting
of a request by parents for access to the educational records of their
children within a reasonable period of time but in no case more than 45
days after the request has been made. In order not to confuse and
increase administrative burden, these regulations are intended to be
consistent with FERPA where possible. In practice, schools often
provide access within a period of time that is considerably shorter
than the 45-day time limit, which is the maximum time allowed for
compliance.
    The commenters are correct that the new expedited due process
hearing procedures will require prompt access by parents when
requested, but the regulations already adequately addresses the
obligation of the participating agencies to provide access before a
hearing and so no more specific timeline is added to the regulations.
However, the regulations should be changed to acknowledge the new
expedited due process hearing procedures in Secs. 300.521-300.528
concerning discipline. Changes are not made with respect to other
meetings, in light of the confusion and increased administrative burden
inherent in such a change. Public agencies, however, are encouraged to
provide parents access, when requested, in advance of these meetings to
the greatest extent possible.
    Changes: Paragraph (a) of this section has been amended to
acknowledge that access rights also apply to the new expedited due
process hearing procedures under Secs. 300.521-300.528.
    Comment: Other commenters asked that parents receive at no cost
copies of their child's records prior to meetings or hearings, rather
than just have the right to inspect and review those records. Another
commenter asked that the regulations specify that parents or their
legal representatives have the right to copy any record they feel they
need for an agency-specified reasonable charge per page. Another
commenter stated that parents or their legal representatives should
also have access to any manuals used in preparing or evaluating any
student records.
    Discussion: As explained previously, these regulations should be
consistent with those implementing FERPA to the greatest extent
possible to prevent confusion and limit administrative burden on
participating agencies. Therefore, it would not be appropriate to give
parents additional rights to copies of their child's records. FERPA
generally provides for a right to inspect and review records (34 CFR
Sec. 99.10) and permits agencies to charge fees for copies of education
records provided to parents. (34 CFR 99.11).
    These rules would apply to education records of a student that
concern services required under the IDEA as well as all other education
records. Paragraph (b)(2) of Sec. 300.562 provides that a participating
agency is required to provide copies of education records to a parent
if failure to do so would effectively prevent the parent from
inspecting and reviewing the records. (See, also 34 CFR 99.10(d)(1)).
One such instance would be if the parent lives outside commuting
distance of the participating agency. The Secretary has decided that it
would impose unnecessary burden to require participating agencies to
provide copies except as described previously. However, participating
agencies are free to adopt policies of providing copies in other cases,
if they choose to do so.
    Access should not be required to documents that are not covered by
the definition of education records, such as teacher or evaluator
manuals. The requirements of paragraph (b)(1) of this section and 34
CFR 99.10(c) which provide that parents may request an explanation and
interpretation of their children's education records will permit
parents sufficient information about the contents of their children's
education records.
    Changes: None.

Fees (Sec. 300.566)

    Comment: Several commenters requested that this section make clear
that fees that can be charged may not include the cost of the labor
involved in copying the records. Others asked that participating
agencies not be permitted to charge parents more than the actual costs
they incur in copying the records, or charge more than the prevailing
rate in the community. Commenters also asked that agencies not be
permitted to require parents to provide private financial information
before providing copies of records at no cost. Some commenters asked
whether LEAs could use Part B funds to cover the costs of providing
parents copies so that fees would not have to be charged.
    Discussion: Under these regulations and those implementing FERPA,
participating agencies are entitled to charge reasonable fees for the
actual cost of reproduction and postage. Under FERPA, a school may
charge a fee for a copy of an education record which is made for the
parent, unless the imposition of a fee effectively prevents the parent
from exercising the right to inspect and review the student's education
records. A school may not charge a fee to search for or to retrieve the
education records. (34 CFR 99.11). Agencies may of course adopt
policies of making copies available free of charge and are encouraged
to do so. Agencies may use Part B funds to cover the costs that
otherwise would be charged to parents.
    Changes: None.

Consent (Sec. 300.571)

    Comment: One commenter noted an apparent contradiction between this
section, which requires parental consent before records are disclosed,
and proposed Sec. 300.529(b), which requires that LEAs transmit copies
of special education and disciplinary records of a child to appropriate
authorities when reporting a crime to those authorities.
    Discussion: As explained in the discussion of Secs. 300.529 and
300.529(b) permit the transmission of copies of education records only
to the extent that disclosure without parental consent is permitted by
FERPA. Because the prior Sec. 300.571 would have prohibited disclosures
without parent consent to agencies, such as law enforcement or juvenile
justice agencies, that are not ``participating agencies'' under
Secs. 300.560-300.577 even though disclosure without parent consent to
these entities in certain circumstances would have been permitted under
FERPA, a change should be made to this section so that these
regulations permit disclosures to the extent they are permitted under
FERPA.
    Changes: Paragraph (a) has been amended to permit disclosures
without parental consent to the agencies identified in Sec. 300.529, to
the extent permitted under FERPA.

Destruction of Information (Sec. 300.573)

    Comment: One commenter suggested that destruction of student
records could act to deny students future benefits such as private
insurance coverage and assistance in college.
    Discussion: The regulations provides that parents must be informed
when personally-identifiable information is no longer needed to provide
educational services to the child. This notice would normally be given
after a child graduates or otherwise leaves the agency. As the note
following this section in the NPRM pointed out, personally-identifiable
information on a

[[Page 12643]]

child may be retained permanently unless a parent requests that it be
destroyed.
    The purpose of the destruction option is to allow parents to decide
that records about a child's performance, abilities, and behavior,
which may possibly be stigmatizing and are highly personal, are not
maintained after they are no longer needed for educational purposes. On
the one hand, parents may want to request destruction of records as it
is the best protection against improper and unauthorized disclosure of
what may be sensitive personal information. However, individuals with
disabilities may find that they need information in their education
records for other purposes, such as public and private insurance
coverage.
    In informing parents about their rights under this section, it
would be helpful if the agency reminds them that the records may be
needed by the child or the parents for social security benefits or
other purposes. Even if the parents request that the information be
destroyed, the agency may retain the information described in paragraph
(b) of this section.
    In instances in which an agency intends to destroy personally-
identifiable information that is no longer needed to provide
educational services to the child (such as after the child has
graduated from, or otherwise leaves the agency's program), and informs
parents of that determination, the parents may want to exercise their
right to access to those records and request copies of the records they
will need to acquire post-school benefits in the future. In the
interest of limiting the use of notes in these regulations, the note
following this section would be removed.
    Changes: The note following this section has been removed.

Children's Rights (Sec. 300.574)

    Comment: Several commenters asked that the substance of the notes
following this section in the NPRM be incorporated in the regulations.
    Discussion: Because of the importance of clarifying the
relationship of parent and child rights under IDEA and FERPA, including
the new provisions of the IDEA concerning transfer of rights at the age
of majority, and the general decision to eliminate all notes in these
regulations, the substance of the notes following this section in the
NPRM would be incorporated into the regulations.
    Changes: The substance of Notes 1 and 2 have been incorporated into
the regulations.

Disciplinary Information (Sec. 300.576)

    Comment: One commenter requested that the term ``disciplinary
action'' be defined. A commenter asked that the regulations make clear
that action taken in response to conduct that was a manifestation of
the child's disability is not ``disciplinary action'' under this
section. Another asked that the results of a manifestation review be
included in the student records to protect the child as well as the
educational agencies.
    One commenter asked that this section be revised to clarify that
before applying a policy and practice of transmitting disciplinary
information in the student records of disabled children, an LEA must
first have such a policy and practice for the student records of
nondisabled students, and that transmissions of student records that
include disciplinary information to a student's new school under
paragraph (c) can only occur to the extent such information is
transferred for nondisabled students.
    Discussion: It is important that the regulations allow school
districts to understand what information may be transmitted under this
section. Under Section 504, schools may not take a disciplinary action
that constitutes a change of placement for behavior that was a
manifestation of a child's disability. Making this point in the context
of these regulations will assist schools in understanding what
information may not be considered a statement about a disciplinary
action and protect the interests of children with disabilities in not
being identified as disciplinary problems because of behavior that is a
manifestation of their disability. Further regulations are not
necessary about what information may be transmitted to another school
to which the child transfers.
    Further regulation is not needed to make clear that the LEA's
policy on transmitting disciplinary information must apply to both
nondisabled and disabled students, as that provision is already
contained in paragraph (a) of this section as to an LEA's policy. An
LEA that had a policy that applied equally to nondisabled and disabled
students but applied that policy only to transfers of records of
disabled students would be in violation of Section 504, as well as Part
B.
    Changes: None.

Department Procedures (Secs. 300.580-300.589)

    Comment: One commenter objected that the procedures in proposed
Secs. 300.580-300.589 are overly detailed and bureaucratic. This
commenter also stated that these procedures incorporate language from
the old regulations concerning disapproval of State plans, which is no
longer relevant in light of changes in the statute. Another commenter
noted that proposed Sec. 300.583 mentioned disapproval of State plans
and requested that it be revised to refer to denial of eligibility.
    Discussion: The Department does not agree that the procedures in
Secs. 300.580-300.589 are overly detailed. When the Secretary proposes
to deny a State's eligibility, withhold funds or take other enforcement
action and when a State has requested a waiver of supplement not
supplant or maintenance of effort requirements, 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. The
commenter is correct that proposed Secs. 300.580-300.586 are
substantially the same as old regulations that addressed disapproval of
a State plan, and that State plans are no longer required by the
statute. When necessary, however, these same procedures were designated
in the past by the Secretary as the procedures to follow on a proposed
denial of State eligibility, a concept that remains in the law.
    Changes: A technical change has been made to Sec. 300.583(a)(1) to
refer to denial of State eligibility rather than State plan
disapproval.

Enforcement (Sec. 300.587)

    Comment: Some commenters stated that the regulations should contain
a trigger when the Department must initiate enforcement action for
systematic noncompliance with the Act. These commenters wanted a
similar trigger provision added to Sec. 300.197 regarding SEA
enforcement against noncompliant LEAs. One commenter asked that
paragraph (c) be revised to specify that fund withholding first be
limited to funding for administrative personnel of the noncompliant SEA
or LEA, so as to prevent denial or interruption in services to children
with disabilities. Another commenter requested that the enforcement
mechanisms mentioned in the note be incorporated into the regulation.
    Several commenters objected to language in paragraph (e) which
indicated that the Secretary would have a variety of enforcement
actions available if a State were not providing FAPE to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The commenters expressed the belief that
the statute and its legislative history

[[Page 12644]]

make clear that the only enforcement action for failure to provide
services to individuals convicted as adults under State law and
incarcerated in adult prisons when the State has assigned
responsibility for ensuring compliance with the IDEA to an agency other
than the SEA under section 612(a)(11)(C) of the Act would be to
withhold that agency's pro-rata share of the Part B grant.
    Discussion: It would not be advisable to limit, through regulation,
the discretion afforded the Secretary by the statute regarding
appropriate enforcement mechanisms and when they should be employed.
Given the very wide variety in potential situations in which compliance
issues arise, and the significant differences in the scope and nature
of the issues presented in compliance situations, the Secretary needs
the discretion to exercise reasoned judgment about how best to achieve
compliance and the tools to be used to do so.
    Under the statute, the Secretary, upon a finding of a State's
noncompliance with the provisions of Part B or of an LEA's or State
agency's noncompliance with any condition of their eligibility, shall
withhold further payments, in whole or in part, or refer the matter for
appropriate enforcement action, which may include referral to the
Department of Justice. This statutory language provides clear authority
for including in the regulations the three enforcement options of
withholding, referral to the Department of Justice, and other
enforcement actions authorized by law. The other enforcement actions
authorized by law include those set out in the General Education
Provisions Act (GEPA), which are generally applicable to recipients of
funds from the Department and are consistent with the goal of ensuring
compliance with the requirements of this program.
    The enforcement mechanisms mentioned in the note to this section
are authorized by GEPA. The purpose of the note is merely to inform the
readers that these are some of the additional enforcement procedures
that the Secretary could choose to apply to a given instance of
noncompliance. In the interest of limiting the use of notes in the
regulations, the note would be deleted.
    In cases where the State has transferred to a public agency other
than the SEA the responsibility for ensuring compliance with the Act as
to children with disabilities who are convicted as adults under State
law and are incarcerated in adult prisons, and the Secretary finds
substantial noncompliance by that other public agency, the statutory
language limits withholding a proportionate share of the State's total
grant under section 611 of the Act. However, the statute does not
impose restrictions on the Department's use of other enforcement
mechanisms. The legislative history on this issue shows two primary
concerns, one is the reasonable limitation of services to this
population in order to allow States to balance bona fide security and
compelling penological concerns against the special education needs of
the individual, and the other is that a State not be threatened with a
withholding of their entire grant amount for a failure to serve this
population.
    The regulations address these concerns by interpreting the
statutory provisions in a way that limits withholding of funds as
Congress intended, but allows the Secretary, should he or she believe
that limited withholding of funds is not the appropriate means to
ensure compliance, the additional enforcement options authorized by
law.
    Changes: The note following this section has been deleted.

Waiver of Requirement Regarding supplementing and not Supplanting With
Part B Funds (Sec. 300.589)

    Comment: One commenter said that because State requests for waivers
of provisions of the Act are major policy proposals, the public
participation requirements of Secs. 300.280-300.284 should apply to the
State's waiver request proposal. The commenter also asked that
Sec. 300.589 be revised to permit public comment to be considered on
any impact the waiver request will have on the State's ability to
successfully implement the Act, not just the FAPE provisions of the
Act.
    Discussion: The procedures proposed by the Secretary provide for
public comment on the question of whether a waiver should be granted by
the Secretary after the State has first made a prima facie showing that
FAPE is and will continue to be available if the waiver is granted.
(See Sec. 300.589(d)). This process is adequate to ensure that the
views of the public are considered in deciding waiver requests and
Secs. 300.280-300.284 should not be applied to the State's waiver
request proposal.
    Sections 612(a)(18)(C) and 612(a)(19)(C)(ii) of the Act give the
Secretary the authority to grant a waiver in whole or in part if the
State provides ``clear and convincing evidence that all children with
disabilities have available to them a free appropriate public
education.'' Under Sec. 300.589(d), when the Secretary conducts a
public hearing on a State's waiver request, interested parties are
afforded the opportunity to present evidence on whether FAPE is
currently available to all children with disabilities and whether the
State will be able to ensure that FAPE remains available to all
eligible children with disabilities if the Secretary provides a waiver.
This would include a wide variety of topics, such as the State's
ability to ensure an adequate supply of qualified personnel to provide
FAPE, or to maintain an effective and efficient due process hearing
system. Even if a waiver is granted, the State will still be required
to comply with all the other requirements of Part B.
    Changes: A technical change has been made to conform to the
statutory provision that the Secretary provides a waiver in whole or in
part.

Subpart F

Responsibility for all Educational Programs (Sec. 300.600)

    Comment: Several commenters requested that this section be revised
to emphasize the SEA's obligation to monitor implementation of the Act.
One commenter requested that States be required to verify that all
corrective actions have been taken within a certain period of time.
Another commenter asked that paragraph (d) be revised to specify that
the SEA retains supervisory authority over any public agency to which
the Governor or his or her designee has assigned responsibility for
children with disabilities who are convicted as adults under State law
and incarcerated in adult prisons.
    Discussion: A strong SEA monitoring process to ensure effective
implementation of the Act is crucial to improving educational results
for children with disabilities. A basic component of eligibility has
long been that the SEA exercises general supervisory responsibility
over all educational programs for children with disabilities in the
State, including ensuring that those programs meet the requirements of
Part B. This responsibility includes not just monitoring, and
enforcement when noncompliance is not corrected, but also effective
technical assistance that focuses on best practice designed to improve
the substantive content and results of special education. We know, from
long experience in administering this Act, that if SEA monitoring is
lax, noncompliant practices emerge at the local level and indicators of
performance for children with disabilities decline.
    A priority of the Department's monitoring will be the State's

[[Page 12645]]

compliance regarding the State's supervisory role in the implementation
of Part B. However, further regulation is not necessary. There is a
great variety of circumstances that may give rise to compliance
problems, and States should have some flexibility in fashioning
remedies and timelines for correction. Verifying that corrective action
has been completed has always been an integral part of the State's
supervisory role.
    The statute permits the Governor or appropriate State designee to
assign to another agency supervisory responsibility for children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The statute does not contemplate that
the SEA would retain supervisory authority over the education of
children with disabilities who are convicted as adults under State law
and incarcerated in adult prisons if the Governor or designee has
assigned that responsibility to another agency.
    Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.

Amount Required for Subgrants to LEAs (Sec. 300.623)

    Comment: None.
    Discussion: The amount that will be required to be distributed as
subgrants to LEAs for capacity-building and improvement activities as
specified in Sec. 300.622 will vary from year to year and is determined
by the size of the increase in the State's allocation. Funds used for
the required subgrants to LEAs in one year become part of the required
amount that must be flow-through to LEAs consistent with the formula in
Sec. 300.712 in the next year.
    In those years in which the State's allocation does not increase
over the prior year by at least the rate of inflation, the required
set-aside for capacity-building and improvement grants will be zero.
However, States may always use, at their discretion, funds reserved for
State-level activities under Sec. 300.602 for these subgrants.
    Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.

State Discretion in Awarding Subgrants (Sec. 300.624)

    Comment: None.
    Discussion: This section specifies that States may establish
priorities for subgrants under Sec. 300.622 to LEAs and may award those
subgrants competitively or on a targeted basis. This is because the
purpose of subgrants under Sec. 300.622, as distinguished from the
formula subgrants to LEAs under Sec. 300.712, is to provide funding
that the SEA can direct to address particular needs not readily
addressed through formula assistance to school districts such as
funding for services to children who have been suspended or expelled.
The SEA can also direct these funds to promote innovation, capacity
building, and systemic changes that are needed to improve educational
results.
    Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.

Establishment of Advisory Panels (Sec. 300.650)

    Comment: One commenter wanted the regulation revised to specify
that the panel must be independent and operate under the direction of
officers elected by members of the panel.
    Discussion: Additional specificity is not needed. Within the limits
of the minimum requirements of the regulations, the operation of these
panels should be left to the States.
    The concept from the note, that the State advisory panel would
advise on the education of children with disabilities who have been
convicted as adults and incarcerated in adult prisons, even if a State
has assigned general supervision responsibility for those students to
an agency other than the SEA should be incorporated into Sec. 300.652,
which addresses the functions of the State advisory panel. This is
consistent with the purpose of the advisory panel under section
612(a)(21)(A) of the Act--to provide policy guidance with respect to
special education and related services for children with disabilities
in the State.
    Changes: The second sentence of the note has been integrated into
Sec. 300.652. The note has been removed.

Membership (Sec. 300.651)

    Comment: The Department received a variety of comments concerning
the membership of the State advisory panels. Many commenters wanted
representatives of specific additional groups, such as a representative
of a Parent Training and Information Center in the State, added to the
list of mandatory membership. Several commenters wanted paragraph (b)
to be modified to permit parents of adults who had been children with
disabilities, or persons who had relatively recent experience (e.g.,
within the last three years) as a parent of a child receiving services
under the Act, to be counted as a part of the mandatory majority.
    Some commenters wanted a provision added to paragraph (b) to
prohibit individuals with a past or present affiliation, such as
employment, with an agency receiving funding under the Act from being
considered a part of the individuals with disabilities, or parents of
children with disabilities, majority. Others asked that the regulations
encourage States to seek the participation of nonacademic professionals
on the panels or to recruit parent representatives through nominations
from parent and advocacy groups.
    Discussion: An advisory panel will be most effective if it fairly
represents the various interests of the groups concerned with the
education of children with disabilities and is perceived as such by the
community at large. In selecting members for the State advisory panel,
States are encouraged to solicit individuals to serve as members who do
not have, and will not be perceived as having, a conflict of interest
in representing the views of the group they were selected to represent.
That said, additional regulation is not necessary or appropriate. The
requirements of Sec. 300.651 are statutory. States should have the
discretion to appoint members to these panels, within these statutory
requirements, in a manner that best meets their needs. There is nothing
in the Act that prohibits an individual with a disability, or the
parent of a child with a disability, from employment with the SEA or an
LEA, and there will be many instances when the perspective that an
individual with a disability or the parent of a child with a disability
may bring to decisions as an employee of a public education agency will
greatly improve education for children with disabilities in that
jurisdiction. The term ``children with disabilities'' is a defined term
under the Act and in the context of Part B, refers to those children
with disabilities from birth through age 21 who are eligible for
services under Part B.
    Changes: None.

Advisory Panel Functions (Sec. 300.652)

    Comment: Several commenters sought expansion of the duties of the
advisory panel to encompass various operational tasks, such as
overseeing the development and implementation of a reliable and timely
data system on due process hearings.
    Discussion: Section 612(a)(21)(A) of the Act specifies that the
purpose of the State advisory panels is to provide policy guidance with
respect to special education and related services for children with
disabilities in the State. The functions of the advisory panel
specified in Sec. 300.652 are drawn from

[[Page 12646]]

the statutory charge of the advisory panels. The regulations do not
mandate operational duties for an advisory panel. However, if the SEA
wants to assign other responsibilities to the advisory panel, it may do
so, as long as those other duties do not prevent it from carrying out
its responsibilities under IDEA.
    Changes: No change has been made in response to these comments. See
discussion of comments received under Sec. 300.650, regarding a change
to Sec. 300.652.

Advisory Panel Procedures (Sec. 300.653)

    Comment: Some commenters asked that paragraph (d) be revised to
require that public notice of advisory panel meetings and agendas be
made far enough in advance so that interested parties, such as parents
and others, may plan to attend. At least one commenter requested that
the term ``reasonable and necessary expenses'' in paragraph (f) be
revised to indicate that child care expenses are reimbursable.
    Discussion: Since the purpose of announcing meetings and agendas
for those meetings is to allow the interested public to attend, the
meetings and agendas of the meetings of the advisory panels should be
announced early enough so that interested parties can plan to attend
those meetings, but an absolute time line is not necessary. A similar
standard is used in these regulations at Sec. 300.281(c)(2) regarding
notice of public hearings about State policies and procedures related
to the Part B program. Furthermore, States should have the discretion
to decide what are reasonable and necessary expenses related to
participation in meetings and performing other duties of the advisory
panel. These may include child care expenses or personal assistant
services.
    Changes: Paragraph (d) is revised to require that advisory panel
meetings and agenda items are announced enough in advance to afford
interested parties a reasonable opportunity to attend and that the
meetings be open to the public.

Adoption of State Complaint Procedures (Sec. 300.660)

    Comment: Several commenters requested that the note following this
section be deleted, while others thought it was important to make the
point that compensatory services can be awarded by an SEA.
    Discussion: The note merely reflected what has always been the
case--that SEAs have the authority to order compensatory services in
appropriate circumstances as a remedy for violations of Part B in
resolving complaints under the procedures in Secs. 300.660-300.662.
However, in light of the decision to remove all notes from these
regulations, and to emphasize the importance of SEA action to resolve
complaints in a way that provides individual relief when appropriate
and addresses systemically the provision of appropriate services, a
provision would be added to this section to clarify that if it has
found a failure to provide appropriate services to a child with a
disability through a complaint, the resolution addresses both how to
remediate the denial of services, which can include an award of
compensatory services, monetary reimbursement, or other corrective
action appropriate to the needs of the child, and how to provide
appropriate services for children with disabilities.
    Changes: A new paragraph (b) has been added on how an SEA remedies
a denial of appropriate services. The prior paragraph (b) has been
integrated into paragraph (a) and the reference to parent training and
information centers is corrected. The note has been deleted.

Minimum State Complaint Procedures (Sec. 300.661)

    Comment: A number of commenters requested that the possibility of
Secretarial review be reinstated in the final regulations while others
supported the change. Some State commenters objected to having to
resolve complaints on matters on which parents could have elected to
file a due process hearing request.
    Discussion: The possibility of Secretarial review has not been an
efficient use of the Department's resources, which can be better
directed to improving State system-wide implementation of the Act for
the benefit of students with disabilities. Because of the unsuitability
of the Department evaluating factual disputes in individual cases, most
requests for Secretarial review are denied. The existence of the
Secretarial review process may falsely encourage parents to delay
taking an issue to mediation or due process so that their case is not
timely filed. The Department has other more efficient mechanisms such
as on-site monitoring reviews, policy reviews and complaint referrals,
to ensure correction of violations that are brought to its attention.
In addition, the Department intends to carefully assess States' efforts
to improve their complaint resolution processes where the need is
identified.
    State responsibility for ensuring compliance with the Act includes
resolving complaints even if they raise issues that could have been the
subject of a due process hearing request. A State's general supervisory
responsibility is not satisfied by relying on private enforcement
efforts through due process actions for all issues that could be the
subject of a due process hearing. In addition, the State complaint
process and mediation provide parents and school districts with
mechanisms that allow them to resolve differences without resort to
more costly and litigious resolution through due process.
    In the interests of building cooperative, collaborative
relationships with all parties involved in the education of children
with disabilities, States are encouraged to offer mediation, as
appropriate, when a State complaint has been filed, as well as when a
due process hearing has been requested. The existence of ongoing
mediation in and of itself should not be viewed as an exceptional
circumstance under Sec. 300.661(b); however, if the parties agree that
the complaint resolution timeline should be extended because of the
mediation the SEA may extent the timeline for resolution of the
complaint.
    In light of the general decision to remove all notes from these
regulations, the notes following this section would be removed. Because
these notes provided an important explanation of how the State
complaint process interacts with the due process hearing process, they
would be incorporated into the regulation. This will reduce unnecessary
disputes between SEAs and complainants in cases in which a complaint
raises an issue that also is raised in a due process hearing.
    Changes: Paragraphs (b) and (c) have been combined into a new
paragraph (b). A new paragraph (c) has been added to clarify that if an
issue in a complaint is the subject of a due process hearing, that
issue (but not those outside of the due process proceeding) would be
set aside until the conclusion of the due process hearing; that the
decision of an issue in a due process hearing would be binding in a
State complaint resolution; and that a public agency's failure to
implement a due process decision would have to be resolved by an SEA.
The notes following this section have been deleted.

Filing a Complaint (Sec. 300.662)

    Comment: Commenters generally supported the concept, reflected in
paragraph (c) of this section, that there should be a reasonable time
limit on issues subject to the complaint process. One commenter wanted
a delayed effective date for this limitation until the individual
notice of these complaint

[[Page 12647]]

procedures had been in effect for a year. Another wanted States to be
able to waive that limitation for compelling reasons. Another commenter
wanted States to have more flexibility to disregard complaints that are
weak or insubstantial, are a continuation of a pattern of complaints
that have repeatedly been found factually or legally unfounded, or that
are about the same issue as addressed in a recently closed complaint or
compliance review. Another commenter objected to the note, stating that
a State should not have to deal with complaints filed by persons
outside the State.
    Discussion: The time limits in Sec. 300.662(c) were added in
recognition that at some point the issues in a complaint become so
stale that they are not reasonably susceptible to subsequent
resolution. However, such a time limit should include an exception for
continuing violations. States are free to accept and resolve complaints
regarding alleged violations that occurred outside those timelines,
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.
    States must evaluate and resolve each complaint on its own merits.
It is reasonable for a State to resolve a complaint on an issue that is
the same as an issue in an earlier resolved complaint by reference to
that earlier complaint resolution if it has first concluded, through
review and evaluation, that the facts and circumstances pertinent to
the complaints are unchanged. If a State were to refuse to accept a
complaint because it appeared to be similar to an issue in an earlier-
resolved complaint without reviewing whether the facts and
circumstances pertinent to the complaints remain the same, the State
could be ignoring potential violations of the Act.
    With regard to the statement in the note that States must resolve
complaints which allege violations of the Act within their respective
State even if received from an individual or organization outside of
the State, States are responsible for ensuring compliance with Part B.
    A complaint about implementation of the Act filed by someone
outside of the State may be as effective in bringing compliance issues
to the State's attention as complaints from State residents. In light
of the general decision to remove all notes from these regulations, and
to make clear the point that complaints from organizations or
individuals from out of State must also be resolved, that concept would
be integrated into Sec. 300.660(a).
    Changes: Section Sec. 300.660(a) has been revised to clarify that
any complaint includes complaints filed by organizations or individuals
from another State. The note following this section has been deleted.

Subpart G--Allocation of Funds; Reports

Allocations to States (Sec. 300.703)

    Comment: None.
    Discussion: A reference to allocating funds to the freely
associated States was omitted from paragraph (a).
    Paragraph (a) incorrectly refers to the method of distribution in
Secs. 300.704-300.705. These sections are reserved.
    Changes: A reference to freely associated States has been added and
the references to Secs. 300.704-300.705 have been deleted.

Permanent Formula (Sec. 300.706)

    Comment: None.
    Discussion: Paragraph (b)(2) refers to the amount received by a
State under ``this section'' in the base year. Funds would not be
provided under this section of the regulations in the base year. They
would be provided under section 611 of the Act, as indicated in
Sec. 300.703(b).
    Changes: The reference has been corrected to cite section 611 of
the Act.

Increases in Funds (Sec. 300.707)

    Comment: None.
    Discussion: Section 300.707 indicates how allocations are to be
made if the amount available for allocations to States under
Sec. 300.706 is equal to or greater than the amount allocated to the
States under ``this section'' for the preceding fiscal year. The
reference to ``this section'' should be to section 611 of the Act.
    Changes: The reference has been revised by replacing the words
``this section'' the first time they appear with ``under section 611 of
the Act''.

Limitation (Sec. 300.708)

    Comment: None.
    Discussion: The language in Sec. 300.708 describing conditions that
are ``Notwithstanding Sec. 300.707'' are actually consistent with
Sec. 300.707 since Sec. 300.708 is mentioned in Sec. 300.707 as
establishing conditions.
    Changes: The reference has been clarified by rewording the first
sentence of Sec. 300.707.

Allocations to LEAs (Sec. 300.712)

    Comment: Commenters were concerned about the distribution of funds
when the permanent formula takes effect. In particular, with regard to
the base payments provision in Sec. 300.712(b), commenters expressed
concern that it could result in a reduction of funds for LEAs in the
case of an SEA that distributes more than 75 percent of its allocation
to LEAs, and the LEA has a high child count. Because of the apparent
absence of a ``hold harmless'' provision, commenters recommended
clarification that this provision does not require an SEA to reduce its
allocation to an LEA. Other commenters asked whether proposed
Sec. 300.712(b)(2)(i) means that States should be allocating extra
funds to LEAs based on the total number of students, both regular and
special education students, or whether States should allocate based on
numbers of special education students only. These commenters requested
that the phrase ``relative numbers'' be clarified.
    With respect to the note following this section of the NPRM, a
concern of one commenter was that proposed Sec. 300.712(b)(2) could be
construed as limiting States' ability to direct how their LEAs expend
Part B funds that have been reallocated to LEAs that had not adequately
provided FAPE to children with disabilities, and recommended
clarification that a State may direct how any allocation to an LEA is
to be spent.
    A commenter recommended that, in calculating the distribution of
the 15 percent allocation under the permanent formula, consideration be
given for LEAs with a high incidence of children who live in
institutional and other congregate care facilities, who have special
needs and attend public schools.
    Discussion: Section 611(g)(2)(B)(i) of the Act requires that when
the permanent formula becomes effective, LEAs be allocated base
payments based on 75 percent of the amounts that each State received in
the year prior to that in which the permanent formula became effective.
Funds that States are required to allocate to LEAs above this level
must be allocated based on children enrolled in elementary and
secondary schools and children in poverty. This will result in some
redistribution of funds among LEAs that have received funds above the
75 percent level on a basis of counts of children with disabilities.
However, because these provisions are based on the Act, they cannot be
changed through regulations. States may address this redistribution of
resources through funds that they set aside for State level activities.
    The IDEA Amendments of 1997 maintain, in section 611(f) of the Act,
as reflected in Sec. 300.370(a), the flexibility of States to provide
additional support

[[Page 12648]]

to LEAs using these funds. However, it is appropriate to amend
Sec. 300.370 to clarify that SEAs may use these funds directly, or
distribute them on a competitive, targeted, or formula basis to LEAs.
    Section 300.712(b)(2)(i) is based on section 611(g)(2)(B)(ii)(I) of
the Act, which requires that required flow through funds to LEAs be
distributed based on the relative numbers of ``children enrolled'' in
public and private elementary and secondary schools. Children enrolled
include both regular and special education students.
    The term ``relative numbers'', which is used in section
611(g)(2)(B)(ii) of the Act and in proposed Sec. 300.712(b)(2),
adequately conveys the meaning that the allocations of the 85 percent
and the 15 percent will be the same proportion of the total available
as the respective numbers of children in the LEA to the State totals.
    Section 300.712(b)(3) deals with the allocation of funds, not the
use of funds.
    Section 611(g)(2)(B)(ii) of the Act, as reflected in proposed
Sec. 300.712(b)(2), requires that 15 percent of the funds remaining
after base payments be distributed based on the relative numbers of
children living in poverty as determined by the SEA in each LEA. The
incidence of children living in institutional or other congregate care
facilities is not a factor in this distribution, and cannot be added.
However, SEAs may use funds available for State level activities to
provide additional support for children in institutional or other
congregate care facilities.
    Changes: Section 300.370 has been amended to add a new paragraph
(c) to clarify that an SEA may directly use funds that it retains but
does not use for administration, or may distribute them to LEAs on a
competitive, targeted, or formula basis.
    Comment: None.
    Discussion: Although no comments were received for this Part
regarding base payments for new LEAs, a number of commenters on the
Preschool Grants for Children with Disabilities program regulations (34
CFR Part 301) raised the issue of whether charter schools or LEAs not
in existence during fiscal year 1997 would be eligible for a base
payment under Sec. 301.31(a) of the regulations for the Preschool
Grants for Children with Disabilities program, and, if so, how such
payments should be calculated.
    A similar issue exists with regard to base payments under the
Assistance to States for the Education of Children with Disabilities
program after the appropriation under section 611(j) of the Act exceeds
$4,924,672,200. The regulations should be revised to ensure that
charter schools established under State law as LEAs and LEAs not in
existence in the year prior to the year in which the appropriation for
the Assistance to States for the Education of Children with
Disabilities program exceeds $4,924,672,200 are eligible to receive
base payments.
    In addition, if the boundaries of LEAs that were in existence or
administrative responsibility for providing services to children with
disabilities ages 3 through 21 are changed, adjustments to the base
payments of the affected LEAs also should be made. For example, a
change in administrative responsibility might encompass a change in the
age range for which an LEA is responsible for providing services such
as where responsibility for serving high school students is transferred
from one LEA to another.
    These adjustments will ensure that affected LEAs equitably share in
their base payments. The base amounts for new and previously existing
LEAs, once recalculated, should become the new base payments for the
LEAs. These base payments would not change unless the payments
subsequently need to be recalculated pursuant to Sec. 300.712.
    Adjustments to base payments would be based on the current numbers
of children with disabilities served as determined by the SEA. In
making a determination, the SEA may exercise substantial flexibility.
For example the SEA may choose to revise base payments based on the
current location of children with disabilities included in a previous
child count or a new count of children served by affected LEAs.
    Changes: Section 300.712 has been revised to clarify that, if LEAs
are created, combined, or otherwise reconfigured subsequent to the base
year (i.e. the year prior to the year in which the appropriation under
section 611(j) of the Act exceeds $4,924,672,200), the State is
required to provide the LEAs involved with revised base allocations
calculated on the basis of the relative numbers of children with
disabilities ages 3 through 21, or 6 through 21 depending on whether
the State serves all children with disabilities ages 3 through 5,
currently provided special education by each of the affected LEAs.
    Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM indicates
that States should use the best data available to them in making
allocations based on school enrollment and children living in poverty.
The note also encourages LEAs to include data on children who are
enrolled in private schools and suggests alternative sources such as
aggregate data on children participating in the free or reduced-price
meals program under the National School Lunch Act and allocations under
title I of the Elementary and Secondary Education Act as bases for
determining poverty. These suggestions still reflect options for
allocating funds, but need not be specified in the regulations. The
requirement for States to use the best data available to them should be
included in the regulations.
    Changes: The note has been removed and Sec. 300.712 has been
expanded to state that for the purpose of making grants under this
section, States must apply, on a uniform basis across all LEAs, the
best data that are available to them on the numbers of children
enrolled in public and private elementary and secondary schools and the
numbers of children living in poverty.

Former Chapter 1 State Agencies (Sec. 300.713)

    Comment: Commenters indicated that Sec. 300.713, which mirrors the
statutory language regarding payments to former Chapter 1 State
agencies, should be clarified to indicate that these agencies must
receive the current amount of their Part B allocation, rather than an
amount that would not exceed the fiscal year 1994 per child amount.
Otherwise, the result would be a reduction of allocations to these
agencies. The commenters recommended adding a new paragraph (c) to
Sec. 300.713 to provide that, in years where the per child amount under
Part B exceeds the per child amount for fiscal year 1994, each State
agency shall receive the per child amount under Part B for each child
to whom the agency is providing special education and related services
in accordance with an IEP.
    Other commenters indicated the need to clarify that payments to
former Chapter 1 State agencies are targeted for direct service costs
as in the past. Several commenters believe that payments to former
Chapter 1 State agencies must follow the child, and recommended
inserting the phrase ``including State-operated and State-supported
school programs'' after 1994 at the conclusion of Sec. 300.713(a) to
ensure that the children who are counted actually receive the funds for
which they are eligible.
    Some commenters stated that the merger of the former Chapter 1
Handicapped program with Part B had a negative effect at the State
level on

[[Page 12649]]

private special education schools, because funds intended for children
are now being used by many States for both State and municipal
administrative costs. Other commenters recommended, consistent with the
intent of the merger of the former Chapter 1 Handicapped program with
Part B, that these schools should be treated as LEAs for funding
purposes, regardless of whether they meet the Part B definition of LEA.
    One commenter took issue with the fact that the Act specifies a
reporting date of December 1 of the fiscal year, while the proposed
regulation allows a State, at its discretion, to report on December 1
or on the last Friday of October. Since the Act sets a specific date,
this commenter requests that only the statutory date be used in the
regulation.
    Discussion: Funds provided to former Chapter 1 State agencies that
exceed fiscal year 1994 levels are provided either because the amounts
to which former Chapter 1 State agencies are entitled as LEAs, without
regard to their status as former Chapter 1 agencies, exceed the minimum
allocations for former Chapter 1 agencies, or at the discretion of the
States from funds available to be set aside for State level activities.
    The IDEA Amendments of 1997 maintain, in section 611(f), as
reflected in Sec. 300.370(a), the flexibility of States to provide
additional support to State agencies beyond the formula entitlement of
LEAs under Sec. 300.712. It would be inappropriate, as well as
inconsistent with the Act, to compel States that have voluntarily
passed through higher levels of funding to State agencies in the past
to maintain those levels of funding as a requirement.
    There has been confusion in some States regarding the entitlement
of former Chapter 1 Handicapped State agencies to funds distributed by
formula to LEAs that would be above the amounts these State agencies
received per child for 1994 under the Chapter 1 Handicapped program.
Under the IDEA, both before and after enactment of the IDEA Amendments
of 1997, the amounts to which these State agencies are entitled are
minimum amounts. Former Chapter 1 Handicapped State agencies are
entitled to formula allocations in the same amounts as other LEAs. They
may also be eligible for additional payments to bring their funding
levels per child up to the levels they received under the Chapter 1
Handicapped program for fiscal year 1994.
    Under the initial allocation of fiscal year 1998 funds, which
became available on July 1, 1998, the minimum per child allocations
that former Chapter 1 Handicapped State agencies are entitled to as
LEAs exceeds the amount per child that these agencies received for
fiscal year 1994 under the Chapter 1 Handicapped program in 40 States.
SEAs in these States must provide former Chapter 1 Handicapped State
agencies at least the minimum amount per child that they are entitled
to as LEAs, not the lesser amounts that they received per child under
the Chapter 1 Handicapped program for 1994.
    For 10 States and the District of Columbia, the minimum per child
amounts to which former Chapter 1 Handicapped State agencies are
entitled as LEAs are still slightly smaller than the amounts that these
agencies received per child for 1994 under the Chapter 1 Handicapped
program. In these States, SEAs must provide the former Chapter 1
Handicapped State agencies with the amounts per child that these
agencies are entitled to as LEAs. SEAs must then provide additional
funds to the former Chapter 1 Handicapped State agencies from the
amounts that the SEAs set aside for State level activities. The amount
of these additional funds is equal to the difference between the amount
per child that the former Chapter 1 State agencies received under the
Chapter 1 Handicapped program for 1994 and the amount per child they
receive as LEAs, multiplied by the lesser of the number of children
ages 6 through 21 currently served by the former Chapter 1 Handicapped
State agencies or the number of children ages 3 through 21 served by
these agencies for 1994 under the Chapter 1 Handicapped program.
    It is expected that for the Federal fiscal year 1999 appropriation,
which will become available on July 1, 1999, the minimum per child
amounts that will be provided to all LEAs, including former Chapter 1
Handicapped State agencies, will exceed the per child allocations under
the Chapter 1 Handicapped program in all States.
    Former Chapter 1 agencies are subject to the same requirements as
other LEAs, and are not limited to using Part B funds only for direct
service costs.
    Adding the phrase ``including State-operated and State-supported
school programs'' after ``1994'' at the conclusion of Sec. 300.713(a)
would not ensure that the children who are counted actually receive
funds. Moreover, the last paragraph in Sec. 300.713(a) deals with the
optional use of funds available for State level activities to increase
funding for LEAs that formerly served children who had at one time been
in State-operated or State-supported programs, not to increase funding
for State-operated and State-supported programs themselves. However,
States, at their discretion, may use funds available for State level
activities to provide support for State-operated or State-supported
programs under Sec. 300.370.
    It should also be noted that, under the Act, States are required to
ensure that all children with disabilities have access to a free
appropriate public education regardless of the sources of funds that
are used to provide that education. Ensuring that specific amounts of
Federal funds are used for each of the 6 million children with
disabilities who receive special education services would be
administratively unwieldy and would not necessarily help to ensure that
States meet this requirement.
    The Chapter 1 Handicapped program was merged with the IDEA Part B
Assistance to States for the Education of Children with Disabilities
program in 1995. The merger was not affected by the IDEA Amendments of
1997, and its impact cannot be addressed by these regulations.
    Section 602(15) of the Act defines LEA as including educational
service agencies. Educational service agencies are defined in section
602(4) of the Act and Sec. 300.10 as including public institutions or
agencies having administrative control and direction over a public
elementary or secondary school. State agencies formerly provided
funding under the Chapter 1 Handicapped program and which continue to
provide special education and related services to children with
disabilities fall within this definition. Individual schools that
received funding through State agencies under the Chapter 1 Handicapped
program are not LEAs under the Part B Assistance to States for the
Education of Children with Disabilities program.
    Section 611(d)(2) of the Act specifies that, for the purpose of
allocating funds among States, States may report children either as of
December 1 or the last Friday in October of the fiscal year for which
funds are appropriated. Using the same dates for establishing minimum
funding levels for former Chapter 1 Handicapped State agencies will
reduce burden on States that count children in October by eliminating
the need for a separate count of children served by State agencies in
December.
    Changes: Language has been revised in paragraph (a)(1) to clarify
that the amount that each former Chapter 1 State agency must receive is
a minimum amount.

[[Page 12650]]

Reallocation of LEA Funds (Sec. 300.714)

    Comment: One commenter recommended that this section be eliminated
because it causes a disincentive for LEAs to provide ``adequate'' or
even more than ``adequate'' FAPE.
    Another commenter stated that the regulation must provide the State
agency with a basis for determining that an LEA is adequately providing
FAPE to all children with disabilities residing in the area served by
that agency with State and local funds, and indicated that there is a
need for guidance on criteria for determining when any portion of the
funds allocated under this part may be removed. Criteria suggested by
the commenter for this purpose include: (1) IEP related measures such
as appropriateness of measurable IEP goals and a high percentage of
annual goals successfully completed; (2) educational inputs such as
student staff ratios including related services staff; and (3) a
relatively large amount of unexpended IDEA funds.
    Discussion: The authority of SEAs to reallocate funds among LEAs if
they determine that an LEA is adequately providing FAPE to all children
with disabilities residing in the area served by the LEA and that the
LEA does not need those funds to provide FAPE, is included in section
611(g)(4) of the Act. This authority cannot be removed through
regulations. However, it is expected that SEAs would use this authority
only in unusual circumstances (e.g., when there is a radical reduction
in the number of children served by a LEA).
    Moreover, the instances in which an SEA would reallocate the funds
of an LEA because the LEA is providing adequate services and does not
need the funds should be relatively rare, and the circumstances causing
such a determination also should be unusual.
    It would be very difficult to establish criteria that could be
appropriately and fairly applied in all cases. For this reason, the
criteria for determining these instances should be left at the
discretion of the States.
    Changes: None.

Payments to the Secretary of the Interior for the Education of Indian
Children (Sec. 300.715)

    Comment: None.
    Discussion: The reference to ``this section'' in paragraph (a)
should also include a reference to Sec. 300.716 because the earmarked
funds include Indian children covered under both sections.
    Changes: The term ``this section'' in Sec. 300.715(a) has been
revised to read ``this section and Sec. 300.716.''

Limitation for Freely Associated States (Sec. 300.719)

    Comment: None.
    Discussion: The references to ``this part'' in paragraph (c) of
this section should be changed to ``Part B of the Act.''
    Changes: Section 300.719 (c)has been amended, consistent with the
above discussion.

Annual Report of Children Served--Report Requirement (Sec. 300.750)

    Comment: Several commenters objected to the note following
Sec. 300.750 of the NPRM, stating that it reflects only the
requirements of prior law, and not all requirements in the current
section 611 of the Act. The commenters recommended that, if the note is
retained, it needs to be revised to conform more closely to the current
language used in the Act. For example, the references in the note to
section 611(a)(5) of the Act should be deleted, since that section no
longer exists. Also, the population that a State may count for
allocation purposes no longer differs from the population of children
to whom the State must make FAPE available, and this needs to be
explained in the note.
    Another commenter recommended that the regulations on annual SEA
reports to the Department be amended to include the requirements of
section 618(a)(1)(A) of the Act.
    Discussion: The note following this section in the NPRM indicates
that the number of children who are counted for the purpose of
distributing funds may be different from the children for whom the
States must make FAPE available. In order to receive full funding under
Part B of the IDEA, States must provide services to all children with
disabilities ages 3 through 17, and to children 18 through 21 when not
inconsistent with State law or practice, or the order of any court.
These statements in the note reflect the requirements of IDEA. However,
consistent with the decision to not include notes in the final
regulations, the note should be deleted.
    It should be noted that until the appropriation for the Assistance
to States for the Education of Children with Disabilities program
exceeds $4,924,672,200, the interim formula requires that funds be
distributed based on the number of children served, and the limitations
in section 611(a)(5) of IDEA prior to the IDEA Amendments of 1997,
which prohibit the Secretary from counting more than 12 percent of
children with disabilities in certain cases, will be in effect until
that time.
    The content of the report is addressed in Sec. 300.751. The
reporting requirements in section 618 of the Act are complex. The
Secretary believes that it would be better to address the data
reporting requirements of the new section 618 as part of the clearance
process for data collection rather than through these regulations.
    Changes: The note has been removed.

Annual Report (Sec. 300.751)

    Comment: Commenters stated that while Sec. 300.751(a) specifies the
information that must be included in the report for any year before the
total appropriation for section 611 of the Act first exceeds
$4,924,672,200, it is unclear what information should be included in
the report after that date. The commenters indicated a need for this
clarification in the regulation.
    Other commenters recommended that the regulation clarify that if a
child is deaf-blind, that child must be reported under that category,
and if the child has more than one disability (other than deaf-
blindness), that child must be reported under multiple disabilities.
These commenters also requested that the regulations explain that the
responsibility for the annual census count of deaf-blind children
should be with the single and multi-State deaf-blind projects.
    Discussion: Before the total appropriation for section 611 of the
Act first exceeds $4,924,672,200, a count of children ages 3 through 21
will be used for distributing funds. After this level is reached, data
on the number of children served will continue to be necessary due to
the requirement in section 611(a)(2) of the Act that no State be
allocated an amount per disabled child served greater than 40 percent
of the average per-pupil expenditure in public elementary and secondary
schools in the United States. The language in Sec. 300.751 should
reflect this requirement. In addition, data included in the report does
not necessarily reflect the flexibility potentially available to the
States to use sampling to collect data or new data reporting
requirements for children ages 3 through 9.
    The NPRM provided that a child with deaf-blindness must be reported
under the category ``deaf-blindness'' and that a child who has more
than one disability, other than deaf-blindness, must be reported under
the category ``multiple disabilities''.
    The single and multi-State deaf-blind projects, which are funded
under discretionary awards under Part D of the Act, are not responsible
for conducting a census count of deaf-blind children. Those projects
were required to report on the number of children with deaf-blindness
that they serve. These Part

[[Page 12651]]

300 regulations set out the requirements for participation of States
under Part B of the Act.
    Changes: This section has been reworded to reflect in paragraph (a)
data required for the distribution of funds, including data on the
numbers of children with disabilities that are provided special
education and related services in the age groupings 3 through 5, 6
through 17, and 18 through 21. The remainder of the section has been
revised to reflect the Secretary's ability to permit sampling to
collect data, new data collection requirements in the Act, and to
clarify that children who are not classified as developmentally delayed
and who have two disabilities consisting of deafness and blindness
should be reported under the category of ``deaf-blind''.

Annual Report of Children Served--Certification (Sec. 300.752)

    Comment: None.
    Discussion: The certification of an accurate and unduplicated count
of children with disabilities receiving special education and related
services on the dates in question is critical only with regard to
obtaining information needed for the allocation of funds.
    Changes: The certification of an accurate and unduplicated count
has been limited to the data required under Sec. 300.751(a), which, as
revised, is limited to information required to make funding allocations
to States.

Annual Report of Children Served--Criteria for Counting Children
(Sec. 300.753)

    Comment: None.
    Discussion: Children with disabilities who are enrolled by their
parents in private schools should be able to be counted by LEAs if
those children receive special education or related services, or both,
that are provided in accordance with a services plan and meet the
requirements of Secs. 300.452-300.462. The language in the NPRM could
have been read to require that children with disabilities enrolled by
their parents in private schools be provided all of the related
services they need to assist them in benefitting from special education
in order for the LEAs to count these children.
    Changes: Section 300.753 has been revised to permit LEAs to count
private school children with disabilities who are receiving special
education or related services, or both, that meet standards and are
provided in accordance with Secs. 300.452-300.462.
    Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: Note 1 following this section in the NPRM indicated
that States may count children with disabilities in a Head Start or
other preschool program operated or supported by a public agency if
those children are provided special education that meets State
standards. All children who are counted must be enrolled in a school or
program providing special education or related services that is
operated or supported by a public agency. However, a child with a
disability may also be enrolled in a private school. All children who
are counted must be provided with services that meet State standards
regardless of whether they are also enrolled in a private school.
    Note 2 to this section in the NPRM indicated that where a child
receives special education from a public source at no cost, but whose
parents pay for the basic or regular education, the child may be
counted. The revised Sec. 300.753 more clearly reflects the fact that
children with disabilities enrolled by their parents in private schools
are eligible to be counted. This is true whether the curriculum of the
school consists of basic or regular education, or special education.
    Note 2 also indicated that the Department expects that there would
only be limited situations in which special education would be clearly
separated from regular education--generally, if speech services are the
only special education required by the child. This expectation is not
consistent with the flexibility that LEAs have in providing services to
children in private schools.
    As Note 2 indicated, a State may not count Indian children on or
near reservations and children on military facilities if it provides
them no special education. If an SEA or LEA is responsible for serving
these children, and does provide them special education and related
services, they may be counted.
    If a public agency places or refers a child with disabilities to a
public or private school for educational purposes, parents may not be
charged for any part of the child's education.
    Changes: The notes have been removed, and language has been added
to Sec. 300.753 to clarify that, in order for a State to count
children, the children must be enrolled in a school or program that is
operated or supported by a public agency, and that they may not count
children who are served solely through Federal programs, including
programs of the Departments of Interior, Defense, and Education except
as covered under Sec. 300.184(c)(2).

Annual Report of Children Served--Other Responsibilities of the State
Education Agency (Sec. 300.754)

    Comment: One commenter recommended that the SEA should be required
to sanction LEAs for providing intentionally misleading or false
information about the number of children with disabilities receiving
special education and related services within the LEA's jurisdiction.
    Discussion: The IDEA Part B Assistance to States for the Education
of Children with Disabilities program is administered primarily through
SEAs. It is in the individual State's interest as well as the national
interest to ensure that counts of children are accurate; requiring
sanctions for LEAs that provide intentionally misleading or false
information would be unnecessary and overly prescriptive. The IDEA
allows States to impose sanctions subject to the requirements of the
Act.
    Changes: None.
    Comment: None.
    Discussion: Section 300.754(d) refers to ``reports'' under
Secs. 300.750-300.753. These sections refer to only one report.
    Changes: The word ``reports'' has been changed to ``report''.
    Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
    Discussion: The note following this section in the NPRM indicates
that data required in the annual report of children served are not to
be transmitted to the Secretary in personally identifiable form, and
that States are encouraged to collect these data in non-personally
identifiable form. The formats used by the Secretary for collecting
data do not provide for individual identification of children. The
formats for data collection by States are a matter of State discretion.
    Changes: The note has been removed.

Disproportionality (Sec. 300.755)

    Comment: Commenters recommended that the regulation define what
constitutes a significant disproportionality based on race in the
identification, labeling, and placement of children with disabilities,
thus triggering the obligation to review and revise, as appropriate,
identification and placement policies, practices and procedures.
Another commenter recommended additional language requiring
consultation with parent training and information centers, parent and
civil rights advocacy groups, and others, during this process. Other
commenters suggested that data be

[[Page 12652]]

collected annually when the child count is submitted, and that a
requirement should be added that data be analyzed. If
disproportionality is found, a corrective action plan must be developed
by the SEA, and such a plan should be reported to the Secretary and to
the public annually.
    Another commenter was supportive of the requirement in Sec. 300.755
but noted that, because many BIA schools are serving American Indian
children from wide catchment areas, an increasing number of children
with disabilities are enrolling in these schools for what may be valid
reasons. The commenter recommended a requirement for review and
revision of policies by representatives of the Department of the
Interior who have experience in the unique political, cultural, and
geographical issues affecting the identification of these children as
disabled and in need of special education and related services.
    Discussion: The Act provides that the States and the Secretary of
the Interior must collect data, determine if disproportionality exists,
and take corrective action. In order for States and the Department of
the Interior to determine if disproportionality exist they must
establish criteria for determining what constitutes significant
disproportionality. It is expected that the determination of
disproportionality will involve consideration of a wide range of
variables peculiar to each State including income, education, health,
cultural, and other demographic characteristics in addition to race.
Prescribing how the States should determine disproportionality and take
corrective action would not reflect the varied circumstances existing
in each State and is not consistent with discretion afforded to States
under the statute.
    It should also be noted that the Department's Office for Civil
Rights also looks at disproportionality in its review of State and
local activities, and that the Office of Special Education Programs
will monitor to ensure compliance with this requirement.
    The determination of disproportionality is separate from a
determination as to whether any corrective action is appropriate. The
Secretary of the Interior is expected to utilize knowledgeable
individuals to determine if corrective action is called for in a
particular instance.
    Changes: None.

Part C

    The following is an analysis of the significant issues raised by
the public comments received on the NPRM published on October 22, 1997
(62 FR 55026) for the Early Intervention Program for Infants and
Toddlers with Disabilities. The Department solicited comments on
proposed changes to six regulatory provisions in the Early Intervention
Program for Infants and Toddlers with Disabilities, formerly known as
Part H of the Individuals with Disabilities Education Act (IDEA).
Effective July 1, 1998, Part H of IDEA (Part H) was relocated to Part C
of IDEA (Part C). The proposed changes were made to conform Part C to
proposed changes in Part B of IDEA. On April 14, 1998, the Department
published technical changes to the Part C regulations to incorporate
statutory changes to Part C made by the IDEA Amendments of 1997 (63 FR
18290). A notice requesting advice and recommendations on Part C
regulatory issues was also published on April 14, 1998 (63 FR 18297).
Although the deadline for comments on Part C regulatory issues was July
31, 1998, the Department reopened the comment period by publishing
another notice on August 14, 1998 (63 FR 43865-43866).
    In response to the Department's invitation in the NPRM published on
October 22, 1997, several parties submitted comments on the proposed
regulations. An analysis of the comments and of the resulting changes
in the regulations follow. Substantive issues are discussed under the
section of the regulations to which they pertain. Technical and other
minor changes--'' and suggested changes the Department is not legally
authorized to make under the applicable statutory authority ``--are not
addressed. All Part C provisions amended by these regulations that were
not the subject of the NPRM are amended only to conform provisions to
statutory changes to Part C made by the IDEA Amendments of 1997, or to
conform technical provisions to changes made to the Part B regulations.

Goals 2000: Educate America Act

    Comment: One commenter asked how the Goals 2000: Educate America
Act (Goals 2000) would be implemented for infants and toddlers with
disabilities, in particular how the first goal of all children in
America starting school ready to learn would be realized for infants
and toddlers with disabilities. The commenter asked if there would be
definitions or criteria promulgated pursuant to Goals 2000 regarding an
infant's or toddler's readiness to learn.
    Discussion: The National Education Goals are goals, not
requirements; no definitions or criteria are necessary to specify how
States should make progress towards goal one, ``All children in America
will start school ready to learn.'' Children with developmental delays
are likely to experience poor educational results because of a
disability without appropriate early intervention. By addressing the
effects of a disability or complications that could arise if services
are not provided, these children will have a greater likelihood of
better results, and require less intensive or possibly no special
services, when they are ready to enter school. The Part C Early
Intervention Program helps States to address the needs of infants and
toddlers with disabilities and their families by promoting child find
activities, implementing family-focused service systems, coordinating
early intervention services on a statewide basis, and providing
critical services that otherwise would not be available. As such, the
program plays a major role in improving the school readiness of these
young children and meeting the National Education Goal of ensuring that
every child enters school ready to learn.
    Changes: None.

General Comments

    Comment: Several of the commenters requested that the Department
issue a full notice of proposed rulemaking (NPRM) for the Part C
program. Commenters questioned why the particular regulatory provisions
in the October 22, 1997 NPRM were singled out for revision. Many
requested generally that the Department clarify the statutory
amendments to Part C, such as the provisions regarding natural
environments.
    Discussion: The six provisions related to Part C in these
regulations have been revised in order to achieve consistency with
parallel Part B regulations. Regarding the remainder of the Part C
regulations, the Department solicited comments regarding all of the
Part C regulations on April 14, 1998, and extended the comment period
on August 14, 1988. Comments received in response to the October 22,
1997 NPRM regarding Part C regulations that were not the subject of
that NPRM will be retained and considered with the comments received
pursuant to the April 14 and August 14, 1998, solicitations. However,
additional submissions from those same commenters are welcome.
    These final regulations contain several technical changes that were
not included in the April 14, 1998 regulatory changes. All of these
changes will be included in the next version of Part C regulations
published in the Code

[[Page 12653]]

of Federal Regulations (CFR), which is revised each year.
    As with the final Part B regulations published in this issue of the
Federal Register, these final Part C regulations will not contain
notes. The critical substantive portions of the notes will be
incorporated into the corresponding regulatory provision or the
applicable discussion section in this preamble. Other information from
the notes will be deleted.
    Changes: None.

Definition of Parent (Sec. 303.18)

    Comment: There were a few comments regarding the revisions to the
definition of parent at Sec. 303.18. Some commenters liked the changes
and some objected to the changes. Commenters who objected did so
primarily because the proposed changes were perceived to conflict with
prior OSEP opinions and ultimately result in fewer children having
``parent'' representation at meetings. Commenters also asked what
constitutes a ``long-term parent relationship'' for an infant or
toddler.
    Discussion: The changes to the definition of parent under Part C
are to clarify that the definition is an inclusive one and to conform
Part C to Part B for consistency and continuity purposes. The changes
should result in more, rather than fewer, children having parental
representation, as the regulation clarifies that foster parents may, in
appropriate circumstances, unless prohibited by State law, serve as
parents. Under these regulations, the term ``parent'' is defined to
include persons acting in the place of a parent, such as a grandparent
or stepparent with whom the child lives, as well as persons who are
legally responsible for a child's welfare, and, at the discretion of
the State, a foster parent who meets the requirements in paragraph (b)
of this section.
    With respect to the meaning of ``long-term parental relationship,''
this term was included to ensure that when a child is in foster care,
decisions regarding services are made by the foster parents only if
they have had, or will have, a parental relationship that is on-going
rather than temporary. The goal is that decisions regarding services
will be made only by those who have or will have a substantive
understanding of the child's needs. Thus, for example, a parental
relationship would be considered ``long-term'' if (1) at the time the
relationship is created, it is intended to be a long-term arrangement,
or (2) the relationship has existed for a relatively long period of
time. For older children, States could require a more lengthy time
period than would be appropriate for infants and toddlers.
    Several changes to this provision are in response to comments
regarding the corresponding provision in the Part B regulations
(Sec. 300.20). The general definition of ``parent'' is amended to make
clear that adoptive parents have the same status as natural parents. In
addition, to avoid conflict with State statutes, a provision is added
permitting the use of foster parents under these regulations unless
State law prohibits foster parents from acting as parents for these
purposes. For further explanation of the changes, see the discussion
regarding 34 CFR 300.20 in the preamble to the final Part B
regulations.
    Changes: Section 303.18 has been amended to specifically include
adoptive parents, and to permit States in certain circumstances to use
foster parents as parents under the Act without amending relevant State
statutes on the definition of ``parent''. The substance of the note has
been incorporated into the regulations, and the note has been deleted.

Prior Notice (Sec. 303.403)

    Discussion: No comments were received regarding proposed
Sec. 303.403(b)(4), and it is included in these final regulations.
However, given the comments regarding the parallel section under Part
B, and the fact that Part C does not have a separate procedural
safeguards notice, Sec. 303.403(b)(3) is changed to make clear that the
notice given under this section must contain all procedural safeguards
under Part C, including the new mediation procedures in Sec. 303.419.
    Changes: Section 303.403(b)(3) is amended to clarify that the
notice must inform parents about all procedural safeguards available
under Secs. 303.401-303.460.

Adopting Complaint Procedures (Sec. 303.510)

    Comment: One commenter requested that the Department clarify how
frequently States are required to disseminate their State complaint
procedures in proposed Sec. 303.510(b); the commenter also asked that
the requirement include provisions for limited-English speakers and
non-readers.
    Discussion: It is unnecessary to specify a frequency for
dissemination of State complaint procedures; States have the
responsibility to ensure that their publicly-disseminated State
complaint materials are distributed to parents, as well as to the other
required entities, and to ensure that the materials are kept up to
date. In addition, the lead agency is now required to provide an
explanation of the State complaint procedures to parents at the various
times specified in Sec. 303.403(b)(4), as part of the ``prior notice''
requirement. The requirements of Sec. 303.403 regarding prior notice
include communicating the notice in the parents' native language or
other mode of communication; therefore, it is unnecessary to add those
provisions to Sec. 303.510.
    Because a new paragraph (b) is added to this section (see
discussion below), the language in proposed (b) from the NPRM is moved
to paragraph (a)(2) of this section.
    Changes: A portion of the existing note is incorporated into
Sec. 303.510(a) and the note is removed. Proposed Note 2 is
incorporated into the regulation as new Sec. 303.510(b); the language
in proposed Sec. 303.510(b) is moved to new Sec. 303.510(a)(2). In
addition, the language in the proposed note following Sec. 303.511
regarding complaints from out of State is incorporated into
Sec. 303.510(a)(1).
    Comment: Several commenters requested clarification of the
provision regarding compensatory services in Note 2 to proposed
Sec. 303.510. Compensatory services are also referenced in proposed
Sec. 303.511(c). One commenter stated that compensatory services are
not appropriate for infants and toddlers receiving services under Part
C; services are already year-round, and because the frequency and
intensity of services are individually tailored to the child's needs in
the IFSP, supplementing those services would not be appropriate. This
commenter noted, however, that families who procure services at their
own expense because an IFSP was not implemented in a timely manner
should be able to receive reimbursement. Another commenter stated that
additional public discussion is needed before finalizing this provision
regarding compensatory services. The commenter raised questions
concerning how compensatory services would be funded and provided by a
lead agency before a child turns three years old, how such services
would be funded and provided after the child turns three, and how such
post-Part C services would be integrated with the child's special
education services. Another commenter requested the Department's
``vision'' for the proposed application of this regulation.
    Discussion: The note reflected what has always been the case ``--
that lead agencies have the authority to order remedies in appropriate
circumstances for a violation of Part C in resolving complaints under
the procedures in Secs. 303.510-303.512. However,

[[Page 12654]]

consistent with the decision to remove notes from the Part B
regulations, and to emphasize the importance of lead agency action to
resolve complaints in a way that provides individual relief when
appropriate and addresses systemically the provision of appropriate
services, a provision is added to this section. The provision clarifies
that if the lead agency has found a failure to provide appropriate
services to an infant or toddler with a disability through a complaint,
the resolution must address both how to remediate the denial of
services, and how to provide appropriate services for all infants and
toddlers with disabilities in the State and in the future. While
recognizing that compensatory services, in the sense used under Part B,
may be inappropriate for an infant or toddler in many instances, it
should not be precluded where it is an appropriate corrective action as
determined by the lead agency based on the individual circumstances.
Lead agencies retain the authority, responsibility, and flexibility to
construct appropriate remedies in individual cases in order to obtain
the results needed for the child and family. Possible remedies may
include reimbursement of sums spent by a parent, services--compensatory
or otherwise, or other appropriate corrective action.
    Regarding the issue of a complaint filed after a child turns three
and is no longer eligible for Part C services, if parents have a
complaint about the services received or not received by their child
while an infant or toddler, those parents would properly file the
complaint with the lead agency that had responsibility for the child
during that time period, even if the child has ``aged out'' of the Part
C program at age three. That lead agency has the responsibility to
resolve and, as appropriate, investigate the complaint, and award
appropriate corrective action, which may need to be designed by working
with the SEA if the child is Part B-eligible, or by working with other
appropriate service providers if the child is not Part B-eligible.
These regulations do not prevent parents from filing a complaint with
the lead agency after the child leaves the Part C program. In addition,
if the alleged violation is systemic, corrective action would be
required in order to ensure that a violation does not continue for
other infants and toddlers. However, to prevent undue burden on lead
agencies from very old cases, Sec. 303.511(b) contains time limitations
on complaints.
    Changes: A new paragraph (b) has been added to Sec. 303.510 to
address how a lead agency remedies a denial of appropriate services, in
place of proposed Note 2. Proposed paragraph (b) has been moved to new
Sec. 303.510(a)(2).

Filing a Complaint (Sec. 303.511)

    Comment: Two commenters objected to the one-year time limit for
filing a complaint in proposed Sec. 303.511(c). They stated that
parents are often not knowledgeable about their rights at their first
entrance into a complex system, and that violations may not be apparent
until after the child exits the system. The commenters stated that the
one-year limit may also conflict with existing State laws governing
administrative proceedings. These commenters also questioned when it
would be appropriate for an organization to file a complaint, and asked
why the proposed note states that lead agencies must resolve complaints
filed by entities from another State.
    Discussion: The time limits in proposed Sec. 303.511(c) were added
in recognition that at some point the issues in a complaint are no
longer reasonably susceptible to resolution. However, such a time limit
should include an exception for continuing violations; this would
include a violation for a specific child, e.g., one that began when an
infant was 4 months old and still continues at age two, as well as
violations that continue on a systemic basis and affect other children.
The regulation also includes a three-year time limit for cases in which
a parent requests reimbursement or corrective action. As evidenced by
the comments on the issue of compensatory services under Part C (see
discussion regarding Sec. 303.510 above), compensatory services may not
be an appropriate remedy in some cases. Therefore, the language
regarding the three-year limit in these regulations should be changed
to describe more accurately the remedies that may be requested, such as
a parent's request for reimbursement for amounts spent to provide
services in the IFSP that were not provided by the lead agency.
    As noted above in the response to comments on Sec. 303.510, these
regulations do not prohibit individuals from filing a complaint with
the lead agency after the child has left the Part C system, and
require, within the timeframes noted, that the State resolve the
complaint. In addition, States are free to accept and resolve
complaints regarding alleged violations that occurred outside these
timelines, 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. If a State law provided a more generous
timeline for filing complaints, the State could certainly use that
timeline; it could, in the alternative, amend its State law to be as
restrictive, but not more restrictive, than these Federal regulations.
    Regarding the issue of when it is appropriate for an organization,
rather than an individual, to file a complaint, the State complaint
procedures broadly permit any organization to file a complaint alleging
that the State is violating IDEA, in order to permit entities, as well
as individuals, that become aware of violations to raise them. With
regard to the statement in the note that the lead agency must resolve
complaints even if received from an individual or organization outside
of the State, the lead agency is responsible for ensuring compliance
with Part C. A complaint about implementation of the Act filed by an
organization or individual outside of the State is an additional means
of bringing compliance issues to the State's attention. To be
consistent with the decision to remove all notes from the Part B
regulations, and to make clear that complaints from out-of-State
organizations or individuals must also be resolved, that concept is
integrated into Sec. 303.510(a)(1).
    Changes: The language in proposed Sec. 303.511(c) has been moved to
paragraph (b) and changed to describe more accurately the remedies that
could be requested under the three-year limitation for State
complaints. The note following Sec. 303.511 regarding complaints filed
by organizations or individuals from another State has been deleted,
and the substance of the note has been moved to Sec. 303.510(a)(1).

Minimum State Complaint Procedures; Timelines (Sec. 303.512)

    Comment: One commenter asked whether eliminating the right to
request Secretarial review would eliminate all potential appeals of a
State's decision. The commenter requested that a note be added to
reference other procedures still available if the complainant is not
satisfied with a State's decision.
    Discussion: If a complainant who wishes to contest a lead agency's
decision on a State complaint is a parent, he or she may request a due
process hearing under Sec. 303.420 concerning a child's identification,
evaluation, or placement, or the provision of appropriate early
intervention services to the child and the child's family. In addition,
States must make mediation under Sec. 303.419 available, at a minimum,
when a parent requests a due process hearing. States

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