KANSAS
SPECIAL EDUCATION
PROCESS
HANDBOOK
Special Education Services
February 2008
This document was developed by the Kansas State Department of Education, Special Education Services, Topeka, Kansas.
The opinions expressed herein do not necessarily reflect the position of the United States Department of Education, and no
endorsement of the United States Department of Education should be inferred.
This document is provided as a guide for the provision of special education and related services. If any portion of this
document conflicts with law or regulation, the law or regulation takes precedence.
Please contact our department if you have questions about information contained within this handbook:
Phone:
800-203-9462, or 785-296-3869
Fax:
785-296-6715
Homepage:
http://www.kansped.org
If additional copies are needed, readers are encouraged to duplicate current copies of the handbook, as there is no copyright
on the information. Or, readers may download the handbook from the web by accessing the homepage listed above. The
format of the handbook may be slightly different on the version that is downloaded.
The (KSDE, or KSSB, or KSSD) does not discriminate on the basis of race, color, national origin, sex,
disability, or age in its programs and activities. The following person has been designated to handle
inquiries regarding the non-discrimination policies:
KSDE General Counsel
120 SE 10th Ave.
Topeka, KS 66612
785-296-3204
Office
785-296-3202
of the Commissioner
785-291-3791 (fax)
120 SE 10th Avenue
Topeka, KS 66612-1182 785-296-6338 (TTY) www.ksde.org
January 2, 2008
Dear Partners in Education:
It has been a little over three decades since the initial federal legislation –P.L. 94-142—
was put in place to ensure that the exceptional educational needs of children and youth
with disabilities are identified and services are provided. In our continuing efforts to
assist you in meeting both federal and state requirements, the Kansas Department of
Education, and specifically the Special Education services team, is please to provide
you with this copy of the Special Education Process Handbook.
Each of you should be congratulated for your commitment and dedication of our
students. By working together, we have ensured the academic and behavioral success
of each and every child. As parents, you can feel confident that your children are being
provided the education they deserve and are entitled to.
Being in the 21
st
century, we will all face challenges as we prepare students for jobs that
may not yet exist and provide instruction in courses that have yet to be determined. I
hope this handbook is useful to you in meeting these challenges, and that it provides a
framework for developing and providing effective services.
Please call upon our staff in Special Education for any assistance you may need or in
answering any questions you may have by calling (785) 291-3097 or (800) 203-9462.
Once again, thank you for your part in making Kansas’ special educational programs a
model for the nation.
Sincerely,
Alexa Posny, Ph.D.
Commissioner of Education
Special
785-291-3097 or 1
Education
-800-203-9462
Services
785-296-6715 (fax)
120 SE 10th Avenue
Topeka, KS 66612-1182 785-296-6338 (TTY) www.ksde.org
February 1, 2008
Dear Colleagues:
It is my pleasure to present to you the Revised Kansas Special Education
Process Handbook based on the components of the 2004 Individuals
with Disabilities Education Improvement Act (IDEA 2004). The
purpose of this handbook is to provide clear, concise guidance in your
work as professional educators in order to ensure students with
exceptionalities receive appropriate special education supports and
services.
In addition to guidance regarding IDEA 2004 and Kansas Regulations,
sample forms and resources are included for your use.
The collaborative effort of those who worked diligently on the revision
of this handbook researching, debating and editing over many months is
greatly appreciated. I am fortunate to have the opportunity to work with
so many dedicated individuals and applaud their efforts to compile such
a thoughtful resource for all of us to use.
Thanks to all of you for what you do to support the education of all
students in Kansas Schools.
Sincerely,
Colleen Riley, Director
INTRODUCTION
“As special education administrators we are responsible for creating a vision that will impact all
students positively and produce excellent outcomes in achievement and behavior.”
Dr. Mary Kealy,
Legislation and Policy Chair, CASE
The reauthorization of the Individuals with Disabilities Education Act of 2004 (IDEA 2004) and the updating of
the Kansas State Regulations in 2008, continues the commitment of the nation to ensure that all students,
including those with disabilities, have access to a free appropriate public education (FAPE), will be included in
the general education curriculum and will demonstrate improved educational outcomes.
The Kansas Special Education for Exceptional Children Act expands federal law and regulations to include
children who are identified as gifted and provides an opportunity for children enrolled in private schools by
their parents to receive FAPE. The Kansas State Department of Education (KSDE) is required to provide
information regarding any rules, regulations and policies not required by IDEA 2004 or Federal Regulations.
The
2008 Kansas Special Education Process Handbook
was developed to provide guidance, resources and
supports necessary for those professionals who work to improve results for exceptional children. The
information provided in the
2008 Kansas Special Education Process Handbook
attempts to clarify and define
legal requirements of the law and regulations. Each chapter includes a brief overview specifying requirements
that are particular to Kansas. In addition, each chapter and the Appendices include valuable resources,
sample forms and references. Users of the
2008 Kansas Special Education Process Handbook
are
encouraged to update any future documents which provide clarification to the law and regulations by KSDE or
the Office of Special Education Programs (OSEP).
Additional information can be found at
idea.ed.gov
and
ksde.org
February 2008
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Kansas Special Education Process Handbook
State Imposed Rules, Regulations, and Policies in Kansas Not Required
By IDEA 2004 or Federal Regulations
9
The categories of exceptionalities include the category of “gifted.” K.S.A. 72-962(g)
9
Exceptional children attending private schools are entitled to a Free Appropriate Public Education
through an IEP, upon request. K.S.A. 72-5393 and K.A.R. 91-40-45(c).
9
A school district must obtain written parental consent before making a change of 25% or more of a
special education service or before making a change to a more restrictive or less restrictive
educational environment for more than 25% of the school day. K.S.A. 72-988(b)(6).
9
Each IEP must include, beginning at age 14, appropriate measurable postsecondary goals and a
statement of the transition services needed to assist the student in reaching the postsecondary goals.
K.S.A. 72-987(c)(8).
9
The state complaint procedures include the right of a parent to appeal the written decision of the state
complaint investigator. K.A.R. 91-40-51(c).
9
A due process hearing officer must be a licensed attorney. K.A.R. 91-40-29(b)(1)(a)
9
General education interventions must be implemented prior to referring a child for a special education
evaluation, unless school personnel can demonstrate such interventions are inadequate to address
the areas of concern for the child or a parent has consented to an evaluation and the school district
agrees that an evaluation is appropriate. K.A.R. 91-40-7(c)(2).
9
A written evaluation report is required after completion of an evaluation with regard to all categories of
exceptionality (not just required for learning disabilities). K.A.R. 91-40-10(a).
9
Facilities for exceptional children must be comparable to facilities for general education children and
such facilities must provide an age appropriate environment for the exceptional children. K.A.R. 91-
40-52(d).
February 2008
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Kansas Special Education Process Handbook
ACKNOWLEDGEMENTS
Special Education Services wishes to thank the KASEA Organization and the Regional Representatives that
participated in the review and revisions of the 2008 Kansas Special Education Process Handbook.
Additionally, representatives from Families Together, Inc., the Kansas Technical Assistance and Resource
System (KSTARS) and KSDE participated in the review and revisions.
Special Education Services is grateful to the following people who spent valuable time reviewing and providing
input into the Special Education Process Handbook:
Lynn Ahrens, Liberal, KASEA Region 7
Evelyn Alden, KSDE, SES
Brenda Asher, Salina, KASEA Region 8
Lori Burnshire, Families Together, Inc.
Kevin Cherveny, KSDE, SES
Crystal Davis, SPOT Grant, KSTARS
Kevin Davis, SPOT Grant, KSTARS
Lesli Girard, Families Together, Inc.
Kyle Goodwin, Shawnee Heights, KASEA Region 2
Misty Goosen, Kansas Inservice Training System, KSTARS
Patty Gray, KSDE, SES
Linda Grote, Hutchinson, KASEA Region 6
Kerry Haag, KSDE, SES
Victoria Hart, KSDE, SES
Mark Hartke, Wichita, KASEA Region 6
Jodi Henderson, Spring Hill, School Psychologist
Pauline Hintz, Paola, KASEA Region 4
Sharon Jeffery, McPherson, KASEA Region 6
Joan Johnson, Shawnee Mission, KASEA Region 1
Ed Koehler, Clay Center, KASEA Region 8
Deb McVey, SPOT Grant, KSTARS
Steve Mead, Pratt, KASEA Region 6
David Myers, Leavenworth, KASEA Region 3
Erica Nance, Goddard, KASEA Region 6
Chelie Nelson, Newton, KASEA Region 6
Donna Patton-Bryant, Lawrence, KASEA Region 1
Pennie Province, Ft. Scott, KASEA Region 5
Colleen Riley, KSDE, SES
Joan Robbins, Spring Hill, KASEA Region 1
Nancy Sapp, Ensign, KASEA Region 7
Sheila Smith, Oskaloosa, KASEA Region 3
Carol Stewart, IDMSS Grant, KSTARS
Mark Ward, KSDE, SES
Robert Wittman, Topeka, KASEA Region 2
February 2008
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Kansas Special Education Process Handbook
2008 SPECIAL EDUCATION PROCESS HANDBOOK
TABLE OF CONTENTS
Letter from the Commissioner............................................................................................................ i
Letter from the Director, Special Education Services........................................................................ ii
Introduction.......................................................................................................................................iii
Table of Contents ............................................................................................................................ vi
Appendices....................................................................................................................................... x
Special Education Process Flow Chart...........................................................................................xiii
CHAPTER 1. PARENT RIGHTS IN SPECIAL EDUCATION (PROCEDURAL SAFEGUARDS)
A. Parent Participation............................................................................................................ 1 - 2
B. Definition of Parent............................................................................................................. 1 - 4
C. Parent Rights in Special Education Notice ......................................................................... 1 - 6
D. Prior Written Notice ............................................................................................................ 1 - 7
E. Parent Consent .................................................................................................................. 1 - 9
F. Parent Consent Requested but Not Provided .................................................................... 1 - 13
G. Notice of IEP Meeting......................................................................................................... 1 - 14
H. Rights for Parents of Gifted Students................................................................................. 1 - 15
I. Education Advocates ......................................................................................................... 1 - 16
J. Student Rights at Age 18 ................................................................................................... 1 - 18
CHAPTER 2
SCREENING AND GENERAL EDUCATION INTERVENTION (CHILD FIND)
A. Public Notice For Child Find................................................................................................2 - 2
B. Screening for Children from Birth to Age 5..........................................................................2 - 2
C. General Education Intervention for Children from Kindergarten through Age 21.................2 - 3
D. Data Collection and Documentation for General Education Intervention.............................2 - 7
E. Referral For Initial Evaluation ..............................................................................................2 - 8
F. Early Intervening Services...................................................................................................2 - 9
CHAPTER 3
INITIAL EVALUATION AND ELIGIBILITY
A. Referral for Initial Evaluation ............................................................................................. 3 - 3
B. Prior Written Notice and Request for Consent .................................................................. 3 - 3
C. The Evaluation Team ......................................................................................................... 3 - 9
D. Timeline for Conducting the Initial Evaluation ................................................................... 3 - 10
E. Conducting the Evaluation ..................................................................................................3 - 12
F. Eligibility Determination and Documentation ...................................................................... 3 - 18
G. Prior Written Notice for Identification.................................................................................. 3 - 23
H. Independent Educational Evaluation.................................................................................. 3 - 23
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Kansas Special Education Process Handbook
CHAPTER 4
THE INDIVIDUALIZED EDUCATION PROGRAM (IEP)
A IEP Team ........................................................................................................................... 4 - 1
B. Notice of IEP Team Meeting .............................................................................................. 4 - 7
C. Using An IEP Instead of An IEP………………………………………………………………… 4 - 9
C. When the IEP/IFSP Must Be in Effect ................................................................................ 4 - 10
D. Development of the IEP ..................................................................................................... 4 - 12
E. Meeting to Review, Revise or Amend the IEP.................................................................... 4 - 29
F. Transfer Within The State or From Out-Of-State................................................................ 4 - 31
G. Implementing the IEP......................................................................................................... 4 - 32
CHAPTER 5
SPECIAL EDUCATION AND RELATED SERVICES
A. Special Education Services................................................................................................ 5 - 1
B. Related Services ................................................................................................................ 5 - 5
C. Supplementary Aids and Services ..................................................................................... 5 - 9
D. Program Modifications and Supports for School Personnel ............................................... 5 - 11
E. Incidental Benefit................................................................................................................ 5 - 12
F. Extended School Year/Day Services.................................................................................. 5 - 12
G. Frequency, Location and Duration of Services................................................................... 5 - 13
H. Home Schooling................................................................................................................. 5 - 14
I.
Services in Local Detention Facilities, Juvenile Justice Authority and Department of
Correction Facilities……………………………………………………………………………… 5 - 15
J. Facilities ............................................................................................................................. 5 - 16
K. Qualified Special Education Personnel .............................................................................. 5 - 16
CHAPTER 6
EDUCATIONAL PLACEMENT AND LEAST RESTRICTIVE ENVIRONMENT
A. Parent Participation............................................................................................................ 6 - 1
B. Determining Educational Placement .................................................................................. 6 - 3
C. Least Restrictive Environment............................................................................................ 6 - 5
D. Early Childhood Least Restrictive Environment ................................................................. 6 - 9
E. Recent Case Law............................................................................................................... 6 - 10
CHAPTER 7
REEVALUATION
A. Purpose of the Reevaluation .............................................................................................. 7 - 1
B. Need for the Reevaluation.................................................................................................. 7 - 2
C. Prior Written Notice and Request for Consent ................................................................... 7 - 3
D. Members of the Reevaluation Team .................................................................................. 7 - 7
E. Conducting the Reevaluation ............................................................................................. 7 - 7
F. Determining Continued Eligibility........................................................................................ 7 - 12
G. Reevaluation for A Child Identified as Developmentally Delayed....................................... 7 - 13
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Kansas Special Education Process Handbook
CHAPTER 8
DISCONTINUING SPECIAL EDUCATION SERVICES
A. No Longer Eligible for Services .......................................................................................... 8 - 1
B. Graduation ......................................................................................................................... 8 - 1
C. Services to Age 21 ............................................................................................................. 8 - 2
D. Summary of Performance .................................................................................................. 8 - 3
E. Revocation of Consent for Special Education Services...................................................... 8 - 4
F. Student Drops Out of School.............................................................................................. 8 - 5
G. Prior Written Notice and Request for Consent ................................................................... 8 - 5
CHAPTER 9
CONFIDENTIALITY
A. Federal and State Requirements ....................................................................................... 9 - 1
B. Access to Records ............................................................................................................. 9 - 3
C. Transfer of Records ........................................................................................................... 9 - 5
D. Release of Information ....................................................................................................... 9 - 6
E. Amendment of Records...................................................................................................... 9 - 8
F. Destruction of Records....................................................................................................... 9 - 8
G. Age of Majority ................................................................................................................... 9 - 9
H. Test Protocols .................................................................................................................... 9 - 9
I. Discipline Records ............................................................................................................. 9 - 10
J. Child in Need of Care......................................................................................................... 9 - 11
CHAPTER 10 MEDIATION
A. Mediation Process.............................................................................................................10 - 1
B. Mediation Requests ..........................................................................................................10 - 2
C. Mediation Participants.......................................................................................................10 - 3
D. Special Education Mediators.............................................................................................10 - 3
E. Mediation Results..............................................................................................................10 - 4
CHAPTER 11 FORMAL COMPLAINT
A. Filing a Formal Complaint..................................................................................................11 - 1
B. Investigating the Complaint ...............................................................................................11 - 2
C. Follow-Up on the Complaint ..............................................................................................11 - 3
D. Appealing the Decision......................................................................................................11 - 3
E. Sanctions by the State Board of Education .......................................................................11 - 3
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Kansas Special Education Process Handbook
CHAPTER 12 DUE PROCESS HEARINGS
A. Filing for Due Process .......................................................................................................12 - 2
B. Assigning a Special Education Due Process Hearing Officer............................................12 - 2
C. Resolution Meeting ...........................................................................................................12 - 3
D. Pre-Hearing Requirements................................................................................................12 - 4
E. Conducting the Due Process Hearing ...............................................................................12 - 4
F. Reaching A Decision.........................................................................................................12 - 5
G. Appealing the Due Process Decision ................................................................................12 - 5
H. Stay Put.............................................................................................................................12 - 6
I. Civil Actions.......................................................................................................................12 - 6
J. Attorney Fees....................................................................................................................12 - 6
CHAPTER 13 SUSPENSION AND EXPULSION FOR DISCIPLINARY VIOLATIONS
(CODE OF STUDENT CONDUCT AND WEAPONS, DRUGS,
OR SERIOUS BODILY INJURY OPTION)
A. Local School District Responsibilities................................................................................13 - 2
B. Code of Conduct Violations...............................................................................................13 - 3
C. Short-Term Removals (Not A Change of Placement)........................................................13 - 5
D. Long-Term Removals (A Change of Placement)...............................................................13 - 7
E. 45 School Day Interim Alternative Educational Setting
(Weapons, Drugs, or Serious Bodily Injury) ......................................................................13 - 10
F. Appeals .............................................................................................................................13 - 11
G. Children Not Determined Eligible for Special Education....................................................13 - 14
H. Reporting A Crime.............................................................................................................13 - 15
I. Seclusion Rooms and Restraint……………………………………………………………….. 13 - 17
CHAPTER 14 CHILDREN IN PRIVATE AND PAROCHIAL SCHOOLS
A. Children Placed in Private Schools by the Public School ..................................................14 - 2
B. Children Enrolled by Their Parents in Private Schools Where
Free Appropriate Public Education (FAPE) is at Issue......................................................14 - 3
C. Child Find for Children Voluntarily Enrolled in Private Schools by their Parents ...............14 - 4
D. State Law Requirements for Children Voluntarily Enrolled in Private Schools
by their Parents.................................................................................................................14 - 6
E. Federal Requirements for Children Voluntarily Enrolled in Private Schools
by their Parents.................................................................................................................14 - 7
F. Mediation and Due Process Rights of Private School Children .................................. …. 14 - 14
February 2008
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Kansas Special Education Process Handbook
Special Education Process Handbook
Appendices
Appendix A
Figure 1-1
KSDE Memo: Clarification of the term "parent" after IDEA 2004
Figure 1-2
Parent Rights in Special Education (Procedural Safeguards)
Figure 1-3
Who can sign as a parent? (Chart in Chapter)
Figure 1-4
KSDE Memo: "Reasonable Time to Respond to Parent Request...
Figure 1-5a
Prior Written Notice for Evaluation or Reevaluation and Request for Consent (Revised)
Figure 1-5b
Prior Written Notice for Evaluation and Request for Consent (New)
Figure 1-5c
Prior Written Notice for Reevaluation and Request for Consent (New)
Figure 1-6
Prior Written Notice for Identification, Special Education and Related Services,
Education Placement, Change in services, Change in Placement, and Request for
Consent
Figure 1-7
Notice of Meeting
Figure 1-8
SRS Memo "Foster Care Database..."
Figure 1-9
Letter to Smith (OSEP, Jan 2007)
Figure 2-1
Sample Public Notice for Child Find
Figure 2-2
General Education Interventions (GEI)
Figure 2-3
State Policy on MTSS (RtI) for Parents
Figure 3-1
Initial Evaluation Flow Chart (in Handbook)
Figure 3-2
Initial Evaluation Timeline (in Handbook)
Figure 3-3
Notice that No Additional Data are Needed
Figure 3-4
Eligibility Indicators, Fall 2007
Figure 3-5
Evaluation/Eligibility Report Checklist
Figure 4-1a
Regular Education Preschool Teacher at IEP Meeting
Figure 4-1b
Chart-Regular Education Preschool Teach at IEP Meeting
Figure 4-2
Comparison of IFSP and IEP Content and Consent (Revised)
Figure 4-3
Excusal from IEP Meeting (New Form)
Figure 4-4
IEP Team Considerations
Figure 4-5
Parent Consent to Invite Representative of Non-Educational Agency to IEP
Figure 4-6
IEP Meeting Requirements
Figure 4-7
IEP Content Checklist
Figure 4-8
Agreement To Amend the IEP
Figure 5-1
Assistive Technology Checklist
Figure 5-2
ESY Determination
Figure 6-1
LRE Decision Tree
Figure 6-2
LRE Decision Tree Support
Figure 6-3
Kansas State Board of Education Policy on Least Restrictive Environment, Memo of
Clarification 94-A
February 2008
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Kansas Special Education Process Handbook
Figure 6-4
Kansas State Board of Education Policies Regarding State School for the Deaf and
State School for the Blind
Figure 7-1
Reevaluation Not Needed (New Form)
Figure 8-1
OSEP Letter to Runkel (Grading/Diplomas)
Figure 8-2
Summary of Performance
Figure 9-1
Model Notification of Rights under FERPA
Figure 9-2
Sample Release of Records
Figure 9-3
Sample Log for Accessing Records
Figure 9-4
Sample List of Employees Who Can Access Records
Figure 9-5
Parent Consent for Medicaid (Revised)
Figure 9-6
Kansas Medicaid Assistance Program Provider Manual (LEA)
Figure 10-1
Special Education Mediation Process Flow Chart
Figure 10-2
Request for Mediation
Figure 10-3
Agreement to Mediate
Figure 10-4
Confidentiality Pledge
Figure 10-5
Mediation Process Timeline
Figure 10-6
Rules of Mediation
Figure 11-1
Formal Complaint Procedure Flow Chart
Figure 11-2
Formal Complaint System Timeline
Figure 11-3
Request Form for Formal Complaint
Figure 12-1
Due Process Flow Chart (Revised)
Figure 12-2
Request for Due Process Hearing For District
Figure 12-3
Request for Due Process Hearing For Parent
Figure 12-4
Appointment of Due Process Hearing Officer by LEA (Revised)
Figure 13-1
Procedures For Disciplinary Violations For Code of Student Conduct Including
Weapons, Drugs, or Serious Bodily Injury (In Chapter)
Figure 13-2
Letter to Huefner, OSEP, October 3, 2006
Figure 13-3
Guidelines for the Use of Seclusion Rooms and Restraint on Children with Disabilities
Figure 13-4
Request for Expedited Due Process Hearing for District
Figure 13-5
Request for Expedited Due Process Hearings for Parent
Figure 13-6a
Functional Behavioral Assessment
Figure 13-6b
Functional Behavior Assessment Flow Chart
Figure 13-7
Manifestation Determination Report (New)
February 2008
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Kansas Special Education Process Handbook
Appendix B
: Federal Law, Individuals With Disabilities Education Act, December 2004
Appendix C
: Federal Regulations for IDEA, August 14. 2006
Appendix D
: State Statutes: Kansas Special Education for Exceptional Children Act, KSA 72-661 through
72-996, and other applicable State Statutes.
Appendix E
: State Special Education Regulations, KAR 91-40-1 through 91-40-53, effective 2008
Appendix F
: Family Educational Rights and Privacy Act (FERPA), July 1, 2006
Appendix G
: Section 504 of The Rehabilitation Act
Appendix H
: Other Resources
Appendix I
: Index to the Process Handbook
Appendix J
: Index to State Special Education Law and Regulations
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Kansas Special Education Process Handbook
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Kansas Special Education Process Handbook
SPECIAL EDUCATION FLOW CHART
General Education
Parent Involvement
(Chapter 1)
General Education Interventions
(Chapter 2)
Parent Rights
(Chapter 1)
Referral for Evaluation
(Chapter 2)
Evaluation for Possible Exceptionality
(Chapter 3)
Eligibility Meeting
(Chapter 3)
Section 504
Eligible
(Appendix G)
Not Eligible,
No Services
Eligible &
Need for Services
(Chapter 3)
IEP Team Meeting
(Chapter 4)
Placement
IEP Goals
(Chapter 6)
(Chapter 4)
Special Education
& Related Services
(Chapter 5)
Private Schools
(Chapter 14)
Discontinuing Services
(Chapter 8)
Reevaluation
(Chapter 7)
Continuing Services
Annual IEP/Review Revise IEP
Special Considerations:
Confidentiality
Chapter 9
Suspension/Expulsion
Chapter 13
Mediation
Chapter 10
Code of Student Conduct and
Due Process
Chapter 11
weapons, drugs, or dangerous behavior
Formal Complaint
Chapter 12
CHAPTER 1
PARENT RIGHTS IN SPECIAL EDUCATION
(PROCEDURAL SAFEGUARDS)
INTRODUCTION
The reauthorization of the Individuals with Disabilities Education Improvement Act (IDEA), in 2004, retained important
procedures which schools must use when evaluating eligibility for special education services, when developing or
changing a child’s Individualized Education Program (IEP) or when attempting to resolve serious disputes regarding
special education issues. These procedures are sometimes referred to as “procedural safeguards” or “parent rights.”
This chapter will focus on the procedural safeguards related to evaluations and to the development and revision of
the IEP. Later chapters will address procedures regarding dispute resolution processes, such as due process
hearings, mediation and formal complaints to the state department of education.
The procedural safeguards specified in the IDEA were primarily designed to help schools and parents work together to
develop effective educational programs for children with disabilities. In
Henry Hudson Central School District v. Rowley,
102 S.Ct. 3034 (1982), the United States Supreme Court said:
“…we think that the importance Congress attached to these procedural safeguards cannot be
gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis
upon compliance with procedures giving parents and guardians a large measure of participation at
every stage of the administrative process … as it did upon the measurement of the resulting IEP
against a substantive standard. We think that the congressional emphasis upon full participation of
concerned parties throughout the development of the IEP, as well as the requirements that state
and local plans be submitted to the Commissioner for approval, demonstrate the legislative
conviction that adequate compliance with the procedures prescribed would in most cases assure
much if not all of what Congress wished in the way of substantive content in an IEP.”
This chapter provides information to assist schools in ensuring that parents and students receive their rights as
established in IDEA-2004. The following topics will be discussed:
A. Parent Participation
B. Definition of Parent
C. Parent Rights In Special Education Notice
D. Prior Written Notice
E. Parent Consent
F. Parent Consent Requested but Not Provided
G. Notice of IEP Meeting
H. Rights for Parents of Gifted Students
I.
Education Advocates
J. Student Rights at Age 18
February 2008
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Kansas Special Education Process Handbook
A. PARENT PARTICIPATION
To address the requirement to strengthen the role of parents in the special education process, Congress mandated
that schools afford parents the opportunity to be members of any decision making team for their child, including
eligibility, initial evaluation and reevaluation, and development of an individualized education program (IEP) for the
provision of a free appropriate public education (FAPE). Schools are to ensure that parents have the opportunity to
be members of the IEP team that makes decisions on the educational placement of their child. Although logistically
this increased involvement of parents may present challenges in arranging convenient meeting times, it should result
in decisions that are individualized to meet the unique needs of students and in the development of a closer, more
collaborative relationship with parents. Additionally, parents have a responsibility to participate and provide their
input into their child’s education. School teams recognize the contributions that parents can make to the process and
how they can help ensure their child’s educational progress (K.A.R. 91-40-25(a); K.A.R. 91-40-17(a); 34 C.F.R.
300.501(b)(c)).
Every child with an exceptionality is entitled to receive a free appropriate public education (FAPE). Parent rights are
intended to ensure that children receive FAPE. FAPE is defined as special education and related services that meet
the following criteria:
1. are provided at public expense, under public supervision and direction, and without charge;
2. meet the standards of the state board;
3. include an appropriate preschool, elementary, or secondary school education; and
4. are provided in conformity with an individualized education program. (K.A.R. 91-40-1(z))
Parents are to be provided notice of meetings related to eligibility, evaluation, reevaluation, IEP development,
provision of a free appropriate public education (FAPE) for their child and educational placement decisions, to ensure
that they have the opportunity to participate in the meetings (See Section G of this chapter.). The notice
requirements are the same as for notice of an IEP meeting (K.A.R. 91-40-17(a)(b)(1); K.A.R. 91-40-21(c)(1)(d);
K.A.R. 91-40-24(b)(c); 34 C.F.R. 300.501(b)(2); 34 C.F.R. 300.322(a)(b)(1)).
The school must make reasonable efforts to ensure that the parents understand, and have the opportunity to
participate in these meetings, including arranging for an interpreter for parents with deafness, or for parents whose
native language is other than English. The parent and the school may agree to use alternative means of meeting
participation, such as video conferences or conference calls (K.A.R. 91-40-17(c); K.A.R. 91-40-25(d); 34 C.F.R.
300.322(e)). These meeting requirements do not apply to informal or unscheduled conversation of school personnel
on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does
not include preparatory activities that public agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting (K.A.R. 91-40-25(e); 34 C.F.R. 300.501(b)(3)).
In addition to involving parents in making decisions about their children, schools should involve parents of children
with exceptionalities in their school improvement planning process. Parents should be involved in designing,
evaluating, and where appropriate, implementing school improvement plans. In Kansas, school improvement plans
are implemented under Quality Performance Accreditation (QPA), which is built upon standards for student
educational performance and includes Special Education Focused Assistance and Monitoring (FAM). Each school
should include parents of students with exceptionalities on each School Site Council.
The Kansas special education law (K.S.A. 72-961-997), known as the Special Education for Exceptional Children
Act, revised in 2006, (referred to here as the "State statute") also sets forth parental responsibilities. This law
requires parents to see that their child with a disability (not giftedness) attends school so that their child can receive
the special education and related services on the child’s IEP, or to provide such services privately. This means that
for a child with a disability who has an IEP (or IFSP ages 3-5) compulsory attendance may begin as early as age 3
(K.S.A. 72-977).
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State Statute:
K.S.A. 72-977
(a)
Except as otherwise provided in this section, it shall be the duty of the parent of each exceptional child to require such child to attend
school to receive the special education and related services which are indicated on the child's IEP or to provide for such services privately.
(b)
The provisions of subsection (a) do not apply to gifted children or to parents of gifted children.
State Regulation:
K.A.R. 91-40-17. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each IEP meeting or are afforded
the opportunity to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection
(b) of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parents of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons who will
attend on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss needed transition
services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law
but is now transitioning to the provisions for older children, the notice shall inform the parents that they may require that a
representative of the infant and toddler program be invited to attend the initial IEP team meeting to assist with the smooth transition of
services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services for the child:
(A) The agency will invite the parents’ child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(3) The parents have the right to invite to the IEP
team meeting individuals whom the parents believe to have knowledge or special expertise about their child.
(c) If neither parent of an exceptional child can be physically present for an IEP team meeting for the child, the agency shall attempt other
measures to ensure parental participation, including individual or conference telephone calls.
K.A.R. 91-40-21(c)(2)
In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by a group of persons,
including the child’s parent and other persons who are knowledgeable about the child, the meaning of the evaluation data and appropriate
placement options for gifted children.
K.A.R. 91-40-25. Opportunity to examine records and participate in meetings.
(a)
Each agency shall allow the parents of an exceptional child an opportunity to inspect and review all education records and participate in
any meeting concerning their child with respect to the following:
(1) The identification, evaluation, or education placement of the child; and
(2) the provision of FAPE to the child.
(b)
Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each meeting concerning their
child or are afforded the opportunity to participate. These steps shall include the following:
(1) Scheduling the meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection
(c) of this regulation; and
(2) providing prior written notice of any meeting, in accordance with subsection (c) of this regulation, to the parents of the child.
(c)
The notice required in subsection (b) of this regulation shall indicate the purpose, time, and location of the meeting and the titles or positions of the
persons who will attend on behalf of the agency or at the agency’s request.
(d)
If neither parent of an exceptional child can be physically present for a meeting concerning the child, the agency shall attempt other measures
to ensure parental participation, including individual or conference telephone calls.
(e)
As used in this regulation, a meeting shall not include the following:
(1) Informal or unscheduled conversations involving agency personnel and conversations on issues including teaching methodology,
lesson plans, or coordination of service provision if those issues are not addressed in the child’s IEP; and
(2) preparatory activities that agency personnel engage in to develop a proposal or response to a parent's proposal that will be discussed
at a later meeting.
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B.
DEFINITION OF PARENT
School personnel must determine the appropriate person(s) to make educational decisions on behalf of the child.
Those individuals have a right to receive notice, give or revoke consent, file formal complaints, request mediation, file
for a due process hearing, give or deny permission for release of records, etc. (See Appendix A, Figure 1-1, KSDE
Memo: “Definition of a Parent”)
In Kansas “parent” is defined as:
•
A natural (biological) parent;
•
An adoptive parent;
•
A person acting as a parent;
•
A legal guardian;
•
An education advocate; or
•
A foster parent, if the foster parent has been appointed the education advocate of an exceptional child.
(K.S.A. 72-962(m); 34 C.F.R. 300.30)
“Person acting as a parent” means a person such as a grandparent, stepparent or other relative with whom a child
lives, or a person other than a parent or relative who is legally responsible for the welfare of a child.
If there is more than one party qualified to act as a parent, and the biological or adoptive parents attempt to act as the
parent, the biological or adoptive parents must be presumed to be the parents and legal decision makers, unless they
do not have legal authority to make educational decisions for the child. A judge may decree or order a person acting
as a parent or a legal guardian or persons to act as the “parent” to make educational decisions for the child. The
school shall recognize this person(s) as the legal decision maker for the child (K.A.R. 91-40-27(c); 34 C.F.R.
300.30(b)(1)(2)).
If parents are divorced, regardless of which parent has primary custody, the school must provide Prior Written Notice
of any special education action to both parents, even if only one parent has the right to consent, unless a court order
precludes this from happening. This applies to all special education notice requirements including notice of an IEP
meeting. If the school is only aware of one parent's address, the school must make reasonable efforts to locate the
other parent in order to provide notice. However, consent from one parent is sufficient. In the event that the school
receives consent forms from both parents, with one parent providing consent for the action and the other denying
consent, the school is deemed to have received consent and must fulfill its obligation to provide FAPE to the student.
The parent who denies consent has the right to request mediation or file for due process.
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The following checklist in Figure 1-3 is provided as a guide to school personnel to help determine the legal
educational decision maker:
FIGURE 1-3
WHO CAN GIVE CONSENT FOR EDUCATIONAL DECISIONS?
1. Are Parents available?
A
.___
Natural (biological) parent(s):
If parents are divorced, notify both parents unless a court order
precludes this from happening. Consent from one parent is sufficient even if the other parent refuses to
consent.
B
.___
Adoptive parent(s):
If adoption is not final, an education advocate is needed; documentation is the
‘Decree of Adoption’.
C
.___
Guardian:
Guardianship has been completed and is documented with “Letters of Guardianship”
issued by a court.
2. Parent is unknown or unavailable (Person acting as a parent)
A
. ___
Person Acting as a Parent:
A person, such as a grandparent, stepparent or other relative with whom
a child lives, or a person other than a parent who is legally responsible for the welfare of a child.
B
. ___
Education Advocate:
Appointment as an education advocate has been completed and is
documented with a Letter of Appointment from Families Together.
C.
___
Foster parent:
Only if appointment as an education advocate has been completed and is
documented with a Letter of Appointment from Families Together.
3
.
The student at age 18:
At age 18 the student becomes his/her own educational decision-maker unless
determined by a court to be incompetent.
State Statute:
K.S.A. 72-961
(m) ‘‘Parent’’ means: (1) A natural parent; (2) an adoptive parent; (3) a person acting as parent; (4) a legal guardian; (5) an education
advocate; or (6) a foster parent, if the foster parent has been appointed the education advocate of an exceptional child.
(n) ‘‘Person acting as parent’’ means a person such as a grandparent, stepparent or other relative with whom a child lives or a person other
than a parent who is legally responsible for the welfare of a child.
(o) ‘‘Education advocate’’ means a person appointed by the state board in accordance with the provisions of section 13, and amendments
thereto. A person appointed as an education advocate for a child shall not be: (1) An employee of the agency which is required by law to
provide special education or related services for the child; (2) an employee of the state board, the department, or any agency which
is directly involved in providing educational services for the child; or (3) any person having a professional or personal interest which
would conflict with the interests of the child.
State Regulations:
K.A.R. 91-40-27 Parent Consent
(c) Unless a judicial order specifies to the contrary, an agency shall recognize the biological or adoptive parent of an exceptional child who is
a minor as the educational decision maker for the child if the parent exerts his or her rights on behalf of the child, even if other persons meet
the definition of parent for the particular child.
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C. PARENT RIGHTS IN SPECIAL EDUCATION NOTICE
To ensure that parents have knowledge about their rights under the special education law, schools are required to
provide a copy of the Parent Rights in Special Education Notice to the parents:
•
At least one time in a school year; and
•
Upon a referral or parent request for initial evaluation;
•
First formal complaint or due process complaint filed in a school year;
•
Upon a disciplinary removal from school that constitutes a change in placement; and
•
Upon parent request.
These are the
only times when the Parent Rights Notice is required to be provided. IDEA-04 eliminated the
requirement to provide the Parent Rights Notice with the notification of each IEP meeting.
The notice is to be written in language understandable to the general public and provided in the native language of
the parent or other mode of communication used by the parent unless it is clearly not feasible to do so. If the
language or mode of communication is not a written language, the school must translate the notice orally or use
another mode of communication so that the parent understands the content of the notice. Parents may elect to
receive the Parent Rights Notice by electronic mail communication, if the school makes that option available (34
C.F.R. 300.504(a)(b); 34 C.F.R. 300.505). If the Parent Rights Notice is provided electronically the school should
have a copy of the email sent to the parent and documentation that the notice was received. The school may place a
current copy of the Parent Rights Notice on its Internet Web site if one exists (34 C.F.R. 300.504(b)). However,
simply putting the notice on the school’s website does not fulfill a schools obligation to provide notice to the parents.
The Parent Rights in Special Education Notice is referred to in this document as Parent Rights Notice, and is referred
to as Notice of Procedural Safeguards in federal law (34 C.F.R. 300.504
).
Special Education Services has
developed a model Parent Rights Notice that schools may use or substitute another version if it includes the required
content. If a district is not using the State version, the local version must be submitted to the KSDE Special
Education Services Team for review and approval. Check with Special Education Services for available translations
of the Parent Rights Notice. (See Appendix A, Figure 1-2, Parent Rights Notice. The notice is also available by
calling 1-800-203-9462, or on the Special Education Services Homepage at
http://www.kansped.org
.)
The Parent Rights Notice must include a full explanation of all of the procedural safeguards available as identified in
K.S.A. 72-988 and 34 C.F.R. 300.504(c):
State Statute:
K.S.A. 72-988. Parental rights
. (a) The rights of parents of exceptional children shall include, but not be limited to, the rights specified in this
section.
(b) The parents of exceptional children shall have the right to:
(1) Examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational
placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of
the child;
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency: (A) Proposes to initiate or change; or (B)
refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate public
education to the child;
(3) receive the notice required by provision (2) in their native language, unless it clearly is not feasible to do so;
(4) present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a
free appropriate public education to the child, subject to the requirements in section 8, and amendments thereto;
(5) request mediation in accordance with this act;
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in placement of,
or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions of section 17, and
amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a change in placement or
services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to a substantial change in
placement or a material change in services, the agency must maintain detailed records of written and verbal contacts with the parent and the response, if
any, received from the parent;
(7) be members of any group that makes decisions on the educational placement of their child;
(8) demand that their child remain in the child’s current educational placement pending the outcome of a due process hearing, except as otherwise
provided by federal law and this act;
(9) subject to the requirements of this act, request a due process hearing in regard to any complaint filed in accordance with provision (4) of this
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subsection, or as authorized in section 18, and amendments thereto;
(10) appeal to the state board any adverse decision rendered by a hearing officer in a local due process hearing;
(11) appeal to state or federal court any adverse decision rendered by a review officer in a state-level due process appeal; and
(12) recover attorney fees, as provided in the federal law, if they are the prevailing parties in a due process hearing or court action; however, only a
court shall have the authority to award attorney fees, and such fees may be reduced or denied in accordance with federal law.
(c) The state board shall develop a model form to assist parents in filing a complaint and due process complaint notice.
(d) The state board shall develop, and thereafter amend as necessary, and distribute for use by agencies, a notice of the rights available to the parents
of exceptional children under the federal law and this act. The notice shall include a full explanation of the rights and be made available in various
languages and be written so as to be easily understandable by parents.
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a copy also
shall be given to the parents: (A) Upon initial referral or parental request for evaluation; (B) upon request of a parent; and (C) upon the initial filing
of a complaint under subsection (b)(4). History. L. 1999, ch. 116, § 9; L. 2005, ch. 171, § 15; July 1.
Federal Regulation:
§ 300.504 Procedural safeguards notice.
(a)
General
. A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a
school year, except that a copy also must be given to the parents—
(1) Upon initial referral or parent request for evaluation;
(2) Upon receipt of the first State complaint under §§ 300.151 through 300.153 and upon receipt of the first due process complaint under §
300.507 in a school year;
(3) In accordance with the discipline procedures in § 300.530(h); and
(4) Upon request by a parent.
(b)
Internet Web site.
A public agency may place a current copy of the procedural safeguards notice on its Internet Web site if a Web site exists.
(c)
Contents.
The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under § 300.148, §§
300.151 through 300.153, § 300.300, §§ 300.502 through 300.503, §§ 300.505 through 300.518, § 300.520, §§ 300.530 through 300.536 and §§
300.610 through 300.625 relating to—
(1) Independent educational evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including—
(i) The time period in which to file a complaint
(ii) The opportunity for the agency to resolve the complaint; and
(iii) The difference between the due process complaint and the State complaint procedures, including the
jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;
(6) The availability of mediation;
(7) The child’s placement during the pendency of any due process complaint;
(8) Procedures for students who are subject to placement in an interim alternative educational setting;
(9) Requirements for unilateral placement by parents of children in private schools at public expense;
(10) Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;
(11) State-level appeals (if applicable in the State);
(12) Civil actions, including the time period in which to file those actions; and
(13) Attorneys’ fees.
(d)
Notice in understandable language.
The notice required under paragraph (a) of this section must meet the requirements of § 300.503(c).
300.505 Electronic mail.
A parent of a child with a disability may elect to receive notices required by §§300.503, 300.504, and 300.508 by an electronic mail communication,
if the public agency makes that option available.
D. PRIOR WRITTEN NOTICE
One of the procedural safeguards afforded to parents is the required Prior Written Notice of certain proposed special
education actions. This notice must be provided to parents within a reasonable amount of time before the date the
school proposes to
initiate or change the
•
identification,
•
evaluation,
•
educational placement of their child, or
•
the provision of special education and related services (FAPE) to their child.
Prior Written Notice is also provided when the school refuses a parent's request to initiate or change the
identification, evaluation, or educational placement of the child, or to make a change to the provision of special
education and related services to the child (K.S.A. 72-988(b)(2); 34 C.F.R. 300.503(a)). When parents make a
request for an evaluation (whether oral or written), KSDE has determined that 15 school days is a reasonable time for
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providing parents with a Prior Written Notice of the district’s proposal to conduct the evaluation or the district’s refusal
to conduct the evaluation (See Appendix A, Figure 1-4, KSDE Memo, “Reasonable Time” to respond to parent
request for evaluation, January 8, 2002).
Additionally, Prior Written Notice is provided to the parent when the school proposes to make a change in services or
placement that is not substantial or material. However, parent consent is not required for either of these changes.
The Prior Written Notice provided to parents for each proposed special education action must contain specific
information:
•
a description of the action proposed or refused;
•
an explanation of why the school proposes or refuses to take the action;
•
a description of each evaluation procedure, assessment, record, or report the school used as basis for
proposed or refused action;
•
a description of the other options the IEP team considered and reasons why they were rejected;
•
a description of any other factors relevant to the proposal or refusal;
•
a statement that the parents have parental rights under the law; and
•
sources for parents to contact to assist in understanding their rights
.
(K.S.A. 72-990)
Additionally, if the notice is to propose to conduct an initial evaluation or a reevaluation, the notice must describe any
evaluation
procedures that the school proposes to conduct (K.S.A. 72-986(b); 34 C.F.R. 300.304(a)(1)).
The notice is to be provided in language understandable to the general public, and in the native language of the
parent unless it is clearly not feasible to do so. Additionally, if the native language or other mode of communication
of the parent is not a written language, the school must take steps to ensure that (a) the notice is translated orally, or
by other means, to the parent in his or her native language or other mode of communication (such as sign language);
(b) the parent understands the content of the notice; and (c) there is written documentation that these requirements
are met. (K.A.R. 91-40-26(b)(c); 34 C.F.R. 300:503(b)(c))
Figure 1-5a and 1-5b, Prior Written Notice for Evaluation or Reevaluation and Figure 1-6, Prior Written Notice for
Identification, Eligibility and Placement can be found in Appendix A. Copies of these forms may be accessed at
www.kansped.org . If a district is not using these State forms, the local versions must be submitted to KSDE Special
Education Services Team for review and approval.
State statute and regulations (K.S.A. 72-990; K.A.R. 91-40-26) reflect Federal requirements for the content and
provision of the Prior Written Notice (34 C.F.R. 300.503):
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct.
K.S.A. 72-988. Parental rights.
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate
public education to the child;
(3) receive the notice required by provision (2) in their native language, unless it clearly is not feasible to do so;
K.S.A. 72-990. Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto,
shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for
evaluation, the means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding the provisions of the federal law and this act.
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State Regulation:
K.A.R. 91-40-26. Notice requirements.
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding
action proposed or refused by an agency, an the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
(c) If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all
of the following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
Sources for Parents to Contact to Obtain Assistance in Understanding Parent Rights
In addition to school staff, there are other resources parents can contact for more information to understand their
parent rights. IDEA provides funding for a Parent Training and Information (PTI) Center in each state. In Kansas,
Families Together, Inc., is the PTI and provides training, information and resources for parents. Schools are
encouraged to include any additional resources, including local resources that are knowledgeable and available to
parents, including any of the following:
Kansas State Department of Education, 800-203-9462 (in-State only)
Families Together, 800-264-6343
Disability Rights Center of Kansas (DRC), 877-776-1541
Keys for Networking, 785-233-8732
E. PARENT CONSENT
Federal and State laws and regulations have specific requirements for requesting parent consent. Consent is always
to be “informed consent.” The Prior Written Notice must accompany the request for consent for each proposed
special education action. The parent must agree in writing to the action for which his or her consent is sought (K.A.R.
91-40-27(a); 34 C.F.R. 300.300). In determining that informed consent is obtained, the following must be insured:
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked). (K.A.R. 91-40-1(l); 34 C.F.R.
300.9)
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Parent consent is required for the following actions:
1.
Consent to conduct an initial evaluation:
If the child is enrolled in a public school or seeks to be enrolled
in a public school and the parent does not provide consent (refuses) for initial evaluation, or the parent fails
to respond to a request to provide consent, the school may, but is not required to, pursue the initial
evaluation of the child by utilizing the procedural safeguards available under special education laws and
regulations, including mediation. If the parent refuses or does not respond, the school does not violate its
obligation for the provision of FAPE to the child if it declines to pursue the evaluation (K.A.R. 91-40-27(a),
(f)(3); 34 C.F.R. 300.300(a)).
2.
Consent to conduct a reevaluation:
If the parent refuses to consent to a reevaluation, the school may,
but is not required to, pursue the reevaluation by using mediation or due process procedures. Additionally,
informed parental consent is not required to conduct a reevaluation if the school can demonstrate that: (a) it
made reasonable efforts to obtain such consent; and (b) the child’s parent has failed to respond (K.A.R. 91-
40-27(a), (f)(3),(g); 34 C.F.R. 300.300(c)).
3.
Consent for the initial provision of services on the IEP
: If the parent fails to respond or refuses to
consent to initial services the school
can not use mediation or due process procedures in order to obtain
agreement or a ruling that the services may be provided to the child. Under these circumstances, the
school does not violate its obligation for the provision of FAPE to the child for failure to provide the child with
the special education and related services for which the public agency requested consent. In addition, the
school is not required to convene an IEP meeting or develop an IEP for the child (K.A.R. 91-40-
27(a)(f)(3)(g); 34 C.F.R. 300.300(b)).
4.
Consent to make a substantial change in placement (more than 25% of the child's school day):
If the
parent refuses to consent to a substantial change in placement, the school may, but is not required to,
pursue the proposed substantial change in placement by using mediation or due process procedures.
Additionally, informed parental consent is not required to make a substantial change in placement if the
school can demonstrate that: (a) it made reasonable efforts to obtain such consent; and (b) the child’s
parent has failed to respond; or (c) if the change is made under the discipline provisions in K.A.R. 91-40-33-
38 (K.A.R. 91-40-27(a)(f)(1)(g); K.A.R. 91-40-1(rrr)).
5.
Consent to make a material change in services (25% or more of any one service):
If the parent
refuses to consent to a material change in services, the school may, but is not required to, pursue the
material change in services by using mediation or due process procedures. Additionally, informed parental
consent is not required to make a material change in services if the school can demonstrate that: (a) it
made reasonable efforts to obtain such consent; and (b) the child’s parent has failed to respond; or (c) if the
change is made under the discipline provisions in K.A.R. 91-40-33-38 (K.A.R. 91-40-27(a),(f)(1)(g); K.A.R.
91-40-1(mm)).
6.
Consent to add a new service, or to delete a service completely (100%):
If the parent refuses to
consent to add or delete a service, the school may, but is not required to, pursue the action by using
mediation or due process procedures. Additionally, informed parental consent is
not required to add or
delete a service if the school can demonstrate that: (a) it made reasonable efforts to obtain such consent;
and (b) the child’s parent has failed to respond; or (c) if the change is made under the discipline provisions
in K.A.R. 91-40-33-91-40-38. Consent is
not required when the change in placement is due to graduation or
exceeding the age of eligibility for special education services. (K.A.R. 91-40-27(a),(f)(1)(g))
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7.
Consent for evaluation or services in private school:
If the parent of a child who is home schooled or
placed in a private school by the parents at their own expense does not provide consent (refuses) for an
initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the school
may
not use mediation or due process procedures to obtain consent. (K.A.R. 91-40-27(f)(2); 34 C.F.R.
300.300(d)(4)). When the school requests consent for an initial evaluation, a reevaluation or initial services
and the parents of a private school or home-schooled child fails to respond or refuses to give consent, the
school has met it’s obligation for child find.
The following requests for parent consent do not require that the parent be provided the Prior Written Notice as
described in Section D above, however, parents must be fully informed about what they are being asked to provide
consent.
8.
Consent to excuse an IEP team member from IEP team meeting:
A required member of the IEP Team,
may be excused from attending an IEP Team meeting, in whole or in part, when the meeting involves a
modification to or discussion of the member’s area of the curriculum or related services, if, (a) the parent, in
writing, and the school consent to the excusal; and (b) the IEP Team member submits, in writing to the
parent and the IEP Team, input into the development of the IEP prior to the meeting (34 C.F.R. 300.321(e);
K.S.A. 72-987(b)(2)(3)). (See Appendix A, Figure 4-3, Excusal From IEP Meeting form or
www.kansped.org
and See Chapter 4, Individualized Educational Program.)
9.
Consent to invite outside agency:
When the IEP team is considering a child’s post-secondary goals and
transition services needed to assist the child in reaching those goals, the school is required to invite a
representative of any agency that is likely to provide or pay for transition services. The school must obtain
parental consent to invite the representative from that agency because confidential information about the
child would be shared at the meeting (K.A.R. 91-40-17(g)). (See Appendix A, Figure 4-5, Consent to Invite
Representative of Non-educational Agency to IEP Meeting or
www.kansped.org . ) (See Chapter 4,
Individualized Educational Program.)
10.
Consent for Use of Private Insurance and Medicaid:
When an IEP team has identified special education
and related services for a child who is Medicaid eligible or is covered by private insurance the school must
request parent consent at the time the services are determined, but at least annually, in order to access
Medicaid or private insurance (See Appendix A, Figure 1-9, Memo to Smith, January 23, 2007).
Parental consent is not required for the following actions:
•
Review existing data as part of an initial evaluation or a reevaluation,
•
Administer a test or other evaluation that is administered to all children unless consent is required of parents
of all children (K.A.R. 91-40-27(e); 34 C.F.R. 300.300(d)); or
•
Any other proposed special education action where parental consent is not specifically require by special
education statutes and regulations. In these situations, only Prior Written Notice to the parent of the action
proposed and the parent’s acknowledgement of the notice is required (e.g., less than a material or
substantial change in placement, or the school refuses to conduct an initial evaluation or reevaluation).
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Requirements for Parental Notice and Consent
(34 C.F.R. 300.503)
Proposed Action by the School
Prior Written Notice
(PWN)(300.503)
or Notification
Requires
Parental
Consent
Due Process
If Parent
Refuses to Give
Consent
Initiate evaluation
PWN
Yes
May/not required
Refuse to initiate initial evaluation or reevaluation
PWN
No
N/A
Identification and Eligibility Determinations
PWN
No
N/A
Initial provision of IEP services (placement)
PWN
Yes
No
Reevaluation of a student
PWN
Yes
May/not required
Substantial change in placement (25% or more of student’s
day)
PWN
Yes
May/not required
Change in placement that is less than 25% of the student’s
day
PWN
No
N/A
Material change in services (25% or more of any one
service),
includes accommodations listed on the IEP
PWN
Yes
May/not required
Change in service that is less than 25% of the service being
changed
PWN
No
N/A
Add a new service or delete one completely
PWN
Yes
May/not required
Evaluation, reevaluation or initiate services for children
parentally placed in private schools
PWN
Yes
No
Notification of the IEP meeting
Notification
No
N/A
Invite an outside agency to the IEP for secondary transition
Notification
Yes
N/A
Use of private insurance or Medicaid
Notification
Yes
N/A
Kansas Statute
K.S.A. 72-988
(b)(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in
placement of, or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions of
section 17, and amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a change in
placement or services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to a substantial
change in placement or a material change in services, the agency must maintain detailed records of written and verbal contacts with the parent
and the response, if any, received from the parent;
State Regulations:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native language or
other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that
activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the parent
revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given and before the
consent was revoked.
K.A.R. 91-40-27. Parental consent.
(a) Except as otherwise provided in this regulation, an agency shall obtain written parental consent before taking any of the following actions:
(1) Conducting an initial evaluation or any reevaluation of an exceptional child;
(2) initially providing special education and related services to an exceptional child; or
(3) making a material change in services to, or a substantial change in the placement of, an exceptional child, unless the change is made
under the provisions of K.A.R. 91-40-33 through 91-40-38, or is based upon the child's graduation from high school or exceeding the age of
eligibility for special education services.
(d) An agency shall not construe parental consent for initial evaluation as parental consent for the initial provision of special education and related
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services to an exceptional child.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child,
an agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not provide
consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue the
evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue an
evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if the
agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered by
the agency.
F. PARENTAL CONSENT REQUESTED BUT NOT PROVIDED
1.
Parents Do Not Respond
The school must make reasonable attempts to obtain consent from the parents for each special education action as
required. Reasonable attempts are defined as at least 2 contacts by 2 different methods and documentation of such
attempts should be kept including detailed records of telephone calls made or attempted and the results, copies of
written correspondence sent to the parents and their response if any, and visits made to the parents home or place of
employment, and the response, if any, from the parents (K.A.R. 91-40-27(g); K.A.R. 91-40-17(e)(2); 34 C.F.R.
300.322(d)(1)).
As indicated previously, parent consent is required to conduct a reevaluation, or to make a material change in services
or a substantial change in placement. However, parent consent is not required for these actions if the parent does not
respond to the schools requests for consent and the school can document its attempts to obtain parental consent as
outlined above (K.S.A. 72-988(b)(6)). Additionally, under the disciplinary protections, the school would not be deemed to
have knowledge of the child’s disability if the parent has not allowed an evaluation or refused services; or the child has
been evaluated and determined not to have a disability (K.S.A. 72-994(c)).
2.
Parents Revoke Consent
Parent consent is voluntary, and may be revoked by the parents at any time. If a parent revokes consent for existing
services, the LEA should meet with the parent to attempt to resolve the difficulty, seek mediation, or possibly initiate a
due process proceeding to override the parent's objection. If the parent cannot be convinced to continue the services,
the LEA may honor the parent's objection and cease provision of the services. The LEA should send written notice to
the parent that it stands ready, willing, and able to provide appropriate services to the child, if the parent reconsiders his
or her objection to those services.
In this case, a due process hearing is not required. However, if a due process hearing is not initiated by the school
district, it is possible the student, at a future time, could ask for compensatory education.
If a due process hearing is
initiated, the “stay put” provision in the law requires that the services and placement specified in the child’s IEP continue
during the pendency of the proceedings.
When parents revoke their consent for a specific special education action the revocation is not retroactive but becomes
effective on the date that it was revoked (K.A.R. 91-40-1(l)(3); 34 C.F.R. 300.9). Therefore, the revoking of consent does
not negate any action that has occurred after the previous consent was given and before the consent was revoked.
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If the parent refuses or revokes consent for one service or activity the school cannot deny the parent or child any other
service, benefit or activity on the child’s IEP (K.A.R. 91-40-27(h)). In addition, because consent for services must be in
writing, revocation of consent must also be in writing.
State Statute:
K.S.A. 72-961
(rrr) "Substantial change in placement" means the movement of an exceptional child, for more than 25% of the child's school day, from a less
restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.
(mm) "Material change in services" means an increase or decrease of 25% or more of the duration or frequency of a special education service, a
related service or a supplementary aid or a service specified on the IEP of an exceptional child.
G. NOTICE OF IEP TEAM MEETING
The school must take steps to ensure that one or both parents are present at each IEP meeting or are otherwise
afforded the opportunity to participate in the IEP meeting. The meeting is to be scheduled at a mutually agreed upon
time and place. The school must provide notice of an IEP meeting to the parents for the initial IEP meeting and any
subsequent IEP meetings. The notice must be provided in writing at least 10 days prior to the meeting (K.A.R. 91-
40-17(a)(2)) and inform the parents that their child is invited to attend the meeting. The written notice must indicate:
1. the purpose;
2. date;
3. time;
4. location of the meeting;
5. the titles or positions of the persons who will attend on behalf of the school (The school is to notify the parents
about who will be in attendance at an IEP team meeting, however, individuals may be indicated by position
only. The school may elect to identify participants by name, but they have no obligation to do so.); and
6. inform the parents of their right to invite to the IEP meeting individuals whom the parents believe to have
knowledge or special expertise about their child;
7. inform the parents that if their child was previously served in Part C they may request that the local Part C
coordinator or other representative be invited to participate in the initial IEP meeting to ensure a smooth
transition of services.
In addition, beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined
appropriate by the IEP team, the notice must:
8. indicate that a purpose of the meeting is the consideration of the postsecondary goals and transition
services;
9. indicate that the school will invite the student; and
10. identify any other agency that will be invited, with parent consent (or student consent if age 18), to send a
representative. (K.A.R. 91-40-17(b); 34 CRF 300.322(b))
Figure 1-7 in Appendix A of is a sample Notice of Meeting form, see
www.kansped.org . Also see Chapter 4,
Individualized Education Program.
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Kansas Regulations:
K.A.R. 91-40-17. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that one or both of the parents of an exceptional child are present at each IEP meeting or are afforded
the opportunity to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parents of the information specified in subsection (b)
of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parents of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons who will attend
on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss needed transition services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law but
is now transitioning to the provisions for older children, the notice shall inform the parents that they may require that a representative of the
infant and toddler program be invited to attend the initial IEP team meeting to assist with the smooth transition of services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services for the child:
(A) The agency will invite the parents’ child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(4) The parents have the right to invite to the IEP team meeting individuals whom the parents believe to have knowledge or special expertise
about their child.
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at least two of
the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results of
the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
H. RIGHTS FOR PARENTS OF GIFTED STUDENTS
The State statute also includes the category of giftedness. In the State statute and regulations, the term "exceptional
children" includes children who are gifted and children with disabilities. Special education services are not
compulsory for children who are gifted. Therefore, parents of gifted children may choose to accept whatever special
education services are proposed by the IEP team. However, schools are required to provide the services specified in
an IEP once the parent gives consent. Accordingly, parents of, and children with giftedness (who do not also have a
disability) have the same rights as parents of, and children with disabilities, with the following exceptions:
•
There are no special education protections for students who are gifted under the discipline provisions
(K.A.R. 91-40-34(c));
•
Preschool children under the age of 5 are not eligible for gifted services (K.A.R. 91-40-1(ddd));
•
Students who are gifted do not have the same considerations for least restrictive environment (LRE) as
students with disabilities (K.A.R. 91-4-1(ll)), but the IEP Team must make placement decisions based on
their individual needs (K.A.R. 91-40-21(c)(2));
•
Students who are gifted are not eligible for
all of the related services (See Management Information System
Data Dictionary,
www.kansped.org
)
•
The Kansas Alternate Assessment (KAA) and Kansas Assessment of Multiple Measures (KAMM) are not
available to students who are gifted;
•
Extended school year services are not provided to students who are gifted (K.A.R. 91-40-1(y));
•
Students in JJA or DOC facilities do not receive gifted services (K.A.R. 91-40-5); and
•
Requirements for secondary transition (K.A.R. 91-40-1(uuu)); and summary of performance (K.S.A. 72-
986(m)) are
not applicable to gifted students.
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I. EDUCATION ADVOCATES
An education advocate (referred to as "surrogate parents" in Federal law) is appointed to act on behalf of the child
when parents are unknown, unavailable, or parental rights have been severed. The State Special Education for
Exceptional Children Act gives the Kansas State Board of Education (KSBE) the authority to appoint education
advocates to act on behalf of the child, if parents are unknown, unavailable, or parental rights have been severed.
The State statute defines education advocate as “a person appointed by the state board [of education] in accordance
with the provisions of section 13 [K.S.A. 38-1513a], and amendments thereto. A person appointed as an education
advocate for a child shall not be: (1) An employee of the agency which is required by law to provide special education
or related services for the child; (2) an employee of the state board, the department, or any agency which is
directly involved in providing educational services for the child; or (3) any person having a professional or
personal interest which would conflict with the interests of the child” (K.S.A. 72-962(o)).
In Kansas, a foster parent must receive the required training and be appointed by the State Board of Education as an
education advocate to act as a parent in making educational decisions for a child. In other circumstances when a
judge orders someone to serve as the child's legal education decision maker the district must follow the judge's
orders. Documentation from the court should be retained in the student's file.
State Law:
K.S.A. 38-1513a
When the court has granted legal custody of a child in a hearing under the Kansas code for care of children to an agency, association or
individual, the custodian or an agent designated by the custodian shall have authority to make educational decisions for the child if the parents of
the child are unknown or unavailable. When the custodian of the child is the secretary, and the parents of the child are unknown or unavailable,
and the child appears to be an exceptional child who requires special education, the secretary shall immediately notify the state board of
education, or a designee of the state board, and the school district in which the child is residing that the child is in need of an education advocate.
As soon as possible after notification by the secretary of the need by a child for an education advocate, the state board of education, or its
designee, shall appoint an education advocate for the child.
K.S.A. 72-962
(o) ‘‘Education advocate’’ means a person appointed by the state board in accordance with the provisions of section 13, and amendments thereto.
A person appointed as an education advocate for a child shall not be: (1) An employee of the agency which is required by law to provide special
education or related services for the child; (2) an employee of the state board, the department, or any agency which is directly involved in
providing educational services for the child; or (3) any person having a professional or personal interest which would conflict with the interests of
the child.
1.
Assigning Education Advocates
KSDE and the Kansas Department of Social and Rehabilitation Services (SRS) have developed a system for
assigning education advocates when necessary. Details of the education advocate system are given in K.A.R. 91-40-24.
KSDE contracts with Families Together (the State's Parent Information and Training Center) to:
•
provide training for potential education advocates,
•
receive referrals for students who need an education advocate,
•
match an education advocate to the student,
•
notify KSDE to appoint the education advocate, and
•
provide support for education advocates.
The appointment of an education advocate is to be made within 3 business days of receiving a request for an
appointment. The school or agency making the request will be notified by KSDE of the name, address, and the
telephone number of the person appointed to serve as the child’s educational advocate. KSDE sends the formal
letter of appointment to the education advocate, with a copy to the special education director, the building principal at
the student’s school, and the student’s primary SRS, DOC, or JJA caseworker. KSDE and Families Together retain
copies of the appointment letter.
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Education advocates are appointed for students ages 3 to 18 who are in the custody of SRS, the Department of
Corrections (DOC), or the Juvenile Justice Authority (JJA); are receiving special education services or need an
evaluation to determine eligibility for services; and whose parents are unknown or unavailable, whose parent rights
have been severed, or whose parents have a court order of “no contact” against them. Like all other students with
disabilities students in SRS, JJA or DOC custody at age 18 become their own educational decision makers, unless a
judge has determined that they are not capable of doing so and has appointed a guardian.
For a 2-year-old who is transitioning from Infant-Toddler Services, if parents are unknown or unavailable, an
education advocate may be appointed to provide consent to conduct a Part B evaluation, attend an IEP meeting, and be
involved in other special education actions required.
For more information about obtaining an education advocate, contact Families Together, 800-264-6343 or
785-233-4777, or the Kansas State Department of Education, 800-203-9462.
2. School District Responsibilities
Sometimes it is difficult to determine the situation with parents. There is a difference between “unavailable” and
“unwilling.” An uncooperative parent is not unavailable. A parent who can be located by mail, personal visits, or
phone is not unavailable, even though s/he does not respond to the school’s attempts to involve him or her in the
student’s education. If a parent has not responded to a request for consent to conduct a reevaluation, or to
make a substantial or material change in the IEP; under Federal and State regulations, the district may conduct
the reevaluation without parent consent as long as they have documentation of required attempts made and the
parent did not respond. (See Chapter 7, Reevaluation.)
If a parent is in jail, s/he is technically not "unknown or unavailable". The parent’s participation may be obtained by
telephone and consent may be obtained through contact by mail, unless not feasible to do so. If, as a result of a
court order, the parent cannot have any contact with the child, the school should request an education advocate.
The special education director may access the Foster Care Database to determine whether the child is in the custody of SRS
or JJA. Each time a child in SRS or JJA custody experiences a change in out of home placement, data is entered into the
database to assist in tracking the child’s records. When a child receiving special education services is in the Foster Care
Database, the school should enter information into the education section of the database. The school must obtain written
consent from the parent before entering such information because other State agencies, such as SRS, JJA, KSDE and
Kansas Medical Agency (KMA) also have access to this data base (See Appendix A, Figure 1- 8, SRS Memo)
3. Social and Rehabilitation Services Responsibilities
The Kansas Statute at K.S.A. 38-1513a of the SRS Children and Family Services Commission states that when SRS
staff determine that a child in SRS custody appears to be a student with an exceptionality who may require special
education services and the parents are unknown, unavailable, or have their rights terminated, SRS must:
a. Document in the case record that the parents are unknown, unavailable, or their rights have been
terminated; and
b. Contact Families Together (800-264-6343 or 785-233-4777) within three business days to request that an
education advocate be appointed.
“Unavailable” means SRS has documented that at least two pieces of certified mail were sent to the parent’s last
known address, and were sent back unclaimed.
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4. Juvenile Justice Authority and Department of Corrections Responsibilities
If a student is in a juvenile correctional facility or an adult correctional facility, the Juvenile Justice Authority (JJA) or
the Department of Corrections (DOC) is obligated to follow the same procedures for appointment of an education
advocate as SRS, as stated above.
A student age 18 or over, who is incarcerated in an adult correctional institution or facility and was not identified as a
child with a disability and did not have an IEP in their educational placement prior to incarceration, is not entitled to
FAPE (K.A.R. 91-40-5(c)(3)). A student previously identified as gifted only is not entitled to receive special education
services while incarcerated.
State Regulation:
K.A.R. 91-40-24. Educational advocates.
(a)
(1)
Before taking any special education action in regard to any child, an agency shall attempt to identify the parents of the child
and the parents' current whereabouts.
(2)
If the parental rights of the parents of an exceptional child have been severed, the secretary of social and rehabilitation
services or the secretary’s designee shall notify the state board or its designee of this fact and request the appointment of an
educational advocate for the child.
(3)
If the identity of the parent or the parent’s current whereabouts cannot be determined, the agency shall take the following
action:
(A)
Request that proceedings be initiated, pursuant to the Kansas code for the care of children, to determine whether the
child is a child in need of care; and
(B)
notify the state board or its designee, within three business days, of the agency’s determination and request the
appointment of an educational advocate for the child.
(b)
Within three business days of receiving a request for the appointment of an educational advocate, the agency making the request shall
be notified by the state board or its designee of the name, address, and telephone number of the person appointed to serve as the
child’s educational advocate.
(c)
Each person appointed as an educational advocate shall meet the following requirements:
(1)
Be at least 18 years of age;
(2)
have completed a training program offered or approved by the state board concerning the powers, duties, and functions of an
educational advocate;
(3)
not be an employee of the state board or any agency that is involved in the education or care of the child; and
(4)
have no interest that conflicts with the interest of any child whom the person represents.
(d)
(1)
A person who is an employee of a nonpublic agency that provides only noneducational care for the child and who meets the
requirements of subsection (c) of this regulation may be appointed as an educational advocate.
(2)
A person who otherwise qualifies to be an educational advocate shall not be considered an employee of an agency solely
because that person is paid by the agency to serve as an educational advocate.
(e)
Any person appointed as an educational advocate shall perform the following duties:
(1)
Assert the child’s rights in the education and decision-making process, including the identification, evaluation, and placement
of the child;
(2)
comply with applicable confidentiality requirements imposed by state and federal law;
(3)
participate in the development of the child’s individualized education program; and
(4)
exercise all the rights given to parents under the special education for exceptional children act.
K.A.R. 91-40-5(c)(3)
(c) State adult correctional facilities.
(3) Provision of FAPE to any person incarcerated in a state correctional institution or facility shall not be required by the secretary of
corrections if the person meets both of the following criteria:
(A) The incarcerated person is at least 18 years of age.
(B) The incarcerated person, in the person’s last educational placement before incarceration, was not identified as a child with a
disability.
J. STUDENT RIGHTS AT AGE 18
On or before the student’s 17
th
birthday, the IEP of the student must contain a statement that the student has been
informed that at age 18, students have attained the age of majority in Kansas and all parent rights transfer to the
student (K.S.A. 72-987(c)(9)). Thus, at age 18, students become their own educational decision makers. (This
Handbook will refer to the student who is age 18 or over as an adult student.)
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When a student reaches the age of majority, school personnel must provide all required special education notices to
both the student and to the parents and obtain informed consent for specified special education actions from the
student (same requirements as for parents). Parents are not entitled to attend the IEP meeting, however, either the
school or the student may, but are not required to, invite the parents to attend IEP meetings as persons who are
knowledgeable about the student. When a court has judged a student to be unable to fulfill these responsibilities,
schools must provide Prior Written Notice and obtain informed consent from the person whom the court has
appointed as the legal guardian. Schools may provide parents information about other options and resources about
this topic.
Federal regulations and Kansas law (K.S.A. 72-989; 34 C.F.R. 300.520 and 34 C.F.R. 300.625) provide specific
requirements for school personnel regarding this issue.
State Statute:
K.S.A. 72-987(c)(9).
(c) The IEP for each exceptional child shall include:
(9) beginning at least one year before the child reaches the age of majority under state law, a statement that the child has been informed of the
child’s rights, if any, that will transfer to the child on reaching the age of majority as provided in K.S.A. 72-989, and amendments thereto.
72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child with a disability
reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state or local correctional
institution.
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QUESTIONS AND ANSWERS ABOUT PARENT RIGHTS
1. Who can give consent for a student’s educational program?
Regarding parents and/or legal educational decision makers must be given Prior Written Notice and request for
consent whenever a school proposes to initiate or change (or refuses to initiate or change) the identification,
evaluation, placement or educational services of a child with an exceptionality. Parents may then provide or
withhold consent for decisions regarding these matters. Consent from one parent is sufficient, even if the other
parent refuses to consent. If an Education advocate is officially appointed, that is the person who will work with
the school in planning and monitoring the student’s school program, and who may grant or withhold consent just
as parents may. See the chart on page 1-5 within this chapter for further information about determining who
may grant consent for educational decisions.
Unless a judicial order specifies to the contrary, a school shall recognize the biological or adoptive parent of an
exceptional child who is a minor as the educational decision maker for the child, even if other persons meet the
definition of a parent for the child.
2. What if there is disagreement about an action that requires consent?
Parents and other legal educational decision makers should clarify the issues about which there is no
disagreement. Those actions, or portions of the IEP, should be implemented without delay.
For the area of disagreement requiring consent, there are two options: (1) Mediation as an impartial proceeding
whereby a mediator works with the parents and the school representative to reach consensus and develop a
written agreement, and (2) a due process hearing in which a hearing officer makes the decision. In mediation,
both parties must first agree that they want to mediate. There is no cost to the parents or to the school for
mediation. In due process, either the parents or the school may request a hearing. Also see Chapter 10,
Mediation and Chapter 12, Due Process Hearings.
3. What are the school's responsibilities for notice and consent with divorced parents?
If parents are divorced, regardless of which parent has primary custody, the school must provide notice to both
parents, even if only one parent has the right to consent, unless a court order precludes this from happening.
This applies to all special education notice requirements including notice of an IEP meeting. If the school is only
aware of one parent's address, the school must make reasonable efforts to locate the other parent in order to
provide notice.
Consent from one parent is sufficient. In the event that the school receives responses from both parents, with
one providing consent and the other denying consent, the school is deemed to have received consent and must
fulfill its obligation to provide FAPE to the student. The parent who denies consent has the right to request
mediation or file for due process.
4. What are the qualifications of an education advocate?
Requirements for education advocates are established in K.A.R. 91-40-24(c). Education advocates must:
•
be 18 years or older,
•
attend the Families Together training for education advocates so they have knowledge and skills to be sure
the student is adequately represented, and
•
provide three references for appointment as an education advocate.
Education advocates cannot be:
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•
employees of the agency required by law to provide special education services,
•
employees of KSDE or any agency directly involved in providing care or educational services for the
student, or
•
people with a professional or personal interest that would conflict with the student’s best interests.
Professionals not providing care or educational services to the student, retired professionals such as teachers,
school administrators, school psychologists, counselors, and social workers, and local community volunteers may
be education advocates, if they receive the training from Families Together.
5. May an education advocate be assigned to represent a student over the age of 18?
In Kansas, students from age 18 through 21 years have attained the age of majority, and so they become their
own advocates. If the student is a ward of the State and determined to be a Child in Need of Care by SRS, s/he
would have an education advocate appointed at age 18, or before if necessary. If the student has been judged
to be unable to represent himself/herself, a guardian may be appointed by the court.
6. Are education advocates appointed for a student who is gifted?
Yes. In Kansas, services for students who are gifted are provided through the special education system in public
schools. An Education advocate would be appointed in the same way for students ages 5 to 18 who are gifted.
7. May parents revoke consent to a special education service, but not the goals for that
service; or in reverse, consent to goals, but not the service necessary to implement
the goals?
Parents provide consent only for placement and services, including supplemental aids and services, in the IEP.
They do not have the option of consenting to the individual annual goals in the IEP. Parents should consider
which individual services they wish to consent to; the annual goals are the method for measuring the progress
made by the provision of the service. Parents may revoke consent for some services and not others, but need to
realize that when they revoke consent for a service, they have also eliminated the goal(s) that would have
measured progress for that service.
8. What is the difference between "Prior Written Notice" and "10-Day IEP Notice?"
"Prior Written Notice" is provided to the parents before the school proposes or refuses to initiate or change the
identification, evaluation, or educational placement of the child or the provision of special education and related
services (FAPE) to the child. Each Prior Written Notice must contain the information required in 34 C.F.R.
300.503(b). This Notice is to ensure that parents are fully informed about any action that the school is proposing
and is provided with each request for consent for a special education action. If a change in identification,
educational placement, educational services, or the need for more evaluation information is determined to be
needed by the IEP team, then the Prior Written Notice and, if required, request for consent for the specific
action(s) would be given to parents before that action could take place.
"The 10-Day IEP Notice" is given to parents at least 10 calendar days before the IEP meeting to develop, review
and/or revise the IEP. The 10-day IEP notice is to ensure that the parent has an opportunity to participate in the
IEP meeting as well as any meeting with respect to the identification, evaluation, placement and special
education and related services for the child. The notice must indicate the purpose, time, and location of the
meeting and who will be in attendance; and inform the parents that may invite others who have knowledge or
special expertise about the child.
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9. If a student who is identified as gifted, and does not also have a disability, is
incarcerated in a juvenile or adult correctional facility, will they be eligible to receive
special education services?
No. Students who are incarcerated in a juvenile or adult correctional facility are not eligible to receive gifted
services even if they were identified prior to incarceration.
10. What if the biological parent and another individual meet the definition of parent?
Must the school seek consent from the biological parent or can they accept consent
from the other qualified individual?
If there is more than one party qualified to act as a parent, and the biological or adoptive parents attempt to act
as the parent, the biological or adoptive parents must be presumed to be the parents and legal decision makers,
unless they do not have legal authority
to make educational decisions for the child.
11. What obligation does a school have to allow parents or other non-school personnel to
observe or video tape a child in the educational setting?
Neither federal or state laws or regulations give parents the right to observe their children in class. A district
may, however, give a parent permission to observe a child in class if doing so would not disrupt school activities
and would help the district and the parent work together to develop an appropriate IEP. Many districts have
policies that define the conditions under which parents and others may observe children in school and for
videotaping children in the classroom.
12. If a parent calls the school and verbally revokes their consent for special education
and related services and tells the school they want services stopped immediately,
what should the school do?
The parent must revoke consent for special education and related services in writing. The school should inform
the parent that it must continue providing services until they receive written notice that consent is being revoked.
This could be in the form of a letter or a signature on the document where the parent provided informed consent
for the child’s current services.
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CHAPTER 2
SCREENING AND GENERAL EDUCATION INTERVENTION
(CHILD FIND)
INTRODUCTION
Schools must have policies and procedures in effect to ensure that all children with exceptionalities (those who have
disabilities and those who are gifted) and who are in need of special education and related services are identified,
located, and evaluated. This included children who attend public
or private schools, which are home schooled; are
highly mobile including migrant and homeless, or are wards of the State. The child find requirement for schools
applies to children ages birth through 21. Child find in Kansas involves a screening process for children from birth to
age 5, and a general education intervention process for children from kindergarten through age 21. Schools in
conjunction with parents use these processes to locate, evaluate, and identify children who may need special
education and related services. Children in need of special education services should be identified as young as
possible, and also as soon as possible after the concern is noted. This includes children who are suspected of
having a disability even though they are advancing from grade to grade (K.A.R. 91-40-7(a); 34 C.F.R. 300.111(a)(c)).
The earliest possible identification of educational or behavioral concerns will diminish the impact of the concerns on
the child’s education.
As an agency, the Kansas State Department of Education (KSDE) encourages the use of a multi-tiered system of
support for all children, encompassing school-wide support for both academic and behavioral competency. This is
further emphasized in Kansas special education regulations which require the use of general education interventions
(GEI), prior to referring any child in kindergarten through grade 12 for an initial evaluation. GEI requires schools to
have data-based documentation of the general education interventions and strategies implemented for each child.
Some schools conduct GEI through a school-wide approach of providing multi-tiered levels of intervention to support
children to achieve more successfully. In recent years, this kind of a systemic approach has been referred to as
Response to Intervention or RtI. The practices utilized in RtI are based on providing high-quality instruction and
intervention matched to child need; monitoring progress frequently to make decisions about change in instruction or
goals; and applying child response data to important educational decisions (Response to Intervention: Policy
Considerations and implementation. National Association of State Directors of Special Education, 2005). In Kansas,
the set of principles and practices found in the literature with regard to RtI is encompassed within Kansas’ Multi-tiered
System of Support (MTSS).
Other schools accomplish conducting GEI through an individual child problem solving approach, often referred to as
student improvement teams (SIT, SAT, TAT, Care Team, etc.). The individual problem solving approach to GEI is
consistent with past guidance provided by the state.
Either approach (school-wide or individual problem-solving) may be used as schools seek to provide early
intervention for children in need of additional supports to be successful.
This chapter includes information on the following topics:
A. Public Notice for Child Find
B. Screening for Children from Birth to Age 5
C. General Education Intervention for Children from Kindergarten through Age 21
D. Data Collection and Documentation for General Education Intervention
E. Referral for Initial Evaluation
F. Early Intervening Services
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A. PUBLIC NOTICE FOR CHILD FIND
The first step in the child find process is to provide information to the public concerning the availability of special
education services for exceptional children, including procedures for accessing these services. This public notice is
usually provided at the beginning of the school year and must be repeated annually. Copies of the information from
child find activities are kept on file as documentation for implementing policies and procedures K.A.R. 91-40-7(d)).
The public notice may be provided through a variety of methods. Informational materials could be distributed to all
schools in the area, including private schools, other agencies and to professionals who would likely encounter
children with a possible need for special education. Schools may publish yearly notices in local newspapers, provide
pamphlets, furnish information on the Internet, broadcast announcements on radio or television and provide
information at parent-teacher conferences. Suggested methods to accomplish public notice include:
•
Newspaper articles or ads,
•
Radio, TV, or cable announcements,
•
Community newspaper notices
•
School handbook and calendar
•
Letters to all patrons in the district
•
Post in child care programs
•
Post in health departments or doctors offices
•
Post in grocery stores, department stores and
other public places
Additional information about public notice as it relates to confidentiality requirements is included in Chapter 9. An
example of a public notice about child find is included in Appendix A, Figure 2-1.
B. SCREENING FOR CHILDREN FROM BIRTH TO AGE 5
Kansas regulations (K.A.R. 91-40-7(b)) require each school district to implement screening procedures that meet the
following requirements:
•
For children younger than five years of age, observations, instruments, measures, and techniques that
disclose any potential disabilities or developmental delays that indicate a need for evaluation, including
hearing and vision screening
•
Implement procedures ensuring the early identification and assessment of disabilities in children.
Screening must include observations, instruments, measures, and techniques that address potential developmental
delays or disabilities in the areas of communication, cognitive development, social-emotional development, self-
help/adaptive behavior, and/or physical development. This requirement also extends to hearing and vision
screenings, which must be available on an equal basis to all children in public and all private schools within the
district's boundaries (K.S.A. 72-1204 and 72-5204 et seq.).
If the results of the screening indicate a potential
developmental delay or disability, the screening team makes the referral for initial evaluation.
Mass screening of all children is not required, but screening is to be available for any child for whom there is a
concern about an area of development including communication, cognitive development, social-emotional
development, self-help/adaptive behavior, and/or physical development; and hearing and vision. It is recommended
that a child should not have to wait more than 30 calendar days for a screening. Young children's needs must be
identified as soon as possible, so that early intervention may be provided. Screening is considered to be a quick look
at the developmental areas to assist in determining whether a child should be referred for an initial evaluation. There
are screening procedures that require minimal staff and time to complete. Screening should be equally available to
all children in public and private schools within the school district's boundaries. For preschool age children, the
district of residence of each preschool child is responsible for child find (locate, evaluate and identify) even though
the child may be attending a preschool or other child care program outside the district of residence
.
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The Part B child find requirements begin at birth, therefore they overlap with the Part C child find requirements.
Schools should work with their local Part C Infant-Toddler Network for child find activities for children from birth
through 2 years to ensure that all children have access to screening in a timely manner. Each local Infant-Toddler
Network is to have a local interagency coordinating council and this is a way for the local school district and the local
Infant-Toddler Network to develop collaborative efforts for child find in their community.
Children who are transitioning from the Part C Infant and Toddler program are not required to participate in a Part B
screening process at age 3. For children receiving Part C services who may need an initial evaluation to determine
eligibility for Part B special education services, the Part C Infant-Toddler Program may make a referral to the school
district. The referral is to be made at least 90 calendar days prior to the child’s third birthday and according to the
school’s policy for making a referral for an initial evaluation.
Schools must maintain documentation on results of screening and must ensure that the collection and use of data
under the child find requirements are subject to confidentiality requirements under FERPA (K.A.R. 91-40-7(e); K.A.R.
91-40-50).
State Regulations:
K.A.R. 91-40-7. Child find.
(a) Each board shall adopt and implement policies and procedures to identify, locate, and evaluate all children with exceptionalities
residing in its jurisdiction, including children with exceptionalities who meet any of the following criteria:
(1) Attend private schools;
(2) are highly mobile, including migrant and homeless children; or
(3) are suspected of being children with disabilities even though they are advancing from grade to grade.
(b) Each board’s policies and procedures under this regulation shall include age-appropriate screening procedures that meet the
following requirements:
(1) For children younger than five years of age, observations, instruments, measures, and techniques that disclose any potential
disabilities or developmental delays that indicate a need for evaluation, including hearing and vision screening;
(2) for children from ages five through 21, observations, instruments, measures, and techniques that disclose any potential
exceptionality and indicate a need for evaluation, including hearing and vision screening as required by state law; and
(3) implementation of procedures ensuring the early identification and assessment of disabilities in children.
(d) Each board, at least annually, shall provide information to the public concerning the availability of special education services for
exceptional children, including child find activities conducted by the board.
(e) Each agency shall ensure that the collection and use of data under this regulation are subject to the confidentiality requirements of
K.A.R. 91-40-50
and amendments thereto.
C. GENERAL EDUCATION INTERVENTION (GEI) FOR CHILDREN FROM KINDERGARTEN
THROUGH AGE 21
For children in kindergarten through age 21, Kansas screening laws require that schools utilize observations,
instruments, measures, and techniques that disclose any potential exceptionality and indicate a need for evaluation,
including hearing and vision screening, and age-appropriate assessments for school-aged children designed to
identify possible physical, intellectual, social or emotional, language, or perceptual differences. Screening must be
available for children in public schools, private schools, or for children who are homeschooled. For children of school
age attending a private elementary or secondary school, the district in which the private school is located is
responsible for child find for children who are residents and non-residents of the district who may be attending the
private school (K.S.A. 72-966(a)(1); 34 C.F.R. 300.131(a)).
In Kansas, this screening is conducted, in part, through the required implementation of general education intervention
(GEI). The purpose of GEI is to intervene early for any child who is presenting academic or behavioral concerns.
This early intervention leads to a better understanding of the supports children need in order to be successful in the
general education curriculum and school setting. Additionally, the data collected during GEI assists school personnel
in determining which children may be children with potential exceptionalities who need to move into initial evaluation
for special education. Collaboration between special education and general education staff is an important part of
the general education intervention process. Both special education and general education personnel must be
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involved in this building-level, school-wide activity (K.A.R. 91-40-7(c), however, some services provided by special
education staff may not be fully reimbursable.
State Regulation:
K.A.R. 91-40-7(c)
(c) Any board may refer a child who is enrolled in public school for an evaluation if one of the following conditions is met:
(1) School personnel have data-based documentation which indicates that general education interventions and strategies would be
inadequate to address the areas of concern for the child.
(2). School personnel have data-based documentation that indicates that prior to, or as a part of the referral, the following were met;
A.
The child was provided appropriate instruction in regular education settings that was delivered by qualified personnel;
B.
The child’s academic achievement was repeatedly assessed at reasonable intervals which reflected formal assessment of
the child’s progress during instruction;
C.
The assessment results were provided to the child’s parents; and
D.
The assessment results indicate an evaluation is appropriate.
1.
Conducting GEI
The No Child Left Behind Act (NCLB) and IDEA place a strong emphasis on using scientifically research-based
interventions, as appropriate, for children in general education. NCLB defines scientifically research-based as
“research that involves the application of rigorous, systemic, and objective procedures to obtain reliable and valid
knowledge relevant to education activities and programs” (Federal Register, August 14, 2006, p. 46683). These
practices and programs apply to all schools and all children in general education. Kansas’ requirement to implement
GEI supports this emphasis on providing the intensity of instructional support in proportion to the presenting needs of
children through methods of analyzing child data, implementing scientifically research-based interventions, and
monitoring child progress. (See Appendix A, Figure 2-2, General Education Interventions (GEI))
The GEI process should continue until a successful intervention is determined, when it is evident that the successful
intervention requires resources beyond those available in general education, and/or when the team suspects the
child is a child with an exceptionality (disability or giftedness). At any time during GEI, the team responsible for
planning and implementing the interventions has three decisions that may be made:
a) Continue the intervention and monitor child progress
b) Change or modify the intervention and monitor child progress
c) Change or modify the intervention, monitor child progress, and carry the child into initial evaluation.
It should be made clear here that the process of continually designing and re-designing supports for children is one
that does not end until the child is successful. Even when the decision has been made to move from GEI into an
initial evaluation, the intervention process should not stop. Rather, it becomes part of the evaluation process.
Kansas regulations provide additional information which describes when a school may refer a child for an initial
evaluation:
a) School personnel have data-based documentation which indicates that general education interventions and
strategies would be inadequate to address the areas of concern for the child.
b) School personnel have data-based documentation that indicates that prior to, or as a part of the referral, the
following were met:
i.
the child was provided appropriate instruction in regular education settings that was delivered by
qualified personnel;
ii. the child’s academic achievement was repeatedly assessed at reasonable intervals which reflected
formal assessment of the child’s progress during instruction;
iii. the assessment results were provided to the child’s parents; and
iv. the assessment results indicate an evaluation is appropriate. (K.A.R. 91-40-7(c))
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As indicated previously, GEI may be carried out through a school-wide approach of providing a multi-tiered system of
scientifically, research-based
interventions for all children (e.g. MTSS) or through an individual child problem solving
approach. Regardless of the approach used, the focus should be on designing supports for children who need
additional assistance in order to be successful in the general education curriculum and environment.
The following provides a brief comparison of the two approaches (i.e. school-wide multi-tiered system of supports or
individual child problem-solving) that may be used to conduct GEI, and ultimately, yield the data that may be used to
make the decisions as to whether or not a child should be moved on to an initial evaluation.
2.
School-Wide Multi-Tiered System of Supports Approach to GEI
The law allows schools to use a process that assesses a child’s response to scientific, research-based intervention to
determine whether the child is making sufficient progress to meet age or State-approved grade-level standards.
Kansas encourages schools to use a school-wide, multi-tiered model of support for all children including both
academic and behavioral concerns. In Kansas, this is supported through the Multi-tiered System of Support (MTSS)
which includes both School-Wide Academic Supports (SWAS) and School-Wide Positive Behavior Supports
(SWPBS). The following briefly explains the multi-tiered aspect of the school-wide approach.
Tier 1:
All children receive a core instructional program that uses a scientifically validated curriculum that is provided
for all students. Schools choose curricula that have evidence of producing adequate levels of achievement (i.e.,
research-based) and instruction is differentiated within the core to meet a broad range of student needs. Therefore,
interventions are provided via the general curriculum. Universal screening of all children to monitor progress and to
identify children who may need additional support is conducted. Approximately eighty percent of children in the
school will be successful in the general curriculum.
Tier 2:
Those children who do not respond to the core instructional procedures will receive targeted group
interventions in addition to core instruction. More frequent measures of progress monitoring are used to collect child
progress data. Approximately fifteen percent of children in the school will need targeted (supplemental) support.
Tier 3:
A few children receive intensive, individualized interventions. These may be in addition to, or instead of the
supports provided in Tier 1 and Tier 2 depending on the needs of the child. Interventions will be more intensive and
delivered in more substantial blocks of time. Approximately five percent of children in the school will need this kind
of intensive support.
The graphic below depicts a school-wide approach of providing a multi-tiered system of intervention.
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Within a school-wide multi-tiered system such as that depicted above, children will receive GEI as a part of the
system in place for all students. Data collected at each tier should guide school personnel as to the next steps to
take based on the child’s response to interventions tried. At least by the time a child is ready to access the more
intensive supports of Tier 3, the school should employ the use of individualized problem solving to design the
intensive individualized support the child will receive as well as a plan to monitor the child’s progress and document
the child’s response to the scientifically research-based interventions. The approach of individual child problem-
solving is therefore a component of the larger school-wide system, or it may stand alone as a method to conduct GEI
as outlined below.
3.
Individual Problem-solving Approach to GEI
This process is typically carried out through building level problem-solving teams. These teams function with the
intent to provide support to any child who may be experiencing difficulty (academic or behavior) and to work to
improve the overall achievement of all children in the school. Typically, these teams facilitate the problem-solving
process which results in the development of an intervention plan which documents the child’s area of concern, the
interventions implemented, the data reflecting the child’s response to the intervention, and the recommendations as a
result of the child’s response to the intervention.
The problem-solving conducted by these teams may vary, however, there should be at least four basic steps
common to the process used by schools. All steps should include parent involvement – not just informing parents,
but including them in decision-making whenever possible. Additionally, parents are to be provided with copies of the
child data collected as interventions are tried and monitored for children.
The following outlines the four basic steps of problem solving and indicates briefly what happens at each step.
STEP 1. Problem Identification
a. Precisely define the problem
b. Measure the skill or behavior in the natural setting to establish baseline performance.
c. Estimate the severity of the problem (use age norms or compare to peers)
d. Establish expectations for the child
STEP 2. Problem Analysis
a. Analyze antecedent, situational, and consequent conditions
b. Use ICEL components (instruction, curriculum, environment, learner) to analyze the problem
c. Collect additional data as needed to understand the cause of the problem.
STEP 3. Develop and Implement an Intervention Plan
a. Formulate a plan that uses scientific research based interventions designed to target the cause of the
presenting problem.
b. Establish intervention goals
c. Develop a plan for monitoring progress which specifies the child data to be collected and the schedule
for collecting it. Decide how the data will be displayed (e.g. chart/graph) to facilitate evaluation.
d. Implement the plan with treatment integrity and frequent monitoring of progress
STEP 4. Evaluate and Revise Plan
a. Review progress monitoring data to determine if enough progress has been made by repeating Step 1.
b. If expectations have not been met, repeat Step 2 to further analyze the problem.
c. Revise current intervention or select a new intervention including components of Step 3
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D. DATA COLLECTION AND DOCUMENTATION FOR GENERAL EDUCATION INTERVENTIONS
GEI has been a requirement in Kansas since 2000, however, with the most recent reauthorization of IDEA and the
subsequent Kansas regulations, the requirements for GEI have been strengthened. Before a child may be referred
for a special education evaluation, school personnel are now required to have
data-based documentation that:
(1) general education interventions and strategies would be inadequate to address the areas of concern for the
child,
or
(2) the child was provided appropriate instruction in regular education settings that was delivered by qualified
personnel;
and
(3) the child’s academic achievement was repeatedly assessed at reasonable intervals which reflected formal
assessment of the child’s progress during instruction. (K.A.R. 91-40-7(c))
In either case, there must be data-based documentation that provides a basis for determining that a special
education evaluation is warranted.
It should rare that documentation would indicate that GEI and strategies would be inadequate to address the areas of
concern for the child. This would most likely occur in an instance where a child with an obvious disability has for whatever
reason not been identified previously. Another example might be for a child who has recently sustained a Traumatic Brain
Injury. Of course in situations such as these it would be inappropriate to delay further evaluation to determine the child’s
need for special education. In these cases, the data used for documentation that GEI would be inadequate to address
the needs of the child might come from medical records, previous school records, observations, parent and teacher
reports, etc. However, in cases such as this, even though it is appropriate to move directly to evaluation, it is
recommended that GEI and strategies occur as part of the child’s special education evaluation so that the team may
collect data to determine what the best instructional approach for the child might be.
In most cases, school personnel will be documenting data from the GEI and strategies that have been tried. Schools
must have data-based documentation that: (1) appropriate instruction was provided to the child, (2) the child was
provided appropriate instruction was delivered by qualified personnel in regular education settings; (3) the child’s
academic achievement was repeatedly assessed at reasonable intervals which reflected formal assessment of the
child’s progress during instruction; and (4) the instructional strategies used and the student-centered data collected.
The data to document that appropriate instruction was provided to the child may include evidence that the school’s
curriculum has a solid research base and that it contains, for example in reading, the essential components of
reading instruction as defined in the No Child Left Behind Act.
Additionally, data could include the extent to which instruction has been delivered by qualified teachers. Other data
may include evidence that the child has regularly attended school in order to access instruction. The data to
document the educational interventions and strategies that have been implemented may include records such as
intervention plans that indicate the interventions and strategies selected and implemented for a given child. The
requirement to provide data-based documentation of the repeated assessments of child progress during instruction
(i.e. progress monitoring) is perhaps the most important of all. Progress monitoring data is used to evaluate the
effectiveness of the intervention; to determine the intensity of interventions and resources needed to support child
learning; and, provides a basis for school personnel to make decisions during intervention. Documentation of
progress monitoring may include charts/graphs or records of other systematic data collection. This documentation
must also include evidence parents were provided with the results of the assessment of child progress and that those
results indicate that an evaluation is appropriate.
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Additional documentation is required for schools that utilize a school-wide multi-tiered system of support approach to
providing GEI. In addition to the data described above, the school must document that the child’s parents were
notified about:
•
The State’s policies regarding the amount and nature of child performance data that would be collected and
the general education services that would be provided;
•
Strategies for increasing the child’s rate of learning; and
•
The parents’ right to request an evaluation (K.A.R. 91-40-10(f)(2); 34 CFE 300.311(a)(7)(ii)).
(See Appendix A, Figure 2-3, State Policy on MTSS for Parents)
Although this documentation is required only if the child goes on for an initial evaluation and the child is subsequently
placed as having a learning disability, schools should be aware of this so that it may be attended to. It is
recommended to any school that utilizes a school-wide approach that they publish information about their system.
This not only provides a way for the school to discuss its multi-tiered system of support for all children, but also
insures that documentation requirements may be met should some children go on for evaluation and placement as
having a learning disability. Some ways to accomplish this additional requirement might include providing information
to parents through methods such as:
•
School or student handbooks
•
Annual child find notifications
•
Brochures about the school’s RtI system
In addition to the broad dissemination required for all schools using an school-wide multi-tiered system of supports
approach, schools may also choose to establish guidelines in their school system regarding how and when
information will be shared more specifically with parents of children receiving supplemental support (i.e., Tier 2, Tier
3, etc.). It is important that parents be invited to fully participate in the intervention process for their child. This
practice of involving parents from the beginning when additional interventions are necessary provides a way for the
school and the parent to establish a foundation upon which to face future decisions that may arise.
State Regulations:
K.A.R. 91-40-10
(f) if the child has participated in a process that assesses the child's response to scientific, research-based intervention, the evaluation report
shall also address the following matters:
(1) The instructional strategies used and the student-centered data collected; and
(2) the documentation that the child's parents were notified about the following:
(A) The state’s policies regarding the amount and nature of student performance data that would be collected and the general
education services that would be provided;
(B) strategies for increasing the child’s rate of learning; and
(C) the parents’ right to request an evaluation.
E. REFERRAL FOR INITIAL EVALUATION
Screening and GEI are child find activities, and either process may result in the determination that an initial
evaluation for special education is needed. Most decisions to move forward into initial evaluation will come as a
result of these processes. However, there are instances when requests for evaluation may be made by parents or by
adult students. The following describes the procedures to be used when such requests occur:
1.
Referral from Parents: Parents have requested an evaluation. The request may be oral or written. The
school may set a policy as to how a referral is to be made. The school must respond to the request within a
reasonable period of time, which has been interpreted by the KSDE as being no more than 15 school days.
The building principal or person designated to respond to parent requests for evaluations, should explain to
the parents the following:
(a) They have the right to go directly to an evaluation; and
(b) A GEI process that precedes an initial evaluation is available to assist in determining the specific
concerns and needs of their child. This includes the right of the parents to participate in the GEI
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process. Parents may elect to have their child participate in GEI prior to the evaluation, or, if the
parents request the initial evaluation be conducted without waiting for general education interventions to
conclude, the general education intervention process may be conducted as part of the initial evaluation.
(c) The school may refuse to conduct the evaluation. The Prior Written Notice would explain why the
school refuses to conduct the evaluation.
2.
Self-referral from an adult student: A student 18 years of age or older has requested an evaluation. The
school must respond to the request within a reasonable period of time which has been interpreted by the
KSDE as being no more than 15 school days. The building principal, or person designated to respond to
student requests for evaluations, should explain the following to the student:
(a) S/He has the right to go directly to an evaluation; and
(b) A GEI process that precedes an initial evaluation is available to assist in determining the specific
concerns and needs of the student. This includes the right of the student to participate in the GEI
process. The student may elect to participate in GEI and not pursue the evaluation, or, if the student
request the initial evaluation be conducted without waiting for general education interventions to
conclude, the general education intervention process may be conducted as part of the initial evaluation.
(c) The school may refuse to conduct the evaluation. The Prior Written Notice would explain why the
school refuses to conduct the evaluation.
Regardless of how the decision to move forward with an initial evaluation is made, it is crucial that the school have a
process which will insure that all data collected prior to the evaluation (i.e., data collected as part of screening, or
GEI) is provided to the evaluation team. This insures the evaluation team has a basis for understanding what
additional data may be need to be collected as the initial evaluation process goes forward. Chapter 3 details all of
the procedures and requirements that must be met at the time the child moves into the initial evaluation.
F. EARLY INTERVENING SERVICES
The federal office of education states that the use of some Part B funds for early intervening services has the
potential to benefit special education, as well as the education of other children, by reducing academic and
behavioral problems in the regular education environment and reducing the number of referrals to special education
that could have been avoided by relatively simple regular education interventions (Federal Register, August 14, 2006,
pp. 46626-46627). These early intervening services are not the same as “early intervention” services under the Part
C, Infant-Toddler program, or child find activities, and are not available for preschool children ages 3 and 4, or 5 year
olds not in kindergarten.
The district may carry out a variety of activities including:
1. Professional development (which may be provided by entities other than the district) for teachers and other
school staff to enable such personnel to deliver scientifically-based academic and behavioral interventions,
including scientifically-based literacy instruction, and, where appropriate, instruction on the use of adaptive
and instructional software; and
2. Providing educational and behavioral evaluations, services and supports, including scientifically based
literacy instruction.
For additional information on utilizing Part B funds for early intervening services in Kansas Statute 72-965 and
Appendix D to Federal Regulations, August 14, 2006.
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State Statute:
K.S.A. 72-965
(c) (1) Each board may use up to 15% of the amount it receives each year under the federal law to develop and implement
coordinated, early intervening services for students in kindergarten through grade 12, with a particular emphasis on
students in kindergarten through grade 3, who have not been identified as needing special education or related services but
who appear to need additional academic and behavioral support to succeed in a general education environment.
(2) In implementing coordinated, early intervening services under this subsection, a board may carry out activities that include:
(A) Providing professional development for teachers and other school staff to enable such personnel to deliver
scientifically based academic instruction and behavioral interventions, including scientifically based literacy
instruction and, where appropriate, instruction on the use of adaptive and instructional software; and
(B) providing educational and behavioral evaluations, services and supports, including scientifically based literacy
instruction.
(3) Each board that develops and maintains coordinated, early intervening services under this subsection shall annually report to
the department:
(A) The number of students served under this subsection; and
(B) the number of students served under this subsection who subsequently receive special education and related services
under this title during the 2-year period preceding each report.
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QUESTIONS AND ANSWERS ABOUT SCREENING
AND GENERAL EDUCATION INTERVENTION (CHILD FIND)
1. Who is responsible for child find
?
KSDE has policies and procedures in place to ensure that all children with exceptionalities residing in the State,
including children with exceptionalities attending public or private schools, are home schooled; are highly mobile,
including migrant and homeless; or are wards of the State, and who are in need of special education and related
services are identified, located, and evaluated. Local school districts are required to conduct ongoing public
notice, screening, general education interventions, and evaluation to ensure that Kansas children from birth to
age 5 with disabilities, and children from kindergarten through age 21 with exceptionalities are identified
appropriately. For children of school age attending a private elementary or secondary school, the district in
which the private school is located is responsible for child find for children who are residents and non-residents
of the district who may be attending the private school. For preschoolers, the school district where the child
resides is responsible for child find, even if the child attends preschool or child care in another district. This
responsibility to conduct child find efforts for children from birth through age 2 is shared with the Part C Infant-
Toddler program.
2. May special education staff participate in the general education intervention process,
without jeopardizing their special education funding?
Questions often arise about who can work with a student to provide what type of support at what point in the GEI
process and how that fits with funding restrictions. It is the responsibility of both general and special educators
to carry out GEI. Further, because child find is required by special education law and GEI is Kansas’ method of
conducting child find for school age children, it is expected that special educators will, in part, support carrying
out GEI. This may include special educators providing such things as assisting in collecting student data,
participating in the analyses of data to determine next steps, and the provision of interventions, however, there
are parameters with regard to funding to be attended to. Those parameters are outlined in the Special
Education Reimbursement Guide for State Categorical Aid (See
www.kansped.org ).
3. How does an intervention plan developed during general education interventions
differ from other plans?
The general education intervention plan contains information that documents a student’s area(s) of concern, the
scientific, research-based intervention(s) to be tried, the data to be collected to monitor the effectiveness of the
intervention(s), and the impact of the intervention(s). It should include data that demonstrate that the child was
provided appropriate instruction in general education settings, delivered by qualified personnel; and data-based
documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of
student progress during instruction. (See additional details about specific documentation in Section D of this
chapter.) Additionally, it also provides documentation of the student’s progress in the general education
curriculum and documents the extent of the involvement of special education resources in developing,
implementing, and monitoring the intervention(s). This information becomes part of the data used to determine
eligibility for special education if the student is referred for an initial evaluation. The general education
intervention plan is to be provided to the child’s parents but parental consent is not required.
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4. What is the timeline for the general education intervention process?
There is no rule of thumb for a timeline. The area(s) of concern and the nature of the interventions attempted
will be the determining factors. The team will develop a plan that includes a timeline appropriate for each
student. If it appears that the interventions involve intense or sustained resources, or if the team suspects the
child may have an exceptionality, the team must make a referral for an initial evaluation.
5. Are there situations when the general education intervention process for children K-
12 would not be used?
Usually, the general education intervention process occurs prior to a student being referred for an initial
evaluation. However, under some circumstances, it would not be necessary to begin with the general education
intervention process before referring the student for an initial evaluation. This would most likely occur in an
instance where a student with an obvious disability has not been identified previously. Another example might
be for a student who has recently sustained a Traumatic Brain Injury. Of course in situations such as these it
would be inappropriate to delay further evaluation to determine the student’s need for special education. In
these kinds of cases, the data used for documentation that GEI would be inadequate to address the needs of the
student might come from medical records, previous school records, observations, parent and teacher reports,
etc. However, in cases such as this, even though it is appropriate to move directly to evaluation, it is
recommended that GEI and strategies occur as part of the student’s special education evaluation so that the
team may collect data to determine what the best instructional approach for the student might be.
6. What happens to the information gathered about the child after the child find
activities have been conducted?
If either the screening or general education intervention process is used to make a referral for an initial
evaluation, the information may become part of the data used to determine eligibility during the initial evaluation
process. However, screening information may not be the only
information used to determine eligibility. Thus, it
becomes part of the student’s record, regardless of whether the student is eligible or not. Likewise, even if the
screening or general education intervention process did not result in a referral for an initial evaluation, the
information would be retained for documentation in the event that future issues arise. For example, if a student
is later suspended or expelled and the parents assert that the student should have been receiving special
education services because s/he has a disability, this information would be very helpful for the school to have.
What decisions were made in the past, and upon what basis? These records might avert potential lawsuits.
Because the screening information contains personally identifiable information about the child, it is confidential
and must be kept in a secure location, according to FERPA requirements. See Chapter 9 for additional details.
7. At what point does the screening of a school age child through GEI become an
evaluation for special education which signals the protections of procedural
safeguards and due process?
Federal requirements indicate that the screening of a student to determine appropriate instructional strategies for
curriculum implementation shall not be considered to be an evaluation for eligibility for special education and
related services (34 C.F.R. 300.302). Further explanation in comments to the federal regulations indicates that
screening refers to a process that a teacher or specialist uses to determine appropriate instructional strategies.
The comments go on to describe screening as typically being a relatively simple and quick process that is used
to determine strategies to more effectively teach children. This would include examples of such things as
universal screening and progress monitoring tools (e.g. DIBELS, etc.) that yield information teachers may use to
more appropriately select interventions tailored to a student’s area of academic need, observations of children in
various environments from which analyses of behavior patterns may occur in order to direct staff to appropriate
intervention selection, and diagnostic tools which assist school personnel in a deeper understanding of the
student’s presenting concern so that more effective interventions may be selected. It should be made very clear
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here that the latitude given by this regulation is NOT to be interpreted as a way to circumvent other regulations
pertaining to evaluation. The difference between screening and evaluation is the intent
of the activities. If the
intent of the activities is to determine instructional strategies, that constitutes screening. It is clear in the
regulation and subsequent comments that the ONLY activities that may be considered screening are those
activities which result directly in information to be used solely for the purpose of designing instructional
strategies. At any point that the intent changes to seek to determine if the student is a child with an
exceptionality or if the student is in need of special education, that is
evaluation and all due process protections
come into play. At that point, parents must be contacted to seek consent for initial evaluation.
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CHAPTER 3
INITIAL EVALUATION AND ELIGIBILITY
INTRODUCTION
As discussed in Chapter 2, the Kansas child find process is intended to identify children who may be in need of
special education services. Child find includes early childhood screening for young children from birth to age 5, and
general education interventions (GEI) for children enrolled in kindergarten through 12
th
grade. Information obtained
from screening and general education interventions will assist teams in making decisions about referrals for initial
evaluation. An appraisal of the extent of the presenting concern, the effectiveness of interventions tried, and the
degree to which the interventions require substantial resources are important to consider when deciding whether a
child should be referred for possible special education services, and are essential in planning and conducting the
initial evaluation after a referral has been made. When teams conducting general education interventions begin to
question whether the child might be a child with an exceptionality, or when the team begins to question whether the
child might need special education and related services, then a referral for an initial evaluation needs to be
considered.
An initial evaluation involves the use of a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information to assist in determining if the child is eligible for special education. A two-
pronged test for eligibility: (1) whether the child is a child with an exceptionality (disability or giftedness); and (2) by
reason thereof, has a need for special education and related services, has driven eligibility decisions for many years.
However, it is clear more than ever in the law that evaluations must also determine the present levels of academic
achievement and functional performance (related developmental needs) of the child (K.S.A. 72-986(b)(1); K.A.R. 91-
40-8(a)(c)(2); 34 C.F.R. 300.305(a)(2)(i)(ii)(iii)). This shifts the focus of the initial evaluation from access to services
to what the child needs to enable him or her to learn effectively and to participate and progress in the general
education curriculum.
This chapter includes information on the required elements of the process to conduct an initial evaluation and
determine eligibility, and also suggests ways to synthesize the team process at the building level. The initial
evaluation process begins when a referral for initial evaluation is made and applies to all children beginning at age 3.
The following topics related to initial evaluation are discussed within this chapter:
A. Referral for Initial Evaluation
B. Prior Written Notice and Request for Consent
C. The Evaluation Team
D. Timeline for Conducting the Initial Evaluation
E. Conducting the Evaluation
F. Eligibility Determination and Documentation
G. Prior Written Notice for Identification
H. Independent Educational Evaluation
Figure 3-1
INITIAL EVALUATION
REFERRAL Received from Screening,
General Education Intervention Process
or Parent Request
PRIOR WRITTEN NOTICE provided
and CONSENT Obtained
IEP DEVELOPED AND IMPLEMENTED
If the Child is Found Eligible
CHILD NOT ELIGIBLE
Other intervention plan developed
ELIGIBILITY REPORT
Provided to Parents
PARENT RIGHTS
Provided at time of referral
EVALUATION / REEVALUATION
Conducted
ELIGIBILITY
Determined by Team
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A. REFERRAL FOR INITIAL EVALUATION
Referrals for initial evaluation may come from a variety of sources. These include:
Early Childhood Screening
Part C Infant-Toddler Program
General Education Intervention Team (individual problem-solving team)
Parents
Self-referral by adult student
A referral for an initial evaluation is made whenever it is suspected that a child may be a child with an exceptionality.
For a preschool child the referral may be a result of screening described in 91-40-7(b), or from a Part C Infant-
Toddler program. A school age child would participate in general education interventions (GEI) prior to the referral.
As a result of GEI, the school would have data-based documentation of repeated assessments of achievement at
reasonable intervals, that indicate the instruction and educational interventions and strategies presented to the child
in the general education setting were not adequate and indicated an evaluation for special education is appropriate
(K.A.R. 91-40-7(b)(c); 34 C.F.R. 300.309(c)(1)). A parent or adult student may request an evaluation at any time.
Upon referral for an initial evaluation, regardless of the source, the first action the school must take is to provide the
parents, or the adult student, a copy of the Parent Rights Notice (procedural safeguards) available to them (K.S.A.
72-988(e); 34 C.F.R. 300.503). (See Appendix A, Figure 1-2, Parent Rights Notice, or
www.kansped.org .)
State Statute:
K.S.A. 72-988(e)
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a
copy also shall be given to the parents: (A) Upon initial referral or parental request for evaluation; (B) upon request of a parent; and (C)
upon the initial filing of a complaint under subsection (b)(4).
State Regulations:
K.A.R. 91-40-7
(b) Each board’s policies and procedures under this regulation shall include age-appropriate screening procedures that meet the following
requirements:
(1) For children younger than five years of age, observations, instruments, measures, and techniques that disclose any potential
disabilities or developmental delays that indicate a need for evaluation, including hearing and vision screening;
(2) for children from ages five through 21, observations, instruments, measures, and techniques that disclose any potential
exceptionality and indicate a need for evaluation, including hearing and vision screening as required by state law; and
(3) implementation of procedures ensuring the early identification and assessment of disabilities in children.
(c) Any board may refer a child who is enrolled in public school for an evaluation if one of the following conditions is met:
(A) (1) School personnel have data-based documentation indicating that general education interventions and strategies
would be inadequate to address the areas of concern for the child.
(2) School personnel have data-based documentation indicating that before the referral or as a part of the referral, all of the following
conditions were met:
(A) The child was provided with appropriate instruction in regular education settings that was delivered by qualified personnel.
(B) The child's academic achievement was repeatedly assessed at reasonable intervals that reflected formal assessment of the student's
progress during instruction.
(C) The assessment results were provided to the child's parent.
B PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
Whenever a child has been referred for an evaluation, the school must provide Prior Written Notice to the parents
that describe any evaluation procedures the school proposes to conduct (K.S.A. 72-988(b)(2); 34 C.F.R. 300.304(a)).
In addition, there are standard components of content the notice must also contain. The purpose of providing notice
to the parents is so they understand what action the public agency is proposing (in this case, to conduct an initial
evaluation) and the basis used for determining the action is necessary. The Prior Written Notice must include:
1) A description of the action proposed by the agency,
2) An explanation of why the agency proposes the action,
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3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for
the proposed action,
4) A statement that the parents have protection under the procedural safeguards and how a copy of the
procedural safeguards can be obtained,
5) Sources for parents to contact to obtain assistance in understanding their procedural safeguards, and
6) A description of other options considered and the reasons why those options were rejected; and,
7) A description of other factors that is relevant to the agency’s proposal. (K.S.A. 72-990; 34 C.F.R.
300.503(b))
Additionally, if the notice is to propose to conduct an initial evaluation, the notice must describe any evaluation
procedures that the school proposes to conduct (K.S.A. 72-986(b); K.A.R. 91-40-27(b); 34 C.F.R. 300.304(a)(1)).
(See Appendix A, Figure 1-5a, Prior Written Notice for Evaluation or Reevaluation form or
www.kansped.org
.)
The notice must be written in language understandable to the general public and provided in the native language of
the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication of the parent is not a written language, the LEA must take steps to ensure
that the notice is translated orally or by other means to the parent in his or her native language or other mode of
communication, that the parent understands the content of the notice. The school must have written evidence that
this has been done (K.A.R. 91-40-26(b)(c); 34 C.F.R. 300.503(c)).
1.
Preparing the Prior Written Notice
After the school receives the referral for an initial evaluation the school staff may engage in preparatory activities to
determine the content of the proposal to conduct an initial evaluation. The school staff will consider information
provided in the referral or in the parent request for an evaluation and in the child’s file including information collected
during general education interventions. Based on this information the school staff will determine whether they will
propose to conduct an evaluation and what procedures the evaluation will include (such as existing or new
assessment tools and strategies). The staff will then prepare the Prior Written Notice of proposed action to provide to
the parent. In some cases, the school staff may determine that there is not enough evidence to support conducting
an initial evaluation and would, therefore, refuse to conduct the initial evaluation.
When preparing the prior written notice, the team must plan which assessments and other evaluation measures may
be needed to produce the data needed to meet the requirements of eligibility determination (K.A.R. 91-40-8(e)(1); 34
C.F.R. 300.305(c)). Every evaluation should be approached and designed individually based on the specific concerns
of the child to be evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to
collect the data needed, while eliminating time spent collecting information that is either unnecessary or overly time-
consuming for no clear purpose. It would be inappropriate to use the same battery of assessments for all children or
to rely on any single tool to conduct an evaluation.
To insure that enough data will be collected as part of the evaluation, teams are reminded of the importance of using
a variety of assessment tools and strategies to collect relevant functional, developmental, and academic information
about the child. There are also requirements that each child be observed in the child’s learning environment which
will also need to be included on the Prior Written Notice. We must insure that each evaluation is sufficiently
comprehensive to identify all of the child’s special education and related services needs. All appropriate domains
should be considered via review of screening and/or GEI data. If potential educationally related deficits are
suggested by screening, then the evaluation team must provide in-depth assessment in the domain. If screening
suggests adequate functioning, then in-depth assessment may be wasteful and irrelevant. In addition to these
considerations, teams are reminded that they must provide information to rule out any exclusionary criteria when
making eligibility decisions, and therefore should plan to collect any needed information related to issues considered
in the exclusionary criteria.
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The first activity the evaluation team should conduct is a review of existing data. The evaluation team needs to
consider all data that is currently available including evaluations and information provided by the parents, current
classroom-based, local, or State assessments, and classroom-based observations, and observations by teachers
and related service providers; and the child’s response to scientifically, research-based interventions, if implemented.
The review of existing data, as part of the evaluation, may be conducted without a meeting and without consent from
the parents (K.A.R. 91-40-8(c)(d); K.A.R. 91-40-27(e); 34 C.F.R. 300.305(b); 34 C.F.R. 300.300(d)(1)).
The purpose of reviewing existing data is to identify what additional data, if any, are needed to determine:
a.
if the child is a child with an exceptionality;
b. whether the child needs special education and related services;
c. the educational needs of the child;
d. the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
e. whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.A.R. 91-40-8(c); K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
At the time of the review of existing data the team should also consider whether any additional data will need to be
collected to insure that when the evaluation team meets to determine eligibility, they will have a clear understanding
of any potential exclusionary factors. We must not determine a child to be a child with an exceptionality if the
determinant factor is lack of instruction in reading, including the essential components of reading instruction; lack of
appropriate instruction in math; or limited English proficiency (K.A.R. 91-40-10(c); 34 C.F.R. 300.306(b)), therefore it
is important to plan for each evaluation to yield information to allow these determinations to occur.
In addition to the exclusionary factors discussed above, there are additional requirements to consider when
evaluating a child suspected of having a specific learning disability. To ensure that underachievement in a child
suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the
group must consider, as part of the evaluation:
(1) Data that demonstrate that prior to, or as a part of, the referral process, the child was provided appropriate
instruction in regular education settings, delivered by qualified personnel; and
(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting
formal assessment of child progress during instruction, which was provided to the child’s parents. (K.A.R.
91-40-7(c)(3); 34 C.F.R. 300.309(b))
Appropriate instruction in reading includes the essential components of reading instruction as defined in section
1208(3) of NCLB as phonemic awareness, phonics, vocabulary development, reading fluency including oral reading
skills, and reading comprehension strategies. Often this information will have been collected before a child is
referred for an initial evaluation; however, it is important that the team learns whether or not the data exists and plan
to collect it as part of the evaluation if it has not been collected prior to the evaluation.
After the team has reviewed the existing data, there must be a determination of what data, if any, will be collected
during the evaluation. The Prior Written Notice will be completed to reflect the data that will be collected as part of
the evaluation. (See Appendix A, Figure 1-5a or 1-5b, Prior Written Notice and Request for Consent for Evaluation)
a.
Requirements if No Additional Data are Needed
If the team has determined that no additional data are needed to determine whether the child is a child with an
exceptionality, and to determine the child’s educational needs, the school must notify the parents
(1) of that determination and the reasons for it; and
(2) the right of the parents to request an assessment to determine whether the child is a child with an
exceptionality, and to determine the educational needs of the child (K.A.R. 91-40-8(e)).
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The school district is not required to conduct the assessment described in (2) above unless requested to do so by the
child’s parents. In addition, if the parents request an assessment of their child, the school district may refuse to do
so, but it must provide the parents with Prior Written Notice of the refusal to conduct the assessment and the reasons
for the refusal. The parents may request mediation or due process if they want the assessment conducted. (See
Appendix A, Figure1-5a, 1-5b, Prior Written Notice and Consent for Initial Evaluation, and 3-3, No Additional Data
Needed form)
b.
Requirements if Additional Data are Needed
If the team has determined that additional data are needed, the team should plan who will collect it and plan to insure
all data will be collected within the evaluation timeline. The procedures to be used to collect the data should be
described on the Prior Written Notice for the initial evaluation and provided to the parents for their consent.
State Statute:
K.S.A. 72-986
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other
qualified professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’
observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the present levels of academic and related
needs of the child; (C) whether the child needs special education and related services; or in the case of a reevaluation of a child, whether
the child continues to need special education and related services; and (D) whether any additions or modifications to the
special education and
related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child
and to participate, as
appropriate, in the general education curriculum.
Kansas Regulations:
K.A.R. 91-40-8(c)(d)(e)
(c) As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1) The evaluation team shall review existing evaluation data on the child, including the following information:
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(A) Evaluations and information provided by the parent of the child;
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child’s parent, the evaluation team shall identify what additional data, if any, is
needed to determine the following matters:
(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child continues to
have such an exceptionality;
(B) what the present levels of academic achievement and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to
need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related services currently
being provided to the child are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to
participate, as appropriate, in the general education curriculum.
(d) The team described in subsection (c) may conduct its review without a meeting.
(e) (1) If the team described in subsection (c) determines that additional data is required to make any of the determinations specified in paragraph
(2) of subsection (c), the agency, after giving proper written notice to the parent and obtaining parental consent, shall administer those tests
and evaluations that are appropriate to produce the needed data.
K.A.R. 91-40-10(c)
(c) An evaluation team shall not determine a child to be an exceptional child if the determinant factor for that eligibility determination is the
child’s lack of appropriate instruction in reading or mathematics or limited English proficiency, and if the child does not otherwise qualify as a
child with an exceptionality.
K.A.R. 91-40-27(e)
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
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2. Request for Consent
The school must obtain informed consent from the parent of the child before conducting the evaluation (K.A.R. 91-40-
27(a)(1); 34 C.F.R. 300.300(a)). In determining that informed consent is obtained, the following must be insured
(K.A.R. 91-40-1(l); 34 C.F.R. 300.9):
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked).
Parental consent for initial evaluation must not be construed as consent for initial provision of special education and
related services.
3.
Failure to Respond or to Provide Consent
The school must make reasonable attempts to obtain consent from the parents to conduct the initial evaluation.
Reasonable attempts are defined as at least 2 contacts by 2 different methods (phone calls, letters, visits, email, etc.)
and documentation of such attempts should be kept including detailed records of telephone calls made or attempted
and the results, copies of written correspondence sent to the parents and their response if any, and visits made to the
parents home or place of employment, and the results, if any, from the parents (K.A.R. 91-40-27(g); K.A.R. 91-40-
17(e)(2); 34 C.F.R. 300.322(d)(1)).
If the parent does not provide (refuses) consent or fails to respond to a request to provide consent for an initial
evaluation, the school may, but is not required to, pursue the initial evaluation by utilizing mediation or by requesting
a due process hearing. The school does not violate its obligation for (provisions of FAPE) Child Find or for
conducting an initial evaluation if it declines to pursue the evaluation (K.A.R. 91-40-27(f)(1)(3); 34 C.F.R.
300.300(a)(3)). Additionally, under the disciplinary protections, the school would not be deemed to have knowledge
of the child’s disability if the parent has not allowed an evaluation or refused services; or the child has been evaluated
and determined not to have a disability (K.S.A. 72-994(c)).
The district is required to locate, identify, and evaluate children who are home schooled, but not required to provide
services unless the child is enrolled in the public school. If the parent of a child who is home schooled or voluntarily
placed in a private school by the parents does not provide consent for the initial evaluation, or the parent fails to
respond to a request to provide consent, the school can NOT use mediation or due process procedures to obtain
consent. In this case the school is not required to consider the child as eligible for services and does not violate the
FAPE requirement (K.A.R. 91-40-27(f)(2); 34 C.F.R. 300.300(d)(4)).
Kansas Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct. In
conducting the evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information, including
information provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the
child’s individualized education program, including information related to enabling the child to be involved, and progress, in the
general education curriculum or, for preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining
an appropriate educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical
or developmental factors; and
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(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a
severe discrepancy between achievement and intellectual ability, and may use a process that determines if the child responds to
scientific, research-based intervention as part of the child’s evaluation.
K.S.A. 72-988
(b) The parents of exceptional children shall have the right to:
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free
appropriate public education to the child;
(e) A list of the rights available to the parents of exceptional children shall be given to the parents only one time each school year, except a
copy also shall be given to the parents:
(A) Upon initial referral or parental request for evaluation;
(B) upon request of a parent; and
(C) upon the initial filing of a complaint under subsection (b)(4).
K.S.A. 72-990. Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto, shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for
evaluation, the means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding
the provisions of the federal law and this act.
K.S.A. 72-994
. School district knowledge that child is child with disability prior to determination, when deemed; subjection of child to
disciplinary action, when; evaluation and placement of child.
(a) A child who has not been determined to be eligible for special education and related services under this act and who has engaged in
behavior that violated any rule or code of conduct of the school district may assert any of the protections provided for in this act if the
school district had knowledge, as determined in accordance with this section, that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
Kansas Regulations:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native
language or other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes
that activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given and
before the consent was revoked.
K.A.R. 91-40-17(e)
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been
unable
to contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the
agency made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the
results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses receive
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
K.A.R. 91-40-26. Notice requirements.
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding action proposed or refused by an agency, the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be
is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
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(c) If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all of
the following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
K.A.R. 91-40-27. Parental consent.
(a) Except as otherwise provided in this regulation, an agency shall obtain written parental consent before taking any of the following
actions:
(1) Conducting an initial evaluation or any reevaluation of an exceptional child;
(2) initially providing special education and related services to an exceptional child; or
(3) making a material change in services to, or a substantial change in the placement of, an exceptional child, unless the change is made
under the provisions of K.A.R. 91-40-33 through 91-40-38, or is based upon the child's graduation from high school or exceeding the age of
eligibility for special education services.
(d) An agency shall not construe parental consent for initial evaluation as parental consent for the initial provision of special education and
related services to an exceptional child.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child, an
agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not
provide consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue the
evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue
an evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if
the agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered
by the agency.
C. THE EVALUATION TEAM
Once the consent has been obtained from the parent, a team is formed who will have the responsibility of carrying
out the evaluation process. The membership of the evaluation team are the same as those who would serve on the
child's IEP Team (should the child be found eligible), including the parents. If the child is suspected of having a
specific learning disability the team may include other qualified professionals, as appropriate.
Team members on each evaluation team may differ; however, there are specific members and skills that must be
represented on the team. The make up of this team would include:
•
The parents of the child;
•
Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular
education environment); If the child does not have a regular teacher, a regular classroom teacher qualified
to teach a child of his or her age; or if the child is less than school age, an individual qualified to teach a
child of his or her age;
•
Not less than one special education teacher of the child, or where appropriate, not less than one special
education service provider of the child;
•
A representative of the local education agency who:
o
Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique
needs of children with exceptionalities,
o
Is knowledgeable about the general education curriculum, and
o
Is knowledgeable about the availability of resources of the public agency;
•
An individual who can interpret the instructional implications of evaluation results;
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Kansas Special Education Process Handbook
•
At least one person qualified to conduct individual diagnostic examinations of children; and
•
At the discretion of the parent or agency, other individuals who have knowledge or special expertise
regarding the child, including related services personnel as appropriate. (K.S.A. 72-962(u); K.A.R. 91-40-
11(a); 34 C.F.R. 300.321; 34 C.F.R. 300.308)
State Statute
K.S.A. 72-962
(u) ‘‘Individualized education program team’’ or ‘‘IEP team’’ means a group of individuals composed of:
(1) The parents of a child;
(2) at least one regular education teacher of the child, if the child is, or may be, participating in the regular education
environment;
(3) at least one special education teacher or, where appropriate, at least one special education provider of the child; (4) a
representative of the agency directly involved in providing educational services for the child who:
(A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of
exceptional children;
(B) is knowledgeable about the general curriculum; and
(C) is knowledgeable about the availability of resources of the agency;
(5) an individual who can interpret the instructional implications of evaluation results;
(6) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child,
including related services personnel as appropriate; and
(7) whenever appropriate, the child.
91-40-11. Evaluation for specific learning disability; use of response to intervention process.
(a) If a child is suspected of having a specific learning disability and believed to need special education services because of that
disability, the agency shall ensure that the evaluation of the child is made by the child's parent and a group of qualified professionals,
including the following individuals:
(1)(A) The child's regular education teacher or, if the child does not have a regular education teacher, a regular classroom teacher
qualified to teach a child of the child's age; or
(B) for a child of less than school age, an individual who is qualified to teach a child of the child's age; and
(2) at least one person qualified to conduct individual diagnostic examinations of children, including a school psychologist,
speech-language pathologist, or remedial reading teacher.
D. TIMELINE FOR CONDUCTING THE INITIAL EVALUATION
Kansas has established a 60 school-day timeline consistent with federal regulations (K.A.R. 91-40-8(f); 34 C.F.R.
300.301(c)). The timeline for conducting the initial evaluation starts upon receipt of written parental consent to
conduct the evaluation, and ends with the implementation of an IEP if the child is found eligible for special education
services or completion of the evaluation report if the child is not found eligible for special education services.
For children who transfer from one public agency to another in the same school year, assessments are coordinated
with the child’s prior school, as necessary and as expeditiously as possible, to ensure prompt completion of an
evaluation begun by the prior school (K.S.A. 72-986(c)(4)).
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Figure 3-2
TIMELINE
The initial evaluation is to be completed within the 60-school-day timeline required in K.A.R. 91-40-8(f). There is no
specified timeline for the initial evaluation itself, but several requirements must all be completed within 60 school days
unless an agency can justify the need for a longer period of time or has obtained written parent consent for an
extension of time. (K.A.R. 91-40-16 addresses IEP requirements, and K.A.R. 91-40-17 specifies the IEP Team
participants.)
Preceding the initiation of this timeline, the school provides the parents with their Parent Rights Notice upon referral,
Prior Written Notice for initial evaluation, and Request for Consent.
1. The 60-school-day timeline begins when the agency receives written parent consent to conduct the initial
evaluation (K.A.R. 91-40-8(f)).
2. The initial evaluation is started within a reasonable time.
3. The initial evaluation is completed, and, on the basis of the evaluation data, the team determines eligibility for
special education and related services.
4. The evaluation/eligibility team provides the parents with the Evaluation/Eligibility Report within a reasonable
period of time (K.S.A. 72-986(e)(2); 34 C.F.R. 300.306(a)(2); and FERPA 34 C.F.R. 99.10(b)).
5. The school provides the parents with Prior Written Notice for proposed identification (can be combined with
notice for initial services).
6. The school provides the parents with the Notice of the IEP meeting at least 10 calendar days before the meeting
(K.A.R. 91-40-17(a)(2)). (NOTE: If the team believes that eligibility and IEP development may be discussed at
the same meeting, the IEP Meeting Notice must describe all proposed special education decisions to be
addressed at the meeting.)
7. The IEP Team meets and develops an IEP within 30 calendar days of determination of eligibility (34 C.F.R.
300.323(c)(1) and K.A.R. 91-40-8(h)).
8. The school provides the parents with Prior Written Notice and request for consent for the initial provision of
special education and related services to the child.
9. Services on the IEP are implemented not later than 10 school days after written parent consent for provision of
special education services is granted, unless reasonable justification for a delay can be shown (K.A.R. 91-40-
16(b)(2)).
10. The 60-school-day timeline ends when the IEP is implemented.
Exceptions to the Timeline
There are only three specific instances when an extension of the 60 school-day timeline may be justified:
a. The parent of the child repeatedly fails or refuses to produce the child for the evaluation; or,
b. If a child enrolls in a new district after the evaluation has begun and before the determination of eligibility,
however, the new district is required to make sufficient progress to ensure a prompt completion of the
evaluation, and the parent and the school district must agree to a specific timeline for completion.
c. If the parent and the school agree in writing to extend the timeline. (K.A.R. 91-40-8(f); 34 C.F.R. 300.301(d))
State Statute:
K.S.A. 72-986(c)(4)
(c) An agency shall ensure that:
(4) the assessments of any child who transfers from another agency during the school year are coordinated with the child’s prior
school, as necessary and as expeditiously as possible, to ensure prompt completion of an evaluation begun by the prior school.
State Regulations:
K.A.R. 91-40-8(f)(g)
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g), the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for
evaluation of a child:
(1) Conduct the evaluation of the child;
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(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parent as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) An agency shall not be subject to the time frame prescribed in subsection (f) if either of the following conditions is met:
(1) The parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation.
(2) The child enrolls in a different school before the evaluation is completed, and the parent and new school agree to a specific date
by which the evaluation will be completed.
(h)
In complying with subsection (f), each agency shall ensure that an IEP is developed for each exceptional child within 30 days
from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-16(b)
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10
school days after parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and
other service provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
E. CONDUCTING THE EVALUATION
The initial evaluation must include a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information, including information provided by the parent, that may assist in
determining whether the child is an exceptional child, the educational needs of the child, and the content of the child’s
IEP, including information related to enabling the child to be involved, and progress in the general education
curriculum or, for preschool children, to participate in appropriate activities (K.S.A. 72-986(b)(1)). In addition, the
procedures must also lead to the determination of the present levels of academic achievement and functional
performance of the child. The public agency must administer such assessments and other evaluation measures as
may be needed to produce the data to determine:
•
if the child is a child with an exceptionality;
•
whether the child needs special education and related services;
•
the educational needs of the child;
•
the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
•
whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2);K.A.R. 91-40-8(c); 34 C.F.R. 300.305(a)(2))
As stated previously, the data collected is critical not only for the purpose of determining whether a child is eligible for
special education, but also to assist in the development of present levels of academic achievement and functional
performance. Regulations clearly state that the evaluation must result in determining the content of the child’s IEP (if
found eligible) including information related to enabling the child to be involved in and progress in the general
curriculum (or for a preschool child, to participate in appropriate activities) (K.S.A. 72-986(b)(1); 34 C.F.R.
300.304(b)(ii)). However, the evaluation should assist in the development of an instructional plan for the child if the
child is not found to be eligible.
If the team has proposed to conduct the evaluation based only on existing data, the existing data must meet the
requirements of this section for an evaluation.
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1. Evaluation Procedures
During the evaluation process, the child is assessed in all areas related to the suspected exceptionality , including, if
appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities (K.A.R. 91-40-9(b)(1), K.A.R. 91-40-11(b)(c); 34 C.F.R. 300.304(c)(4)). All
assessment tools and strategies must provide relevant information that directly assists in determining the educational
needs of the child (K.A.R. 91-40-9(a)(9); 34 C.F.R. 300.304(c)(7)).
When conducting an evaluation, no single measure or assessment shall be used as the sole criterion for determining
whether the child is a child with an exceptionality and for determining an appropriate educational program for the
child. When selecting assessment tools to assist in gathering the evaluation data across the five sources of data,
those conducting the evaluation must also ensure the following requirements are met (K.A.R. 91-40-9; 34 C.F.R.
300.304(b)(c)):
•
Use a variety of assessment tools and strategies.
•
Use technically sound instruments that may assess the relative contribution of cognitive and behavioral
factors, in addition to physical or developmental factors.
•
Materials and procedures used to assess a child with limited English proficiency shall be selected and
administered to ensure that they measure the extent to which the child has an exceptionality and needs
special education, rather than measuring the child’s English language skills.
•
Assessments and other evaluation materials are:
o
selected and administered so as not to be discriminatory on a racial or cultural basis;
o
provided and administered in the child’s native language or other mode of communication, and in the
form most likely to yield accurate information on what the child knows and can do academically,
developmentally, and functionally, unless it is clearly not feasible to do so;
o
used for the purposes for which the assessments or measures are valid and reliable;
o
administered by trained and knowledgeable personnel;
o
administered in accordance with instructions provided by the producer of the assessments (Note: if an
assessment is not conducted under standard conditions, a description of the extent to which it varied
from standard conditions (e.g., the qualifications of the person administering the test, or the method of
test administration) must be included in the evaluation report.)
o
tailored to assess specific areas of educational need and not merely those designed to provide a single
general intelligence quotient;
o
selected and administered so as best to ensure that if an assessment is administered to a child with
impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s
aptitude or achievement level or whatever other factors the test purports to measure, rather than
reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors
that the test purports to measure).
The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services
needs, whether or not commonly linked to the exceptionality category being considered for the child. If the child is
found eligible, this information translates into the present levels of academic achievement and functional performance
(PLAAFPs) and forms the basis for making all the decisions in the IEP. If the child is not found eligible, this
information assists the school in determining other appropriate supports for the child. Ultimately, at the close of an
evaluation, the team should have enough information to support the child whether or not the child is found eligible for
special education. The team should be able to describe where the child is currently performing within the general
education curriculum and standards as well as able to describe how (or if) the child’s unique learning characteristics
are impacting his/her ability to access and make progress in the general education curriculum (or for early childhood,
to participate in appropriate activities). Other issues that are impacting the child’s ability to function in the learning
environment should also be described so that the extent of the child’s needs may be realized.
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There are two methods of evaluation, (i)“the child’s response to scientific, research-based intervention” and (ii)“a
pattern of strengths and weaknesses”, which are outlined in federal regulations with regard to the identification of
students with specific learning disabilities. However, in Kansas, both are also appropriate to be used to determine
eligibility for any of the areas of exceptionality. Below is a brief description of each method of evaluation. (K.S.A. 72-
986(b)(4)
The process based on the child’s response to scientific, research-based intervention ((i) above) is referred to as
Response to Intervention (RtI), and is based on a school-wide multi-tier system of interventions for all students. In
Kansas, the child’s response to scientific, research-based intervention is referred to as a Multi-Tiered System of
Support (MTSS). The evaluation data collected during this process will include results of school-wide screening and
benchmark assessments, information collected during individual child problem-solving, and most importantly, the
results of the child’s response to various types of interventions. Most often, the child’s response to intervention data
will take the form of charts and graphs which reflect individual child growth under various intervention conditions.
Teams analyze and interpret this information to determine whether or not the child is a child with an exceptionality
and to determine and describe the educational needs of the child.
The process based on a child’s pattern of strengths and weaknesses ((ii) above) tends to rely more heavily on the
results of norm-referenced tests and other assessments. Both ability and achievement measures are analyzed to
identify patterns within academic skills and cognitive functions. These are interpreted in combination with other
relevant data to identify the child’s strengths and weaknesses, including the child’s approach to tasks, characteristic
patterns of learning, and difficulties in processing information. A discrepancy between ability and achievement is an
example of one type of information that might be collected to help establish a pattern of strengths and weaknesses.
Teams analyze and interpret this information to determine whether the pattern of strengths and weaknesses is
characteristic of a child with an exceptionality and to determine and describe the child’s educational needs.
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to
conduct. In conducting the evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional
,
developmental and academic information, including
information provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the
child’s individualized education program, including information related to enabling the child to be involved, and progress, in the general
education curriculum or, for preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining
an appropriate educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical
or developmental factors; and
(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a
severe discrepancy between achievement and intellectual ability, and may use a
process that determines if the child responds to scientific, research-based intervention as part of the child’s evaluation.
(c) An agency shall ensure that:
(1) Assessments and other evaluation materials used to assess a child under this section: (A) Are selected and administered so as not to
be discriminatory on a racial or cultural basis; (B) are provided and administered in the language and form most likely to yield accurate
information on what the child knows and is able to do academically, developmentally and functionally, unless it is not feasible to so
provide or administer; (C) are valid and reliable for the specific purpose for which they are used; (D) are administered by trained and
knowledgeable personnel; and (E) are administered in accordance with instructions provided by the producer of such tests;
(2) the child is assessed in all areas of suspected exceptionality;
(3) assessment tools and strategies that provide relevant information
that directly assists persons in determining the educational needs of the child are provided
;
and
(4) the assessments of any child who transfers from another agency during the school year are coordinated with the child’s prior school,
as necessary and as expeditiously as possible, to ensure prompt completion of an evaluation begun by the prior school.
Kansas Regulations:
K.A.R. 91-40-8(c)
(c)As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1) The evaluation team shall review existing evaluation data on the child, including the following information:
(A) Evaluations and information provided by the parent of the child;
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child’s parent, the evaluation team shall identify what additional data, if any,
is needed to determine the following matters:
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(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child
continues to have such an exceptionality;
(B) what the present levels of academic achievement and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related
services currently being provided to the child are needed to enable the child to meet the measurable annual
goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.
K.A.R. 91-40-9
. Evaluation procedures. (a) If assessment instruments are used as a part of the evaluation or reevaluation of an exceptional
child, the agency shall ensure that the following requirements are met:
(1) The assessment instruments or materials shall meet the following criteria:
(A) Be selected and administered so as not to be racially or culturally discriminatory; and
(B) be provided and administered in the child’s native language or other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically, developmentally, and functionally, unless this is clearly not
feasible.
(2) Materials and procedures used to assess a child with limited English proficiency shall be selected and administered to ensure that they
measure the extent to which the child has an exceptionality and needs special education, rather than measuring the child’s English
language skills.
(3) A variety of assessment tools and strategies shall be used to gather relevant functional and developmental information about the child,
including information provided by the parent, and information related to enabling the child to be involved and progress in the general
curriculum or, for a preschool child, to participate in appropriate activities that could assist in determining whether the child is an
exceptional child and what the content of the child’s IEP should be.
(4) Any standardized tests that are given to a child shall meet the following criteria:
(A) Have been validated for the specific purpose for which they are used; and
(B) be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the
assessment.
(5) If an assessment is not conducted under standard conditions, a description of the extent to which the assessment varied from standard
conditions shall be included in the evaluation report.
(6) Assessments and other evaluation materials shall include those that are tailored to assess specific areas of educational need and not
merely those that are designed to provide a single general intelligence quotient.
(7) Assessments shall be selected and administered to ensure that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the
test results accurately reflect the child’s aptitude or achievement level or whatever other factors the
assessment purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills, unless those skills are the
factors that the assessment purports to measure.
(8) A single procedure shall not be used as the sole criterion for determining whether a child is an exceptional child and for
determining an appropriate educational program for the child.
(9) Each agency shall use assessment tools and strategies that provide relevant information that directly assists persons in
determining the educational needs of the child.
(b) (1) Each child shall be assessed in all areas related to a suspected exceptionality, including, if appropriate, the following:
(A) Health;
(B) vision;
(C) hearing;
(D) social and emotional status;
(E) general intelligence;
(F) academic performance;
(G) communicative status; and
(H) motor abilities.
(2) Each evaluation shall be sufficiently comprehensive to identify all of the child’s special education and related services needs,
whether or not commonly linked to the disability category in which the child has been classified.
(c) If a child is suspected of having a specific learning disability, the agency also shall follow the procedures prescribed in K.A.R. 91-40-11 in
conducting the evaluation of the child.
K.A.R. 91-40-11(b)(c)
(b)(1) A group evaluating a child for a specific learning disability may determine that the child has that disability only if the following
conditions are met:
(A) The child does not achieve adequately for the child's age or meet state-approved grade-level standards, if any, in one or more
of the following areas, when the child is provided with learning experiences and instruction appropriate for the child's age and grade level:
(i) Oral expression;
(ii) listening comprehension;
(iii) written expression;
(iv) basic reading skill;
(v) reading fluency skills;
(vi) reading comprehension;
(vii) mathematics calculation; and
(viii) mathematics problem solving; and
(B)(i) The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas
identified in paragraph (b)(1)(A) when using a process based on the child's response to scientific, research-based intervention; or
(ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level
standards, or intellectual development that is determined by the group conducting the evaluation to be relevant to the
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identification of a specific learning disability, using appropriate assessments.
(2) A child shall not be determined to be a child with a specific learning disability unless the group elevating the child
determines that its findings under paragraphs (b)(1))(A) and (B) are not primarily the result of any of the following:
(i) A visual, hearing, or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; or
(vi) limited English proficiency.
(c) (1) The group evaluating the child shall ensure that the child is observed in the child's learning environment, including
the regular classroom setting, to document the child's academic performance and behavior in the areas of difficulty.
(2) In conducting the observation, the group may employ either of the following procedures:
(A) Use information from an observation in routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or
(B) have at least one member of the group conduct an observation of the child's academic performance in the regular
classroom after the child has been referred for an evaluation and parental consent is obtained.
2. Collecting Evaluation Data
Collecting relevant functional, developmental and academic information related to enabling the child to be involved in,
and progress in, the general curriculum (or for a preschool child, to participate in appropriate activities) requires that
data be collected not only about the child, but about the child’s interactions in the curriculum, instruction, and
environment as well. Every evaluation should be approached and designed individually based on the specific
concerns and the selection of assessment tools based on the information needed to answer the eligibility questions.
It would be inappropriate to use the exact same battery of assessments for all children or to rely on any single tool to
conduct an evaluation.
Data must be collected from the five sources referred to in Kansas as G R I O T. GRIOT represents five sources of
data that teams need to be aware of and use as appropriate. The following is a discussion of each of the five
sources of data:
G
– General Education Interventions/Curriculum Progress: During the initial evaluation we must look at two different
“G”s:
(1)
General Education Interventions
: Whether you’re operating within a school system that uses individual
child problem solving (problem-solving teams, SIT, SAT, CARE, etc.) and/or a school-wide multi-tier model
of interventions, when a child is referred for an initial evaluation there will be data on what scientific,
research-based interventions have been used with the child and specific data about the effectiveness and
results of the implementation of the interventions. K.A.R. 91-40-7(c) requires that results of the
interventions provided to the child prior to a referral for an initial evaluation are documented and provided to
the parent. Documentation may be done through a written intervention plan developed by the problem-
solving team, which may include data that the child was provided appropriate instruction in general
education settings, including repeated assessments of achievement at reasonable intervals, reflecting
formal assessment of child progress during instruction. (See Chapter 2, Screening and General Education
Interventions.)
(2)
General Education Curriculum Progress
: An evaluation team needs to understand how the child is
progressing in general education curriculum across settings with the available supports. To do this they
must understand the outcomes of the general education curriculum and how the skills represented in those
outcomes relate to the needs of each child. Are the skills needed, for the child we are working with, different
from the skills that general education children need? Is the instruction required for the child to learn those
skills different? The general education curriculum outcomes and the supports available through general
education are unique to each school. Gaining an understanding of what support is available and the level of
support needed by the child is one of the most important parts of the evaluation.
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R
–
Record Review
: The evaluation team should also include as part of the evaluation a review of records. These
records would include such things as information provided by the parents, current classroom-based
assessments, information from previous services providers, screenings, previous evaluations, reports from other
agencies, portfolios, discipline records, cumulative files, and other records.
I
–
Interview
: It is important to understand the perceptions of significant adults in the child’s life and of the child
himself. Parents, teachers, and the child can all typically provide insight into areas of strengths and needs.
Interviews can also provide information about significant historical events in the child’s life as well as about his
performance in the classroom and other settings.
O
–
Observation
: A district must ensure the child is observed in the child’s learning environment (including the
regular education classroom setting) to document the child’s academic performance and behavior in the areas of
difficulty (K.A.R. 91-40-11(c); 34 C.F.R. 300.310). In the case of a child of less than school age or out of school,
a group member must observe the child in an environment appropriate for a child of that age. If the child is
already in an educational setting the observation should be done in that setting, opposed to bringing them into a
different setting just for observation. These observations could include structured observations, rating scales,
ecological instruments (e.g., EBASS, TIES-II), behavioral interventions, functional analysis of behavior and
instruction, anecdotal, and other observations (conducted by parents, teachers, related services personnel, and
others). The purpose of the observation is to help the evaluation team understand the extent to which the child’s
skills are impacting their ability to participate and progress in a variety of settings. Observations allow you to see
first hand how a child is functioning in naturally occurring settings. Observation data can also allow you to
compare the child’s’ behavior to that of peers in the same setting. Observation data helps us to understand not
only the child’s current functional performance but also the level of independence demonstrated which can help
determine necessary supports.
T
–
Test
: A wide range of tests or assessments may be useful in determining an individual child’s skills, abilities,
interests, and aptitudes. Typically, a test is regarded as an individual measure of a specific skill or ability, while
assessment is regarded as broader way of collecting information that may include tests and other approaches to
data collection. Standardized norm-referenced tests are helpful if the information being sought is to determine
how a child compares to a national group of children of the same age or grade. Criterion-reference tests are
helpful in determining if the child has mastered skills expected of a certain age or grade level. Tests typically
provide specific information but are never adequate as a single source of data to determine eligibility for special
education. Because tests require a controlled testing environment, the result is that children are removed from
their learning environments to participate. This is a very intrusive way of gathering data and the value of the
data obtained should always be weighed carefully against the cost of missed class time. For this reason, tests
should be thoughtfully selected and be used for specific purposes when data cannot be obtained through other
sources. Some test information may already have been collected during the GEI process, especially if the child
attends a school that uses school-wide benchmark assessment. However, additional information may need to
be collected during the initial evaluation. This might include curriculum-based assessments (e.g., CBA, CBM, or
CBE), performance-based assessments (i.e., rubric scoring), or other skill measures such as individual reading
inventories. The testing that needs to be done will vary depending on what information already has been
collected and the needs of the individual child. Diagnostic testing might include measures of reading, math,
written language, or other academic skills, or tests of motor functioning, speech/language skills, adaptive
behavior, self-concept, or any domain of concern. As with all types of data collection, the information from
testing needs to be useful for both diagnostic and programmatic decision-making.
GRIOT offers a framework in which to organize and structure data collection. It is not that any data source or
assessment procedure is inherently good or bad. All procedures and tools are appropriate as long as they are
selected thoughtfully and for the appropriate purposes. A team will not necessarily use all data sources every time
an evaluation is conducted. Thoughtful planning will need to be given for each child to ensure that the team is using
the appropriate tools to collect data useful for both making the eligibility determination and for program planning.
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F. ELIGIBILITY DETERMINATION AND DOCUMENTATION
At the time the evaluation is completed and the information is compiled, the team should schedule a time to convene
in order to make the determination of eligibility. Parents are to be provided an opportunity to participate in the
eligibility meeting, which can be conducted at the same time as the IEP team meeting. The school must provide a
notice of the meeting at least 10 calendar days prior to the meeting date that includes the requirements in K.A.R. 91-
40-17(b)(1).
The team must ensure that information obtained from all sources used in the evaluation is documented and carefully
considered (K.A.R. 91-40-10(d)(2); 34 C.F.R. 300.306(c)(1)(ii)). The parents and other qualified professionals review
the results of the initial evaluation to determine:
(1) whether the child is a child with an exceptionality as defined in Federal and State laws and regulations
(K.A.R. 91-40-1(k)(w); and
(2) the educational needs of the child (K.A.R. 91-40-10(a)(1); 34 C.F.R. 300.306(a)).
When interpreting evaluation data for the purpose of making these determinations, the team must:
•
draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and
teacher recommendations, as well as information about the child’s physical condition, social or cultural
background, and adaptive behavior; and
•
ensure that information obtained from all of these sources is documented and carefully considered (K.A.R.
91-40-10(d); 34 C.F.R. 300.306(c)(1)(i) and (ii)) .
Teams must ensure that the child meets the definition of one of the categories of exceptionality and, as a result of
that exceptionality, needs special education and related services (i.e., 2 pronged test) (K.A.R. 91-40-1(k)(w); 34
C.F.R. 300.8). If a child meets the definition of an exceptionality category but does not need special education and
related services, s/he will not be determined to be eligible. If the child has a need for special education and related
services but does not meet the definition of an exceptionality category, s/he will not be determined to be eligible. In
the case of a child who is found to have a disability, but does not need special education and related services, a
referral for a 504 evaluation may be considered. Teams may utilize the “Eligibility Indicators, Fall 2007” document
(See Appendix A, Figure 3-4).
1. Determining Whether the Child is a Child with an Exceptionality
The team reviews the data to determine whether or not the child is a child with an exceptionality. To do this, team
members compare the data about the child to see if there is a match to one of the exceptionality categories defined in
the regulations. However, even when the data point to a particular area of exceptionality, there are exclusionary
factors that must be examined before determining the child is a child with an exceptionality.
Regulations are very clear with regard to the fact that a child must NOT be determined to be a child with an
exceptionality if:
(a) the determinant factor is:
•
Lack of appropriate instruction in reading, including the
essential components of reading instruction
(defined in section 1208(3) of the ESEA(NCLB) as phonemic awareness, phonics, vocabulary
development, reading fluency including oral reading skills, and reading comprehension
strategies
);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ; and
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(b) the child does not otherwise meet the eligibility criteria as a child with an exceptionality (K.S.A. 72-986(f);
K.A.R. 91-40-10(c); 34 C.F.R. 300.306(b)).
There are unique issues that must be examined before a child may be determined to have a specific learning
disability
. It is important that the team attend to collecting the data needed to examine these issues prior to and/or
as part of the initial evaluation. According to K.A.R. 91-40-11(b) (34 C.F.R. 300.309(a)), the group evaluating a child
for a specific learning disability collects the following:
(a) Data to determine that the child does not achieve adequately for the child’s age or to meet State-approved
grade-level standards in one or more of the following areas, when provided with learning experiences and
instruction appropriate for the child’s age or State-approved grade-level standards:
•
oral expression;
•
listening comprehension;
•
written expression;
•
basic reading skill;
•
reading fluency skills;
•
reading comprehension;
•
mathematics calculation;
•
mathematics problem solving.
Additionally, in order for a child to be eligible as a child with a specific learning disability, the evaluation and eligibility
report must document that the child meets the following conditions:
a. The child does not achieve adequately for the child’s age or to meet State-approved grade- level standards
when provided with learning experiences and instruction appropriate for the child’s age or State-approved
grade-level standards,
AND
(i) The child does not make sufficient progress to meet age or State-approved grade-level standards when
using a process based on the child’s response to scientific, research-based intervention;
OR
(ii)The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative
to age, State-approved grade-level standards, or intellectual development.
b. The determinate factor for why the child does not achieve adequately for the child’s age or does not make
sufficient progress to meet age or State-approved grade level standards, or exhibits a pattern of strengths
and weaknesses, is not primarily the result of:
•
A visual, hearing or motor disability;
•
mental retardation;
•
emotional disturbance;
•
cultural factors;
•
environmental or economic disadvantage; or
•
limited English proficiency (K.A.R. 91-40-9(a)(2)(3), K.A.R. 91-40-11(b); 34 C.F.R. 300.309(a)(3)).
If the evaluation data indicates there is a match with a particular category of exceptionality and the team has ruled
out the presence of any exclusionary factors, the team may determine that the child meets one of the requirements of
eligibility as a child with an exceptionality (Prong 1 of the test of eligibility). If there is not a match or exclusionary
factors are present, the team must determine that the child does not meet the eligibility of a child with an
exceptionality.
2. Determining Whether the Child Needs Special Education and Related Services
The second prong of the test of eligibility is to determine whether or not the child needs special education and related
services. It is helpful for teams to remember that by definition special education means specially designed instruction
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(K.A.R. 91-40-1(kkk); 34 C.F.R. 300.39(a)(1)), and, that specially designed instruction means adapting the content,
methodology or delivery of instruction to address the unique needs of a child that result from the child’s exceptionality
to ensure access of the child to the general education curriculum in order to meet the educational standards that
apply to all children (34 C.F.R. 300.39(b)(3)(i)-(ii)). This implies that in order to have a need for special education,
the child has specific needs which are so unique as to require specially designed instruction in order to access the
general education curriculum.
Kansas regulations at K.A.R. 91-40-7(c), require that prior to referral for an initial evaluation the school must have
data-based documentation of having provided appropriate instruction to the child and having implemented
educational interventions and strategies for the child, along with repeated assessments of achievement at reasonable
intervals, which reflect formal assessment of the child’s progress during instruction. The results of which indicate that
the child is suspected of having an exceptionality and may require special education and related services. If the
school is implementing a multi-tiered model of intervention, it will have data regarding the child’s needs related to the
intensity of instruction and supports required for the child to be successful.
The team must review the evaluation data in such a way as to understand the extent of the child’s needs with regard
to specially designed instruction. Teams should be able to use the data to describe the intensity of the support
needed to assist the child in accessing and progressing in the general education curriculum. It is only through this
discussion that the team can determine whether or not the child’s need for having adapted content, methodology, or
delivery of instruction is so great that it cannot be provided without the support of special education.
If the team determines that the child’s need for having adapted content, methodology, or delivery of instruction is so
great that it cannot be provided in regular education without the support of special education, the team may determine
that the child needs special education and related services (Prong 2 of the eligibility test). If the data suggests the
child’s needs for instruction can
be provided within regular education without the support of special education and
related services, the team must determine that the child is not
in need of special education and related services.
3. Eligibility Report
The evaluation team shall ensure that the information obtained from all sources is documented and considered. After
carefully considering all data and making the eligibility determination, the team then must document the decision
made regarding the child’s eligibility for special education and related services. Once the evaluation report and
documentation of eligibility has been completed, each team member must certify in writing whether the report reflects
the member’s conclusion. If it does not reflect the member’s conclusion, the team member must submit a separate
statement presenting the member’s conclusions (K.A.R. 91-40-10(a)(2); 34 C.F.R. 300.311(b)). (See Appendix A,
Figure 3-5, Evaluation/Eligibility Report Content Checklist)
The evaluation report serves as the documentation of the child’s eligibility. The evaluation report and the
documentation of eligibility must be provided, at no cost, to the parent (K.A.R. 91-40-10(b); 34 C.F.R. 300.306(a)(2)).
Additionally, the school is not required to classify a child with an exceptionality according to his/her category of
exceptionality if such child is regarded as a child with an exceptionality and is provided FAPE (K.A.R. 91-40-10(g)).
There are specific requirements for reporting the eligibility determination (K.A.R. 91-40-10(a), (e); 34 C.F.R.
300.311).
The evaluation report must include the following statements:
a. whether the child is a child with an exceptionality;
b. the basis for making the determination, including an assurance that the determination was made in
accordance with applicable laws and regulations;
c. the relevant behavior noted during the observation of the child; and for LD the relationship of that behavior
to the child’s academic functioning;
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d. the educationally relevant medical findings, if any;
e. for a child determined to have a
learning disability
, the report must include documentation of the following:
(i) the child does not achieve adequately for the child’s age or to meet State-approved grade- level
standards when provided with learning experiences and instruction appropriate for the child’s age or
State-approved grade-level standards;
AND
o
the child does not make sufficient progress to meet age or State-approved grade-level standards
when using a process based on the child’s response to scientific, research-based intervention;
OR
o
the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both,
relative to age, State-approved grade-level standards, or intellectual development.
(ii) the team determines the reason the child does not achieve adequately for the child’s age, does not
make sufficient progress to meet age or State-approved grade level standards, or exhibits a pattern of
strengths and weaknesses, is not primarily the result of:
o
A visual, hearing or motor disability;
o
mental retardation;
o
emotional disturbance;
o
cultural factors;
o
environmental or economic disadvantage; or
o
limited English proficiency.
(iii)
if the child has participated in a process that assesses the child’s response to scientific,
research-based intervention (RtI/MTSS), the report must also document
o
the instructional strategies used; and
o
the student-centered data collected.
(iv)
Documentation that the child’s parents were notified about the process, including the following
information
:
o
the State’s policies regarding the amount and nature of student performance data that would be
collected and the general education services that would be provided (See Appendix A, Figure 2-3);
o
strategies for increasing the child’s rate of learning; and
o
the parent’s right to request an evaluation (K.A.R. 91-40-10(e), (f); K.A.R. 91-40-9(a)(2)(3), K.A.R.
91-40-11; 34 C.F.R. 300.309(a)(3); 34 C.F.R. 300.311(a)); and
f.
Signatures of each team member indicating whether the report reflects their conclusion. If it does not reflect
the team member’s conclusion, the team member must submit a separate statement presenting his/her
conclusion.
State Statute:
K.S.A. 72-986(e)(f)
(e) Upon completion of the administration of assessments and other evaluation materials:
(1) The determination of whether the child is an exceptional child shall be made by a team of qualified professionals
and the parent of the child in accordance with this section; and
(2) a copy of the evaluation report and the documentation of determination
of eligibility shall be given to the parent.
(f) In making a determination of eligibility under this section, a child shall not be determined to be an exceptional child if the
determinant factor for such determination is lack of instruction in reading, including instruction using the essential components of
reading instruction, math or limited English proficiency.
(g) (1) If it is determined that a child is an exceptional child, the agency shall seek consent from the parent of the child to provide
special education and related services to the child. No such services shall be provided until consent is given by the parent.
(2) If the parent of a child refuses to consent to the provision of services, or fails to respond to a request for consent to services,
the agency:
(A) Shall not initiate any procedure or proceeding under this act to gain authority to provide services to the child;
(B) shall not be considered to be in violation of the requirement to provide a free appropriate public education to the child; and
(C) shall not be required to convene an IEP meeting or develop an IEP for the child.
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State Regulations:
K.A.R. 91-40-1(k)(w)(kkk)
(k) "Child with a disability" means the following:
(1) A child evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment,
a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any
other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities and who, by reason thereof, needs
special education and related services; and
(2) for children ages three through nine, a child who is experiencing developmental delays and, by reason thereof, needs special
education and related services.
(w) "Exceptional children" means children with disabilities and gifted children.
(kkk) “Special education” means the following:
(1) Specially designed instruction, at no cost to the parents, to meet the unique needs of an exceptional child, including the
following:
(A) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education;
(2) paraeducator services, speech-language pathology services, and any other related service, if the service consists of specially
designed instruction to meet the unique needs of a child with a disability;
(3) occupational or physical therapy and interpreter services for deaf children if, without any of these services, a child would
have to be educated in a more restrictive environment;
(4) travel training; and
(5) vocational education.
K.A.R. 91-40-10. Eligibility determination.
(a) (1) After completion of appropriate evaluation procedures, a team of qualified
professionals and the parent of the child who has been evaluated shall prepare a written evaluation report that includes a statement
regarding each of the following matters:
(A) The determination of whether the child has an exceptionality;
(B) the basis for making the determination;
(C) the relevant behavior noted during the observation of the child;
(D) the relationship of that behavior to the child’s academic functioning;
(E) educationally relevant medical findings, if any; and
(F)
(i) if the child was evaluated for a specific learning disability, the additional information specified in subsection (e).
(2) Each team member shall certify in writing whether the report reflects the member's conclusion. If it the report does not
reflect that member's conclusion, the team member shall submit a separate statement presenting the member's conclusion.
(b) Each agency shall provide, at no cost, a copy of the evaluation report to the child’s parent.
(c) An evaluation team shall not determine a child to be an exceptional child if the determinant factor for that eligibility determination
is the child’s lack of appropriate instruction in reading or mathematics or limited English proficiency, and if the child does not
otherwise qualify as a child with an exceptionality.
(d) Each evaluation team, in determining whether a child is an exceptional child and what the educational needs of the child are, shall
meet the following requirements:
(1) The evaluation team shall draw upon information from a variety of sources, including the following:
(A) Aptitude and achievement tests;
(B) parent input;
(C) teacher recommendations;
(D) physical condition;
(E) social or cultural background; and
(F) adaptive behavior.
(2) The evaluation team shall ensure that the information obtained from all of the sources specified in paragraph (1) of this
subsection is documented and considered.
(e) If the evaluation team and the parent determine the parent's child to be a child with a specific learning disability, the
evaluation team and the parent shall prepare a written evaluation report that includes a statement regarding each of the following
matters:
(1) An indication of whether the child has a specific learning disability;
(2) the basis for making the determination, including an assurance that the determination has been made in accordance with
applicable laws and regulations;
(3) the relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's
academic functioning;
(4) educationally relevant medical findings, if any;
(5) an indication of whether the child meets the following criteria:
(A) Does not achieve adequately for the child's age or meet state-approved grade-level standards; and
(B)(i) Does not make sufficient progress to meet age standards or state-approved grade-level standards; or
(ii) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-
level standards, or intellectual development; and
(6) the determination of the team concerning the effect of the following factors on the child's achievement level:
(i) Visual, hearing, or motor skills disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; and
(vi) limited English proficiency.
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(f) If the child has participated in a process that assessed the child's response to scientific, research-based intervention, the evaluation
report shall also address the following matters:
(1) The instructional strategies used and the student-centered data collected; and
(2) the documentation indicating that the child's parent was notified about the following:
(A) The state's policies regarding the amount and nature of student performance data that would be collected and the general
education services that would be provided;
(B) strategies for increasing the child's rate of learning; and
(C) the parent's right to request an evaluation.
(g) (1) Except as provided in paragraph (2) of this subsection, after a child has been determined to be a child with an exceptionality
and has been provided special education or related services, an agency shall conduct a reevaluation of the child before terminating
special education or related services to the child.
G. PRIOR WRITTEN NOTICE FOR IDENTIFICATION
After the eligibility determination is made, the school is required to provide Prior Written Notice to the parents that the
school proposes to initially identify the child as a child with an exceptionality and that the child requires special
education and related services. Likewise, school personnel must give Prior Written Notice to the parents if they
determine that a child is not eligible for special education or related services. The required content of the Prior
Written Notice is identical to the content described earlier in Section B of this chapter. However, parent consent is
not required for identification of a child with an exceptionality. (See Appendix A, Figure 1-6, Prior Written Notice and
Consent for Identification, or http://www.kansped.org)
H. INDEPENDENT EDUCATIONAL EVALUATION
After an initial evaluation is completed, if the parents disagree with the school's evaluation, they have the right to ask
for an independent educational evaluation at public expense. If the parent obtains an independent educational
evaluation at public expense or provides the agency with an evaluation obtained at private expense, the results of the
evaluation shall be considered by the school, if it meets the school’s criteria, in any decision made with respect to the
provision of FAPE to the child.
Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by
the district responsible for the education of the child in question. Public expense means that the district either pays
for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.
If the parent requests an independent educational evaluation the school must either:
Provide information to the parent about where an independent educational evaluation can be obtained, the
agency criteria (which may include qualifications of examiners and location to obtain the evaluation); and
Ensure that the evaluation is provided at public expense, unless the special education due process hearing
officer determines that the independent educational evaluation did not meet agency criteria; or
Initiate a due process hearing to show that the school's evaluation was appropriate.
If a parent requests an independent educational evaluation, the agency may ask the reason for the objection to the
public evaluation. However, the explanation by the parent shall not be required, and the agency shall not
unreasonably delay either providing the independent educational evaluation at public expense or initiating a due
process hearing to defend the public evaluation.
A due process hearing would determine whether the school must pay for the independent educational evaluation. If
the school’s evaluation is found to be appropriate and the parents still want an independent educational evaluation,
the expense is the responsibility of the parents. When an independent educational evaluation is conducted, the
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school or a special education due process hearing officer, or both must consider the results of the independent
educational evaluation in decisions made with respect to a free appropriate public education for the child.
If an independent educational evaluation is provided at public expense, the criteria under which the evaluation is
obtained must be the same as the criteria that the school uses when it initiates an evaluation. These criteria may
include the location of the evaluation and the qualifications of the examiner. The credentials of the independent
evaluator or evaluators must be comparable to the school’s evaluators. The school may set reasonable limitations
on the costs for which it will be responsible. The school may have to exceed those costs if necessary to ensure that
the independent educational evaluation meets the child’s unique needs.
If a special education due process hearing officer requests an independent educational evaluation, the evaluation is
provided at public expense. The school either pays the full cost of the evaluation, or ensures that the evaluation is
otherwise provided at no cost to the parents. A parent is entitled to only one independent education evaluation at
public expense each time the public agency conducts an evaluation with which the parent disagrees (34 C.F.R.
300.502(b)(5)).
State Regulations:
K.A.R. 91-40-12
91-40-12. Right to independent educational evaluation. (a) (1) Subject to the conditions specified in this regulation, the parent of an
exceptional child shall have the right to request an independent educational evaluation at public expense if the parent disagrees with
the evaluation obtained by the agency.
(2) The parent shall be eligible for only one independent educational evaluation at public expense in response to an evaluation
conducted by the agency.
(b) If a parent requests an independent educational evaluation of the child, the agency, without unnecessary delay, shall take one
of the following actions:
(1) Initiate a due process hearing to show that its evaluation is appropriate; or
(2) (A) Provide information to the parent about where an independent educational evaluation may be obtained and the agency
criteria prescribed under subsection (g)that apply to independent educational evaluations; and
(B) take either of the following actions:
(i) Pay the full cost of the independent educational evaluation or otherwise ensure that the evaluation is provided at no cost to
the parent; or
(ii) initiate a due process hearing to show that the evaluation obtained by the parent does not meet agency criteria.
(c) If the agency initiates a hearing and the final decision is that the agency’s evaluation is appropriate, the parent shall still have
the right to an independent educational evaluation, but the agency shall not be required to pay the cost of that evaluation.
(d) If a parent requests an independent educational evaluation, the agency may ask the reason for the objection to the public
evaluation. However, the explanation by the parent shall not be required, and the agency shall not unreasonably delay either
providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public
evaluation.
(e) If the parent obtains an independent educational evaluation at public expense or provides the agency with an evaluation obtained at
private expense, the results of the evaluation shall be considered by the agency, if it meets agency criteria, in any decision
made with respect to the provision of FAPE to the child. The results of this evaluation may be presented as evidence at
a due process hearing regarding that child.
(f) If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation shall be paid by
the agency.
(g) (1) Subject to the provisions of paragraph (2) of this subsection, each agency shall adopt criteria for obtaining an independent
educational evaluation at public expense. The criteria may include the qualifications of the examiner and the location of the
evaluation, but shall not impose other conditions or timelines for obtaining the evaluation.
(2) The criteria adopted by an agency under paragraph (1) of this subsection shall be the same as the criteria that the agency uses
when it conducts an evaluation, to the extent that those criteria are consistent with the parents’ right to obtain an independent
educational evaluation.
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QUESTIONS AND ANSWERS ABOUT
INITIAL EVALUATION AND ELIGIBILITY
1. What happens when a child transfers to a different school district during the initial
evaluation?
Assessments for a child who transfers to a different school district in the same school year during the initial
evaluation are coordinated with the child’s prior and subsequent schools, as necessary and as expeditiously as
possible, to ensure prompt completion of the full evaluation. The 60 school day timeline for the initial evaluation
may be extended only if the new school is making sufficient progress to ensure a prompt completion of the
evaluation, and the parent and the new school agree to a specific time when the evaluation will be completed.
2. How can school staff ensure that evaluation materials and procedures used to assess
racially and culturally diverse children are appropriate?
It is important that professionals conducting evaluations be aware of the potential bias that exists in all areas of
assessment and seek to choose techniques and tools that reduce bias to the largest extent possible. This may
involve being more aware of the growing body of research literature on this topic, developing a deeper
understanding of the cultural and linguistic diversity represented in the school, purchasing evaluation materials
that have been developed to reduce bias, and utilizing trained bilingual examiners. Further, professionals
conducting the evaluation must document the extent that an assessment was not conducted under standard
conditions (e.g., giving a standardized test in a language other than the one it was originally developed for).
Teams should carefully consider the presence of bias and interpret the results of that evaluation accordingly.
3. What are the qualifications of the people doing the assessment?
Each assessment must be given and interpreted by a licensed or certified professional in the area being
assessed (e.g., speech and language, motor, behavior, or other area). Public school psychological evaluations
must be given and interpreted by school psychologists. Certain test developers/suppliers also have specific
requirements with regard to training and qualifications that must be considered. Assessments during initial
evaluations encompass much more than test administration, however. When planning to collect the data for an
evaluation, teams should determine which individuals have the most appropriate skills to obtain whatever data is
needed.
4. May an initial evaluation consist only of existing data?
Yes. Existing data should be reviewed as a part of any initial evaluation. This would include evaluations and
information provided by the parents, current classroom-based, local, or State assessments and classroom-based
observations, and observations from teachers and related service providers. For an initial evaluation, such data
would help the team to decide if more information is needed to determine eligibility--both the presence of an
exceptionality and the determination of the child's educational need. The existing data will also help identify the
present levels of academic achievement and related developmental needs of the child, and whether any additions or
modifications to the special education and related services are needed to enable the child to meet the measurable
annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum, or
for preschool age children, an age appropriate environment. If the team has enough information from all five
required sources of data (
G
eneral Education Interventions or Screening,
R
ecord Review,
I
nterviews,
O
bservations,
T
ests), the team may conclude that no additional data are needed and eligibility may be determined based upon
existing data. The Prior Written Notice would include: (1) a statement of this fact and the reasons for it; and (2) a
statement of the right of the parents to request additional assessment to determine whether the child is a child with
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an exceptionality. Parent consent to conduct the initial evaluation is required, whether or not additional data is
needed.
5. What is the parent’s role in the review of existing data?
As members of the IEP team, parents may review any existing data, as well as provide existing data to the evaluation
team. Parents may contribute relevant medical data or other records that the parent has concerning the child.
6. Does an evaluation report have to specify the particular category of exceptionality
under which a child has been identified?
Kansas regulations, at K.A.R. 91-40-10(a)(1)(A), require that the evaluation report include a statement as to
whether the child has an exceptionality. These regulations do not require that the evaluation report include the
particular category of exceptionality in which a child has been identified.
However, no information should be withheld from parents. It is important that parents be informed of the particular
category of exceptionality in which eligibility for special education was determined, and which is reported by the
school to the state through the Management Information System (MIS). In a court case where the school did not
inform the parents that the special education evaluation identified their child as having autism, the United States
Circuit Court of Appeals said:
“Procedural violations that interfere with parental participation in the IEP formulation process
undermine the very essence of the IDEA…These procedural violations, which prevented Amanda’s
parents from learning critical medical information about their child, rendered the accomplishment of
the IDEA’s goals and the achievement of a FAPE – impossible.” Amanda J. v. Nevada State
Department of Education, 260 F.3d 1106 (9
th
Cir. 2001).
In essence, this court said that the IEP team could not create a valid IEP that addressed the child’s unique needs if
required members of the team (the parents) were not fully informed of the evaluation results, which indicated their
child had autism. Although this court did not address it, when a parent is not fully informed of the results of an
evaluation, it is also likely that any consent given by the parent will be deficient. For these reasons, it is
recommended that the evaluation report include the specific category of exceptionality in which a child is identified
as an exceptional child. If the category of exceptionality is not identified in the evaluation report, it is important that
school personnel document in some other way that the parents have been informed of this important information.
7. If the eligibility determination team fails to reach consensus about a child’s eligibility
for special education, who makes the decision?
Teams should try to reach consensus about the eligibility decision. If a member of the school team does not
agree with the others, they are able to record their disagreement on the eligibility report. However, if the team
cannot reach agreement, the final decision rests with the person who serves as the LEA representative at the
eligibility determination meeting.
8. Can the evaluation team use severe discrepancy between ability and achievement to
determine eligibility for learning disability?
Remember the two-prong test for eligibility. The existence of a severe discrepancy between ability and
achievement is only a single indicator of whether a child might be a child with an exceptionality (prong 1). Other
supporting data would be needed to establish the presence of a learning disability. In addition, other types of
data would be needed to indicate that the child needs special education and related services (prong 2).
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9.
Once a child has been exited from special education services, must you complete
an initial evaluation upon a referral to determine need for special education?
Once the child has been identified as a child with an exceptionality, even though s/he may have been exited, any
subsequent evaluation would be a "reevaluation." The reevaluation must include all the same requirements for
an initial evaluation and a review of existing data. If there is enough current data available, there may not need
to be any further assessments.
11. If the parent presents written information from an outside agency (i.e., medical
doctor) stating the need for an evaluation and/or IEP is the school district obligated to
complete an evaluation to determine eligibility?
This should be considered a referral for an evaluation. The school has the right to determine the need for an
evaluation. They are to ensure that the child has been presented with general education interventions wither
before or during the evaluation and collect data to determine the child’s need for an evaluation. The school must
provide Prior Written Notice to the parent if they refuse to conduct an evaluation.
12. How should school staff respond if the parent and/or outside agency request a
specific assessment be completed as part of an evaluation?
The school evaluation team is to determine what assessments are to be conducted as part of the evaluation.
They should consider any request from the parent or outside agency, however, if the school proposes to conduct
the evaluation with no additional data, the parent may request the school to conduct an assessment to determine
if the child is a child with an exceptionality and to determine the educational needs of the child.
13. If a parent presents an outside evaluation report to the school, is the school district
obligated to implement the recommendations made by the outside evaluation team?
After an initial evaluation is completed, if the parents disagree with the school's evaluation, they have the right to
ask for an independent educational evaluation at public expense. If the parent obtains an independent
educational evaluation at public expense or provides the agency with an evaluation obtained at private expense,
the results of the evaluation shall be considered by the school, if it meets the school’s criteria, in any decision
made with respect to the provision of FAPE to the child. However, the school is not obligated to implement the
recommendations made by the outside evaluation team.
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CHAPTER 4
THE INDIVIDUALIZED EDUCATION PROGRAM
(IEP)
INTRODUCTION
The Individualized Education Program (IEP) is defined as a written statement for each student with an exceptionality
which describes that child’s educational program and is developed, reviewed, and revised in accordance with special
education laws and regulations. The team that develops the IEP includes parents, school professionals, the student
(when appropriate), and personnel from other agencies as appropriate (when addressing transition). Each IEP must
be developed with careful consideration of the individual child’s capabilities, strengths, needs, and interests. The IEP
should direct the child toward high expectations and toward becoming a member of his or her community and the
workforce. It should function as the tool that directs and guides the development of meaningful educational
experiences, thereby helping the child learn skills that will help them achieve his or her goals. In short, it should
assist the child in meeting the goals and challenging standards of our educational system as well as identified
postsecondary goals.
The IEP describes and guides services for each child on an individual basis. Such a guide also assists teachers and
other staff to have very specific, well-defined measurable annual goals for each eligible child. All persons involved
should have high expectations for children and work from a strengths perspective in developing educational
programs. The IDEA includes numerous IEP requirements. Kansas has State statutes and regulations regarding
IEPs, which also include children identified as gifted. Additionally, for children ages 3-5, an Individualized Family
Service Plan (IFSP) may be used, with parent consent.
This chapter addresses the following topics:
A. IEP Team
B. Notice of IEP Team Meeting
C. Using An IFSP Instead of An IEP
D. When IEP/IFSP Must Be in Effect
E. Development of the IEP
F. Meeting to Review and Revise the IEP
G. Transfer within State or from Out-Of-State
H. Implementing the IEP
A. IEP TEAM
The IEP team is a group of people, knowledgeable about the child, who come together at an IEP meeting in order to
develop or review and revise a child's IEP. Collaboration among IEP team members is essential to ensure that each
child’s educational experience is appropriate and meaningful. All members of the IEP team are equal partners in IEP
discussions. Because of their long-term perspective and unique relationship, parents bring a valuable understanding
of their child to the table. Children also can express their own needs, strengths, and interests. Educators, on the
other hand, bring an educational focus to the meeting; an understanding of the curriculum, the challenging
educational standards for the child, and the relationship to the general education environment. With this in mind,
parents and educators must continue to recognize their responsibility to maintain and enhance partnerships with each
other and the child throughout the school year in order to create a collaborative environment at each IEP team meeting.
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The IEP team should work toward consensus, however, if an IEP team is unable to come to consensus the school
has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive a free
appropriate public education (FAPE). Following the IEP meeting, the school must provide the parents Prior Written
Notice of the school’s proposal for services as identified in the child’s IEP. If, after all options have been exhausted,
the parents and the school cannot come to agreement either party may ultimately utilize mediation or due process
proceedings to resolve the differences.
1.
IEP Team Membership
The members of the IEP team are specifically identified and described in State and federal laws and regulations. In
addition to the following listed members of the IEP team, if parents need a sign language or foreign language
interpreter, the school must provide that service (K.S.A. 72-962(u); K.A.R. 91-40-17(d); 34 C.F.R. 300.322(e); 34
CRF 300.321).
a.
The student
must be invited to attend his/her own IEP meeting beginning at age 14, or younger, if a
purpose of the meeting is consideration of the student’s postsecondary goals and the transition services
needed to assist the student in reaching those goals. If the student elects not to participate, the IEP team
must take other steps to ensure that the student's preferences and interests are considered in developing
the IEP (K.S.A. 72-987(c)(8); K.A.R. 91-40-17(f); (34 C.F.R. 300.321(b)(2)). The school may invite the
student to attend their own IEP team meeting at any age if appropriate.
The school is not required to give students younger than age 18 the same notice of meeting that is required
for parents, but should document that the student was invited to the meeting. Beginning at age 18, if rights
have transferred to the student, both the student and parents must receive 10-day written notice of the IEP
team meeting (K.S.A. 72-989; K.A.R. 91-40-17(a)(2)).
b.
The parents
must be members of the IEP team. The parents are equal partners and play an active role in
providing critical information about their child's abilities, interests, performance, and history. They are
involved in the decision-making process throughout the development of the IEP (K.A.R. 91-40-17(a)).
(See Chapter 1 of this Process Handbook for a discussion of who may act as a parent.)
c.
The special education teacher(s
) or provider(s); not less than one special education teacher of the child,
or where appropriate, not less than one special education special education provider of the child. The
school may determine the particular individual(s) to be members of the IEP team.
d.
The general education teacher(s)
not less than one general education teacher of the child, if the child is,
or may be, participating in the general education environment (K.S.A. 72-962(u)(2)). This must be a teacher
who is or may be working with the child to ensure success in the general curriculum and implement portions
of the IEP. The general education teacher is knowledgeable about the curriculum, appropriate activities of
typically developing peers, and how the child’s exceptionality affect the child’s participation (involvement and
progress) in the curriculum or those appropriate activities. General education teachers assist in the
development, review and revision of the IEP including determining appropriate positive behavioral
interventions and supports and other strategies for the child, as well as supplementary aids and services,
program modifications and supports to enable general education teachers to work with the child (K.A.R. 91-
40-17(h)).
If the child has several general education teachers, at least one must attend the IEP meeting. However, it
may be appropriate for more to attend. The school may designate which teacher or teachers will serve as
IEP team member(s), taking into account the best interests of the child. The general education teacher who
serves as a member of the child’s IEP team should be one who is, or may be, responsible for implementing
a portion of the IEP. The school is strongly encouraged to seek input from the teachers who will not be
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attending the IEP team meeting. All general education teachers of the child must be informed by the IEP
team of their specific responsibilities related to implementing the child’s IEP and the specific
accommodations, modifications, and supports that must be provided for the child in accordance with the
IEP. The child’s IEP must be accessible to each general education teacher who is responsible for its
implementation (K.A.R. 91-40-16(b)(4)(5)).
General Education Teacher for Early Childhood
If a school district provides 'regular education' preschool services to nondisabled children, or if a preschool
child with disabilities is enrolled in a preschool program for children without disabilities operated by the
school district, the preschool teacher has the same requirements to attend the IEP meeting as for school
age children. If the child is enrolled in a preschool program for children without disabilities that is not
operated by the school district, the school is required to invite the preschool teacher, but has no authority to
require his/her attendance. If the preschool teacher of the child does not attend the school shall designate a
teacher who, under State standards, is qualified to serve children without disabilities of the same age.
For a child 3-5 years of age, the representative may be a preschool teacher (e.g., regular preschool, Title I
preschool, Even Start, Head Start, Migrant, Bilingual, 4-year-old at-risk, Parents as Teachers, etc.). For a 4-
or 5-year old child, the general education teacher may be the kindergarten teacher, if the child is or will be
attending kindergarten within the term of the IEP. Early childhood providers working in various community
settings must meet the credentialing requirements of their hiring agencies. KSDE acknowledges those
requirements, and encourages those providers to take part in IEP meetings, as appropriate, for preschool-
aged children.
For a child 3-5 years of age that is in a setting that does not provide a preschool educational component
(e.g., home setting or child care) it is considered the child does not have a regular education teacher and is
not participating in a general education environment, therefore, a general education teacher is not required
to be part of the IEP team. However, a parent may invite a child care provider to attend the IEP team
meeting as a person with knowledge or expertise about the child.
See Figures 4-1a and 4-1b in Appendix A, for additional guidance on when a preschool general education
teacher must attend the IEP meeting and who meets the requirements of a general education teacher for
early childhood.
General Education Teacher for Children in Separate Settings
It is expected that the circumstances will be rare in which a general education teacher would not be required
to be a member of the child's IEP team. However, there may be situations where a child is placed in a
separate school and participates only in meals, recess periods, transportation, and extracurricular activities
with children without exceptionalities and is not otherwise participating in the general education
environment, and no change in that degree of participation is anticipated during the next twelve months. In
these instances, since there would be no current or anticipated general education teacher for a child during
the period of the IEP, it would not be necessary for a general education teacher to be a member of the
child's IEP team.
e.
The School Representative
or designee must be a member of the IEP team. There are three requirements
of the school representative or designee. The school representative or designee:
i. is qualified to provide or supervise provision of special education services;
ii. has knowledge of the general education curriculum; and
iii. is knowledgeable about the availability of the school’s resources. (K.S.A. 72-962(u)(4))
The primary responsibility of the school representative or designee must be to commit school resources and
ensure that services written in the IEP will be provided. The school representative must have the authority
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to commit school resources and be able to ensure that whatever services are described in an IEP will
actually be provided because the school will be bound by the IEP that is developed at an IEP meeting
(Federal Register, August 14, 2006, p. 46670).
f.
A person who can interpret instructional implications
of any new evaluation or assessment results must
also be a member of the IEP team. This may include individuals who participated on the evaluation team.
Certainly a school psychologist, a special education teacher, general education teacher, speech/language
pathologist, or other related service provider might have evaluation results that need to be interpreted and
provide instructional implications.
g.
Others,
include individuals who have knowledge or special expertise regarding the child, including related
services personnel, as appropriate, and those who are invited by the parents or the school to attend the IEP
meeting.
The determination of who has knowledge or special expertise regarding the child is made by the party
(parents or school) who invited the individual to be a member of the IEP team. Therefore, the other party
may not bring into question the expertise of an individual invited to be a member of the IEP team and may
not exclude another team member’s expert based on the amount or quality of their expertise (KSR 91-40-
17(j); 34 C.F.R. 300.321(c)). Although parents are not required to do so, the school may ask the parents to
inform them of the individuals they are bringing. The person who contacts the parents may wish to ask
them if they intend to bring other people to be sure that the room is adequate for the number of participants.
Other team members may also be added, based on the child’s individual needs. For example, for a child
who uses assistive technology or who may be in need of such services, an internal or outside expert may be
required at this meeting. In other circumstances, the school nurse or another health professional should
attend. Any child with a need for a Health Care Plan should have a health professional participate at the
annual review meeting for the IEP, and other meetings as appropriate. Other team members might be
speech-language pathologists, occupational or physical therapists, adapted physical education teachers, or
others as appropriate.
h.
Representatives of any other agencies.
For a child with a disability age 14 or older the IEP team will
consider the transition services of the child, and the IEP team must determine, to the extent appropriate, any
other public agency that must be invited to the IEP meeting because they are likely to be responsible for
providing or paying for transition services. The parents, or a student who is 18 year of age, must provide
consent for the school to invite any outside agency who may be providing secondary transition services to
the IEP meeting (K.A.R. 91-40-17(g); 34 C.F.R. 300.321(b)(3)).
Consent from the parent (or adult student) is required when inviting outside agencies to ensure the
protection of confidentiality of any personally identifiable data, information and records collected or
maintained by the school. Although the school has the responsibility to invite (after receiving parent or adult
student consent) individuals from other agencies, the school district does not have the authority to require
the other agency representative to attend the IEP meeting (Federal Register, August 14, 2006, p. 46672).
(See Figure 4-5 in Appendix A for Consent to Invite Representative of Noneducational Agency to IEP
Meeting.)
i.
Representative of Part C services
.
When conducting an initial IEP team meeting for a child who was
previously served under Part C of the federal law, a school, at the request of the parent, shall send an
invitation to attend the IEP meeting to the local Part C services coordinator or other representative of the
Part C system to assist with the smooth transition of services (K.S.A. 72-987(a)(2)(B).
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j.
Multiple roles
. The law allows for individuals to represent more than one of the membership roles on the
IEP team. If a person is representing more than one role, s/he must meet the individual qualifications for
each role at the IEP team meeting. Additionally, all of the requirements for one representative do not have
to be filled by one person; other members of the school team may meet one or any of these requirements.
Individuals assuming more than one role at an IEP team meeting should document their roles on the
signature page of the IEP. Although there is no legal minimum number of participants at IEP team meetings,
the number of participants should be reasonable and appropriate to address the needs of the child and to carry
out the intent of the law. It would probably not be responsible for only one member of the school staff to
adequately represent every required membership role at an IEP team meeting (K.A.R. 91-40-17(i)).
State laws and regulations and Federal regulations (34 C.F.R. 300.321) address required IEP team members:
Kansas Statute:
K.S.A. 72-962
(u) ‘‘Individualized education program team’’ or ‘‘IEP team’’ means a group of individuals composed of:
(1) The parents of a child;
(2) at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment;
(3) at least one special education teacher or, where appropriate, at least one special education provider of the child;
(4) a representative of the agency directly involved in providing educational services for the child who:
(A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of exceptional
children;
(B) is knowledgeable about the general curriculum; and
(C) is knowledgeable about the availability of resources of the agency;
(5) an individual who can interpret the instructional implications of evaluation results; (6) at the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate
K.S.A. 72-987
(a)(2)(B) In conducting the initial IEP meeting for a child who was previously served under part C of the federal law, an agency, at the request of
the parent, shall send an invitation to attend the IEP meeting to the part C services coordinator or other representatives of the part C system
to assist with the smooth transition of services.
K.S.A. 72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child
with a disability reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state
or local correctional institution.
State Regulations:
K.A.R. 91-40-17
. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that a parent of an exceptional child is present at each IEP team meeting or is afforded the opportunity
to participate. These steps shall include the following:
(1) Scheduling each meeting at a mutually agreed-upon time and place and informing the parent of the information specified in subsection
(b) of this regulation;
(2) except as otherwise provided in K.A.R. 91-40-37, providing written notice, in conformance with subsection (b) of this regulation, to the
parent of any IEP team meeting at least 10 days in advance of the meeting.
(b) The notice required in subsection (a) of this regulation shall meet the following requirements:
(1) The notice shall indicate the purpose, time, and location of the IEP team meeting and the titles or positions of the persons
who will attend on behalf of the agency, including, if appropriate, any other agency invited to send a representative to discuss
needed transition services.
(2) If the meeting is for a child who has been receiving special education services under the infant and toddler provisions of the federal law
but is now transitioning to the provisions for older children, the notice shall inform the parent that the parent may
require that a representative of the infant and toddler program be invited to attend the initial IEP team meeting to assist with the
smooth transition of services.
(3) The notice shall indicate the following information, if a purpose is to consider postsecondary goals and transition services
for the child:
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(A) The agency will invite the parent's child to attend.
(B) One of the purposes of the meeting will be to consider the postsecondary goals and needed transition services for the student.
(4) The notice shall inform the parent that the parent has the right to invite to the IEP team meeting individuals whom the
parent believes to have knowledge or special expertise about the child.
(c) If a parent of an exceptional child cannot be physically present for an IEP team meeting for the child, the agency shall attempt other measures
to ensure parental participation, including individual or conference telephone calls.
(d) An agency shall take action to ensure that parents understand the discussions that occur at IEP team meetings, including arranging for an
interpreter for parents who are deaf or whose native language is other than English.
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at least two of
the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
(f)(1) An agency shall invite a child with a disability, regardless of the child’s age, to attend any IEP team meeting for the child if a purpose of the
meeting is consideration of the child’s postsecondary goals and transition services needs.
(2) If the child with a disability does not attend the IEP team meeting, an agency shall take other steps to ensure that the child’s preferences
and interests are considered.
(g) If a purpose of any IEP team meeting for a child with a disability is consideration of the postsecondary goals of the child and the transition
services needed to assist the child to reach those goals, the agency, with the consent of the parent or the child if the child is at least 18 years old,
shall invite a representative of any other agency that is likely to be responsible for providing or paying for transition services.
(h) A regular education teacher of an exceptional child, as a member of an IEP team, shall participate to the extent appropriate in the
development, review, and revision of the child’s IEP. This participation shall include assisting in making the following determinations:
(1) The appropriate positive behavioral interventions and strategies for the child;
(2) the supplementary aids and services needed by the child; and
(3) the program modifications or supports for school personnel that will be provided to assist the child.
(i) If qualified to do so, an agency member of the IEP team may serve in the role of two or more required members of a child’s IEP team.
(j) In asking individuals with knowledge or special expertise about a child to be members of the child’s IEP team, the party asking the person to
participate shall have the sole discretion in determining whether the invited person has knowledge or special expertise regarding
the child.
2.
IEP Team Attendance and Excusals
A member of the IEP team, as described above, is not required to attend an IEP team meeting, in whole or in part, if
the parent of a child with an exceptionality and the school agree, in writing, that the attendance of the IEP team
member is not necessary because the member’s area of the curriculum or related services is not being modified or
discussed in the meeting.
A required member of the IEP team, may be excused from attending an IEP team meeting, in whole or in part, when
the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if:
•
The parent, in writing, and the school consent to the excusal; and
•
The IEP team member submits, in writing to the parent and the IEP team, input into the development of the
IEP prior to the meeting (K.S.A. 72-987(b)(2)(3); 34 C.F.R. 300.321(e)).
Informed parental consent means that the school must provide the parent with appropriate and sufficient information
to ensure that the parent fully understands that the parent is consenting to excuse a required IEP team member from
attending an IEP team meeting in which the member’s area of the curriculum or related services is being changed or
discussed and that if the parent does not consent the IEP team meeting must be held with that IEP team member in
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attendance (Federal Register, August 14, 2006, p 46674). To ensure that the parent is fully informed and written
agreement or consent is appropriately documented, it is highly recommended that the school use the KSDE sample
form for excusing a member of the IEP team. (See Figure 4-3 in Appendix A, for Excusal from IEP Team Meeting
form or http://www.kansped.org .)
Excusals through written agreement or consent apply only to the required IEP team members. Other members of the
team, who have been invited by the school district or the parent, may be excused from attending the meeting without
agreement or consent. If an individual that is not a required IEP team member, as described above, but is invited to
attend a meeting, and is included on the notice of meeting, it is not required for the parent and school to consent
and/or provide written agreement to excuse those individuals because they are not required members of an IEP team
(Federal Register, August 14, 2006, p. 46675).
Schools are encouraged to carefully consider, based on the individual needs of the child and the issues that need to
be addressed at the IEP team meeting, whether it makes sense to offer to hold the IEP team meeting without a
particular IEP team member in attendance or whether it would be better to reschedule the meeting so that person
could attend and participate in the discussion (Federal Register, August 14, 2006, p. 46674). Each school district
should consider developing a policy indicating who the local representative is that has authority to consent to the
excusal of a member of the IEP team.
Kansas Statute:
K.S.A. 72-987(b)(2)(3)
(2) A member of a child’s IEP team shall not be required to attend an IEP meeting, if the parent of the child and the agency agree that the
attendance of such IEP member is not necessary because the IEP member’s area of curriculum or related service is not to be discussed
or modified at the meeting. The parent’s agreement shall be in writing.
(3) A member of a child’s IEP team may be excused from attending an IEP meeting when the meeting is to involve a discussion of, and
possibly a modification to, the IEP member’s area of the curriculum or related service, if:
(A) The parent and the agency consent to the excusal;
(B) the IEP member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting;
and
(C) the parent’s consent to the excusal is in writing.
B. NOTICE OF IEP MEETING
The school must take steps to ensure that one or both parents are present at each IEP meeting or are otherwise
afforded the opportunity to participate in the IEP meeting. The meeting is to be scheduled at a mutually agreed upon
time and place. The school must provide notice of an IEP meeting to the parents for the initial IEP meeting and any
subsequent IEP meetings. The notice must be provided in writing at least 10 calendar days prior to the meeting
(K.A.R. 91-40-17(a)(2)) and if the child is at least 14 years old, inform the parents that their child is invited to attend
the meeting. (See Appendix A, Figure 1-7, Meeting Notice and Figure 4-6 IEP Meeting Requirements)
If parents are divorced, regardless of which parent has primary custody, the school must notify both parents unless a
court order precludes this from happening. This applies to all special education notice requirements including notice
of an IEP meeting. If the school is only aware of one parent's address, the school must make reasonable efforts to
locate the other parent in order to provide notice. The school is not required to conduct duplicate IEP team meetings
for divorced parents that do not wish to attend the same meeting.
Beginning at age 14, or younger, if a purpose of the meeting is consideration of the student's postsecondary goals or
transition services, the student must be invited to attend and participate in the IEP team meetings. The school is not
required to give children who are younger than age 18 the same notice that is required for parents, but should
document that the student was invited to the meeting. The school is required to invite the student to the IEP meeting
even if the student’s parents do not want their child to attend the meeting. However, because parents have authority
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to make educational decisions for their child (under 18 years of age), the parents make the final determination of
whether their child will attend the meeting (Federal Register, August 14, 2006, p. 46671).
Beginning at age 18, if rights have transferred to the student, all notices are to go to both the adult student and the
parent, including the notice of the IEP meeting (K.S.A. 72-989(a)). When a student reaches 18 years of age, the
parents no longer have a right to attend or participate in an IEP meeting for their child. The school or the student
may invite the parents to attend the meeting as persons with knowledge or expertise about the student. The notice of
the IEP meeting could be used as an invitation for all team members who are invited to attend the IEP meeting. An
IEP meeting requirements checklist has been developed to ensure all requirements are met (see Figure 4-6 in
Appendix A).
1.
Content of Notice of IEP Meeting
The written notice must indicate (K.A.R. 91-40-17(b); 34 CRF 300.322(b)):
a. the purpose;
b. date;
c. time;
d. location of the meeting;
e. the titles or positions of the persons who will attend on behalf of the school (The school is to notify the
parents about who will be in attendance at an IEP team meeting, however, individuals may be indicated by
position only. The school may elect to identify participants by name, but they have no obligation to do so.);
f. inform the parents of their right to invite to the IEP meeting individuals whom the parents believe to have
knowledge or special expertise about their child; and
g. inform the parents that if their child was previously served in Part C they may request that the local Part C
coordinator or other representative be invited to participate in the initial IEP meeting to ensure a smooth
transition of services.
In addition, beginning not later than the first IEP to be in effect when the child turns 14, or younger if determined
appropriate by the IEP team;
h. indicate that a purpose of the meeting is the consideration of the postsecondary goals and transition
services;
i.
indicate that the school will invite the student; and
j.
identify any other agency that will be invited, with parent consent (or adult student consent), to send a
representative. (K.A.R. 91-40-17(g))
See Figure 1 - 7 in Appendix A for a sample Meeting Notice form.
2.
Methods to Ensure Parent Participation
IEP meetings are to be scheduled at a mutually agreed upon time and place. The school should work with the parent
to reach an amicable agreement about scheduling. If the parent/person acting as parent cannot be located the
school shall request an education advocate (See Chapter 1 for more information on identifying who may act as a
parent and appointing an educational advocate).
The school must take whatever action is necessary to ensure the parents understand the proceedings at the IEP
meeting, including arranging for an interpreter for parents who are deaf or whose native language is other than
English (K.A.R. 91-40-17(d); 34 C.F.R. 300.322(e)).
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If neither parent is able to physically attend the IEP meeting, the parent and the school may agree to use alternative
means of participation, such as video conferences and individual or conference telephone calls (K.S.A. 72-987(b)(1);
K.A.R. 91-40-17(c); 34 C.F.R. 300.322(c); 34 C.F.R. 300.328).
If the parents are unable to meet prior to the annual review date of the IEP and request that the current IEP be
extended for a short period of time until they can be involved in the meeting, the school may honor their request and
document why the IEP has not been reviewed and when the IEP will be reviewed and revised. This situation should
not be a common practice and to avoid this issue it is best to schedule IEP meetings far enough in advance of the
annual review date to allow for rescheduling if necessary.
Each parent must be provided a final copy of the IEP at no cost (K.A.R. 91-40-18(d); 34 C.F.R. 300.322(f)).
3.
Conducting the IEP Team Meeting Without a Parent
A school may conduct an IEP meeting without the parent(s) in attendance if the school, despite repeated attempts,
has been unable to contact the parents to arrange for a mutually agreed upon time or to convince the parents that
they should participate (K.A.R. 91-40-17(e)(1); 34 C.F.R. 300.322(d)). The school must keep a record of its attempts
to arrange a mutually agreed on time and place to secure the parents’ participation. The record shall include at least
two of the following:
•
Detailed records of telephone calls made or attempted, including the date, time, person making the calls,
and the results of those calls;
•
Detailed records of visits made to the parents’ home or place of employment, including the date, time,
person making the visit, and the results of the visits;
•
Copies of correspondence sent to the parents and any responses received; and
•
Detailed records of any other method attempted to contact the parents and the results of that attempt.
K.A.R. 91-40-17(e)(2)
Districts are encouraged to use their judgment about what constitutes a good-faith effort in making repeated attempts
to involve each family in the IEP process. At minimum, school districts must at least make two attempts, using at
least two methods, to involve the parents in the IEP team meeting.
C.
USING AN IFSP INSTEAD OF AN IEP
The IEP team must consider the use of an IFSP in place of an IEP for children with a disability ages 3-5. The IFSP would be
developed in accordance with all of the IEP procedures, but contain the content described in USC 1436, Part C. At the
discretion of the school, services may be provided for a 2-year-old child who is identified as eligible under Part B and who will
turn age 3 during the school year (K.S.A. 72-987(a)(2); K.A.R. 91-40-(c)(1)). (See Figure 4-2 in Appendix A for content of the
IFSP).
If the school and the parents agree to use an IFSP, the school must provide the child's parents a detailed explanation
of the differences between an IFSP and an IEP, and obtain written informed consent from the parents (K.A.R. 91-40-
16(c)(2)). (See Figure 4-2 in Appendix A for examples of comparison chart and consent form.)
If the school uses the IFSP, as stated above, the IFSP must include the natural environments statement required
under Part C (34 C.F.R. 303.18; 34 C.F.R. 303.344(d)((1)(ii)). The IFSP must also contain an educational
component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills (34 C.F.R.
300.323(b)).
If the child has participated in the Part C Infant-Toddler Program prior to being determined eligible for early childhood
special education services, and already has an IFSP that is in effect, the IEP team may review the content of the
child’s current IFSP to see if it meets the needs of the child for one year, as identified through the Part B evaluation
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process. If it does, the IEP team may use the existing IFSP, but must ensure that all of the requirements for the
development of an IEP are met, including timelines for development and implementation, and designation of a new
current implementation date for the IFSP. If the current IFSP does not meet the needs of the child for one year, the
IEP team, including the parent, will develop a new IFSP, or IEP, for the child.
D. WHEN THE IEP/IFSP MUST BE IN EFFECT
1.
For Children Ages 3-21
An IEP must be developed within 30 calendar days of a determination that the child needs special education and
related services and must be implemented within 10 school days after written parent consent is granted for the
services in the IEP or Individualized Family Service Plan (IFSP) unless reasonable justification for a delay can be
shown. It is important to keep in mind the requirements of IEP development and implementation of the IEP are both
part of the 60 school day timeline of initial evaluation. In addition, the school is required to ensure that an IEP or
IFSP is in effect at the beginning of each school year for each child with an exceptionality (K.S.A. 72-987(a)(1);
K.A.R. 91-40-8(h)(i); K.A.R. 91-40-16(b)(1)(2)(3); 34 C.F.R. 300.323(a)(c)).
2.
For Children Ages 3-5
Each school district must make FAPE available to all eligible children by their third birthday, or age 2 during the
school year in which they turn age 3. An IEP or IFSP must be developed and implemented in accordance with
federal and state laws and regulations. If a child’s birthday occurs during the summer, the child’s IEP team must
determine the date when services under the IEP or IFSP will begin (K.S.A. 72-987(a)(2)(A)).
Many children who have participated in Part C Infant-Toddler services transition to early childhood special education
services by their 3
rd
birthday. Each child must be identified as eligible through a Part B initial evaluation prior to
receiving services at age 3.
For a child who is transitioning into the Part B early childhood special education services from the Part C early
intervention services, the school is required to ensure that:
•
the child is determined eligible under Part B requirements;
•
an IEP or IFSP is in effect by the child’s 3
rd
birthday;
•
if a child’s 3rd birthday occurs during the summer, the child’s IEP team must determine the date when
services will begin, but
not later than the beginning of the school year following the 3
rd
birthday; and
•
A representative of the district will participate in transition planning conferences arranged by the Part C
program. (K.A.R. 91-40-2(b))
Federal Regulation:
Sec. 300.323. When IEPs must be in effect.
(b) IEP or IFSP for children aged three through five.
(1) In the case of a child with a disability aged three through five (or, at the discretion of the SEA, a two-year-old child with a disability
who will turn age three during the school year), the IEP Team must consider an IFSP that contains the IFSP content (including the natural
environments statement) described in section 636(d) of the Act and its implementing regulations (including an educational component that
promotes school readiness and incorporates pre-literacy, language, and numeracy skills for children with IFSPs under this section who are
at least three years of age), and that is developed in accordance with the IEP procedures under this part. The IFSP may serve as the IEP of
the child, if using the IFSP as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child’s parents.
(2) In implementing the requirements of paragraph (b)(1) of this section, the public agency must--
(i) Provide to the child’s parents a detailed explanation of the differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent from the parents.
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Federal Part C Regulations:
Sec. 303.12
(b) Natural environments. To the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural
environments, including the home and community settings in which children without disabilities participate.
Sec. 303.18 Natural environments.
As used in this part, natural environments means settings that are natural or normal for the child's age peers who have no disabilities.
Sec. 303.344. Content of an IFSP
d) Early intervention services. (1) The IFSP must include a statement of the specific early intervention services necessary to meet the unique
needs of the child and the family to achieve the outcomes identified in paragraph (c) of this section, including--
(i) The frequency, intensity, and method of delivering the services;
(ii) The natural environments, as described in Sec. 303.12(b), and Sec. 303.18 in which early intervention services will be provided, and a
justification of the extent, if any, to which the services will not be provided in a natural environment;
Kansas Statute:
K.S.A. 72-987
. Individualized education program or family service plan; contents; development; duties of IEP team.
(a) (1) Except as specified in provision (2), at the beginning of each school year, each agency shall have an individualized education program
in effect for each exceptional child.
(2) (A) In the case of a child with a disability aged three through five and for two year-old children with a disability who will turn age
three during the school year, an individualized family service plan that contains the material described in 20 U.S.C. 1436, and that is
developed in accordance with this section, may serve as the IEP of the child if using that plan as the IEP is agreed to by the agency
and the child’s parents.
(B) In conducting the initial IEP meeting for a child who was previously served under part C of the federal law, an agency, at the
request of the parent, shall send an invitation to attend the IEP meeting to the part C services coordinator or other representatives of
the part C system to assist with the smooth transition of services.
Kansas Regulations:
K.A.R. 91-40-2. Free appropriate public education (FAPE)
(b)(1) Each agency shall make FAPE available to each child with a disability residing in its jurisdiction beginning not later than the child’s
third birthday.
(2) An IEP or IFSP shall be in effect by the child’s third birthday, but, if that birthday occurs during the summer when school is not in
session, the child’s IEP team shall determine the date when services will begin.
(3) If a child is transitioning from early intervention services provided under part C of the federal law, the agency responsible for providing
FAPE to the child shall participate in transition planning conferences for the child.
K.A.R. 91-40-8. Evaluations
(h) Unless an agency can justify the need for a longer period of time or has obtained written parental consent to an extension of time, the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for evaluation of
a child:
(1) Conduct an evaluation of the child;
(2) Conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parents as required by K.A.R. 91-40-17(a); and
(3) Implement the child’s IEP in accordance with K.A.R. 91-40-16.
(i)
In complying with subsection (h) of this regulation, each agency shall ensure that an IEP is developed for each exceptional child within
30 days from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-16. IEP Requirements; periodic IEP review.
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10 school days after
parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service
provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(c)(1) If an agency and a child’s parents agree, an IFSP that meets the requirements of the federal law and that is developed in accordance
with this article may serve as the IEP of a child with a disability who is two years old but will reach three years of age during the next
school year or who is three, four, or five years of age.
(2) Before using an IFSP as an IEP each agency shall meet the following requirements:
(A) The agency shall provide to the child’s parents a detailed explanation of the differences between an IFSP and an IEP.
(B) If the parent chooses an IFSP, the agency shall obtain written consent from the parents for use of the IFSP as the child’s IEP.
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E. DEVELOPMENT OF THE IEP
An IEP that promotes challenging expectations and ensures participation and progress in the general education
curriculum is one that focuses on local and state curricular content standards and related assessments. Thus,
statements of present levels of academic achievement and functional performance (PLAAFPs), measurable annual
goals, special education and related services, and the ongoing monitoring and evaluation of IEPs, should relate to
State and local standards. It is also important that the IEP address each of the child’s other educational needs
identified in the PLAAFP that result directly from the child’s exceptionality. For example, measurable annual goals for
instruction in Braille may be appropriate for children who are blind, even though Braille is not included in the general
education curriculum. Likewise, measurable annual goals for instruction in sign language may be appropriate for
children who are deaf, even though sign language may not be part of the general education curriculum. Annual goals
in academic content areas will be drawn from the general education curriculum. Other annual goals may be based
on standards that are appropriate to meet the child’s unique needs that result from the exceptionality and that allow
the child to participate and progress in the general curriculum. A checklist for IEP content has been developed to
assist in ensuring all necessary content has been included (See Appendix A, Figure 4-7, IEP Content Checklist).
1.
IEP Team Considerations
In order to assure that the IEP team addresses all of the special education and related service needs of the child
there are several special factors that the IEP team
must consider in the development of the IEP (K.S.A. 72-987(d)).
These considerations must be documented but there is no requirement on where they are documented. Some
districts may choose to include documentation of these considerations within the IEP while others may choose to
keep documentation separately and maintain it in the student’s file.
a.
Strengths of the Child
The IEP team should be aware of the strengths of the child, and utilize those strengths during the
development of the IEP to assist in addressing the child’s needs where possible. The strengths should be
included in the present levels of academic achievement and functional performance of the child, as
identified through the evaluation.
b.
Concerns of the Parents for enhancing the education of their child
Parents should have the opportunity to express their concerns for enhancing the education of their child
during the IEP meeting. This provides the parents an opportunity to share with the school what they see as
the most important in meeting the needs of their child. The concerns of the parents must be considered by
the IEP team but do not obligate the IEP team.
c.
Results of the Initial Evaluation or Most Recent Reevaluation
In developing each child’s IEP, the IEP team must consider the results of the initial or most recent
reevaluation of the child. This must include a review of valid evaluation data and the observed needs of the
child resulting from the evaluation process and, as appropriate, any existing data, including data from
current classroom-based, local and State assessments.
d.
The Academic, Developmental and Functional Needs of the Child
In developing each child’s IEP, the IEP team is required to consider the academic, developmental, and
functional needs of the child. A child’s performance on State or district assessments logically would be
included in the IEP team’s consideration of the child’s academic needs. In addition, as part of an initial
evaluation or reevaluation, the IEP team must review existing evaluation data, including data from current
classroom based, local, and State assessments. The consideration of State and district-wide assessment
programs is consistent with the emphasis on the importance of ensuring that children with disabilities
participate in the general curriculum and are expected to meet high achievement standards. Effective IEP
development is central to helping these children meet these high standards
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e.
Behavioral Concerns
In the case of a child whose behavior impedes the child’s learning or that of others, the IEP team must
consider the use of positive behavioral interventions and supports, and other strategies, to address the
behavior. The focus of behavioral interventions and supports in the IEP is prevention of the behavior, not
just provision for consequences subsequent to the behavior. This means that the team will need to attempt
to identify the function of the behavior, usually through a functional behavioral assessment, and develop
strategies to prevent the behavior from occurring again in the future.
The positive behavioral interventions and supports could be implemented through the IEP annual goals,
program modifications, or a behavioral intervention plan (BIP). If a behavioral intervention plan is developed
by the IEP team, it becomes part of the IEP and any changes to it would require a meeting of the IEP team
to consider the proposed changes to the plan. If the BIP is developed by a building based problem solving
team or other group of individuals other than the IEP team it does not have to be included in the IEP.
Special education laws and regulations place a strong emphasis on supports and interventions, including
positive behavior interventions and supports that are scientifically research-based. Scientifically based
research means that the interventions or supports must be accepted by a peer-reviewed journal or approved
by a panel of independent experts through a comparably rigorous, objective, and scientific review. (Federal
Register, August 14, 2006, p. 46683) These strategies are designed to foster increased participation of
children with exceptionalities in general education environments or other less restrictive environments, not
to serve as a basis for placing children with exceptionalities in more restrictive settings. No child should be
denied access to special education services and the opportunity to progress in the general education
curriculum. (See Appendix A, Figure 13-7, FBA)
f.
Limited English Proficiency
The IEP team must consider the language needs of the child who has limited English proficiency as those
needs relate to the IEP including the impact of how service provides communicate with the student and
progress is measured.
g.
Braille
(only for Children with Disabilities)
For a child who is blind or visually impaired, the IEP team must consider instruction in Braille. The use of
Braille should be provided unless the IEP team determines, after an evaluation of the child’s reading and
writing skills, needs, and appropriate reading and writing media (including an evaluation of the child’s future
needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not
appropriate for the child. If Braille is to be taught as a method of accessing printed material, it is to be
indicated in the IEP.
h.
Communication Needs
The communication needs of all students with exceptionalities must be considered on each IEP. Depending
on whether the student is Deaf/Hard of Hearing or has other exceptionalities will impact which
considerations must be made.
(i)
For Children with Exceptionalities
It is required that the IEP team considers the communication needs of each child. This consideration
must include the unique communication needs of all children in order to help them achieve their
educational goals.
(ii)
For Children who are Deaf/Hard of Hearing
(only for Children with Disabilities)
For a child who is deaf or hard of hearing, the IEP team must consider the child’s language and
communication needs, including the opportunity for direct communication with peers and professional
personnel in the child’s language and communication mode, as well as academic level, and full range of
needs including opportunities for direct instruction in the child’s language and communication mode. It
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is important that the school recognize that this consideration is not an administrative decision for only
one particular type of sign language interpreting to be available, nor is it a parental decision based on
parental choice. Instead, it is an IEP team decision based on the unique communication needs of each
child. The school must provide the communication services that each child requires.
i.
Assistive Technology
(only for Children with Disabilities)
The IEP team must determine whether an individual child needs an assistive technology (AT) device or
service, and if so, the nature and extent to be provided. It is possible that an assistive technology evaluation
will be required to determine if the child would need an assistive technology service and/or assistive
technology device. Any needs identified should be reflected in the content of the IEP, including, as
appropriate, the instructional program and services provided to the child. According to current Medicaid
reimbursement rules, if an AT device is purchased with Medicaid-funds (or from private insurance), it
belongs to the family.
j.
Extended School Year Services
(only for Children with Disabilities)
For children with disabilities, the IEP team must consider each individual child’s need for extended school
year (ESY) services during time periods when other children, both disabled and nondisabled, normally
would not be served. If ESY is determined to be necessary to enable the child to benefit from his or her
education, then the type and amount of special education services to be provided, including frequency,
location and duration, are documented in the IEP. Schools must not limit the availability of ESY services to
children in particular categories of disabilities, or limit the type, amount, or duration of these necessary
services. Kansas law does not allow ESY services for children identified as gifted.
For an eligible child who will turn 3 during the summer, the IEP team must make the determination of the
need for ESY services during that summer. (See Chapter 5 for more information on ESY.)
k.
Notification to Kansas Rehabilitation Services
(only for Students with Disabilities)
When a student turns 16, the IEP team must determine if the needs of the student warrant the school’s
notifying the district office of Kansas Rehabilitation Services (KRS) (K.S.A. 75-53, 101). If the student may
have any need for vocational rehabilitation services regardless of whether the student is headed directly to
employment or into education/training, notification to KRS may be appropriate. This is only a notification
and not a referral for services. If notification is determined not to be necessary, the IEP team must
document reasons for that decision. When making this notification, it is important for the school to
remember that the notification contains personally identifiable information regarding the student, and
parental consent to disclose confidential information is required.
l.
Physical Education Needs
(only for Children with Disabilities)
The IEP team must consider the physical education needs of the child, which may need to be adapted
physical education services. If adapted physical education is required, it should be addressed in the IEP
(K.A.R. 91-40-3(c)).
m.
Potential Harmful Effects
(only for Children with Disabilities)
The IEP team must consider the potential harmful effects of the placement of a student with a disability no
matter where on the continuum the child is placed. This consideration must include both the child and the
quality of the services the student needs (K.A.R. 91-40-21(f)).
(For more information, see Chapter 5, Special Education and Related Services and See Appendix A, Figure 4-4, IEP
Team Considerations.)
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Kansas Statute:
K.S.A. 72-987. IEP team considerations
(d) In developing each child’s IEP, the IEP team shall consider:
(1) The strengths of the child and the concerns of the parents for enhancing the education of their child;
(2) the results of the initial evaluation or most recent evaluation of the child;
(3) the academic, developmental and functional needs of the child;
(4) in the case of a child whose behavior impedes the child’s learning or that of others, the use of positive behavioral interventions and
supports and other strategies to address that behavior;
(5) in the case of a child with limited English proficiency, the language needs of the child as such needs relate to the child’s IEP;
(6) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team
determines, after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media, including an
evaluation
of the child’s future needs for instruction in Braille or the use of Braille, that instruction in Braille or the use of Braille is not appropriate
for the child;
(7) the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and
communication needs, opportunities for direct communications 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; and
(8) whether the child requires assistive technology devices and services.
K.S.A. 75-53,101. Same; compilation of background information.
(a) If the secretary provides services under this act and staff is
available, an individual with disabilities who has been receiving special education under the provisions of K.S.A. 72-961
et seq.
, and
amendments thereto, and public law 101-476 (the individuals with disabilities education act) shall receive transition planning services
upon attaining the age of 16 years. The local education authority which is responsible for the education of a person, with the consent of
the person or the person's parent or guardian, shall notify the secretary of the name and address of such person, the record of the special
education services being provided to such person and the expected date of termination of such services.
(b) Within 30 days after such notification, the secretary shall begin to prepare a case file on such person consisting of all
available information relevant to the questions of whether such person has a disability and what services may be necessary or appropriate
upon termination or graduation. The local education authority, with the consent of such person or the person's parent or guardian, shall
provide the secretary with copies of relevant current portions of the record of such person, which shall be included in such person's case
file. The secretary also shall provide an opportunity for the submission by or on behalf of such person, of information relative to such
person's training needs and all information so provided shall be included in such person's case file.
History:
L. 1992, ch. 129, § 3; July
1.
Kansas Regulations:
K.A.R. 91-40-18. IEP development and content
(a) In developing or reviewing the IEP of any exceptional child, each agency shall comply with the requirements of K.S.A. 72-987 and
amendments thereto, and, as appropriate, shall consider the results of the child's performance on any general state or districtwide
assessment programs.
(b) If, as a result of its consideration of the special factors described in K.S.A. 72-987(c) and amendments thereto, an IEP team determines that
a child needs behavioral interventions and strategies, accommodations, assistive technology devices or services, or other program
modifications for the child to receive FAPE, the IEP team shall include those items in the child’s IEP.
(c) Each agency shall ensure that the IEP of each exceptional child includes the information required by K.S.A. 72-987(b) and
amendments thereto.
(d) Each agency shall give the parent a copy of the child's IEP at no cost to the parent.
(e) At least one year before an exceptional child reaches 18 years of age, the agency providing services to the child shall ensure that the child’s
IEP includes a statement the student has been informed of rights provided in the federal law, if any, that will transfer to the child on
reaching 18 years of age.
2.
Content of the IEP
Evaluation information for a child with an exceptionality must identify each of the child's specific needs that result
from the exceptionality, provide baseline information and describe how the exceptionality affects the child’s
participation and progress in the general education curriculum. Utilizing baseline data established in the present
levels of academic achievement and functional performance (PLAAFPs), the IEP team must develop
measurable annual goals, including academic and functional goals that meet the child’s needs and enable the
child to be involved in and make progress in the general education curriculum. The special education, related
services, supplementary aids and services, program modifications, and supports for school personnel described
in the IEP must reflect the child's needs in order to ensure he or she receives educational benefit.
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a.
Present Levels of Academic Achievement and Functional Performance
Present levels of academic achievement and functional performance (PLAAFPs) are not new to IDEA 2004,
in previous laws they have been called present levels of educational performance or PLEPs. The
requirements of a present level statement is not any different, however, the name was changed slightly to
emphasize the importance of issues beyond academics only.
The IEP for each exceptional child shall include a statement of the child’s present levels of academic
achievement and functional performance, including:
1. how the child’s disability or giftedness affects the child’s involvement and progress in the general
education curriculum;
2. for preschool children, as appropriate, how the disability affects the child’s participation in appropriate
activities; and
3. for those children with disabilities who take alternate assessments aligned with alternate achievement
standards, a description of benchmarks or short-term objections (K.S.A. 72-987(c)(1)).
The PLAAFPs summarize the child’s current performance and provide the foundation upon which all other
decisions in the child’s IEP will be made. The PLAAFPs identify and prioritize the specific needs of a child
and establish a baseline from which to develop meaningful and measurable goals. For a PLAAFP to be
complete it needs to include information about:
1.
Current Academic Achievement and Functional Performance
: This is the broadest type of
information that is included in the present level statement. It helps the team to begin to sort through
information and data to determine how well the child is performing and to make note of additional
issues outside of academic and functional behavior that have a direct impact upon how well the child
performs in school. This communicates a more global understanding of the child. This might include
information such as standardized assessments, learning rate, social issues, vocational interests,
independent living skills, and other interests, strengths, and weaknesses.
2.
Impact of Exceptionality
upon ability to access and progress in the general curriculum: In addition to
describing the child’s current performance (academics and functional areas), PLAAFPs must describe
how the exceptionality affects the child’s involvement and progress in the general curriculum. The
present level statement must also include more specific information that clearly describes how the
child’s exceptionality impacts (or manifests itself) within the general education curriculum that prevents
them from appropriately accessing or progressing. By completing this statement it will make it clear to
the team what the child’s needs are and which ones are of highest priority to be addressed.
3.
Baseline:
Baseline data provides the starting point for each measurable annual goal, so there must be
one baseline data point for every measurable annual goal on the child’s IEP. Baseline data in the
PLAAFPs are derived from locally developed or adopted assessments that align with the general
education curriculum
.
Examples of baseline data include percent of correct responses, words read
correctly, number of times behavior occurs, and mean length of utterances. Other issues important in
collecting baseline data are the understanding that any goal written will have the same measurement
method as was used in collecting its baseline data. Also, when selecting baseline data it needs to be
(a) specific – to the skill/behavior that is being measured, (b) objective – so that others will be able to
measure it and get the same results, (c) measurable – it must be something that can be observed,
counted, or somehow measured, and (d) able to be collected frequently – when progress reports are
sent out the progress of the student toward the goal will have to be reported using the same
measurement method as used to collect the baseline data. Non-examples of this would be self-esteem
or social awareness without a more specific description of what it means.
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Local school districts have a variety of places to document these components. In the IEP there is no single
place these components must be documented and the law explicitly states that information included in one
part of the IEP does not have to be duplicated in another part. So when looking at local forms you may find
baseline data in the main section of the present levels or in boxes along side the measurable annual goals.
Both are acceptable and legal as long as the data they contain is correct.
For preschool children, the PLAAFPs describe how the disability affects the child's participation in
appropriate activities. The term “appropriate activities” includes activities that children of that chronological
age engage in as part of a preschool program or in informal activities. Examples of appropriate activities
include social activities, pre-reading and math activities, sharing-time, independent play, listening skills, and
birth to 6 curricular measures. Federal regulations at 34 C.F.R. 300.323(b) indicate that preschool
programs for children with disabilities should have an educational component that promotes school
readiness and incorporates pre-literacy, language, and numeracy skills. Teachers should become familiar
with the curriculum standards for kindergarten to know what is expected at that age and to give direction for
learning activities and from future early childhood standards.
For children ages 14 and older (or younger if appropriate), the PLAAFPs also describe the child’s transition
needs in the areas of education/training, employment and where appropriate independent living skills.
The IEP team should consider the following questions when writing the PLAAFPs:
•
In areas of concern, what is the child's present level of performance in relationship to district standards
and benchmarks in the general education curriculum (or to the extended standards)?
•
In areas of concern, what is the child's present level of performance in relationship to level of
performance that will be required to achieve the postsecondary goals?
•
Are there functional areas of concern related to the disability not reflected in the general education
curriculum (e.g., self-care skills, social skills, classroom survival, etc.)?
•
What is the degree of match between the skills of the child and the instructional environment?
•
What strengths of the child are relevant to address the identified concerns?
Examples of PLAAFP Statements:
Example of Current Academic Achievement and Functional Performance:
Jeremiah is a 9 year old fourth grade student with average ability, whose achievement testing
shows relative strength in reading and weakness in math. Jeremiah is reading at grade level and
has good comprehension. He likes to read and he also enjoys science activities. His most recent
CBM testing showed that he read 111 words per minute, which is at the 65 percentile on local
norms. Math CBM testing showed that he scored 9 digits correct in a two minute timing, which is at
the 17 percentile on district fourth grade norms. Mom reports that he brings home assignments
requiring reading, but he forgets his math homework.
Example of Impact of Exceptionality:
Jeremiah has difficulty paying attention during class time. His inability to stay on task and follow
directions is negatively affecting his classroom performance. When asked to begin work, he often
looks around as if he does not know what to do. Observations indicate he often looks to peers for
directions, rather than attending to the teacher. This occurs in both classes that he likes and in
those he does not like. When the teacher goes to him to provide individual help, he refuses help
and insists he understands what to do, but then he often completes the assignment incorrectly.
Jeremiah also needs to work on staying in his personal space and not invading others’ personal
space. This is exhibited when he swings a backpack or his arms around in a crowded room or
while walking down the hall. Observations of Jeremiah show this is also an issue during games in
PE class and in unstructured activities during recess, such as playing tag. He is unable to
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appropriately interact with others. He sometimes stands very close to other students, squaring up
to them, in a posture that is intimidating to younger students, and challenging to those his own age.
He has also been observed to inappropriately touch other students. These behaviors have been
especially problematic during special out-of-school activities, and Jeremiah has not been allowed
to attend the last two class field trips, because of the severity of problems on earlier field trips.
Example of Baseline Data:
Teachers estimate that Jeremiah inappropriately invades other's space at least 50% of the time
during unstructured activities. Observations using interval recording indicate that during recess he
invaded others’ space (using defined behavioral criteria) during 70% of the observation intervals.
During classroom time, he was out of his seat and inappropriately close to another student during
35% of the observation intervals. Total off-task behavior during classroom observation was 60% of
observed intervals.
Other Examples of PLAAFP Statements:
Example of Current Academic Achievement and Functional Performance:
In his general education 8
th
grade math classroom, Mike is currently turning in about half of his
assignments, and only about a third of those assignments are completed. Accuracy of his turned-
in work fluctuates markedly. Because of his poor assignment completion, Mike received a mid-
quarter failing warning letter. Mike’s completion of assignments in other curricular areas is not a
concern.
Example of Impact of Exceptionality:
Stephanie, a third grader, when given a sixth grade-level mixed math operations probe that
includes fractions, decimals, and percents, is able to correctly solve 87% of all problems presented.
This means that Stephanie is approximately 3 years ahead of her typical third grade peers in math
calculation. In areas of math other than calculation, Stephanie has mastered most of the fourth
grade but very few of the fifth grade math standards. She is not yet able to solve one-step
equations with one variable and she is not yet able to use function tables to model algebraic
relationships. She has learned to make one but not two transformations in the area of geometry.
In probability, she has not yet learned how to use fractions to represent the probability of an event.
Example of Baseline Data:
Todd, a fourth grader, currently reads 85 words per minute with 5 errors when given a first
semester, second grade-level passage. According to district norms, Todd is reading at the 5
th
percentile for fourth graders in the fall.
b.
Measurable Annual Goals
Measurable annual goals are descriptions of what a child can reasonably be expected to accomplish within
a 12-month period with the provision of special education (specially designed instruction) and related
services. When selecting areas of need to address through annual goals, the IEP team’s focus should be
on selecting goals from the most highly prioritized needs from the PLAAFPS. For curricular needs, the IEP
team should consider identifying goals from the standards and benchmarks of the local district or from the
Kansas Extended Standards. To accomplish this, it is necessary that the child's performance be measured
against the district or state standards, benchmarks, and indicators. As districts develop assessments to
measure their standards, all children need to be included.
Measurable annual goals must be related to meeting the child’s needs that result from the child’s
exceptionality, to enable the child to be involved and progress in the general or advanced curriculum. In
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addition, they must meet each of the child’s other educational needs that result from the child’s
exceptionality (K.S.A. 72-987(c)(2)). Annual goals are not required for areas of the general curriculum in
which the child’s exceptionality does not affect the ability to be involved and progress in the general
curriculum. The annual goals included in each child’s IEP should be individually selected to meet the
unique needs of the individual child. The goals should not be determined based on the category of the
child’s exceptionality or on commonly exhibited traits of children in a category of exceptionality. Additionally,
a student taking the Reading KAMM must have an IEP goal in the area of reading. A student taking the
Mathematics KAMM must have an IEP goal in the area of math (see section “e. Participation in State
Assessment and District-wide Assessment).
There is a direct relationship between the measurable annual goal, baseline data and the needs identified in
the PLAAFPs. Because the PLAAFPs are baseline data for the development of measurable annual goals,
the same criteria used in establishing the PLAAFPs must also be used in setting the annual goal.
Identified Need
from
PLAAFP
Baseline Data
from
PLAAFP
Currently reads 85 words
per minute with 5 errors
when given a first
semester, second grade-
level passage
Todd, a 4
th
grader, is
reading at the 5
th
percentile
based on district 4
th
grade
norms.
In 36 weeks, Todd will read
120 words per minute with
0 errors when given a
second semester, second
grade level passage.
Measurable Annual Goal
Four critical components of a well-written goal are:
•
Timeframe
is usually specified in the number of weeks or a certain date for completion. A year is the
maximum allowed length for the timeframe.
o
In 36 instructional weeks…
o
By November 19, 2008…
o
By the end of the 2008-2009 school year…
•
Conditions
specify the manner in which progress toward the goal is measured. Conditions are dependent
on the behavior being measured and involve the application of skills or knowledge.
o
When presented with 2nd-grade-level text…
o
Given a mixed, 4th-grade-level math calculation probe…
o
Given a story prompt and 30 minutes to write…
•
Behavior
clearly identifies the performance that is being monitored, usually reflects an action or can be
directly observed, and is measurable.
o
Sarah will read…
o
Claude will correctly solve…
o
Mary will score…
•
Criterion
identifies how much, how often, or to what standards the behavior must occur in order to
demonstrate that the goal has been reached. The goal criterion specifies the amount of growth the child is
expected to make by the end of the annual goal period.
o
96 words per minute with 5 or fewer errors.
o
85% or more correct for all problems presented.
o
4 or better when graded according to the 6-trait writing rubric.
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Well written measurable annual goals will pass the “Stranger Test.” This test involves evaluating the goal to
determine if it is written so that a teacher who does not know the child could use it to develop appropriate
instructional plans and assess the child’s progress.
The number of goals addressed in the IEP depends on the child's needs. Prerequisite skills, immediate
needs, and general applicability are all factors to consider when establishing priorities. Parents, general
education teachers, and children are also essential sources of information when setting priorities.
If the child needs accommodations or modifications in order to progress in an area of the general
curriculum, the IEP does not need to include a goal for that area; however the IEP would need to specify the
modification and accommodations. Each IEP must have at least one measurable annual goal.
c.
Benchmarks or Short-Term Objectives (disabilities only)
Benchmarks or Short-Term Objectives are only required on the IEP of a child with a disability who takes an
alternate assessment aligned to alternate achievement standards (K.S.A. 72-987(c)(1); 34 C.F.R.
320(a)(2)(ii)). This means that only children who take the Kansas Alternate Assessment (KAA) would be
required to have short-term objectives or benchmarks on their IEPs. This requirement would apply to
preschool children and children with disabilities in kindergarten through grade two only if these children are
assessed in a State or district-wide assessment program based on alternate achievement standards.
However, this requirement would not prohibit the use of benchmarks or short-term objectives to be used to
measure progress toward meeting the measurable annual goals for any child with an exceptionality (Federal
Register, August 14, 2006, p. 46663).
i.
Benchmarks (Milestones or Major Milestones)
Benchmarks are major milestones that describe content to be learned or skills to be performed in
sequential order. They establish expected performance levels that coincide with progress reporting
periods for the purpose of gauging whether a child’s progress is sufficient to achieve the annual goal. It
is important to note that the term “benchmark,” as it is used in the IEP, should not be confused with the
term “benchmark” as it is used in state and local standards. In the curricular standards, a benchmark is
a specific statement of what a child should know and be able to do. In the context of IEPs, benchmarks
measure intermediate progress toward the measurable annual goal.
Example PLAAFP Statement, Measurable Annual Goal, and Benchmarks for Student taking the
KAA (Kansas Alternate Assessment)
PLAAFP: Jennifer uses the BIGmack switch or step by step when it is presented, but she uses these
devices only with adults, and not with her peers. She requires physical prompting to use the devices at
least 90% of the time. She does not acknowledge the presence of peer communicative partners in an
observable manner.
Measurable Annual Goal 1:
Within 36 educational weeks, Jennifer will acknowledge the presence of a peer communicative partner
as evidenced by gestures, changes in body position, or vocalizations, and participate in a familiar
structured turn-taking communicative routine with physical prompting in at least one school setting.
Benchmarks:
1. In 9 instructional weeks, when joined by a peer, Jennifer will acknowledge the presence of a peer
communicative partner as evidenced by gestures, changes in body position, or vocalizations.
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2. In 18 instructional weeks, when joined by a peer, Jennifer will acknowledge the presence of a peer
communicative partner as evidenced by gestures, changes in body position, or vocalizations, and
will participate in a structured turn-taking activity with a peer when physically prompted by an adult.
3. In 27 instructional weeks, while participating in a familiar, structured turn-taking activity with a peer,
Jennifer will recognize when it is appropriate to take her turn and respond to this opportunity as
evidenced by gestures, changes in body position, vocalizations, or actions, and by activating a
voice-output device at the appropriate time with physical prompts from an adult.
ii.
Short-Term Objectives (Intermediate Steps)
Short-term objectives are measurable, intermediate steps between a child's baseline data in the present
level and the annual goal, with the conditions under which the skill is to be performed, the behavior to
be observed, and the criteria for success
.
A short-term objective follows the same pattern of the goal,
with a shorter timeframe and intermediate criteria to be attained. The goal and short-term objectives
establish how child outcomes will be measured. Diagnostic assessment will provide the information
needed to develop an instructional plan for achieving the goals and objectives.
Example PLAAFP Statement, Measurable Annual Goal, and Benchmarks for Student taking the
KAA (Kansas Alternate Assessment)
PLAAFP: Jennifer has significant difficulty with motor strength and endurance. Currently, Jennifer is
able to sit in a classroom chair while engaged in a classroom activity for only 4 minutes.
Measurable Annual Goal 3:
In 36 instructional weeks, Jennifer will sit in a classroom chair for 20 minutes while engaged in a
classroom activity.
Short-Term Objectives:
1. In 9 instructional weeks, Jennifer will sit in a classroom chair for 8 minutes while engaged in a
classroom activity.
2. In 18 instructional weeks, Jennifer will sit in a classroom chair for 12 minutes while engaged in a
classroom activity.
3. In 27 instructional weeks, Jennifer will sit in a classroom chair for 16 minutes while engaged in a
classroom activity.
d.
Measuring and Reporting Progress on Annual Goals
Once the IEP team has developed measurable annual goals for a child, the team must include a description
of how the child’s progress toward meeting the annual goals will be measured. This measure of progress
will enable parents, children, and educators to monitor progress during the year, and, if appropriate, to
revise the IEP to be consistent with the child’s instructional needs. The idea is to use progress monitoring
information in a formative way, to help with decision-making about instructional changes that may be
needed. If a measurable annual goal is written correctly with the 4 components (behavior, criteria, condition
and timeframe) the requirement of how progress toward the goal is measured is contained within the goal
and no additional information is required.
The IEP must include a description of when parents will be provided periodic reports about their child’s
progress toward meeting the annual goals. An example might be through the use of quarterly or other
periodic reports concurrent with the issuance of district report cards (K.S.A. 72-987(c)(3); 34 C.F.R.
300.320(a)(3)). The reporting may be carried out in writing or through a meeting with the parents (including
documentation of information shared at the meeting); whichever would be a more effective means of
communication. Whatever the method chosen, child progress toward the goals must be monitored in the
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method indicated on the IEP and progress reports should include a description of the child’s progress
toward his/her measurable annual goals.
e.
Participation in State Assessments and District-Wide Assessments (disabilities only)
The IEP team must make a decision about how the child with a disability will participate in State
assessments and district-wide assessments. There are three options for each content area available to
children with disabilities for the Kansas State Assessments. The IEP team is to make the decision which
assessment is appropriate for the child for each curricular area being assessed in that child’s grade level
during the upcoming IEP year. These options include the:
1. Kansas State Assessment,
2. Kansas Assessment with Modified Measures (KAMM), and
3. Kansas Alternate Assessment (KAA).
The intent is that all children will be assessed and will be part of the State and district accountability
systems. The IEP team should apply the eligibility criteria for the KAMM and KAA to help determine which
assessment is the most appropriate for the child. The eligibility criteria for each assessment are included in
the Examiners Manual for each assessment available online at
www.ksde.org. The eligibility criteria for the
KAMM and KAA are also available online at
www.kansped.org on the Assessments page, under either the
KAMM or Kansas Alternate Assessment.
If the IEP team determines that the child shall take the KAMM or KAA, the IEP must include a statement of:
a) which assessment the child will participate in,
b) why the child cannot participate in the regular assessment and
c) why the particular alternate assessment selected is appropriate for the child (K.S.A. 72-987(c)(6)).
A student taking the Reading KAMM must have an IEP goal in the area of reading. A student taking
the Mathematics KAMM must have an IEP goal in the area of math.
Any student for whom the KAMM is
the most appropriate option for participating in a Kansas assessment is highly likely to need an IEP goal to
address significantly low academic skills, since “performance that is multiple years behind grade level
expectations” is a component of the eligibility criteria for the KAMM.
Goals on any student’s IEP should be based upon a student’s present levels of academic achievement and
functional performance (PLAAFPs) and consideration of the Kansas content standards. If a student meets
the eligibility criteria for the KAMM, that student is highly likely to need a goal or goals related to the content
standards. A student taking the KAMM may also need goals not related to the content standards (e.g.,
behavior, orientation and mobility, motor skills, etc.) In both the Kansas Reading Standards and the
Kansas Mathematics Standards, the wording of the standards is the same across grade levels. It is the
benchmarks and indicators that vary according to grade level, and which reflect the specific skills
appropriate for inclusion in a measurable goal. When considering specific skills and criteria for writing
measurable goals, teams need to take into account both on-grade level skills and developmentally important
prerequisite skills.
The State has identified allowable accommodations for State assessments for both general education and
special education children. These are listed in the Accommodations Manual available at
www.ksde.org or at
www.kansped.org . The Accommodations Manual provides information on accommodations appropriate for
classroom instruction and classroom assessment and allowable accommodations for Kansas State Assessments.
Most accommodations allowed for the Kansas general assessment are for
all
students, but certain
accommodations are designated as allowed for students with IEPs or 504 Plans only.
If a student with an IEP needs a read-aloud accommodation for the Kansas Assessments, that need must
be documented on the student’s IEP. The need for the read-aloud accommodation should be determined
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for each individual content area being assessed. However, if reading passages on the Kansas State
Reading Assessment is allowed on any student’s IEP, the student will then be counted as not participating.
In order to use the read-aloud accommodation on Kansas Assessments, the student must have the read-
aloud accommodation provided in the classroom on a regular basis (i.e. as an on-going practice), for both
instructional material and assessments/tests. Local districts must provide training for human readers
providing the read-aloud accommodation.
If a student has the read-aloud or any other accommodation listed
on his/her IEP, the student must receive that accommodation on the Kansas Assessment. If a student uses
an accommodation on Kansas Assessments that is not allowed, the test will be considered invalid and the
student will count against AYP participation.
Any accommodation regularly used in instruction should be used on classroom assessments for children
with IEPs. Individual school districts may establish their own policies for allowable accommodations for
district-wide assessments. All accommodations that are necessary in order for the child to participate in
State or district-wide assessments must be documented on the IEP.
For current information regarding the Kansas State Assessments see
www.ksde.org
or www.kansped.org
.
f.
Secondary Transition (ONLY for students with disabilities)
Beginning at age 14, and updated annually, the IEP must contain (1) appropriate measurable
postsecondary goals based upon age-appropriate transition assessments related to training/education,
employment and where appropriate, independent living skills; and (2) the transition services, including
appropriate courses of study, needed to assist the child in reaching the stated postsecondary goals; and (3)
beginning at age 16, or younger, if determined appropriate by the IEP team, a statement of needed
transition services for the child, including, when appropriate, a statement of the interagency responsibilities
or any needed linkages (K.S.A. 72-987(c)(8)).
1.
Transition Assessment
The LEA must conduct age-appropriate transition assessment at a minimum in the areas of
education/training, employment, and, where appropriate, independent living. The purpose of transition
assessment is to provide information to develop and write practical, achievable measurable post-
secondary goals and assist in the identification of transition services necessary in helping the student
reach those goals. Transition assessment must be conducted prior to the student reaching age 14 and
prior to the development of the measurable post secondary goals and transition services in the students
IEP. For each postsecondary goal there must be evidence that at least one age-appropriate transition
assessment was used to provide information on the student’s needs, strengths, preferences and
interests regarding postsecondary goals. Evidence would most likely be found in the student’s file.
Those responsible gather the information needed to understand student needs, taking into account
strengths, preferences and interests through career awareness and exploration activities and a variety
of formal and informal transition assessments. These assessments should seek to answer questions
such as:
a. What does the student want to do beyond school (e.g., further education or training, employment,
military, continuing or adult education, etc.)?
b. Where and how does the student want to live (e.g., dorm, apartment, family home, group home,
supported or independent)?
c. How does the student want to take part in the community (e.g., transportation, recreation,
community activities, etc.)?
It is important to consider and understand transition assessment as having the potential of being a
reevaluation. As information is collected to identify and determine need for services, in this case
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transition services, the assessments could easily enter into the area of reevaluation requiring notice,
consent and an evaluation report. For more information about determining whether the activities of the
planned transition assessment would be considered a reevaluation see Chapter 7 on Reevaluation.
2.
Measurable Postsecondary Goals
Each IEP for a student with a disability, who will be 14 or older during the time period of the IEP, must
have measurable postsecondary goal(s) that address the areas of: training/education, employment, and
independent living when appropriate. The only goal area that is not required based on individual student
needs is independent living.
Descriptions of these categories are:
•
Training/Education – specific vocational or career field, independent living skill training, vocational
training program, apprenticeship, OJT, military, Job Corps, etc., or 4 year college or university,
technical college, 2 year college, military, etc.
•
Employment - paid (competitive, supported, sheltered), unpaid, non-employment, etc.
•
Independent living skills – adult living, daily living, independent living, financial, transportation, etc.
Measurable postsecondary goals are different from measurable annual goals in that they measure an
outcome that occurs after a student leaves high school where a measurable annual goal measures
annual progress of the student while in school. However, it is important to note that for each
postsecondary goal, there must be an annual goal included in the IEP that will help the student make
progress towards the stated postsecondary goal. When developing annual goals, the team should ask
“what postsecondary goal(s) does this annual goal support?”. Due to this difference, how measurability
is included in the goal is different. The requirements for measurable postsecondary goals are specific
to the areas of training/education, employment and independent living, where appropriate, may be
written into a single “combo” goal that addresses both training/education, employment, and
independent living, where appropriate, in a single goal or as two/three separate goals. Measurable
postsecondary goals must be stated in a way that can be measured as yes or no it was achieved; a
process such as how a student will achieve a postsecondary goal is not measurable or steps/activities
to achieve the goal are not appropriate. The statement needs to indicate what the student “will” do after
graduating or completing their secondary program rather than what the student “plans”, “hopes”,
“wishes” or “wants” to do. Some examples of measurable postsecondary goals are:
Examples of Measurable Postsecondary Goals:
Example Individual goals:
Sara’s training/education goal is to attend college to study drafting.
Sara’s employment goal is to obtain employment as a CAD operator.
Example Combo goal:
Sara’s postsecondary goal is to attend college to study drafting to obtain employment as a CAD
operator.
3.
Courses of Study
Each IEP for a student with a disability (who will be 14 or older during the time period of the IEP) must
also contain a description of the courses of study (i.e. age 14 transition services) needed to assist the
student in reaching those goals. The courses of study must focus on improving the academic and
functional achievement of the student to facilitate movement from school to post-school by describing
the courses and/or educational experiences that are related to the student’s postsecondary goals.
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If the guidance counselor keeps a transcript of required courses toward graduation, the IEP team
should review the transcript and plan to determine that the courses identified support the student’s
postsecondary goals. The guidance counselor may be involved in the IEP meeting should there be
changes to the coursework. Other school experiences need to be considered as well. Each year the
IEP team reconsiders the student’s postsecondary goals and aligns the courses of study with those
desired goals. The decisions regarding the courses of study should relate directly to where the student
is currently performing and what he or she wants to do after graduation. The connection between the
student’s postsecondary goals and the courses of study should be obvious. To address the courses of
study, the team should ask:
a. Do the transition courses of study focus on improving the academic and functional
achievement of the child to facilitate their movement from school to post-school?
b. Do the courses of study (and other educational experiences) align with the student’s
postsecondary goal(s)?
The statement of courses of study is not required to be a listing of individual courses but could be part
of the statement if appropriate for the student. The following are examples of statements of the courses
of study:
Examples of Courses of Study
Sam plans on going to college and is interested in engineering. He will participate in the general
college prep curriculum with a focus on math and sciences.
Nancy is planning on working construction when she finishes high school. To attain the skills
necessary for construction, in addition to the general education curriculum she will take additional
technical education courses in trades and industry.
The examples above are brief statements that frame the types of courses and reasons why the student
will be taking them. Other options for courses of study could be an individual listing of classes which is
fine but the listing alone does not show the direct relationship of the course of study to the student’s
postsecondary goal(s). It’s important to keep in mind the reasoning behind including courses of study
in the IEP as a way to engage and help the student to see the relevance of their secondary education.
Be certain to write it in a way that is meaningful and emphases the connections to the student.
4.
Age 16 Transition Services
Beginning at age 16, or younger, if determined appropriate by the IEP team, each IEP of a student with
a disability must also contain an additional statement of transition services for the child, including,
when appropriate, a statement of the interagency responsibilities or any needed linkages (K.S.A. 72-
987(c)(8)). This requirement is in ADDITION to the age 14 requirements. Therefore, each IEP for a
student (who will be 16 or older during the time period of the IEP) must contain:
•
measurable postsecondary goal(s) addressing training/education and employment and possibly
independent living skills
•
the age 14 transition services statement (i.e. courses of study); and
•
the age 16 transition services statement.
The age 16 transition services should be a coordinated set of activities or strategies that support the
student in achieving their desired postsecondary goals. The IEP team builds this set of activities from
information contained in the PLAAFP that describe where the student is currently performing in
relationship to his/her postsecondary goals. With that as the starting point, the team needs to determine
what skills, services, or supports the student will need in order to successfully transition from where
(s)he is now to his/her desired postsecondary goals. For each postsecondary goal, there
should be
consideration of transition services in the areas of (a) instruction, (b) related service(s), (c) community
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experience, (d) development of employment and other post-school adult living objective
,
(e) if
appropriate, acquisition of daily living skill(s), or (f) if appropriate, provision of a functional vocational
evaluation listed in association with meeting the postsecondary goal. The LEA may also include the
multi-year plan for activities and transition services in the IEP as part of the Age 16 Transition Services.
If the LEA decides to include a multi-year plan there must be a clear distinction between those
activities/services that are being provided for the current IEP year and the activities or services that are
being planned for the future.
The age 16 (and over) transition services statement must:
1. Document activities & transition services for the current IEP year and identify the responsible
agency.
2. Document who will pay for which services if an agency outside of the school has responsibility.
Examples of age 16 transition services statements:
Sam needs to improve his employment skills. He will participate 2 hours a day in the community work
placement program this year.
Georgia will need adult employment supports. By the end of first semester the school will provide
Georgia and her family with information about applying to CDDO for services.
The IEP team must determine, to the extent appropriate, any other public agency that must be invited to
the IEP meeting because they are likely to be responsible for providing or paying for transition services.
The parents, or a student who is 18 years of age, must provide consent for the school to invite any
outside agency to the IEP meeting (K.A.R. 91-40-17(g); 34 C.F.R. 300.321(b)(3)). Consent from the
parent (or adult student) is required when inviting outside agencies to ensure the protection of
confidentiality of information under FERPA (Federal Register, August 14, 2006, p. 46672). (See Figure
4-5 in Appendix A for Consent to Invite Noneducation Agency to IEP Meeting form.)
It is expected that transition services to be provided by agencies other than the school will be included
in the IEP. If an agency other than the school, fails to provide the transition service in the IEP that it
had agreed to provide, the school must reconvene the IEP team to identify alternative strategies to
meet the transition objectives for the child that are set out in the IEP (34 C.F.R. 300.324(c)(1)).
Alternative strategies might include the identification of another funding source, referral to another
agency, the public agency’s identification of other district-wide or community resources that it can use
to meet the student’s identified needs appropriately or a combination of these strategies.
The school, or any participating agency, including the State vocational rehabilitation agency, is
responsible to provide or pay for any transition service that the agency would otherwise provide to
children with disabilities who meet the eligibility criteria of that agency. This is to be done without delay.
The school may claim reimbursement from an outside agency that failed to provide or pay for the
service pursuant to an interagency agreement or other financial arrangement (34 C.F.R. 300.324(c)(2);
34 C.F.R. 300.103; 34 C.F.R. 300.154). If a participating agency, other than the school district, fails to
provide the transition services described in the IEP, the school district must reconvene the IEP team to
identify alternative strategies to meet the transition objectives for the child.
For students incarcerated in an adult correctional facility whose eligibility under IDEA will end because
they will turn 21 years old before they will be eligible to be released from prison, the requirements
relating to transition planning and transition services do not apply (K.A.R. 91-40-5(c)(2)(B); 34 C.F.R.
300.324(d)).
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g.
Age of Majority
Beginning at age 17, the IEP team must inform the student and the parents that at the age of majority under
State law (age 18 in Kansas), the rights under IDEA will transfer to the student. The school must provide
documentation in the IEP, at least one year before the student is 18, that the student has been informed of
rights provided in the federal and state law that will transfer to the student. If parents believe that their child
may not be able to make educational decisions, they may wish to find out about obtaining a limited
guardianship or some other legal means to support the student upon reaching the age of majority. It is
important for the school to provide information and resources to the student and parents early in the IEP
process to assist them in understanding the implications of the transfer of these rights under IDEA (K.S.A.
72-989; K.A.R. 91-40-18(e)).
h.
Statement of Special Education and Related Services
Each IEP for a child with an exceptionality must include a statement of:
•
the special education services
•
related services
•
supplementary aids and services (including accommodations),
based on peer-reviewed research to
the extent practicable, to be provided to the child, or on behalf of the child
•
a statement of the program modifications, and
•
supports for school personnel that will be provided for the child to:
o
advance appropriately toward attaining the annual goals;
o
be involved in and make progress in the general education curriculum, and participate in
extracurricular and other nonacademic activities; and
o
be educated and participate with other children with exceptionalities and nonexceptional
children in these activities. (K.S.A. 72-987(c)(4))
Each of these areas must be addressed on the IEP even if the way it is addressed is indicating the child
does not need the service. All services; special education and related services, supplementary aids and
services, program modifications, and supports for school personnel, as outlined in the IEP (including
transition services) must indicate the projected date for the beginning of the services and the anticipated
frequency, location, and duration of those services(K.S.A. 72-987(c)(7)). It is possible that service dates
may vary throughout the year and should be indicated as such on the IEP.
The amount of services to be provided must be stated in the IEP so that the level of the school’s
commitment of resources will be clear to parents and other IEP team members. The amount of time to be
committed to each of the various services to be provided must be (1) appropriate to the specific service, and
(2) stated in the IEP in a manner that is clear to all who are involved in both the development and
implementation of the IEP (Federal Register, August 14, 2006, p. 46667).
In determining the location for special education and related services the IEP team must consider the
continuum of educational placements necessary to implement the IEP. The school must ensure that the
parents of each child are members of any group that makes decisions on the educational placement of their
child. The placement decision must be made in conformity with the requirement of providing services in the
least restrictive environment (LRE). The educational placement is to be:
•
determined at least annually;
•
based upon the child’s IEP; and
•
located as close as possible to the child’s home, consistent with the requirements of the IEP.
(K.A.R. 91-40-1(ll))
(For more information, see Chapter 5, Special Education and Related Services.)
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i.
Least Restrictive Environment
Least restrictive environment (LRE) means the educational placement in which, to the maximum extent
appropriate, children with disabilities, including children in institutions or other care facilities, are educated
with children who are not disabled (K.A.R. 91-40-1(ll)). The IEP must contain an explanation of the extent, if
any, to which the child will
not
participate with children without disabilities in the general education class,
and in extracurricular and nonacademic activities with program modifications or supports for school
personnel (K.S.A. 72-987(c)(5)). Children with disabilities are to be removed from the general education
environment
only if the nature or severity of the disability is such that education in general education classes
with the use of supplementary aids and services or modifications cannot be achieved satisfactorily.
Although placement in the LRE is not legally required for children identified as gifted, the provision of FAPE
still requires that the IEP team make an individualized placement determination for the child. Additionally,
parents of gifted children must be part of the team making placement decisions. (For additional information
on Educational Placement and Least Restrictive Environment see Chapter 6.)
Federal Regulation:
Sec. 300.320
(c) Failure to meet transition objectives.
(1) Participating agency failure. If a participating agency, other than the public agency, fails to provide the transition services described in the
IEP in accordance with §300.320(b), the public agency must reconvene the IEP Team to identify alternative strategies to meet the transition
objectives for the child set out in the IEP.
(2) Construction. Nothing in this part relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility
to provide or pay for any transition service that the agency would otherwise provide to children with disabilities who meet the eligibility
criteria of that agency.
Kansas Statute:
K.S.A. 72-987. IEP content
(c) The IEP for each exceptional child shall include:
(1) A statement of the child’s present levels of academic achievement and functional performance, including: (A) How the child’s disability
or giftedness affects the child’s involvement and progress in the general education curriculum; (B) for preschool children, as appropriate,
how the disability affects the child’s participation in appropriate activities; and (C) for those children with disabilities who take alternate
assessments aligned to alternate achievement standards, a description of benchmarks or short-term objections;
(2) a statement of measurable annual goals, including academic and functional goals designed to: (A) Meet the child’s needs that result
from the child’s disability or giftedness, to enable the child to be involved in and make progress in the general education or advanced
curriculum; and (B) meet each of the child’s other educational needs that result from the child’s disability or giftedness;
(3) a description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports on the progress
the child is making toward meeting the annual goals will be provided, such as through the use of quarterly or other periodic reports
issued concurrently with general education report cards;
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent
practicable, and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports
for school personnel that will be provided for the child: (A) To advance appropriately toward attaining the annual goals; (B) to be
involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in extracurricular
and other nonacademic activities; and (C) to be educated and participate with other exceptional and nonexceptional children in the
activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
(6) (A) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional
performance of the child on state and districtwide assessments; and (B) if the IEP team determines that the child shall take an alternate
assessment on a particular state or district-wide assessment of student achievement or part of such an assessment, a statement of why the
child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for the child;
(7) the projected date for the beginning of the services and modifications described in provision (4), and the anticipated frequency, location,
and duration of those services and modifications;
(8) (A) beginning at age 14, and updated annually thereafter: (A) Appropriate measurable postsecondary goals based upon age-appropriate
transition assessments related to training, education, employment and where appropriate, independent living skills; and
(B) the transition services, including appropriate courses of study, needed to assist the child in reaching the stated postsecondary goals;
and
(C) beginning at age 16, or younger, if determined appropriate by the IEP team, a statement of needed transition services for the child,
including, when appropriate, a statement of the interagency responsibilities or any needed linkages; and
(9) beginning at least one year before the child reaches the age of majority under state law, a statement that the child has been informed of
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the child’s rights, if any, that will transfer to the child on reaching the age of majority as provided in K.S.A. 72-989, and amendments
thereto.
Nothing in this section shall be construed to require: (1) That additional information be included in a child’s IEP beyond that which is
specifically required by this section; and (2) that an IEP team include information under one component of a child’s IEP that is already
contained under another component of the IEP.
72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child with a
disability reaches the age of 18, except for such a person who has been determined to be incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in an adult or juvenile federal, state or local
correctional institution.
Kansas Regulations:
K.A.R. 91-40-1
(ll) "Least restrictive environment" and “LRE” mean the educational placement in which, to the maximum extent appropriate, children with
disabilities, including children in institutions or other care facilities, are educated with children who are not disabled, with this placement
meeting the requirements of K.S.A. 72-976, and amendments thereto, and the following criteria:
(1) Determined at least annually;
(2) based upon the student's individualized education program; and
(3) provided as close as possible to the child's home.
K.A.R. 91-40-18(e)
(e) At least one year before an exceptional child reaches 18 years of age, the agency providing services to the child shall ensure that the child’s
IEP includes a statement the student has been informed of rights provided in the federal law, if any, that will transfer to the child on
reaching 18 years of age.
K.A.R. 91-40-21. Educational Placement
(a) Each agency shall ensure that the children with disabilities served by the agency are educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities.
These alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals
and other institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with
regular class placement.
(c)(1) In determining the educational placement of a child with a disability, including a preschool child with a disability, each agency shall
ensure that the placement decision meets the following requirements:
(A) The decision shall be made by a group of persons, including the parent and other persons who are knowledgeable about the child,
the meaning of the evaluation data, and the placement options.
(B) The decision shall be made in conformity with the requirement of providing services in the LRE.
(2) In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by
a group
of persons, including the child’s parent and other persons who are knowledgeable about the child, the meaning of the
evaluation data,
and appropriate placement options for gifted children.
F. MEETING TO REVIEW, REVISE OR AMEND THE IEP
1. Annual Review of the IEP
The IEP is to be reviewed at least once every 12 months, to determine whether the annual goals for the child are
being achieved and to revise the IEP as appropriate. The review and revision of the IEP is to address: (a) any lack
of expected progress toward the annual goals and in the general education curriculum, where appropriate; (b) the
results of any reevaluation conducted; (c) information about the child provided by the parents; (d) the child’s
anticipated needs; or (e) other matters. The IEP team is to consider any of the special factors related to the child’s
IEP (see Section D.1. of this Chapter). (K.S.A. 72-987(f))
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2. Amend the IEP
At an annual IEP team meeting, changes to the IEP are to be made by the entire IEP team. However, between
annual IEP reviews, if the parent and school representative agree, changes can be made without an IEP team
meeting, by amending the IEP rather than by rewriting the entire IEP. School districts are encouraged to develop
and implement a policy indicating who has the authority to amend the IEP without a meeting (K.S.A. 72-987(b)(4)(A)).
In amending a child’s IEP, the parent of a child with an exceptionality and the school representative may agree not to
convene an IEP team meeting for the purpose of making those changes, and instead may develop a written
document to amend or modify the child’s current IEP. There are no restrictions on the types of changes that may be
made, so long as the parent and the school representative agree to make the changes without an IEP team meeting.
If changes are made to the child’s IEP without a meeting, the school must ensure that the child’s IEP team is
informed of those changes (K.S.A. 72-987(b)(4)(B); 34 C.F.R. 300.324(a)(4)). Upon request, the parent must be
provided with a revised copy of the IEP with the amendments incorporated. (See Figure 4-8 in Appendix A for
Agreement to Amend the IEP, also found at
www.kansped.org; Federal Register, August 14, 2006, pp. 46685-46686)
Even when using the IEP amendment process, the school must provide Prior Written Notice of any changes in the
IEP. If the changes in the IEP constitute a substantial change in placement or a material change in services, the
school must request parent consent to implement the change. [See Chapter 5 Services for further details about
substantial change in placement and material change in services]
Specific day-to-day adjustments in instructional methods and approaches that are made by either a general or
special education teacher to assist a child with an exceptionality to achieve his or her annual goals do not require
action by the child’s IEP team.
3.
Request by Parent or School Staff for IEP Meeting
Although the school is responsible for determining when it is necessary to conduct an IEP meeting, the parents of a
child with an exceptionality have the right to request an IEP meeting at any time. The child’s teacher or other school
staff may also propose an IEP meeting at any time they feel the IEP has become inappropriate for the child and
revision should be considered (K.S.A. 72-987(f)).
Kansas Statute:
K.S.A. 72-987
(b)(4) (A) After the annual IEP meeting for a school year, the parent of an exceptional child and an appropriate representative of the agency
providing services to the child may agree to develop a written document amending or modifying the child’s current IEP, without convening
an IEP meeting.
(B) If the parent and agency representative develop a written document amending or modifying a child’s current IEP, the document shall be
dated and signed by the parent and the agency representative. The parent and the agency shall be provided a copy of the document.
(f) Each agency shall ensure that the IEP team:
(1) Reviews the child’s IEP periodically, but not less than annually to determine whether the annual goals for the child are being
achieved; and
(2) revises the IEP, as appropriate, to address: (A) Any lack of expected progress toward the annual goals and in the general education
curriculum, where appropriate; (B) the results of any reevaluation conducted under this section; (C) information about the child provided
by the parents; (D) the child’s anticipated needs; or (E) other matters.
Kansas Regulations:
K.A.R. 91-40-16. IEP requirements.
(a) Each agency shall be responsible for initiating and conducting meetings to develop, review, and revise the IEP of each exceptional child
served by the agency.
(b) Except as otherwise provided in subsection (c), each agency shall ensure that the following conditions are met:
(1) An IEP is in effect before special education and related services are provided to an exceptional child.
(2) Those services to which the parent has granted written consent as specified by law are implemented not later than 10 school days after
parental consent is granted unless reasonable justification for a delay can be shown.
(3) An IEP is in effect for each exceptional child at the beginning of each school year.
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(4) The child’s IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service
provider who is responsible for its implementation.
(5) Each teacher and provider described in paragraph (4) of this subsection is informed of the following:
(A) That individual's specific responsibilities related to implementing the child’s IEP; and
(B) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
G.
TRANSFER WITHIN THE STATE AND FROM OUT-OF- STATE
When a student moves into a new school district, the school district must take reasonable steps to promptly obtain
the child’s records, including the IEP and supporting documents and any other records relating to the provision of
special education or related services to the child, from the previous school district in which the child was enrolled.
The previous school district in which the child was enrolled must take reasonable steps to promptly respond to the
request from the new school district (K.S.A. 72-987(g); 34 C.F.R. 300.323(e)(f)(g)). Since this is a transfer of
educational records from the child’s old district to the new district no consent for release of documents is required.
1.
Within State
When a child with an exceptionality transfers to a new school district in Kansas, with a current IEP in a previous
school district in Kansas, the new school district, in consultation with the parents, must provide FAPE to the child,
including services comparable to those described in the child’s IEP from the previous school district. Once the new
district receives the current IEP the new school district may adopt the child’s IEP from the previous school district or
develop and implement a new IEP. When a student moves within the State, eligibility has already been established
and a reevaluation is not required.
2.
Out-of-State
When a child with an exceptionality, who has a current IEP in another State, transfers to a school district in Kansas,
the new school district, in consultation with the parents, must provide the child with FAPE, including services
comparable to those described in the child’s IEP from the previous school district. Comparable services have the
meaning of “similar” or “equivalent” to the services that were described in the child’s IEP from the previous school, as
determined by the child’s newly designated IEP team in the new district (Federal Register, August 14, 2006, p.
46681). If there is a dispute between the parent and the school district regarding what constitutes comparable
services, the dispute could be resolved through mediation procedures or, as appropriate, the due process hearing
procedures. If the parent disagrees with the new school district about the comparability of services, stay-put would
not apply (Federal Register, August 14, 2006, p. 46682).
The new school district may adopt the current IEP or conduct an
initial evaluation to determine eligibility, and develop
and implement a new IEP. The evaluation conducted by the new school district would be to determine if the child is a
child with an exceptionality and to determine the educational needs of the child. Therefore, the evaluation would be
an initial evaluation, which would require parental consent.
Kansas Statute:
K.S.A. 72-987
(g) (1) If an exceptional child with a current IEP transfers from one Kansas school district to another during the academic year, the new school
district, in consultation with the child’s parent, shall provide the child a FAPE, including services comparable to those described in the
transferred IEP, until the new school district either adopts the transferred IEP, or develops and implements a new IEP for the child.
(2) If during the academic year, an exceptional child who has a current IEP transfers from a school district in another state to a Kansas school
district, the Kansas school district, in consultation with the child’s parent, shall provide the child a FAPE, including services comparable to
those described in the transferred IEP, until the Kansas school district either adopts the transferred IEP, or conducts an evaluation of the child,
if deemed necessary, and develops and implements a new IEP for the child
.
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H. IMPLEMENTING THE IEP
Once the IEP team has completed developing the initial IEP, Prior Written Notice, describing the proposed action
must be provided to the parents and a request made for consent to initiate special education and related services.
Services are to be initiated within 10 school days after written parent consent is granted, unless reasonable
justification for a delay can be shown. The implementation of initial services must be completed within the 60 school
day timeline of initial evaluation (K.A.R. 91-40-8(f); K.A.R. 91-40-16(b)(2)).
The school must obtain informed consent from the parent of the child before the initial provision of special education
and related services to the child. The school must make reasonable efforts to obtain informed consent from the
parent. If the parent fails to respond or refuses to consent to the initial provision of services, the school may
not use
mediation or due process procedures in order to obtain agreement or a ruling that the services may be provided to
the child.
However, in such cases, the school will
not be considered to be in violation of the requirement to make available
FAPE to the child for the failure to provide the child with the services for which the school requests consent. Under
these circumstances, the school is not required to convene an IEP team meeting or develop an IEP for the child. In
the situation where the parent fails to respond or refuses consent, this would also exclude the child from IDEA
discipline protections that are provided to students when a district suspects the child to be a child with a disability.
Once an IEP has been completed and consent for services has been obtained from the parents, the child’s IEP must
be accessible to each regular education teacher, special education teacher, related services provider, and any other
service provider who is responsible for it’s implementation. Regardless of whether an individual participates in the
IEP meeting or is excused, all individuals who are providing education to the child (regular education teacher, special
education teacher, related service provider, and any other service provider who is responsible for implementation of
the IEP) must be informed by the IEP team of (1) his or her specific responsibilities related to implementing the
child’s IEP, and (2) the specific accommodations, modifications, and supports that must be provided for the child in
accordance with the IEP (K.A.R. 91-40-16(b)(5); 34 C.F.R. 300.323(d)(2)).
Kansas Regulations:
K.A.R. 91-40-8. Evaluations
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g) of this
regulation, the agency shall complete the following activities within 60 school days of the date the agency receives written parental consent
for evaluation of a child:
(1) Conduct the evaluation of the child;
(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency shall
give notice of this meeting to the parents as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) The agency shall not be subject to the timeframe prescribed in subsection (f) of this regulation if:
(1) the parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation; or
(2) the child enrolls in a different school before the evaluation is completed and the parent and new school agree to a specific time when
the evaluation will be completed.
(h) In complying with subsection (f) of this regulation, each agency shall ensure that an IEP is developed for each exceptional child within 30
days from the date on which the child is determined to need special education and related services.
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QUESTIONS AND ANSWERS ABOUT THE IEP
1. May an IEP be written with no measurable annual goals?
No, IEPs must have at least one measurable annual goal. Measurable annual goals document the child’s
anticipated progress as the result of special education. Special education is defined in K.A.R. 91-40-1(jjj) as
“specially designed instruction to meet the unique needs of an exceptional child...” If no measurable annual
goals are necessary and no specially designed instruction is necessary, the child’s continued need for special
education and related services should be reconsidered. If only modifications, accommodations, consultation, or
services that don’t require specially designed instruction are required, the child’s needs may be able to be met
through a Section 504 plan or other means.
2. When using short-term objectives for children who take an alternate assessment
aligned to alternate achievement standards, can they be demonstrated through the
use of graphs, or by simply stating the criteria for progress reporting periods without
restating the entire goal multiple times?
No specific format for short-term objectives is prescribed by law. So long as the short-term objectives are
measurable intermediate steps that “enable a child’s teacher(s), parents, and others involved in developing and
implementing the child’s IEP to gauge, at intermediate times during the year, how well the child is progressing
toward achievement of the annual goal,” they are legally compliant.
3. May a teacher develop their own assessments, including rubrics and informal probes,
as criteria for the measurable annual goals?
Yes, so long as the assessment contains specific, objective, measurable criteria that are aligned with local
curriculum and instruction. Personal opinions and other subjective measures are not appropriate. If a teacher-
made assessment is developed to establish baseline data in the PLAAFP and the measurable annual goal, it
should be attached to the IEP so that anyone who may become involved in implementing the IEP can use it to
develop appropriate instructional plans and assess child progress as necessary.
4. What happens when the IEP team cannot reach an agreement?
The IEP team should work toward consensus. It is not appropriate for an IEP team to make IEP decisions based
upon a majority vote. If the IEP team cannot reach agreement the LEA representative at the meeting has the
ultimate authority to make a decision and then to provide the parents with appropriate notice and request
consent of the proposed action as appropriate.
5. What should the school do if the child’s only parent is in jail and will not be released
before the IEP annual review date?
If neither parent is able to attend the IEP team meeting, the school must take steps to ensure parent
participation, including individual or conference telephone calls. Depending upon the facility, it may even be
possible to hold the IEP team meeting at the jail. Incarceration of a parent does not invalidate the parent’s right
to participate in the development, review, and revision of their child’s IEP.
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6. Do IEP team members signatures on the IEP constitute consent to the contents of the
IEP?
No. IEP team members’ signatures on the IEP only indicate who was present and participated in the
development, review, and revision of the IEP. Signatures on the IEP do not constitute consent or agreement.
For this reason, no one should sign the IEP who did not attend and did not participate in the IEP team meeting.
If a member of the IEP team does not agree with a part of the IEP, she/he has the right and obligation to write a
minority report and have it attached to the IEP.
7. May parents refuse consent for their child with a disability to participate in State and
district-wide assessments, regardless of any decisions the IEP team may have made
regarding the child’s participation?
Yes, but school officials should encourage the parents to include their child in the State assessments. Any
parent may request that their child be exempt from the State assessments. Not allowing parents of children with
disabilities to exempt their children would be discrimination based on handicapping condition.
8. Must students incarcerated in adult prisons take State and district-wide
assessments?
No. According to 34 C.F.R. 300.324(d) and K.A.R. 91-40-5(c)(2), requirements relating to students with
disabilities taking State and district-wide assessments do not apply to students incarcerated in adult prisons.
Students in local or state juvenile correctional facilities are not exempted from taking State and district-wide
assessments.
9. If a child has many general education teachers or special education teachers and
related services personnel, which one must be a member of the IEP team?
Not less than one general education teacher of the child and not less than one special education teacher or
related services personnel who is or will be working with the child, must attend the IEP meeting. The school may
designate which teacher or teachers will serve as IEP team member(s), taking into account the best interests of
the child. The general education teacher who serves as a member of the child’s IEP team should be one who is,
or may be, responsible for implementing a portion of the IEP. More than one teacher may attend as appropriate.
10. May parents sign a waiver stating that they do not wish to receive additional copies of
the Parent Rights Notice this year?
No waiver of the right to receive the Parent Rights Notice is permissible under the law or regulations. It is
permissible for the school to send the notice through electronic mail communication if the parent agrees to it and
the school makes that option available (34 C.F.R. 300.505). It is permissible for the parents to refuse the Parent
Rights Notice after the school has offered it, or to return the document to the school. The school must document
that they provided the notice at the required times.
The Parent Rights Notice must be given to parents, at a minimum:
(1) Only one time in a school year; and
(2) Upon initial referral or parent request for evaluation;
(3) Upon receipt of the first formal complaint to the State in a school year;
(4) Upon receipt of the first due process complaint in a school year;
(5) Upon initiation of a disciplinary change of placement; and
(6) Upon parent request.
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11. What should the IEP team do if a child moves to the district with no records or IEP, or
an unusable IEP?
The IEP team may need to develop an interim IEP for a shorter than normal period of time to allow time to locate
the child’s records or conduct the assessments necessary to develop a new IEP. The provision of the special
education and related services the child needs in order to receive FAPE and progress in the general curriculum
should not be withheld pending the receipt of records when the school knows the child has been identified as a
child with an exceptionality and has an IEP.
12. Is it necessary to have the parent's signature to document that the parent received
the 10-day written Notice of IEP team meetings?
No, the parent's signature is not required. Keeping a copy of the Notice to the parent that indicates that date it
was sent is adequate documentation. It is also helpful to document on the 10-day notice any other parent
contacts that may have occurred before the date the notice was sent. For example, "As we discussed during our
telephone conversation on September 3, your child's IEP meeting has been scheduled for Friday, September 16,
2008, at 3:00 p.m. in room 204 of Southeast Elementary School."
13. If the IEP team does not have adequate information at the time of the IEP team
meeting to determine what Extended School Year (ESY) services will be necessary for
the child during the summer, what should be written on the IEP?
One of the responsibilities of the IEP team is to consider whether or not ESY services are necessary for each
child with a disability. If the IEP team decides that ESY is necessary for the child, they must then determine
what those services will be and include them in the IEP.
If the IEP meeting is held in the fall of the school year or if the child is new to the school, the IEP team may not
have enough data to determine if the child needs ESY services or what those services should be. In this case,
the team should include in the IEP a statement that ESY services were considered and that there was
inadequate information at the time of the meeting to make an appropriate decision. The team should also
include in this statement a date later in the school year when more information will be available to reconvene and
determine if ESY services are needed and amend the IEP as necessary (34 C.F.R. 300.309).
14. If a child turns 21 during the school year, must ESY services be provided the summer
after the student's final year of school?
Children continue to be eligible for all necessary special education and related services including ESY until they
appropriately exit special education. A student with a disability may be eligible for special education and related
services through the school year (ending June 30) in which they turn 21. Thus, it is an IEP team decision
whether ESY is necessary for the student until June 30 after their 21
st
birthday. Some factors in the IEP team's
decision may include whether or not the June 30 deadline will give the child time to complete ESY services and
whether or not the child will benefit from ESY services.
15. After the child is age 14 or older, is the school required to provide the child with
his/her own separate 10-day IEP meeting notice?
No, the school is not required to send the child his/her own separate Notice. However, children ages 14 to 17
must be invited with documentation of their participation in the IEP meeting or input into the IEP. After the age of
majority (18 in Kansas), the public agency MUST provide any Notice to BOTH the adult student and the parents.
The parents are only notified of the meeting. To attend the meeting, they will have to be invited by their child or
the public agency.
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16. What happens if the parent does not show up for the IEP meeting?
The school may conduct an IEP meeting without the parents if the school has made repeated attempts (at least
2 contacts by two different methods), but has been unable to secure the parents participation.
If a parent has received notice of the IEP team meeting at least 10 calendar days prior to the meeting which
includes the meeting date, time and location, and agrees to participate, but does not come to the meeting, the
school must contact the parent to reschedule the IEP team meeting and conduct a complete IEP team meeting
with all members in attendance. If necessary, other means of parent participation may be used, such as
conference calls. Detailed records are to be maintained of attempts to contact the parents.
17. Can the IEP team develop a draft IEP prior to the IEP team meeting?
Yes, a draft IEP may be developed before any IEP meeting. However, in order to ensure parent participation in
the development of the IEP, the IEP may not be completed before the IEP team meeting. Members of the IEP
team may come with evaluation findings and recommended IEP components, but should make it clear to the
parents that these are only suggestions and that the parents' input is required in making any final
recommendations. If school personnel bring drafts of some or all of the IEP content to the IEP meeting, there
must be a full discussion with the IEP team, including the parents, before the child’s IEP is finalized, regarding
content, the child’s needs and the services to be provided to meet those needs. Parents have the right to bring
questions, concerns, and recommendations to an IEP meeting for discussion (Federal Register, August 14,
2006, p. 46678).
18. What if the child does not want the parent to attend the IEP meeting? Is it mandatory
to send the notice to both?
For children under the age of 18, the parent is a required member of the IEP team and must attend the IEP team
meeting. The notice is to be sent to the parent and if the child is invited to the IEP team meeting, the notice may
be sent/given to the child, or the child may be invited verbally. Once the child turns age 18, the school is
required to send the Notice to both the parent and the adult student. However, the parent has
no right to attend
the meeting unless invited by the student or the school as a person with knowledge or expertise about the
student.
19. What should the remaining IEP team members do if any required member of the IEP
team who is invited to attend, and is not excused, does not show up for the meeting?
If a required member, whose area of the curriculum or related services is being discussed or modified, has not
been excused from the IEP team meeting, by consent of the parent and the school, and has not provided input
into the development of the IEP in writing prior to the meeting, the school shall reschedule the meeting for a time
when all required members can be present or can be officially excused, and, if necessary, provide written input
into the meeting. To conduct an IEP meeting without all of the required IEP team members present or having
the appropriate excusals is not legally compliant.
20. May occupational therapy or physical therapy stand alone on the IEP as a special
education service?
Yes, if the child initially qualified for special education and related services under the category of physical
impairment or other health impaired. The IEP team must determine the special education and related services
needed by the child. If the child does not need specially designed academic instruction, but does need
occupational therapy or physical therapy in order to access or progress in the general curriculum or to be
educated in the LRE, these services would be listed in the IEP and addressed in the annual goals.
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21. If someone is listed on the Notice of IEP Meeting do they have to come?
No, listing a persons name on the Notice of IEP meeting just documents they were invited and does not obligate
their attendance unless they are one of the required IEP team members. The IEP may list the role of a team
member, such as, general education teacher or speech therapist.
22. Can IEP meetings be recorded with audio or video recorders?
There is no Federal or State statute or regulation that either authorizes or prohibits the recording of an IEP
meeting by either a parent or a school official. The local agency has the option to require, prohibit, or regulate
the use of recording devices at IEP meetings. If there is a local a policy that prohibits or limits the use of
recording devices at IEP meetings, that policy must provide for exceptions if they are necessary to ensure that
the parent understands the IEP or the IEP process or to ensure parental rights guaranteed under Part B. If a
policy is adopted by a local agency it should also ensure that it is uniformly applied. Additionally, any recording
of an IEP meeting maintained by the school is an “educational record” within the meaning of the Family
Educational Rights and Privacy Act (“FERPA”; 20 U.S.C. 1232g), and is subject to the confidentiality
requirements of both FERPA and IDEA (Federal Register, march 12, 1999, p. 12477).
23. Who is the general education teacher invited to the IEP meeting of a 3-year old that is
in a home setting?
The child who is receiving special education services in a home-based setting would not have a general
education teacher unless the early childhood special education teacher is also licensed as an early childhood
teacher. Therefore, a general education teacher would not be required to attend the IEP meeting unless it is
anticipated that the special education services will provided in a general education setting during the next IEP
year. In that case, the school would designate a teacher qualified to teach a child of that age.
24. Can a required IEP team member be excused from more than one IEP meeting at a
time?
No, the excusal to attend an IEP meeting is specific to each individual meeting.
25. Can a district choose to not allow the excusal of required IEP team members?
Yes, a district may choose to implement a policy that would not allow any of the required IEP team members
from being excused.
26. Do the Notice of the IEP team meeting, evaluation reports and progress reports have
to be translated into the parent’s native language?
The only legal requirement for providing documents in the parents native language of the parent or other mode
of communication used by the parent is for Prior Written Notice (34 C.F.R. 300.503(c)).
27. What is a consultation only IEP?
All IEPs must address all of the same legal requirements. If a student does not need specially designed
instruction the IEP team should consider conducting a reevaluation to determine whether the child is still eligible
for special education services. However, a child may receive specially designed instruction in a regular
education classroom through the consultation of the special education teacher with the regular education
teacher. There should be a goal addressing the child’s needs on the IEP.
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28. Can an attorney come to an IEP meeting on behalf of the parent or school?
Yes, an attorney may attend an IEP meeting if the parents or school officials believe an attorney is needed.
However, the presence of an attorney is strongly discouraged as it often sets an adversarial tone for the
meeting. If the attorney is coming at the invitation of the school they must be included on the notice of meeting
provided to the parents. Parents are encouraged, but are not required, to inform the school of any additional
persons they are bringing regardless who they are.
29. If a child was found eligible for special education under emotional disturbance must
they have a behavioral goal or may they have only an academic goal?
Measurable annual goals should never be dependent upon the child’s label; they should always be related to the
individual child’s needs. Therefore, some ED students will need behavioral goals, but others may not. The issue
with many children with ED is that their behavior has interfered with their learning for so long, that even when
their behavior comes under better control, they frequently continue to have academic deficits. The PLAAFP
should clearly describe how the child’s exceptionality impacts their ability to access and progress in the general
education curriculum. Based upon the information the IEP Team has they will need to prioritize needs and
identify the goals, accommodations, behavior plans or other services needed to address the impact of the
exceptionality. Depending upon the results of the assessment the child may have need for a behavioral goal
and/or and academic goal. Either would be appropriate. For children whose behavior has improved, celebrate
the achievement, and continue to address the issues around how their disability impacts their ability to access
and progress in the general curriculum.
30. Can a teacher or a principal keep a child from attending special education services in
an IEP because they have not completed their general education assignments or do
not have passing grades?
Each teacher (and administrator) working with the child should be informed about the services on the child’s IEP.
They are legally responsible to ensure that the child receives the services. If they feel that the IEP is not
adequate for the child to participate and make progress in the general education curriculum they can ask for an
IEP meeting to see if the IEP should be revised.
32. Do IEP goals for students taking the KAMM need to include benchmarks or short-term objectives?
There are no state requirements that IEP goals for students taking the KAMM include benchmarks or short-term
objectives. Benchmarks or short-term objectives are required only for students taking the Kansas Alternate
Assessment. However, some local districts and cooperatives do have additional requirements, so check with
your local special education administrator.
33. Do students with severe emotional disturbance (SED) labels, who have goals on their IEPs which are
focused on behavior, need to have content area goals if they are participating in the KAMM?
For any category of disability, if behavior is a significant issue for a student, then a behavioral goal on the IEP is
likely to be appropriate. However, if behavior has interfered with a student’s learning to such an extent that the
student’s academic skill level indicates the need to participate in a KAMM assessment, then the student should
also have a goal which addresses the area of academic needs.
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CHAPTER 5
SPECIAL EDUCATION AND RELATED SERVICES
INTRODUCTION
One of the most important considerations for IEP teams is the special education, related services, and supplementary
aids and services to be provided to the child or on behalf of the child. The IEP team must also consider the program
modifications or supports for school personnel that will be provided on behalf of the child. All services and supports are
provided to enable the child: (1) To advance appropriately toward attaining the annual goals; (2) to be involved in and
make progress in the general education curriculum, or appropriate activities for children ages 3-5; (3) to participate in
extracurricular and other nonacademic activities; and (4) to be educated and participate with their nondisabled peers to
the maximum extent appropriate, in all of these activities. (See Chapter 4, the Individualized Education Program.)
Federal law emphasizes having high expectations for each child and enabling each child to participate and progress
in the general education curriculum. Given those foundations, resulting educational placement decisions must be
based upon providing services within the least restrictive environment. (See also Chapter 6, Educational Placement
and Least Restrictive Environment.) The IEP team must consider special education and related services required to
meet the individual needs of children with exceptionalities (including those who are gifted).
This chapter addresses these services and is organized according to the following headings:
A.
Special Education Services
B.
Related Services
C.
Supplementary Aids and Services
D.
Program Modifications and Supports for School Personnel
E.
Incidental Benefit
F.
Extended School Year/Day Services
G.
Frequency, Location and Duration of Services
H.
Home Schooling
I.
Services In Local Detention Facilities, Juvenile Justice Authority and Department of Corrections Facilities
J.
Facilities
K.
Qualified Special Education Personnel
A. SPECIAL EDUCATION SERVICES
1.
Local Authority
Each school district is responsible for ensuring that all children with exceptionalities receive the special education,
related services, and supplementary aids and services that are specified in their IEP. State law gives local agencies
the authority to provide services in numerous ways:
•
In the schools;
•
In the home, hospital, or other facilities;
•
Through a contract with another district;
•
Through a cooperative agreement with other districts; or
•
Through a contract with a public or private institution.
(K.S.A. 72-966 and 72-967)
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Regardless of the method used for service delivery, providers must meet the standards and criteria set by the
Kansas State Board of Education.
Additionally, when a child with an exceptionality is admitted to a hospital, treatment center, or other health care
institution or facility, a group boarding home or other care facility, upon a referral by a person licensed to practice
medicine and surgery, and the institution or facility is located outside the school district in which the child resides, the
district of residence remains responsible for the provision of FAPE for the child. Special education and related
services required may be provided pursuant to a contract entered into between the school district of which the child is
a resident and the school district in which the child is housed. If a contract is not entered into between the two school
districts, the child shall be deemed to be a pupil of the school district which is providing special education and related
services to the child (K.S.A. 72-966(b)).
State Statute:
K.S.A. 72-966
. Duties of boards of education in meeting requirements of law; responsibilities of state board of education and other state
agencies; interagency agreements; dispute resolution. (a) (1) Each board shall adopt and implement procedures to assure that all exceptional
children residing in the school district, including homeless children, foster care children and children enrolled in private schools, who are in
need of special education and related services, are identified, located and evaluated.
(2) Each board shall provide a free appropriate public education for exceptional children enrolled in the school district and for children
with disabilities who are placed in a private school or facility by the school district as the means of carrying out the board’s obligation to
provide a free appropriate public education under this act and for children with disabilities who have been suspended for an extended term or
expelled from school.
(3) Each board shall provide exceptional children who are enrolled by their parents in private schools with special education and related
services in accordance with state law and federal law.
(b) If an exceptional child, upon referral by a person licensed to practice medicine and surgery, is admitted to a hospital, treatment center,
or other health care institution, or to a group boarding home or other care facility, and the institution or facility is located outside the school
district in which the child resides, the district in which the institution or facility is located may contract with the district in which a parent of
the child resides to provide special education or related services, if such services are necessary for the child. Special education and related
services required by this subsection may be provided pursuant to a contract entered into between the board of the school district of which the
child is a resident and the board of the school district in which the child is housed. Any such contract shall be subject to the provisions of
subsections (a)(3)and (c) of K.S.A. 72-967, and amendments thereto. If a contract is not entered into between the school districts, the child
shall be deemed to be a pupil of the school district which is providing special education and related services to the child. Nothing in this
subsection shall be construed to limit or supersede or in any manner affect or diminish the requirements of compliance by each school district
with the provisions of subsection(a), but shall operate as a comity of school districts in assuring the provision of special education services for
each exceptional child in the state.
(c) (1) Special education and related services required by this section shall meet standards and criteria set by the state board.
K.S.A. 72-967
(a) Each board, in order to comply with the requirements of this act, shall have the authority to:
(1) Provide appropriate special education and related services for exceptional children within its schools.
(2) Provide for appropriate special education and related services in the home, in a hospital or in other facilities.
(3) Contract with another school district for special education and related services. Any such contract may provide for the payment of
tuition and other costs by the school district in which the child is enrolled.
(4) Enter into cooperative agreements with one or more other school districts for special education and related services.
(5) Contract with any private nonprofit corporation or any public or private institution, within or outside the state, which has proper
special
education or related services for exceptional children. Whenever an exceptional child is educated by a private nonprofit corporation or a
public or private institution as provided under this paragraph, such child shall be considered a pupil of the school district contracting for
such education to the same extent as other pupils of such school district for the purpose of determining entitlements and participation in
all state, federal and other financial assistance or payments to such school district.
(6) Furnish transportation for exceptional children, whether such children are residents or nonresidents of such school district, for the
provision of special education or related services. In lieu of paying for transportation, the board of the school district in which an
exceptional child resides may pay all or part of the cost of room and board for such exceptional child at the place where the special
education or related services are provided.
(b) Special education and related services which are provided for exceptional children shall meet standards and criteria set by the state board
and shall be subject to approval by the state board.
(c) Any contract entered into by a board under the provisions of this section shall be subject to change or termination by the legislature.
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2.
Provision of Special Education Services
Children with exceptionalities are entitled to receive special education and related services. This term means
specially designed instruction to meet the unique needs of a child with an exceptionality, and includes physical
education, travel training, and vocational education. Special education and related services must be provided at no
cost to the parents.
All special education services, related services, and supplementary aids and services are to be based on peer-
reviewed research, to the extent practicable (K.S.A. 72-987(c)(4)). Peer-reviewed research is research that is
reviewed by qualified and independent reviewers to ensure that the quality of the information meets the standards of
the field before the research is published. It may be important to note that OSEP comments state that special
education services that are based on “peer-reviewed research” are to be provided to the extent that it is possible,
given the availability of the research. If no such research exists, the service may still be provided if the IEP team
determines that such services are appropriate. Further, OSEP states that failure to base services on peer reviewed
research is not necessarily a violation of FAPE, because the IEP team determines what services the child will receive
based on the child’s individual needs. The IEP is not required to include specific instructional methodologies unless
the IEP team determines that it is necessary for a child to receive FAPE (Federal Register, August 14, 2006, pp.
46664, 46665).
Each IEP team makes decisions about the special education instruction and related services, as well as supplementary
aids and services to be provided to the child, or on behalf of the child, so that the child will advance appropriately toward
meeting his/her annual goals, advance in the general curriculum and be educated with his/her peers.
The IEP must also include any services needed to support school personnel. For example, if the general education
teacher needs instruction to learn how to use an assistive technology device that the child will use in the classroom,
or if the general education teacher may need training in order to carry out a behavior intervention plan in the
classroom, or the teacher is being sent to receiving training to work with a child with autism, these services would be
included in the IEP for the child.
The decision about what services, the amount of services, and the setting of services necessary to meet the unique
needs of an exceptional child is based on a variety of factors. The IEP team must identify the child's present levels of
academic achievement and functional performance (PLAAFPs) and determine the annual goals and, if appropriate,
benchmarks/short-term objectives. Once the PLAAFPs and goals are established, the IEP team decides what
services are to be provided. The IEP team decides the specific services and the amount of services that will be
needed for the child to make the necessary progress to achieve the measurable annual goals. After the IEP team
determines which services and the amount of services are necessary the team next needs to decide where those
services will be provided, and the amount of time the child will spend in general education settings, special
educational settings, or in a combination of settings. All special education and related services must be individually
determined in light of each child’s unique abilities and needs to meet the annual goals in the IEP and make progress
in the general education curriculum.
3.
Paraeducator
Paraeducators (para’s) must work under the supervision of licensed teachers and must meet the personnel
standards determined by the State, found in the "Special Education Reimbursement Guide: State Categorical and
Transportation Aid" ,which is on the KSDE home page at
www.kansped.org under Resources/Technical Assistance
Guidance Documents. Para’s are not to be documented separately from their supervising teachers on the IEP.
Para’s are included in and reported as part of the supervising teacher’s special education service time.
Paraeducators working under the supervision of licensed speech-language pathologists, occupational therapists, and
physical therapists must meet additional requirements for training and supervision. Each professional's licensing
body maintains strict standards for assistants, which if not followed result in the loss of the professional's license.
The Kansas Department of Health and Environment, Health Occupations Credentialing Section, may be contacted
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for current State regulations for speech language pathologists (785-296-0061). State regulations for occupational
therapists and physical therapists may be obtained from the Kansas State Board of Healing Arts (785-296-7413).
3.
Related Services As Special Education Services
The IEP team may determine that the only special education service needed for a child with a disability is a related
service, if it consists of specially designed instruction to meet the unique needs of the child. State regulations identify
the following related services as special education services:
"(2) Paraeducator services, speech/language pathology services, and any other related services, if it
consists of specially designed instruction to meet the unique needs of a child with a disability; (3)
occupational or physical therapy and interpreter services for deaf children if, without any of these services,
a child would have to be educated in a more restrictive environment" (K.A.R. 91-40-1(kkk)(2)(3))
4.
Special Education for Children Identified as Gifted
Each child identified as gifted shall be permitted to test out of, or work at an individual rate, and receive credit for
required or prerequisite courses, or both, at all grade levels, if so specified in that child’s IEP. Each gifted child may
receive credit for college study at the college or high school level, or both. If a gifted child chooses to receive college
credit, however, the student shall be responsible for the college tuition costs (K.A.R. 91-40-3(g)(h)).
State Statute:
K.S.A. 72-987(c)
(c) The IEP for each exceptional child shall include:
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent
practicable, and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or
supports for school personnel that will be provided for the child:
(A) To advance appropriately toward attaining the annual goals;
(B) to be involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and
(C) to be educated and participate with other exceptional and nonexceptional children in the activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
(6) (A) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional
performance of the child on state and districtwide assessments; and (B) if the IEP team determines that the child shall take an
alternate assessment on a particular state or district-wide assessment of student achievement or part of such a assessment, a statement
of why the child cannot participate in the regular assessment and why the particular alternate assessment selected is appropriate for
the child;
(7) the projected date for the beginning of the services and modifications described in provision (4), and the anticipated frequency,
location, and duration of those services and modifications;
State Regulation:
K.A.R. 91-40-1(kkk)
"Special education" (1) means specially designed instruction, at no cost to the parents, to meet the unique needs of an exceptional child,
including:
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education; and
(2) shall include:
(A) paraeducator services, speech-language pathology services and any other related service, if it consists of specially designed
instruction to meet the unique needs of a child with a disability;
(B) occupational or physical therapy and interpreter services for deaf children, if without any of these services, a child would
have to be educated in a more restrictive environment;
(C) travel training; and
(D) vocational education.
K.A.R. 91-40-1(lll)
"Specially designed instruction" means adapting, as appropriate to the needs of each exceptional child, the content, methodology or delivery
of instruction for the following purposes:
(1) To address the unique needs of the child that result from the child's exceptionality; and
(2) to ensure access of any child with a disability to the general curriculum, so that the child can meet the educational standards within
the jurisdiction of the agency that apply to all children.
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K.A.R. 91-40-3(g)(h)
(g) Each gifted child shall be permitted to test out of, or work at an individual rate, and receive credit for required or prerequisite
courses, or both, at all grade levels, if so specified in that child’s individualized education program.
(h) Any gifted child may receive credit for college study at the college or high school level, or both. If a gifted child chooses to receive
college credit, however, the student shall be responsible for the college tuition costs.
B. RELATED SERVICES
Related services are developmental, corrective, and supportive services required to assist a child, who has been
identified as a child with an exceptionality, to benefit from special education services. Generally, when needed,
related services are provided in addition to special education instruction. Once the child has been identified as a
child with an exceptionality the child need not meet the eligibility criteria for another area of exceptionality in order to
receive related services. The IEP team determines what additional services are necessary for the child to benefit
from the special education services. The IEP team must consider each child's goals and the services or supports
needed to assist the child to achieve them.
Related services are available for exceptional children; however, not all related services are available to children
identified as gifted. To distinguish which related services are or are not available to children identified as gifted refer
to the definitions of a particular related services in K.A.R. 91-40-1.
K.A.R. 91-40-1(ccc) includes the following as related services, which is not an all-inclusive list. Where additional
definitions appear in State regulations, citations are provided with the term.
1. Art therapy
2. Assistive technology devices and services, K.A.R. 91-40-1(c)(d)
3. Audiology, K.A.R. 91-40-1(e)
4. Counseling services, K.A.R. 91-40-1(m)
5. Dance movement therapy
6. Early identification and assessment of disabilities, K.A.R. 91-40-1(t)
7. interpreting services, K.A.R. 91-40-1(kk)
8. Medical services for diagnostic or evaluation purposes, K.A.R. 91-40-1(nn)
9. Music therapy
10. Occupational therapy, K.A.R. 91-40-1(rr)
11. Orientation and mobility services, K.A.R. 91-40-1(ss)
12. Parent counseling and training, K.A.R. 91-40-1(ww)
13. Physical therapy, K.A.R. 91-40-1(yy)
14. Recreation, including therapeutic recreation, K.A.R. 91-40-1(aaa)
15. Rehabilitation counseling services, K.A.R. 91-40-1(bbb)
16. School health services, K.A.R. 91-40-1(fff)
17. School nurse services, K.A.R. 91-40-1(ggg)
18. School psychological services, K.A.R. 91-40-1(hhh)
19. School social work services, K.A.R. 91-40-1(iii)
20. Speech and language, K.A.R. 91-40-1(nnn)
21. Transportation, K.A.R. 91-40-1(vvv)
22. Other developmental, corrective or supportive services
State Regulations:
K.A.R. 91-40-1(ccc)
(ccc) "Related services" means developmental, corrective, and supportive services that are required to assist an exceptional child
to benefit from special education.
(1) Related services shall include the following:
(A) Art therapy;
(B) assistive technology devices and services;
(C) audiology;
(D) counseling services;
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(E) dance movement therapy;
(F) early identification and assessment of disabilities;
(G) interpreting services;
(H) medical services for diagnostic or evaluation purposes;
(I) music therapy;
(J) occupational therapy;
(K) orientation and mobility services;
(L) parent counseling and training;
(M) physical therapy;
(N) recreation, including therapeutic recreation;
(O) rehabilitation counseling services;
(P) school health services;
(Q) school nurse services;
(R) school psychological services;
(S) school social work services;
(T) special education administration and supervision;
(U) special music education;
(V) speech and language services;
(W) transportation; and
(X) other developmental, corrective, or supportive services.
(2) Related services shall not include the provision of any medical device that is surgically implanted, including a cochlear implant,
the optimization of the device's functioning, including mapping and maintenance of the device, and replacement of the device.
K.A.R. 91-40-1(kkk) (2)(3) “Special education” means the following:
(2) paraeducator services, speech-language pathology services, and any other related service, if the service consists of specially designed
instruction to meet the unique needs of a child with a disability;
(3) occupational or physical therapy and interpreter services for deaf children if, without any of these services, a child would have to be
educated in a more restrictive environment;
1.
Surgically Implanted Devices
Related services do not include a medical device that is surgically implanted, including cochlear implants. They also
do not include the optimization of that device’s functioning (e.g., mapping), maintenance, or the replacement of that
device. However, the child with a surgically implanted device may receive any of the related services that the IEP
team determines is necessary for the child to receive FAPE (K.A.R. 91-40-1(ccc)(2)).
The school must appropriately monitor and maintain medical devices that are needed to maintain the health and
safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to
and from school or is at school. The school must also routinely check external components of a surgically implanted
device to make sure it is functioning properly. (K.A.R. 91-40-3(f)(2); 34 C.F.R. 300.34(b); 34 C.F.R. 300.113(b)(c))
2.
Medical Services and School Health Services
There is an important distinction between "medical services" and "school health services." According to regulation
K.A.R. 91-40-1(nn) (34 C.F.R. 300. 34(c)(5)), medical services are defined as "services provided by a licensed
physician to determine a child's medically related disability that results in the child's need for special education and
related services." Schools are required to provide medical services only for diagnostic or evaluation purposes (34
C.F.R. 300.34(a)).
On the other hand, school health services are to be specified on the IEP of a child with a disability and are provided
by a school nurse or other qualified person (K.A.R. 91-40-1(fff). School nurse services are services provided by a
qualified school nurse (K.A.R. 91-40-1(ggg)). School health services and school nurse services are related services,
which must be provided whenever needed to assist a child with a disability to benefit from special education (K.A.R.
91-40-1(ccc); 34 C.F.R. 300.34(a)).
The United States Supreme Court has clarified the distinction between medical services and health services.
According to the Supreme Court, medical services are services that must be performed by a physician. It is only
those services that require the skills of a physician, therefore, that are limited to diagnostic or evaluation purposes.
Health services that may be performed by persons who are not physicians (nurses or other qualified persons) are
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related services which must be provided by the school when needed to assist a child with a disability to benefit from
special education. In so holding, the Court stated that Clean Intermittent Catheterization, a procedure involving the
insertion of a catheter into the urethra to drain the bladder, was a related service the school must provide to a student
who needs it to benefit from special education (
Irving Independent School Dist. V. Tatro, 468 U.S. 883 (1984)
).
The US Supreme Court reviewed the
Tatro
decision in 1999. See
Cedar Rapids Community Sch. Dist. V. Garret F.,
Sp. Ct. No. 96-1793 (1999)
. In
Garret F.,
the Supreme Court reaffirmed its decision in
Tatro
. The
Garret F.
Court
stated Clean Intermittent Catheterization, continuous one-on-one nursing services, and operation of a ventilator for
life support were not medical services because they did not "demand the training, knowledge, and judgment of a
licensed physician." The Court found these services to be related services, and that the school was required to
provide these services to Garret because he needed such services in order to benefit from his special education
services.
In summary, medical services may be a related service only when it involves a procedure requiring the training,
knowledge, and judgment of a licensed physician. Even then it is limited to diagnostic or evaluation purposes.
Federal regulations and US Supreme Court cases indicate any health-related procedure that does not require the
services of a physician is a related service (school health service), which must be provided by the school when
needed to assist a child with a disability to benefit from special education.
The Kansas Nurse Practice Act addresses the need for appropriate supervision and training for personnel providing
services such as medication administration. Some procedures may not be delegated to personnel other than a nurse
under
any
circumstances. For additional information, please consult the Guidelines for Serving Students with
Special Health Care Needs, July 1996. This document is available through the Kansas Department of Health and
Environment School Nurse Consultant (785-296-7433 or 800-332-6262) or on the KDHE home page:
www.kdhe.state.ks.us .
IDEA 2004 has clarified that parents cannot be required to obtain a prescription for medication for a child as a
condition of attending school, receiving an evaluation or receiving special education and related services (K.S.A. 72-
966(e); 34 C.F.R. 300.174)a)).
Supreme Court Decision
:
When a school district refused to provide certain services to a medically fragile student, the parent requested a due process hearing. The
disputed services were: urinary bladder catheterization, suctioning of tracheotomy, ventilator setting checks, ambu bag administrations as a
back up to the ventilator, blood pressure monitoring, observation to determine if the student was in respiratory distress or autonomic
hyperreflexia, and disimpation in the event of autonomic hyperreflexia. At due process, an administrative law judge [ALJ] ruled that the
district was required to furnish the disputed health care services, as the services were related services. The school district appealed, and a
federal district Court agreed with the ALJ that the district was required to provide the disputed services under the IDEA. On appeal to the 8th
Circuit, the circuit court concluded the services were necessary for the student to attend school. Since the disputed services were not for
diagnostic or evaluative reasons and did not need to be administered by a physician, the district was obligated by the "bright-line" test to
furnish them, according to the circuit court. The school district appealed to the Supreme Court.
HELD: for the parent.
The Supreme Court agreed with the lower courts, finding the district was obligated to provide the disputed services. Looking to the IDEA
definition of "related services" first, the court noted that the district admitted the disputed services were incorporated within the statutory
definition of related services. The disputed services were deemed supportive services, as they were necessary for the student to attend school.
In examining whether the medical services exclusion applied, the court noted that medical services are not explicitly defined within the
statute, but an exclusion exists which limits the required medical services to services for "diagnostic and evaluation purposes." The scope of
this exclusion was addressed by the Supreme Court in the
Tatro
decision, which held medical services are those services that must be
performed by a physician. Applying the reasoning from
Tatro
to the current dispute, because the requested services did not have to be
provided by a physician, the district was required to provide them. The court rejected the proposed multi-factor approach favored by the
district as unsupported by the applicable judicial and statutory precedent. Neither the IDEA nor the IDEA regulations enumerate any type of
multi-factor approach. The district's assertion that the continuous nature of the services required by the student made them medical services
was also rejected. The cost factor, which the district claimed would result in an undue burden, was deemed inconsistent with the purposes of
the IDEA. The purpose of the IDEA was to ensure access to public schools for students with disabilities. The court stated that if it adopted the
district's cost-based standard it would be engaging in inappropriate judicial rule making. For these reasons, the court concluded the IDEA,
Tatro
, and the intent behind the IDEA, all supported the conclusion that the district was required to furnish the student with the requested
services.
Cedar Rapids Community Sch. Dist. V. Garret F., Sp. Ct. No. 96-1793 1999)
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Kansas Statute:
K.S.A. 72-966(e)
(e) Each school board and state agency is prohibited from requiring any child to obtain a prescription for a substance covered by the federal
controlled substances act, 21 U.S.C. 801 et seq., as a condition for the child to attend school or be evaluated or receive special education
services under this act.
Kansas Regulations:
K.A.R.91-40-1(nn)(fff)(ggg)
(nn) “Medical services” means services provided by a licensed physician to determine a child’s medically related disability that results in the
child’s need for special education and related services.
(fff) “School health services” means health services that are specified in the IEP of a child with a disability and that are provided by a school
nurse or other qualified person.
(ggg) "School nurse services" means nursing services that are provided by a qualified nurse in accordance with the child's IEP.
K.A.R. 91-40-3(f) (1)
Each agency shall ensure that hearing aids worn in school by children with hearing impairments or deafness are
functioning properly.
(2) Each agency shall ensure that the external components of surgically implanted medical devices of children with disabilities are
functioning properly. However, an agency shall not be responsible for the maintenance, programming, or replacement of any surgically
implanted medical device or any external component of the device.
3.
Transportation
Transportation is a related service when it is needed in order for the child to benefit from special education. Each
situation is considered individually, and if for a particular child, transportation is required, then the school must
provide it or make other arrangements for the child to be transported. In addition to travel to and from school,
transportation, as a related service, also includes travel between schools as well as travel in and around school
buildings. Thus, the IEP team may need to also assess a child’s ability to access school facilities. Like all related
services, when an IEP team determines it is needed, transportation services will be included on the child's IEP.
State law is clear that a school district is not required to transport a child to a location out of the district of residence.
This would apply if a child attends a child care, preschool program, or after school program that is located in another
district or if the child is attending a private school located in another district and requires special education and
related services from the district of residence. (K.A.R. 91-40-47(c))
If the IEP team determines that the parent will provide transportation that should be indicated on the IEP. For some
children, special considerations for transportation may be necessary. For example, if a child uses a wheelchair, a
bus with a lift may be needed. The IEP for a child with severe asthma who requires air conditioning may need to
specify an air-conditioned bus. A child may need a paraeducator on the bus for his/her safety and well-being. In
determining who should attend the IEP meeting, the IEP team may consider the need to invite the bus driver, if there
are special transportation needs. Behavioral considerations could be an example. Certainly, if a driver was included
in a behavioral intervention plan, s/he could be involved in the development of that plan.
A service somewhat related to transportation is Driver's Education, which is a course some secondary schools
provide for students. If the class is offered for students in the general education curriculum, it must be available for
students receiving special education services, if appropriate. A student with physical disabilities may require an
adapted car to drive. The IEP team should consider what transportation services and supports are needed for each
individual child. If schools need help locating resources for special circumstances, staff is encouraged to call
Special Education Services at 1-800-203-9462.
4.
Interpreting Services
If a child is deaf or hard of hearing and the IEP team determines that s/he needs a sign language interpreter to
receive a free appropriate public education, then that service is required and must be written in the IEP as a special
education service or a related service. The IEP team should also address the need for a sign language interpreter in
nonacademic and extracurricular activities.
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Interpreting services include oral transliteration services, cued language transliteration services, sign language
transliteration and interpreting services, and transcription services, such as communication access real-time
translation (CART), C-Print, and TypeWell. Interpreting services would also include special interpreting services for
children who are deaf-blind (K.A.R. 91-40-1(kk); 34 C.F.R. 300.34(c)(4)).
As any other special education service provider, sign language interpreters must be qualified to provide the related
service. KSDE has determined that to be considered a professional (and access professional-level categorical aid),
the sign language interpreter must be assessed at either Level 4 or 5 of the Educational Interpreter Performance
Assessment (EIPA), or certified at either Level 4 or 5 of the Quality Assurance Screening Test through the Kansas
Commission for the Deaf and Hard of Hearing. See the "Special Education Reimbursement Guide: State
Categorical and Transportation Aid", available on the KSDE home page,
www.kansped.org
under
Resources/Technical Assistance Guidance Documents.
C. SUPPLEMENTARY AIDS AND SERVICES
The IEP team determines what supplementary aids and services and other supports, are to be provided to the child
with a disability or on behalf of the child in general education classes or other education-related settings, and in
extracurricular and nonacademic settings, to enable children
with disabilities to be educated with children without
disabilities to the maximum extent appropriate (the least restrictive environment) (K.A.R. 91-40-1(ttt)). The
supplementary aids and services are to be based on peer-reviewed research to the extent that they are available.
Examples of supplementary aids and services include paraeducator services, assistive technology devices and
services, and other accommodations as appropriate.
1.
Assistive Technology Devices and Services
An example of a supplementary aid or service is assistive technology, which may also be considered as a related
service. An IEP team may determine an evaluation is needed to assess the need for assistive technology devices
and services. If a child needs assistive technology to remain in the general education class or other education-
related setting to enable him/her to be educated with children without exceptionalities to the maximum extent
appropriate, then assistive technology must be listed as a supplementary aid or service on the IEP including the
frequency, location, and duration. (See Appendix A, Figure 5-1, Assistive Technology Checklist)
Questions may arise about the responsibility for maintaining, servicing, repairing, or insuring an assistive technology
device. The Federal definition makes it clear that the school is responsible for maintaining, repairing, and replacing
these devices identified on the IEP. The school may want to revise the district's insurance to cover such equipment,
both on and off campus. If a device is used in the child's home or another location away from the school, the home
insurance, school insurance, or other coverage may be used. In some cases, it may be worthwhile to purchase
special insurance for some devices. For example, if the school has purchased an augmentative communication
device or a hearing aid for a preschool-aged child, the nominal insurance fee may be worth considering, especially if
the child is very active.
Another issue to consider is the need for the assistive technology device at home or in other settings (K.A.R. 91-40-
3(d)(2)). Federal and State regulations make it clear that if the child needs access to the device at home or in other
settings in order to receive a free appropriate public education, then it must be allowed and the IEP should state that
the device is necessary in the non-school setting(s). An important consideration by the IEP team regarding this issue
is that homework and extracurricular activities are an important component of the child's educational experiences.
The school is required to provide the needed assistive technology in a timely manner. Other resources may be
available to loan devices or to help pay for them. Medicaid, the Program for Children with Special Health Care
Needs, private health insurance, service clubs, and other funding sources may be able to pay for equipment. The
Regional Access Sites may also be helpful to schools in locating evaluation and funding resources; call 800-KAN-
DOIT to reach the office nearest your school.
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If a child who needs an assistive technology device is covered by Medicaid insurance, and Medicaid pays for the
device, the device is owned by the child and family. This ownership requirement is consistent with Medicaid rules.
Likewise, if other resources (Special Health Services, civic groups, other organizations) have purchased the assistive
technology device, it belongs to the child and family. Member districts may access The Kansas Infinitec Coalition at
http://www.ks.myinfinitec.org/MyInfinitec/ .
State Regulations:
K.A.R. 91-40-1(c). Assistive technology device
(c) "Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term shall
not include any medical device that is surgically implanted or the replacement of the device.
K.A.R. 91-40-1(d). Assistive technology service
Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive
technology device. This term shall include the following:
(1) Evaluating the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(4) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with
existing education and rehabilitation plans and programs;
(5) providing training or technical assistance for a child with a disability or, if appropriate, that child's family; and
(6) providing training or technical assistance for professionals including individuals providing education or rehabilitation services,
employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the
major life functions of a child.
K.A.R. 91-40-1(kk). Interpreting services
(kk) "Interpreting services" means the following:
(1) For children who are deaf or hard of hearing, oral transliteration services, cued language transliteration services, sign
language transliteration and interpreting services, and transcription services, including communication access real-time
translation (CART), C-Print, and TypeWell; and
(2) special interpreting services for children who are deaf-blind.
K.A.R. 91-40-1(ttt). Supplementary aids and services.
(ttt) "Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes,
or other
education-related settings, and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate.
K.A.R. 91-40-3(d). Ancillary FAPE requirements
(1) Each agency shall ensure that assistive technology devices or assistive technology services, or both, are made available to a child with a
disability if required as a part of the child's special education or related services, or the child's supplementary aids and services.
(2) Each agency, on a case-by-case basis, shall allow the use of school-purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child needs access to those devices at home or in other settings in order to
receive FAPE.
2.
Nonacademic and Extracurricular Services
The IEP team must determine whether the child requires supplementary aids and services, that are appropriate and
necessary, to afford the child an equal opportunity for participation in nonacademic and extracurricular services and
activities. These are nonacademic and extracurricular activities that are school sponsored during the regular school
year.
Nonacademic and extracurricular services may include counseling services, athletics, transportation, health services,
recreational activities, referrals to agencies that provide assistance to individuals with exceptionalities, and
employment of students, including employment by the school (K.A.R. 91-40-3(b)(2); 34 C.F.R. 300.107).
Nonacademic and extracurricular activities may include meals, recess, counseling services, athletics, transportation,
health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to
agencies that provide assistance to individuals with exceptionalities, both employment by the school and assistance
in making outside employment available. Some other school-sponsored events or activities include Student Council,
school dances, school sporting events, school newspaper or yearbook, school plays and musicals, school music
concerts, academically related events like spelling or math bees, and nonacademic events like pep rallies. This list is
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not all-inclusive; many options exist within each school. Appropriate involvement in such activities and events can
enrich the lives of children with disabilities, just as they do for children without disabilities.
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals,
recess periods, field trips and the services specified above, the school must ensure that each child with a disability
participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate
and to the needs of the child (K.A.R. 91-40-3(b)(1); 34 C.F.R. 300.117).
For example, the IEP team might consider if the child could attend an after-school activity, a club, or group meetings
in which other students would participate. Another example might be a football game. If the school district is
sponsoring the freshman class to go to a school football game on a bus, then the IEP team needs to provide an
equal opportunity for that student to participate in that school-sponsored activity. However, if a child simply wishes to
attend a football game in which there is no school-sponsored activity for the class, then that child would not
necessarily require any accommodations provided through the IEP. If a child’s IEP states that the child needs a sign
language interpreter and if this school-sponsored event is after school or on the weekend, then the school needs to
arrange for an interpreter to be available.
State Regulations:
K.A.R. 91-40-3(a)(b). Ancillary FAPE requirements.
(a) Each agency shall ensure that children with disabilities have available to them the same variety of educational programs and services that
are available to nondisabled children served by the agency, including art, music, industrial arts, consumer and homemaking education, and
vocational education.
(b) (1) Each agency shall provide nonacademic and extracurricular services and activities in the manner necessary to afford children with
disabilities an equal opportunity for participation in those services and activities, including the provision of supplementary aids and services as
determined to be necessary by the child's IEP team.
(2) Nonacademic and extracurricular services and activities shall include the following:
(A) Counseling services;
(B) athletics;
(C) transportation;
(D) health services;
(E) recreational activities;
(F) special interest groups or clubs sponsored by the agency;
(G) referrals to agencies that provide assistance to individuals with disabilities; and
(H) employment of students, including both employment by the agency and assistance in making outside employment available.
(c) (1) Each agency shall make physical education services, specially designed if necessary, available to every child with a
disability, unless the agency does not provide physical education to any children who are enrolled in the same grade.
3.
Access to Instructional Materials
States must adopt the National Instructional Materials Accessibility Standard (NIMAS), for the purposes of providing
instructional materials to blind persons, or other persons with print disabilities, in a timely manner. All public
agencies, including the school, shall provide children with disabilities who need instructional materials in accessible
formats, but are not included in the definition of blind, or other persons with print disabilities, or who need materials
that cannot be produced from NIMAS files, receive those instructional materials in a timely manner. The school shall
take reasonable steps to provide instructional materials at the same time as other children receive instructional
materials (34 C.F.R. 300.172(a)(b); 34 C.F.R. 300.210). More information on how to access the National
Instructional Materials Center can be found at
www.kansped.org
.
D. PROGRAM MODIFICATIONS AND SUPPORTS FOR SCHOOL PERSONNEL
Each IEP for a child with an exceptionality must include a statement of the program modifications, or supports for
school personnel that will be provided to the child, or on behalf of the child, to enable the child to participate with
nonexceptional peers to the maximum extent appropriate and to enable the child to advance appropriately toward the
annual goals. The modifications may address various areas including environmental and structural changes, how the
child will participate in direct instruction, learning activities, collaborative work groups, large-group discussions, and
other events occurring in their general education classroom. Necessary modifications for children with
exceptionalities must be documented on the child’s IEP. (K.S.A. 72-987(c)(4); 34 C.F.R. 300.320(a)(4)(i))
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The IEP should also include a statement of the supports for school personnel that need to be provided for each child
to enable him/her to advance appropriately toward attaining their measurable annual goals and to be involved and
progress in the general education curriculum. These supports may include specialized staff development (e.g., learn
sign language, learn a software program the child will use), consultation by a special teacher, or materials or
modifications to the environment.
The program modification and/or supports for school personnel in the IEP must indicate the projected date for the
beginning of the services or supports, including the frequency, location, and duration.
E. INCIDENTAL BENEFIT
Incidental benefit refers to the benefits one or more children with or without exceptionalities receives from the
special education and related services and supplementary aids and services that are provided to a child with an
exceptionality in inclusive settings in a general education classroom. This situation may also apply to other
education-related settings, such as community-based job sites, the school bus, and other settings. Schools may
deliver special education services in the general education classroom with nonexceptional children even if one or
more children without exceptionalities benefit from such services.
Federal Law:
20 USC 1413(a)(4)(A) 300.208(a)(1)
(4) …Funds provided to the local education agency under this part may be used for the following activities:
(A) Services and aids that also benefit nondisabled children for the costs of special education and related services and
supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in
accordance with the individualized education program of the child, even if one or more nondisabled children benefit from
such services.
F. EXTENDED SCHOOL YEAR/DAY SERVICES
When the IEP is developed initially or reviewed annually, the IEP team shall consider the need for extended school
year (ESY) services for children with disabilities. Children identified as gifted are not eligible for extended school
year services. ESY services are different than general education summer school. ESY may or may not be provided
in conjunction with the general education summer school. ESY may be needed by a child even though summer
school is not offered for general education children. In fact, for certain children, services over winter or spring breaks
may be needed. The reason for these services is to ensure the provision of FAPE so that the child can make
progress toward the goals specified on the child’s IEP and to prevent regression, which would impede such progress.
However, if a child with a disability is attending a summer school program for general education purposes, (not
extended school year) the school shall consider what reasonable accommodations/modifications may be necessary
for the child to have an equal opportunity to participate in the general education environment and curriculum. The
necessary supports can be provided through a 504 plan.
The need for ESY is to be decided individually. Therefore, a district shall
not
have a policy that no ESY services will
be provided, that they are only available to a certain group or age of children, or that services are only provided for a
set amount of time or a specified number of days.
The IEP Team may use the following methods to decide if a student with a disability (not students who are gifted)
needs ESY services. Note that each is not mutually exclusive and consideration of all of these factors may be
warranted. These reasons are not all-inclusive.
1. Is a significant regression anticipated if ESY services are not provided? The school is not required to provide
ESY services merely because the student will benefit from them. Instead, the IEP Team should determine if the
regression experienced by the student would significantly affect his/her maintenance of skills and behaviors.
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2. What is the nature and severity of the disability(ies)? Each student’s needs must be considered individually.
3. Are instructional areas or related services needed that are crucial in moving toward self-sufficiency and
independence? Particular consideration for ESY services should be given to students who need instruction in
such self-help skills as dressing or eating, or who need continued structure to develop behavioral control.
4. The IEP Team could use the following information and data in determining the need for ESY services:
a. Teacher assessment of the student’s success with various instructional interventions;
b. Criterion-referenced and standardized test data;
c. Health and health-related factors, including physical and social/emotional functioning;
d. Past educational history, as appropriate, including any ESY services;
e. Direct observation of the student’s classroom performance;
f.
IEP goals and objectives;
g. Student performance (pretest and posttest data);
h. Behavior checklists; and
i.
Parent interviews and student interviews where appropriate.
It is important for the IEP Team to address the educational needs of each student and how they might be addressed,
such as:
•
Scope of the special education instructional services including the duration and content of the program;
•
Which current goals and objectives will be addressed to maintain present skills and behaviors;
•
Implementer(s) of the ESY services;
•
What related services will be made available; and
•
If contracting with other schools or private agencies is needed.
See Appendix A, Figure 5-2, for a sample documentation of ESY. State regulations set forth the following
stipulations for ESY:
State Regulations:
K.A.R. 91-40-1(x). Extended school year services
Extended school year services means special education and related services that are provided to a child with a disability under the following
conditions:
(1) Beyond the school term provided to nondisabled children;
(2) in accordance with the child's IEP; and
(3) at no cost to the parents of the child.
K.A.R. 91-40-3(e). Ancillary FAPE requirements
(1) Each agency shall ensure that extended school year services are available as necessary to provide FAPE to a child with a disability.
(2) An agency shall be required to provide extended school year services only if a child's IEP team determines, on an individual basis, that
the services are necessary for the provision of FAPE to the child.
(3) An agency shall neither limit extended school year services to particular categories of disability nor unilaterally limit the type, amount, or
duration of those services.
1.
Extended School Day Services
In addition to services provided outside the typical school year (number of specified days), children may also need more hours
per day than are typically provided. Such decisions must be made by the IEP team, based upon the decision making process
described in Section F.
G. FREQUENCY, LOCATION, AND DURATION OF SERVICES
Each IEP shall indicate the
projected beginning date and the anticipated frequency, location, and duration for the
special education and related services, supplementary aids and services, and modifications. It is possible that
beginning and ending service dates may vary throughout the year and should be indicated as such on the IEP.
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For data collection purposes KSDE requires that the frequency of the services and modifications be reported as
minutes/days/weeks. This would indicate how many minutes per day, how many days per week and how many
weeks per school year the services would be provided. This information would be determined at the IEP team
meeting when decisions are being made about what services will be provided.
Sometimes it is difficult to be precise in determining just how much service will be required throughout the year.
Sometimes services are provided on an “as needed” basis, such as “reading the math test to the child”. The IEP
should not indicate the services are “as needed”. The provider has to describe when and how the service would be
provided throughout the year. For example, the IEP might say that the math teacher gives a weekly math test over
work covered each week, gives a chapter test at the end of each chapter, and the student is taking the State math
assessment during the year. The student will go to the resource room to have the math tests read to him/her. For
reporting purposes you might estimate based on historical events or current information (use of existing data) that the
total anticipated amount of time would be 1.5 hours per week over 36 weeks—or 90 minutes 1 day per week for 36
weeks.
The location of services would be the school building or other facility and the setting where the services will be
provided. This should be described in the IEP so that the parents and the IEP team members will know where the
child is to receive services, including the building and the extent of the child’s participation with children who are
nondisabled. KSDE requires the use of specific building codes and placement settings for reporting purposes. (For
information on reporting frequency, location and duration of services see the “Data Dictionary” (revised annually) at
www.kansped.org/ .)
The amount of services to be provided must be stated in the IEP so that the level of the school’s commitment of
resources will be clear to parents and other IEP team members. The amount of time to be committed to each of the
various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner
that is clear to all who are involved in both the development and implementation of the IEP (Federal Register, August
14, 2006, p. 46667). In addition, the IEP team addresses the extent, if any, to which the child will not participate with
children without disabilities in the general education curriculum and nonacademic activities.
H. HOME SCHOOLING
Public schools are not required to provide special education and related services for home-schooled children. School districts
are required through Child Find to locate, identify, and evaluate all children residing in the school district, including those who
are home schooled. Further, the school must make a free appropriate public education (FAPE) available to all home-schooled
children if their parents choose to enroll them in the public schools.
Under the definition in State law, home schools are not elementary or secondary schools or "educational institutions." Home
schools also do not fit the definition of a private school, which means "an organization which regularly offers education at the
elementary or seconday level, which is exempt from federal income taxation under section 501 of the federal internal revenue
code of 1954, as amended, which conforms to the civil rights act of 1964, and attendance at which satisfies any compulsory
school attendance laws of this state" (K.S.A. 72-5392(c)). However, if a home-schooled child is found to be a child with an
exceptionality, parents should be informed, in writing
,
that special education and related services are available if the child is
enrolled in the public schools and that the school district "stands ready, willing, and able to provide a free appropriate public
education" to the child.
If the child has been identified as a child with an exceptionality, the district must document that the parents have been
informed of the child's need for services and their availability at the public school. If the school district is aware that an eligible
child is not receiving needed special education and related services due to the parents' refusal to provide or accept the
services identified, the school must determine if it is necessary to report the child as a child in need of care to the Kansas
Department of Social and Rehabilitation Services (SRS), if the child is under age 13, and to the District or County Attorney if
the child is between the ages of 13-18.
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I. SERVICES IN LOCAL DETENTION FACILITIES, JUVENILE JUSTICE AUTHORITY AND DEPARTMENT OF
CORRECTIONS FACILITIES
The local school district is required to provide FAPE according to an IEP that meets the requirements of federal and
state laws and regulations to each student with a disability detained or incarcerated in a local juvenile or adult
detention facility located within its jurisdiction. The requirements concerning placement and LRE may be modified in
accordance with the student’s detention or incarceration.
If a student is in a juvenile correctional facility, the Commissioner of the Juvenile Justice Authority (JJA) is obligated
to make FAPE available according to an IEP that meets the requirements of federal and state laws and regulations
for each student with a disability. Requirements concerning parental rights, placement, and LRE may be modified in
accordance with state and federal laws and the student’s conditions of detention or incarceration.
If a student is in a State adult correctional facility, the Secretary of the Department of Corrections (DOC) is obligated
to make FAPE available according to an IEP that meets the requirements of federal and state laws and regulations
for each student with a disability. However, the correctional institution or facility may modify the student’s IEP or
placement if it can demonstrate a bona fide security or compelling penological interest that cannot otherwise be
accommodated. The following laws and regulations are not required for students in adult correctional facilities:
•
participation of students in state or local assessments; and
•
transition planning and services with respect to any disabled student whose eligibility for special education
services will end, because of the student’s age, before the student is eligible to be released from the
correctional facility based on consideration of the student’s sentence and eligibility for early release.
A student previously identified as gifted only is not entitled to receive special education services while incarcerated.
A student age 18 or over, who is incarcerated in an adult correctional institution or facility and was not identified as a
student with a disability and did not have an IEP in their educational placement prior to incarceration, is not entitled to
FAPE (K.A.R. 91-40-5).
K.A.R. 91-40-5 FAPE for detained or incarcerated children with disabilities.
(a) Local detention facilities.
(1) Subject to the provisions of K.S.A. 72-1046 and amendments thereto, each board shall provide FAPE to each child with a disability
detained or incarcerated in a local juvenile or adult detention facility located within its jurisdiction.
(2) The requirements in this article concerning placement and LRE may be modified in accordance with the child’s detention or
incarceration.
(b) State juvenile correctional facilities.
(1) The commissioner of the juvenile justice authority shall make provision for FAPE for each child with a disability detained or
incarcerated in any state juvenile correctional facility or other facility at the direction of the commissioner.
(2) The requirements in this article concerning parental rights, placement, and LRE may be modified in accordance with state and federal
laws and the child’s conditions of detention or incarceration.
(c) State adult correctional facilities.
(1) Except as otherwise provided in this regulation, provision for FAPE shall be made by the secretary of corrections for each child with
a disability incarcerated in any state correctional institution or facility.
(2) In making provision for FAPE under paragraph (1) of this subsection, compliance with state or federal laws or regulations relating to
the following shall not be required of the secretary of corrections:
(A) Participation of children with disabilities in state or local assessments; and
(B) transition planning and services with respect to any disabled child whose eligibility for special education services will end, because of
the child’s age, before the child is eligible to be released from the secretary’s custody based on consideration of the child’s sentence and
eligibility for early release.
(3) Provision of FAPE to any person incarcerated in a state correctional institution or facility shall not be required by the secretary
of
corrections if the person meets both of the following criteria:
(A) The incarcerated person is at least 18 years of age.
(B) The incarcerated person, in the person’s last educational placement before incarceration, was not identified as a child with adisability.
(4)(A) Except as otherwise provided in paragraph (4)(B) of this subsection, the IEP team of a child with a disability incarcerated
in a state
adult correctional institution or facility may modify the child’s IEP or placement if personnel of the correctional institution or facility
demonstrate a bona fide security or compelling penological interest that cannot otherwise be accommodated.
(B) An IEP team of a child with a disability incarcerated in a state adult correctional institution or facility shall not modify the following
requirements:
(i) That any decision regarding modifications to, and reviews and revisions of, any IEP shall be made by the IEP team; and
(ii)
that, except as otherwise expressly provided in paragraph (c)(2), each IEP shall have the content specified in K.S.A. 72-987
and amendments thereto.
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J. FACILITIES
The State Regulations, K.A.R. 91-40-52(d), include specific provisions regarding the facilities provided for the education of
children with exceptionalities. This regulation requires each agency to provide facilities for children with exceptionalities that
are comparable to those for nonexceptional children. This could be within the same school building as children without
exceptionalities or in a separate facility solely for children with exceptionalities. All facilities must be age-appropriate
environments and be appropriate for the instructional program being provided.
91-40-52. School district eligibility for funding; facilities.
(d) Each agency shall ensure that all of the following requirements concerning facilities are met:
(1) All facilities for exceptional children shall be comparable to those for non-exceptional children within the same school building.
(2) If an agency operates a facility solely for exceptional children, the facility and the services and activities provided in the facility
shall be comparable to those provided to nonexceptional children.
(3) All facilities for exceptional children shall be age-appropriate environments, and each environment shall be appropriate for the
instructional program being provided.
K. QUALIFIED SPECIAL EDUCATION PERSONNEL
Each school district must ensure that all personnel necessary to carry out the requirements of IDEA are appropriately
and adequately prepared and trained. All special education personnel, as appropriate, shall have the content
knowledge and skills to serve children with exceptionalities. This includes special education teachers, related
services personnel and paraeducators. School districts must take steps to actively recruit, hire, train, and retain
qualified personnel to provide special education and related services to children with disabilities. (34 C.F.R. 300.156;
34 C.F.R. 300.207).
Related services personnel must meet the qualifications of the Kansas licensing agency that apply to the professional
discipline in which those personnel are providing special education or related services. Paraeducators must meet the
requirements outlined in the "Special Education Reimbursement Guide: State Categorical and Transportation Aid,”
which is on the KSDE home page at
www.kansped.org
,
under Resources/ Technical Assistance Guidance
Documents.
Each teacher employed by a public school as a special education teacher must meet the requirements as highly
qualified (34 C.F.R. 300.156(c)). This requirement does not apply to teachers hired by private elementary schools
and secondary schools including private school teachers hired or contracted by the school to provide equitable
services to parentally-placed private school children with exceptionalities (34 C.F.R. 300.18(h)).
Special education teachers who provide “direct instruction” in one or more core content areas will need to meet the
highly qualified teacher (HQT) requirements for the content area(s). The content requirements pertain only to
individuals who are coded as “special education” teachers in the Licensed Personnel Report and who provide direct
instruction in a core content area(s) (English Language Arts, Science, Social Studies or Math) for one or more
children. Direct instruction is defined as being either the teacher of record or the teacher responsible for introducing
new content material and providing initial instruction.
Special education teachers who provide “direct instruction” in English Language Arts, Science, Social Studies or
Math have three different options available to use when demonstrating subject matter competency:
1. appropriate content endorsement on teaching license has been designated “HQ”, or
2. pass the appropriate content test (PRAXIS II), or
3. document eleven or more checks on the Kansas HOUSSE document for special education teachers.
For additional information, and to obtain a copy of the Kansas HOUSSE document, go to the Teacher Education and
Licensure website at
www.ksde.org
.
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Federal Regulations
§ 300.18 Highly qualified special education teachers.
(a)
Requirements for special education teachers teaching core academic subjects.
For any public elementary or secondary school special
education teacher teaching core academic subjects, the term
highly qualified
has the meaning given the term in section 9101 of the ESEA and
34 CFR 200.56, except that the requirements for highly qualified also—
(1) Include the requirements described in paragraph (b) of this section; and
(2) Include the option for teachers to meet the requirements of section 9101 of the ESEA by meeting the requirements of
paragraphs (c) and (d) of this section.
(b)
Requirements for special education teachers in general.
(1) When used with respect to any public elementary school or secondary school special education teacher teaching in a State,
highly qualified requires that—
(i) The teacher has obtained full State certification as a special education teacher (including certification obtained
through alternative routes to certification), or passed the State special education teacher licensing examination, and
holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher
teaching in a public charter school, highly qualified means that the teacher meets the certification or licensing
requirements, if any, set forth in the State’s public charter school law;
(ii) The teacher has not had special education certification or licensure requirements waived on an emergency
temporary, or provisional basis; and
(iii) The teacher holds at least a bachelor’s degree.
(2) A teacher will be considered to meet the standard in paragraph (b)(1)(i) of this section if that teacher is participating in an
alternative route to special education certification program under which—
(i) The teacher—(A) Receives high-quality professional development that is sustained, intensive, and classroom-
focused in order to have a positive and lasting impact on classroom instruction, before and while teaching; (B)
Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for
teachers or a teacher mentoring program; (C) Assumes functions as a teacher only for a specified period of time not to
exceed three years; and (D) Demonstrates satisfactory progress toward full certification as prescribed by the State; and
(ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) of this
section are met.
(3) Any public elementary school or secondary school special education teacher teaching in a State, who is not teaching a core
academic subject, is highly qualified if the teacher meets the requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and (b)(2) of
this section.
(c)
Requirements for special education teachers teaching to alternate achievement standards.
When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against
alternate achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the
profession, may either—
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 for any elementary, middle, or secondary
school teacher who is new or not new to the profession; or
(2) Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or,
in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the
ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being
provided and needed to effectively teach to those standards, as determined by the State.
(d)
Requirements for special education teachers teaching multiple subjects.
Subject to paragraph (e) of this section, when used with respect to a special education teacher who teaches two or more core academic
subjects
exclusively to children with disabilities, highly qualified means that the teacher may either—
(1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56(b) or (c);
(2) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which
the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to
the profession under 34 CFR 200.56(c) which may include a single, high objective uniform
State standard of evaluation (HOUSSE) covering multiple subjects; or
(3) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics,
language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core
academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school
teacher under 34 CFR 200.56(c), which may include a single HOUSSE covering multiple subjects.
(e)
Separate HOUSSE standards for special education teachers.
Provided that any adaptations of the State’s HOUSSE would not establish a lower standard for the content knowledge requirements for special
education teachers and meets all the requirements for a HOUSSE for regular education teachers—
(1) A State may develop a separate HOUSSE for special education teachers; and
(2) The standards described in paragraph (e)(1) of this section may include single HOUSSE evaluations that cover multiple
subjects.
(f)
Rule of construction.
Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be
construed to create a right of action on behalf of an individual student or class of students for the failure of a particular SEA or LEA employee
to be highly qualified, or to prevent a parent from filing a complaint under §§ 300.151 through 300.153 about staff qualifications with the
SEA as provided for under this part.
(g)
Applicability of definition to ESEA; and clarification of new special education teacher.
(1) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA.
(2) For purposes of § 300.18(d)(3), a fully certified regular education teacher who subsequently becomes fully certified or licensed
as a special education teacher is a new special education teacher when first hired as a special education teacher.
(h)
Private school teachers not covered.
The requirements in this section do not apply to teachers hired by private elementary schools and secondary schools including private school
teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under §
300.138.
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§ 300.146 Responsibility of SEA.
Each SEA must ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency—
(a) Is provided special education and related services—
(1) In conformance with an IEP that meets the requirements of §§ 300.320 through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to education provided by the SEA and LEAs including the requirements of
this part, except for § 300.18 and § 300.156(c); and
(c) Has all of the rights of a child with a disability who is served by a public agency.
§ 300.156 Personnel qualifications.
(a)
General.
The SEA must establish and maintain qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately
and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.
(b)
Related services personnel and paraprofessionals.
The qualifications under paragraph (a) of this section must include qualifications for related services personnel and paraprofessionals that—
(1) Are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable
requirements that apply to the professional discipline in which those personnel are providing special education or related
services; and
(2) Ensure that related services personnel who deliver services in their discipline or profession—
(i) Meet the requirements of paragraph (b)(1) of this section; and
(ii) Have not had certification or licensure requirements waived on an emergency, temporary, or provisional
basis; and
(iii) Allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with
State law, regulation, or written policy, in meeting the requirements of this part to be used to assist in the
provision of special education and related services under this part to children with disabilities.
(c)
Qualifications for special education teachers.
The qualifications described in paragraph (a) of this section must ensure that each person employed as a public school special education
teacher in the State who teaches in an elementary school, middle school, or secondary school is highly qualified as a special education teacher
by the deadline established in section 1119(a)(2) of the ESEA.
(d)
Policy.
In implementing this section, a State must adopt a policy that includes a requirement that LEAs in the State take measurable steps
to recruit, hire, train, and retain highly qualified personnel to provide special education and related services under this part to children with
disabilities.
(e)
Rule of construction.
Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be
construed to create a right of action on behalf of an individual student or a class of students for the failure of a particular SEA or LEA
employee to be highly qualified, or to prevent a parent from filing a complaint about staff qualifications with the SEA as provided for under
this part.
§ 300.207 Personnel development.
The LEA must ensure that all personnel necessary to carry out Part B of the Act are appropriately and adequately prepared, subject to the
requirements of § 300.156 (related to personnel qualifications) and section 2122 of the ESEA.
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QUESTIONS AND ANSWERS ABOUT
SPECIAL EDUCATION AND RELATED SERVICES
1. Once a child is determined eligible as gifted, what services is s/he entitled to?
As with all children with exceptionalities, services for children who are gifted are determined on an individual
basis by the IEP team. The IEP team will determine the special education, related services and supplementary
aids and services necessary for the child to advance appropriately toward meeting his/her annual goals. There
may be a need to expand, enrich, or accelerate the curriculum. Children may test out of certain required classes
or prerequisites in order to enroll in more advanced subjects if so specified in their IEP. Advanced placement or
honors classes may be appropriate. In many areas, high school students are allowed to enroll in classes at a
nearby community college or university. If a gifted student chooses to receive college credit for such classes the
student is responsible for tuition costs (K.A.R. 91-40-3(h)). Students identified as gifted only are not entitled to
extended school year or services in a correctional facility
2. Depending on the individual situation, could a school be required to provide a
computer or other assistive technology for a child with a disability in order to allow
that child to remain in the least restrictive environment?
Yes. Children with disabilities are entitled to special education and related services, as well as supplementary
aids and services. As such, if an assistive technology evaluation demonstrated that the child needs an assistive
technology device (e.g., software, computer, writing aids, prone stander, etc.) to remain in the least restrictive
environment, the IEP team would list that service on the IEP, and the school must provide it or ensure that it is
provided.
3. May an IEP include only related services?
Yes, if the child is identified as a child with a disability and needs OT, PT, or Interpreter services to participate in
the least restrictive environment. An IEP may include only related services if the related services consist of
specially designed instruction to meet the unique needs of a child with a disability.
4. If the school has a school-wide Title I program (part of Improving America's School
Act (NCLB)), and the whole school is teaching reading during first hour, is it
permissible for the special education teacher to teach reading during first hour?
Yes. This is permitted under IDEA-04, either in the special education class (no incidental benefit), or in the
general education setting (with incidental benefit). In either situation, the IEP goals of children with disabilities
must be addressed appropriately. A proportionate share of Federal flow-through funds may be allocated toward
schoolwide programs, and should be indicated in the LEA application for Special Education Federal funds.
According to Federal regulation 34 C.F.R. 300.206(b)(2), this proportionate share of funds may be used without
regard for the requirements for expenditures for children with disabilities in the Act. This would include special
education and related services and supplementary aids and services provided in a general education class or
other education-related setting to a child with a disability, in accordance with the IEP of the child, even if one or
more children without disabilities benefit from these services.
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5. May special education paraeducators provide services to children outside of the
classroom? For example, may they assist during recess, lunch, and other school
activities?
Yes. The IEP team is to determine and address needs of the child during nonacademic and extracurricular
activities, as appropriate. If paraeducator services are needed at recess, lunch, club activities, and other times
identified by the IEP team, they would be included on the child's IEP.
6. May special education paraeducators be assigned to general school duties such as
parking lot, recess, lunch, etc.?
The answer to this question would depend on individual job requirements and district policy and expectations.
This is also a funding issue. It may mean that the paraeducator working with general education for a period of
time may not be reimbursed from special education funds for that period. The district may have State special
education funds prorated. Categorical aid reimbursement is based on 100% of the paraeducator's time being
devoted to support activities that are directly related to implementing the child's IEP.
7. May special education paraeducators be asked by their supervising teacher or other
professional to assist with bulletin boards, duplication of materials, clerical duties,
and the like?
Again, the answer would depend on the activities related to the child's IEP, individual job requirements, and
district policy and expectations. There may be funding considerations as in Question #6.
8. May the IEP of a child include transition services at a job located outside of district
boundaries?
Yes, however, this would only apply if the child was placed in that job through a specific provision in the IEP.
The district would need to provide support for the child on-the-job if it was indicated on the child's IEP. The
district could contract with another entity for the support needed by the child. The district would not be required
to provide job support outside of its district if the job placement was made by individuals other than school
personnel and it was not a part of the IEP team decision.
9. The law says that each child with an exceptionality must have an IEP in effect at the
beginning of each school year. Does that mean that the child must begin to receive
the special education and related services specified in the IEP on the very first day of
school?
It depends on the frequency, location, and duration of services documented in the child’s IEP. The IEP team
must make an individual determination regarding when special education and related services will begin and end
for each child. Some services may not be provided to the child until the 2
nd
quarter or second semester of the
school year. Some children with exceptionalities may benefit from having the first week of school in general
education in order to acclimate to new general education teachers, classrooms, expectations, and routines.
Other children, such as children with autism, may need services beginning the very first day of school.
Decisions regarding when special education and related services will begin for a new school year are not to be
based on convenience of school staff, but the individual needs of each child. If the IEP is silent regarding
provision of services during the first and last weeks of a school year, parents often presume that services will be
provided during that time. The IEP is to indicate when services begin and the frequency, location and duration of
the services. This is to be clear to the parents and the providers.
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10. Do special education and related services missed due to events beyond the control of
the school (e.g., school closure due to weather, mandatory emergency drills, or
absence of the child) have to be made up at a later date?
As discussed within this chapter, the IEP team must consider the services needed for the child to address IEP
goals, access the general curriculum, and participate in extracurricular and nonacademic activities with children
without disabilities. In this context, the team should also discuss what is to be done when services are missed.
For example, if a child with learning disabilities needs help taking tests, that service isn't needed if the school is
closed. However, if regular, ongoing physical therapy is needed to maintain mobility, the team must find a way
for the service to be provided if school is closed.
Another consideration for the IEP team is whether a number of missed services would constitute a denial of
FAPE. Again, the team would create a plan for those circumstances.
11. What level of involvement is allowed of the special education teacher in the general
education classroom?
A certified special education teacher cannot be the teacher of a general education classroom and be considered
a special education teacher for full categorical aid reimbursement just because there are children with
exceptionalities in the classroom. In addition, children without exceptionalities are not to be removed from the
general education classroom to receive services from a special education teacher unless the nature and severity
of the exceptionality is such that education in the general education class cannot be achieved satisfactorily with
supplementary aids and services. Special education teachers and related services personnel may co-teach with
a general education teacher, or be in the general education classroom working with children with
exceptionalities. The other children in the general education classroom could receive incidental benefit from the
instruction of the special education teacher when provided to exceptional children.
12. What if the IEP team determines that a student is eligible for ESY services and the
parent indicates the student will not be participating due to other summer
commitments?
If ESY is in the child’s IEP and the parent refuses the services, then the parent may be in violation of the State’s
special education compulsory attendance statute (K.S.A. 72-977). The school district should consider whether a
truancy report is in order, or if another IEP meeting should be held. School districts should anticipate far enough
in advance so that parents can be informed and plan activities around these service times.
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CHAPTER 6
EDUCATIONAL PLACEMENT AND
LEAST RESTRICTIVE ENVIRONMENT
INTRODUCTION
Educational placement refers to the educational environment for the provision of special education and related
services rather than a specific place, such as a specific classroom or school (K.A.R. 91-40-1(t)). The IEP team
makes the decision about the child's educational placement. For children with disabilities, the special education and
related services must be provided in the environment that is least restrictive, with the general education classroom as
the initial consideration. The teams’ decision must be based on the child's needs, goals to be achieved, and the least
restrictive environment for services to be provided. Least restrictive environment (LRE) means the child is provided
special education and related services with peers who are not disabled, to the maximum extent appropriate (K.A.R.
91-40-1(ll)). The IEP Team must consider how the child with a disability can be educated with peers without
disabilities to the maximum extent appropriate, and how he/she will participate with children without disabilities in
other activities such as extracurricular and nonacademic activities.
Placement decisions for all children with disabilities, including preschool children with disabilities, must be determined
annually, be based on the child’s IEP, and be as close as possible to the child’s home. Additionally, each child with a
disability is to be educated in the school the child would attend if the child did not have a disability, unless the child’s
IEP requires some other arrangement (K.A.R. 91-40-21(e)(f)). LRE does not require that every child with a disability
be placed in the general education classroom regardless of the child’s individual abilities and needs. The law
recognizes that full time general education classroom placement may not be appropriate for every child with a
disability. School districts are to make available a range of placement options, known as a continuum of alternative
placements, to meet the unique educational needs of children with disabilities. This requirement for a continuum
reinforces the importance of the individualized inquiry, not a “one size fits all” approach, in determining what
placement is the LRE for each child with a disability. The continuum of alternative educational placements include
instruction in general education classes, special classes, special schools, home instruction, and instruction in
hospitals and institutions (K.A.R. 91-40-21(b); 34 C.F.R. 300.115(b)(1)).
This chapter includes Federal and State requirements for determining educational placement and the following topics
are discussed:
A. Parent Participation
B. Determining Educational Placement
C. Least Restrictive Environment
D. Early Childhood Least Restrictive Environment
E. Recent Case Law
A. PARENT PARTICIPATION
Parents have the right to be part of the decision-making team for determining their child's educational placement and
have input into that decision. In Kansas, placement decisions are made by the IEP team. The parent must be
provided notice of the IEP team meeting at least 10 calendar days prior to the meeting to ensure that parents have
the opportunity to participate. When conducting IEP meetings addressing placement, if neither parent can
participate, the parents and the school may agree to use alternative means of participation in the meeting, such as
video conferences and conference calls. Schools must ensure that parents understand and are able to participate in
any discussions concerning the educational placement of their child. The school must provide an interpreter if
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parents have a hearing impairment, or whose native language is other than English (K.A.R. 91-40-21(d); 34 C.F.R.
300.501(b)(c)(1)(2)(3)).
The team may hold the IEP meeting to determine placement without the parents if the school has made multiple
attempts to contact them and the parent did not respond, or the school is unable to convince them to participate. The
school district is required to have documentation of the attempts made to contact the parents to provide them notice
of the meeting and to secure their participation. The record must have at least two of the following methods:
telephone calls, visits to parents' home, copies of correspondence sent to the parents, and detailed records of other
methods. (K.A.R. 91-40-17(e); 34 C.F.R. 300.501(c)(4)).
Once the IEP team has made the decision on the initial placement of a child with an exceptionality, the parents must
be provided Prior Written Notice about the placement decision and requested to provide consent before initial
provision of special education and related services in the proposed placement. Within the notice requirements,
parents must be informed about the placement options that were considered and the reasons why those options
were rejected. Additionally, for subsequent changes in the IEP, parents must provide consent for any substantial
change in placement (more than 25% of the child’s school day) or material change in services (increase or decrease
of 25% or more of the duration or frequency of a special education service, a related service, or a supplementary aid
or a service) (K.S.A. 72-988(b)(6)). (Chapter 1 of this Handbook includes additional information about Prior Written
Notice requirements.)
State Statute:
K.S.A. 72-962
(aa) "Substantial change in placement" means the movement of an exceptional child, for more than 25% of the child's school day, from a less
restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.
(bb) "Material change in services" means an increase or decrease of 25% or more of the duration or frequency of
a
special education service,
a
related service, or
a
supplementary aid or
a
service specified on the IEP of an exceptional child."
K.S.A. 72-988(b)(6)
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement of their child and to any substantial change in
placement of, or a material change in services for, their child, unless a change in placement of their child is ordered pursuant to the provisions
of section 17, and amendments thereto, or the agency can demonstrate that it has taken reasonable measures to obtain parental consent to a
change in placement or services, and the child’s parent has failed to respond. If the parent fails to respond to the request for parental consent to
a substantial change in placement or a material change in services, the agency must maintain detailed records of written and verbal contacts
with the parent and the response, if any, received from the parent;
State Regulations:
K.A.R. 91-40-21(d)
(d)(1) Each agency shall give notice to the parent of any meeting to discuss the educational placement of the child. The notice shall meet the
requirements of K.A.R. 91-40-17.
(2) If a parent cannot participate in person at a meeting relating to the educational placement of the child, the agency shall offer to use
other methods to allow the parent to participate, including conference calls and video conferencing.
(3) An agency may conduct a meeting to determine the appropriate educational placement of a child with a disability without
participation of the child’s parent if the agency, despite repeated attempts, has been unable to contact the parent or to convince the
parent to participate.
(4) If an agency conducts a meeting to determine the appropriate educational placement of a child without the participation of the
child’s parent, the agency shall have a record, as prescribed in K.A.R. 91-40-17(e)(2), of the attempts that the agency made to contact
the parent.
(5) An agency shall take action to ensure that parents understand and are able to participate in, any discussions concerning the
educational placement of their children, including arranging for an interpreter for parents who are deaf or whose native language is
other than English.
K.A.R. 91-40-17(e)
(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parents or to convince the parents that they should participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the agency
made to contact the parents to provide them notice of the meeting and to secure the parents' participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the
calls;
(B) detailed records of visits made to the parents' home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parents and any responses received; and
(D) detailed records of any other method attempted to contact the parents and the results of that attempt
.
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B. DETERMINING EDUCATIONAL PLACEMENT
In determining the educational placement of a child with an exceptionality (including gifted and preschool children
with disabilities), each school district must ensure that the placement decision is made by a group of persons,
including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the
placement options. IEP Teams, including the parents, must make each child’s educational placement decisions on
an individual basis for each child with exceptionalities (K.A.R. 91-40-21(c)). Placement decisions must be based on
the child’s IEP and must be determined at lease annually. For children with disabilities, the placement should as
close to the child’s home as possible, and be in the school the student would normally attend, unless other factors
determine this is not possible (K.A.R. 91-40-21(e)).
The team must consider each child’s unique educational needs and circumstances, rather than the child’s category of
disability. Placement decisions should allow the child with a disability to be educated with nondisabled children to the
maximum extent appropriate. The first placement option considered for each child with a disability is the general
education classroom in the school that the child would attend if not disabled, with appropriate supplementary aids
and services to facilitate this placement. Therefore, before a child with a disability can be placed outside of the
general education environment, the full range of supplementary aids and services that could be provided to facilitate
the child’s placement in the general education classroom setting must be considered. Following that consideration, if
a determination is made that the child with a disability cannot be educated satisfactorily in the general educational
environment, even with the provision of appropriate supplementary aids and services, that child could be placed in a
setting other than the general education classroom (K.S.A. 72-976(a)). (See Section D of this chapter for how these
requirements apply to preschool-aged children.)
Federal and State regulations also preclude removing a child from a general education class just because the
general curriculum must be modified to meet his or her individual needs (34 C.F.R. 300.116(e)). If an entirely
different curriculum is needed for the child's alternate goals, it needs to be determined if appropriate special
education supports (for both the child and teacher) can be appropriately provided within the context of the general
education classroom. It is not the intent to have the general education teacher devote all or most of his/her time to
the child with a disability or to modify the general education curriculum beyond recognition. A child’s removal from
the general education environment cannot be based solely on the category of disability, configuration of the delivery
system, availability of special education and related services, availability of space or administrative convenience.
(See Appendix A, Figure 6-1, LRE Decision Tree and Figure 6-2, LRE Decision Tree Support.)
1.
Continuum of Placement Options
Schools are required to ensure that a continuum of placement options is available to meet the needs of children with
disabilities for special education and related services in the least restrictive environment (LRE). Although, each school is
not required to establish or maintain all options on the continuum, it must make an option available if the individual
needs of a child require a specific placement option. The continuum includes various educational settings, such as
general education class, special classes, special schools, home instruction, instruction in hospitals, and instruction in
institutions (K.A.R. 91-40-21(b); 34 C.F.R. 300.115(b)(1)). This continuum of various types of classrooms and settings in
which special education is provided is intended to ensure that a child with a disability is served in a setting where the
child can be educated successfully with other children without disabilities to the maximum extent appropriate.
In addition, although each school building is not required to be able to provide all the special education and related
services for all types and severities of disabilities at the school, the school district has an obligation to make available a full
continuum of alternative placement options that maximize opportunities for its children with disabilities to be educated with
nondisabled peers to the extent appropriate. In all cases, placement decisions must be individually determined on the
basis of the child’s abilities and needs and on each child’s IEP; and not solely on factors such as category of disability,
severity of disability, availability of special education and related services, configuration of the service delivery system,
availability of space, or administrative convenience. (Federal Register, August 14, 2006, p. 46588.) To help schools make
the full continuum available, K.S.A. 72-967 identifies and authorizes the options that districts have for meeting the
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LRE requirement by providing services within its schools; in the home, hospital, or other facilities; through a contract
with another district; through a cooperative agreement with one or more districts; or through a contract with a private
nonprofit or a public or private institution. Facilities where special education services are provided must be
equivalent to those where general education classes are held.
2.
Harmful Effects
The IEP Team must also consider possible harmful effects in determining the educational placement, both in terms of
the general education setting and a more restrictive setting. The language in 34 C.F.R. 300.116(d) and (K.A.R. 91-40-
21(g) mentions "possible harmful effects on the child or on the quality of services that he or she needs." For example,
the team must consider the distance that the child would need to be transported to another school, if not in the home
school (e.g., length of bus ride, importance of neighborhood friendships, and other such considerations). In addition,
potential disadvantages of being removed from the general education setting must be assessed (such as, what
curriculum content will the child miss when out of the classroom, etc.). Parents and other team members, including the
child's general education teacher, should discuss openly the possibility of supplementary aids and services, and other
supports, that would allow the child to remain in the general education setting. A part of this discussion must include
what is needed for the child to be able to participate and progress in the general education curriculum.
The IEP Team must also consider other harmful effects such as those that may exist when it may be inappropriate to
place a child in a general education classroom. For example, the IEP Team may consider the well-being of the other
children in the general classroom (e.g., would being in the classroom impede the child’s or the ability of other children
to learn). Courts have generally concluded that, if a child with a disability has behavioral problems that are so disruptive
in a general education classroom that the education of other children is significantly impaired, the needs of the child with
a disability generally cannot be met in that environment. However, before making such a determination, schools must
ensure that consideration has been given to the full range of supplementary aids and services that could be provided
to the child in the general education educational environment to accommodate the unique needs of the child with a
disability. If the group making the placement decision determines, that even with the provision of supplementary aids
and services, the child’s IEP could not be implemented satisfactorily in the general education environment, that
placement would not be the LRE placement for that child at that particular time, because her or his unique
educational needs could not be met in that setting.
State Statute: K.S.A. 72-976(a)
(a) Each school district shall be required, to the maximum extent appropriate, to educate children with disabilities with children who are not
disabled, and to provide special classes, separate schooling or for the removal of children with disabilities from the regular education
environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids
and services cannot be achieved satisfactorily.
State Regulation: K.A.R. 91-40-1(t)
(t) "Educational placement" and "placement" mean the instructional environment in which special education services are provided.
K.A.R. 91-40-21(a)(b)(c). Educational placement.
(a) Each agency shall ensure that the children with disabilities served by the agency are
educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities. These
alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals and other
institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with regular class
placement.
(c)(1) In determining the educational placement of a child with a disability, including a preschool child with a disability, each agency shall ensure that the
placement decision meets the following requirements:
(A) The decision shall be made by a group of persons, including the child's parent or parents and other persons who are knowledgeable about the
child, the meaning of the evaluation data, and the placement options.
(B) The decision shall be made in conformity with the requirement of providing services in the LRE.
(2) In determining the educational placement of a gifted child, each agency shall ensure that the placement decision is made by a group
of persons, including the child’s parent or parents and other persons who are knowledgeable about the child, the meaning of the
evaluation data, and appropriate placement options for gifted children.
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Federal Regulation:
Sec. 300.116. Placements
In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall
ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the
evaluation data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart, including Secs. 300.550-300.554;
(3) Is as close as possible to the child's home;
(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would
attend if nondisabled.
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs;
and
(e) A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in
the general curriculum.
C. LEAST RESTRICTIVE ENVIRONMENT
The process for determining the least restrictive environment (LRE) must be individualized for each child with a
disability, including preschool age children, children in public schools, private schools, or other care facilities. The
IEP team must ensure that children with disabilities are educated with children who do not have disabilities, to the
maximum extent appropriate. Removing a child from the general education classroom must not occur unless the
nature or severity of the disability is such that education in general education classes with the use of supplementary
aids and services cannot be achieved satisfactorily (K.S.A. 72-976(a)). The IEP must include an explanation of the
extent, if any, that the child will NOT participate with children without disabilities in general education classes AND in
extracurricular and other nonacademic activities (K.S.A. 72-987(c)(5)). The general education environment
encompasses general education classrooms, and other settings in schools such as lunchrooms and playgrounds in
which children without disabilities participate.
When determining the least restrictive environment, IEP teams must consider:
•
Whether the child’s IEP can be implemented in the regular educational environment with the use of
supplementary aids and services (34 C.F.R. 300.114(a)(2)(ii)).
•
Whether placement in the regular classroom will result in any potential harmful effect on the child or on the
quality of services that he needs (34 C.F.R. 300.116(d)).
•
Whether placement in the regular classroom, even with appropriate behavioral interventions, will
significantly impair the learning of classmates (34 C.F.R. 300.324(a)(2)(i)).
The IEP Team must discuss what program modifications or supports for teachers and staff may need to be provided to
enable the child: (1) to advance appropriately in attaining the annual goals listed on the IEP, (2) be involved in and make
progress in the general curriculum and participate in extracurricular and nonacademic activities, and (3) be educated and
participate with other children with and without disabilities in these activities, as appropriate (K.S.A. 72-987(c)(4)).
LRE requirements do NOT apply to children who are identified as gifted (K.A.R. 91-40-21(c)(2)). Children who are
gifted must have an educational placement determined by the IEP Team, based on their individual needs and to
ensure that the child receives FAPE.
State Statute:
K.S.A. 72-976. Requirements for education of children with disabilities in regular classes, exception; admission to state institutions.
(a) Each school district shall be required, to the maximum extent appropriate, to educate children with disabilities with children who are not
disabled, and to provide special classes, separate schooling or for the removal of children with disabilities from the regular education
environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids
and services cannot be achieved satisfactorily.
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K.S.A. 72-987(c)(4)(5)
(4) a statement of the special education and related services and supplementary aids, based on peer-reviewed research to the extent practicable,
and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school
personnel that will be provided for the child:
(A) To advance appropriately toward attaining the annual goals;
(B) to be involved in and make progress in the general education curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and
(C) to be educated and participate with other exceptional and nonexceptional children in the activities described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not participate with nonexceptional children in the regular class and in the
activities described in provision (4);
State Regulation:
K.A.R. 91-40-1(ll)
(ll) "Least restrictive environment" and “LRE” mean the educational placement in which, to the maximum extent appropriate, children with
disabilities, including children in institutions or other care facilities, are educated with children who are not disabled, with this placement
meeting the requirements of K.S.A. 72-976, and amendments thereto, and the following criteria:
(1) Determined at least annually;
(2) based upon the student's individualized education program; and
(3) provided as close as possible to the child's home.
K.A.R. 91-40-21. Educational placement
(f) Unless the IEP of a child with a disability requires some other arrangement, the agency shall ensure that the child is educated in the
school that the child would attend if nondisabled.
1.
Supplementary Aids and Services
IEP Teams must consider the supplementary aids and services, and other supports, that may be needed for the child to
be in the general education class, other education-related settings, and in extracurricular and nonacademic settings to
enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate (K.A.R. 91-
40-1(ttt); 34 C.F.R. 300.42). Examples of supplementary aids and services may include paraeducator or interpreter
services, assistive technology devices and services, resource room and itinerant services to be provided in conjunction
with regular class placement (K.A.R. 91-40-21(b)(2)). (See also Chapter 5, Special Education and Related Services.)
In the case of a child who is deaf or hard-of-hearing, a sign language interpreter may be needed to enable the child
to participate in the general education classroom. The sign language interpreter would sign what the teacher and
children say, and if necessary voice what the child who is deaf or hard-of-hearing signs. The teacher and children
may need training about communicating through an interpreter, how best to communicate with the child, and the
interpreter’s role on the educational team. Assistive technology needs of the child may also require training and
ongoing technical assistance for teachers and other staff members (K.A.R. 91-40-1(d); 34 C.F.R. 300.9). For
example, if a communication device is used, school personnel and parents may need training to be able to use the
system initially and thereafter when the device is updated with new vocabulary. The IEP team should identify these
needs for teacher training under supports for school personnel.
2.
Nonacademic and Extracurricular Services and Activities
In order to receive FAPE, children are to be included in more than just classroom activities. The school must ensure
that each child with a disability has the supplementary aids and services determined by the child’s IEP team to be
appropriate and necessary for the child to participate in school sponsored nonacademic and extracurricular settings.
Children with disabilities are to participate with children without disabilities in nonacademic settings and
extracurricular activities, to the maximum extent appropriate. Again, these services or activities must be considered
based on the child’s individual needs. This requirement also applies to children who are being educated solely with
others who have disabilities, including those in public schools, private institutions or other care facilities (K.A.R. 91-
40-3(b); 34 C.F.R. 300.107; 34 C.F.R. 300.117).
The IEP Team is responsible for considering how the child with a disability can participate with children who do not
have a disability in a wide range of possible nonacademic and extracurricular services and activities to the maximum
extent appropriate. Parents and others close to the child should consider what would benefit the child and promote
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the achievement of IEP goals and objectives as well as the provision of access to other children without disabilities.
It is difficult to make general statements about such activities as senior trips, activities sponsored by the Student
Council (technically not school-sponsored), and other such nonacademic activities. Again, such decisions would
need to be made individually by the IEP Team. (See Chapter 5, Special Education and Related Services.)
State Regulation:
K.A.R. 91-40-1(d)
(d) "Assistive technology service" means any service that directly assists a child with a disability in the selection, acquisition, or use of
an assistive technology device. This term shall include the following:
(1) Evaluating the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;
(2) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
(3) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(4) coordinating and using other therapies, interventions, or services with assistive technology devices, including those associated with
existing education and rehabilitation plans and programs;
(5) providing training or technical assistance for a child with a disability or, if appropriate, that child’s family; and
(6) providing training or technical assistance for professionals including individuals providing education and rehabilitation services,
employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of a
child.
K.A.R. 91-40-1(ttt)
(ttt) "Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes,
or other
education-related settings, and extracurricular and nonacademic settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate.
K.A.R. 91-40-3(b)(d)
(b) (1) Each agency shall provide nonacademic and extracurricular services and activities in the manner necessary to afford children with
disabilities an equal opportunity for participation in those services and activities, including the provision of supplementary aids and services as
determined to be necessary by the child's IEP team.
(2) Nonacademic and extracurricular services and activities shall include the following:
(A) Counseling services;
(B) athletics;
(C) transportation;
(D) health services;
(E) recreational activities;
(F) special interest groups or clubs sponsored by the agency;
(G) referrals to agencies that provide assistance to individuals with disabilities; and
(H) employment of students, including both employment by the agency and assistance in making outside employment available.
(d) (1) Each agency shall ensure that assistive technology devices or assistive technology services, or both, are made available to a child with
a disability if required as a part of the child’s special education or related services, or the child’s supplementary aids and services.
(2) Each agency, on a case-by-case basis, shall allow the use of school-purchased assistive technology devices in a child’s home or in
other settings if the child’s IEP team determines that the child needs access to those devices at home or in other settings in order to
receive FAPE.
Federal Regulations:
Sec. 300.117. Nonacademic settings
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the
services and activities set forth in § 300.107, each public agency must ensure that each child with a disability participates with nondisabled
children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must
ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP Team to be appropriate and
necessary for the child to participate in nonacademic settings.
3. Policies of the Kansas State Board of Education
The Kansas State School Board issued a policy on Least Restrictive Environment on May 20, 1994 (Appendix A,
Figure 6-2). All provisions of this policy remain in effect, because they are consistent with current laws and
regulations.
In addition, the Kansas State Board of Education has developed a policy regarding the Kansas State Schools for the
Deaf and Blind (See Appendix A, Figure 6-3, KSBE Policy). According to this policy, when a student is to be placed
at one of the State schools, the local district AND the parents are jointly responsible for applying for admission to the
school. However, the steps preceding the admissions application require the local district and parents to:
1. Complete the initial evaluation or reevaluation;
2. Conduct an IEP meeting;
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3. Determine the educational placement;
4. If a representative from the State school was not in attendance, hold a placement meeting with the
representative(s) from the State school to finalize the IEP;
5. Obtain informed parent consent for services and placement; and
6. Initiate the admissions application with the parents.
In developing the IEP, the team must also plan opportunities for access to educational programs in local school
districts near the State school, either part- or full-time. Under K.A.R. 91-40-4, Conditions for Admission, the following
requirements are included:
State Regulations:
K.A.R. 91-40-4. FAPE for exceptional children housed and maintained in certain state institutions.
(a) Subject to K.S.A. 72-1046 and amendments thereto, each state agency shall provide FAPE to exceptional children housed and
maintained at any facility operated by the agency. All educational programs shall comply with the requirements of state special education
laws and regulations.
(b) State schools.
(1) The procedures for placing Kansas residents into the Kansas state school for the blind and the Kansas state school for the deaf shall meet
the following requirements:
(A) Admission procedures shall be initiated by the child's home school district and by the child's parent or parents.
(B) Placement of any child in a state school shall be made only after the local school district and the child's parent or parents have considered
less restrictive placement options.
(C) Placement shall be based on a child’s IEP, which shall indicate a need for educational services provided at the state school.
(D) Any agency may refer a child to a state school for a portion or all of the child’s evaluation. In such a case, a representative or
representatives from the agency shall be included in any meeting at which the child’s eligibility for services or placement is determined.
(E) If the initial evaluation and staffing are conducted by any local school district and if one of the state schools is proposed as a placement
for the child, a representative or representatives from the state school shall be included in the meeting at which placement for the child is
determined.
(2) Personnel from the child's home school district, as well as personnel from the state school and the child's parent or parents, shall be
afforded an opportunity to participate in any IEP meeting for the child. Placement of the child in the home school district shall be considered
at each annual IEP meeting.
(3) Each state school shall attempt to make arrangements so that each child enrolled in the state school has access to the educational programs
in the local school districts near the location of the school, on either a part-time or full-time basis.
(4) If a state school determines that its program is not appropriate for a student and it can no longer maintain the student in its program, the
state school shall give the district of residence of the student at least 15-day notice of this determination.
4.
Children in Other Educational Placements
Schools are responsible to ensure that LRE requirements are being applied to children who have been placed by the
public school in private institutions or other care facilities. As IEP teams make educational placement decisions
about children for whom they do not have an appropriate program at the public school, they must consider all LRE
requirements carefully. (See Chapter 14 in this Handbook, Children in Private Schools.)
The LRE requirement may be modified for students who are incarcerated in local detention facilities, a state juvenile
correctional facility or an adult correctional institution (K.A.R. 91-40-5).
State Regulations:
K.A.R. 91-40-5(b)(2)
(b) State juvenile correctional facilities.
(1) The commissioner of the juvenile justice authority shall make provision for FAPE for each child with a disability detained or
incarcerated in any state juvenile correctional facility or other facility at the direction of the commissioner.
(2) The requirements in this article concerning parental rights, placement, and LRE may be modified in accordance with state and
federal laws and the child’s conditions of detention or incarceration.
K.A.R. 91-40-21(a)(b)
Educational placement.
(a) Each agency shall ensure that the children with disabilities served by the agency are educated in the LRE.
(b) Each agency shall ensure that a continuum of alternative educational placements is available to meet the needs of children with disabilities. These
alternative educational placements shall meet the following criteria:
(1) Include instruction in regular classes, special classes, and special schools; instruction in a child’s home; and instruction in hospitals and other
institutions; and
(2) make provision for supplementary services, including resource room and itinerant services, to be provided in conjunction with regular class
placement.
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K.A.R. 91-40-22
Agency placement in private schools or facilities. (a) If an agency places a child with a disability in a private school or facility as a means of
providing FAPE to the child, the agency shall remain responsible for ensuring that the child is provided the special education and related
services specified in the child’s IEP and is afforded all the rights granted by the law.
(b)(1) Before an agency places a child with a disability in a private school or facility, the agency shall initiate and conduct a meeting to
develop an IEP for the child.
(2) The agency shall ensure that a representative of the private school or facility attends the meeting. If a representative cannot attend,
the agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone
calls.
(c)(1) After a child with a disability enters a private school or facility, the agency responsible for providing FAPE to the child may allow any
meetings to review and revise the child’s IEP to be initiated and conducted by the private school or facility.
(2) If the private school or facility initiates and conducts these meetings, the agency shall ensure that the parent and an agency
representative are involved in any decision about the child’s IEP and shall agree to any proposed changes in the IEP before those
changes are implemented.
5.
Support for Staff
Schools must ensure that all teachers and administrators know their responsibilities in ensuring LRE, and that they
are provided with the needed technical assistance and training. Considerations might include: providing written
information to staff; offering ongoing in-service training, professional development, results-based staff development;
individual technical assistance; or mentoring by experienced teachers and administrators.
Schools must consider the supports that all general and special education teachers and related services personnel
need to maintain a child in the LRE. Such support might include training for the general education teacher,
paraeducators and other personnel. Special educators or related services personnel might provide this training
regarding supports that are required. Other examples would be the supports that staff need to implement a child's
behavioral intervention plan, such as training regarding modeling, providing positive feedback, and offering peer
interactions as appropriate. (34 C.F.R. 300.119 and 300.320(a)(4))
Federal Regulations:
Sec. 300.119. Technical assistance and training activities
Each SEA shall carry out activities to ensure that teachers and administrators in all public agencies--
(a) Are fully informed about their responsibilities for implementing Sec. 300.550; and
(b) Are provided with technical assistance and training necessary to assist them in this effort.
Sec. 300.320(a)(4)
(4) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf
of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved and progress in the general curriculum in accordance with paragraph (a)(1) of this section and to participate in
extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this
section;
D. EARLY CHILDHOOD LEAST RESTRICTIVE ENVIRONMENT
For preschool children ages 3-5 with disabilities, placement and LRE requirements are the same as for school-aged
children (K.A.R. 91-40-21(b)(c)). This means that preschool children with disabilities are to have a continuum of
placement options available and have the right to be educated with their peers without disabilities to the maximum
extent appropriate. As with school-aged children, the needs of preschoolers are to be considered individually, and
the individual needs of the child would determine the most appropriate setting for services to be provided. Most
preschoolers benefit from placement in a preschool program with typically developing peers.
School districts that do not operate programs for preschool children without disabilities are not required to initiate
general education programs solely to satisfy the LRE requirements. However, many school districts provide early
childhood services to children without disabilities in programs such as 4-year-old at-risk preschools, child care
centers, Parents as Teachers, and various other early childhood settings all constituting general education
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environments. School districts that do not operate early childhood programs for children without disabilities may seek
alternative means to provide inclusive options for young children through collaborative relationships with private
preschool programs or other community-based settings. If a preschool child with a disability is already attending a
general education preschool program, the IEP team should consider whether special education and related services
can be provided in that setting with the use of supplementary aids and services, or supports for school personnel
(Federal Register, August 14, 2006, p. 46589).
Various educational placement options are possible, both within the community and at the school. The key question
for the IEP Team to consider is where this child would be if s/he did not have a disability. The full continuum of
placement options at K.A.R. 91-40-21(b), including integrated placement options with typically developing peers,
must be available to preschool children with disabilities. Examples include Head Start, community-based preschools
(may be in churches, whether or not religiously affiliated), child care centers or family child care homes, mothers’-
day-out programs, Title I programs, at-risk 4-year-old preschools, migrant or bilingual programs, Even Start, play
groups, and other such early childhood programs. For children who are age 5 by August 31, kindergarten would be
the least restrictive environment, to the extent appropriate. Note that children with IEPs cannot be counted for
general fund reimbursement in the 4-year-old at-risk preschool program, but they may participate in the program.
The regulations allow school districts to choose an appropriate option to meet the LRE requirements. Schools are
encouraged to explore and use community resources to provide comprehensive services. Paying for the placement
of preschool children with disabilities in a private preschool with children without disabilities is one, but not the only,
option available to school districts to meet the LRE requirements. However, if a school district determines that
placement in a private preschool program is necessary as a means of providing special education and related
services to a child with a disability, the program must be at no cost to the parent of the child.
E. RECENT CASE LAW
For the first time, the United States Circuit Court of Appeals for the 10
th
Circuit, adopted a legal standard (the “Daniel
R.R.” test) for determining least restrictive environment in L.B. and J.B v. Nebo Sch. Dist., 379 F3d 966, 41 IDELR
206 (10
th
Cir. 2004). Subsequently, in T.W. v. United Sch. Dist. No 259, Wichita, Kansas, 136 Fed. Appx. 122, 43
IDELR 187, (10
th
Cir. 2005), the 10
th
Circuit affirmed that the “Daniel R.R.” test would continue to be the legal
standard for determining the least restrictive environment for children with disabilities in the 10
th
Circuit—which
includes Kansas. The Daniel R.R. test has two parts:
Part 1: In determining whether a particular placement is the least restrictive environment for a particular child,
the court first determines whether education in a regular education classroom, with the use of supplemental
aids and services, can be achieved satisfactorily. If the court determines that a child can be satisfactorily
educated in a regular education classroom with the use of supplemental aids and services, then the regular
education classroom is the least restrictive environment for that child and there is no further analysis.
Part 2: However, if the court determines that the child cannot be satisfactorily educated in the regular
education classroom, even with the use of supplemental aids and services, the court then proceeds to the
second part of the test by determining whether the school district has mainstreamed the child to the maximum
extent appropriate. In other words, the court looks to see if the placement selected by the IEP team enables
the child to have contact with nondisabled students to the maximum extent appropriate. If the placement
selected by the IEP team does mainstream the child to the maximum extent appropriate, then the placement is
the least restrictive environment for that child.
In applying these two parts of the Daniel R.R. test to a particular placement, the court considers the following non-
exhaustive factors:
1. Steps the school district has taken to accommodate the child in the regular education classroom, including
the consideration of a continuum of placement and support services;
2. Comparison of the academic benefits the child will receive in the regular classroom with those he/she will
receive in the special education classroom;
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3. The child’s overall educational experience in regular education, including nonacademic benefits; and
4. The effect on the regular classroom of the disabled child’s presence in that classroom.
The 10
th
Circuit has instructed that this list of considerations is not exhaustive, and that other considerations may also
be appropriate in a particular case. For example, some courts have considered the cost of mainstreaming a child in
the analysis. The 10
th
Circuit did not consider the cost of mainstreaming the child in either of the cases in which it
used the Daniel R.R. standard because costs were not presented as an issue in either case. However, the 10
th
Circuit did not rule out consideration of the costs of a particular placement if it was presented as an issue in a case
regarding least restrictive environment.
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QUESTIONS AND ANSWERS ABOUT EDUCATIONAL PLACEMENT
AND LEAST RESTRICTIVE ENVIRONMENT
1. Does the school have to provide aids and services to assist the child to be in a
general education classroom? What if the school says that providing those aids and
services is too expensive?
The district must provide supplementary aids and services to accommodate the special educational needs of
children with disabilities in the general curriculum in the least restrictive environment. In a Federal appellate
court decision,
Roncker v. Walter, 700 F. 2d 1058 (6
th
Cir.), cert. denied, 464 U.S. 864 (1983)
, the court made
the following statements about LRE:
The
Roncker
Court also noted that:
“Cost is a proper factor to consider since excessive spending on one child with a disability
deprives other students with disabilities. Cost is no defense, however, if the school district has
failed to use its funds to provide a proper continuum of placement options for students with
disabilities. The provision of such placement options benefits all children with disabilities.”
In other words, the law, regulations, and court decisions all presume in favor of maximum appropriate contact
with children without disabilities.
2. What if the school says the child cannot be included because s/he cannot benefit
academically from instruction in the general education class?
The school should not make such an assertion. The Federal District Court in
Sacramento City Unified School
District v. Holland
(1992), said the law requires educating a child with disabilities in a general education
classroom if the child can receive a satisfactory education there, even if it is not the best academic setting for the
child. The court looked at whether the child’s IEP goals and objectives could be met in the classroom by
adapting the curriculum, or by providing supplementary aids and services. The school district in
Holland
argued
that a general education classroom would not be appropriate for a student if that would require significant
changes to the general curriculum for the child. However, the court rejected the school’s view. It said that
students with disabilities may require and be entitled to substantial curriculum changes to be sure they benefit
from being in the general education class. The court stated that “modification of the curriculum for a student with
a disability, even dramatic modification, has no significance in and of itself. The IDEA, in its provision for the IEP
process, contemplates that the academic curriculum may be modified to accommodate the individual needs of
students with disabilities.”
“[IDEA] does not require states to offer the same educational experience to a student with disabilities as is
generally provided for students without disabilities.... To the contrary, states must address the unique needs of a
child with disabilities, recognizing that the student may benefit differently from education in the regular classroom
than other students.... In short, the fact that a child with disabilities will learn differently from his or her education
within the regular classroom does not justify exclusion from that environment”
Oberti v. Board of Education of the
Borough
of
Clementon School District (3
rd
Cir. 1993)
.
If an entirely different curriculum is needed for the child's alternate goals, it needs to be determined if appropriate
special education supports (for both the child and teacher) can be most appropriately provided within the context
of the general education classroom. It is not the intent to have the general education teacher devote all or most
of his/her time to the child with a disability nor to modify the general education curriculum beyond recognition.
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3. What are supplementary aids and services that would help the child in the general
education classroom?
The law is very broad and includes: “aids, services, and other supports that are provided in regular education
classes or other education-related settings to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate...” Supplementary aids and services might include paraeducator
services, assistive technology devices and services, and other accommodations, as appropriate.
4. If the child is not placed in a general education classroom, does the district have any
other LRE responsibilities?
Even if the child is not placed in a general education classroom, the school district must still find ways for the
child to be with children without disabilities in noneducational and extracurricular activities as much as is
appropriate to the child’s needs. Where the district suggests a placement other than a general education
classroom, the Prior Written Notice form for informed written consent must list other placement ideas that were
considered and the reasons they were rejected. Also, according to 34 C.F.R. 300.320(a)(5), the IEP Team must
document in the IEP the extend to which the child will not participate with nondisabled children in the regular
class and in other school activities. The IEP Team may also address the potential for moving to a less restrictive
environment in the future. The LRE for each child must be considered annually to determine whether the current
placement is appropriate.
5. Is there anything that the district may
not consider in deciding LRE?
The district may not make placement decisions based only on such things as the category or severity of the
child’s disability, convenience of staff, the choices for placement options currently available, the availability of
educational or related services, space availability, availability of staff, bus routes, or administrative convenience.
6. If a child is not placed in the general education classroom, can s/he participate in
other school activities or services?
Yes. The law is clear that children with disabilities have the right to participate in nonacademic and
extracurricular services and activities with children who do not have disabilities to the maximum extent
appropriate to their needs (34 C.F.R. 300.117). Also, school districts must provide these activities in a way that
gives children with disabilities an equal opportunity to participate (34 C.F.R. 300.107). Such services and
activities include:
•
lunch
•
counseling services
•
recess
•
transportation
•
athletics
•
recreational activities
•
health services
•
special interest groups or clubs
•
employment opportunities
7. May the nature or severity of a child’s disability be used to justify a segregated
educational setting?
All children with disabilities have the right to an education in the least restrictive environment based on their
individual educational needs, not the “label” that describes their disability. Schools must ensure that to the
maximum extent appropriate, children with disabilities, including children in public or private institutions or other
care facilities, are educated with children who are nondisabled.
Special classes, separate schooling, or other removal of children with disabilities from the general education
environment occurs only if the nature of severity of the disability is such that education in general education
classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 C.F.R.
300.114(2)).
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8. What responsibility does the general education staff have in serving children in the
least restrictive environment?
Both general and special educators are required to be members of IEP Teams who make decisions about
services needed by eligible children and where they should be provided. This is a mutual responsibility for
general and special education staff. The IEP Team is required to consider the supplementary aids and services
needed for a child to be successfully educated in the general education classroom. Some examples are:
•
Aids to assist the child
•
Class/environmental accommodations
•
Adaptive equipment
•
Adapted/modified/enriched curriculum
•
Co-teaching staff
•
Classroom tests modified or accommodated
•
Assistive technology
•
Training or supports for the teacher.
These strategies can be used in any class, including classes like physical education, art, music, and vocational
education. Teacher-made tests can include any accommodations the child needs; with regard to State and
district-wide assessments, however, IEP teams should be careful to avoid specifying accommodations that
would invalidate the tests.
The IEP Team must include at least one of the child’s general education teachers, if the child is or may be
participating in general education classes. The general education teacher must, as much as is appropriate, help
develop the IEP. This includes helping to decide things like appropriate positive behavioral interventions and
strategies, supplementary aids and services, program modifications, and support for school staff in providing the
supplementary aids and services and program modifications. After the initial IEP has been developed, the
general education teacher must also help review and revise the IEP. The IEP Team must also have a school
person who is knowledgeable about the general curriculum and what resources are available in the district. The
school is responsible for providing the services on the IEP. That means both special and general education
teachers must assist in determining the services and ensuring that appropriate services are provided.
9. What if the school district has a policy that related services are available only at a
segregated location?
A policy of this nature is against the law. The school cannot legally have a policy that predetermines placement
for related services. The district must provide the needed related services to meet individual needs of the child
in the least restrictive environment. Decisions about location of services is determined by the IEP Team.
The Office of Special Education Programs says:
“The determination of appropriate program placement, related services needed, and curriculum
options to be offered is made by the IEP team based upon the unique needs of the child with a
disability rather than the label describing the disabling condition or the availability of programs.”
10. Does LRE apply to preschool?
Yes, LRE requirements apply to children who are ages 3 through 5. Some settings for LRE for preschool to
serve children where they would be if not disabled include:
•
Public school preschools
•
Community preschool
•
Head Start
•
Child care
•
Play groups
•
Kindergarten for 5 year old
11. Does LRE apply to children who are gifted, or just to those with disabilities?
According to K.A.R. 91-40-21, LRE and the continuum of services do not apply to children who are gifted.
However, individual placement decisions must be made according to the unique needs of each child and to
ensure that the child receives FAPE.
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12. If services are needed during an extracurricular activity, do we need a goal that
addresses it?
No. The IEP Team is required to address how children will participate with others who do not have disabilities
during nonacademic and extracurricular activities. Services may be listed to meet those needs, without having a
specific goal.
13. Is parent consent required when moving a child from placement in a neighboring
district back to the home district?
No, if the placement in both districts is the same place on the continuum and the child has the same opportunity
to participate with peers without disabilities. If the IEP specifies a certain classroom in a certain school, then
consent would be required. Placement is not determined by the name of the building, rather it is the place on the
continuum of service environments. For example, if the IEP reads "services will be provided in Mrs. Jones' 4
th
grade class at Eisenhower Elementary School," then parent permission would be needed to move the student
from Mrs. Jones’s classroom. However, if the IEP reads "services will be provided in a regular 4
th
grade
classroom," then parent permission would not be needed, if everything else stayed the same. Placement is not
the same as location.
14. Is moving a child from a regular bus to a special education bus a change of
placement?
Yes, since a special education bus is a more restrictive setting than a regular education bus (34 C.F.R. 300.107).
Nonacademic services, lists transportation as a service (34 C.F.R. 300.117). Nonacademic settings, ties
transportation to ensuring a child with disabilities participates with children without disabilities. If the change is
made, the IEP Team would need to provide Prior Written Notice, and if it is a material change in services the
district would need to obtain consent prom the parent.
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CHAPTER 7
REEVALUATION
INTRODUCTION
An evaluation that is conducted at any time after an initial evaluation and initial determination of eligibility as a child
with an exceptionality, is considered a reevaluation. Schools must ensure that a reevaluation of each child with an
exceptionality is conducted if conditions warrant a reevaluation, or if the child's parents or teacher requests a
reevaluation, but at least once every three years. Reevaluations may not occur more than once a year, unless the
parent and the school agree otherwise. New requirements also allow the parent and the school to agree that a three
year reevaluation is not necessary (K.S.A. 72-986(h)(2)(B); 34 C.F.R. 300.303(b)(2)).
Most components of the reevaluation process are identical to those required for initial evaluation. See Chapter 3,
Initial Evaluation and Eligibility, for a complete explanation of the evaluation process. However, there may also be
some differences from the initial evaluation. The specific individuals on the reevaluation team may be different than
they were for the initial evaluation. The roles are the same, but the people themselves may be different. A report of
the reevaluation must be written and provided to the parents. Under certain circumstances the reevaluation may be
conducted without parent consent. This chapter includes a discussion of the following topics:
A. Purpose of the Reevaluation
B. Need for the Reevaluation
C. Prior Written Notice and Request for Consent
D. Members of the Reevaluation Team
E. Conducting the Reevaluation
F. Determining Continued Eligibility
G. Reevaluation for A Child Identified as Developmentally Delayed
A. PURPOSE OF THE REEVALUATION
The reevaluation process is required every three years, or more often, if needed, to determine:
1. If the child continues to be a child with an exceptionality;
2. the educational needs of the child;
3. the present levels of academic achievement and functional performance (related developmental needs) of
the child;
4. whether the child continues to need special education and related services; and
5. whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable annual goals set out in the IEP of the child and to participate, as
appropriate, in the general education curriculum.
The information gathered as a result of the reevaluation provides valuable information about child progress and
needs. In addition to using the information to determine whether the child continues to be eligible for special
education and related services, this information should be used to review the IEP, revising it if necessary, in
accordance with K.S.A. 72-986(h)-(l), as well as 34 C.F.R. 300.301 through 300.311:
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Kansas Statute:
K.S.A. 72-986(h)-(l)
(h) (1) Each agency shall ensure that a reevaluation of each exceptional child is conducted:
(A) If the agency determines that the educational or related services needs of the child, including academic achievement or functional
performance, warrant a reevaluation; or
(B) if the child’s parent or teacher requests a reevaluation.
(2) An agency shall conduct a reevaluation of a child:
(A) Not more frequently than once a year, unless the parent and the agency agree otherwise; and
(B) at least once every three years, unless the parent and the agency agree that a reevaluation is unnecessary.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’ observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine:
(A) Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether
the child continues to be an exceptional child and the current educational needs of the child;
(B) the present levels of academic and related needs of the child;
(C) whether the child needs special education and related services; or in the case of a reevaluation of a child, whether the child continues
to need special education and related services; and
(D) whether any additions or modifications to the special education and related services are needed to enable the child to meet the
measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.
(j) Each agency shall obtain informed parental consent prior to conducting any reevaluation of an exceptional child, except that such informed
consent need not be obtained if the agency can demonstrate that it took reasonable measures to obtain such consent and the child’s
parent failed to respond.
(k) If the IEP team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the
child continues to be an exceptional child and the child’s educational needs, the agency:
(1) Shall notify the child’s parents of:
(A) That determination and the reasons for it; and
(B) the rights of such parents to request an assessment to determine whether the child continues to be an
exceptional child and the child’s educational needs; and
(2) shall not be required to conduct such an assessment unless requested
by the child’s parents.
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation
from secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
B. NEED FOR THE REEVALUATION
A reevaluation must be conducted if the school determines that the education or related services needs, including
improved academic achievement and functional performance of the child, warrant a reevaluation, or, if the child’s parent
or teacher requests a reevaluation. A reevaluation must be conducted before a school determines a child is no longer
a child with an exceptionality.
However, a reevaluation shall not occur more than once a year, unless the
parent and the school agree otherwise
(K.S.A. 72-986(h)(1)(2)(A); 34 C.F.R. 300.303(b)(1) ).
If a parent requests a reevaluation, or more than one reevaluation per year, and the school disagrees that a reevaluation
is needed, the school must provide Prior Written Notice to the parent that explains, among other things, why the school
refuses to do the reevaluation and the parent’s right to pursue the reevaluation through mediation or due process.
A reevaluation is to occur at least once every 3 years, unless the parent and the school agree that a
reevaluation is unnecessary
(K.S.A. 72-986(h)(2)(B); 34 C.F.R. 300.303(b)(2)). Prior to conducting a reevaluation
the parent and the school shall determine whether a reevaluation is needed. They must consider the child’s
educational needs, which may include whether the child is participating in the general education curriculum and being
assessed appropriately. The parent and the school will discuss the advantages and disadvantages of conducting a
reevaluation, as well as what effect a reevaluation might have on the child’s educational program (Federal Register,
August 14, 2006, p. 46640, 46641). Documentation of this agreement must be maintained (See Appendix A, Figure 7-
1, Revaluation Not Needed form.).
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There are circumstances when a reevaluation is not required:
1. before the termination of a child’s eligibility due to graduation with a regular diploma, however, Prior Written
Notice and informed consent are required for the change of placement; or
2. due to exceeding the age of eligibility for FAPE, which would be the end of the school year in which the
student becomes 21 years of age. (K.S.A. 72-986(l)(2); 34 C.F.R. 300-305(e)(2))
3. when the school and parent agree that a reevaluation is not needed.
C. PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
Whenever a school proposes to conduct a reevaluation, the school must provide Prior Written Notice to the parents of the
child that describes any evaluation procedures the school proposes to conduct (K.S.A. 72-986(b); K.S.A. 72-988; 34
C.F.R. 300.304(a)). In addition, there are standard components of content the notice must also contain. The purpose of
providing notice to the parents is so they understand what action the public agency is proposing (in this case, to conduct a
reevaluation) and the basis used for determining the action is necessary. The Prior Written Notice must include:
1. A description of the action proposed by the agency.
2. An explanation of why the agency proposes the action.
3. A description of each evaluation procedure, assessment, record, or report the agency used as a basis for
the proposed action.
4. A statement that the parents have protection under the procedural safeguards and how a copy of the
procedural safeguards can be obtained.
5. Sources for parents to contact to obtain assistance in understanding their procedural safeguards.
6. A description of other options considered and the reasons why those options were rejected.
7. A description of other factors that are relevant to the agency’s proposal. (K.S.A. 72-990; 34 C.F.R.
300.503(b))
Additionally, if the notice is to propose to conduct a reevaluation, the notice must describe any evaluation
procedures
that the school proposes to conduct (K.S.A. 72-986(b); 34 C.F.R. 300.304(a)(1)).
The notice must be written in language understandable to the general public and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication of the parent is not a written language, the LEA must take steps to ensure that
the notice is translated orally or by other means to the parent in his or her native language or other mode of
communication, that the parent understands the content of the notice and that there is written evidence that this has been
done (K.A.R. 91-40-26(a)(b)(c); 34 C.F.R. 300.503(c)).
1.
Preparing the Prior Written Notice
The team must plan to administer the assessments and other evaluation measures as may be needed to produce the
data required to meet the requirements of the continuation of eligibility (K.A.R. 91-40-8(e)(1); 34 CFR 300.305(c)).
Every reevaluation should be approached and designed individually based on the specific concerns of the child to be
evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to collect the data
needed, while eliminating time spent collecting information that is either unnecessary or overly time consuming for no
clear purpose. It would be inappropriate to use the same battery of assessments for all children or to rely on any
single tool to conduct an evaluation.
The first activity the reevaluation team is to conduct is a review of existing data. The reevaluation team needs to
consider all data that is currently available including evaluations and information provided by the parents, current
classroom-based, local, or State assessments, and classroom-based observations; and observations by teachers
and related service providers; and the child’s response to scientifically, research-based interventions, if implemented.
The review of existing data, as part of the evaluation, may be conducted without a meeting and without consent from
the parents (K.A.R. 91-40-8(c)(d); K.A.R. 91-40-27(e); 34 C.F.R. 300.305(b); 34 C.F.R. 300.300(d)(1)).
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The purpose of reviewing existing data is to identify what additional data, if any, are needed to determine:
if the child continues to be a child with an exceptionality and needs special education;
whether the child needs special education and related services;
the educational needs of the child;
the present levels of academic achievement and functional performance (related developmental needs) of
the child; and
whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
After the team has reviewed the existing data, there must be a determination of what data, if any, will be collected
during the evaluation, with the Prior Written Notice completed to reflect that determination.
a. Requirements if No Additional Data is Needed
If the team has determined that no additional data is needed to determine whether the child
continues to be
a child with an exceptionality, and to determine the child’s educational needs, the school must notify the
parents
i.
of that determination and the reasons for it; and
ii. the right of the parents to request an assessment to determine whether the child continues to be a child
with an exceptionality, and to determine the educational needs of the child (K.A.R. 91-40-8(c); 34
C.F.R. 300.305(d)).
The school district is not required to conduct the assessment described in (ii) above unless requested to do
so by the child’s parents. In addition, if the parents request an assessment of their child, the school district
may refuse to do so, but it must provide the parents with Prior Written Notice of the refusal to conduct the
assessment and the reasons for the refusal. The parents may request mediation or due process if they
want the assessment conducted. (See Appendix A, Figure 3-3, No Additional Data Needed form, and
www.kansped.org
.)
b. Requirements if Additional Data Are Needed
If the team has determined that additional data are needed, the team should plan who will collect it and plan
to insure all data will be collected within the evaluation timeline. The procedures to be used to collect the
data should be described on the Prior Written Notice for the reevaluation and provided to the parents for
their consent.
2.
Request for Consent
The school must obtain informed consent from the parent of the child before conducting any reevaluation (K.A.R. 91-
40-27(a)(1); 34 C.F.R. 300.300(c)). In determining that informed consent is obtained, the following must be insured
(K.A.R. 91-40-1(l); 34 C.F.R. 300.9):
a. The parent has been fully informed of all information relevant to the activity for which consent is being
sought, in his or her native language, or other mode of communication.
b. The parent understands and agrees in writing to the carrying out of the activity for which his or her consent
is sought, and the consent describes that activity and lists the records (if any) that will be released and to
whom.
c. The parent understands that the granting of consent is voluntary on the part of the parent and may be
revoked at any time.
d. If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has
occurred after the consent was given and before the consent was revoked).
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3. Failure to Respond or Refusal to Consent
The school must make reasonable attempts to obtain consent from the parents to conduct the reevaluation.
Reasonable attempts are defined as at least 2 contacts by 2 different methods (phone calls, letters, visits, email, etc.)
and such attempts should be documented, including detailed records of telephone calls made or attempted and the
results, copies of written correspondence sent to the parents and their response if any, and visits made to the parents
home or place of employment, and the response, if any, from the parents (K.A.R. 91-40-17(e)(2); 34 C.F.R.
300.322(d)(1)).
If the school can demonstrate that it has made reasonable efforts (i.e. minimum 2 contacts by 2 different methods)
and parents have failed to respond, informed parental consent need NOT be obtained for the reevaluation.
If the parent refuses consent for the reevaluation the school may, but is not required to, pursue the reevaluation of
the child by utilizing the procedural safeguards, including mediation. The school does not violate its obligation for
child find or to conduct a reevaluation of the child if it declines to pursue the reevaluation (K.A.R. 91-40-27(f)(1)(3); 34
C.F.R. 300.300(c)(1)).
If a parent of a child who is home schooled or voluntarily placed in a private school by the parents does not provide
consent for the reevaluation, or the parent fails to respond, the school may not use mediation or request a due
process hearing (K.A.R. 91-40-27(f)(2); 34 C.F.R. 300.300(d)(4)).
During reevaluation, like initial evaluation, the school is required to inform parents of their right to an independent
educational evaluation, according to 34 C.F.R. 300.502. Chapter 3 includes a full discussion of independent
educational evaluations.
State Statute:
K.S.A. 72-986
(b) An agency shall provide notice to the parents of a child that describes any evaluation procedures such agency proposes to conduct. In conducting the
evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional
,
developmental and academic information, including information
provided by the parent, that may assist in determining whether the child is an exceptional child and the content of the child’s individualized
education program, including information related to enabling the child to be involved, and progress, in the general education curriculum or, for
preschool children, to participate in appropriate activities;
(2) not use any single measure or assessment as the sole criterion for determining whether a child is an exceptional child or determining an appropriate
educational program for the child;
(3) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or
developmental factors; and
(4) in determining whether a child has a specific learning disability, not be required to take into consideration whether the child has a severe
discrepancy between achievement and intellectual ability, and may use a process that determines if the child responds to scientific, research-based
intervention as part of the child’s evaluation.
(h) (1) Each agency shall ensure that a reevaluation of each exceptional child is conducted:
(A) If the agency determines that the educational or related services needs of the child, including academic achievement or functional
performance, warrant a reevaluation; or
(B) if the child’s parent or teacher requests a reevaluation.
(2) An agency shall conduct a reevaluation of a child:
(A) Not more frequently than once a year, unless the parent and the agency agree otherwise; and
(B) at least once every three years, unless the parent and the agency agree that a reevaluation is unnecessary.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’ observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the
present levels of academic and related needs of the child; (C) whether the child needs special education and related services; or in the
case of a reevaluation of a child, whether the child continues to need special education and related services; and (D) whether any
additions or modifications to the special education and related services are needed to enable the child to meet the measurable
annual
goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.
(i) As part of an initial evaluation, if appropriate, and as part of any reevaluation under this section, the IEP team and other qualified
professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current
classroom-based assessments and observations, and teacher and related services providers’
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observations; and
(2) on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child, or in the case of a reevaluation of a child, whether the
child continues to be an exceptional child and the current educational needs of the child; (B) the present levels of academic and related
needs of the child; (C) whether the child needs special education and related services; or in the case of a reevaluation of a child,
whether the child continues to need special education and related services; and (D) whether any additions or modifications to the
special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child
and to participate, as appropriate, in the general education curriculum.
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation
from secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
72-988. Parental rights.
(a) The rights of parents of exceptional children shall include, but not be limited to, the rights specified in this section.
(b) The parents of exceptional children shall have the right to:
(2) written prior notice in accordance with K.S.A. 72-990, and amendments thereto, whenever an agency:
(A) Proposes to initiate or change; or
(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child or the provision of a free appropriate
public education to the child;
72-990
.
Notice of parental rights; contents.
The notice required by subsection (b)(2) of K.S.A. 72-988, and amendments thereto, shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of other options that the agency or IEP team considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this act and, if the notice is not an initial referral for evaluation, the
means by which a copy of the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding the provisions of the federal law and this act.
State Regulation:
K.A.R. 91-40-1(l)
(l) "Consent" means all of the following:
(1) A parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native
language or other mode of communication.
(2) A parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes
that activity and lists the records, if any, that will be released and to whom.
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was given
and before the consent was revoked.
K.A.R. 91-40-17(e)(2)
(e)(1) An agency may conduct an IEP team meeting without parental participation if the agency, despite repeated attempts, has been unable to
contact the parent or to convince the parent to participate.
(2) If an agency conducts an IEP team meeting without parental participation, the agency shall have a record of the attempts that the
agency made to contact the parent to provide notice of the meeting and to secure the parent's participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made or attempted, including the date, time, and person making the calls and the results of the
calls;
(B) detailed records of visits made to the parent's home or homes, including the date, time, and person making the visit and the results
of the visit;
(C) copies of correspondence sent to the parent and any responses received; and
(D) detailed records of any other method attempted to contact the parent and the results of that attempt.
K.A.R. 91-40-26(a)(b)(c)
(a) In providing any notice to the parents of an exceptional child in accordance with K.S.A. 72-990 and amendments thereto,
regarding action
proposed or refused by an agency, an the agency shall ensure that the notice includes the following descriptions:
(1) a description of other options the agency considered and the reasons why those options were rejected; and
(2) a description of other factors that are relevant to the agency's proposal or refusal.
(b) The notice shall be is written in a language understandable to the general public and is provided in the native language of the parent or
other mode of communication used by the parent, unless it is clearly not feasible to do so.
(c)
If the native language or other mode of communication of a parent is not a written language, the agency shall take steps to ensure all of the
following:
(1) The notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication.
(2) The parent understands the content of the notice.
(3) There is written evidence that the requirements of paragraphs (1) and (2) of this subsection have been met.
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K.A.R. 91-40-27(a)(1), (f), (g) Add New
(a) Except as otherwise provided in this regulation, an agency shall obtain written parental consent before taking any of the following actions:
(1) Conducting an initial evaluation or any reevaluation of an exceptional child;
(2) initially providing special education and related services to an exceptional child; or
(3) making a material change in services to, or a substantial change in the placement of, an exceptional child, unless the change is made
under the provisions of K.A.R. 91-40-33 through 91-40-38, or is based upon the child's graduation from high school or exceeding the
age of eligibility for special education services.
(e) An agency shall not be required to obtain parental consent before taking either of the following actions:
(1) Reviewing existing data as part of an evaluation, reevaluation, or functional behavioral assessment; or
(2) administering a test or other evaluation that is administered to all children, unless before administration of that test or evaluation,
consent is required of the parents of all children.
(f) (1) If the parent of an exceptional child who is enrolled or is seeking to enroll in a public school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed material change in services or a substantial change in the placement of the parent's child, an
agency may, but is not required to, pursue the evaluation or proposed change by initiating due process or mediation procedures.
(2) If the parent of an exceptional child who is being home schooled or has been placed in a private school by the parent does not
provide consent for an initial evaluation or a reevaluation, or fails to respond to a request to provide consent, an agency may not pursue
the evaluation or reevaluation by initiating mediation or due process procedures.
(3) An agency shall not be in violation of its obligations for identification, evaluation or reevalutation if the agency declines to pursue
an evaluation or reevaluation, because a parent has failed to provide consent for the proposed action.
(4) Each agency shall document its attempts to obtain parental consent for action proposed under this regulation.
(g) An agency shall not be required to obtain parental consent for a reevaluation or a proposed change in services or placement of the child if
the agency has made attempts, as described in K.A.R. 91-40-17(e)(2), to obtain consent but the parents have failed to respond.
(h) An agency shall not use a parent's refusal to consent to an activity or service to deny the parent or child other activities or services offered
by the agency.
D. MEMBERS OF THE REEVALUATION TEAM
The membership of the team that conducts the reevaluation and determines continued eligibility is the same as the
IEP Team with the addition of other qualified professionals if a child is suspected of having a specific learning
disability, as appropriate. The additional professionals that would participate are based on the identified concerns to
be addressed in the reevaluation process. The actual team members on each reevaluation team may differ; however,
there are specific members and skills that must be represented on the team. The make up of this team would include:
•
The parents of the child.
•
Not less than one regular education teacher of the child (if the child is, or may be, participating in the regular
education environment).
o
If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or
her age; or if the child is less than school age, an individual qualified to teach a child of his or her age;
•
Not less than one special education teacher of the child, or where appropriate, not less than one special
education service provider of the child.
•
A representative of the local education agency who:
o
Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique
needs of child with disabilities,
o
Is knowledgeable about the general education curriculum, and
o
Is knowledgeable about the availability of resources of the public agency;
•
An individual who can interpret the instructional implications of reevaluation results.
•
At least one person qualified to conduct individual diagnostic examinations of children.
•
At the discretion of the parent or agency, other individuals who have knowledge or special expertise
regarding the child, including related services personnel as appropriate. (K.S.A. 72-962(u); K.A.R. 91-40-
11(a); 34 C.F.R. 300.321; 34 C.F.R. 300.308)
E. CONDUCTING THE REEVALUATION
The reevaluation must include a variety of assessment tools and strategies to gather relevant functional,
developmental and academic information, including information provided by the parent, that may assist in
determining whether the child continues to be an exceptional child, the educational needs of the child, and the
content of the child’s IEP, including information related to enabling the child to be involved, and progress, in the
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general education curriculum or, for preschool children, to participate in appropriate activities (K.S.A. 72-986(b)(1)).
In addition, the procedures must also lead to the determination of the present levels of academic achievement and
functional performance of the child. The public agency must administer such assessments and other evaluation
measures as may be needed to produce the data to determine:
1. if the child continues to be a child with an exceptionality;
2. the educational needs of the child;
3. the present levels of academic achievement and functional performance (related developmental needs) of
the child;
4. whether the child continues to need special education and related services; and
5. whether any additions or modifications to the special education and related services are needed to enable
the child to meet the measurable goals set out in the IEP and to participate, as appropriate, in the general
education curriculum. (K.S.A. 72-986(i)(2); 34 C.F.R. 300.305(a)(2))
As stated previously, the data collected is critical not only for the purpose of determining whether a child continues to
be eligible for special education services, but also to assist in the development of present levels of academic
achievement and functional performance. Regulations clearly state that the reevaluation must result in determining
the content of the child’s IEP (if still eligible) including information related to enabling the child to be involved in and
progress in the general curriculum (or for a preschool child, to participate in appropriate activities) (K.S.A. 72-
986(b)(1); 34 C.F.R. 300.304(b)(ii)). However, the reevaluation should also assist in the development of an
instructional plan for the child if the child is not found to be eligible.
Every reevaluation should be approached and designed individually based on the specific concerns of the child being
evaluated. Thoughtful planning is required to insure that the team will use appropriate tools to collect the data
needed, while eliminating time spent collecting information that is unnecessary or for no clear purpose. It would be
inappropriate to use the same battery of assessments for all children or to rely on any single tool to conduct a
reevaluation.
1. Procedures for Conducting the Reevaluation
The school shall ensure that a reevaluation meets all of the same requirements for an initial evaluation as described
in Section E, of Chapter 3, in this Handbook. The reevaluation team members must utilize a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic information about the child, including
information from the parents, and information related to enabling the child to be involved in and progress in the
general curriculum (or for a preschool child, to participate in appropriate activities). The tools and strategies must
yield relevant information that directly assists in determining the educational needs of the child.
Collecting relevant functional, developmental and academic information related to enabling the child to be involved in,
and progress in, the general curriculum (or for a preschool child, to participate in appropriate activities) requires that
data be collected not only about the child, but about the curriculum, instruction, and environment as well. Every
evaluation should be approached and designed individually based on the specific concerns for the child and the
selection of assessment tools based on the information needed to answer the eligibility questions. It would be
inappropriate to use the exact same battery of assessments for all children or to rely on any single tool to conduct an
evaluation. (K.S.A. 72-986(b)(c); K.A.R. 91-40-9)
Data should be collected from the five sources referred to in Kansas as GRIOT. GRIOT represents five sources of
data that teams need to collect and use as appropriate. The following is a discussion of each of the five sources of
data:
G
– General Education Curriculum Progress: During the reevaluation, the team should thoroughly examine the
child’s progress in the general education curriculum. The team needs to understand how the child is progressing
in general education curriculum across settings with the available supports. To do this they must understand the
outcomes of the general education curriculum and how the skills represented in those outcomes relate to the
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needs of each child. Are the skills needed for this child’s progress different than the skills that general education
children need? Is the instruction required for the child to learn those skills different? The general education
curriculum outcomes and the supports available through general education are unique to each school. Gaining
an understanding of what support is available and the level of support needed by the child is one of the most
important parts of the reevaluation.
R
– Record Review: The evaluation team should also include as part of the reevaluation a review of records. These
records would include such things as information provided by the parents, current classroom-based
assessments, State assessments, information from previous services providers, screenings, previous
evaluations, reports from other agencies, portfolios, discipline records, cumulative file, and other records.
I
– Interview: It is important to understand the perceptions of significant adults in the child’s life and of the child
himself. Parents, teachers, and the child can all typically provide insight into areas of strengths and needs.
Interviews can also provide information about significant historical events in the child’s life as well as about his
performance in the classroom and other settings.
O
– Observation: A district must ensure the child is observed in the child’s learning environment (including the
regular education classroom setting) to document the child’s academic performance and behavior in the areas of
difficulty (K.A.R. 91-40-11(c); 34 C.F.R. 300.310). In the case of a child of less than school age or out of school,
a group member must observe the child in an environment appropriate for a child of that age. If the child is
already in an educational setting the observation should be done in that setting opposed to bringing them into a
different setting just for observation. These observations could include structured observations, rating scales,
ecological instruments (e.g., EBASS, TIES-II), behavioral interventions, functional analysis of behavior and
instruction, anecdotal, and other observations (conducted by parents, teachers, related services personnel, and
others). The purpose of the observation is to help the evaluation team understand the extent to which the child’s
skills are impacting their ability to participate and progress in a variety of settings. Observations allow you to see
first hand how a child is functioning in naturally occurring settings. Observation data can also allow you to
compare the child’s behavior to that of peers in the same setting. Observation data helps us to understand not
only the child’s current functional performance but also the level of independence demonstrated which can help
determine necessary supports.
T
– Test: A wide range of tests or assessments may be useful in determining an individual child’s skills, abilities,
interests, and aptitudes. Typically, a test is regarded as an individual measure of a specific skill or ability, while
assessment is regarded as broader way of collecting information that may include tests and other approaches to
data collection. Standardized norm-referenced tests are helpful if the information being sought is to determine
how a child compares to a national group of children of the same age or grade. Criterion-reference tests are
helpful in determining if the child has mastered skills expected of a certain age or grade level. Tests typically
provide specific information but are never adequate as a single source of data to determine eligibility for special
education. Because tests require a controlled testing environment, the result is that children are removed from
their learning environments to participate. This is a very intrusive way of gathering data and the value of the
data obtained should always be weighed carefully against the cost of missed class time. For this reason, tests
should be thoughtfully selected and be used for specific purposes when data cannot be obtained through other
sources. Some test information may already have been collected, especially if the child attends a school that
uses school-wide benchmark assessment. However, additional information may need to be collected during the
reevaluation. This might include curriculum-based assessments (e.g., CBA, CBM, or CBE), performance-based
assessments (i.e., rubric scoring), or other skill measures such as individual reading inventories. The testing
that needs to be done will vary depending on what information already has been collected and the needs of the
individual child. Diagnostic testing might include measures of reading, math, written language, or other
academic skills, or tests of motor functioning, speech/language skills, adaptive behavior, self-concept, or any
domain of concern. As with all types of data collection, the information from testing needs to be useful for both
diagnostic and programmatic decision-making.
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GRIOT
offers a framework in which to organize and structure data collection. It is not that any data source or
assessment procedure is inherently good or bad. All procedures and tools are appropriate as long as they are
selected thoughtfully and for the appropriate purposes. A team will not necessarily use all data sources every time
an evaluation is conducted, but it does mean that thoughtful planning will need to be given for each child to ensure
that the team is collecting the appropriate data using the appropriate tools to ensure the correct information to make
the continued eligibility determination.
The instruments utilized in the reevaluation must meet all of the requirements as described in Section E. of Chapter 3
in this Handbook. Federal and State laws and regulations specify requirements for evaluation and reevaluation
(K.A.R. 91-40-8(e)(f)(g); 34 C.F.R. 300.304)
State Regulation:
K.A.R. 91-40-8(c)(d)(e) (f)(g)
(c) As a part of an initial evaluation, if appropriate, and as a part of any reevaluation, each agency shall ensure that members of an appropriate
IEP team for the child and other qualified professionals, as appropriate, comply with the following requirements:
(1)
The evaluation team shall review existing evaluation data on the child, including the following information:
(A) Evaluations and information provided by the parents of the child;
(B) current classroom-based, local, and state assessments and classroom-based observations; and
(C) observations by teachers and related services providers.
(2) On the basis of that review and input from the child's parents, the evaluation team shall identify what additional data, if any, is
needed to determine the following matters:
(A) Whether the child has a particular category of exceptionality or, in the case of a reevaluation of a child, whether the child
continues to have such an exceptionality;
(B) what the present levels of academic performance and educational and related developmental needs of the child are;
(C) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(D) whether, in the case of a reevaluation of the child, any additions or modifications to the special education and related services
currently being provided to the child are needed to enable the child to meet the measurable annual goals set out in the IEP of the
child and to participate, as appropriate, in the general curriculum.
(d) The team described in subsection (e) of this regulation may conduct its review without a meeting.
(e) (1)
If the team described in subsection (c) of this regulation determines that additional data is required to make any of the
determinations specified in paragraph (2) of subsection (c), the agency, after giving proper written notice to the parent and obtaining parental
consent, shall administer those tests and evaluations that are appropriate to produce the needed data.
(2)
If the team described in subsection (c) of this regulation determines that no additional data is needed to make any of the
determinations specified in paragraph (2) of subsection (c), the agency shall give written notice to the child's parent of the following
information:
(A) The determination that no additional data is needed and the reasons for this determination; and
(B) the right of the parent to request an assessment.
(3)
The agency shall not be required to conduct any additional assessments unless requested to do so by the child's parent.
(f) Unless an agency has obtained written parental consent to an extension of time and except as otherwise provided in subsection (g), the
agency shall complete the following activities within 60 school days of the date the agency receives written parental consent for evaluation of
a child:
(1) Conduct the evaluation of the child;
(2) conduct a meeting to determine whether the child is an exceptional child and, if so, to develop an IEP for the child. The agency
shall give notice of this meeting to the parent as required by K.A.R. 91-40-17(a); and
(3) implement the child’s IEP in accordance with K.A.R. 91-40-16.
(g) An agency shall not be subject to the time frame prescribed in subsection (f) if either of the following conditions is met:
(1) The parent of the child who is to be evaluated repeatedly fails or refuses to produce the child for the evaluation.
(2) The child enrolls in a different school before the evaluation is completed, and the parent and new school agree to a specific date
by which the evaluation will be completed.
(h)
In complying with subsection (f), each agency shall ensure that an IEP is developed for each exceptional child within 30 days
from the date on which the child is determined to need special education and related services.
K.A.R. 91-40-9
.
Evaluation procedures
. (a) If assessment instruments are used as a part of the evaluation or reevaluation of an exceptional
child, the agency shall ensure that the following requirements are met:
(1) The assessment instruments or materials shall meet the following criteria:
(A) Be selected and administered so as not to be racially or culturally discriminatory; and
(B) be provided and administered in the child’s native language or other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically, developmentally, and functionally, unless this is clearly not feasible.
(2) Materials and procedures used to assess a child with limited English proficiency shall be selected and administered to ensure t
hat they measure the extent to which the child has an exceptionality and needs special education, rather than measuring the child’s
English language skills.
(3) A variety of assessment tools and strategies shall be used to gather relevant functional and developmental information about the
child, including information provided by the parent, and information related to enabling the child to be involved and progress in the general
curriculum or, for a preschool child, to participate in appropriate activities that could assist in determining whether the child is an exceptional
child and what the content of the child’s IEP should be.
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(4) Any standardized tests that are given to a child shall meet the following criteria:
(A) Have been validated for the specific purpose for which they are used; and
(B) be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the
assessment.
(5) If an assessment is not conducted under standard conditions, a description of the extent to which the assessment varied from standard
conditions shall be included in the evaluation report.
(6) Assessments and other evaluation materials shall include those that are tailored to assess specific areas of educational need and not
merely those that are designed to provide a single general intelligence quotient.
(7) Assessments shall be selected and administered to ensure that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the
test results accurately reflect the child’s aptitude or achievement level or whatever other factors the assessment
purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills, unless those skills are the factors that the
assessment purports to measure.
(8) A single procedure shall not be used as the sole criterion for determining whether a child is an exceptional child and for
determining an appropriate educational program for the child.
(9) Each agency shall use assessment tools and strategies that provide relevant information that directly assists persons in
determining the educational needs of the child.
(b) (1) Each child shall be assessed in all areas related to a suspected exceptionality, including, if appropriate, the following:
(A) Health;
(B) vision;
(C) hearing;
(D) social and emotional status;
(E) general intelligence;
(F) academic performance;
(G) communicative status; and
(H) motor abilities.
(2) Each evaluation shall be sufficiently comprehensive to identify all of the child’s special education and related services needs,
whether or not commonly linked to the disability category in which the child has been classified.
(c) If a child is suspected of having a specific learning disability, the agency also shall follow the procedures prescribed in K.A.R. 91-40-11 in
conducting the evaluation of the child.
K.A.R. 91-40-11(b)(c)
(b)(1) A group evaluating a child for a specific learning disability may determine that the child has that disability only if the following
conditions are met:
(A) The child does not achieve adequately for the child's age or meet state-approved grade-level standards, if any, in one or more
of the following areas, when the child is provided with learning experiences and instruction appropriate for the child's age and grade
level:
(i) Oral expression;
(ii) listening comprehension;
(iii) written expression;
(iv) basic reading skill;
(v) reading fluency skills;
(vi) reading comprehension;
(vii) mathematics calculation; and
(viii) mathematics problem solving; and
(B)(i) The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the areas
identified in paragraph (b)(1)(A) when using a process based on the child's response to scientific, research-based intervention; or
(ii) the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, grade-level
standards, or intellectual development that is determined by the group conducting the evaluation to be relevant to the
identification of a specific learning disability, using appropriate assessments.
(2) A child shall not be determined to be a child with a specific learning disability unless the group elevating the child
determines that its findings under paragraphs (b)(1))(A) and (B) are not primarily the result of any of the following:
(i) A visual, hearing, or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v) environmental or economic disadvantage; or
(vi) limited English proficiency.
(c) (1) The group evaluating the child shall ensure that the child is observed in the child's learning environment, including
the regular classroom setting, to document the child's academic performance and behavior in the areas of difficulty.
(2) In conducting the observation, the group may employ either of the following procedures:
(A) Use information from an observation in routine classroom instruction and monitoring of the child's performance that
was done before the child was referred for an evaluation; or
(B) have at least one member of the group conduct an observation of the child's academic performance in the regular
classroom after the child has been referred for an evaluation and parental consent is obtained.
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F. DETERMINING CONTINUED ELIGIBILITY
Upon completion of the reevaluation, the team should compile all data (that which previously existed and/or was
collected as part of the reevaluation) into a format that will be useful when the team convenes to make the continued
eligibility determination. It is important that all the information be in an understandable format that allows the team,
including the parent, to understand the child’s strengths and weaknesses and how the child is progressing in the
general curriculum in addition to information about the child’s exceptionality and needs for special education.
At the time the reevaluation is completed, the team should schedule a time to convene in order to make the
determination of continued eligibility. Parents are to be provided an opportunity to participate in the eligibility
meeting, which can be conducted at the same time as the IEP team meeting. The school must provide a notice of
the meeting at least 10 calendar days prior to the meeting date that includes the requirements in K.A.R. 91-40-
17(b)(1).
When the meeting is convened, the reevaluation team, including the parents, review the results of the reevaluation to
determine:
if the child continues to be a child with an exceptionality;
the educational needs of the child;
the present levels of academic achievement andthe functional performance (related developmental needs)
of the child;
whether the child continues to need special education and related services; and
whether any additions of modifications to the special education and related services are needed to enable
the child to meet the measurable annual goals set out in the IEP of the child and to participate, as
appropriate in the general education curriculum.
As is the case in all reevaluations, when making the determination of whether the child continues
to be a child with an
exceptionality and whether the child continues
to need special education and related services, teams must take into
account that the child has made progress since the time he/she was initially evaluated and determined to be eligible
for services. The fact that the child’s performance gap may be less than at the time of the initial evaluation would not
necessarily mean that the child is no longer a child with an exceptionality and no longer in need of special education
services.
The data collected at the time of the reevaluation should assist the team in decision making. Teams should
thoroughly discuss the child’s present levels of educational performance and consider the child’s rate of progress.
Teams should also consider what level of support is needed in order for the child to access and progress in the
general curriculum and whether that level of support would continue to require specially designed instruction. If at
the time of reevaluation, a student needs only general accommodations, then the student is no longer eligible for
special education, but should be referred for consideration of eligibility for a 504 plan. These careful considerations
should drive the determination of continued eligibility.
Documenting Continued Eligibility
After completion of appropriate reevaluation procedures, the team of qualified professionals and the parent of the
child shall prepare a written reevaluation report. A copy of the reevaluation report and documentation of whether or
not the child continues to be a child with an exceptionality must be given to the parents. See Section F, of Chapter 3,
in this Handbook for a complete discussion of the requirements for determination of continuing eligibility and a
description of the reevaluation and continued eligibility report. (See Appendix A, Figure 3-5, Evaluation/Eligibility
Report Checklist.).
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G.
REEVALUATION FOR A CHILD IDENTIFIED AS DEVELOPMENTALLY DELAYED
Special considerations impacting reevaluation are needed for children who have been determined eligible for special
education services under the category of developmental delay (DD). These considerations must be made in
accordance with regulations regarding a child’s continuing eligibility for services.
State Statute and regulations (K.S.A. 72-962(z)(2); K.A.R. 91-40-1(k)) allow schools to identify children ages three
through nine as a child with a developmental delay(DD). Federal regulations clarify that the use of the category of
developmental delay is optional for the school and may be used for children ages three through nine or any subset of
that age range (i.e., 3-5, 6-9. etc.) (34 C.F.R. 300.111(b)).
If a child ages 3-9 was determined eligible as a child with DD, a reevaluation must be conducted before the child
turns age 10 to determine whether the child continues to be a child with an exceptionality as defined by any of the
categorical areas under the law and whether the child continues to have a need for special education and related
services. The reevaluation to determine continued eligibility as a child with an exceptionality may take place anytime
prior to the child’s 10
th
birthday, or if the child’s 10
th
birthday is after December 1, the reevaluation must be completed
by the end of the school year in which the child turns 10 years of age.
State Regulations:
K.A.R. 91-40-1
(k)
"Child with a disability
" means the following:
(1) A child evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual
impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any other health
impairment, a specific learning disability, deaf-blindness, or multiple disabilities and who, by reason thereof, need special education
and related services; and
(2) for children from ages three through nine, a child who is experiencing developmental delays and, by reason thereof, needs special
education and related services.
(q)
"Developmental delay"
means such a deviation from average development in one or more of the following developmental areas that
special education and related services are required: (A) Physical; (B) cognitive; (C) adaptive behavior; (D) communication; or (E) social or
emotional development. The deviation from average development shall be documented and measured by appropriate diagnostic instruments
and procedures.
K.A.R. 91-40-2. FAPE
(c)(1) Each agency shall make FAPE available to any child with a disability even though the child is advancing from grade to grade.
(2) The determination of whether a child who is advancing from grade to grade is a child with a disability shall be made on an individual
basis in accordance with child find activities and evaluation procedures required by this article.
K.A.R. 91-40-10(h)
(h)With regard to children from ages six through nine who are determined to need special education and related services, an agency may elect
to use the term
"developmental delay"
or one or more of the categories of disabilities described in the definition of the term "child with a
disability."
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QUESTIONS AND ANSWERS ABOUT REEVALUATION
1. What does the school do if parents refuse consent for a reevaluation?
The school must try to obtain consent from the parents. The school may, but is not required to seek to mediate
the dispute or file for a due process hearing to pursue the reevaluation. The school would not violate the
requirement to conduct a reevaluation if it declines to pursue the reevaluation when the parent refuses to provide
consent. The school would continue to serve the child according to the IEP.
2. What does the school do to document reasonable measures were taken to obtain
consent, if parents do not respond to the request to reevaluate?
If the parent does not respond the school must keep detailed records of its attempts to obtain parental consent
including written correspondence sent to the parents, phone calls made or attempted and visits made to the
parent’s home or place of employment, and the response, if any, from the parent. At a minimum schools must
make two attempts, using at least two different methods. If the school is not successful after repeated
reasonable measures, then the school may continue with the reevaluation procedures. (K.A.R. 91-40-
17(e)(2)(A); 34 C.F.R. 300.303(d)(5); 34 C.F.R. 300.300(d))
3. What does the school do if parents want a specific test conducted, but the rest of the
reevaluation team believes no additional data are needed? Must the school conduct
the test?
The school would have the option of conducting the test, or providing Prior Written Notice to the parents of
refusal to test and the reason they do not think the testing is necessary. If the parents do not agree, they may
request mediation or due process.
4. If no additional data are needed, does the reevaluation team need to write a report
just to determine continued eligibility and need?
Yes. Upon the completion of the reevaluation (which may include only existing data) and determination of
continued eligibility, the team develops a reevaluation and eligibility report as described in Chapter 3. The report
includes what data were examined and their reasons for determining continued eligibility for special education
and related services. The parents are to receive a copy of this report.
6. May staff discuss information related to a child’s instruction without the parents?
Yes, Kansas regulations clarify that, "a meeting does not include informal or unscheduled conversations
involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or
coordination of service provision if those issues are not addressed in the child's IEP. A meeting also does not
include preparatory activities that public agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting." (K.A.R. 91-40-25(e)).
7. Once a child has been exited from special education services, must you complete an
initial evaluation upon a referral to determine need for special education?
Once the child has been identified as a child with an exceptionality, even though s/he may have been exited, any
subsequent evaluation would be a "reevaluation." The reevaluation must include all the same requirements for
an initial evaluation and a review of existing data. If there is enough current data available the team may
determine there does not need to be any further assessments conducted.
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8. When a student with an exceptionality is graduating and exiting from special
education services, must the school conduct a reevaluation to determine post-school
program eligibility?
Schools are not required to conduct a reevaluation for a child to meet the entrance or eligibility requirements of a
post-school institution or agency because to do so would impose a significant cost on the school that is not
required by the law (Federal Register, August 14, 2006, p. 46644).
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CHAPTER 8
DISCONTINUING SPECIAL EDUCATION SERVICES
INTRODUCTION
There are times when a child’s eligibility for special education and related services ends or when the parent or
student chooses to end the provision of special education services. This chapter discusses several instances in
which students currently receiving special education services “discontinue” or exit from their special education
program. Such circumstances include the following:
A. No Longer Eligible for Services
B. Graduation
C. Services to Age 21
D. Summary of Performance
E. Revocation of Consent for Special Education Services
F. Student Drops Out of School
G. Prior Written Notice and Request for Consent
A. NO LONGER ELIGIBLE FOR SERVICES
When a parent or school personnel suspect that a child is no longer eligible for special education and related
services, a reevaluation must be conducted to determine if the child is no longer a child with an exceptionality (K.S.A.
72-986(l)(1)). As part of the reevaluation, the IEP team will review existing data and determine whether they need to
conduct any additional assessments (See Chapter 7, Reevaluation.).
If it is determined by the IEP team through a reevaluation that the child is no longer a child with an exceptionality (no
longer has a disability or is gifted and needs special education and related services), the district will provide the
parents with Prior Written Notice of this decision and obtain parent consent before discontinuing services (See
Appendix A, Figure 1-6, Prior Written Notice, and
www.kansped.org .). Typically, if the IEP Team determines that a
child is no longer eligible, the reason is that the child no longer has a need for special education and related services.
For example, a child who was identified with speech and language delays as a young child has benefited from
speech/language services, met the exit criteria determined by the IEP Team, and no longer needs such services.
Services may be discontinued, with parent consent, if the IEP team determines that the data support that the child no
longer has a need for special education services.
B. GRADUATION
All students receiving special education services will receive a regular high school diploma at the completion of their
secondary program if they meet graduation requirements of the state and school district, or as specified on their IEP.
A regular high school diploma does not include an alternative diploma that is not fully aligned with the State’s
academic standards, such as a certificate or GED (Federal Register, August 14, 2006, p. 46580). If a modified or
differentiated diploma or certificate is used for students receiving special education services; however, such diplomas
or certificates do not end eligibility for special education services.
When the student enters high school, progress toward graduation must be monitored annually and recorded on an
official transcript of credits. If the student has completed the required courses for graduation, but the IEP team
determines the student still needs additional special education and related services, graduation would be delayed
and the student can continue to receive the needed special education services on the IEP through the school year in
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Kansas Special Education Process Handbook
which the student turns 21. Some students may require services until age 21 to meet IEP goals. The district’s
obligation to provide special education services ends (a) when the student meets graduation requirements and
receives a regular high school diploma, (b) at the end of the school year in which the child reaches age 21, or (c) an
evaluation shows that the child is no longer eligible for special education services(K.A.R. 91-40-2(f)).
Students with exceptionalities who meet graduation criteria must be afforded the same opportunity to participate in
graduation ceremonies as students without exceptionalities, even if the IEP team determines that services will
continue after the student has met all of the required credits (but an official diploma has not been awarded). A
student may require services until age 21 to meet IEP goals, or because he or she has not obtained all of the
required credits for graduation. In either case, however the student may be allowed to participate in graduation
ceremonies with his/her classmates. Schools may have a policy regarding participation in graduation ceremonies;
however it must apply equally to all students in the district, not just for students with exceptionalities.
No reevaluation is required prior to exiting a student due to graduation (K.S.A. 72-986(l)(2); 34 C.F.R. 300.305(e)(2)).
However, before the student completes the last semester of high school in which she/he is expected to graduate, the
district must provide the student (if over age 18) and the parents with Prior Written Notice of the discontinuation of
services at the end of the school year
.
The Prior Written Notice will clearly state that the student will no longer be
entitled to receive special education services from the district after graduation. Parental consent is not required when
a child graduates with a regular diploma (K.A.R. 91-40-27(a)(3); 34 C.F.R. 300.102(a)(3)(iii)).
Figure 8-1 in Appendix A is a letter from the Federal Office of Special Education Programs (OSEP) about criteria for
grading, graduation, and diplomas for students with disabilities. This OSEP letter (often referred to as the "Runkel
letter") provides additional guidance.
State Statute:
K.S.A. 72-986(l)(2)
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation from
secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
State Regulation:
K.A.R. 91-40-2(f)
(1) An agency shall not be required to provide FAPE to any exceptional child who has graduated from high school with a regular high
school diploma.
(2) Each exceptional child shall be eligible for graduation from high school upon successful completion of state and local board
requirements and shall receive the same graduation recognition and diploma that a nonexceptional child receives.
(3) The IEP of an exceptional child may designate goals other than high school graduation.
(4) When an exceptional child enters high school, progress toward graduation shall be monitored annually and recorded on an official
transcript of credits.
(5) As used in this subsection, the term “regular high school diploma” means the same diploma as is awarded to nonexceptional students
and shall not include certificates of completion or other certificates, or a general educational development credential (GED).
C. SERVICES TO AGE 21
The district must make FAPE available to any student who has not graduated with a regular high school diploma until
the end of the school year in which the student turns 21 (the school year ends on June 30.). The IEP team may
determine that the student needs extended school year services, which would be available through June 30 of the
school year in which the student turns 21. The school must provide the student age 18 and over, and the parents
with Prior Written Notice that the services will be discontinued at the end of the school year, however, parental
consent is not required. A reevaluation is also not required when a student ages out of eligibility for services upon
turning age 21 (K.S.A. 72-986(l)(2); (K.A.R. 91-40-27(a)(3); 34 C.F.R. 300.305(e)(2).
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Kansas Special Education Process Handbook
State Statute:
K.S.A. 72-986(l)
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child in accordance with this section before determining that the child
is no longer an exceptional child.
(2) A reevaluation of a child shall not be required before termination of a child’s eligibility for services under this act due to graduation from
secondary school with a regular diploma, or due to exceeding the age for eligibility for services under this act.
State Regulation:
K.A.R. 91-40-10(g)
(g)(2) An agency shall not be required to conduct a reevaluation of a child with an exceptionality before terminating special education or
related services to the child if the reason for termination of services is due to either of the following:
(A) The child has graduated from high school with a regular high school diploma.
(B) The child has reached the age of 21 years.
D. SUMMARY OF PERFORMANCE
A Summary of Performance (SOP) is required under the reauthorization of the Individuals with Disabilities Education
Act of 2004 for a child whose eligibility under special education terminates due to graduation with a regular diploma,
or due to exceeding the age of eligibility. The local education agency must provide the child with a summary of the
child’s academic achievement and functional performance, which must include recommendations on how to assist
the child in meeting the child’s postsecondary goals (K.S.A. 72-986(m); 34 C.F.R. 300.305(e)(3). This requirement
applies only to children with disabilities, therefore, an SOP does not need to be completed for students identified as
gifted.
The purpose of the SOP is to transfer critical information that leads to the student’s successful participation in
postsecondary settings. It includes a summary of the achievements of the student with current academic, personal
and career/vocational levels of performance. Information may be included as part of the summary based on
assessment findings and team input. Assessment data and accommodations included in the summary should be
written in functional terms easily understood by the student. Any supporting documents are to be appropriately
referenced and included with the summary. Signatures by the student and IEP team members are encouraged as
verification that the contents of the summary have been explained, but are not required.
The SOP must, at a minimum, address the following:
•
Academic achievement: Information on reading, math, and language grade levels, standardized scores, or
strengths.
•
Functional performance: Information on learning styles, social skills, independent living skills, self-
determination, and career/vocational skills.
•
Recommendations: Team suggestions for accommodations, assistive services, compensatory strategies for
post-secondary education, employment, independent living, and community participation.
The Summary of Performance is intended to assist the student in transition from high school to higher education,
training and/or employment. This information is helpful under Section 504 of the Rehabilitation Act and the
Americans with Disabilities Act (ADA) in establishing a student’s eligibility for reasonable accommodations and
supports in postsecondary settings. It is also useful for the Vocational Rehabilitation Comprehensive Assessment
process. However, recommendations in a student’s SOP do not assure that an individual who qualified for special
education in high school will automatically qualify for accommodations in a postsecondary education or employment
setting. Post secondary settings will continue to make ADA and Section 504 eligibility decisions on a case-by-case
basis based on their criteria.
Since the SOP must be provided to the student with a disability whose eligibility terminates due to graduation or age,
it is reasonable to conclude that the SOP must be completed and provided to the student by the end of the final year
of a student’s high school education. That does not mean that it cannot be completed and provided to the student
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prior to graduation. The timing of completion of the SOP may vary depending on the student’s postsecondary goals.
If a student is transitioning to higher education, the SOP may be necessary as the student applies to a college or
university. Likewise, this information may be necessary as a student applies for services from state agencies such
as vocational rehabilitation. In some instances, it may be most appropriate to wait until the spring of a student’s final
year to provide an agency or employer the most updated information on the performance of the student. (See
Appendix A, Figure 8-2, Summary of Performance form, and
www.kansped.org .)
State Statute:
K.S.A. 72-986(m)
(m) For a child whose eligibility for services under this act terminates under either of the circumstances described in subsection (l), the agency
shall provide the child with a summary of the child’s academic achievement and functional performance, which shall include
recommendations on how to assist the child in meeting the child’s postsecondary goals.
E. REVOCATION OF CONSENT FOR SPECIAL EDUCATION SERVICES
Parent consent is voluntary, and may be revoked by the parents at any time. If a parent revokes consent for existing
services, the LEA should meet with the parent to attempt to resolve the difficulty, seek mediation, or possibly initiate a
due process proceeding to override the parent's objection. If the parent cannot be convinced to continue the
services, the LEA also may honor the parent's objection and cease provision of the services. In this case, the LEA
should send written notice to the parent stating that it stands ready, willing, and able to provide appropriate services
to the child, if the parent reconsiders his or her objection to those services.
If the parents or an adult student revokes consent for special education services, no reevaluation is needed. The
student continues to have a right to FAPE, despite the adult students’ or the parents' decision to withdraw from special
education services. Schools ultimately have the burden to provide FAPE, and should recognize the potential legal
ramifications if they do not pursue mediation and/or due process when the parents and/or adult student revokes consent
to continue services. A student or his/her parents could come back later and ask for compensatory education.
Additionally, K.S.A. 72-977 states that:
"…it shall be the duty of the parent of each exceptional child to require such child to attend school
to receive the special education and related services which are indicated on the child's IEP or to
provide for such services privately. (b) The provisions of subsection (1) do not apply to gifted
children or to parents of gifted children."
Therefore, the parent can provide the services privately. The requirement for parent responsibility for mandatory special
education services applies only to parents of children with disabilities, not to parents of children who are gifted.
When parents revoke their consent for a specific special education action, the revocation is not retroactive but
becomes effective on the date that it was revoked (K.A.R. 91-40-1(l)(3); 34 C.F.R. 300.9). Therefore, the revoking of
consent does not negate any action that has occurred after the previous consent was given and before the consent
was revoked.
If the parent refuses or revokes consent for one service or activity the school cannot deny the parent or child any
other activity or service on the child’s IEP (K.A.R. 91-40-27(h)). In addition, because consent for services must be in
writing, revocation of consent must be in writing.
State Regulations:
K.A.R. 91-40-1(l)(3)
(3) A parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time, but if the
parent revokes consent, that the revocation is not retroactive and does not negate an action that has occurred after the consent was
given and before the consent was revoked.
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F. STUDENT DROPS OUT OF SCHOOL
Under K.S.A. 72-1111, students without disabilities are allowed to drop out of school at age 16, and may at some
point obtain a General Education Diploma (GED). However, as discussed previously, K.S.A. 72-977 gives parents of
a child with a disability the responsibility to provide for the special education services for their child, either within the
public school or through private means. If for some reason a student with a disability drops out of school,
documentation to that effect must be placed in the student’s confidential file. The school must inform the parents that
special education services continue to be available to the student. KSDE recommends that the school send a letter
to the parents, stating that the school remains ready to provide special education services to their child. If the
student reenrolls, the previous IEP must be implemented until a new IEP is developed.
If a student drops out of school, the school is obligated to consider the student's FAPE entitlement very carefully.
The school has an obligation to report the student's truancy to the District Attorney or County Attorney if the student
is younger than age 18. The school may want to consult with the school's attorney on this issue as well.
If a student drops out of school, no Prior Written Notice, consent, or reevaluation is required. However, reevaluation
may be needed if the student was to reenroll and a new IEP may need to be developed.
G. PRIOR WRITTEN NOTICE AND REQUEST FOR CONSENT
For some situations discussed within this chapter, parents must receive Prior Written Notice, and sometimes the
school must obtain informed parent consent. (See Appendix A, figures 1-5 and 1-6, Prior Written Notice and Consent
forms and
www.kansped.org .)
The following chart may be useful to districts in determining when a reevaluation, Prior Written Notice and parent
consent, as well as a Summary of Performance (SOP) are needed:
Reason for
Discontinuing Services
Reevaluation
Required
Prior Written
Notice Required
Parent or Adult
Student Consent
Required
SOP
Required
No longer eligible for special
education and related services
Yes
Yes
Yes
No
Graduation
No
Yes
No
Yes
Services at age 21
No
Yes
No
Yes
Revokes consent for special
education services
No
No
No
No
Drops out of school
No
No
No
No
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QUESTIONS AND ANSWERS ABOUT
DISCONTINUING SPECIAL EDUCATION SERVICES
1. What if the student no longer requires special education services?
The IEP Team must determine whether the student no longer requires special education services based on data
from a reevaluation. If, after a reevaluation, the team determines that the student is no longer eligible for special
education it must give parents Prior Written Notice of that determination and that the team is proposing to end
services. The school must also request that the parent give written consent for the end of services. The IEP
Team may also determine that the student qualifies as a student with a disability under Section 504 and refer the
student to the Section 504 team, which would write a Section 504 plan for him/her. (See Appendix G.)
2. What is required when the student graduates from high school?
The school must provide the student, if age 18, and the parents with Prior Written Notice of exiting special
education. The Prior Written Notice will clearly state that the student will no longer be entitled to receive special
education services from the district after graduation. Informed parent consent is not required. Additionally, the
school must provide the student with a Summary of Performance (See Appendix A, Figure 8-2.).
3. May a student participate in graduation exercises with his or her classmates, if s/he is
not actually graduating?
Yes, the student may participate in graduation exercises unless a local policy would not allow it. However, if
there is such a policy, it must apply to all students and not just students receiving special education services.
This would apply even if a student has met all of the credits for graduation, but the IEP team determines that
additional services are needed. Some students may require services until age 21 to meet IEP goals, which
should be addressed within the student's transition plan. In either case, the student could participate in
graduation exercises with his/her class, but not actually receive a diploma at that time.
4. Are students who drop out of school and later begin working on a General Education
Diploma (GED) eligible for special education and related services?
The student must be enrolled in the public school in order to receive special education and related services. A
student who drops out of school and later enrolls in a program to obtain a General Education Diploma (GED)
would not have special education services available to him/her. However, if there are IEP goals that were not
completed before the student dropped out of school, the student may reenroll in the public school. The student
may be entitled to receive services until June 30 following the student's 21
st
birthday. Obtaining a GED does not
end a student’s eligibility for special education services (34 C.F.R. 300.102(a)(3)(iv).
5. What if the team decides that the child is no longer eligible for special education
services, but the parents refuse to consent to the child exiting from services?
Services must continue. However, the team could continue to try to reach consensus with the parent. If parents
continue to refuse to provide consent, then the school could request mediation and/or due process.
6. What if a child who has exited from special education services is referred again?
A reevaluation would be conducted to reestablish whether the child continues to be a child with an exceptionality
and has a need for special education and related services, thus making the child eligible once again for special
education services. See Chapter 7, Reevaluation. The school would provide Prior Written Notice and request
consent from the parents or adult student before beginning the reevaluation.
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7. A student who becomes 21 years of age during the school year would no longer be
eligible for services after June 30 following the end of that school year. What if the
student's birthday is July 1?
Technically, if the student reaches 21 during the new school year (even for one day) and would be entitled to
services until the following June 30, which would be just before the student's 22
nd
birthday on July 1.
8. What is the school’s responsibility if the parents of a child want the child dismissed
from special education, but the school representatives on the team feel this is
inappropriate?
Parents always have the right to rescind their written informed consent to the provision of special education and
related services for their child. If the parents unilaterally withdraw their child from special education and the
remaining members of the child’s IEP Team feel that the child continues to need special education, the school
will have to consider its options to request mediation, initiate due process, or inform SRS or the District Attorney,
depending on the circumstances and the age of the child.
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CHAPTER 9
CONFIDENTIALITY
INTRODUCTION
Confidentiality of educational records is a basic right shared by all students in public schools and their parents.
These fundamental rights are described in the Family Educational Rights and Privacy Act (FERPA) of 1974, as
amended (2006). Appendix F and
www.kansped.org includes a copy of the federal regulations relating to FERPA,
which applies to all students, not only those with exceptionalities. Kansas Special Education Regulations,
K.A.R. 91-40-50 has adopted by reference provisions in 34 C.F.R. 300.612-300.624, as effective on January 1, 2007,
which concern parental access to educational records and confidentiality of those records, are adopted by reference.
Confidentiality regulations apply to the State, to all public schools and private schools that accept federal funds. In
addition, all school personnel (including contracted employees) are governed by confidentiality requirements of the
Individuals with Disabilities Education Act (IDEA), which apply to students with exceptionalities. Confidentiality is one of
the rights afforded to parents and is included in the Parent Rights document (See Appendix A, Figure 1-2.). Chapter 1 in
this Handbook includes additional information about parent rights. All people involved in special education should be
aware of the laws and regulations ensuring that all records and information will be kept secure and remain confidential.
This chapter provides specific information about confidentiality requirements for schools:
A. Federal and State Requirements
B. Access to Records
C. Transfer of Records
D. Release of Information
E. Amendment of Records
F. Destruction of Records
G. Age of Majority
H. Test Protocols
I.
Discipline Records
J. Child in Need of Care
A. FEDERAL AND STATE REQUIREMENTS
Each
school shall annually notify parents of their rights under FERPA. The notice must inform parents or adult
students that they have the right to:
1. Inspect and review the student's education records;
2. Seek amendment of the student's education records that the parent or eligible student believes to be
inaccurate, misleading, or otherwise in violation of the student's
privacy rights;
3. Consent to disclosures of personally identifiable information contained in the student's education records,
except to the extent that FERPA and Sec. 99.31 authorize disclosure without consent; and
4. File a complaint under Sec. 99.63 and 99.64 concerning alleged failures by the
educational agency or
institution to comply with the requirements of FERPA.
Additionally, the notice must include all of the following:
•
The procedure for exercising the right to inspect and review education records.
•
The procedure for requesting amendment of records.
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The school district may provide this notice by any means that are reasonably likely to inform the parents or eligible
students of their
rights. The school shall effectively notify parents who have a primary or home language other than
English. (34 C.F.R. 99.7) This notice should adequately inform parents prior to any identification, location, or
evaluation activity taking place. A sample of an annual notice regarding FERPA requirements is in Appendix A,
Figure 9-1.
Definitions of terms used are as follows (K.A.R. 91-40-50; 34 C.F.R. 300.32):
Personally identifiable
means information includes information such as the name of the child, child's parents,
or other family member; address; personal identifier such as the child's social security number or student
number; or list of personal characteristics or other information that would make it possible to identify the child.
Destruction
means physically destroying the medium on which information is recorded or removing all personal
identifiers from the information so no one can be identified.
Educational records
means any document or medium on which information directly related to one or more
students is maintained by a participating agency.
Participating agency
means any educational agency or institution that collects maintains or uses personally
identifiable student information to provide special education and related services to children with disabilities.
In addition to these Federal requirements, the Kansas State Department of Education (KSDE) is obligated to
establish policies and procedures to ensure that confidentiality requirements are in place at every participating
agency. KSDE does this by having each public agency accessing funds sign assurances and adopt or establish local
policies and procedures consistent with confidentiality requirements.
Federal Regulations:
Sec. 300.32
Personally identifiable means that information includes--
(i)
The name of the child, the child's parent, or other family member;
(ii) The address of the child;
(iii) A personal identifier, such as the child's social security number or student number; or
(iv)
a list of personal characteristics or other information that would make it possible to identify the child with reasonable
certainty.
(v)
Sec. 300.612. Notice to parents
(a) The SEA shall give notice that is adequate to fully inform parents about the requirements of Sec. 300.123, including--
(1)
A description of the extent that the notice is given in the native languages of the various population groups in the State;
(2)
A description of the children on whom personally identifiable information is maintained, the types of information sought, the
methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the
uses to be made of the information;
(3)
A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
(4)
A description of all of the rights of parents and children regarding this information, including the rights under the Family
Educational Rights and Privacy Act of 1974 and implementing regulations in 34 C.F.R. part 99.
(b) Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media,
or both, with circulation adequate to notify parents throughout the State of the activity.
State Regulations:
K.A.R. 91-40-50. Parental access to student records; confidentiality.
(a) As used in this regulation, the following terms shall have the meanings specified in this subsection:
(1) "Destruction" means physically destroying the medium on which information is recorded or removing all personal identifiers from the
information so that no one can be identified.
(2) "Education records" means any document or medium on which information directly related to one or more students is maintained by a
participating agency in accordance with K.S.A. 72-6214 and amendments thereto.
(3) "Participating agency" means any educational agency or institution that collects, maintains, or uses personally identifiable student
information to provide special education and related services to children with disabilities.
(b) The provisions in 34 C.F.R. §§ 300.612 through 300.624, as in effect on August 14, 2006, and published in 71 fed. reg. 46802-46804
(2006), which concern parental access to education records and confidentiality of those records, are hereby adopted by reference.
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B. ACCESS TO RECORDS
FERPA and Federal and State special education laws and regulations require schools to have reasonable policies in
place to allow parents to review and inspect their child's records. An education record means those records that are
directly related to a student and maintained by an
educational agency or institution or by a party acting for the agency
or institution.
Educational records
may include, but not limited to:
•
academic work completed and level of achievement
•
attendance data
•
scores and test protocols of standardized intelligence, aptitude, and psychological tests
•
interest inventory results
•
health data
•
family background information
•
information from teachers or counselors
•
observations and verified reports of serious or recurrent behavior patterns
•
IEPs
•
documentation of notice and consent
Under certain circumstances, a teacher's working file would not be considered to be part of the child's record.
FERPA regulation 34 C.F.R. 99.3, states that the term
"education records" does not include records that are
kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or
revealed to any other person except a temporary substitute for the maker of the record."
The district must prevent the disclosure to any unauthorized person of personally identifiable information pertaining to
all students.
Disclosure
is the release, transfer or other communication of records, or the personally identifiable
information contained in those records, to any party, by any means, including oral, written, or electronic.
FERPA allows parents to inspect and review all education records of their children maintained by an educational
agency that receives Federal funds. This includes all public schools and private schools that accept federal funds.
The school must comply with a request to inspect records within a reasonable time, not to exceed 45 calendar days.
FERPA regulations allow some
exceptions to the requirement to obtain parent consent before releasing
records
. All of these exceptions also apply to the confidentiality requirements in the federal special education
regulations (34 C.F.R. 300.622(a)). For example, FERPA allows the school to release records to authorized
individuals, such as:
•
other school officials, including teachers at the school where the student attends, who have a legitimate
educational interest (34 C.F.R. 99.31(a)(1));
•
officials of another school, school district, or postsecondary educational institution where the student is
enrolled or seeks or intends to enroll, IF (a) the district's annual notice included a notice that the district
forwards education records to other agencies that request records and in which the student seeks or intends
to enroll; or (b) the district makes a reasonable attempt to notify the parents or the student of the disclosure
at the last known address (34 C.F.R. 99.31(a)(2)), however no notice is required if the disclosure is initiated
by the parent or adult student;
•
authorized representatives of the US Comptroller General, US Secretary of Education, and State
Educational Agencies in connection with an audit or evaluation of Federal or State supported programs, or
for the enforcement or compliance with Federal legal requirements related to those programs (34 C.F.R.
99.31(a)(3));
•
disclosure in connection with financial aid for which the student has applied or received to determine
eligibility, amount, or conditions of the aid or to enforce the terms and conditions of the aid (34 C.F.R.
99.31(a)(4));
•
disclosure to State and local officials to whom the information is specifically allowed to be reported pursuant
to State statute (34 C.F.R. 99.31(a)(5));
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•
disclosure to organizations conducting studies for educational agencies to develop, validate or administer
predictive tests; administer student aid programs; or improve instruction, but only if the study does not allow
personal identification of parents and students to anyone other than representatives of the organization
conducting the study, and if the information is destroyed when no longer needed for the purposes for which
the study was conducted (34 C.F.R. 99.31(a)(6));
•
disclosure to accrediting organizations to carry out their functions (34 C.F.R. 99.31(a)(7));
•
disclosure to a parent of a student who qualifies as a dependent under section 152 of the Internal
Revenue Service Code (34 C.F.R. 99.31(a)(8));
•
disclosure of relevant educational records to a court in a legal action initiated by the district against a parent.
Also, disclosure to comply with a judicial order or subpoena. However, these disclosures may be made only
if the district makes a reasonable effort to notify the parents or eligible student of the order or subpoena in
advance of compliance with the order or subpoena, unless the order or subpoena states that the existence
or contents of the order or subpoena not be disclosed (34 C.F.R. 99.31(a)(9));
•
disclosure in connection with a health or safety emergency, if knowledge of the information is necessary to
protect the health or safety of the student or other individuals (34 C.F.R. 99.31(a)(10));
•
disclosure of directory information. This is information contained in an education record of a student which
would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not
limited to, the student's name, address, telephone listing, date and place of birth, major field of study,
participation in officially recognized activities and sports, weight and height of members of athletic teams,
dates of attendance, degrees and awards received, and the most previous educational agency or institution
attended (34 C.F.R. 99.31(a)(11));
•
disclosure to the adult student or student of any age if attending a postsecondary school, or to the parents of
a student who has not reached 18 years of age and is not attending an institution of postsecondary
education (34 C.F.R. 99.31 (a)(12)); and
•
disclosure of the results of any disciplinary proceeding conducted by an institution of postsecondary
education against an alleged perpetrator to an alleged victim of any crime of violence, as defined by section
16 of title 18, United States Code (34 C.F.R. 99.31 (a)(13)); or
•
Disclosure to a parent of a student attending an institution of post secondary education regarding the illegal
use of alcohol (34 C.F.R. 300.622(a)).
To ensure protection of education records, the school district must:
1. Obtain written consent before disclosing personally identifiable information to unauthorized individuals. A
parent must provide consent if the child is under 18 years of age (unless one of the exceptions listed above
applies).
2. Designate and train a records manager to assure security of confidential records for students with
exceptionalities.
3. Keep a record or log of all parties obtaining access to education records, including the name of the party,
the date access took place, and the purpose of the authorized use.
4. Maintain for public inspection a current listing of names and positions of employees who may have access
to personally identifiable information.
5. Ensure the confidentiality of personally identifiable information at collection, storage, disclosure, and
destruction stages.
6. Ensure that, if any education record includes information on more than one student, a parent of a child must
have the right to inspect and review only the information relating to his or her child, or to be informed of that
specific information.
7. Ensure that each person collecting or using personally identifiable information receives training or instruction
regarding the policies and procedures governing confidentiality of personally identifiable information. The
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district must maintain a record of the training provided, the person or persons providing the training, dates of
the training, those attending, and subjects covered.
8. Provide a parent, upon request, a list of the types and locations of records collected, maintained, or used by
the district.
9. Respond to any reasonable request made by a parent for an explanation and interpretation of a record.
10. Provide a parent, upon request, access to the child's records, and under certain circumstances, a copy of
the records (34 C.F.R. 300.613). Most districts copy records for parents without charge. However, the law
does allow for fees for copies of records made for a parent if the fee does not prevent a parent from
exercising the right to inspect and review those records. A fee may not be charged to search for or retrieve
information.
The following sample forms are in Appendix A:
Figure 9-2, Sample Form for Release of Records
Figure 9-3, Sample Log for Accessing Records
Figure 9-4, Sample List of Employees who Can Access Records
Federal Regulation:
Sec. 300.613. Access rights
(a) Each participating agency shall permit parents to inspect and review any education records relating to their children that are collected,
maintained, or used by the agency under this part. The agency shall comply with a request without unnecessary delay and before any
meeting regarding an IEP, or any hearing pursuant to Secs. 300.507 and 300.521-300.528, and in no case more than 45 days after the
request has been made.
(b) The right to inspect and review education records under this section includes--
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and review the records.
(c) An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been
advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and
divorce.
C. TRANSFER OF RECORDS
Education records include personally identifiable information, and may not be released to another agency or
organization without parent consent. However, when a student transfers to another Kansas school district or
nonpublic school, education records may be forwarded without student or parent consent if the annual FERPA notice
to parents includes a statement that these records will be forwarded to the receiving school. (Figure 9-1 in Appendix
A is a sample FERPA notice.) Immunization records are included in the educational records (under the annual
notification exception) that may also be shared with a receiving school without student or parent consent. By sharing
such information between schools, the unnecessary immunization of children can be avoided.
Children in foster care who move from one community to another should be admitted to the receiving school without
delay. The receiving school may access the education record (including the immunization portion of the record)
without parent consent, if proper public notice has been provided to the parent (K.S.A. 1997 Supp. 72-5209(d)). If
the receiving district is unable to determine the previous district, the school can access the Foster Care Database
which includes information from SRS and JJA regarding custody and out of home placement, as well as educational
records from the school districts the child has attended.
Kansas schools may NOT withhold records because of fines or other such reasons. The sending district is to
transfer the original school record to the requesting district (K.S.A. 72-5386). The sending district should maintain a
copy of the educational record that is sent. In addition, Kansas special education regulations require the sending
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district to immediately transfer the IEP, and any additional educationally relevant information regarding a child with an
exceptionality, to the receiving district (K.A.R. 91-40-4(c)). If the school's annual FERPA notification does not contain
a statement that the school sends educational records to a receiving school, it must make a reasonable attempt to
notify the parent at the last known address of the parent.
When a child transfers from a school district in
another State
to a school district in Kansas, the Kansas school must
obtain parental consent to access the records from the school district in the other State.
State Statute:
K.S.A. 1997 Supp. 72-5209(d)
If a pupil transfers from one school to another, the school from which the student is transferring shall forward the pupil’s immunization
certification to the new school.
K.S.A. 72-5386
(a) This section shall apply to all school districts and to every pupil of any school district. As used in this section, the term "school records"
means transcripts, grade cards, the results of tests, assessments or evaluations, and all other personally identifiable records, files and data
directly related to a pupil.
(b) All school district property in the possession of any pupil shall be returned to the proper school district authority or paid for by the pupil
upon transfer of the pupil from the school district. The school records of any such pupil shall not be withheld for any reason. A school
district authority, upon request, shall provide a fully itemized list of the school district property in the possession of the pupil. In the event
that such school district authority receives an affidavit stating that the pupil's parents are unable to return the school district property which
is lost or missing, such school district authority shall note in the school records of the pupil that the pupil has complied with the provisions
of this section. In the event that a school district authority receives an affidavit from the board of education of another school district or
from the governing authority of a nonpublic school stating that a pupil's records are being requested as proof of identity of the pupil
pursuant to the provisions of K.S.A. 72-53,106, and amendments thereto, such school district authority shall forward a certified copy of
that part of the pupil's records which provides information regarding the identity of the pupil.
(c) The school records of each pupil are the property of the pupil and shall not be withheld by any school district. Upon request of a pupil or
the parent of a pupil, the school records of the pupil shall be given to such pupil or parent, or, upon transfer of the pupil to another school
district or to a nonpublic school, shall be forwarded to such school district or nonpublic school. A pupil's records forwarded to another
school district due to transfer will include original copies of all the student's records, including transcripts, grade cards, results of tests,
assessments or evaluations, and all other personally identifiable records, files and data directly related to the pupil.
State Regulations:
K.A.R. 91-40-4
(c)
Unless otherwise expressly authorized by state law, when a student transfers from a state school to a school district or from one school
district to another, the most recent individualized education program, as well as any additional educationally relevant information
concerning the child, shall be forwarded immediately to the receiving school district.
D. RELEASE OF INFORMATION
As discussed in previous sections, consent from the parent or adult student is required before education records may
be released (34 C.F.R.C.F.R. 300.622). Some examples of when parent consent is required include:
•
If a child is enrolled, or is going to enroll in a private school that is not located in the parent’s district
of residence, parental consent must be obtained before any personally identifiable information
about the child is released between officials in the district where the private school is located and
officials in the district of the parent’s residence
(34 C.F.R. 300.622(a)(3)).
•
Parental consent must be obtained before personally identifiable information is released to officials of
participating agencies providing or paying for transition services according to an IEP.
•
Additionally, parent consent is required when a school accesses reimbursement from Medicaid or private
insurance for special education services. To bill Medicaid, the school must release to the Medicaid billing
agency personally identifiable information, such as the student's name, social security or other student
number, category of exceptionality, and other pertinent information.
IDEA 2004 has determined that schools must obtain parental consent each time access to public benefits or
insurance is sought. They must also notify parents that the parents’ refusal to allow access to their public benefits or
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insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at
no cost to the parents.
The Office of Special Education Programs (OSEP) has provided informal guidance that schools can obtain consent
one time annually for the specific services, and duration of services identified in a child’s IEP, and not be required to
obtain a separate consent each time a Medicaid agency or other public insurer is billed for the provision of required
services. If the specific services or the duration of services change, the school must obtain consent to access
Medicaid for the change in services (34 C.F.R. 300.154(d)(2)(iv)). A sample Parent Consent form to use to access
Medicaid reimbursement included in Appendix A as Figure 9-5 (See Appendix A, Figure 1-9, Letter to Smith, OSEP
Memo, Jan 2007; Figure 9-6, Kansas Medicaid Assistance Program Provider Manual.)
This memo does not address private insurance. The federal regulations also require that schools obtain parental
consent for release of information each time the school accesses the child’s private insurance. They must also notify
parents that the parents’ refusal to allow access to their insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to the parents.
Federal Regulation
:
Sec. 300.622 Consent.
(a) Parental consent must be obtained before personally identifiable information is disclosed to parties, other than officials of participating
agencies in accordance with paragraph (b)(1) of this section, unless the information is contained in education records, and the disclosure is
authorized without parental consent under 34 C.F.R. part 99.
(b)(1) Except as provided in paragraphs (b)(2) and (b)(3) of this section, parental consent is not required before personally identifiable
information is released to officials of participating agencies for purposes of meeting a requirement of this part.
(2) Parental consent, or the consent of an eligible child who has reached the age of majority under State law, must be obtained before
personally identifiable information is released to officials of participating agencies providing or paying for transition services in accordance
with §300.321(b)(3).
(3) If a child is enrolled, or is going to enroll in a private school that is not located in the LEA of the parent’s residence, parental consent must
be obtained before any personally identifiable information about the child is released between officials in the LEA where the private school is
located and officials in the LEA of the parent’s residence.
Sec. 300.154
(d) Children with disabilities who are covered by public benefits or insurance.
(1) A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for
services required under this part, as permitted under the public benefits or insurance program, except as provided in paragraph (d)(2) of this
section.
(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under
Part B of the Act;
(ii) May not require parents to incur an out-of pocket expense such as the payment of a deductible or copay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parents
otherwise would be required to pay;
(iii) May not use a child’s benefits under a public benefits or insurance program if that use would--
(A) Decrease available lifetime coverage or any other insured benefit;
(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are
required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of benefits or insurance; or
(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and
(iv)(A) Must obtain parental consent, consistent with §300.9, each time that access to public benefits or insurance is sought; and
(B) Notify parents that the parents’ refusal to allow access to their public benefits or insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to the parents.
(e) Children with disabilities who are covered by private insurance.
(1) With regard to services required to provide FAPE to an eligible child under this part, a public agency may access the parents’ private
insurance proceeds only if the parents provide consent consistent with §300.9.
(2) Each time the public agency proposes to access the parents’ private insurance proceeds, the agency must--
(i) Obtain parental consent in accordance with paragraph (e)(1) of this section; and
(ii) Inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of
its responsibility to ensure that all required services are provided at no cost to the parents.
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E. AMENDMENT OF RECORDS
Parents have the right to request that their child's education records be changed if something is inaccurate,
misleading, or in violation of the student’s rights of privacy. For example, if a child is evaluated and is identified with
a disability or health condition that later is determined to be wrong, the parents may ask that the school remove the
records relating to the inaccurate diagnosis.
If the school does not agree that the education records should be changed, staff must provide an opportunity for a
hearing, following FERPA requirements. The hearing officer would be the school's hearing officer, not a special
education due process hearing officer (34 C.F.R. 300.618).
Federal Regulation:
Sec. 300.618. Amendment of records at parent's request
(a)
A parent who believes that information in the education records collected, maintained, or used under this part is inaccurate or misleading
or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the
information.
(b)
The agency shall decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of
the request.
(c) If the agency decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal and advise
the parent of the right to a hearing under Sec. 300.619.
F. DESTRUCTION OF RECORDS
Federal auditing requires the availability of education records for identified students for 5 years after they exit from
special education services. After that period of time, schools may destroy records. However, before destroying
special education records, the school must notify the parent (or the adult student) that the information is no longer
needed to provide services to the student and that the school is proposing to destroy them.
The requirement to notify the parent or the adult student before records are destroyed may be problematic, if the
student moves from the address last known to the school. In such cases, the school is advised to send a certified
letter to the student at the last known address. If that letter is returned to the school, that return becomes the
documentation of the school's attempt to inform the student of the proposed destruction of records. In such cases,
the school may publish a public notice to students who graduated or left school five years previously. The notice
should be addressed to students and guardians, advising them of the proposed destruction of records and asking
them to contact the school if they object to the destruction.
Many schools inform parents of when the special education records of their child will be destroyed with a statement in
the child’s IEP. The following statement has been approved for insertion into an IEP:
“NOTICE OF DESTRUCTION OF SPECIAL EDUCATION RECORDS: Special education records
for each child with an exceptionality are maintained by the school district until no longer needed to
provide educational services to the child. This notice is to inform you that the special education
records for this student will be destroyed after five (5) years following program completion or
graduation from high school, unless the student (or the student’s legal guardian) has taken
possession of the records prior to that time.”
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Parents may also ask that their child's records be destroyed. However, a permanent record of the following
information may be maintained without time limitation:
•
A student's name, address, and phone number;
•
His or her grades;
•
Attendance record;
•
Classes attended;
•
Grade level completed; and
•
Year completed.
Federal Regulation:
Sec. 300.624. Destruction of information
(a)
The public agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer
needed to provide educational services to the child.
(b)
The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone
number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time
limitation.
G. AGE OF MAJORITY
In Kansas, the age of majority is 18. Students who are 18 years or older, unless they have a guardian appointed
under State law, have the right to grant or withhold consent, have access to records, to amend records, and to file a
complaint, etc. (See Chapter 1, Parent Rights In Special Education, for additional information on age of majority.)
Federal Regulation:
Sec. 300.625. Children's rights
(a)
The SEA shall provide policies and procedures regarding the extent to which children are afforded rights of privacy similar to those
afforded to parents, taking into consideration the age of the child and type or severity of disability.
(b)
Under the regulations for the Family Educational Rights and Privacy Act of 1974 (34 C.F.R. 99.5(a)), the rights of parents regarding
education records are transferred to the student at age 18.
(c)
If the rights accorded to parents under Part B of the Act are transferred to a student who reaches the age of majority, consistent with Sec.
300.520, the rights regarding educational records in Secs. 300.613 through 300.624 must also be transferred to the student. However, the
public agency must provide any notice required under section 615 of the Act to the student and the parents.
H. TEST PROTOCOLS
Some individualized testing involves the use of test protocols. These documents usually include the test questions or
stimuli and the student’s answers or responses. They may also include the correct answers, norm tables (scoring
tables), scoring sheets, and examiner’s notes. When a test protocol contains personally identifiable information directly
related to a particular student, that protocol is an education record and a parent has a right to inspect and review it. In
most cases, however, a parent would not have a right to a copy of a test protocol.
Requests for test protocols occur in varying contexts. Sometimes, parents ask to inspect or photocopy protocols
maintained by schools or their personnel. Occasionally, schools want to review or copy protocols of the parents’
independent educational evaluators. The variables here are whether one seeks to inspect the protocols or to copy them.
When a student with an exceptionality is the subject of a court or administrative hearing, parents may have additional
legal tools for accessing test protocols. These tools include pretrial discovery, subpoenas, and the right to question
witnesses about their records. Also, the US Department of Education has advised that a parent’s FERPA right to inspect
test protocols may include a right to copy them if ordered by a special education due process hearing officer or a judge
in a legal proceeding.
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Clearly, concerns exist about violating the test publisher's copyright protections. Schools are advised that Federal
regulation 34 C.F.R. 300.613(b) would allow parents to inspect and review the records. However, if parents want to
copy such records, the school may want to consult with their attorney. However, if failure to provide a copy of a
requested protocol would effectively prevent the parent from exercising the right to inspect and review their child’s
educational records, the school may be required to provide a copy to the parent (Letter to Thomas, 211 IDELR 420
(FPCO 1986)).
Federal Regulation:
Sec. 300.613(b)
(b) The right to inspect and review education records under this section includes--
(2) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records…
I. DISCIPLINE RECORDS
Schools reporting a crime are allowed to forward the student's special education and disciplinary records to the
appropriate authorities
only
if they have parent consent or if one of the FERPA exceptions to the consent
requirement applies (34 C.F.R. 300.535(b)). See Section A of this chapter, and also Chapter 13 for more information
about release of discipline records to law enforcement.
In addition, other Federal and State requirements are as follows:
•
When schools send records of students to other schools, they are also required to include the discipline
records. (Note: K.S.A. 72-5386 defines school records to include ALL personally identifiable data.)
•
If school employees are required to make a report to a law enforcement agency, they may be charged with
failure to report if they do not comply.
•
If school employees report a crime, the school may not impose sanctions on them.
•
If school employees report a crime in good faith, they have immunity from civil liability.
Federal Regulation:
Sec. 300.535(b)
(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary
records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the
extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
Sec. 300.229. Disciplinary information
(a) The State may require that a public agency include in the records of a child with a disability a statement of any current or previous
disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is
included in, and transmitted with, the student records of nondisabled children.
(b) The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.
(c) If the State adopts such a policy, and the child transfers from one school to another, the transmission of any of the child's records must
include both the child's current individualized education program and any statement of current or previous disciplinary action that has been
taken against the child.
State Statute:
K.S.A. 72-89b04
(a)
Willful and knowing failure of a school employee to make a report required by subsection (b)(1) of K.S.A. 1998 Supp. 72-89b03, and
amendments thereto, is a class B nonperson misdemeanor. Preventing or interfering with the intent to prevent, the making of a report
required by subsection (b)(1) of K.S.A. 1998 Supp. 72-89b03, and amendments thereto is a class B nonperson misdemeanor.
(b)
Willful and knowing failure of any employee designated by a board of education to transmit reports made by school employees to the
appropriate state or local law enforcement agency as required by subsection (b)(1) of K.S.A. 1998 Supp 72-89b03, and amendments
thereto, is a class B nonperson misdemeanor.
(c)
No board of education shall terminate the employment of, or prevent or impair the profession of, or impose any other sanction on any
school employee because the employee made an oral or written report relating to any criminal act that the employee knows has been
committed or reasonably believes will be committed at school, on school property, or at a school supervised activity.
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(d) Any board of education, and any member or employee thereof, participating without malice in the making of an oral or written report to a
law enforcement agency relating to any criminal act that is known to have been committed or reasonably is believed will be committed at
school, on school property, or at a school supervised activity shall have immunity from any civil liability that might otherwise be incurred
or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceedings resulting from
the report.
J. CHILD IN NEED OF CARE
As part of the Child in Need of Care case, the following agencies and people may freely exchange information:
•
Department of Social and Rehabilitation Services;
•
Commissioner of Juvenile Justice;
•
Law enforcement agency receiving the report;
•
Members of a Court-appointed multidisciplinary team;
•
Entity mandated by Federal or State law to investigate child in need of care cases;
•
Military enclave or Indian tribal organization authorized to investigate such cases;
•
County or district attorney;
•
Court services officer who has taken a child into custody;
•
Guardian ad litem appointed for a child alleged to be in need of care;
•
An intake and assessment worker; and
•
Any community corrections program that has the child under Court-ordered supervision.
Note that this list does NOT include educational agencies or school personnel.
However, the following agencies and people or entities must have access to information received by the Department
of Social and Rehabilitation Services, law enforcement agency, or any juvenile intake and assessment worker. This
access to records is limited to information reasonably necessary to carry out their lawful responsibilities to maintain
their personal safety and that of others in their care; or to diagnose, treat, care for, or protect a child alleged to be in
need of care. Accordingly, educational agencies may "receive" records from the agencies listed,
but may not provide
educational records to these agencies except as provided by FERPA.
1. Child named in the record;
2. Parent or other person responsible for the child's welfare, or the child's legal representative;
3. Court-Appointed Special Advocate for a child, Citizen Review Board, or other advocate that reports to the
Court;
4. Person licensed to practice healing arts or mental health, in order to diagnose, care for, treat, or supervise:
a. a child suspected to be in need of care;
b. a member of the child's family; or a person who allegedly abused or neglected the child
c. Person or entity licensed or registered by the Secretary of Health and Environment to care for, treat, or
supervise a child in need of care.
5. To assist a child in foster care or child care, the Secretary shall provide relevant information to foster
parents or child care facility before placement and as such information becomes available to the Secretary;
6. Coroner or medical examiner when determining the cause of a child's death;
7. Child Death Review Board established under K.S.A. 22a-243;
8. Prospective adoptive parent before placing a child in their care;
9. Department of Health and Environment to carry out responsibilities relating to licensure or registration of
child care providers;
10. Disability Rights Center if they received a complaint regarding neglect pursuant to 74-5515;
11. Any educational institution to the extent necessary to enable the institution to provide the safest possible
environment for its pupils and employees; and
12. Any educator to the extent needed to enable him/her to protect the personal safety of him/her and the pupils.
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State Statute:
K.S.A. 38-1507
(a) Except as otherwise provided, in order to protect the privacy of children who are the subject of a child in need of care record or report, all
records and reports concerning children in need of care, including the juvenile intake and assessment report, received by the department of
social and rehabilitation services, a law enforcement agency or any juvenile intake and assessment worker shall be kept confidential
except:
(1) To those persons or entities with a need for information that is directly related to achieving the purposes of this code, or
(2) Upon an order of a court of competent jurisdiction pursuant to a determination by the court that disclosure of the
reports and records is in the best interests of the child or are necessary for the proceedings before the court, or both, and are
otherwise admissible in evidence. Such access shall be limited to in camera inspection unless the court otherwise issues an
order specifying the terms of disclosure.
(b) The provisions of subsection (a) shall not prevent disclosure of information to an educational institution or to individual educators about a
pupil specified in subsection (a) of K.S.A. 1998 Supp. 72-89b03 and amendments thereto.
(c) When a report is received by the department of social and rehabilitation services, a law enforcement agency or any juvenile intake and
assessment worker which indicates a child may be in need of care, the following persons and entities shall have a free exchange of
information between and among them:
(1) The department of social and rehabilitation services;
(2) The commissioner of juvenile justice;
(3) The law enforcement agency receiving such report;
(4) Members of a court appointed multidisciplinary team;
(5) An entity mandated by federal law or an agency of any state authorized to receive and investigate reports of a child known or suspected to
be in need of care;
(6) A military enclave or Indian tribal organization authorized to receive and investigate reports of a child known or suspected to be in need of
care;
(7) A county or district attorney;
(8) A court services officer who has taken a child into custody pursuant to K.S.A. 38-1527, and amendments thereto;
(9) A guardian ad litem appointed for a child alleged to be in need of care;
(10) An intake and assessment worker; and
(11) Any community corrections program which has the child under court ordered supervision.
(d) The following persons or entities shall have access to information, records or reports received by the department of social and
rehabilitation services, a law enforcement agency or any juvenile intake and assessment worker. Access shall be limited to information
reasonably necessary to carry out their lawful responsibilities to maintain their personal safety and the personal safety of individuals in
their care or to diagnose, treat, care for or protect a child alleged to be in need of care.
(1) A child named in the report or records.
(2) A parent or other person responsible for the welfare of a child, or such person's legal representative.
(3) A court appointed special advocate for a child, citizen review board or other advocate which reports to the court.
(4)
A person licensed to practice the healing arts or mental health profession in order to diagnose, care for, treat or supervise:
(A) A child whom such service provider reasonably suspects may be in need of care;
(B) A member of the child's family; or
(C)
A person who allegedly abused or neglected the child.
(5) A person or entity licensed or registered by the secretary of health and environment or approved by the secretary of social and
rehabilitation services to care for, treat or supervise a child in need of care. In order to assist a child placed for care by the secretary of
social and rehabilitation services in a foster home or child care facility, the secretary shall provide relevant information to the foster parents
or child care facility prior to placement and as such information becomes available to the secretary.
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K.S.A. 38-1507(c d),
(continued)
(6) A coroner or medical examiner when such person is determining the cause of death of a child.
(7) The state child death review board established under K.S.A. 22a-243, and amendments thereto.
(8) A prospective adoptive parent prior to placing a child in their care.
(9) The department of health and environment pursuant to K.S.A. 59-512, and amendments thereto, for the purpose of carrying out
responsibilities relating to licensure or registration of child care providers as required by chapter 65 of article 5 of the Kansas Statutes
Annotated, and amendments thereto.
(10) The state protection and advocacy agency as provided by subsection (a)(10) of K.S.A. 65-5603 or subsection (a)(2)(A) and (B) of K.S.A.
74-5515, and amendments thereto.
(11) Any educational institution to the extent necessary to enable the educational institution to provide the safest possible environment for its
pupils and employees.
(12) Any educator to the extent necessary to enable the educator to protect the personal safety of the educator and the
educator's pupils.
(e) Information from a record or report of a child in need of care shall be available to members of the standing house or senate committee on
judiciary, house committee on appropriations, senate committee on ways and means, legislative post audit committee and joint committee
on children and families, carrying out such members' or committee's official function in accordance with K.S.A. 75-4319 and amendments
thereto, in a closed or executive meeting. Except in limited conditions established by 2/3 of the committee shall not be further disclosed.
Unauthorized disclosure may subject such member to discipline or censure from the house of representatives or senate.
(f)
Nothing in this section shall be interpreted to prohibit the secretary of social and rehabilitation services from summarizing the outcome of
department actions regarding a child alleged to be a child in need of care to a person having made such report.
(g) Disclosure of information from reports or records of a child in need of care to the public shall be limited to confirmation of factual details
with respect to how the case was handled that do not violate the privacy of the child, if living, or the child's siblings, parents or guardians.
Further, confidential information may be released to the public only with the expressed written permission of the individuals involved or
their representatives or upon order of the court having jurisdiction upon a finding by the court that public disclosure of information in the
records or reports is necessary for the resolution of an issue before the court.
(h) Nothing in this section shall be interpreted to prohibit a court of competent jurisdiction from making an order disclosing the findings or
information pursuant to a report of alleged or suspected child abuse or neglect which has resulted in a child fatality or near fatality if the
court determines such disclosure is necessary to a legitimate state purpose. In making such order, the court shall give due consideration to
the privacy of the child, if living, or the child's siblings, parents or guardians.
(i)
Information authorized to be disclosed in subsections (d) through (g) shall not contain information which identifies a reporter of a child in
need of care.
(j)
Records or reports authorized to be disclosed in this section shall not be further disclosed, except that the provisions of this subsection shall
not prevent disclosure of information to an educational institution or to individual educators about a pupil specified in subsection (a) of
K.S.A. 1998 Supp. 72-89b03 and amendments thereto.
(k) Anyone who participates in providing or receiving information without malice under the provisions of this section shall have immunity
from any civil liability that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to
participation in any judicial proceedings resulting from providing or receiving information.
(l)
No individual, association, partnership, corporation or other entity shall willfully or knowingly disclose, permit or encourage
disclosure of the contents of records or reports concerning a child in need of care received by the department of social and
rehabilitation services, a law enforcement agency or a juvenile intake and assessment worker except as provided by the code.
Violation of this subsection is a class B misdemeanor.
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QUESTIONS AND ANSWERS ABOUT CONFIDENTIALITY
1. What must a school do to provide parents reasonable access to their child's records?
Records should be in a location that parents can find, maintained during normal business hours, and not in a
physically inaccessible area (downstairs or upstairs, with no elevator available). Upon request, someone who can
interpret the records should be available to the parents. Parents may also request that copies of their child's
education records be made for them. However, a school is required to provide copies of educational records only if
failure to provide those copies would effectively prevent the parent from exercising the right to review and inspect the
records. If copies are provided schools may charge a reasonable fee and may take a reasonable time to provide the
copies to the parents. In cases where failure to provide copies of records would effectively prevent a parent from
exercising the right to inspect and review education records, and the parents are unable to pay the fee, the school
must provide the records without charge.
2. Are school personnel required to provide parents access to their working files and
anecdotal records?
FERPA and IDEA have included definitions of "education records." These definitions, while expansive, do not include
the staff's working files and anecdotal records. FERPA regulation 34 C.F.R. 99.3 states that the term "education
records" does not include "records that are kept in the sole possession of the maker of the record, are used only as a
personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the
maker of the record."
3. If a district cannot determine which Kansas school a student transferred from, may
the State's Management Information System (MIS) be accessed to determine this
information?
Yes. If the sending school district has used a FERPA notification form (See sample, Figure 9-1 in Appendix A), the
Management Information System (MIS) data manager may inform the special education director of the receiving
district of the student's previous district of attendance. The receiving district may then contact the sending district to
request student records without parent consent. This exception to FERPA confidentiality requirements is in FERPA
regulation 34 C.F.R. 99.31(a)(2).
4. Only a limited amount of information is needed to bill Medicaid (not the entire
education record). May this limited information be released without parent consent to
the Medicaid billing agency in order to access reimbursement for special education
services?
No. Parent consent is required by FERPA, because the information being released is personally identifiable
(student's name, social security or other student number, category of exceptionality, etc.). In addition, schools must
obtain parental consent to access public insurance such as Medicaid, at least annually for the specific services, and
duration of those services identified in the child’s IEP. The school must obtain parental consent to access Medicaid
for any change in a service or amount of a service.
5. What is the school's obligation to provide special education when the student cannot
be enrolled because s/he does not have documentation of immunizations?
K.S.A. 72-5209 requires documentation of immunization before admitting students enrolling for the first time in a
Kansas school. This may include a student transferring from an out-of-state school, or a child enrolling, for the first
time in Kansas, in a kindergarten or in a preschool or a day care program operated by a school. K.S.A. 72-5211a
permits school districts to adopt policies, in conformance with K.S.A. 72-5209, to exclude from school any student,
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enrolling in Kansas for the first time, who has not presented documentation of immunization. The school district is
not required to provide special education services until the documentation is received.
These State health laws override IDEA, just as they override general education students' constitutional right to attend
school. The school district should advise the student and parents that FAPE is available when the documentation for
compliance with State health laws is received. K.S.A. 72-5211a specifies that the compulsory school attendance law
does not apply to any student excluded from school for failure to document immunization records. Thus, such
students should not be reported as truant. However, State law requires schools to include this information, when
transferring education records to a new school.
6. When a student is in a private school and receives special education services from
the public school, who keeps the student's educational record?
If the student receives special education services through the public school, the public school is responsible for
maintaining the student's educational record. The private school may also have records, or copies of the public
school records, including the student's IEP, if appropriate.
7. What should the school do if during a due process hearing, the parents request a
copy of their child's test protocol?
According to the US Department of Education, under FERPA parents have the right to inspect test protocols, which
may include a right to copy them if ordered by a special education due process hearing officer or a judge in a hearing.
Due to concerns about violating the test publisher's copyright rules, the school may want to consult with their
attorney. However, schools are required to provide copies of the records if failure to provide those copies would
effectively prevent the parent from exercising the right to inspect and review the records (34 C.F.R. 300.613(b)(2)).
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CHAPTER 10
MEDIATION
INTRODUCTION
Mediation is one of three formal methods of resolving disputes in special education at the local level. Other methods
are formal complaint, which is discussed in Chapter 11, and due process hearing, which is discussed in Chapter 12.
To begin the process of mediation, both parties must agree to mediate. Either the parents or a school representative
may suggest this option initially by asking the other party if they are willing to mediate the disputed issues. The cost
of mediation is borne by the State; there are no costs to either the parents or the local school district.
The use of mediation can have the following benefits over a formal complaint or due process hearing:
•
Mediation uses the strengths of both participants to solve problems.
•
Because it is voluntary throughout the process, and because a mediator has no authority to order any
particular resolution, mediation is a safe way for both parties to offer and consider alternatives.
•
Mediation can be less antagonistic.
•
Mediation is less time consuming.
•
Mediation is less costly for both parties.
•
If an agreement is reached, it is written and committed to by the parties, themselves, rather than ordered by
a hearing officer or the Kansas State Department of Education.
•
A negotiated agreement may help with future positive relationships.
Forms to request mediation should available in each school district. The building administrator, special education
director, or the Mediation consultant at Special Education Services may be contacted for the forms. Copies of these
forms are included in Appendix A. Figure 10-2 is the Request for Mediation, Figure 10-3 is the Agreement to Mediate,
and Figure 10-4 is the Confidentiality Pledge, Timeline for Mediation Figure 10-5, and sample Rules of Mediation,
Figure 10-6. All forms can be found on
www.kansped.org
.
Each of the following topics in the State mediation process is discussed within this chapter:
A. Mediation Process
B. Mediation Requests
C. Mediation Participants
D. Special Education Mediators
E. Mediation Results
A. MEDIATION PROCESS
The Kansas State Department of Education (KSDE) has established mediation procedures to allow school districts
and parents to resolve any matter regarding special education, including matters arising prior to the filing of a due
process complaint. State statute, at K.S.A. 72-996, and State regulations at K.A.R. 91-40-28, and 91-40-29 set up
the following provisions for special education mediation in Kansas:
•
The mediation process is voluntary for both the parents and the school.
•
Mediation may not be used to deny or delay a parent’s right to a due process hearing, or any other parent
right.
•
Mediation is conducted by a qualified, impartial mediator who is trained in effective mediation techniques.
•
KSDE maintains a list of qualified mediators and appoints the special education mediator.
•
KSDE is responsible for the costs of mediation.
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•
Mediation must be provided in a timely manner and at a location that is convenient for both parties in the
dispute.
•
Agreements reached during mediation must be in writing and must include the resolution of each issue for
which agreement was reached. Every mediation agreement must also include a statement that:
o
Discussions during mediation must be kept confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings;
o
Each party understands that the agreement is legally binding upon them; and
o
The agreement may be enforced in state or federal court.
The goal of the parties in mediation is to reach an agreement that is workable for all. If an agreement is reached it is
put in written form by the mediator and signed by both parties. If issues prove to be irresolvable, the mediator will
declare that an impasse has been reached and the mediation will be terminated. Figure 10-1 in Appendix A is a flow
chart showing the steps involved in the mediation process.
B. MEDIATION REQUESTS
When parents or school personnel disagree about a special education issue, either party may request mediation.
However, both parties must agree to use this process. Therefore, the first step in initiating a special education
mediation is to ask the other party if it is willing to mediate the disputed issue. Mediation may be requested even if a
due process hearing has been filed. This is one reason that the timeline for mediation is short. Mediation must be
completed within the due process timeline, and mediation may not be used to delay the parents' right to due process.
However, the due process hearing timeline may be extended by the due process hearing officer for a specific period
of time during the mediation process if requested by the parties (34 C.F.R. 300.515(c)). Mediation is often viewed as
a win-win situation, a positive process that may often avoid potential litigation. At a minimum, mediation must be
available to resolve disputes relating to the following issues:
1. Identification,
2. Evaluation,
3. Placement, and
4. Provision of a free appropriate public education to the child.
Once both parties agree to mediation, they must complete and sign the three required forms, which are faxed and/or
mailed to the mediation consultant at the Kansas State Department of Education (KSDE Special Education Services,
120 SE 10
th
Avenue, Topeka, KS 66612; fax 785-296-6715).
(1) Agreement to Mediate
: This one-page form indicates that both parties: (a) understand that mediation is
voluntary; (b) agree to enter into mediation; (c) agree to abide by the procedures and guidelines for special
education mediations; (d) agree not to record (electronically or otherwise) a mediation session; (e) agree that the
mediator will not make decisions regarding the disputed issues; and (f) understand that agreements must be in
writing and are legally binding and enforceable in a state or federal court. Each party must sign this agreement;
(2) Confidentiality Pledge
: This one page form indicates that both parties: (a) understand and agree that
discussions during mediation are confidential; (b) agree not to call the mediator or anyone associated with the
mediator as a witness in any judicial, administrative or arbitration proceeding regarding the mediated dispute; (c)
agree not to subpoena or demand the production of any records, notes, work product or other written information
of the mediator; (d) agree that if a party does subpoena a mediator or a mediators records, the mediator will
contest the subpoena and the requesting party agrees to reimburse the mediator for all expenses related to
contesting the subpoena, including attorney fees plus the mediator’s hourly rate; and
(3) Request for Mediation
: This one-page form includes contact information for use by the mediator. The
contact information consists of the name, address, and phone number of the parties, the name and birth date of
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the student and whether or not a due process hearing has also been requested. This form also asks the parties
to agree on some preferred dates for which they are both available to mediate. If the parties list some preferred
dates on this form, the KSDE will attempt to find a mediator who is available on one of those dates. The preferred
dates should be at least seven to ten days after the date of the request for mediation so that the Kansas State
Department of Education (KSDE) has time to appoint a mediator and allow the mediator to arrange for a
mediation session. If a mediation session is needed more quickly, the parties may request an earlier date by
telephone and send the mediation forms to the KSDE electronically. The KSDE will attempt to accommodate all
requests.
When KSDE receives a request for a special education mediation, the mediation coordinator immediately appoints a
mediator. The mediator notifies both parties and arranges for mediation. The location must be convenient to the
parties and should be acceptable to everyone. A neutral location is preferred. If the mediator is not familiar with
neutral locations in the area where the mediation will be, she/he will usually ask the school representative for
suggestions (such as a room in a county courthouse or public library). In some cases where neutral sites are not
readily available, mediations can be held on school property.
C. MEDIATION PARTICIPANTS
Mediation is an informal process that includes discussion of the issues and proposed resolutions. Generally,
discussions include the mediator, the parents, and a school representative. The school representative is often not
from the IEP Team, because this group has not been able to reach agreement. Mediation seems to be more
successful if the school representative is someone else who is knowledgeable about the issues and has decision
making authority.
Generally, the likelihood of reaching an agreement is enhanced by keeping the number of participants to a minimum.
However, either the parents or the school representative may ask an outside advocate to attend. If the parents are
not able to participate fully and need assistance (because of reasons such as not speaking English, having a disability
themselves, or not fully understanding the issues or procedures), the parents may wish to have an advocate to assist
them.
In Kansas, attorneys are allowed to participate in special education mediations. However, mediations generally prove
to be more successful when the parties work on their own, without attorneys present. Ultimately, because mediation
is a voluntary process, any party that objects to the presence of an attorney may withdraw from the mediation. If for
some reason, attorneys or advocates become involved in a mediation session, the mediator will establish ground
rules for the participation of advocates or attorneys, again in an effort to ensure that discussions are between the
parties to the dispute.
D. SPECIAL EDUCATION MEDIATORS
In Kansas, in order to be considered trained and qualified, mediators must fulfill two requirements:
1. Demonstrate competency in special education law by successfully passing a written examination with at
least 90 percent accuracy (a special education law class sponsored or approved by the state board is
conducted periodically to help mediators with this requirement); and
2. Complete a program sponsored or approved by the state board concerning effective mediation techniques
and procedures, and the role and responsibilities of a mediator (K.A.R. 91-40-29(a)).
After initially qualifying as a mediator, Kansas requires that to remain eligible, special education mediators must have
continuing education program in special education law conducted or approved by KSDE (K.A.R. 91-40-29(c)).
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Employees of KSDE, local schools or other education agencies, or school boards may not serve as a mediator for
special education disputes in the State of Kansas. Others who have a real or perceived conflict of interest may also
not serve as special education mediators. Only the Kansas State Department of Education may appoint special
education mediators.
E. MEDIATION RESULTS
During mediation, the mediator will work with both parties to reach an agreement. If mediation discussions result in
both parties' reaching agreement, the mediator records the results in a written mediation agreement, which is signed
by both parties. When the issues in mediation involve IEP decisions, the mediation agreement may become part of
the student’s IEP if agreed to by the parties. It is not necessary for the IEP team to meet because the decisions are
enforceable and have been made during the mediation with the responsible parties involved (the parents and the
school representative). The actions agreed upon in the mediation should be implemented immediately, unless the
mediation agreement specifies otherwise.
If the IEP is changed by adding the mediation agreement, the IEP team may write a new IEP or amend the existing
IEP to reflect the mediation agreement. The school is responsible for following up with the required notice and
consent forms. The revised IEP is then implemented. If the mediation agreement is not part of the IEP the school
must ensure that any person responsible for implementing the agreement is informed of their responsibilities.
However, if the mediation is not successful, the mediator may declare that the mediation is at impasse and suggest
that both parties consider other methods for dispute resolution, such as Formal Complaint (Chapter 11) and/or Due
Process (Chapter 12).
State Statute:
K.S.A. 72-996
(a) The state board shall establish and implement procedures to allow agencies and parents to resolve disputes through a mediation process
which, at a minimum, shall be available whenever a due process hearing is requested under this act.
(b) The procedures adopted shall ensure that the mediation process is:
(1) Voluntary on the part of the parties;
(2) Not used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under this act; and
(3) Conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(c) The state board shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the
provision of special education and related services and shall establish procedures for the appointment of a mediator to help resolve disputes
between the parties.
(d) The state board shall bear the cost of the mediation process described in subsection (c).
(e) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties
to the dispute.
(f)
An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
(g) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process
hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the
commencement of such process
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Kansas Regulations:
K.A.R. 91-40-28. Special education mediation and due process hearings.
(a) If a disagreement arises between a parent and an agency concerning the identification, evaluation, or educational placement of the parent’s
exceptional child, or the provision of FAPE to the child, the parent or the agency, or both, may request mediation or initiate a due process
hearing.
(b) (1) If mediation is requested by either party, the provisions of K.S.A. 72-996 and amendments thereto shall be followed, together with the
requirement in paragraph (2) of this subsection.
(2) When agreement is reached to mediate, the agency shall immediately contact the state board or its designee. A mediator shall be
appointed by the state board from its list of qualified mediators, based upon a random or other impartial basis.
(c) If a disagreement as described in subsection (a) arises, the parent or the agency, or both, may initiate a special education due process hearing
by filing a due process complaint notice. Each due process hearing shall be provided for by the agency directly responsible for the education of
the child.
(d)(1) If a special education due process complaint notice is filed, the provisions of K.S.A. 72-972a through 72-975 and amendments thereto
shall be followed, together with the requirements in this subsection.
(2) Not more than five business days after a due process complaint notice is received, the agency providing for the hearing shall furnish
to the parent the following information:
(A) The agency’s list of qualified due process hearing officers;
(B) written notification that the parent has the right to disqualify any or all of the hearing officers on the agency’s list and to request
that the state board appoint the hearing officer; and
(C) written notification that the parent has the right, within five days after the parent receives the list, to advise the agency of any
hearing officer or officers that the parent chooses to disqualify.
(3) (A) If a parent chooses to disqualify any or all of the agency’s hearing officers, the parent, within five days of receiving the list,
shall notify the agency of the officer or officers disqualified by the parent.
(B) An agency may appoint from its list any hearing officer who has not been disqualified by the parent.
(4) Not more than three business days after being notified that a parent has disqualified all of the hearing officers on its list, an agency
shall contact the state board and request the state board to appoint a hearing officer. In making this request, the agency shall advise the
state board of the following information:
(A) The name and address of the parent;
(B) the name and address of the attorney, if any, representing the parent, if known to the agency; and
(C) the names of the agency’s hearing officers who were disqualified by the parent.
(5) Within three business days of receiving a request to appoint a hearing officer, the parent and agency shall be provided written notice
by the state board of the hearing officer appointed by the state board.
(e) If a due process hearing is requested by a parent or an agency, the agency shall provide written notice to the state board of that action. The
notice shall be provided within five business days of the date the due process hearing is requested.
(f) (1) Unless the agency and parent have agreed to waive a resolution meeting or to engage in mediation, the agency and parent shall participate
in a resolution meeting as required by K.S.A. 72-973 and amendments thereto. The parent and agency shall determine which members of the
IEP team will attend the meeting.
(2) If a parent who files a due process complaint fails to participate in a resolution meeting for which the agency has made reasonable
efforts to give the parent notice, the timelines to complete the resolution process and begin the due process hearing shall be delayed until
the parent attends a resolution meeting or the agency, at the end of the 30-day resolution period, requests the hearing officer to dismiss the
due process complaint.
(3) If an agency fails to hold a resolution meeting within 15 days of receiving a due process complaint or to participate in a meeting, the
parent may request the hearing officer to begin the due process hearing and commence the 45-day timeline for its completion.
(g) The 45-day timeline for completion of a due process hearing shall start on the day after one of the following events occurs:
(1) Both parties to the due process proceedings agree, in writing, to waive the resolution meeting.
(2) The parties participate in a resolution meeting or in mediation but agree, in writing, that resolution of their dispute is not possible by t
he end of the 30-day resolution period.
(3) Both parties agreed, in writing, to continue to engage in mediation beyond the end of the 30-day resolution period, but later one or
both of the parties withdraw from the mediation process.
K.A.R. 91-40-29. Qualifications of special education mediators and due process hearing officers.
(a) To initially qualify as a special education mediator, a person shall meet the following requirements:
(1) Have passed a written examination prescribed by the state board concerning special education laws and regulations; and
(2) have completed a program sponsored or approved by the state board concerning effective mediation techniques and procedures, and
the role and responsibilities of a mediator.
(b) (1) Except as otherwise provided in paragraph (2) of this subsection, to initially qualify as a special education due process hearing officer or
review officer, a person shall meet the following requirements:
(A) Be a licensed attorney in good standing with the licensing agency in the state in which the person is licensed to practice law;
(B) have passed a written examination prescribed by the state board concerning special education laws and regulations;
(C) have completed a program sponsored or approved by the state board concerning due process hearing procedures and the role and
responsibilities of a due process hearing officer; and
(D) have passed a written examination prescribed by the state board concerning due process proceedings.
(2) Each person who is on the list of qualified due process hearing officers maintained by the state board shall remain eligible to serve
as a due process hearing officer or review officer
, if the person the continuing education programs in special education law that are
conducted or approved by the state board.
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QUESTIONS AND ANSWERS ABOUT MEDIATION
1. How are mediators selected to conduct a special education mediation?
The mediation coordinator at the Kansas State Department of Education chooses a mediator on a random basis
from a list of trained and qualified mediators. Mediators will have successfully completed a training program
designed for special education mediators.
2. What are the qualifications of a special education mediator?
The mediator will:
•
Have received formal training in the mediation process and in Federal and State laws and regulations
regarding special education;
•
Be on an approved list of qualified mediators at KSDE;
•
Have no personal or professional interest that would conflict with his/her objectivity;
•
Have no prior involvement in any decisions regarding the student's identification, evaluation, special
education program, or educational placement;
•
Be professional, impartial; and
•
Be able to complete the required duties and responsibilities.
3. What is the role of the mediator?
The mediator helps the parents and school representative clarify issues in disagreement and find solutions that
satisfy both parties. The mediator serves as:
•
Convener--by contacting the parties to arrange for the mediation.
•
Educator--by informing the parties about the mediation process and other conflict resolution procedures
including due process hearings.
•
Communicator and Facilitator--by using strategies to be certain that each party is fully heard in the
mediation.
•
Translator--by replacing or reframing communication so that both parties are understood and received.
•
Questioner and Clarifier--by probing issues and confirming understandings.
•
Process Advisor--by suggesting procedures for making progress in mediation including caucus meetings and
consultations with others.
•
Catalyst--by offering options for consideration, stimulating new perspectives, and offering ideas for
consideration.
•
Closer--by reducing the agreement to writing and obtaining signatures of both parties.
4. How long does mediation take?
Many mediation sessions have been successfully completed in half a day. The mediator will determine whether
progress is being made or whether additional time is needed for resolution.
5. Is special education mediation binding?
If both parties sign the mediation agreement, it is binding on both parties, and is enforceable in a State or Federal
court. The rules of mediation (Figure 10-6) state that the success of the written agreement depends on good
faith efforts of both parties.
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6. When can mediation be requested?
Mediation can be requested when it is believed that an impasse has been reached at the local level on any
matter involving the identification, evaluation, placement, or the provision of a free appropriate public education to
the child. Either the parents or the school representative should discuss with the other party if mediation is an
option, and
should ask for mediation as early as possible. Mediation can occur before or after a special
education due process hearing has been requested or when a hearing concerning an interim alternative
educational placement is being considered. Mediation cannot be used to deny or delay an impartial special
education due process hearing once it has been requested.
7. Who should I call for information or to request mediation?
Information or forms may be requested from a building administrator, special education director, Families
Together (800-264-6343), or The Disability Rights Center of Kansas (785-273-9661). You may also contact the
mediation coordinator on the Special Education Services Team of the Kansas State Department of Education.
Address: 120 SE Tenth Avenue, Topeka, KS 66612-1182
Phone: 800-203-9462 or 785-296-5478
Fax:
785-296-6715
Email:
mward@ksde.org
8. How soon is mediation scheduled after the parties request it?
A mediation conference should be scheduled as soon as possible after receiving a request for a mediation
conference. Some flexibility is permitted to accommodate availability of both parties. The meeting must be in a
place that is convenient for both parties. On the Mediation Request Form, the parties should request specific
dates and times when both parties are available. This should allow a reasonable period of time for the selection
of a mediator and for the mediator to set up a mediation session. Two weeks is usually enough time to
accommodate such a request. One of the reasons time is so critical is that mediation may be requested even if a
special education due process hearing has been filed, but the mediation process may not delay the parents' right
to due process.
9. Who pays for mediation?
The fee and expenses for the mediator, if any, are paid by Special Education Services at the Kansas State
Department of Education. Mediation is available at no cost to the school or the parents.
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CHAPTER 11
FORMAL COMPLAINT
INTRODUCTION
Formal complaint is one of the methods parents or others have to resolve special education disagreements with the
school district. Although most differences are successfully resolved at the local level, three state processes are
available to parents, if they are at impasse with the school district:
•
Formal complaint,
•
Mediation (Chapter 10), and
•
Due process hearing (Chapter 12).
Formal complaint is one of the parent rights (procedural safeguards, see Chapter 1) afforded under Federal and
State regulations (K.A.R. 91-40-51; 34 C.F.R. 300.151). The Kansas State Department of Education (KSDE) is
mandated to make available an opportunity for individuals or organizations to file formal complaints against the
school. Figure 11-1 in Appendix A is a flow chart that illustrates the steps in the process, and Figure 11-2 lists the
timelines and responsible parties for the required steps.
For information about the formal complaint process, contact Families Together (800-264-6343), Kansas Disability
Rights Center (877-776-1541), or Special Education Services at the KSDE (800-203-9462). See Figure 11-3 for the
Formal Complaint form as well as the Special Education Services home page
www.kansped.org
.
This chapter outlines the steps involved in the formal complaint process:
A. Filing a Formal Complaint
B. Investigating the Complaint
C. Following Up on the Complaint
D. Appealing the Decision
E. Sanctions by the State Board of Education
A. FILING A FORMAL COMPLAINT
Any individual or organization may file a formal complaint if they believe that the school district is not complying with
Federal or State laws or regulations relating to special education. The formal complaint must be for a situation that
occurred during the past year.
The formal complaint must be in writing and signed by the person or organization making the complaint. The
complaint must state that the school is not complying with the requirements of IDEA, the State Special Education for
Exceptional Children Act, or the corresponding Federal or State regulations and give the facts upon which the
statement is based. When the complaint involves a specific child, the complaint must also include the following:
The child’s name and address of residence, or other contact information if the child is a homeless child or youth;
the name of the school the child is attending;
a description of the problem involving the child; and
a proposed resolution to the problem, if a possible resolution is known and available to the complainant.
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The party filing the complaint must forward a copy of the complaint to the school against which the allegations are
made at the same time the complaint is filed with the commissioner of education.
The parent of any child with an exceptionality (disabilities and giftedness) including eligible students receiving
services in public schools, private schools and other educational settings are entitled to file a formal complaint if they
believe appropriate legal procedures have not been followed or implemented.
If a formal complaint is received that is part of a due process hearing, or the complaint contains multiple issues of
which one or more are part of such a hearing, the State must set aside the State complaint, or any part of the
complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the State
complaint that is not a part of the due process hearing must be resolved through the State process.
Figure 11-3 in Appendix A is the form that is used to file a formal complaint. This form may be faxed to the Team
Leader, Special Education Services Team (785-296-6715), but the original must then be mailed to the Kansas State
Department of Education, Special Education Services, 120 SE Tenth Avenue, Topeka, KS 66612. Additionally, a
copy of this completed form must be sent to the school district against which the complaint is filed.
B. INVESTIGATING THE COMPLAINT
The Special Education Services Team at the Kansas State Department of Education must resolve a formal complaint
within 30 calendar days from the date the complaint is received in the office, unless exceptional circumstances exist.
When a formal complaint is received a letter acknowledging receipt of the formal complaint is sent to the person
making the complaint, the special education director, and the superintendent. A copy of the formal complaint is
attached with the letter to the special education director and the superintendent.
The complaint investigator will contact the person making the complaint and the special education director to clarify the
issue(s), review all relevant records and documents, and determine whether or not the facts stated in the complaint are
correct and, if so, whether they substantiate a violation of the requirements of special education laws or regulations.
The investigator will contact the agency against which the complaint is filed to allow the agency to respond to the
complaint with facts and information supporting its position,
offer a proposal to resolve the complaint
, or offer to
engage in mediation to resolve the complaint. Both parties can provide additional information to the investigator that
is relevant to the issue. Neither party can introduce a new issue during the investigation.
After the investigation, the complaint investigator writes a report of the findings addressing each of the allegations in
the complaint and which contains: (a) findings of fact and conclusions; (b) the reasons for KSDE’s final decision; and
(c) any corrective action or actions that are required including the time period within which each action is to be taken.
The report is to be sent to the parties within 30 days of the receipt of the complaint unless the parties agree to extend
the 30 day timeline to engage in mediation.
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C. FOLLOW UP ON THE COMPLAINT
If the report from the formal complaint requires corrective actions, the school shall, within 10 calendar days of the
date of the report, submit one of the following to the KSDE Special Education Services Team:
1. Documentation to verify it accepts the corrective action(s) in the report, if any;
2. A written request for more time to complete the required action(s), with justification for this request; or
3. A written notice of appeal.
If the district asks for more time to complete one or more of the required corrective actions, a review committee of at
least three people at KSDE are appointed by the Commissioner to review the request and the justification for an
extension. The committee shall make a decision regarding the request within five business days of the date that the
request was received, and their decision is final. If the school fails to respond to a report within the time allowed
sanctions may be invoked.
When the corrective actions are completed by the school, the Special Education Services Team sends a notice of
completion to the school with a copy to the person making the complaint. At that point, the complaint file is closed.
D. APPEALING THE DECISION
After the person making the complaint and the school receive the written report of findings, each has 10 calendar
days from the date of the report to file an appeal. Each notice of appeal shall provide a detailed statement of the
basis for alleging that the report is incorrect.
The following steps are followed for appeals:
1. An appeal committee of at least three KSDE members shall be appointed by the Commissioner to review
the report and to consider information provided by the school, the complainant, or others.
2. The hearing process, including any hearing conducted by the appeal committee, shall be completed within
15 days from the date of receipt of the appeal notice.
3. A decision shall be rendered within five days after the appeal process is completed, unless the appeal
committee determines that exceptional circumstances exist. Then the decision shall be rendered as soon
as possible.
If the person making the complaint or the school does not appeal the decision and no corrective actions are required,
the complaint file is closed.
E. SANCTIONS BY THE STATE BOARD OF EDUCATION
The Kansas State Board of Education has sanctions available if corrective action required by a formal complaint
investigation is not implemented. Additionally, if an appeal committee affirms a compliance report that requires
corrective action by a school, that district must initiate the required corrective action immediately. If after five days,
no required corrective action has been initiated, the school district will be notified of the action that will be taken to
assure compliance as determined by the department. This action may include any of the following:
•
the issuance of an accreditation deficiency advisement;
•
the withholding of state or federal funds otherwise available to the agency;
•
the award of monetary reimbursement to the complainant; or
•
any combination of the above actions.
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Kansas Regulations:
K.A.R. 91-40-51. Filing complaints with the state department of education
. (a) Any person or organization may file a written, signed
complaint alleging that an agency has violated a state or federal special education law or regulation. Also, a prevailing party in a due process
hearing may file a complaint alleging that the other party has failed to implement the hearing decision. The complaint shall include the following
information:
(1) A statement that the agency has violated a requirement of state or federal special education laws or regulations;
(2) the facts on which the statement is based;
(3) the signature of and contact information for the complainant; and
(4) if the complaint involves a specific child, the following information:
(A) The child's name and address of residence, or other contact information if the child is a homeless child or youth;
(B) the name of the school the child is attending;
(C) a description of the problem involving the child; and
(D) a proposed resolution to the problem, if a possible resolution is known and available to the complainant.
(b)(1) The complaint shall allege a violation that occurred not more than one year before the date the complaint is received and shall be filed with
the commissioner of education.
(2) The party filing the complaint shall forward a copy of the complaint to the agency against which the allegations are made at the same
time the complaint is filed with the commissioner of education.
(c) Upon receipt of a complaint, an investigation shall be initiated. At a minimum, each investigation shall include the following:
(1) A discussion with the complainant during which additional information may be gathered and specific allegations of noncompliance
identified, verified, and recorded;
(2) contact with the agency against which the complaint is filed to allow the agency to respond to the complaint with facts and information
supporting its position, offer a proposal to resolve the complaint, or offer to engage in mediation to resolve the complaint; and
(3) a written report of findings of fact and conclusions, including reasons for the decision, and any corrective action or actions that are
required, including the time period within which each action is to be taken. Unless the parent and the agency agree to engage in mediation,
this report shall be sent to the parties within 30 days of the receipt of the complaint. If the parties mediate but fail to resolve the issues, the
report shall be sent 30 days after the department received notice that mediation has failed.
(d) An on-site investigation may be conducted before issuing a report.
(e)(1) If a report requires corrective action by an agency, that agency, within 10 days of the date of the report, shall submit to the state director of
special education one of the following:
(A) Documentation to verify acceptance of the corrective action or actions specified in the report;
(B) a written request for an extension of time within which to complete one or more of the corrective actions specified in the report, together
with justification for the request; or
(C) a written notice of appeal. Each appeal shall be made in accordance with subsection (f).
(2) If an agency files a request for an extension of time within which to complete one or more corrective actions required in a report, a
review committee of at least three department of education members shall be appointed by the commissioner to review the request and the
offered justification for the extension of time. A decision on the request shall be made by the committee within five business days of the
date the request was received. The decision of the review committee shall be final.
(3) If a local education agency fails to respond to a report within the time allowed, the sanctions listed in paragraph (f) (2)
may be invoked.
(f) Appeals.(1) Any agency or complainant may appeal any of the findings or conclusions of a compliance report prepared by the special
education section of the department by filing a written notice of appeal with the state commissioner of education. Each notice shall be filed within
10 days from the date of the report. Each notice shall provide a detailed statement of the basis for alleging that the report is incorrect. Upon
receiving an appeal, an appeal committee of at least three department of education members shall be appointed by the commissioner to review the
report and to consider the information provided by the local education agency, the complainant, or others. The appeal process, including any
hearing conducted by the appeal committee, shall be completed within 15 days from the date of receipt of the notice of appeal, and a decision
shall be rendered within five days after the appeal process is completed unless the appeal committee determines that exceptional circumstances
exist with respect to the particular complaint. In this event, the decision shall be rendered as soon as possible by the appeal committee.
(2) If an appeal committee affirms a compliance report that requires corrective action by an agency, that agency shall initiate the required
corrective action immediately. If, after five days, no required corrective action has been initiated, the agency shall be notified of the action
that will be taken to assure compliance as determined by the department. This action may include any of the following:
(A) The issuance of an accreditation deficiency advisement;
(B) the withholding of state or federal funds otherwise available to the agency;
(C) the award of monetary reimbursement to the complainant; or
(D) any combination of the actions specified in paragraph (f)(2).
(g) (1) If a complaint is received that is also the subject of a due process hearing or that contains multiple issues of which one or more are part of
the due process hearing, the complaint or the issues that are part of the due process hearing shall be set aside until conclusion of the hearing.
(2) If an issue that has previously been decided in a due process hearing involving the same parties is raised in a complaint, the due process
hearing decision shall be binding on that issue and the complainant informed of this fact.
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QUESTIONS AND ANSWERS ABOUT FORMAL COMPLAINT
1. Who is the contact to file a formal complaint?
Parents, individuals, or organizations who believe that the school district or cooperative has violated Federal or
State laws or Federal or State regulations relating to special education should contact the KSDE, Special
Education Services Team.
Phone:
785-296-5478, or 800-203-9462
Fax:
785-296-6715
Address:
Kansas State Dept. of Education, 120 SE Tenth Avenue, Topeka, KS 66612
Homepage:
www.kansped.org
Email:
mward@ksde.org
2. How long does the investigation of a complaint take?
The complaint must be investigated and a report written with the findings of the complaint investigator within 30
calendar days of the date the complaint was received at the Kansas State Department of Education. Upon
completion of a written report, the school or the complainant has 10 calendar days for the school to comply with
the corrective action plan, or file an appeal.
3. May parents of children in private schools, who are receiving special education
services, file a formal complaint?
Yes. Formal complaint is available to parents (or another individual or organization), even if services provided in
a private school are on a Services Plan, and not an IEP.
4. May parents of children who are gifted file a formal complaint?
Yes. The formal complaint process is available to parents of children who are disabled or gifted. In addition,
another individual or organization may file a formal complaint.
5. May parents of young children file a formal complaint?
Yes. For young children from birth to age 3, formal complaint is available through the Kansas Department of
Health and Environment, 785-296-6135 or 800-332-6262. For young children who are eligible beginning at age
3, formal complaint is available to parents of children who are disabled or developmentally delayed through
KSDE, 785-296-5478, or 800-203-9462.
6. Who can file a formal complaint?
Basically, anyone who has knowledge that the proper legal procedures were not followed or implemented may
file a formal complaint with KSDE. This would include, but is not limited to, parents, parent advocates, the
student if age 18, grandparents, foster parents, an individual, or an organization. In addition, it may be that in
unusual circumstances, a member of the school team could file a formal complaint.
7. Does filing a formal complaint waive the parents' right to file for a due process hearing?
No. Parents may file a formal complaint before, at the same time, or after filing for a due process hearing.
However, if the issue is the same, the formal complaint investigation will be suspended until due process is resolved.
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CHAPTER 12
DUE PROCESS HEARINGS
INTRODUCTION
Due process is a set of procedures that seeks to ensure fairness of educational decisions and accountability, both for
parents and for educational professionals. Due process rights begin when educational professionals or the parents
request an initial evaluation to determine whether or not a student is eligible and needs special education and related
services. Every special education due process hearing and review must be provided for at no cost to the child or the
parent of the child. The costs of the initial hearing must be provided for and paid by the school district except for attorney
fees.
The due process hearing provides a forum where disagreements about the identification, evaluation, educational
placement, and provision of a free appropriate public education for students with exceptionalities may be adjudicated.
Although Federal regulations refer to due process rights for educators and parents of students with disabilities, in Kansas
those same rights are also afforded to students with giftedness.
Usually parents and school personnel assume their responsibilities in regard to the education of children with
exceptionalities and have little or no difficulty in reaching mutual agreement about the initiation, continuation, or
termination of special education services. When disagreements arise, due process is available to bring in an
impartial special education due process hearing officer to make a ruling. Ultimately, the intent of Federal and State
special education due process requirements is to protect the rights of children from inappropriate actions by schools
or by parents.
Parents are encouraged to contact Families Together (800-264-6343), the Disability Rights Center of Kansas (877-776-
1541) other parent advocacy groups, or the Kansas State Department of Education (800-203-9462) to seek assistance.
Other avenues to resolve disagreements include mediation (Chapter 10) and formal complaint (Chapter 11). Only as a
last resort should the legal method of a special education due process hearing and appeal procedure be used. The
special education due process hearing procedures are somewhat complicated. This chapter describes these procedures,
but it is not a substitute for competent legal advice. Parents considering a request for a due process hearing are
encouraged to consult with an attorney who practices in special education law.
In Appendix A, Figure 12-1 is a chart that shows the steps in special education due process, Figure 12-2 is the
Request for Due Process Hearing for District form, Figure 12-3 is the Request for Due Process Hearing for Parents,
and Figure 12-4 illustrates how special education due process hearing officers are assigned. Additionally, forms can
be found at
www.kansped.org . See also Chapter 1, Parent Rights (Procedural Safeguards), for additional
information about other rights of parents.
Topics addressed within this chapter are:
A. Filing for Due Process
B. Assigning A Special education due process hearing officer
C. Resolution Meeting
D. Pre-hearing Requirements
E. Conducting A Due Process Hearing
F. Reaching A Decision
G. Appealing the Due Process Decision
H. Stay-Put
I.
Civil Actions
J. Attorney Fees
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A. FILING FOR DUE PROCESS
Either the school district or the parents of an exceptional child may initiate a special education due process hearing to
resolve differences about a child’s identification, evaluation, educational placement, or provision of a free appropriate
public education.
The due process complaint must allege a violation that occurred not more than two years
before the date the parent or public agency knew or should have known about the alleged
action that forms the basis of the due process complaint.
There are some exceptions to this timeline, including when a school has misrepresented that it has resolved the
problem or the school has withheld information that it was legally required to give to the parent (34 C.F.R.
300.507(a)(2); K.S.A. 72-972a(a)(1)(A)).
If the student is age 18, the student has the right to file for a due process hearing, unless a court has determined
otherwise. To make their request, the party filing the complaint or the attorney for that party sends a copy of the Due
Process Complaint Notice to the other party and to the Kansas State Department of Education, Special Education
Services. This notice is confidential and must contain the following information:
•
name of the child;
•
address of the child's residence (or in the case of a homeless child or youth, available contact information
for the child);
•
name of the school the child is attending;
•
description of the nature of the problem and the facts that form the basis of the complaint; and
•
a proposed resolution of the problem. (K.S.A. 72-972a(a)(B))
When the school receives this request for a due process hearing, school personnel are required to:
•
inform parents about mediation;
•
inform parents of free or low-cost legal services; and
•
provide a copy of the Parent Rights document for the first due process complaint in the school year (34
C.F.R. 300.504). (Figure 1-2 in Appendix A).
B. ASSIGNING A SPECIAL EDUCATION DUE PROCESS HEARING OFFICER
The school district is responsible for due process hearings, including assigning special education due process
hearing officers (K.S.A. 72-973; K.S.A. 72-973a). After May 20, 2000, any newly appointed special education due
process hearing officer must be an attorney. A special education due process hearing officer can have no personal
or professional interest that would conflict with his/her objectivity. The special education due process hearing officer
may not be an employee of the school district that is responsible for the child's education. Figure 12-4 in Appendix A
is a chart that shows how special education due process hearing officers are appointed.
Kansas regulations also provide for a system of choice for parents in selecting and approving potential special
education due process hearing officers. The school district's responsibility is to maintain a current list of trained,
qualified special education due process hearing officers (
not more than 3
). This list must include the names and
qualifications of the special education due process hearing officers who are available. It is good practice for the
school to contact potential special education due process hearing officers before placing their names on the list to
ensure that they would be available for the hearing.
Not more than 5 business days after a due process complaint is received the school must furnish the parents a list of
qualified special education due process hearing officers (
not more than 3
) and a description of the process for
selecting a special education due process hearing officer. Generally, the school district provides a list of two to three
names of special education due process hearing officers and their qualifications to the parents. After the parents
receive the list, the parent has five days to strike any or all special education due process hearing officers from the
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list. If the parent does NOT strike all names from the list, the school may select any special education due process
hearing officer not stricken.
If the parents notify the school that they are striking all names on the list, the school contacts Special Education
Services (800-203-9462) within 3 business days of receiving the parents’ notice. Special Education Services then
must appoint a special education due process hearing officer within 3 business days of receiving the school’s request
to appoint a special education due process hearing officer. The complete list of qualified special education due
process hearing officers is maintained by KSDE. (K.S.A. 72-973(a); K.A.R. 91-40-28(d))
The school will also have hearing officers to resolve other matters not related to special education, such as the
school's disciplinary hearing officer. For special education due process hearings, however, a special education due
process hearing officer is required. This person is trained and qualified to conduct special education due process
hearings. To differentiate between hearing officers, the complete term "special education due process hearing
officer" will be used in this chapter.
C. RESOLUTION MEETING
When the parent has requested a due process hearing, the school must schedule a resolution meeting within 15
days of receiving the complaint notice. The school must convene a resolution meeting with the parent and the
member or members of the IEP team who have specific knowledge of the facts identified in the complaint and a
representative of the school who has the authority to make binding decisions on behalf of the school. The parent and
the school determine which members of the IEP team will attend the meeting. The school may not include their
attorney unless the parents bring their attorney.
The purpose of this meeting is for the parent of the child to discuss and explain the complaint, including the facts that
form the basis of the complaint. The school then has an opportunity to resolve the complaint. If the meeting results
in a resolution of the complaint, the parties develop a legally binding written agreement that both the parent and the
representative of the school signs. The agreement is, by law, enforceable in any state or federal court. However, the
law also permits either party to void the agreement within 3 business days of the date the agreement was signed.
If a resolution of the complaint is not reached at the meeting and the school has not resolved the complaint to the
satisfaction of the parent within 30 days of the school’s receipt of the complaint, the due process hearing procedures
will be implemented and all of the applicable timelines for a due process hearing will commence.
Failure of the parent to participate in a resolution meeting when s/he has not waived the resolution process or
requested to use mediation will delay the timelines for the resolution process and due process until the meeting is
held (K.A.R. 91-40-28(f); 34 C.F.R. 300.510(b)(3)). In addition, if the school is unable to obtain the participation of
the parent in the resolution meeting after reasonable efforts have been made (and documented) the school may, at
the conclusion of the 30 day resolution period, request that the special education due process hearing officer dismiss
the parents due process complaint (K.A.R. 91-40-28(f)(2); 34 C.F.R. 300.510(b)(4)).
If an agency fails to hold and participate a resolution meeting within 15 days of receiving a due process complaint,
the parent may request the special education due process hearing officer to begin the due process hearing and
commence the 45 day timeline for its completion (K.A.R. 91-40-28(f)(3); 34 C.F.R. 300.510(b)(5)).
A resolution meeting, however, is not required if the parent and the school agree, in writing, to waive the resolution
meeting, or they agree to use mediation to attempt to resolve the complaint. (K.S.A. 72-973(a))
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D. PREHEARING REQUIREMENTS
The party receiving a due process hearing notice must send to the party filing the notice, a response that specifically
addresses the issues raised in the complaint within 10 days of receiving the complaint (K.S.A. 72-972a(d)).
If either the school or the parent believes that a notice of due process it has received does not meet the legal notice
requirements (see Section A of this chapter), they may submit to the special education due process hearing officer a
notice of insufficiency of the due process notice. A notice of insufficiency must be submitted within 15 days of the
date of the party’s receipt of the due process notice. The special education due process hearing officer has an
additional 5 days to determine whether or not the original complaint notice is sufficient. The special education due
process hearing officer shall immediately notify the parents and the school in writing of his/her decision.
If the school has not sent a prior written notice to the parent regarding the problem described in the parent’s due
process complaint notice, the school, within 10 days of receiving the complaint, must send to the parent a response
that includes: (1) an explanation of why the agency proposed or refused to take the action raised in the complaint;
(2) a description of other options that the IEP team considered and the reasons why those options were rejected; (3)
a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the
proposed or refused action; and (4) a description of the other factors that are relevant to the agency’s proposed or
refused action (34 DFR 300.508(e)(1); K.S.A. 72-972a(c)).
A party may
amend its due process complaint notice
only if: (a) the other party consents in writing to such
amendment and is given the opportunity to resolve the complaint through a resolution meeting; or (b) the special
education due process hearing officer grants permission not less than 5 days before a due process hearing occurs
(K.S.A. 72-972a(e)). When a complaint is amended the timelines start over.
Within five business days prior to a hearing, each party must disclose to the other party any evidence the party plans
to use at the hearing, including all evaluations and recommendations based on the evaluation that they intend to use
at the hearing (K.S.A. 72-973(b)(5)). Failure to timely provide this evidence to the other party gives the other party a
right to prohibit presentation of the evidence at the hearing.
If the school and the parent agreed to the resolution meeting but have not resolved the issues within 30 days of the
date the notice of due process was received, the hearing may begin. Also, note that, if both parties agree in writing
to waive the resolution meeting, the 45
day timeline to complete the due process hearing begins the day after the
written agreement is signed.
E. CONDUCTING A DUE PROCESS HEARING
The due process hearing must be held at a time and place reasonably convenient to the parent of the child and be a
closed hearing, unless the parent requests an open hearing. Unless a resolution meeting is agreed to by both parties,
the due process hearing shall be held not later than 35 days from the date on which the request is received. The parties
shall be notified in writing of the time and place of the hearing at least five days prior to the hearing (K.S.A. 72-973(c).
Both parties have the right to be present at the hearing and be accompanied and advised by legal counsel and
people who have special knowledge about children with exceptionalities.
Special education due process hearing officers may administer oaths before hearing testimony (K.S.A. 72-975). The
parties have the right to confront and cross-examine witnesses who appear in person at the hearing, either voluntarily
or as a result of a subpoena. Each party may present witnesses in person or present their testimony by affidavit,
including expert medical, psychological or educational testimony. Each party has a right to prohibit the other party
from raising any issue at the hearing that was not raised in the due process complaint notice or in a prehearing
conference held prior to the hearing (K.S.A. 72-973(b); K.S.A. 72-975).
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Both parities have the right to have a written or, at the option of the parent, an electronic, verbatim record of the
hearing. They also have the right to a written, or at the option of the parent, electronic decision, including the findings
of facts and conclusions. Both the record of the hearing and the decision of the special education due process
hearing officer must be provided at no cost to the parents (K.S.A. 72-973(b)(7)(8); K.S.A. 72-975(e)).
F. REACHING A DECISION
The 45 day timeline for completion of a due process hearing starts on the day after one of the following
events occurs:
•
both parties to the due process proceedings agree, in writing, to waive the resolution meeting;
•
the parties begin a resolution meeting or a mediation but agree, in writing, that resolution of their dispute is
not possible before the end of the 30 day resolution period; or
•
both parties agreed, in writing, to continue to engage in mediation beyond the end of the 30 day resolution
period, but later, one, or both, of the parties withdraws from the mediation. (K.A.R. 91-40-28(g))
The special education due process hearing must be completed within 35 days of the receipt of the notice of due
process. A Special education due process hearing officer may grant extensions of time upon request of either party,
unless the due process hearing is an expedited hearing (K.S.A. 72-975(c)).
After the close of the special education due process hearing the special education due process hearing officer must
render a decision on the matter, including findings of fact and conclusions, within 10 calendar days. The decision must
be written or, at the option of the parent, must be an electronic decision. Any action of the special education due process
hearing officer resulting from a due process hearing shall be final, subject to appeal and review (K.S.A. 71-973(h)).
A written notice of the result of any hearing must be given to the school providing for the hearing and must be sent by
certified mail to the parent, or attorney of the child within 24 hours after the result is determined. In addition, the
special education due process hearing officer must delete personally identifiable information from the report and send
a copy to the State Board of Education, which must make the decision available to the Special Education Advisory
Council. (K.S.A. 72-974(a); 34 C.F.R. 300.509(d))
G. APPEALING THE DUE PROCESS DECISION
If school personnel or the parents are dissatisfied by the findings of the special education due process hearing
officer, either party may file a notice of appeal to the Commissioner of the State Department of Education not later
than 30 calendar days after the date of the postmark on the written decision. A review officer appointed by the State
Board of Education must conduct an impartial review of the hearing and make an independent decision based on the
review. The review officer must conduct the review according to the requirements of K.S.A. 72-974 and 72-975. The
review must be completed and the decision sent to both parties and the State Board within 20 calendar days after the
notice of appeal is filed. Personally identifiable information is also deleted from the report, and is made available to
the Special Education Advisory Council.
The decision of the review officer is final unless either party chooses to bring a civil action in either State or Federal
district court.
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H. STAY-PUT
While the due process hearing is pending, the student involved in the complaint must remain ("stay-put") in the
current educational placement, unless:
•
The parents and the school agree to a different placement.
•
The proceedings arise in connection with the initial admission of the child to school, in which case the child
will be placed in the appropriate regular education classroom or program, unless otherwise directed by a
special education due process hearing officer because a child’s behavior is substantially likely to result in
injury to the student or to others.
•
The student is in an interim alternative educational setting for disciplinary reasons.
(K.S.A. 72-993(a); 34 C.F.R. 300.533)
See Chapter 13 about suspension and expulsion of students with disabilities for a more complete explanation of stay-
put requirements under disciplinary actions. These provisions are addressed in Federal regulations (34 C.F.R.
300.533), and State statute (K.S.A. 72-993(a)).
If the due process hearing involves an evaluation or initial services under Part B for a child who is transitioning from
Part C services to Part B services and is no longer eligible for Part C services because the child has turned age
three, the district is not required to provide the Part C services that the child had been receiving. However, if the
child is found eligible for special education and related services under Part B and the parent consents to the initial
provision of special education and related services, then the district must provide those special education and related
services that are not in dispute between the parent and the district (K.A.R. 91-40-31(c)).
I. CIVIL ACTIONS
After a due process hearing, or an appeal to that hearing, has been completed either the parents or the school district
may pursue a civil action through a State or Federal court for reimbursement of attorneys’ fees. Federal and state
regulations allow the civil action by either party. The State statute adds the timeline; in Kansas, a civil action must be
filed within 30 calendar days after the review officer's decision (K.S.A. 72-974(c)(d); (34 C.F.R. 300.516).
J. ATTORNEY FEES
If the parents prevail in the due process hearing or upon appeal, the Court may award some or all of the attorney fees
they have paid in conjunction with the due process hearing. Only a Court can award attorney fees to the parents. The
special education due process hearing officer has no authority to do so. However, there may be limitations on the
amount paid. For example, if it is found that the parents prolonged the process or if the fees charged are more than
the hourly rate usually charged, the judge has the authority to reduce the award paid to the parents.
The school may be awarded attorney fees if a parent files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation
clearly became frivolous, unreasonable, or without foundation. The school may be awarded attorney fees if the
parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose,
such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
In determining the amount of the reimbursement of attorney fees, the judge must follow Federal regulations (34
C.F.R. 300.517) and State law (K.S.A. 72-988(b)(12)):
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Federal Regulation:
Sec. 300.517. Attorneys' fees
(a) In general. (1) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys'
fees as part of the costs to--
(i) The prevailing party who is the parent of a child with a disability;
(ii) To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action
that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation
clearly became frivolous, unreasonable, or without foundation; or
(iii) To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process
hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.
(2) Nothing in this subsection shall be construed to affect section 327 of the District of Columbia Appropriations Act, 2005.
(b) Prohibition on use of funds.
(1) Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under
section 615 of the Act and subpart E of this part.
(2) Paragraph (b)(1) of this section does not preclude a public agency from using funds under Part B of the Act for conducting an action or
proceeding under section 615 of the Act.
(c) Award of fees. A court awards reasonable attorneys' fees under section 615(i)(3) of the Act consistent with the following:
(1) Fees awarded under section 615(i)(3) of the Act must be based on rates prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this
paragraph.
(2)(i) Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the
Act for services performed subsequent to the time of a written offer of settlement to
a parent if--
(A) The offer is made within the time prescribed by
Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days
before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement.
(ii) Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in §300.506.
(iii) A meeting conducted pursuant to §300.510 shall not be considered--
(A) A meeting convened as a result of an administrative hearing or judicial action; or
(B) An administrative hearing or judicial action for purposes of this section.
(3) Notwithstanding paragraph (c)(2) of this section, an award of attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the settlement offer.
(4) Except as provided in paragraph (c)(5) of this section, the court reduces, accordingly, the amount of the attorneys’ fees awarded under
section 615 of the Act, if the court finds that--
(i) The parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted
the final resolution of the controversy;
(ii) The amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly
rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;
(iii) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
(iv) The attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in
accordance with §300.508.
(5) The provisions of paragraph (c)(4) of this section do not apply in any action or proceeding if the court finds that the State or local
agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the Act.
K.A.R. 72-972a. Due process hearing, initiation of; complaint notice; response to notice.
(a) (1) Subject to the requirements in this section,
the parent of an exceptional child or the agency responsible for providing services to the child may initiate a due process hearing regarding any
problem arising in regard to any matter governed by this act, if:
(A) The problem about which complaint is made occurred not more than two years before the filing of the complaint and the party
filing the complaint knew or should have known about the alleged action that forms the basis of the complaint;
(B) the party filing the complaint or the attorney for that party provides to the other party and to the department, a written due process
complaint notice that shall remain confidential and include the following information:
(i) the name of the child, the address of the residence of the child (or in the case of a homeless child or youth, available contact
information for the child), and the name of the school the child is attending;
(ii) a description of the nature of the problem and the facts that form the basis of the complaint; and
(iii) a proposed resolution of the problem.
(2) A parent or an agency shall not be entitled to a due process hearing until the parent or agency, or their attorney, files a notice that
meets the requirements of this subsection.
(b) (1) Any due process complaint notice filed by a parent shall be deemed to be timely even if presented more than two years after the
occurrence of the facts giving rise to the complaint, if:
(A) The agency made specific misrepresentations that it had resolved the problem forming the basis of the complaint; or
(B) the agency withheld information from the parent that is required to be given to the parent under this act.
(2) The due process complaint notice required by subsection (a) shall be deemed to be sufficient unless the party receiving the notice
notifies the hearing officer and the other party, in writing, within 15 days of receiving the complaint, that the receiving party believes
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the notice does not meet the requirements.
(3) Within five days of receipt of the notification provided under subsection (a), the hearing officer shall make a determination of
whether the notification meets the requirements of subsection (b)(2) and shall immediately notify the parties, in writing, of such
determination.
(c) (1) If the complaint is filed by a parent and the agency has not sent a prior written notice to the parent regarding the problem described in the
parent’s due process complaint notice, the agency, within 10 days of receiving the complaint, shall send to the parent a response that includes:
(A) An explanation of why the agency proposed or refused to take the action raised in the complaint, or an appropriate reply if the
problem does not address proposed or refused action by the agency;
(B) a description of other options that the IEP team considered and the reasons why those options were rejected;
(C) a description of each evaluation procedure, assessment, record or report the agency used as the basis for any action it has proposed
or refused; and
(D) a description of the factors that are relevant to the agency’s proposal or refusal, or in reply to the complaint.
(2) The fact an agency gives notice to a parent pursuant to paragraph (1) shall not preclude such agency from asserting that the parent’s
due process complaint notice is insufficient.
(d) The non-complaining party, within 10 days of receiving the complaint, shall send to the complaining party a response that specifically
addresses the issues raised in the complaint.
(e) (1) A party may amend its due process complaint notice only if:
(A) The other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting
held pursuant to K.S.A. 72-973, and amendments thereto; or
(B) the hearing officer grants permission, except that such permission shall be granted not less than five days before a due process
hearing occurs.
(2) The applicable timeline for a due process hearing shall recommence at the time the party files an amended notice, including the
timeline for resolution of the complaint.
(f) (1) Nothing in this section shall be construed to preclude a parent or an agency from filing a separate due process complaint on an issue
different from issues presented in a due process complaint already filed.
(2) Upon motion of either party and if deemed appropriate by the due process hearing officer presiding in the initial hearing, the issues
raised in the separate complaints may be considered and resolved in the same due process hearing.
State Statute:
K.S.A. 72-973. Due process requirements; time limitations; access to records; hearing officers.
(a) (1) Except as hereinafter provided, within 15 days of receipt of a due process complaint notice from a parent, the agency shall convene a
meeting with the parent and the member or members of the IEP team who have specific knowledge of the facts identified in the complaint,
and a representative of the agency who has the authority to make binding decisions on behalf of the agency. This meeting shall not include the
agency’s attorney unless the parent is accompanied by an attorney.
(2) At this meeting, the parent of the child shall discuss and explain the complaint, including the facts that form the basis of the complaint
and the agency shall be provided the opportunity to resolve the complaint.
(3) If the meeting of the parties results in a resolution of the complaint, the parties shall execute a written agreement that both the parent and
the representative of the agency shall sign and that, at a minimum, includes the following statements:
(A) The agreed upon resolution of each issue presented in the complaint;
(B) that each party understands that the agreement is legally binding upon them, unless the party provides written notice to the
other party,
within three days of signing the agreement, that the party giving notice is voiding the agreement; and
(C) if not voided, each party understands that the agreement may be enforced in state or federal court.
(4) If a resolution of the complaint is not reached at the meeting held under this subsection and the agency has not resolved the complaint to
the satisfaction of the parent within 30 days of the agency’s receipt of the complaint, the due process hearing procedures shall be
implemented and all of the applicable timelines for a due process hearing shall commence. All discussions that occurred during the
meeting shall be confidential and may not be used as evidence in any subsequent hearing or civil proceeding.
(5) A meeting shall not be required under this subsection if the parent and the agency agree, in writing, to waive such a meeting, or they
agree to use mediation to attempt to resolve the complaint.
(b) Any due process hearing provided for under this act, shall be held at a time and place reasonably convenient to the parent of the involved
child, be a closed hearing unless the parent requests an open hearing, and be conducted in accordance with procedural due process rights,
including the following:
(1) The right of the parties to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to
the problems of children with disabilities;
(2) the right of the parties to be present at the hearing;
(3) the right of the parties to confront and cross-examine witnesses who appear in person at the hearing, either voluntarily or as a result of the
issuance of a subpoena;
(4) the right of the parties to present witnesses in person or their testimony by affidavit, including expert medical, psychological or
educational testimony;
(5) the right of the parties to prohibit the presentation of any evidence at the hearing which has not been disclosed to the opposite party at
least five days prior to the hearing, including any evaluations completed by that date and any recommendations based on such
evaluations;
(6) the right to prohibit the other party from raising, at the due process hearing, any issue that was not raised in the due process complaint
notice or in a prehearing conference held prior to the hearing;
(7) the right of the parties to have a written or, at the option of the parent, an electronic, verbatim record of the hearing; and
(8) the right to a written or, at the option of the parent, an electronic decision, including findings of facts and conclusions.
(c) Except as provided by subsection (a), each due process hearing, other than an expedited hearing under K.S.A. 72-993, and amendments
thereto, shall be held not later than 35 days from the date on which the request therefore is received. The parties shall be notified in writing of
the time and place of the hearing at least five days prior thereto. At any reasonable time prior to the hearing, the parent and the counsel or
advisor of the involved child shall be given access to all records, tests, reports or clinical evaluations relating to the proposed action.
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(d) (1) Except as otherwise provided in K.S.A. 72-993, and amendments thereto, during the pendency of any proceedings conducted under this
act, unless the agency and parent otherwise agree, the child shall remain in the then-current educational placement of such child.
(2) If proceedings arise in connection with the initial admission of the child to school, the child shall be placed in the appropriate regular
education classroom or program in compliance with K.S.A. 72-1111, and amendments thereto, unless otherwise directed pursuant to
section 18, and amendments thereto.
(e) Subject to the provisions of K.S.A. 72-973a, and amendments thereto, the agency shall appoint a hearing officer for the purpose of
conducting the hearing. Members of the state board, the secretary of social and rehabilitation services, the secretary of corrections, the
commissioner of the juvenile justice authority, and members of any board or agency involved in the education of the child shall not serve as
hearing officers. No hearing officer shall be any person responsible for recommending the proposed action upon which the hearing is based,
any person having a personal or professional interest which would conflict with objectivity in the hearing, or any person who is an employee
of the state board or any agency involved in the education of the child. A person shall not be considered an employee of the agency solely
because the person is paid by the agency to serve as a hearing officer. Each agency shall maintain a
list of hearing officers. Such list shall include a statement of the qualifications of each hearing officer. Each hearing officer and each state
review officer shall be qualified in accordance with standards and requirements established by the state board and shall have satisfactorily
completed a training program conducted or approved by the state board.
(f) (1) Any party to a due process hearing who has grounds to believe that the hearing officer cannot afford the party a fair and impartial hearing
due to bias, prejudice or a conflict of interest may file a written request for the hearing officer to disqualify such officer and have another
hearing officer appointed by the state board. Any such written request shall state the grounds for the request and the facts upon which the
request is based.
(2) If a request for disqualification is filed, the hearing officer shall review the request and determine the sufficiency of the grounds stated in
the request. The hearing officer then shall prepare a written order concerning the request and serve the order on the parties to the hearing.
If the grounds are found to be insufficient, the hearing officer shall continue to serve as the hearing officer. If the grounds are found to be
sufficient, the hearing officer immediately shall notify the state board and request the state board to appoint another hearing officer.
(g) (1) Except as provided in paragraph (2), the decision of the hearing officer in each due process hearing shall be based on substantive grounds
and a determination of whether the child received a free appropriate public education.
(2) In due process hearings in which procedural violations are alleged, the hearing officer may find that the child did not receive a free
appropriate public education only if the hearing officer concludes the procedural violations did occur and those violations:
(A) Impeded the child’s right to a free appropriate public education
(B) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free
appropriate public education to the parents’ child; or
(C) caused a deprivation of educational benefits.
(3) Nothing in this subsection shall be construed to preclude a hearing officer from ordering a local educational agency to comply with
procedural requirements under this act.
(h) Whenever a hearing officer conducts any hearing, such hearing officer shall render a decision on the matter, including findings of fact and
conclusions, not later than 10 days after the close of the hearing. The decision shall be written or, at the option of the parent, shall be an
electronic decision. Any action of the hearing officer in accordance with this subsection shall be final, subject to appeal and review in
accordance with this act.
K.S.A. 72-973a. Same; list and appointment of hearing officers; procedure.
Prior to appointing any hearing officer to conduct a due process hearing provided for under this act, the agency shall make its list of hearing
officers available to the parent of the involved child and shall inform the parent of the right to request disqualification of any or all of the hearing
officers on the list and to request the state board to appoint a hearing officer in accordance with the procedure provided in this subsection. If the
parent does not give written notice of disqualification to the agency within five days after the parent receives the list, the agency may appoint
from its list any hearing officer whom the parent has not requested to be disqualified. If the parent requests disqualification of all of the hearing
officers and requests the appointment of a hearing officer by the state board, the agency shall immediately notify the state board and shall
request the state board to appoint a hearing officer.
K.S.A. 72-974. Appeal and review; procedure; review officers, appointment and duties; federal court actions.
(a) Written notice of the result of any hearing provided for under this act shall be given to the agency providing for the hearing and shall be sent
by certified mail to the parent, or attorney of the child within 24 hours after the result is determined. Such decision, after deletion of any
personally identifiable information contained therein, shall be transmitted to the state board which shall make the decision available to the state
advisory council for special education and to the public upon request.
(b) (1) Any party to a due process hearing provided for under this act may appeal the decision to the state board by filing a written notice of
appeal with the commissioner of education not later than 30 calendar days after the date of the postmark on the written notice specified in
subsection (a). A review officer appointed by the state board shall conduct an impartial review of the decision. The review officer shall
render a decision not later than 20 calendar days after the notice of appeal is filed. The review officer shall:
(A) Examine the record of the hearing;
(B) determine whether the procedures at the hearing were in accordance with the requirements of due process;
(C) afford the parties an opportunity for oral or written argument, or both, at the discretion of the review officer;
(D) seek additional evidence if necessary;
(E) render an independent decision on any such appeal not later than five days after completion of the review; and
(F) send the decision on any such appeal to the parties and to the state board.
(2) For the purpose of reviewing any hearing and decision under provision (1), the state board may appoint one or more review officers. Any
such appointment may apply to a review of a particular hearing or to reviewing a set or class of hearings as specified by the state board in
making the appointment.
(c) Subject to the provisions of subsection (e), any action of a review officer pursuant to this section is subject to review in accordance with the
act for judicial review and civil enforcement of agency actions or to an action in federal court as allowed by the federal law.
(d) Consistent with state court actions, any action in federal court shall be filed within 30 days after service of the review officer’s decision.
(e) In any action brought under subsection (c), the court:
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(1) Shall receive the records of the administrative proceedings;
(2) if it deems necessary, shall hear additional evidence at the request of a party;
(3) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate; and
(4) in accordance with the federal law, may award attorneys’ fees to the prevailing party in any due process hearing or judicial action brought
in accordance with this act.
K.S.A. 72-975. Administration of oaths; issuance of subpoenas; extension of time; costs; hearing for additional evidence.
(a) Any person conducting a hearing or review under this act may administer oaths for the purpose of taking testimony therein.
(b) Any person conducting a hearing or review under this act or any party to any such hearing or review may request the clerk of the district
court to issue subpoenas for the attendance and testimony of witnesses and the production of all relevant records, tests, reports and evaluations
in the same manner provided for the issuance of subpoenas in civil actions pursuant to K.S.A. 60-245, and amendments thereto.
(c) Any person conducting a hearing or review under this act, at the request of either party, may grant specific extensions of time beyond the
limitations specified in this act.
(d) Any person conducting a hearing under this act shall consider any request for discovery in accordance with the provisions of K.S.A. 77-522,
and amendments thereto, except that depositions of witnesses who will be available for the hearing shall not be allowed.
(e) Every hearing and review under this act shall be provided for at no cost to the child or the parent of the child. The costs of any hearing
provided for by a board shall be paid by the school district.
(f) Any review officer conducting a review under this act may hold a hearing to receive additional evidence. Every such hearing shall be
conducted in accordance with requirements which are consonant with the requirements of this act.
K.S.A. 72-988
(b) The parents of exceptional children shall have the right to:
(12) recover attorney fees, as provided in the federal law, if they are the prevailing parties in a due process hearing or court action;
however, only a court shall have the authority to award attorney fees, and such fees may be reduced or denied in accordance with
federal law.
State Regulation:
K.A.R. 91-40-28. Special education mediation and due process hearings.
(a) If a disagreement arises between a parent and an agency
concerning the identification, evaluation, or educational placement of the parent’s exceptional child, or the provision of FAPE to the child, the
parent or the agency, or both, may request mediation or initiate a due process hearing.
(b) (1) If mediation is requested by either party, the provisions of K.S.A. 72-996 and amendments thereto shall be followed, together with the
requirement in paragraph (2) of this subsection.
(2) When agreement is reached to mediate, the agency shall immediately contact the state board or its designee. A mediator shall be
appointed by the state board from its list of qualified mediators, based upon a random or other impartial basis.
(c) If a disagreement as described in subsection (a) arises, the parent or the agency, or both, may initiate a special education due process hearing
by filing a due process complaint notice. Each due process hearing shall be provided for by the agency directly responsible for the education of
the child.
(d)(1) If a special education due process complaint notice is filed, the provisions of K.S.A. 72-972a through 72-975 and amendments thereto
shall be followed, together with the requirements in this subsection.
(2) Not more than five business days after a due process complaint notice is received, the agency providing for the hearing shall furnish
to the parent the following information:
(A) The agency’s list of qualified due process hearing officers;
(B) written notification that the parent has the right to disqualify any or all of the hearing officers on the agency’s list and to request
that the state board appoint the hearing officer; and
(C) written notification that the parent has the right, within five days after the parent receives the list, to advise the agency of any
hearing officer or officers that the parent chooses to disqualify.
(3) (A) If a parent chooses to disqualify any or all of the agency’s hearing officers, the parent, within five days of receiving the list,
shall notify the agency of the officer or officers disqualified by the parent.
(B) An agency may appoint from its list any hearing officer who has not been disqualified by the parent.
(4) Not more than three business days after being notified that a parent has disqualified all of the hearing officers on its list, an agency
shall contact the state board and request the state board to appoint a hearing officer. In making this request, the agency shall advise the
state board of the following information:
(A) The name and address of the parent;
(B) the name and address of the attorney, if any, representing the parent, if known to the agency; and
(C) the names of the agency’s hearing officers who were disqualified by the parent.
(5) Within three business days of receiving a request to appoint a hearing officer, the parent and agency shall be provided written notice
by the state board of the hearing officer appointed by the state board.
(e) If a due process hearing is requested by a parent or an agency, the agency shall provide written notice to the state board of that action. The
notice shall be provided within five business days of the date the due process hearing is requested.
(f) (1) Unless the agency and parent have agreed to waive a resolution meeting or to engage in mediation, the agency and parent shall participate
in a resolution meeting as required by K.S.A. 72-973 and amendments thereto. The parent and agency shall determine which members of the
IEP team will attend the meeting.
(2) If a parent who files a due process complaint fails to participate in a resolution meeting for which the agency has made reasonable
efforts to give the parent notice, the timelines to complete the resolution process and begin the due process hearing shall be delayed until
the parent attends a resolution meeting or the agency, at the end of the 30-day resolution period, requests the hearing officer to dismiss the
due process complaint.
(3) If an agency fails to hold a resolution meeting within 15 days of receiving a due process complaint or to participate in a meeting, the
parent may request the hearing officer to begin the due process hearing and commence the 45-day timeline for its completion.
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(g) The 45-day timeline for completion of a due process hearing shall start on the day after one of the following events occurs:
(1) Both parties to the due process proceedings agree, in writing, to waive the resolution meeting.
(2) The parties participate in a resolution meeting or in mediation but agree, in writing, that resolution of their dispute is not possible by t
he end of the 30-day resolution period.
(3) Both parties agreed, in writing, to continue to engage in mediation beyond the end of the 30-day resolution period, but later one or
both of the parties withdraw from the mediation process.
K.A.R. 91-40-29 Qualifications of special education mediators and due process hearing officers.
(a) To initially qualify as a special education mediator, a person shall meet the following requirements:
(1) Have passed a written examination prescribed by the state board concerning special education laws and regulations; and
(2) have completed a program sponsored or approved by the state board concerning effective mediation techniques and procedures, and
the role and responsibilities of a mediator.
(b) (1) Except as otherwise provided in paragraph (2) of this subsection, to initially qualify as a special education due process hearing officer or
review officer, a person shall meet the following requirements:
(A) Be a licensed attorney in good standing with the licensing agency in the state in which the person is licensed to practice law;
(B) have passed a written examination prescribed by the state board concerning special education laws and regulations;
(C) have completed a program sponsored or approved by the state board concerning due process hearing procedures and the role and
responsibilities of a due process hearing officer; and
(D) have passed a written examination prescribed by the state board concerning due process proceedings.
(2) Each person who is on the list of qualified due process hearing officers maintained by the state board shall remain eligible to serve
as a due process hearing officer or review officer
, if the person the continuing education programs in special education law that are
conducted or approved by the state board.
91-40-31. Educational placement during proceedings. (a) Except as otherwise provided in K.S.A. 72-993 and amendments thereto and this
regulation, during the pendency of any special education due process or judicial proceeding, the child’s educational placement shall be
determined in accordance with K.S.A. 72-973(c)
and amendments thereto.
(b) If a state review officer in an administrative appeal agrees with the parent’s position as to the appropriate educational placement for
the child, the child shall be educated in that placement during any further proceedings, unless the parent and agency agree to another
placement or the child’s placement is changed in accordance with K.S.A. 72-993 and amendments thereto.
(c) If the due process hearing involves the evaluation of or initial services for a child who is transferring from the infant and toddler
program under the federal law because the child has reached three years of age, the agency shall not be required to provide the services
that the child had been receiving under the infant and toddler program. However, if the child is determined to be eligible for special
education and related services, the agency shall provide appropriate services to which the parent consents.
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QUESTIONS AND ANSWERS ABOUT DUE PROCESS HEARINGS
1. May the parents strike all names of special education due process hearing officers
provided by the school district?
Yes. The school district must then request the Kansas State Department of Education to appoint a Special education
due process hearing officer.
2. Do the parents have the right to an attorney at the due process hearing at public
expense?
No. However, if the parents are the prevailing party, they may request from the Court that attorney fees be
reimbursed by the school district. The law provides for exceptions and limitations as appropriate.
3. May the parents or the school district ask that their request for a special education due
process hearing be withdrawn or dismissed?
Yes. A party that has filed for a special education due process hearing may, subsequently, request the action be
dismissed.
4. May the special education due process hearing officer award attorney fees?
No. Only a Court has the authority to award attorney fees.
5. What if either party disagrees with the decision of the special education due process
hearing officer?
If either party wishes to appeal a decision of the due process hearing officer, following the special education due
process hearing, school personnel or the parents may appeal to the Kansas State Board of Education (KSBE). If an
appeal to the KSBE is unsuccessful,
either party may pursue further action through a civil proceeding in State or
Federal district court.
6. What are some alternatives to due process hearings?
Parents and school personnel should always try to resolve differences at the local level. If they wish to use the
informal process of mediation, they may contact the Special Education Services Team at the Kansas State
Department of Education and request mediation (800-203-9462). An impartial third party is assigned to serve as a
facilitator in reaching an agreement at no cost to either party. (See Chapter 10, Mediation.) If the parents or an
organization wishes to file a formal complaint alleging the school has violated a special education law or regulation,
they may do so. (See Chapter 11, Formal Complaint.)
7. When would a formal complaint be filed instead of requesting a due process hearing?
A formal complaint would be considered if the parents or any other person or organization wishes to have their
complaint against the school investigated. Formal complaints are filed with the State Department of Education. The
complaint must allege a violation of special education law or regulation. The State Department of Education does not
have authority to consider complaints regarding differences of opinion or judgment that do not allege a violation of
special education law or regulation (34 C.F.R. 300.153).
Due process is usually the last resort. Hopefully, the parties have first attempted all other forms of negotiation or
mediation in an attempt to resolve their differences. If all these methods fail, either the parents or the school may file
for due process.
8. If a parent or the district bring in an “expert witness” can they be reimbursed for this
expense by a court of law?
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The United States Supreme Court case, Arlington Central School Dist. V. Murphy, 126 S. Ct. 2455, 45 IDELR 267
(S.C. 2006), decided that the IDEA attorney’s fees provision did not include any provision for the awarding of expert
witness fees. Therefore, a court
cannot award recovery of expert witness fees in an IDEA case.
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Figure 13-1
PROCEDURES FOR DISCIPLINARY VIOLATIONS FOR CODE OF STUDENT
CONDUCT INCLUDING WEAPONS, DRUGS, SERIOUS BODILY INJURY
LENGTH OF REMOVAL
SERVICES REQUIR
ED
IEP MEETING REQUIRED
SERVICES
DETERMINED
BY WHOM
IF CHALLENGED,
STAY PUT
1.
Short term removals, not
exceeding
10
consecutive
school days, and not cumulating
to more than 10 school days.
300.530(B)
None
300.530(d)(3)
No
N/A
N/A
2.
All subsequent short term
removals which includes the 11
th
cumulative day (but does not
constitute change of placement)
Beginning on the 11
th
cumulative day,
services necessary to enable the child to:
1) Participate in the general education
curriculum (although in another setting);
and
2) Progress toward meeting the goals in the
IEP 300.530(d)(4)
No
. No manifestation determination is
required. 300.530(e) –
Also see row 3 if long term
suspension/expulsion is anticipated.
School officials,
(General. Ed.
Administrator, Director.
of Sp. Ed. and the
child's Sp. Ed
teacher).300.530(d)(4).
91-40-33(b)
91-40-36(a)
N/A
3.
1) A removal for more than 10
consecutive days, or
2) another removal that
cumulates to more than 10
school days, and shows a
pattern of removal constituting a
change of placement.
300.536(a)(1)(2);
300.530(c)
Same as above.
300.530(d)(5)
Yes, to:
1) Make a manifestation determination*
(Notice of action and Parent Rights
immediately, and meeting within
10 school
days.) 300.530(e), 300.530(h); and
2) If the behavior is a manifestation of the
disability, (a) develop a FBA and BIP, or
review existing BIP, and make any changes
needed to address behavior and (b) return
student to IEP placement unless parent and
school agree otherwise. 300.530(f)
IEP Team determines
services and place
where the services will
be provided.
300.530(d)(5)
300.531
Parental consent is
not
required for this
change in placement.
Disciplinary
Placement.
300.533
4
. 45 school day alternative
educational setting (IAES)
(weapons, drugs, serious bodily
injury)
Same as above, but services begin
immediately. 300.350(d)(1)
Yes to:
1) Determine IAES setting and services, and
2) Determine if FBA and BIP are appropriate.
300.530(d)(1) and (d)(5), 300.531
Same as above
Same as above
5
. 45 school day alternative
educational setting (IAES)
ordered by H.O. (dangerous
behavior) 300.532(a) and (b)
Same as above.
Yes to:
1) Determine IAES services, and
2) Determine if FBA and BIP are appropriate.
Services determined
by the IEP team.
300.530(d)(5)
300.536(a)
Same as above
CHAPTER 13
SUSPENSION AND EXPULSION OF CHILDREN WITH DISABILITIES
FOR DISCIPLINARY VIOLATIONS
(Code of Student Conduct, and Drugs, Weapons, or Serious Bodily Injury Option)
INTRODUCTION
The discipline provisions for children with disabilities established by the 1997 amendments to the Individuals with
Disabilities Education Act (IDEA-97) were new, complex, and detailed. Before 1997, constraints for suspension and
expulsion of children with disabilities were not addressed in the IDEA. Federal direction came from case law, letters
of guidance from the US Department of Education, and the anti-discrimination provisions of Section 504 of the
Rehabilitation Act of 1973. The 1997 amendments codified many of these concepts, but also made some changes to
those past practices.
There were several changes in IDEA 2004 related to the discipline requirements and most specifically to the
procedures for children committing violations related to weapons, drugs, or serious bodily injury
.
For each specific
situation, the required disciplinary procedures may be different. Therefore, it is extremely important to examine each
disciplinary situation as unique, carefully analyzing the
behavior subject to discipline, in order to understand the
school's responsibilities.
This chapter examines issues related to disciplinary actions for code of conduct violations including the option for
violations related to weapons, drugs, serious bodily injury and behavior substantially likely to result in injury to the child or
others
.
Section E specifically addresses violations related to weapons, drugs, and serious bodily injury.
Schools may use customary disciplinary techniques for all children, including those with disabilities. The school's
focus should be on prevention; that is, methods used to prevent future occurrences of behavior problems. Schools
may use a school wide multi-tiered system of positive behavior supports (MTSS-PBS) for all children in the school.
For children with disabilities, traditional forms of discipline such as in-school suspension, detention, time-out, study
carrels, or the restriction of privileges can also be used so long as these forms of discipline are also used with
nondisabled children and do not violate the provisions of a child’s Individualized Education Program (IEP) or the
child’s right to a free appropriate public education (FAPE).
Most legal problems arise when a school proposes to suspend or expel a child with a disability. When the issue is
suspension or expulsion, the law has special provisions which sometimes require schools to treat children with
disabilities differently than other children. (See Section D of this chapter.)
The Kansas special education laws and regulations contain provisions that parallel Federal suspension and
expulsion requirements. Other State laws regarding suspension and expulsion which apply to all children are also
cited within the chapter. Figure 13-1 at the beginning of this chapter provides a chart that will be helpful in
understanding some of the most important federal and state requirements for disciplinary removal procedures.
Under Kansas special education law and regulations students with giftedness are not covered by the discipline
requirements.
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This chapter includes a discussion of the following topics:
A. Local School District Responsibilities
B. Code of Conduct Violations
C. Short-Term Removals (Not A Change of Placement)
D. Long-Term Removals (A Change of Placement)
E. 45 School Day Interim Alternative Educational Setting (Weapons, Drugs, or Serious Bodily Injury)
F. Appeals
G. Children Not Yet Eligible for Special Education
H. Reporting A Crime
I.
Seclusion and Restraint
A. LOCAL SCHOOL DISTRICT RESPONSIBILITIES
School-wide policies and discipline plans help foster a safe and caring child culture. Curricula aimed at teaching
children pro-social skills are based on the belief that violent behavior is learned through modeling and reinforcement
and that these same processes can be used to teach children nonviolent behavior patterns. Most programs teach
children to empathize and cooperate with others, as well as to see others' points of view. In addition, all programs
teach a process to help peers settle differences peacefully.
Research shows that schools with low levels of behavior problems are distinguished from those with high levels by
the presence of a positive school climate where nurturing, being inclusive, and a feeling of community are evident.
Children who feel valued by at least one adult at school will be less likely to act out in the school environment.
Requirements for imposing disciplinary removals of children with disabilities (not gifted) are found in numerous
Federal and State laws and regulations. Some of these apply to all children in public schools. It is important for local
school districts to examine their current policies to ensure that they comply with all requirements. Additionally, school
districts may wish to consult with their attorney to consider what other policies might be needed. It is advisable for
school districts to develop clear definitions and inform children and parents of the school district's expectations in
terms of behavior and conduct.
IDEA encourages school districts to establish preventive measures and approaches, such as the use of positive
behavioral interventions, supports and strategies. School districts are also advised to provide sufficient staff
development activities to ensure that both new employees and experienced staff are knowledgeable about Federal
and State requirements. Both special and general education administrators need to know what to do immediately
when serious situations arise.
School districts must carefully consider the personnel involved when disciplinary situations result in a hearing. There
are two kinds of hearing officers. One is a school administrator, employee, or committee authorized by the local
school board as the
school's disciplinary hearing officer
(K.S.A. 72-8902(f)). The second kind of hearing officer is
a
special education due process hearing officer
, who addresses any special education issue that arises as a
result of an appeal regarding special education actions related to suspension and expulsion (i.e., change of
placement, manifestation determination, etc.). The special education due process hearing officer is assigned by the
State and is not from the school district. It is important that school districts understand when each kind of hearing
officer is required. The terms "school's disciplinary hearing officer" and "special education due process hearing
officer" will be used throughout this chapter to differentiate the two types of hearing officers.
The IDEA allows traditional disciplinary methods such as time-out and detention. School officials may also use in-
school or out-of-school suspension so long as it does not constitute a change of placement. The law does not set an
absolute limit on the number of cumulative school days needed to constitute a change of placement, but requires a
case-by-case examination of specific factors and requires that services be provided after the 10
th
school day of
suspension in a school year.
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In addition, the Kansas State Board of Education has adopted a set of “Guidelines for the Use of Seclusion Rooms
and Restraint on Children with Disabilities” (See Appendix A, Figure 13-3). Schools are encouraged to adhere to
these guidelines as a matter of best practice.
School districts are required to document incidences of suspension and expulsion of children with disabilities on the
Kansas Discipline Incident System (KAN-DIS) that is submitted to the Kansas State Department of Education.
Kansas regulations clarify that children identified as gifted are subject to suspension or expulsion from school the
same as a child without a disability. While a child identified as gifted is suspended or expelled from school, the
school is not required to provide special education or any other educational services to the child (K.A.R. 91-40-34(c)).
B. CODE OF CONDUCT VIOLATIONS
When a child with a disability violates a school’s code of conduct, that behavior could result in suspension or
expulsion. Such removals from school are subject to the disciplinary provisions of special education law. Therefore,
school district officials must consider suspension and expulsion for children with disabilities very carefully. The initial
questions for administrators to answer are:
INITIAL QUESTIONS FOR ADMINISTRATORS
1. Is the child a child with a disability (not gifted only)?
•
If yes, continue with these questions.
•
If no, could the school be deemed to have knowledge that the child, although not identified, is a
child with a disability? See Section G of this chapter.
•
If the child is identified as gifted (and does not have a disability), the school's usual disciplinary
policies should be followed, because IDEA disciplinary provisions do not apply to children who do
not have a disability.
2. Does the anticipated disciplinary action involve suspension or expulsion?
•
If yes, continue with these questions.
•
If no, this chapter does not apply to your situation.
3. How many cumulative school days has the child been suspended during the current school year? (It is
important to monitor the number of school days of suspension.)
NOTE: Any part of a school day counts as a full school day.
•
If the number is 10 or less, school officials may suspend the student without educational services,
but should be addressing the behavior that results in suspensions. See
Section C of this chapter.
•
If this suspension will result in the 11
th
cumulative school day of suspension, school officials or the
IEP team must determine what services are needed. See
Section D of this chapter,
•
If this removal result in a pattern of removals that constitutes a change of placement see
Section
D of this Chapter.
4. Was the behavior subject to discipline a code of conduct violation involving weapons, drugs, serious
bodily injury or behavior substantially likely to result in injury to the child or others?
•
If your situation is a code of conduct violation not involving weapons, drugs, serious bodily injury
or behavior substantially likely to result in injury to the child or others, see
Section C and D of this
chapter.
•
If your situation did involve weapons, drugs, serious bodily injury or behavior substantially likely to
result in injury to the child or others, see
Section E of this chapter.
If assistance is needed in answering these questions, please consult with your special education director,
school attorney, or the Kansas State Department of Education.
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1. Several terms used throughout this chapter are defined as follows:
a. Change in Placement for Disciplinary Reasons
Change in Placement for Disciplinary Reasons
(long-term removal) means that school officials or a special
education due process hearing officer has ordered any of the following changes in placement of a child with a
disability:
1. The child is suspended or expelled from school for more than 10 consecutive school days.
2. The child is subjected to a series of short-term suspensions that constitute a pattern because
all of the
following have occurred:
a. they cumulate to more than 10 school days in a school year,
b. each incident of misconduct involves substantially the same behavior,
and
c. because of other factors such as the length of each suspension, the total amount of time the child is
suspended, and the proximity of the suspensions to one another.
3. The child is placed in an interim alternative educational setting. (K.A.R. 91-40-33(a)(1))
b. School Day
School day
means any day, including a partial day, that all children, including children with disabilities, are in
attendance at school for instructional purposes (34 C.F.R. 300.11(c) and K.A.R. 91-40-1(eee)). Given this
definition, if a child is suspended for part of a school day, the partial day counts as a full day for purposes of
determining if a change of placement has occurred, or if educational services are required during the period
of suspension.
c. School Official
School official
means (1) A regular education administrator; (2) the director of special education or the
director's designee or designees; and (3) a special education teacher of the child with a disability (K.A.R. 91-
40-33(b)).
d. Short-Term Suspension
Short-term suspension
means removal for a short term not exceeding 10 school days (or a series of
removals not constituting a change in placement) (K.S.A. 72-8902(a)).
e. Controlled Substance
Controlled substance
means a drug or other substance identified under schedules I, II, III, IV, or V in section
202(c) of the Controlled Substances Act (21 USC 812(c)). (34 C.F.R. 300.520(d)(1).
f. Illegal Drug
Illegal drug
means a controlled substance; but does not include a substance that is legally possessed or
used under the supervision of a licensed health-care professional or that is legally possessed or used under
any other authority under that Act or under any other provision of Federal law (34 C.F.R. 300.520(d)(2)).
NOTE: Alcohol and tobacco are
not included in this definition.
g. Weapon
Weapon
means any weapon, device, instrument, material, or substance, animate or inanimate, that is used
for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a
pocket knife with a blade of less than 2½ inches in length (K.S.A. 72-991(g)(3)).
h. Serious Bodily Injury
Serious bodily injury
means a bodily injury that involves one or more of the following: a substantial risk of
death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the
function of a bodily member, organ, or mental faculty (K.S.A. 72-991(g)(h)).
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i. Bodily Injury
Bodily injury
includes: a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of
the function of a bodily member, organ, or mental faculty; any other injury to the body, no matter how
temporary (18 U.S.C. 1365(h)(4)).
Additionally, in this chapter, the term “dangerous
behavior” may be used interchangeably with the phrase
“substantially
likely to result in injury to the child or others”.
Figure 13-1 at the beginning of this chapter is a chart that illustrates the most important requirements for the legal
course of action for school personnel to follow when removing a student and the disciplinary reasons. The chart may
be used for disciplinary removals involving code of conduct violations
and for violations relating to weapons, drugs,
serious bodily injury or behavior substantially likely to result in injury to the child or others.
C. SHORT TERM REMOVALS (NOT A CHANGE OF PLACEMENT)
(Row 1 on Discipline Chart)
School officials may remove a child with a disability who violates a code of student conduct from his or her current
placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than
10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for
additional removals of not more than 10 consecutive school days in that same school year for separate incidents of
misconduct, as long as those removals do not constitute a change of placement. The school need not provide
educational services during the first 10 days of removal in a school year, unless it provides educational services to a
child without disabilities who is similarly removed.
When proposing a short-term suspension for a child with a disability, school officials must also consider the
provisions of the Kansas Pupil Suspension and Expulsion Act, K.S.A. 72-8901 et seq. This State law sets forth due
process requirements that apply to all children in implementing a suspension. This law requires (1) providing notice,
and (2) the opportunity for an informal hearing before a child is removed from school.
State Statute:
K.S.A. 72-991a
(a) School personnel may order a change in the placement of a child with a disability:
(1) To an appropriate interim alternative educational setting or other setting, or the short-term suspension of the child…
K.S.A. 72-8902.
(a) A suspension may be for a short term not exceeding 10 school days, or for an extended term not exceeding 90 school days.
An expulsion may be for a term not exceeding 186 school days. If a suspension or expulsion is for a term exceeding the number of school days
remaining in the school year, any remaining part of the term of the suspension or expulsion may be applied to the succeeding school year.
(f) A formal hearing on a suspension or expulsion may be conducted by any person or committee of persons authorized by the board of
education to conduct the hearing.
1.
Subsequent Short-Term Removals (Not a Change in Placement)
(Row 2 on Discipline Chart)
When a child with a disability has more than a single suspension in a school year, school officials should carefully
monitor the cumulative number of school days of suspension and make decisions about the effect of imposing
additional short-term suspensions. If school officials order two or more short-term suspensions of a child with a
disability during a school year, these suspensions are not a change in placement for disciplinary reasons if the
suspensions do not constitute a pattern of removals.
School officials as defined in K.A.R. 91-40-33(b), means a regular education administrator; the Director of special
education or director designee; and a special education teacher of the child with a disability.
To determine if a change of placement has occurred, school officials must consider whether the series of
suspensions constitutes a pattern of removals. School officials may consider any unique circumstances on a case-
by-case basis when determining whether a change in placement, consistent with the other requirements, is
appropriate for a child with a disabiity who violates a code of student conduct. (34 C.F.R. 300.530(a))
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When a series of suspensions/removals total more than 10 school days in a school year, school officials should
determine whether a pattern of removals has developed by considering:
•
Whether the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted
in the series of removals
•
Other factors such as:
°
The length of each removal;
°
The total amount of time the child has been removed; and
°
The proximity of the removals to one another.
School officials have the authority to make the determination of whether a series of short-term suspensions of a child
with a disability constitute a change in placement for disciplinary reasons. This determination is subject to review
through due process proceedings. (K.A.R. 91-40-33(a))
Note that partial days count as full school days
.
School officials should be addressing the issues of the suspensions prior to reaching the 11
th
day. By addressing
accumulated days of suspension early, the school may be able to avoid the need for a suspension that would result
in a disciplinary change in placement. Suspensions should be carefully monitored so that school personnel will be
aware of whether another removal will constitute a change of placement.
Schools must provide FAPE to all children with disabilities, including those who are suspended or expelled from
school. Nevertheless, children with disabilities like students without disabilities, may be given short-term
suspensions. As stated previously, the school is not required to provide educational services to children with
disabilities during the first 10 cumulative days of suspension in a school year. However, when the total number of
school days of suspension in a school year reaches 11, and the current removal is for not more than 10 consecutive
school days and is not a change of placement, the school must begin providing educational services. School officials
must determine the extent to which special education and related services must be provided to the child beginning on
the 11
th
school day of suspension. This is known as the "11
th
day rule." In this situation, school officials means a
general education administrator, special education director or designee(s), and the child's special education teacher,
as specified in K.A.R. 91-40-33(b). Beginning on the 11
th
school day of suspension in a school year, and each
school day of suspension thereafter, special education and related services needed for the child must be provided
to
enable the child to:
•
participate in the general education curriculum, although in another setting; and
•
to progress toward meeting the goals set out in the child’s IEP.
If the short-term suspension includes the 11
th
cumulative school day of suspension in a school year, necessary
services identified by the school officials must be provided. The 11
th
day rule applies, whether or not the 11
th
school
day of suspension results in a pattern of removal that constitutes a change of placement.
Additionally, if the child has not had a functional behavioral assessment and the district has not implemented a
behavioral intervention plan for the child, school officials may (
but are not required to
) determine that the child
needs a
functional behavioral assessment
to address the behavior that resulted in the suspension and to develop
a behavioral intervention plan
if the assessment suggests such a plan is necessary for the child (See Appendix A,
Figure 13-6a and Figure 13-6b, Functional Behavior Assessment).
The comments to the federal regulations clarify that the services to be provided to the child on the 11
th
day do not
have to “replicate every aspect of the services that a child would receive if in his or her normal classroom.” (Federal
Register, 2006, p. 46716) “The act modified the concept of FAPE in these circumstances to encompass those
services necessary to enable the child to continue to participate in the general currilculum, and to progress toward
meeting the goals set out in the child’s IEP.” “An LEA is not required to provide children suspended for more than 10
school days in a school year for disciplinary reasons, exactly the same settings as they were receiving prior to the
imposition of discipline.” It is important, however, that the child continue to progress toward meeting graduation
requirements.
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Federal regulations (34 C.F.R. 300.530(b)(1)(2), (d)(1)(3)(4)) address these requirements, as do Kansas State
regulations:
State Regulations:
K.A.R. 91-40-33. Change in placement for disciplinary reasons; definitions.
As used in K.A.R. 91-40-33 through 91-40-38, the following
terms shall have the meanings specified in this regulation:
(a) (1) The phrase “change in placement for disciplinary reasons” means that school personnel or a special education due process hearing officer
has ordered any of the following changes in placement of a child with a disability:
(A) The child is suspended or expelled from school for more than 10 consecutive school days.
(B) The child is subjected to a series of short-term suspensions constituting a pattern that meets all of the following criteria:
(i) The suspensions cumulate to more than 10 school days in a school year
, .
(ii) Each incident of misconduct resulting in a suspension involved substantially the same behavior.
(iii) The length of each suspension, the total amount of time the child is suspended, and the proximity of the suspensions to one another
indicate a pattern.
(C) The child is placed in an interim alternative educational setting.
(2) (A) If school personnel order two or more short-term suspensions of a child with a disability during a school year, these suspensions
shall not constitute a change in placement for disciplinary reasons if the suspensions do not constitute a pattern as described in paragraph
(a)(1)(B)
(B) School officials shall have the authority to make the determination of whether a series of short-term suspensions of a child with a
disability constitutes a change in placement for disciplinary reasons. This determination shall be subject to review through due process
proceedings.
(b) "School officials" means the following:
(1) A regular education administrator;
(2) the director of special education or the director’s designee or designees; and
(3) a special education teacher of the child with a disability.
(c) “Short-term suspension” means a suspension as authorized by K.S.A. 72-8902(a) and amendments thereto.
K.A.R. 91-40-35. Services required during suspensions or interim alternative educational placements.
(a) An agency shall not be
required to provide special education or related services to a child with a disability who has been suspended from school for 10 or fewer school
days during any school year, if the agency does not provide educational services to nondisabled children who are suspended from school.
(b) (1) A child with a disability shall be entitled to continue to receive special education and related services if the child is suspended from
school under either of the following circumstances:
(A) For more than 10 cumulative school days in any school year, but with these suspensions not resulting in a change of placement for
disciplinary reasons; or
(B) for more than 10 consecutive school days in any school year for behavior that has been determined not to be a manifestation of the
child’s disability.
(2) If a child with a disability is suspended from school under either of the circumstances stated in paragraph (b)(1), the agency that
suspended the child shall provide, commencing on the 11
th
day of suspension and during any subsequent day or days of suspension,
special education and related services that are needed to enable the child to continue to participate in the general education curriculum
and to progress toward meeting the goals set out in the child’s IEP.
(c) If a child with a disability is placed in an interim alternative educational setting in accordance with K.S.A. 72-991a and amendments thereto,
the agency shall provide special education and related services to the child that meet the following requirements:
(1) The services provided shall enable the child to continue both of the following:
(A) To progress in the general curriculum, although in another setting; and
(B) to receive those services and modifications, including those described in the child’s IEP, that will enable the child to meet the goals
set out in the IEP.
(2) The services shall include services and modifications that address the child’s misbehavior and that are designed to prevent the
misbehavior from recurring.
D. LONG-TERM REMOVALS (A Change of Placement)
(Row 3 on Discipline Chart)
To determine if a change of placement has occurred, school officials must consider whether the series of short-term
removals (less than 10 consecutive school days) constitutes a pattern of removals. School officials may consider any
unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the
other requirements, is appropriate for a child with a disabiity who violates a code of student conduct. (34 C.F.R.
300.530(a))
A removal of a chld with a disability is a change of placement when:
•
the removal is for more than 10 consequtive school days;
•
the removal is one of a series of short-term removals that constitutes a pattern of removals.
Note that partial days count as full school days.
In each case, determining if a pattern has
occurred will rest on the unique facts.
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There are
specific steps to follow
when school officials consider either a long-term suspension for more than 10
consecutive school days, an expulsion, or another short-term suspension that cumulates to more than 10 school
days and shows a pattern constituting a change of placement (34 C.F.R. 300.530(d)(5),(e)).
•
On the date the decision is made to make a removal that constitutes a change of placement of a child with a
disability the school must notify the parents of that decision, and provide the parents with a copy of the
Parent Rights notice (K.S.A. 72-991a(d)(1).
•
On the 11
th
school day of removal, the school must begin providing appropriate special education and
related services. Note that the determination of services needed as a result of a disciplinary change of
placement is not made by the school officials as in the previous situations. Instead, the
IEP team decides
on these services and where they will be provided.
•
The school, the parent and relevant members of the child’s IEP team (as determined by the parent and the
school)
must determine if the child’s violation of the school’s code of student conduct was a
manifestation of his or her disability.
•
The school must convene meetings regarding the manifestation determination and services as
expediciously as possible and is
required to give only 24 hours prior notice of a meeting to the child’s
parents
(K.A.R. 91-40-38(d)).
When a disciplinary change of placement occurs, the IEP team, including the parent, determines the special
education and related services to be provided during the removal. However,
parental consent for the disciplinary
change in placement is not required.
1. Manifestation Determination
As soon as practical, but not later than 10 school days after the date on which the decision is made to change the
placement of a child with a disability because of a violation of a student code of conduct, the representative of the
school, the parent and other relevant members of the child’s IEP team, as determined by the parent and the school,
must meet to review:
•
all of the relevant information in the child’s file,
•
the child’s IEP,
•
any teacher observations, and
•
any relevant information provided by the parent.
Based on its review of all the relevant information, the group must determine if the conduct in question was:
a. caused by, or had a direct and substantial relationship to the child’s disability; or
b. the direct result of the school’s failure to implement the child’s IEP. (K.S.A. 72-991a(d)(2),(e)(1); 34 C.F.R.
300.530(e)(1)).
If it is determined by the group that the conduct of a child was a result of either “a” or” “b” above, then the
conduct must be determined to be a manifestation of the child’s disability.
(See Appendix A, Figure 13-7,
Manifestation Determination Form)
2. Determination Behavior WAS a Manifestation of the Disability
If the school, the parent and other relevant members of the child’s IEP team determine that the student’s behavior
was the direct result of the school’s failure to implement the IEP, the school district must take immediate action to
remedy those deficiencies.
If the school, the parent and other relevant members of the IEP team determine that the child’s behavior was a
manifestation of the disability, the IEP team must:
a. Return the child to the placement from which the child was removed, unless the parent and the school agree
to a change of placement as part of the modification of the behavioral intervention plan; and
b. Either:
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Kansas Special Education Process Handbook
i.
Conduct a functional behavioral assessment, unless the school had conducted a functional behavioral
assessment before the behavior that resulted in the change of placement occurred, and implement a
behavioral intervention plan for the child; or
ii. If a behavioral intervention plan already has been developed, review the behavioral intervention plan,
and modify it, as necessary, to address the behavior. (See Appendix A, Figure 13-6a and 13-6b,
Functional Behavior Assessment forms.)
If it is determined that the child’s behavior is a manifestation of the child’s disability the child cannot be subject to a
long-term removal for the behavior. However, the school and the parents could agree to another setting. Also, even
when the behavior
is a manifestation
of the child’s disability the school could request a special education due
process hearing officer to order a 45 school-day interim alternative educational setting if the school district can show
that maintaining the current placement is substantially likely to result in injury to the child or others (See Appendix A,
Figure 13-2, Letter to Huefner, OSEP, October 3, 2006 (47 IDELR 228) and 34 C.F.R. 300.532).
Requirements for the manifestation determination review, as stated above, are found in Federal regulations (34
C.F.R. 300.530(e)) and the State Statute (K.S.A. 72-991a(e)).
State Statute:
K.S.A. 72-991a
(d) If a disciplinary action is contemplated as described in subsection (a)(2) or (a)(3):
(1) Not later than the date on which the decision to take that action is made, the agency shall notify the parents of that decision and
of all procedural safeguards afforded under section 18, and amendments thereto; and
(2) Within 10 school days of the date on which the decision to take disciplinary action is made, a review shall be conducted to determine the
relationship between the child’s disability and the conduct that s subject to disciplinary action.
(e) (1) The review described in subsection (d)(2) shall be conducted by the agency, the parent, and relevant members of the child’s IEP team as
determined by the parent and the agency. In carrying out the review, that group shall review all relevant information in the student’s file,
including the child’s IEP, any teacher observations, and any relevant information provided by the parent.
(2) Based upon its review of all the relevant information, the group shall determine if the conduct in question:
(A) Was caused by, or had a direct and substantial relationship to, the child’s disability; or
(B) Was the direct result of the agency’s failure to implement the child’s IEP.
(3) If it is determined that the conduct of the student is described in either paragraph (2)(A) or (2)(B) of this subsection, then the conduct
shall be determined to be a manifestation of the child’s disability.
(f) If it is determined that the conduct of a child was a manifestation of the child’s disability, the IEP team shall:
(1) Conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the agency has
not conducted such an assessment prior to the behavior that resulted in a change in placement;
(2) If the child already had a behavioral intervention plan, review and modify it, as necessary, to address the behavior; and
(3) Except as provided in paragraph (a)(2), return the child to the placement from which the child was removed, unless the parent and the
agency agree to a change of placement as part of the modification of the behavioral intervention plan.
K.A.R. 91-40-38. Manifestation determination; appeal.
(a) If an agency proposes to make a change in educational placement for disciplinary
reasons, the agency shall implement the provisions of K.S.A. 72-991a and amendments thereto.
(b) An agency may conduct the manifestation determination at the same IEP team meeting that is held in regard to developing or reviewing a
behavioral intervention plan under K.S.A. 72-991a and amendments thereto.
(c) If, in making a manifestation determination, deficiencies are identified in the child’s IEP or placement or in the provision of services to the
child, the IEP team shall make any changes it deems appropriate, and the agency shall implement those changes.
(d) An agency shall convene meetings under this regulation as expeditiously as possible and shall be required to give only 24 hours’ prior notice
of a meeting to the child’s parent.
(e)(1) If a parent files a due process complaint concerning the manifestation determination, a resolution meeting between the parties shall be held
within seven days of the filing of the complaint, unless the parties agree, in writing, to waive the resolution meeting or to engage in mediation.
(2) If the matter has not been resolved to the satisfaction of both parties within 15 days of the filing of the due process complaint, the
due process hearing may proceed.
3. Determination Behavior WAS NOT a Manifestation of the Disability
If the IEP team determines the behavior was NOT a manifestation of the child’s disability, the district may proceed
with suspension and expulsion proceedings under K.S.A. 72-8901 et seq. Using these proceedings, school officials
may order a change in placement of a child with a disability to an appropriate interim alternative educational
placement for not more than 186 school days if it is determined that:
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Kansas Special Education Process Handbook
a.
the conduct of the child violated the code of student conduct;
b. the behavior was not a manifestation of the child’s disability; and
c. if the relevant disciplinary procedures applicable to children without disabilities are applied in the same
manner and the discipline is for the same duration as would be applied to a child without disabilities (K.S.A.
72-991a(a)(3)).
A child with a disability must continue to receive educational services during the period of a long-term disciplinary
removal. The services that must be provided during the long-term removal are the services that the IEP team
determines are needed to enable the child to continue to participate in the general education curriculum, although in
another setting, and to progress toward meeting the goals set out in the child’s IEP. If the IEP team determines it is
appropriate, the child must receive a functional behavioral assessment, and behavioral intervention services and
modifications, that are designed to address the behavior violation so that it does not recur (K.S.A. 72-991a(a)(3); 34
C.F.R. 300.530(d)(1)) (See Appendix A, Figure 13-6a and 13-6b, Functional Behavior Assessment).
If the violation of the code of student conduct is not a manifestation of the child’s disability, the district may transmit
the special education and disciplinary records of the child to the school's disciplinary hearing officer for consideration
in making the final determination in the disciplinary action. [Note: 34 C.F.R. 300.535 only requires transmittal of
special education records to appropriate authorities when a crime has been reported.] Even if the school's
disciplinary hearing officer determines that the child should be suspended or expelled, the district must continue to
provide a free appropriate public education (FAPE) for the child. Federal regulations (34 C.F.R. 300.530(d)(1))
address this topic, as does State Statute:
State Statute:
K.S.A. 72-991(a) School personnel may order a change in the placement of a child with a disability:
(3) To an appropriate interim alternative educational placement for not more than 186 school days, if it is determined that the conduct of the
child violated the code of student conduct and was not a manifestation of the child’s disability, if the relevant disciplinary procedures applicable
to children without disabilities are applied in the same manner and the discipline is for the same duration as would be
applied to a child
without disabilities, except that services must continue to be provided to the child during the period of disciplinary action.
(b) Any child with a disability whose placement is changed under subsection (a)(2) or (a)(3) shall:
(1) Continue to receive educational services so as to enable the child to continue to participate in the general education curriculum, although
in another setting and to progress toward meeting the goals set out in the child’s IEP; and
(2) Receive, as appropriate, a functional behavioral assessment, behavioral intervention services, and modifications that are designed to
address the inappropriate behavior so that it does not recur.
(c) The alternative educational setting described in subsections (a)(2) and (a)(3) shall be determined by the IEP team.
E. 45 SCHOOL DAY INTERIM ALTERNATIVE EDUCATIONAL SETTING (Option for Behavior Related
to Weapons, Drugs, Serious Bodily Injury)
(Row 4 of Discipline Chart)
School officials may remove a child with a disability to an interim alternative educational setting (IAES) up to 45 school
days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child:
1. Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function
under the jurisdiction of the school district or the State Board of Education;
2. Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at
school, on school premises, or at a school function under the jurisdiction of the school district or the State Board
of Education (tobacco and alcohol are not illegal drugs under this definition); or
3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school
function under the jurisdiction of the school district or the State. (K.S.A. 72-991a(a)(3); 34 C.F.R. 300.530(g))
When a child has been removed to an interim alternative educational setting, the IEP team must determine what
special education and related services are needed and where the services will be provided to enable the child to:
•
participate in the general education curriculum, although in another setting; and
•
to progress toward meeting their goals set out in the child’s IEP.
A manifestation determination is not required.
However, if the IEP team determines that a functional behavioral
assessment would be appropriate, one will be conducted. If appropriate, the IEP team will review and revise any
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existing behavioral intervention plan or develop one with services and modifications that are designed to address the
behavior violation so that it does not recur. (See Appendix A, Figure 13-6a and 13-6b, Functional Behavior
Assessment).
When a child commits a violation related to
weapons, drugs, or serious bodily injury
, the school officials may initially
suspend the child for up to 10 school days without educational services (if the suspension includes the 11
th
cumulative day of
suspension in the school year, educational services should begin on the 11
th
day). When the IEP team meets, it can
determine the location of the 45 school day interim alternative educational setting and the services to be provided to the child.
On the date on which the decision is made to make a removal that constitutes a change of placement of a child with
a disability because of a
violation of a code of student conduct (including weapons, drugs or serious bodily
injury)
the school must
notify the parents
of that decision, and provide the parents the
Parent Rights Notice
(K.S.A. 72-991a(d)(1).
Once the child has been placed in an interim alternative educational setting or otherwise removed for disciplinary
reasons, if the school believes that returning the child to the setting specified in the child’s IEP would be substantially
likely to result in injury to the child or others, the school may request an expedited due process hearing to request the
hearing officer to order another 45 school day interim alternative educational setting (See Appendix A, Figure 13-2,
Letter to Huefner, OSEP, October 3, 2006 (47 IDELR 228)). The burden of proof is on the school to justify an
additional removal be ordered by the hearing officer.
State Statute:
K.S.A. 72-991a
. Change in placement of child with disability to alternative setting as disciplinary action for certain behavior; duties of IEP
team and hearing officer; behavioral assessment and intervention plan; determination and review procedure.
(a) School personnel may order a change in the placement of a child with a disability:
(2) to an appropriate interim alternative educational setting for not more than 45 school days if: (A) The child carries or possesses a weapon to,
or at, school, on school premises, or to, or at, a school function under the jurisdiction of an agency; (B) the child knowingly possesses or uses
illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function under the
jurisdiction of an agency; or (C) the child has inflicted serious bodily injury upon another person while at school, on school premises, or at a
school function under the jurisdiction of an agency;
(b) Any child with a disability whose placement is changed under subsection (a)(2) or (a)(3) shall:
(1) Continue to receive educational services so as to enable the child to continue to participate in the general education curriculum, although
in another setting and to progress toward meeting the goals set out in the child’s IEP; and
(2) receive, as appropriate, a functional behavioral assessment, behavioral intervention services, and modifications that are designed to
address the inappropriate behavior so that it does not recur.
(c) The alternative educational setting described in subsections (a)(2) and (a)(3) shall be determined by the IEP team.
(g) For the purposes of this section, the following definitions apply:
(1) ‘‘Controlled substance’’ means a drug or other substance identified under schedules I, II, III, IV, or V in 21 U.S.C. 812(c);
(2) ‘‘illegal drug’’ means a controlled substance but does not include such a substance that is legally possessed or used under the supervision
of a licensed healthcare professional or that is legally possessed or used under any other authority under any federal or state law;
(3) ‘‘weapon’’ means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of,
causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in
length; and
(4) ‘‘serious bodily injury’’ means an injury as described in subsection (h)(3) of section 1365 of title 18 of the United States Code.
F. APPEALS
If the child’s parents disagree with any decision regarding the disciplinary placement or the results of the
manifestation determination, the parents may appeal the decision by requesting an
expedited
due process hearing.
Additionally, if the school believes that maintaining the child’s current placement is substantially likely to result in
injury to the child or others, the school may request an expedited due process hearing. (K.S.A. 72-992a(a); 34
C.F.R. 300.532(a)) (See Appendix A, Figure 13-2, Letter to Huefner, OSEP, October 3, 2006 (47 IDELR 228).)
A parental request for a due process hearing does not prevent the school district from seeking judicial relief such as a
temporary restraining order or an injunction, when necessary.
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1. Resolution Meeting During Expedited Due Process Hearing
A resolution meeting must occur within seven days of the school receiving notice of a parent’s due process
complaint, unless the parents and school agree in writing to waive the resolution meeting or agree to use the
mediation process. The due process hearing may proceed unless the matter has been resolved to the satisfaction of
both parties within 15 days of the school’s receipt of the due process complaint (K.A.R. 91-40-38(e)).
State Statute:
K.S.A. 72-992a.
Same; parental disagreement with determination; due process hearing and review.
(a) The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under K.S.A.
72-991a, and amendments thereto, or an agency that believes that maintaining the current placement of a child is substantially likely to result in
injury to the child or to others, may request a hearing.
(b) A hearing officer appointed under this act shall hear, and make the determination regarding, an appeal requested under subsection (a).
(c) In making the determination under subsection (b), the hearing officer may order a change in placement of the child. In such situations, the
hearing officer may:
(1) Uphold the manifestation determination;
(2) uphold the interim alternative educational placement of the child;
(3) return the child to the placement from which the child was removed; or
(4) order a change in placement of the child to an appropriate interim alternative educational setting for not more than 45 school days if the
hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to
others.
Kansas Regulations:
K.A.R. 91-40-38(e)
(e)(1) If a parent files a due process complaint concerning the manifestation determination, a resolution meeting between the parties shall be held
within seven days of the filing of the complaint, unless the parties agree, in writing, to waive the resolution meeting or to engage in mediation.
(2) If the matter has not been resolved to the satisfaction of both parties within 15 days of the filing of the due process complaint, the
due process hearing may proceed.
2. Placement During Expedited Due Process Hearing
When the parent or the school appeal a disciplinary placement or the result of the manifestation determination, the
child remains in the interim alternative educational setting determined by the IEP team pending the decision of the
hearing officer or until the expiration of the time of the disciplinary removal, whichever occurs first, unless the parent
and the school agree otherwise. Federal regulations (34 C.F.R. 300.533) address this issue, as does the State
Statute:
State Statute:
K.S.A. 72-993.
Same; placement of child during pendency of due process proceedings.
(a) If a parent or agency requests a hearing under section 18, and amendments thereto, the child shall remain in the interim alternative
educational setting pending the decision of the hearing officer or until the expiration of the forty-five-school-day period described in
subsection (a)(2) of section 17, and amendments thereto, whichever occurs first, unless the parent and the agency agree otherwise.
(b) The agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall
result in a determination within 10 school days after the hearing. To expedite the hearing, the agency, within three school days of receiving
the request for a hearing, shall request the state board to appoint a hearing officer to conduct the hearing.
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3. Expedited Due Process Hearings
Expedited due process hearings occur in two instances under the disciplinary provisions:
a. When a parent challenges the manifestation determination or any placement decision in a disciplinary
context; or
b. When a school district asks a special education due process hearing officer to order an interim alternative
educational setting because a child’s behavior is substantially likely to result in injury to the child or to
others.
State regulations (K.A.R. 91-40-30) and Statute (K.S.A. 72-992a and 72-993) define the procedures to follow when
an expedited hearing is requested.
•
Within 3 days of receiving the request for a hearing the school district must notify KSDE of the need for
a special education due process hearing officer and provide the parents’ names and addresses. The
local list is not provided to the parents before asking KSDE to appoint a special education due process
hearing officer.
•
KSDE appoints a special education due process hearing officer as soon as possible.
•
A resolution meeting must occur within seven days of the school receiving notice of a parent’s due
process complaint, unless the parents and school agree in writing to waive the resolution meeting or
agree to use the mediation process.
•
The parties must exchange exhibits, witness lists, and other required information at least 2 business
days (rather than 5 business days) before the hearing.
•
The special education due process hearing officer must conduct the expedited due process hearing
within 20 school days of receipt the request for an expedited due process hearing and must render a
decision in the matter within 10 school days after the close of the hearing.
•
The special education due process hearing officer cannot grant extensions of time in an expedited
hearing.
See Appendix A, Figure 13-4, Request for Expedited Due Process Hearing for District; and Figure 13-5, Request for
Expedited Due Process Hearing for Parent.
4. Authority of the Special Education Due Process Hearing Officer
In making a determination in an appeal by the parent or the school, the special education due process hearing officer may:
a. Return the child with a disability to the placement from which the child was removed if the special education
due process hearing officer determines that the removal exceeded the disciplinary authority of school
personnel or that the child’s behavior was a manifestation of the child’s disability; or
b. Order a change of placement of the child with a disability to an appropriate interim alternative educational
setting for up to 45 school days if the special education due process hearing officer determines that
maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
The school may also request that a special education due process hearing officer order additional 45 school
day interim alternative educational settings if school personnel believe that returning the child to the
placement specified in the child’s IEP would be substantially likely to result in injury to the child or to others.
State Statute:
K.S.A.72-993. Same; placement of child during pendency of due process proceedings.
(a) If a parent or agency requests a hearing under
section 18, and amendments thereto, the child shall remain in the interim alternative educational setting pending the decision of the hearing
officer or until the expiration of the forty-five-school-day period described in subsection (a)(2) of section 17, and amendments thereto,
whichever occurs first, unless the parent and the agency agree otherwise.
(b) The agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall
result in a determination within 10 school days after the hearing. To expedite the hearing, the agency, within three school days of receiving the
request for a hearing, shall request the state board to appoint a hearing officer to conduct the hearing.
K.S.A. 72-992a.
Same; parental disagreement with determination; due process hearing and review.
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(a) The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under K.S.A.
72-991a, and amendments thereto, or an agency that believes that maintaining the current placement of a child is substantially likely to result in
injury to the child or to others, may request a hearing.
(b) A hearing officer appointed under this act shall hear, and make the determination regarding, an appeal requested under subsection (a).
(c) In making the determination under subsection (b), the hearing officer may order a change in placement of the child. In such situations, the
hearing officer may:
(1) Uphold the manifestation determination;
(2) uphold the interim alternative educational placement of the child;
(3) return the child to the placement from which the child was removed; or
(4) order a change in placement of the child to an appropriate interim alternative educational setting for not more than 45 school days if the
hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or
to others.
Kansas Regulations:
K.A.R. 91-40-30. Expedited due process hearings.
(a) If an expedited due process hearing is requested under the provisions of K.S.A. 72-992
or 72-993 and amendments thereto, the agency responsible for providing the hearing shall immediately notify the state board of the request and
the parent's name and address.
(b) Upon being notified of a request for an expedited due process hearing, the state board shall appoint, from its list of qualified hearing officers,
a due process hearing officer and shall notify the parties of the appointment.
(c) Each of the parties to an expedited due process hearing shall have the rights afforded to them under K.S.A. 72-973 and amendments thereto,
except that either party shall have the right to prohibit the presentation of any evidence at the expedited hearing that has not been disclosed by
the opposite party at least two business days before the hearing.
(d) (1) Each hearing officer shall conduct the expedited due process hearing within 20 school days of the agency’s receipt of the parent's request
for the expedited due process hearing and shall render a decision in the matter within 10 school days after the close of the hearing.
(2) A hearing officer in an expedited due process hearing shall not grant any extensions or otherwise fail to comply with the
requirement of paragraph (1) of this subsection.
(e) Either party to an expedited due process hearing may appeal the decision in accordance with K.S.A. 72-974 and amendments thereto.
G. CHILDREN NOT DETERMINED ELIGIBLE FOR SPECIAL EDUCATION
The discipline requirements address the issue of suspending or expelling children not yet identified as a child with a
disability but whose parents allege the school district had knowledge that the child was a child with a disability before
disciplinary action was proposed. The IDEA affords protections to children not determined eligible only if a school
district had knowledge that a child was a child with a disability before the behavior which precipitated the disciplinary
action occurred.
A school district is deemed to have such knowledge if:
•
the parents of the child have expressed concern in writing to supervisory or administrative school personnel,
or a teacher of the child, that the child is in need of special education and related services;
•
the parents of the child have requested an evaluation of the child; or
•
the teacher of the child or other school personnel expressed specific concern about a pattern of behavior
demonstrated by the child directly to the special education director or other supervisory school personnel.
Although teachers and other school personnel may casually express concerns about the behavior or performance of
children in their classrooms, such expression of concern do not create knowledge on the part of the school district.
Schools also are not deemed to have knowledge of a disability merely because a child received services under other
programs designed to provide compensatory or remedial services or because the child had limited English proficiency.
Also, a school will not
be considered to have knowledge of a disability if:
•
the parent of the child
°
has not allowed an evaluation of the child;
°
has refused special education and related services; or
•
the child has been evaluated and determined not to be a child with a disability.
If it is determined that the school did not
have knowledge that the child is a child with a disability, the school may
proceed with its proposed disciplinary action, including suspension or expulsion without educational services.
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If the child's parents request an evaluation of the child during the period of suspension or expulsion or other
disciplinary action, the evaluation must be conducted in an expedited manner. No timeline is specified with regard to
an expedited evaluation. However, in this context, the term "expedited" suggests the evaluation should be concluded
in a shorter time frame than a normal evaluation.
Pending the results of the evaluation, the child remains in the disciplinary setting determined by school authorities
(that may be the out-of-school suspension or expulsion). The school is not required to put disciplinary proceedings
on hold until the evaluation is completed. If the child is subsequently determined to be a child with a disability, based
on the evaluation and review of information supplied by the parents, the school must provide the child with all of the
protections of the IDEA, including the provision of special education and related services during the suspension. If
the child is determined to
not
be a child with a disability, the child may be subjected to the disciplinary measures
applied to children without disabilities who engage in comparable behaviors.
These provisions are found in Federal regulations (34 C.F.R. 300.534) and State Statute (K.S.A. 72-994)
:
State Statute:
K.S.A. 72-994
School district knowledge that child is child with disability prior to determination, when deemed; subjection of child to disciplinary action,
when; evaluation and placement of child.
(a) A child who has not been determined to be eligible for special education and related services under this act and who has engaged in behavior
that violated any rule or code of conduct of the school district may assert any of the protections provided for in this act if the school district
had knowledge, as determined in accordance with this section, that the child was a child with a disability before the behavior that precipitated
the disciplinary action occurred.
(b) A school district shall be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the
disciplinary action occurred:
(1) The parent of the child has expressed concern, in writing, to supervisory or administrative personnel of the appropriate educational
agency or to a teacher of the child, that the child is in need of special education and related services;
(2) the parent of the child previously has requested an evaluation of the child; or
(3) the teacher of the child, or other personnel of the school district, previously has expressed specific concerns about a pattern of behavior
demonstrated by the child directly to the director of special education of such school district or to other supervisory personnel of the district.
(c) A school district shall not be deemed to have knowledge that a child is a child with a disability if the parent of the child has not allowed an
evaluation of the child or has refused services under this law, or the child has been evaluated but it was determined that the child was not a
child with a disability.
(d) (1) Subject to provision (2) of this subsection, if a school district does not have knowledge that a child is a child with a disability prior to
taking disciplinary action against the child, the child may be subjected to the same disciplinary action as is applied to children without
disabilities who engage in comparable behaviors.
(2) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary action described by
this act, an evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into
consideration information from the evaluation conducted by the school district and information provided by the parents, the school district
shall provide special education and related services in accordance with the provisions of this act, except that, pending the results of the
evaluation, the child shall remain in the educational placement determined by school authorities, which may be long-term suspension or
expulsion from school.
H. REPORTING A CRIME
School districts are permitted to report a crime that a child with a disability may have committed to appropriate law
enforcement authorities. However, under the Family Educational Rights and Privacy Act (FERPA), the district must
ask for parent consent to transmit a child's special education records to the authorities. Or, if ordered by a judge or
by a subpoena, the district must transmit the records. Otherwise, records are not transmitted in accordance with 34
C.F.R. 300.535. This regulation makes it clear the school can transmit records to appropriate law enforcement and
judicial authorities only if FERPA will allow the disclosure. (K.S.A. 72-89b03)
FERPA always allows disclosure if parents consent to the disclosure. State law (K.S.A. 72-995(b)) also addresses
this issue. FERPA exceptions to the parent consent requirement may allow for disclosure in other circumstances:
•
Child records may be disclosed in compliance with a lawfully issued subpoena. However, parents must be
notified in writing that the records have been subpoenaed before they are forwarded, unless the court has
ordered that the existence of the subpoena or the contents of the subpoena not be disclosed.
•
Child records may be disclosed in emergency situations where the disclosure is necessary to protect the health
or safety of the child or others.
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•
Child records may be disclosed under limited circumstances pursuant to State laws concerning the juvenile
justice system.
When records are provided to law enforcement or judicial authorities, the disclosure must be on the condition that the
record will not be further disclosed without the written consent of the child’s parents, or the student if the student is 18
or older.
Although it is easy for a school district to determine to whom the crime should be reported, it is less clear to who
copies of special education and disciplinary records should be forwarded. Parent consent to release the records to
certain individuals or a subpoena for the records will eliminate the confusion, and should ensure the appropriate
parties receive the records. Unless the authority to release the record under FERPA is clear, schools should not
forward child records to any law enforcement officer who comes into contact with the child. Federal regulations of
IDEA 2004 addressing this issue are found at 34 C.F.R. 300.535, and State Statute. Additionally, Kansas has State
Statute, K.S.A. 72-89b03, which requires that schools adopt a policy of reporting misdemeanors and felonies that
happen at school to law enforcement.
State Statute:
K.S.A. 72-995
(a)
Nothing in this act shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate
authorities or to prevent state or local law enforcement and judicial authorities from exercising their responsibilities with regard to the
application of federal, state, or local law to crimes committed by a child with a disability.
(b) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary
records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
K.S.A. 72-89b03. SCHOOL SAFETY AND SECURITY ACT Information regarding identity of specified pupils, disclosure
requirements; criminal acts, reports to law enforcement agencies and state board of education; school safety and security policies,
availability; civil liability, immunity.
(a) If a school employee has information that a pupil is a pupil to whom the provisions of this
subsection apply, the school employee shall report such information and identify the pupil to the superintendent of schools. The
superintendent of schools shall investigate the matter and, upon determining that the identified pupil is a pupil to whom the provisions of this
subsection apply, shall provide the reported information and identify the pupil to all school employees who are directly involved or likely to
be directly involved in teaching or providing other school related services to the pupil. The provisions of this subsection apply to:
(1) Any pupil who has been expelled for the reason provided by subsection (c) of K.S.A. 72-8901, and amendments thereto, for conduct
which endangers the safety of others;
(2) any pupil who has been expelled for the reason provided by subsection (d) of K.S.A. 72-8901, and amendments thereto;
(3) any pupil who has been expelled under a policy adopted pursuant to K.S.A. 72-89a02, and amendments thereto;
(4) any pupil who has been adjudged to be a juvenile offender and whose offense, if committed by an adult, would constitute a felony
under the laws of Kansas or the state where the offense was committed, except any pupil adjudicated as a juvenile offender for a felony theft
offense involving no direct threat to human life; and
(5) any pupil who has been tried and convicted as an adult of any felony, except any pupil convicted of a felony theft crime involving no
direct threat to human life.
A school employee and the superintendent of schools shall not be required to report information concerning a pupil specified in this
subsection if the expulsion, adjudication as a juvenile offender or conviction of a felony occurred more than 365 days prior to the school
employee's report to the superintendent of schools.
(b) Each board of education shall adopt a policy that includes:
(1) A requirement that an immediate report be made to the appropriate state or local law enforcement agency by or on behalf of any
school employee who knows or has reason to believe that an act has been committed at school, on school property, or at a school supervised
activity and that the act involved conduct which constitutes the commission of a felony or misdemeanor or which involves the possession,
use or disposal of explosives, firearms or other weapons; and
(2) the procedures for making such a report.
(c) School employees shall not be subject to the provisions of subsection (b) of K.S.A. 72-89b04 and amendments thereto if:
(1) They follow the procedures from a policy adopted pursuant to the provisions of subsection (b); or
(2) their board of education fails to adopt such policy.
(d) Each board of education shall annually compile and report to the state board of education at least the following information
relating to school safety and security: The types and frequency of criminal acts that are required to be reported pursuant to the provisions of
subsection (b), disaggregated by occurrences at school, on school property and at school supervised activities. The report shall be
incorporated into and become part of the current report required under the quality performance accreditation system.
(e) Each board of education shall make available to pupils and their parents, to school employees and, upon request, to others, district
policies and reports concerning school safety and security, except that the provisions of this subsection shall not apply to reports made by a
superintendent of schools and school employees pursuant to subsection (a).
(f) Nothing in this section shall be construed or operate in any manner so as to prevent any school employee from reporting criminal
acts to school officials and to appropriate state and local law enforcement agencies.
(g) The state board of education shall extract the information relating to school safety and security from the quality performance
accreditation report and transmit the information to the governor, the legislature, the attorney general, the secretary of health and
environment, the secretary of social and rehabilitation services and the commissioner of juvenile justice.
(h) No board of education, member of any such board, superintendent of schools or school employee shall be liable for damages in a
civil action resulting from a person's good faith acts or omissions in complying with the requirements or provisions of the Kansas school
safety and security act.
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I. SECLUSION ROOMS AND RESTRAINT
In the spring of 2007, the Kansas State Board of Education adopted a set of guidelines for the use of seclusion
rooms and/or the use of restraints on children with disabilities. A copy of the guidelines has been included in the
process handbook in Appendix A, Figure 13-3.
Certain terms used in the guidelines, such as “seclusion room,” “physical restraint,” and “mechanical restraint,” are
specifically defined. The guidelines address the use of these techniques with children with disabilities, regarding
when, how and under what circumstances these techniques may be appropriate. The guidelines also address the
training needs for school personnel implementing these techniques, and how the use of these techniques should be
documented. In addition, any school that uses a seclusion room, as defined in the guidelines, must submit to the
state director of special education an annual report consisting of specified information.
Therefore, if a school is considering the use of a seclusion room or of restraints for a child with a disability, it is
important to first consult the guidelines.
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QUESTIONS AND ANSWERS ABOUT SUSPENSION AND EXPULSION FOR CODE OF
CONDUCT INCLUDING WEAPONS, DRUGS, OR SERIOUS BODILY INJURY
1. Does in-school suspension count as a day of suspension toward the 11
th
day rule?
Whether school days of in-school suspension count as school days of suspension for determining if a change of
placement has occurred depends on the nature of the in-school suspension environment. Many schools already use
in-school suspension for code of conduct violations. Because children frequently are unsupervised and undirected by
school personnel if placed on out-of-school suspension, many school districts prefer to use in-school suspension, at
least for first-time offenders or less serious offenses. Comments following the Federal regulations indicate that school
districts have authority to utilize in-school suspension as a disciplinary tool (Federal Register, August 6, 2006, p.
46715).
Additionally, a school day of in-school suspension should not count as a school day of suspension for services or
change of placement purposes if, during the in-school suspension, the child is afforded an 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 children without disabilities to the extent they would have in their current placement.
The assumption is that school districts may use in-school suspension for children with disabilities just as they would for
children without disabilities. The issue is really whether the school day(s) count toward accumulating the 11
th
school
day of suspension which would require the beginning of educational services or toward the 10 consecutive school
days for change of placement or provision of services. The Comments indicate that for children with disabilities, if the
in-school suspension approximates the current placement in the areas outlined above, it does not count toward the 10
school days needed for a change of placement or provision of services. On the other hand, if in-school suspension is
a place where children are held without opportunities to progress in the general curriculum, receive IEP services, and
participate with children without disabilities to the same extent they would have in the current placement, the days
do
count as school days of suspension for change of placement and provision of services purposes.
2. Does the 10-day written notice requirement for an IEP meeting apply to IEP meetings
conducted to consider disciplinary matters?
The school is required to give only 24 hours prior notice of the IEP team meeting to the parents when a student
receives a long-term suspension, an expulsion, a short-term suspension that includes the 11th school day of
suspension in a school year, or is placed in a 45-day alternative educational setting, and the purpose of the IEP
meeting is to develop a functional behavioral assessment or behavior intervention plan (91-40-37(c)), or to determine
the special education services needed by the student (91-40-36(d)), or to conduct a manifestation determination (91-
40-38(d)).
3. May a student with a disability be suspended from the bus?
Yes, children with disabilities may be suspended from using public school transportation even though they are not
suspended from school. However, bus suspension may affect the district's requirement to provide FAPE. If special
education services are needed for the child to receive FAPE and the child needs transportation to receive special
education services, transportation would be needed and should be addressed by the IEP Team. Guidance to school
districts to determine if school days for bus suspension count as school days for change of placement and provision of
services purposes:
•
The school is always required to provide FAPE. If a child with a disability cannot get to school to benefit from
special education, it is likely that the school is required to continue to provide transportation in some manner.
•
If transportation is specified as a related service on the IEP, school days of suspension from bus transportation
would count in determining if a change of placement occurs and in provision of services unless the school
provides transportation some other way.
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•
If transportation is NOT required as a related service under the IEP, school days of suspension from the bus
should NOT count as school days of suspension for change of placement and provision of services purposes. In
such cases, the child’s parents have the same obligation to get the child to and from school as a child without
disabilities who has been suspended from the bus (unless the parents cannot provide the needed transportation).
Also, if bus transportation is not included on the IEP, the comments suggest a suspension from transportation
privileges may indicate the IEP team should consider whether that behavior on the bus should be addressed
within the IEP or a behavioral intervention plan for the child. (Federal Register, August 14, 2006, p. 46715.)
4. Do the discipline provisions of IDEA 2004 extend to children who are gifted and
receiving special education services according to the Kansas statute for special
education?
No, IDEA-97 discipline provisions only apply to children with disabilities.
5. Do the discipline provisions of IDEA 2004 extend to children who are in the process
of being identified as eligible for special education services?
Yes. Federal regulations for IDEA 2004 state that if a school had knowledge that the child is a child with a disability,
the child is covered under these provisions. A school is deemed to have knowledge if a teacher or other personnel
have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of
special education or to other supervisory personnel or if the parent of the child requested an evaluation. Therefore, it is
very important that screening records be maintained on children under 5 years of age in the child's cumulative folder.
Likewise, for children over age 5, records from the general education intervention process should be maintained in the
student's cumulative folder. Such data will provide documentation that if there was a suspected disability at some time
in the past, the school made the determination whether or not the child should be referred for an initial evaluation to
determine eligibility. Therefore, it is important for schools to maintain records on children as such data could be
important should a disciplinary proceeding occur later.
6. Are parents entitled to be notified when their child is suspended or expelled for
behavior that is subject to these discipline provisions?
Yes. If contemplating a suspension or an expulsion of a child with a disability, school districts must follow the
requirements of K.S.A. 72-8902. For long-term suspensions or expulsions, the school district must also provide
parents the required notice, under K.S.A. 72-991(d), of the school’s decision to make a disciplinary change of
placement as well as a copy of the Parent Rights document (34 C.F.R. 300.523(a)(1)).
7. What steps must be completed by the end of the 10th school day for a student to be
suspended for a long term, or expelled from school, for behavior not involving
weapons, drugs, or a substantial likelihood of injury?
In addition to the two notice requirements discussed in Question #6, the school must conduct a manifestation
determination. K.S.A. 72-991a(d)(2) requires a manifestation determination within 10 school days from the decision to
impose a long-term suspension or an expulsion. School personnel may not order a long-term suspension or expulsion
of a child with a disability until a manifestation determination has been completed (K.S.A. 72-8902). Thus, the school
should have the manifestation determination completed before the disciplinary hearing is conducted.
8. Many high schools have a point system for behavioral infractions, with a certain
number of points leading to a suspension or other disciplinary actions. The principal
has knowledge about a student's total points. Does this constitute the school's
having knowledge of a potential disability?
Not necessarily. A student who is frequently violating the school's code of conduct is not necessarily a child with a
disability. Such a child should be referred to the building’s general education intervention (GEI) or problem-solving
team, which would provide a method of addressing the needs of a student who is experiencing behavior problems in
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school. The problem-solving team may use general education interventions and then make a determination if other
evaluations or a referral should be made, as appropriate.
9. Who determines the interim alternative educational setting?
It depends on the behavior and the situation in which the determination is being made. The school can determine the
interim alternative educational setting for a short-term removal for 10 consecutive school days or less, or for a short-
term removal of more than 10 days that does not constitute a change in placement. When the child is being removed
for more than 10 school days and the behavior is not a manifestation of the child’s disability, the IEP team will
determine the interim alternative educational setting.
For behavior relating to drugs, weapons, or serious bodily injury the decision regarding IF a student is ordered to an
interim alternative educational setting is made by designated school officials. However, the decision of WHERE that
setting will be is made by the child's IEP Team (K.S.A. 72-991a(c); 34 C.F.R. 300.531). For behavior substantially
likely to result in injury to the child or others, the decision regarding an appropriate interim alternative educational
setting is made by a special education due process hearing officer (34 C.F.R. 300.532(b)(2)(ii)).
10. The law is specific in defining a pocket knife with a blade of more than 2-1/2 inches in
length as being a weapon. What about a scalpel, Xacto knife, or box cutter?
These items could very well be considered a weapon under the law, which defines a weapon, in part, as any
instrument or material that is used for, or is readily capable of, causing death or serious bodily injury. The exception for
a knife having a blade of less than 2-1/2 inches in length applies only to "pocket" knives (K.S.A. 78-8902(a)(3)(C)).
11. May a child be placed in an interim alternative educational setting more than one time
each school year?
Yes, however, a school district cannot order a second interim alternative educational setting for the same incident of
behavior. A child could be placed in a short term interim alternative educational setting several times if they are not
more than 10 consecutive days or if they do not constitute a change in placement. If a child brings a gun to school,
the school officials could impose one 45 school day interim alternative educational setting, and if the school believes
returning the child to his placement specified in the child’s IEP at the end of the 45 school day period is substantially
likely to result in injury to the child or others, the school district could ask a special education due process hearing
officer to order an additional 45 school day the interim alternative educational setting.
12. If a child without a disability has been disciplined, and during the disciplinary period
the child was evaluated and found to be eligible, would the days of discipline prior to
eligibility count toward a long term suspension?
No.
13. If a child with a disability is sent home for part of a day is it considered a suspension?
Yes. Any time a child is removed from school as a disciplinary action without educational services this would be
considered a suspension. Any part of a day is considered a whole day of suspension.
14. If a child with a disability has a behavior intervention plan (BIP) that calls for a
removal from school, is that considered a suspension?
IEP teams should take caution when including a removal from school as part of a BIP. If a child is removed from
school without educational services this would be counted toward a long term suspension.
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15. If the school has a school wide behavior plan for all students, and a child with a
disability reaches the point where he is suspended, what behavior does the team
consider during a manifestation determination?
The team must consider all behaviors which led to the suspension.
16. With regard to a manifestation determination, what is meant by conduct that has a
“direct and substantial” relationship to a student’s disability.
One way that a student’s behavior is determined to be a manifestation of the student’s disability is when relevant
members of the student’s IEP team determine that the behavior in question was caused by, or had a “direct and
substantial” relationship to the child’s disability. The phrase “direct and substantial” has not been specifically defined.
The only guidance to what is meant by the phrase “direct and substantial” is a statement in the comments to the
federal regulations indicating that a behavior should not be determined to be a manifestation of a student’s disability if
the relationship of that behavior to the child’s disability was merely “an attenuated association, such as low self-
esteem.” Federal Register, August 14, 2006, pg. 46720.
With so little guidance regarding this question, it is useful to examine the plain meaning of the words themselves.
Webster’s dictionary defines the term “direct,” as the term appears to be used in the context of a manifestation
determination, as “proceeding in a straight line or by the shortest course; straight; not oblique; proceeding in an
unbroken line of descent.” The term “substantial” is defined as “of ample or considerable amount, quantity, size, etc.”
See, Webster’s College Dictionary, Random House (Second Edition 1999). Accordingly, to have both a direct and
substantial relationship to a student’s disability, the student’s behavior must be linked straight to the student’s
disability without the necessity of examining outside influences or effects and the link of the behavior to the disability
must be one of ample or considerable proportion. This is a subjective standard and reasonable minds on the team
may disagree. When that happens, the school representative on the team must make the final decision. A parent
has a right to challenge the decision of a manifestation team through an expedited due process hearing.
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CHAPTER 14
CHILDREN IN PRIVATE AND PAROCHIAL SCHOOLS
INTRODUCTION
Federal and State laws and regulations recognize that children with exceptionalities may be receiving their education
in private elementary and secondary school settings for different reasons. In different situations, school districts have
different obligations. A school’s obligation to provide special education services or pay for services provided to
children in private schools depends on whether:
•
The child with an
disability
is placed in the private school by the public school as a means of providing
special education and related services;
•
The child with an
exceptionality (including gifted)
is enrolled in a private school by his or her parents
because the provision of a free appropriate public education (FAPE) is at issue; or
•
The child with an
exceptionality (including gifted)
is voluntarily enrolled in a private school by his or her
parents to receive general education.
Kansas defines a private school as: "an organization which regularly offers education at the elementary or
secondary level, which is exempt from federal income taxation under section 501 of the federal internal revenue code
of 1954, as amended, which conforms to the civil rights act of 1964, and attendance at which satisfies any compulsory
school attendance laws of this state" (K.S.A. 72-5392(c)). The definition of private schools includes parochial
schools.
Additionally, Kansas defines elementary and secondary schools as follows: (1) “elementary school” means any
nonprofit institutional day or residential school that offers instruction in any or all of the grades kindergarten through
nine. (2) “Secondary School” means any nonprofit institutional day or residential school that offers instruction in any
or all of the grades nine through 12.
These definitions do not include preschool programs or home schooling. Therefore, children ages 3 and 4, or 5 year
old children not in kindergarten are not included in the private school requirements. Charter schools in Kansas are
considered part of local school districts and are not private schools. In addition, there are specific requirements for
children identified as gifted who are enrolled by their parents in private schools.
This chapter addresses the following topics:
A. Children Placed in Private Schools by the Public School
B. Children Enrolled by Their Parents in Private Schools Where FAPE is at Issue
C. Child Find for Children Voluntary Enrolled in Private Schools by Their Parents
D. State Requirements for Children Voluntary Enrolled in Private Schools by Their Parents
E. Federal Requirements for Children Voluntary Enrolled in Private Schools by Their Parents
F. Mediation and Due Process Rights of Private School Children
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A. CHILDREN PLACED IN PRIVATE SCHOOLS BY THE PUBLIC SCHOOL
Both Federal and State laws and regulations allow a school district to place a child with a disability in a private school
in order to meet its obligation to provide FAPE to the child. Kansas law clarifies that the use of private schools to
meet the requirement for FAPE does not apply to children who are identified as gifted, unless they also have a
disability that requires placement in a private school in order to receive FAPE. In most situations, however, schools
are able to offer services to meet children's needs within their districts. Only when the IEP team determines that the
district is not able to provide the services locally would they arrange for services in a private school. Sometimes a
private school setting is the least restrictive environment where a child can achieve educational benefit. In such
cases, the IEP team may determine that the most appropriate educational placement is the private school. (See
Chapter 6, Educational Placement and Least Restrictive Environment.)
When the public school determines, through the IEP process, that a child with a disability should be placed in a
private school or facility, the child’s educational program, including special education and related services, must:
•
be provided according to an appropriately developed IEP and at no cost to the parents;
•
ensure the special education program is provided by staff who meet KSDE personnel standards, although
the private school teachers are not required to be highly qualified;
•
ensure that the private school provides services consistent with IDEA requirements and other pertinent
Federal and State laws and regulations (e.g., in accordance with IEP requirements); and
•
ensure that the child has all rights of a child with a disability who is served by the public school.
Before the public school places a child with a disability in a private school or facility, the public school must initiate
and conduct a meeting to develop an IEP for the child. The public school must ensure that a representative of the
private school or facility attends the meeting. If a representative cannot attend, the public school must use other
methods to ensure participation by the private school or facility, including individual or conference telephone calls.
After the child with a disability enters the private school or facility, the public school responsible for providing FAPE to
the child may allow any meetings to review and revise the child's IEP to be initiated and conducted by the private
school or facility. If the private school or facility initiates and conducts the IEP meeting, the private school must notify
the public school and the public school must ensure that the parents and a public school representative participate in
any decision about the child's IEP. In addition, the public school and the parent must agree to any proposed
changes in the IEP before those changes are implemented.
State Statutes:
K.S.A. 72-966(a)(2)
Each board shall provide a free appropriate public education for exceptional children enrolled in the school district and for children with
disabilities who are placed in a private school or facility by the school district as the means of carrying out the board's obligation to provide a
free appropriate public education under this act and for children with disabilities who have been suspended for an extended term or expelled
from school.
K.S.A. 72-967(a)(5)
Each board, in order to comply with the requirements of this act shall have the authority to:
(5) Contract with any private nonprofit corporation or any public or private institution, within or outside the state, which has proper special
education or related services for exceptional children. Whenever an exceptional child is educated by a private nonprofit corporation or a public
or private institution as provided under this paragraph, such child shall be considered a pupil of the school district contracting for such education
to the same extent as other pupils of such school district for the purpose of determining entitlements and participation in all state, federal and
other financial assistance or payments to such school district.
Kansas Regulations:
K.A.R
.
91-40-22. Agency placement in private schools or facilities
. (a) If an agency places a child with a disability in a private school or
facility as a means of providing FAPE to the child, the agency shall remain responsible for ensuring that the child is provided the special
education and related services specified in the child’s IEP and is afforded all the rights granted by the law.
(b)(1) Before an agency places a child with a disability in a private school or facility, the agency shall initiate and conduct a meeting to develop
an IEP for the child.
(2) The agency shall ensure that a representative of the private school or facility attends the meeting. If a representative cannot attend, the
agency shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.
(c)(1) After a child with a disability enters a private school or facility, the agency responsible for providing FAPE to the child may allow any
meetings to review and revise the child’s IEP to be initiated and conducted by the private school or facility.
(2) If the private school or facility initiates and conducts these meetings, the agency shall ensure that the parent and an agency
representative are involved in any decision about the child’s IEP and shall agree to any proposed changes in the IEP before those changes
are implemented.
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B. CHILDREN ENROLLED BY THEIR PARENTS IN PRIVATE SCHOOLS WHEN FAPE IS AT ISSUE
If the parents of a child with an exceptionality (including gifted), who previously was receiving special education and
related services from the public school, enroll their child, without the consent of or referral by the public school, in a
private preschool or a private elementary or secondary school because the parents believe the child was not
receiving FAPE from the public school, a court or special education due process hearing officer may require the
agency to reimburse the parents for the cost of that enrollment only if the hearing officer makes both
of the following
findings:
1. The public school did not make FAPE available to the child in a timely manner before the private school
enrollment; and
2. The private school placement made by the parents is appropriate to meet the needs of the child.
A court or special education due process hearing officer may find that a private school placement by the parents is
appropriate for a child although that placement does not meet State standards that apply to special education and
related services which are required to be provided by the public school.
A court or special education due process hearing officer may deny or reduce any reimbursement for private school
placement by the parents, if the court or special education due process hearing officer makes any of the following
findings:
1. At the most recent IEP meeting that the parents attended before making the private school placement, the
parents did not inform the IEP team that the parents were rejecting the services or placements proposed by
the public school to provide FAPE to their child, including a statement of their concerns and their intent to
enroll their child in a private school at public expense;
or, in the alternative
At least 10 business days, including any holidays that occur on a business day, before removal of the child
from public school, the parents did not give written notification to the public school that they were rejecting
the services or placements proposed by the public school to provide FAPE to their child, including a
statement of their concerns and their intent to enroll their child in a private school at public expense;
2. Before the parents' removal of the child from public school, the public school provided Prior Written Notice to
the parents of its intent to evaluate the child, including a statement of the purpose of the evaluation that was
appropriate and reasonable, but the parents did not make the child available for the evaluation; or
3. The actions of the parents in removing the child from public school were unreasonable.
A court or special education due process hearing officer must not deny or reduce reimbursement of the cost of a
private school placement for failure to provide the notification to the public school, if the court or special education
due process hearing officer makes any of the following findings:
•
Compliance with the notification requirement would likely have resulted in physical harm to the child.
•
The public school prevented the parents from providing the required notification.
•
The public school did not inform the parents of their requirement to notify the school of their intent to remove
their child.
A court or special education due process hearing officer, at its discretion, may allow a parent full or partial
reimbursement of the costs of a private school placement even though the parent failed to provide the notice
required, if the court or hearing officer finds either of the following:
1. the parent cannot read or write in English,
or
2. compliance with the prior notice requirement would likely have resulted in serious emotional harm to the child.
The public school must be given an opportunity to offer FAPE to the child before tuition reimbursement can become
an issue. However, the special education due process hearing officers and courts retain their authority under prior
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case law to award appropriate relief when a district fails to provide a FAPE for a child who has not yet received
special education and related services.
Federal regulations (34 C.F.R. 300.403) address this issue, as do State regulations:
Kansas Regulation:
K.A.R. 91-40-41. Private school placement by parents to obtain FAPE.
(a) (1) If the parent
of an exceptional child who previously was
receiving special education and related services from an agency enroll the
child, without the consent of or referral by the agency, in a private
preschool or a private elementary or secondary school because the parent believes
the child was not receiving FAPE from the agency, a court or
special education due process hearing officer may require the agency to reimburse the parent
for the cost of that enrollment only if the court or
due process hearing officer makes both of the following findings:
(A) The agency did not make FAPE available to the child in a timely manner before the private school enrollment.
(B) The private school placement made by the parent
is appropriate to meet the needs of the child.
(2) A court or due process hearing officer may find that a private school placement by a parent is appropriate for a child although that
placement does not meet state standards that apply to special education and related services that are required to be provided by public
agencies.
(b) Subject to subsection (c), a court or due process hearing officer may deny or reduce any reimbursement for private school placement by a
parent, if the court or due process hearing officer makes any of the following findings:
(1) (A) At the most recent IEP meeting that the parent
attended before making the private school placement, the parent did not inform
the IEP team that the parent was
rejecting the services or placements proposed by the agency to provide FAPE to the child, including a
statement of concerns and the
intent to enroll the child in a private school at public expense; or
(B) at least 10 business days, including any holidays that occur on a business day, before removal of the child from public school, the
parent
did not give written notice to the public agency of the information specified in paragraph (1) (A) of this subsection.
(2) Before the parent's removal of the child from public school, the agency notified the parent, in accordance with the requirements of
K.S.A. 72-988 and amendments thereto, of its intent to evaluate the child, including a statement of the purpose of the evaluation that
was appropriate and reasonable, but the parent
did not make the child available for the evaluation.
(3) The actions of the parent in removing the child from public school were unreasonable.
(c) Notwithstanding the notice requirements in subsection (b)
, a court or due process hearing officer shall not deny or reduce reimbursement of
the cost of a private school placement for failure to provide the notice, if the court or due process hearing officer makes any of the following
findings:
(1) Compliance with the prior notice requirement would likely have resulted in physical harm to the child.
(2)
The agency prevented the parent from providing the required prior notice.
(3)
The parent had not been given notice by the agency of the prior notice requirement prescribed in subsection (b).
(d) At the discretion of a court or due process hearing officer, the court or hearing officer may allow a parent full or partial reimbursement of the
cost of a private school placement even though the parent failed to provide the notice required in subsection (b),
if the court or hearing officer finds either of the following:
(1) The parent is not literate and cannot write in English.
(2) Compliance with the prior notice requirement would likely have resulted in serious emotional harm to the child.
C. CHILD FIND FOR CHILDREN VOLUNTARILY ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS
When children are enrolled by their parents in private schools, the public school has continuing responsibility for child
find and must locate, evaluate, and identify children with exceptionalities
(including gifted) in private schools just as
they do in the public schools. Federal and State laws require the district where the private school is located
to
conduct child find activities to locate children with disabilities
attending private elementary and secondary schools
that are located in the jurisdiction of the school district. This includes children with disabilities
who reside in another
state but attend a private school that is located within the boundaries of a public school district. The district of
residence is still required to conduct child find activities for children who may be identified as gifted and for children
ages 3 and 4, or 5 year old children not in kindergarten. However, Kansas schools do not have a responsibility to
locate, identify, evaluate or serve gifted children who reside in another state.
In meeting the child find obligation with regard to children with disabilities attending private schools within the school
district boundaries, the public schools must consult with appropriate representatives of private schools and parents of
private school children with disabilities to determine how best to conduct child find activities. The methods chosen to
locate, identify, and evaluate must be comparable to methods used for children in public schools. Additionally, they
will determine how parents, teachers, and private school officials will be informed of the process. (See Chapter 2,
General Education Interventions and Screening.)
The activities undertaken to carry out the child find responsibility must meet the following criteria:
•
Be similar to the activities undertaken for exceptional children enrolled in the public schools;
•
Provide for the equitable participation of private school children;
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•
Provide for an accurate count of children with disabilities enrolled in the private schools; and
•
Be completed in a time period comparable to the time for these activities in the public schools.
If the parents of a child who is voluntarily placed in a private school does not provide consent for the initial evaluation
or the reevaluation, or the parent fails to respond to a request to provide consent, the school may not
use the consent
override procedures of mediation or due process, and the school is not required to consider the child as eligible for
special education services (K.A.R. 91-40-27(f)(2).
If a child is enrolled, or is going to enroll in a private school that is not located in the parent’s district of residence,
parental consent must be obtained
before any personally identifiable information about the child is released between
officials in the district where the private school is located and officials in the district of the parent’s residence (34
C.F.R. 300.622(a)(3)).
State Statute:
K.S.A. 72-966(a)(1)
Each board shall adopt and implement procedures to assure that all exceptional children residing in the school district, including children
enrolled in private schools, who are in need of special education and related services, are identified, located and evaluated.
State Regulation:
K.A.R. 91-40-42. Child find and count of children with disabilities enrolled in private schools; determination of children to receive
services.
(a) Child find activities.
(1) Each board, in accordance with K.A.R. 91-40-7, shall locate, identify, and evaluate all children with disabilities who are enrolled in
private elementary or secondary schools located in the school district, including children with disabilities who reside in another state.
(2) The activities undertaken to carry out this responsibility shall meet the following criteria:
(A) Be similar to the activities undertaken for exceptional children enrolled in the public schools;
(B) provide for the equitable participation of private school children;
(C) provide for an accurate count of children with disabilities enrolled in the private schools; and
(D) be completed in a time period comparable to the time for these activities in the public schools.
(3) Each board, in accordance with K.A.R. 91-40-42a, shall consult with representatives of private schools and parents of private school
children concerning the activities described in paragraph (1) of this subsection.
(4) The cost of carrying out the child find activities required under this regulation, including individual evaluations of private school
children, shall not be considered in determining if an agency has met its obligation to provide a proportionate share of its federal funds
for private school children.
(b) Child count activities.
(1) Each board shall annually conduct a count of the number of children with disabilities who are enrolled in private schools located in
the school district. This count, at the discretion of each board, shall be conducted on either December 1 or the last Friday of October of
each school year.
(2) Each board, in accordance with K.A.R. 91-40-42a, shall consult with representatives of private schools and parents of private
school children concerning the annual count required in paragraph (1) of this subsection.
(3) Each board shall use the child count required by this subsection to calculate the amount of funds provided to the school district
under the federal law that the school district must allocate for the purpose of providing special education and related services to private
school children with disabilities in the next succeeding school year.
(c) Each board, based upon the results of its child find activities under subsection (a), shall consult with representatives of private schools and
parents of children with disabilities enrolled in private schools and then determine which private school children will be provided special
education and related services by the board.
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D. STATE LAW REQUIREMENTS FOR CHILDREN VOLUNTARILY ENROLLED IN PRIVATE
SCHOOLS BY THEIR PARENTS
The State law relating to children voluntary enrolled in private schools by their parents significantly adds to Federal
requirements. State law requires that when a parent requests services, the school district of residence
will make
available all services and will provide any or all of the special education and related services that are identified by an
IEP team for any child with an exceptionality
, to which the parent provides consent . Therefore, the parent of a child
attending a private school would go to the district of residence to request services.
Children whose parents request the district of residence to provide services identified by the IEP team,
would receive services through an IEP
. The IEP is to be developed as it would be for any other child. Parents of
children attending a private school and receiving services in a public school in accordance with an IEP have all the
due process rights under Federal and State laws and regulations and must have a free appropriate public education
made available to them.
State law allows for the district of residence
to expend State and local funds to provide services to children with
exceptionalities voluntarily enrolled by their parents in private schools under the following conditions:
•
In consultation with the parent or guardian of the child and with officials of the private school, the public
school district determines the site for services.
•
If services are provided at the public school site, the services must be provided on an equal basis with the
provision of such services for children in public schools.
•
If services are provided at the public school, the public school district must provide transportation to and
from the public school, but it is not required to provide transportation outside the boundaries of the resident
school district.
•
If the public school provides the services at the private school, amounts expended for providing the services
need not exceed the average cost of providing the same services to children with that same exceptionality in
the public school. (K.S.A. 72-5393)
For children whose parents request any of the services identified by the IEP team and the services are provided at
the private school, the school district of residence is not required to spend more than the “average cost” of providing
the same service in public school. In determining this cost, the public school must look to similar services in the
public school for children with the same exceptionality. The average amount expended may or may not allow for the
provision of services at a level that would provide a free appropriate public education. For services provided at a
private school, State law simply requires the expenditure of this level of funding, however, and does not require the
provision of FAPE. When calculating the average cost, the public school should not include the child in private
school in the numbers of children currently being served.
State law requires the district of residence to provide transportation if the child needs it to participate in special
education and related services. However,
the district of residence does not have to provide transportation
outside of the district boundaries. Therefore, an offer of services within the district meets the district’s
obligation of making FAPE available.
The district of residence could contract for the services with the district
where the private school is located, but is not required to do this.
Parents may refuse to accept some or all of the offered services. In this case, the public school should have
documentation that the parents refused to accept some or all of the services recommended by the IEP team. One
way this could be documented is by providing Prior Written Notice for the services identified on the IEP and the
parent would consent to only the services they are accepting. For example, the parents may refuse services
because they are unable to provide transportation for the child to the services in the district of residence.
State law allows for services to be provided at either the public or private school, but forbids the provision of special
education and related services “in connection with religious courses, devotional exercises, religious training, or any
other religious activity.” The site where services are provided is determined by the school district in consultation with
the parents and private school officials.
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Under State law
, children identified as gifted
who are enrolled in a private school outside of their district of
residence are also to be provided special education services by the district in which the child resides
. The resident
district would conduct the child find, do the evaluation, determine eligibility, develop an IEP and offer services in the
district of residence. However, the resident district is not required to cross district boundaries to provide special
education and related services. Therefore, an offer of services provided in the district would fulfill its requirement to
make FAPE available even if the parent refuses the services at that site.
State Statutes:
K.S.A. 72-966
Duties of boards of education in meeting requirements of law; responsibilities of state board of education and other state
agencies; interagency agreements; dispute resolution.
(a) (3) Each board shall provide exceptional children who are enrolled by their parents in private schools with special education and related
services in accordance with state law and federal law.
K.S.A. 72-5392
(c) "Private, nonprofit elementary or secondary school" means an organization which regularly offers education at the elementary or secondary
level, which is exempt from federal income taxation under section 501 of the federal internal revenue code of 1954, as amended, which
conforms to the civil rights act of 1964, and attendance at which satisfies any compulsory school attendance laws of this state.
K.S.A. 72-5393
Every school district shall provide special education services for exceptional children who reside in the school district and attend a private,
nonprofit elementary or secondary school, whether such school is located within or outside the school district upon request of a parent or
guardian of any such child for the provision of such services. No school district shall be required to provide such services outside the school
district. Any school district may provide special education services for exceptional children who attend a private, nonprofit elementary or
secondary school located within the school district whether or not all such children reside in the school district. Special education services,
which are provided under this section for exceptional children who attend a private, nonprofit elementary or secondary school which is located
in the school district may be provided in the private, nonprofit elementary or secondary school or in the public schools of the school district. The
site for the provision of special education services under this section for an exceptional child shall be determined by the school district in
consultation with the parent or guardian of the child and with officials of the private, nonprofit elementary or secondary school. Special
education services provided under this section for exceptional children who attend a private, nonprofit elementary or secondary school are
subject to the following requirements:
(a) If the services are provided for in the private, nonprofit elementary or secondary school, amounts expended for the provisions of such
services shall not be required to exceed the average cost to the school district for the provision of the same services in the public schools of
the school district for children within the same category of exceptionality;
(b) If the services are provided for in the public schools of the school district, the services shall be provided on an equal basis with the
provision of such services for exceptional children attending the public schools; and
(c) If the services are provided in the public schools of the school district, transportation to and from such public school shall be provided by
the school district.
K.S.A. 72-5394
No special education services shall be provided in connection with religious courses, devotional exercises, religious training, or any other
religious activity.
E. FEDERAL REQUIREMENTS FOR CHILDREN VOLUNTARILY ENROLLED IN PRIVATE SCHOOLS
BY THEIR PARENTS
Federal law requires that children with disabilities
in private schools (K-12) be provided an opportunity for
participation in special education services. Federal law makes it clear that a
child with a disability in a private
school has no individual right to special education or related services.
Rather,
the public school district
where the private school is located must ensure that a proportionate share of Federal funding is used to
provide services to this population of children.
Therefore, under Federal Law, in almost all cases,
the public
school district where the private school is located would not be obligated to provide any or all special
education and related services to every child with a disability enrolled in a private school located within its
boundaries.
This section of the Federal and State laws and regulations requiring the expenditures of a proportionate share of
Federal funding to provide special education services does not include children identified as gifted. Additionally,
because the Kansas definition of a private elementary school does not include the education of children prior to
kindergarten, this part of the Federal and State laws and regulations also does not include preschool age children
with disabilities enrolled in preschool programs.
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1. Consultation Requirements
Each school district must annually consult with private school representatives and representatives of parents of
parentally-placed private school children with disabilities attending private schools within the school district
during the
design and development of special education and related services for parentally-placed children and before making
decisions regarding the following:
•
The child find process, including:
°
How parentally-placed private school children suspected of having a disability can participate equitably;
and
°
How parents, teachers, and private school officials will be informed of the process.
•
The determination of the proportionate share of Federal funds available to serve parentally-placed private
school children with disabilities
including the determination of how the proportionate share of those funds
was calculated.
•
The consultation process among the school district, private school officials, and representatives of parents
of parentally-placed private school children with disabilities
, including how the process will operate
throughout the school year to ensure that parentally-placed children with disabilities identified through the
child find process can meaningfully participate in special education and related services.
•
How, where, and by whom special education and related services will be provided for parentally-placed
private
school children with disabilities,
including a discussion of:
°
The types of services, including direct services and alternate service delivery mechanisms; and
°
How special education and related services will be apportioned if funds are insufficient to serve all
parentally-placed private school children; and
°
How and when those decisions will be made; and
How, if the school district disagrees with the views of the private school officials on the provision of services
or the types of services (whether provided directly or through a contract), the LEA will provide to the private
school officials a wri
through a contract.
•
tten explanation of the reasons why the LEA chose not to provide services directly or
ilities
ust have a genuine opportunity to express their views and have meaningful input into the decision-making process.
and related services to
ools
f parents of children with disabilities enrolled in those private schools before making
n
ified throughout the school year can receive the special education and related services that are provided to
enrolled in private schools who are suspected of having a disability can participate equitably in the child find process;
hildren will be
ortionate share of federal funds are insufficient to serve
ing a
ices and services through contracts; and
(B)(2) how and when final decisions on these issues will be made by the board.
Consultations with appropriate representatives of private schools and parents of private school children with disab
should occur in a timely manner before decisions are made that affect the ability of children in a private school to
participate in services. These representatives of private schools and parents of the private school children with disabilities
m
The process for allocating the proportionate share of funds and provision of special education
parentally placed private school children under
Federal requirements
is described below.
State Regulations:
K.A.R. 91-40-42a. Consultation.
(a) Each board shall engage in timely and meaningful consultation with representatives of private sch
located in the school district and representatives o
determinations regarding the following matters:
(1) How the consultation process among the board, private school officials, and representatives of parents of private school childre
shall be organized and carried out, including how the process will operate throughout the school year to ensure that children with
disabilities who are ident
private school children;
(2) how the child find process will be conducted, including the following:
(A) How children
and
(B) how parents, teachers, and private school officials will be informed of the process;
(3)(A) How the determination of the proportionate share of federal funds that will be available to serve private school c
made, including a review of how the proportionate share of those funds must be calculated under the federal law; and
(B) how special education and related services will be apportioned if the prop
all of the private school children who are designated to receive services; and
(4)(A) How, where, and by whom special education and related services will be provided to private school children, includ
discussion of the means by which services will be delivered, including direct serv
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(b)(1) When a board of a school district believes that it has completed timely and meaningful consultation as required by this regulation, the
board shall
seek to obtain a written affirmation, signed by representatives of participating private schools, affirming that the consultation did
n 30 days of the date the affirmation is requested, the
h
r did not give due consideration to the views of
riva
ment of the specific requirement that the board
board shall prepare a reply to the complaint and submit the reply and documentation
nt, the state department shall issue a determination on whether the complaint is justified
the decision
by submitting an appeal to the Secretary of the United States department of education as specified in the federal regulations.
occur.
(2) If representatives of the private schools do not provide the affirmation withi
board shall forward documentation of the consultation to the state department.
(c)(1) A representative of a private school may submit a complaint to the state department alleging that the board of the school district in whic
the private school is located failed to engage in consultation that was meaningful and timely o
p
te school representatives. A copy of the complaint shall also be submitted to the board.
(2) Each complaint submitted by a private school representative shall include a state
allegedly failed to meet and the facts that support the allegation.
(3) Within 30 days of receiving a complaint, the
supporting its position to the state department.
(4)(A) Within 60 days of receiving a complai
and any corrective action that is to be taken.
(B) If the private school representative is dissatisfied with the decision of the state department, the representative may appeal
2 . Calculating the Allocation of Proportionate Share of Funds
Federal law describes the minimum amount of funds that must be expended to provide services for children enrolled
in private schools by their parents. That amount is calculated by determining the number of children with disabilities
who are enrolled in private schools by their parents within the school district, and have been identified as a child with
a disability by the public school district,
whether or not they are receiving services
. This count must be reported in
the
application for the Part B federal funds received for children ages 3-21 and 3-5 preschool funds.
To meet Federal requirements, a public school district must have an accurate count of the number of children with
disabilities
voluntarily enrolled by their parents in private schools located within the district. This count includes
children attending private schools in the district that are identified as eligible for special education and related
services by the public school, whether or not they are receiving any special education services. The public school
must consult with appropirate representatives of private schools and representatives of parents of private school
children with disabilities
in deciding how to conduct the annual count of children with disabilities in private schools.
The annual private school count may be different than the annual Federal child count of children receiving special
education or related services from the public school district or cooperative. The annual private school child count is
to be used by the public school district for planning the level of services to be provided to private school children and
in
determining the proportionate share of funds to be used in the subsequent school year.
Once the proportionate share of funds is calculated,
the funds that are actually expended do not have to be
Federal funds.
Therefore, if State categorical aid funds or local funds are being used to provide services to children
with disabilities who are enrolled in a private school, this expenditure could meet the requirement of the public school
to spend its proportionate share of funds on such children. The cost of carrying out the child find activities, including
an evaluation, cannot be included in determining if the district has met its obligation to provide a proportionate share
of funds for private school children. If all funds allocated for special education and related services to private school
children are not expended during the school year, the funds must be carried over to provide services to children in
private
schools in the next subsequent school year. (K.A.R. 91-40-42)
The Kansas definition of private school only addresses settings for children beginning at kindergarten. Therefore, the
proportionate share of funds under the preschool federal allocation would be calculated for five year old children
voluntarily
enrolled in a private schools K-12.
For complete information on allocation of funds for private schools contact, KSDE, Special Education Services at
800-203-9462
and see Appendix B of the Federal Regulations, August 14, 2006.
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State Regulations:
K.A.R. 91-40-44. Allocation and expenditure of federal funds; reports.
(a) To meet the requirement of K.A.R. 91-40-43 (a), each board shall
allocate, for expenditure in providing special education and related services to private school children, the amounts specified below.
(1) For private school children aged three through 21, an amount calculated as follows:
(A) Divide the number of private school children aged three through 21 who are enrolled in private schools located in the school district
by the total number of children with disabilities aged three through 21 in the school district; and
(B) multiply the quotient determined under paragraph (1) (A) times the total amount of federal funds received by the school district
under section 1411 (f) of the federal law; and
(2) for private school children aged three through five, an amount calculated as follows:
(A) Divide the number of private school children aged three through five who are enrolled in private elementary schools located in the
school district by the total number of children with disabilities aged three through five in the school district; and
(B) multiply the quotient determined under paragraph (2) (A) times the total amount of federal funds received by the school district
under section 1419 (g) of the federal law.
(b) In making the calculations under subsection (a), each board shall include all private school children whether or not those children are actually
receiving special education or related services from the school district.
(c) (1) Each board, to the extent necessary, shall expend the amounts calculated under subsection (a) of this regulation to provide private school
children with those special education and related services that have been determined will be provided to those children under the provisions of
K.A.R. 91-40-43.
(2) If a board does not expend all of the funds allocated for the provision of special education and related services to private school
children during a school year, the board shall allocate the unexpended funds for the purpose of providing services to private school
children during the next succeeding school year.
(d) (1) A board, in meeting the requirement of subsection (c) of this regulation, shall not be authorized to include expenditures made by the
board for child find activities under K.A.R. 91-40-42.
(2) A board, in meeting the requirement of subsection (c) of this regulation, shall be authorized to include expenditures made by the board
to provide transportation to private school children to receive special education and related services.
(e) Each board shall maintain records regarding the following information related to children enrolled in private schools located in the school
district:
(1) The number of children evaluated;
(2) the number of children determined to be children with disabilities; and
(3) the number of children provided with special education and related services.
Appendix B to Part 300—Proportionate Share Calculation
Each LEA must expend, during the grant period, on the provision of special education and related services for the parentally-placed private
school children with disabilities enrolled in private elementary schools and secondary schools located in the LEA an amount that is equal to—
(1) A proportionate share of the LEA’s subgrant under section 611(f) of the Act for children with disabilities aged 3 through 21.
This is an amount that is the same proportion of the LEA’s total subgrant under section 611(f) of the Act as the number of parentally
placed private school children with disabilities aged 3 through 21 enrolled in private elementary schools and secondary schools located in
the LEA is to the total number of children with disabilities enrolled in public and private elementary schools and secondary schools located
in the LEA aged 3 through 21; and
(2) A proportionate share of the LEA’s subgrant under section 619(g) of the Act for children with disabilities aged 3 through 5.
This is an amount that is the same proportion of the LEA’s total subgrant under section 619(g) of the Act as the total number of
parentally-
placed private school children with disabilities aged 3 through 5 enrolled in private elementary schools located in the LEA is to the total
number of children with disabilities enrolled in public and private elementary schools located in the LEA aged 3 through 5.
Consistent with section 612(a)(10)(A)(i) of the Act and § 300.133 of these regulations, annual expenditures for parentally-placed private school
children with disabilities are calculated based on the total number of children with disabilities enrolled in public and private elementary schools
and secondary schools located in the LEA eligible to receive special education and related services under Part B, as compared with the total
number of eligible parentally-placed private school children with disabilities enrolled in private elementary schools located in the LEA. This
ratio is used to determine the proportion of the LEA’s total Part B subgrants under section 611(f) of the Act for children aged 3 through 21, and
under section 619(g) of the Act for children aged 3 through 5, that is to be expended on services for parentally-placed private school children
with disabilities enrolled in private elementary schools and secondary schools located in the LEA.
The following is an example of how the proportionate share is calculated:
There are 300 eligible children with disabilities enrolled in the Flintstone School District and 20 eligible parentally-placed private school
children with disabilities enrolled in private elementary schools and secondary schools located in the LEA for a total of 320 eligible public and
private school children with disabilities (note: proportionate share for parentally-placed private school children is based on total children eligible,
not children served). The number of eligible parentally-placed private school children with disabilities (20) divided by the total number of
eligible public and private school children with disabilities (320) indicates that 6.25 percent of the LEA’s subgrant must be spent for the group of
eligible parentally-placed children with disabilities enrolled in private elementary schools and secondary schools located in the LEA. Flintstone
School District receives $152,500 in Federal flow through funds.
Therefore, the LEA must spend $9,531.25 on special education or related services to the group of parentally-placed private school children with
disabilities enrolled in private elementary schools and secondary schools located in the LEA. (Note: The LEA must calculate the proportionate
share of IDEA funds before earmarking funds for any early intervening activities in § 300.226).
The following outlines the calculations for the example of how the proportionate share is calculated. Proportionate Share Calculation for
Parentally-Placed Private School Children with Disabilities For Flintstone School District:
Number of eligible children with disabilities in public schools in the LEA ................................ 300
Number of parentally-placed eligible children with disabilities in private elementary schools and secondary schools located in the LEA.... 20
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Total number of eligible children ............................. 320
FEDERAL FLOW-THROUGH FUNDS TO FLINTSTONE SCHOOL DISTRICT
Total allocation to Flintstone .......................... $152,500
Calculating Proportionate Share:
Total allocation to Flintstone ....... 152,500
Divided by total number of eligible children .............................. 320
Average allocation per eligible child .......................................... 476.5625
Multiplied by the number of parentally placed children with disabilities ................................ 20
Amount to be expended for parentally- placed children with disabilities ................................ 9,531.25
3. Services Provided With A Services Plan
After the public school district determines the amount of funds that must be allocated for providing services to
children with disabilities in private schools located within the district, the public school district, in consultation with
appropriate representatives of private schools and representatives of parents of children with disabilities voluntarily
enrolled in private schools, must determine how the funds will be allocated, how and where services will be provided
and by whom. The public school district, however, must ultimately determine the types and levels of services to be
provided.
If a child with a disability, who is voluntarily enrolled by their parents in a private school, receives services offered by
the school district where the private school is located, with its proportionate share of funds according to the
agreement reached in the consultation, the school would develop a Services Plan for the child. The regulations refer
to this plan as a
Services Plan
to avoid confusing it with an IEP. An IEP is an inherent component of a free
appropriate public education (FAPE). A "Services Plan" is to be used because it is clear under Federal and State laws
and regulations that these children in private schools do not have an individual right to receive FAPE.
The parents of
children served with a Services Plan do not have any due process rights beyond issues related to child find
which includes evaluation/reevaluation.
Parents may file a complaint with the State Department of Education if they
feel that the public school has failed to meet their obligations under the Federal and State law and regulations.
Kansas laws and regulations require the district of residence to make FAPE available through an IEP for any child
voluntarily enrolled in a private school by their parent. Therefore, the district where the private school is located would
use a Services Plan only for non-resident children for whom they may be providing limited services with their
proportionate share of funds.
The Services Plan describes the specific special education and/or related services to be provided to the child as a
result of the consultation with appropriate representatives of private schools and representatives of the parents of
private school children. To the extent appropriate, the Services Plan includes all of the IEP components. The
elements in each child's Services Plan may vary depending on the services to be provided. Like an IEP, the
Services Plan must be reviewed and revised on an annual basis, and as necessary.
Many children's Services Plans will include:
•
The child's present level of academic achievement and functional performance;
•
The measurable annual goals, including benchmarks or short-term objectives, if appropriate;
•
A statement of the special education, related services, supplementary aids and services and modifications;
•
A statement of the program accommodations, or supports;
•
An explanation of the extent, if any, to which the child will not participate with children without disabilities in
the general education environment;
•
The projected date for the beginning of the services and modifications, and the amount, anticipated
frequency, location and duration of the services and modifications; and
•
A statement of how the child's progress toward the measurable annual goals will be measured and how the
parents will be regularly informed of their child's progress.
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State Regulation:
K.A.R. 91-40-43. Services to private school children.
(a) Consistent with the number and location of private school children in the school
district, each board shall provide special education and related services to this group of children in accordance with K.A.R. 91-40-43 through 91-
40-48. Each board also shall provide services to gifted children who reside in the district and are enrolled in a private school.
(b) The parent of an exceptional child may request that the child be provided special education and related services in accordance with K.S.A.
72-5393 and amendments thereto.
(c) A board shall not be required to provide any special education or related services to a private school child unless one of the following
conditions is met:
(1) The child is a member of a group of private school children that has been designated to receive special education and related services
in accordance with the provisions of K.A.R. 91-40-43 through 91-40-48.
(2) The parent of the child requests that services be provided to the child in accordance with K.S.A. 72-5393 and amendments thereto.
(d) Except as otherwise provided in K.S.A. 72-5393 and amendments thereto, a private school child shall not be entitled to receive any special
education or related service that the child would be entitled to receive if enrolled in a public school, and a private school child may receive a
different amount of special education or related services than a child with a disability who is enrolled in a public school.
(e) Each board shall ensure that the special education and related services provided to private school children are provided by personnel who
meet the same standards as the standards for public school personnel, except that private school teachers who provide services to private school
children shall not be required to be highly qualified under the federal law.
K.A.R. 91-40-45. Services plan or IEP
(a) Each board shall develop and implement a services plan for each private school child who meets both of the following criteria:
(1) The child is a member of the group of private school children that has been designated to receive special education and related services
under the provisions of K.A.R. 91-40-43;and
(2) The child is not receiving special education and related services by request of the child’s parent under the provisions of K.S.A. 72-5393
and amendments thereto.
(b) A board shall ensure that the services plan for each private school child meets each of the following requirements:
(1) The services plan shall describe the specific special education and related services that the board will provide to the child, based upon the
services the board has determined that it will make available to private school children under the provisions of K.A.R. 91-40-43.
(2) The services plan shall be developed, reviewed, and revised, as necessary, in the same manner in which IEPs are developed, reviewed,
and revised under this article, except the board shall ensure that a representative of the child’s private school is invited to attend, or to
otherwise participate in, each meeting held to develop or review the child’s services plan.
(3) The services plan shall meet the requirements of K.A.R. 91-40-18 with respect to the services that the child is designated to receive.
(c) Each board shall develop, review, and revise, as necessary, in accordance with this article of regulations, an IEP for the following children:
(1) Each private school child whose parent requests special education and related services under the provisions of K.S.A. 72-5393 and
amendments thereto; and
(2) each identified gifted child residing in the school district and enrolled in a private school whose parent elects to have the child receive
special education and related services from the board.
4. Location of Services for Children with a Services Plan
Under Federal law, the location where services will be provided should be determined in consultation with
appropriate representatives of private schools and with representatives of parents of children with disabilities enrolled
in private schools. The location of services will impact the amount to be expended to provide services to children
with disabilities in private schools. There are options available for the location of the delivery of services to children
with disabilities in private schools. Some of the services may be provided in public schools throughout the district or
at a central location in the district. The public school district may decide that only some services will be provided at
the private school setting. When services are provided in the private school, they may take place at a central
location rather than each attendance site.
However, while permitting services to be provided at a parochial school site, the federal law
does not require
that
services be provided in that setting.
An offer to provide services at the public school site generally meets a
school district’s obligations, even if parents refuse the services at that site.
5. Transportation
Federal law requires transportation to be provided to a child with a disability in a private school if transportation is
necessary for the child to benefit from or participate in the services provided. State law requires the school to provide
transportation to and from the public school if the services are provided at the public school site. Again, the public
school is not required to provide transportation outside of its boundaries. Transportation costs may be figured into
the proportionate amount of funds expended for services.
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State Regulation:
K.A.R. 91-40-47. Transportation for exceptional children enrolled in private schools
(a) Except as otherwise provided in this regulation, each board, to the extent necessary for an exceptional child to benefit from, or to participate
in, special education and related services provided to the child by the board, shall furnish or provide for the following transportation services
for the child:
(1) Transportation from the child’s private school or home to the site at which the child is provided special education and related services;
and
(2) transportation from the site at which special education and related services are provided to the child to the child’s private school or the
child’s home, as appropriate.
(b) Except as provided in K.S.A. 72-8306 and amendments thereto, a board shall not be required to furnish or provide transportation from an
exceptional child’s home to the child’s private school.
(c) A board shall not be required to furnish or provide transportation services outside of its school district.
6. Restrictions On Use of Federal and State Funds for Private Schools
Schools may not use funds to:
•
create separate classes organized on the basis of school enrollment or religion of children if: (a) The classes
are at the same site; and (b) The classes include children enrolled in public schools and children enrolled in
private schools ;
•
finance the existing level of instruction at a private school or otherwise benefit the private school;
•
Meet the needs of the private school or the general needs of children enrolled in the private school
Additionally, Federal and State regulations restrict the use of property, equipment, and supplies in serving children
with exceptionalities in private schools. Property, equipment, or supplies used on private school premises for
providing special education services must remain in the control of the public school and be removed from the private
school when they are no longer needed to provide the services. They must also be removed to avoid unauthorized
use. Federal funds cannot be used for repair, remodeling, or construction at a private school site. Therefore, State
regulations require that public schools ensure that any equipment or supplies be placed in a private school in a
manner that allows removal without the necessity of remodeling the private school.
State Regulations:
K.A.R. 91-40-48. Use of funds and equipment
(a) Subject to subsection (d), an agency may use state and federal funds to make personnel
available at locations other than at its facilities to the extent necessary to provide special education and related services to exceptional children
enrolled in private schools, if those services are not normally provided by the private schools.
(b) Subject to subsection (d), an agency may use state and federal funds to pay for the services of an employee of a private school to provide
special education and related services if both of the following conditions are met:
(1) The employee performs the services outside of the employee’s regular hours of duty.
(2) The employee performs the services under public supervision and control.
(c) (1) Subject to subsection (d), an agency may use state and federal funds to provide for the special education and related services needs of
exceptional children enrolled in private schools, but shall not use those funds for either of the following purposes:
(A) To enhance the existing level of instruction in the private school or to otherwise generally benefit the private school; or
(B) to generally benefit the needs of all students enrolled in the private school.
(2) Each agency shall ensure that special education and related services provided to exceptional children enrolled in private schools are
provided in a secular and nonideological manner.
(d) An agency’s authority to use federal funds under this regulation shall be limited to providing special education and related services to children
with disabilities.
(e) An agency shall not offer or maintain classes that are organized separately on the basis of public or private school enrollment or the religion of
the students, if the classes offered to students are provided at the same site and the classes include students enrolled in a public school and
students enrolled in a private school.
(f) (1) An agency shall keep title to, and exercise continuing administrative control over, all property, equipment, and supplies that are acquired
by the agency to be used for the benefit of exceptional children enrolled in private schools.
(2) An agency may place equipment and supplies in a private school, to the extent allowed by law, for the period of time needed to
provide special education and related services to exceptional children enrolled in the school.
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(g) (1) An agency shall ensure that any equipment or supplies placed in a private school are used to provide special education and related
services and can be removed from the private school without the necessity of remodeling the private school.
(2) An agency shall remove its equipment or supplies from a private school if either of the following conditions exists:
(A) The equipment or supplies are no longer needed to provide special education or related services to students enrolled in the private
school.
(B) Removal is necessary to avoid unauthorized use of the equipment or supplies.
(h) An agency shall not use public funds to construct, remodel, or repair any private
school facility.
F
.
MEDIATION AND DUE PROCESS RIGHTS FOR PRIVATE SCHOOL CHILDREN
Parents of children voluntarily enrolled in private schools and receiving services from the district of residence in
accordance with an
IEP, under State law,
may utilize the formal complaint process, request mediation or initiate a
due process hearing on any matter concerning the child’s special education.
Parents of children voluntarily enrolled in private schools and receiving services under a Services Plan cannot seek
due process or mediation regarding the school’s alleged failure to meet the requirement of providing services to
these children. Rather, the parents may request a meeting to review and revise the child's Services Plan, or utilize
the State formal complaint process. However, parents can request mediation or due process if the parents believe
the school has failed to properly evaluate and identify their child.
Regulations addressing due process, mediation, and formal complaints are found at 34 C.F.R. 300.140 and K.A.R.
91-40-46:
State Regulation:
K.A.R. 91-40-46. Mediation and due process rights of private school children.
. (a)(1) The parent of a private school child may request
mediation or initiate a due process hearing as authorized under this article, if the parent believes that a board has failed to properly identify and
evaluate the parent’s child, in accordance with K.A.R. 91-40-42 (a).
(2) Each due process complaint by the parent of a private school child shall be filed with the board of education of the school district in
which the private school is located.
The parent of the child shall provide a copy of the complaint to the state board of education.
(b) The parent of a private school exceptional child who is receiving special education and related services in accordance with an IEP may
request mediation or initiate a due process hearing as authorized under this article on any matter concerning the child’s education.
(c) The parent of a private school child with a disability who is receiving special education and related services under a services plan shall not be
entitled to request mediation or to initiate a due process hearing on any matter concerning the child’s education, but shall be entitled to take
either, or both, of the following actions:
(1) Request that a meeting be conducted, in accordance with K.A.R. 91-40-45 (b), to review and revise the child’s services plan; or
(2) file a complaint with the state board, in accordance with K.A.R. 91-40-51.
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QUESTIONS AND ANSWERS ABOUT PRIVATE SCHOOLS
1. Must the public school use its Federal funds to meet the requirement that a
proportionate share of funds be spent on providing services to parentally placed
children in private schools?
No. The requirement is that an amount equal to the federal proportionate share be expended to provide services
to parentally placed children in private schools. The actual source of this expenditure may come from federal,
State or local funds or any combination of these funds.
2. How is the public school to meet the requirement to "consult with representatives of
private school children and representatives of parents of private school children with
disabilities" regarding various situations identified in the law?
The public school district must consult annually with representatives of private schools and representatives of
parents of voluntarily placed private school children with disabilities regarding the provision of special education and
related services needs of children with disabilities enrolled in the private schools located within the district
boundaries. This consultation must be conducted in a timely and meaningful way, and provide a genuine opportunity
for the representatives of the private schools and representatives of parents of children with disabilities in private
schools to express their views regarding child find, child count, how the proportionate share of funds will be used to
deliver services and what services will be delivered.
To meet the consultation requirement, the public school could propose a plan to meet the requirements of the law
and request input from the appropriate representatives, or the school could invite representatives to attend a meeting
to provide input into the plan.
3. What qualifications must the staff meet that provides special education services
when the public school serves a parentally placed child in a private school?
The special education services provided to parentally placed private school children with exceptionalities must be
provided by personnel meeting the same standards as personnel providing such services in public schools. The
public school may use State and Federal funds to make personnel available at the private school to the extent
necessary to provide special education and related services to children enrolled by their parents in private schools, if
those services are not normally provided by the private schools. However, if the services are provided by the private
school teachers, the private school teachers cannot be required to be highly qualified as defined in the Federal law.
The public school may use special education funds to pay for the services of an employee of a private school to
provide special education and related services for children if both of the following conditions are met:
a. The employee performs the services outside of the employee's regular work hours; and
b. The employee performs the services under public supervision and control.
4. When an IEP specifies that the child be served at a private school and the child's IEP
requires services for emotional disturbance and speech/language, yet the private
school does not provide speech/language services, what must the school do to
address the speech/language services?
Under State law when an IEP is developed the public school is required to provide all services indicated on the IEP.
Therefore, speech/language services could be provided at the private school either by the public school staff or
contracted staff. However, when the IEP team decides that the placement should be at the private school because of
the serious behavioral issues that need to be addressed, it may also decide that for a period of time, the
speech/language needs do not have the same priority as the behavior needs. Therefore, the team may, with the
consent of the parents, remove the speech/language service from the IEP, possibly including a timeline for meeting
again to consider the need to add the service back into the IEP, depending upon the needs of the child.
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5. If a child in private school is evaluated and found to be a child with a disability and
the parents refuse services from the public school, is the public school obligated to
reevaluate the child in 3 years?
This is a child who would be included in the private school count of children with disabilities (found eligible but not
receiving services). Because this is an identified child with a disability, the legal provisions regarding reevaluation
apply. Therefore, at the end of 3 years, a reevaluation is needed. The public school district would provide Prior
Written Notice and request consent from the parents to conduct a reevaluation.
6. Are children who are voluntarily placed by their parents in private schools entitled to
special education services in Kansas?
The Kansas special education law and regulations, if parents request special education services for their child, the
child is entitled to receive all of the services specified in the child’s IEP (FAPE), and parents have all due process
rights under Federal and State law. If the services are provided at the public school, the child is entitled to services
equal to all other children receiving special education at the public school. If the services are provided at the private
school, the child is entitled to services up to the average cost of providing the same service in the public school.
Federal law is clear that children enrolled in a private school by their parents have no individual entitlement to special
education and related services. If children are part of a group agreed upon to receive services, they may receive the
services offered by the public school under a services plan, but there is no requirement for any particular child to
receive any services.
7. Who is responsible for the IEPs of children with disabilities who are placed in private
schools by a public school IEP team?
Before placing a child with a disability in a private school or facility, the public school must conduct a meeting and
develop an IEP. The IEP team may place a child in a private school as the result of the initial IEP meeting or as the
result of a meeting to review an existing IEP. However, at the meeting in which a child is placed in a private school,
the public school must ensure that a representative of the private school is present at the meeting or participates in
the meeting through other means, such as individual or conference telephone call. After the initial IEP meeting,
subsequent meetings to review the IEP may be conducted by the private school. A representative of the public
school must attend these subsequent IEP meetings. Although the services are provided at the private school, the
public school remains responsible for assuring that the IEP is implemented.
8. If services are provided in a parochial school, is there still a requirement to remove
religious objects/symbols?
No, the law does not make any such requirements. The Kansas Attorney General's ruling of 1981 has been
superseded by IDEA. State law allows for services to be provided at either the public or private school, but forbids
the provision of special education and related services "in connection with religious courses, devotional exercises,
religious training, or any other religious activity." The site where services are provided must be determined by the
school district in consultation with the parents and private school officials.
9. Is a parentally placed child with an IEP in a private school entitled to both general
education and special education services from the public school?
No. Public schools are required to provide special education and related services, but not to provide classes in the
general curriculum for the private school child at the public school. For example, if parents request that in addition to
receiving physical therapy at the public school, their child also be allowed to take physics, the public school is not
obligated to allow the child to take physics. Instead, the child would be required to enroll in the public school as a full-
time child in order to receive general education services.
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10. Are children enrolled in or placed in private schools required to take the State
Assessment?
If a child is placed in a private school by the public school, the child is required to take the appropriate State
Assessment. If the child has been enrolled in the private school by the parents, the child would follow the
requirements of the private school. That may mean that they would not take the State Assessment if the private
school was not in the Kansas Quality Performance Accreditation system.
11. If a child in a private school moves from one private school to another and the
Services Plan has more services than offered by the new public school providing the
special education services, what happens to the child’s services?
The new public school may conduct a meeting to review and revise the Services Plan. Unless the parents request
all of the services identified by the IEP team, the public school is not required to provide services other than those
agreed upon in consultation with the appropriate representatives of private schools and representatives of parents of
children with disabilities enrolled in private schools. However, that does not prohibit the new public school from
providing the services if it chooses to.
12. What is the obligation of the public school that does not have any private schools
within its jurisdiction?
Under State law, the parent of a resident exceptional child, who is attending a private school located outside the
district of residence, may request special education and related services. In that case the school of residence must
develop an IEP. However, the district of residence is not required to provide any special education or related services
outside of its district boundaries.
13. Who makes the final decision regarding the location of the delivery of special
education or related services to an exceptional child enrolled in a private school?
The public school, in consultation with the private school and the parents, makes the final decision about the location
of the delivery of services. Ultimately, the decision rests with the public school.
14. Must a general education teacher in the private school participate in developing,
reviewing, and revising a child's IEP or Services Plan?
A meeting to develop, review, and revise an IEP or a Services Plan must include all of the participants required for an
IEP team meeting, including at least one general education teacher of the child (if the child is or may be participating
in the general education environment). The general education teacher in the private school would meet the
requirement for a general education teacher.
The public school must also ensure that a representative of the private school attends each meeting to develop or
revise a child's Services Plan. If the representative cannot attend, the public school must use other methods to
assure a representative's participation, including individual or conference telephone calls. The participation of the
child's private school teacher could meet this requirement.
15. Are children who are receiving special education or related services from the public
school with a Services Plan considered to be enrolled in the public school and
counted on the public school's September 20 enrollment count?
Yes. All parentally placed children in private school receiving services with either an IEP or a Services Plan are
considered to be enrolled in the public school for special education services and are to be counted on the public
school's September 20 enrollment count.
Also, all children for whom the school provides services through a contract with a private school or other agency or
institution are considered to be enrolled in the public school and are counted on the public school's September 20
enrollment count.
February 2008
Page 14 - 17
Kansas Special Education Process Handbook
16. What happens to the proportionate share of funds when the only child in a private
school receiving services moves, and there are no more identified children to utilize
the funds?
The amount of funds may be carried over for one additional year. If it appears there are no children in a private
school in need of special education or related services, the remaining funds may be reallocated.
17. What happens when the district where the private school is located has used its
entire proportionate share of funds and a nonresident child is found to be a child with
a disability and the parent requests services?
The district where the private school is located is not obligated to provide any services to a nonresident child with a
disability once it has expended the required proportionate share of funds. The parent of the nonresident child would
have to go to the district of residence to request services. The district of residence can offer services in the resident
district, but if the parent refuses, the resident school has met its obligation to make FAPE available.
18. Why might the child count of children with disabilities enrolled by their parents in
private schools be different from the annual child count that is reported to the State
and Federal departments of education?
The district of residence is required to locate, evaluate and identify children with disabilities enrolled in private
schools located within its boundaries. Parents of children voluntarily enrolled in private school may choose to not
accept special education and related services. The district would not be found in violation of the law. Once a public
school has expended the entire federal proportionate share of funds it has no obligation to provide special education
and related services to nonresident children attending a private school located within the district boundaries. These
nonresident children would go to the district of residence to request services. If the parent does not accept services
being offered at the district of residence these children may not be receiving any services, but would be included in
the child count. Additionally, any resident child whose parent refuses services would also be included in the child
count. Therefore, any child identified as a child with a disability, even though not receiving special education
services, would be included in the child count of children with disabilities enrolled by their parents in private schools.
19. When would a district use a Services Plan and not an IEP for services to parentally
placed private school children?
A Services Plan would be used when the district where the private school is located is providing services according
to the agreement from the consultation with representatives of private schools and representatives of parents of
children with disabilities attending private schools using its proportionate share of funds to serve a nonresident child.
When a parent is a resident of the district and requests special education services the district must offer an IEP
and make FAPE available. The parent may refuse any or all of the services. The parent’s refusal should be
documented by the district. One way to document the offer of FAPE by the district and the refusal by the parent
would be to provide the parent with Prior Written Notice and ask for consent for all of the services. The parent may
consent to the services they are accepting.
February 2008
Page 14 - 18
Kansas Special Education Process Handbook
February 2008
Appendix A, Figure 1-1
Kansas Special Education Process Handbook
November 3, 2005
MEMO: Kansas clarification of the term “parent” after IDEA 2004
Recently, I have been asked to address a couple of questions regarding who may make
educational decisions for a child with an exceptionality. In consultation with the general counsel
of this agency, I am including my response to those questions, below:
(1) May foster parents make educational decisions on behalf of their foster children?
Some confusion on this issue appears to have developed as a result of a change to the definition
of the term “parent” in IDEA 2004. At section 602(23), IDEA 2004 defines the term “parent,” in
part, by stating that the term “parent” means a natural, adoptive, or foster parent of a child
(unless a foster parent is prohibited by State law from serving as a parent). Accordingly, some
have interpreted this section to mean that a foster parent now meets the definition of the term
“parent” and may make educational decisions for his/her foster child.
It is important to notice, however, that after including foster parents in the definition of the term
“parent,” the statute adds the words “unless a foster parent is prohibited by State law from
serving as a parent.” Kansas law addresses a foster parent’s authority regarding educational
decision making in two separate statutes. First, K.S.A. 38-1513a, states that whenever a child
with a disability is in the custody of S.R.S. and the child’s parents are unknown or unavailable,
the Secretary of S.R.S. must immediately notify the state board of education and the school
district where the child is attending that the child is in need of an education advocate. Second,
K.S.A. 72-962(m) defines the term “parent” to include a foster parent “if the foster parent has
been appointed the education advocate of an exceptional child.” This second statute effectively
prohibits a foster parent from exercising the authority of a parent unless the foster parent is
appointed the education advocate for a particular child.
It is, therefore, clear under Kansas law that all exceptional children in the custody of S.R.S.,
whose parents are unknown or unavailable, require an education advocate to make educational
decisions on their behalf. It is also clear that a foster parent may be appointed the education
advocate for a foster child. Without such appointment as an education advocate for a particular
foster child by the state board of education through Families Together, however, a foster parent
does not have authority to make educational decisions for a foster child in their care.
(2) May a child’s parent execute a signed and notarized statement (power of attorney)
authorizing another person to make educational decisions regarding the parent’s child?
I believe the answer is that a parent may do so, but only under very limited circumstances. A
parent, of course, may make educational decisions for his/her child. However, the term “parent”
is specifically defined in the Kansas special education statutes, at K.S.A. 72-962(m). This
statutory definition of the term “parent” does not include a person who receives a power of
attorney from a parent to make educational decisions. The intent of this statute (as well as other
statutes such as K.S.A. 38-1513a – referred to above in question no. 1) is that if there is no
person (who meets the statutory definition of the term “parent”) available and willing to make
February 2008
Appendix A, Figure 1-1
Kansas Special Education Process Handbook
educational decisions for an exceptional child, an education advocate must be appointed. A
power of attorney may not be used by a parent to undermine the intent of this statute.
There are, as I stated previously, very limited circumstances in which a parent may effectively
execute a power of attorney vesting educational decision making authority in another person.
The statute cited above, K.S.A. 72-962(m), includes, in its definition of the term “parent,” the
term “person acting as a parent.” The term “person acting as a parent” is defined in K.S.A. 72-
962(n) and includes a person, “such as a grandparent, stepparent or other relative with whom the
child lives or a person other than a parent who is legally responsible for the welfare of a child.”
K.S.A. 72-962(n). Interestingly, however, Kansas regular education statutes, at K.S.A. 72-
1046(d)(2), define the term “person acting as a parent” somewhat differently. This regular
education statute includes, as part of its definition of the term “person acting as a parent,” the
following: “(B) a person, other than a parent, who is liable by law to maintain, care for, or
support the child, or who has actual care and control of the child and is contributing the major
portion of the cost of support of the child, or who has actual care and control of the child with the
written consent of a person who has legal custody of the child, or who has been granted custody
of the child by a court of competent jurisdiction.” This definition, as I indicated earlier, is found
in a regular education statute rather than a special education statute. However, I believe a parent
might successfully argue that it is not contrary to these statutes, as a whole, to use a power of
attorney to authorize a person, who meets the definition of a “person acting as a parent” under
K.S.A. 72-1046, to make educational decisions for their exceptional child
Therefore, I believe that, as a general rule, a parent may not use a power of attorney to authorize
other persons to make educational decisions for their exceptional children. However, in the
limited circumstances specified in K.S.A. 72-1046(d)(2), I believe a parent may effectively use a
power of attorney to authorize another person to make educational decisions for the parent’s
exceptional children. Those circumstances include only situations in which the person receiving
the power of attorney is: (1) a person who is liable by law to maintain, care for, or support the
child; (2) a person who has actual care and control of the child and is contributing the major
portion of the cost of support of the child; (3) a person who has actual care and control of the
child with the written consent of a person who has legal custody of the child; or (4) a person who
has been granted custody of the child by a court of competent jurisdiction.
I hope this explanation has been helpful in clarifying these two educational decision making
issues.
Sincerely,
ZoAnn Torrey
State Director of Special Education
Kansas State Department of Education
KANSAS STATE DEPARTMENT OF EDUCATION
PARENT RIGHTS IN SPECIAL EDUCATION
(Procedural Safeguards)
Revised 10/04/2005
1
Both you and the school share in your child’s education. If you or the school has issues or concerns about your child’s
education, you and your child’s teacher should openly discuss the issues. We urge you to be actively involved in your child’s
education.
As parents of children who are, or may be, exceptional, you have certain rights or procedural safeguards under federal and
state laws. These rights are listed in this statement of
Parent Rights in Special Education.
This list of your rights must be
given to you in your native language or in a communication method you can understand. If you would like a more detailed
explanation of these rights, please contact the principal at your child's school, a school administrator, the special education
director, or the Kansas State Department of Education (KSDE), 120 SE 10th Avenue, Topeka, KS 66612; phone (800) 203-
9462. Copies of these rights in Braille, audiotape, and other languages are available from your school upon request. For
more information about your rights, you may ask for a copy of the Guide to Special Education from Families Together, Inc.
(785) 233-4777 or (800) 264-6343, or the Kansas State Department of Education (800) 203-9462.
OPPORTUNITY TO EXAMINE RECORDS
As the parent of a child with an exceptionality, you must be afforded an opportunity to--
•
Inspect and review all education records with respect to:
•
Identification
(process to determine eligibility);
•
Evaluation
(nature and scope of assessment procedures);
•
Placement
(educational placement of your child); and
•
FAPE
(the provision of a free appropriate public education to your child).
INDEPENDENT EDUCATIONAL EVALUATION
You have the right to get an independent educational evaluation of your child if you disagree with the school’s evaluation.
The school must provide you, upon request for an independent evaluation, information about where an independent
educational evaluation may be obtained, and the criteria applicable for independent educational evaluations.
1. What is an independent evaluation?
An "independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed
by the public agency responsible for your child's education.
2. What does "public expense" mean?
"Public expense" means that the school either pays for the full cost of the evaluation or ensures that the evaluation is
otherwise provided at no cost to you.
3. What if you request an independent evaluation at public expense?
If you request an independent educational evaluation at public expense, the school must, without unnecessary delay,
either:
•
ask for a due process hearing to show that its evaluation was appropriate; or
•
ensure that an independent educational evaluation is provided at public expense, unless the school demonstrates
in a due process hearing that the evaluation which you obtained did not meet the criteria applicable for independent
educational evaluations.
If the final decision of the due process hearing is that the school’s evaluation is appropriate, you still have the right to an
independent educational evaluation, but it will not be paid for by the school.
If you request an independent educational evaluation, the school may ask for the reason(s) why you object to the
school's evaluation. However, your explanation is not required and the school may not unreasonably delay either
providing the independent educational evaluation at public expense or asking for a due process hearing to defend its
evaluation.
2
4. What if you obtain an independent educational evaluation at your expense?
If you obtain an independent educational evaluation at private expense, the results of the evaluation must be considered
by the school, if it meets the applicable criteria, in any decision made with respect to the provision of a free appropriate
public education to the child; and may be presented as evidence at a due process hearing regarding your child.
5. What if a hearing officer requests an independent educational evaluation?
If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must
be at public expense. If an independent educational evaluation is at public expense, the criteria under which the
evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same
as the criteria the school uses when it conducts an evaluation, to the extent the criteria are consistent with your right to
an independent educational evaluation. Except for the criteria, a school may not impose conditions or timelines related
to obtaining an independent educational evaluation at public expense.
PRIOR NOTICE BY THE SCHOOL
1. How will I be informed of proposed actions regarding my child's special education needs?
Your school will inform you of actions being proposed about your child by giving you written notice.
Written notice must be given before the school--
Proposes
or
Refuses
to initiate or change the:
•
Identification
(process to determine eligibility);
•
Evaluation
(nature and scope of assessment procedures);
•
Educational Placement
(educational placement of your child including graduation); or
•
FAPE
(the provision of a free appropriate public education to your child).
2. What must be included in the content of the notice?
Written notice must include:
•
A description of the action proposed or refused by the school;
•
An explanation of why the school proposed or refused to take the action;
•
A description of any other options the school considered and the reasons why those options were rejected;
•
A description of each evaluation procedure, assessment, record, or report the school used as a basis for the action
proposed or refused;
•
A description of any other factors that are relevant to the school’s proposal or refusal;
•
A statement that you have protection under these Parent Rights (procedural safeguards), and how you may get a
copy of them; and
•
Sources for you to contact to obtain assistance in understanding your rights.
If the school is proposing an action concerning your child, you must be given written notice about the proposed action a
reasonable time before the action is taken. If the school refuses to take some action requested by you, you must be
given written notice of the refusal within a reasonable time after the decision is made to deny your request. The school
must take steps to be sure that you understand the information in any notice given to you.
3. Must the Written Notice be in understandable language?
Written notice must be in language understandable to the general public and in your native language or other principal
mode of communication, unless it is clearly not feasible to do so. If this is not a written language, the school must take
steps to ensure that the notice is translated orally or by other means into your native language or other mode of
communication. If your language is not a written language, the school district must assure that you understand the
notice, and it must document that you understand the notice.
4. When will the school take the action described in the notice?
After you have received the written notice, you have the opportunity to consider the actions proposed or refused by the
school. You may agree or disagree with the school's proposal or refusal. You can allow the school to start the
proposed action by giving consent in writing.
3
COPY OF PARENT RIGHTS (PROCEDURAL SAFEGUARDS)
A copy of the
Parent Rights
(procedural safeguards) must be given to you at least one time per year. However a copy of
the Parent Rights notification must also be given to you
--
•
Upon initial referral or parental request for evaluation;
•
Upon receipt of your first request for a due process hearing;
•
Upon a disciplinary removal of your child from school that would constitute a change of placement; and
•
Upon your request.
PARENT CONSENT
1. What does consent mean?
Consent means that--
•
You have been fully informed of all information relevant to the activity for which your consent is sought, in your
native language or other mode of communication;
•
You understand and agree in writing to the carrying out of this activity for which your consent is sought, and the
consent describes that activity and lists the records (if any) that will be released and to whom; and
•
You understand that the granting of consent is voluntary on your part and may be revoked at any time. If you
revoke consent, that revocation is not retroactive (i.e., it does not reverse an action that has occurred after the
consent was given but before consent was revoked).
Consent is immediate.
This means, after you have given your written consent, the school district must start the activity
as soon as possible.
2. When must the school obtain my consent?
Your consent is required--
•
Before your child is evaluated for the first time
to determine whether your child is eligible for special education;
[Consent for initial evaluation may not be construed as consent for initial placement.]
•
Before your child's special education and related services start for the first time;
•
Before your child is tested as part of a reevaluation.
Informed parental consent need not be obtained for
reevaluation if the school can demonstrate that it has taken reasonable measures to obtain your consent, and you
have failed to respond. Reasonable measures include records of telephone calls made or attempted and the
results of those calls; copies of correspondence sent to the parents and any responses received; and records of
visits made to the parents' home and the results of those visits.
•
According to state law, you must also give written consent when the school proposes to
change the amount of a
service by 25% or more
, or to
change your child’s placement for more than 25% of the school day
. Your
refusal to consent to these types of proposed changes will not result in a failure to provide your child with a free and
appropriate public education.
Your consent is not required before--
•
School officials review existing data as part of an evaluation or a reevaluation; or
•
School officials administer a test or other assessment that is administered to all children unless, before
administration of that test or assessment, consent is required of parents of all children.
3. Can I refuse consent?
Yes. If you refuse consent for initial evaluation or re-evaluation the school can ask you to go to mediation on the issue
or, when authorized by law, it can start a due process hearing to decide the issue. The school may not use mediation
or due process to override parent refusal to consent to the initial provision of special education and related services. If
you refuse consent for a change in the amount of service by 25%, or to change placement for more than 25% of the
school day, the public agency must initiate mediation and/or a due process hearing to ensure that your refusal to
consent does not result in a failure to provide your child with a free, appropriate, public education.
4. Can I withdraw my consent after it has been given?
Yes. You have the right to change your mind. Giving consent is voluntary. You can revoke (withdraw) your consent at
any time by writing the school or the special education director. Revoking consent does not negate an action that has
occurred after the consent was given and before the consent was revoked. Again, if you revoke consent, the school can
ask you to go to mediation on the issue or it can start a due process hearing to decide the issue.
4
5. What are the limitations on my consent?
The school must ensure that your refusal to consent to one service or activity does not deny you or your child from
receiving other services, benefits, or activities provided by the school.
VOLUNTARY MEDIATION
1. What is mediation?
Mediation is a way to discuss and resolve disagreements between you and the school with the help of a trained,
impartial third person.
2. When must mediation be available?
Each school must ensure that it has established procedures to allow parties to disputes to resolve the disputes through
a mediation process that, at a minimum, must be available whenever a due process hearing is requested regarding a
proposal
or
refusal
to initiate or change the identification, evaluation or educational placement of your child or the
provision of a free appropriate public education to your child. In no case will a parent’s right to a due process hearing
be delayed or denied if a parent refuses to participate in mediation, or does not attend a meeting to have the benefits of
mediation explained to them.
3. How does mediation occur?
The school must ensure that the mediation process--
•
Is voluntary on the part of the parties;
•
Is not used to deny or delay your right to a due process hearing or to deny any other rights that you have under the
Individuals with Disabilities Education Act (IDEA); and
•
Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
4. Will a meeting to encourage mediation be required?
•
Yes, when parents elect not to mediate, they may be required to meet at a time and location convenient to the
parents with a Families Together advocate or an appropriate alternate dispute resolution entity.
•
At this meeting the Families Together advocate, or other alternate dispute resolution representative, will explain the
benefits of mediation and encourage the parents to use the process.
5. What are the qualifications of an impartial mediator?
An individual who serves as a mediator may not be an employee of --
•
Any school, even if different from your school; or
•
State agency that receives a subgrant under the IDEA; or
•
A state education agency that is providing direct services to a child who is the subject of the mediation process.
In addition, an impartial mediator--
•
Must not have a personal or professional conflict of interest; and
•
Is not an employee of a school or state agency solely because he or she is paid by the agency to serve as a
mediator.
6.
How are mediators appointed?
The Kansas State Department of Education (KSDE) maintains a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special education and related services. Mediators
are selected on a random basis from a list of qualified mediators. The Kansas State Department of Education bears
the cost of the mediation process, including the cost of meetings. The mediation sessions are scheduled in a timely
manner and held in a location that is convenient to the parties to the dispute.
7.
What happens if agreement is reached?
An agreement reached by the parties to the dispute is set forth in a legally binding written mediation agreement that is
enforceable in a state or federal court.
8.
Are discussions confidential?
Yes. Discussions that occur during the mediation process must be confidential and may not be used as evidence in
any subsequent due process hearings or civil proceedings. The parties to the mediation process are required to sign a
confidentiality pledge prior to the commencement of the process.
5
9.
How can I request mediation?
The school has procedures that require you to provide written notice that you are requesting mediation.
MEDIATION
Contact Persons
What Information Is Needed?
Mark Ward, Mediation Consultant, or
Carol LeDuc, Mediation Technical Assistant
Kansas State Department of Education
Student Support Services Team
120 SE 10
th
Avenue
Topeka, KS 66612-1182
Phone (800) 203-9462
FAX
(785) 296-6715
The name and address of the child's parents;
The name and birth date of the child;
The address of the residence of the child;
The name of the school the child is attending;
If a due process hearing has been requested also;
A joint request with the school for mediation; and
Signatures from both parties to the Confidentiality
Pledge.
IMPARTIAL DUE PROCESS HEARING
1.
What is a due process hearing?
A due process hearing is a formal legal process through which any disagreement between you and the school is
resolved by an impartial hearing officer.
2.
What happens when a due process hearing is requested?
A parent or a school may initiate a hearing on any of the matters relating to the identification, evaluation or educational
placement of a child or relating to the provision of services to the child (except that a school may not use mediation or a
due process hearing to override a parent’s refusal to consent to the initial provision of special education and related
services). When you request a due process hearing--
•
The school must inform you of the availability of mediation.
•
The school must also inform you of any free or low-cost legal and other relevant services in the area, if you request
the information.
3.
Does the school conduct the due process hearing?
The due process hearing is arranged and paid for by the school district responsible for the education of your child but it
is conducted by an impartial hearing officer.
4.
How can I request a due process hearing?
The law requires that you or your attorney provide a written due process complaint notice to the school and to the
Kansas State Department of Education (which must remain confidential) that you are requesting a due process
hearing.
DUE PROCESS HEARING
Contact Person/Agency
What Information Is Needed?
The Special Education Director if your child is in a public
school
or
The Secretary of Social and Rehabilitation Services (SRS) if
your child is in a state institution
or
The Commissioner of the Juvenile Justice Authority if your
child is in a state juvenile correctional facility
or
The Secretary of the Department of Corrections if your child
is in a state correctional facility
The name and address of the child's parents;
The name and age of the child;
The address of the residence of the child;
The name of the school the child is attending;
A description of the problem and a statement of the facts
relating to the problem;
A proposal for resolution of the problem; and
An indication that a copy of the request was sent to the
school and to the Kansas State Department of Education.
If your due process complaint notice does not include all of the information listed above, the school may notify the hearing
officer and you that it believes your notice is insufficient and ask the hearing officer to order you to provide all of the required
information.
6
5.
What are the qualifications of an impartial due process hearing officer?
A hearing officer
•
May not be an employee of the state educational agency or the school that is involved in the education or care of
the child (a hearing officer is not considered an employee of an educational agency or school solely because he or
she is paid by the agency or school to serve as a hearing officer);
•
May not be any person having a personal or professional interest that would conflict with his or her objectivity in the
hearing;
•
Must possess knowledge of, and the ability to understand the provisions of federal and state special education laws
and regulations and related legal interpretations;
•
Must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal
practice; and
•
Must possess the knowledge and ability to render and write decisions in accordance with appropriate standard legal
practice.
The school must--
•
Keep a list of persons who serve as hearing officers.
•
The list must include a statement of the qualifications of each hearing officer.
6.
What are my due process hearing rights?
a.
You and the school district have the right to:
•
Be accompanied and advised by an attorney and by individuals with special knowledge or training with respect to
the problems of children with exceptionalities;
•
Present evidence and confront, cross-examine, and compel the attendance of witnesses;
•
Prohibit the introduction of any evidence at the hearing that has not been disclosed to you at least 5 days before
the hearing;
•
Obtain a written, or, at your option, electronic, verbatim record of the hearing;
•
Obtain a written, or, at your option, electronic findings of fact and decision
;
and
•
Amend your complaint, if approved by the hearing officer or consented to by the school district.
b.
Additional Disclosure of Information--
•
At least 5 business days prior to a hearing, each party must disclose to the other party all evaluations completed
by the date and recommendations based on the offering party's evaluations that the party intends to use at the
hearing.
•
A hearing officer may bar any party that fails to comply from introducing the evaluation or recommendation at the
hearing without the consent of the other party.
c.
Parent Rights at Hearings
Parents involved in hearings must be given the right to--
•
Have the child who is the subject of the hearing present;
•
Open the hearing to the public; and
•
Receive a record of the hearing and the findings of fact and decision, at no cost to them, no later than 45
calendar days after the request for the hearing, unless an extension of time is allowed by the hearing officer.
d.
Finality of Local Level Hearing Decision
A decision made in a local due process hearing is final, unless either party involved in the hearing decides to appeal
the decision.
e.
Appeal of Decision
Any party aggrieved by the findings and decision in the local due process hearing may appeal to the Kansas State
Board of Education. The Board shall provide for an impartial review of the hearing. The official conducting the
review shall:
•
Examine the entire hearing record;
•
Ensure that the procedures at the hearing were consistent with the requirements of due process;
•
Seek additional evidence if necessary (If a hearing is held to receive additional evidence, the rights mentioned in
subsections "a", "b", and "c" of Question #6, "What are my due process hearing rights?" apply.)
•
Afford the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;
•
Make an independent decision on completion of the review; and
•
Give a copy of the written, or, at the option of the parents, electronic, findings of fact and decision to the parties.
7
f.
Finality of State Level Hearing Decision
The decision made by the state reviewing official is final, unless a party files a court action to have the decision
changed.
7.
What are the timelines for a due process hearing?
a. Local Level Hearings
If you wish to initiate a due process hearing, you must submit your notice of due process hearing to the school
district within 2 years of the date that you knew or should have known about the alleged action that forms the basis
of your complaint. However, the 2 year timeline may be extended if either of the following has occurred:
•
The school made specific misrepresentations that it had resolved the problem forming the basis of your
complaint; or
•
The school withheld information from you that it was required, by law, to provide to you.
If the school has initiated the due process hearing,
•
You have 10 days from the date you receive the notice of due process to send a response to the school that
specifically addresses the issues raised in the notice.
•
If you believe that the school district’s notice of due process is legally insufficient, you have 15 days from the date
you receive the notice to notify the hearing officer that you are contesting the sufficiency of the school’s notice of
due process.
If you have initiated the due process hearing,
•
the school district must, within 15 days of receiving your notice of due process, convene a meeting with you and
with other relevant members of the IEP team who have specific knowledge of the facts you identified in your
complaint to discuss your complaint and the facts related to your complaint to determine whether the issues in
your complaint can be resolved without a hearing.
•
This meeting must include a representative of the school district who has decision making authority on behalf of
the school district.
•
The school district may not bring an attorney to this meeting unless you are accompanied by an attorney.
•
This resolution meeting is required by law unless both you and the school district agree, in writing, to waive the
meeting or agree to use the special education mediation process.
You may amend your due process complaint notice
•
if the school district consents to the amendment in writing and is given the opportunity to resolve the amended
notice at a meeting with you before a hearing occurs, or
•
you may also amend your complaint notice if the hearing officer grants permission for your amendment not later
than 5 days before the hearing occurs.
•
The same rules for amendment of a due process complaint notice apply to the school district.
•
If either party successfully amends their complaint, the timelines stated above start over.
If you are going to use an evaluation, or recommendations based on an evaluation, as evidence at the hearing,
•
you must disclose the evaluation or evaluations and the recommendations you intend to use to the school district
not less than 5 business days before the hearing.
•
Failure to timely disclose this information could result in a hearing officer ruling that the evaluations and
recommendations may not be used at the hearing without the consent of the school district.
At the local level, not later than
45 calendar days
after the receipt of a request for a hearing--
•
A final decision must be reached in the hearing; and
•
A copy of the decision must be provided to each of the parties.
A hearing officer may grant specific extensions of time beyond the 45-day period if requested by either party. Each
hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved.
b. State Level Reviews
The Kansas State Board of Education must ensure that not later than 20 calendar days after the receipt of a
request for a review--
•
A final decision is reached in the review; and
•
A copy of the decision is mailed to each of the parties.
A reviewing officer may grant specific extensions of time beyond the 20-day period at the request of either party.
Each review involving a hearing must be conducted at a time and place that is reasonably convenient to the
parents and child involved.
8
8.
May the school district or I file a court action?
a. Court Action
Any party who does not agree with the decision of the state review officer has the right to file a court action. The
action may be filed in state or federal court. Any action must be filed within 30 days of the date of the delivery of the
decision to you. You will have to hire an attorney if you decide to go to court.
In any civil action, the court--
•
Shall receive the records of the administrative proceedings;
•
Shall hear additional evidence at the request of a party; and
•
Basing its decision on the preponderance of the evidence, shall grant the relief that the court determines to be
appropriate.
b. Jurisdiction of District Courts
Federal district courts have jurisdiction of actions brought under the IDEA. The Kansas district courts also have
jurisdiction under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601
through 77-627.
9.
How can I recover attorneys' fees?
In any action or proceeding under the IDEA, the court may award reasonable attorneys’ fees to a parent who is a
prevailing party.
10.
May a court award attorneys' fees
to you
?
Yes. A court may award reasonable attorneys' fees consistent with the following--
•
Fees awarded must be based on rates prevailing in the community in which the due process hearing was
conducted for the kind and quality of services furnished.
•
No bonus or multiplier may be used in calculating the attorneys' fees.
•
Attorney’s fees cannot be awarded for actions relating to any due process resolution session or for any meeting of
the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the
discretion of the State for a mediation that is conducted prior to filing of a request for a due process hearing.
11.
May a court choose not to award attorneys' fees?
Yes. Attorneys' fees may not be awarded and related costs may not be reimbursed for services performed subsequent
to the time of a written offer of settlement to you if--
•
The offer is within the time allowed by the Federal Rules of Civil Procedure or, in the case of an administrative
hearing, any time more than 10 calendar days before the hearing;
•
The offer is not accepted within 10 calendar days; and
•
The court finds that the decision you finally receive is not more favorable to you than the offer of settlement.
However, an award of attorneys’ fees may be made to you if you win and you are justified in rejecting a settlement
offer.
12.
May a court reduce the amount of attorneys' fees awarded?
Yes. A court may reduce the amount of attorneys’ fees awarded when the court finds:
•
During the action or proceeding, you unreasonably lengthened the final resolution of the case;
•
The amount of the attorneys’ fees is unreasonable compared to the going rate in the community for similar services
by attorneys of reasonably comparable skill, experience, and reputation;
•
The time and legal services were excessive considering the nature of the case; or
•
Your attorney did not give the school the appropriate notice about the due process hearing.
A court may not reduce the allowance for attorneys’ fees if the court finds that the state education agency or school
unreasonably delayed the final resolution of the case, or, found there was a violation in the implementation of IDEA.
13.
May a court order you or your attorney to pay the attorney fees of the school?
Yes. A court may order reasonable attorneys’ fees to a prevailing party, which is a school district or a state education
agency, to be paid by a parent’s attorney if the court finds that the parent’s complaint or subsequent cause of action is
frivolous, unreasonable, or without foundation, or if the parent’s attorney continues to litigate after the litigation clearly
becomes frivolous, unreasonable or without foundation. In addition, a court may order reasonable attorneys’ fees to a
prevailing party which is a school or a state educational agency to be paid by a parent or a parent’s attorney if the
court finds that the parent’s complaint or subsequent cause of action was presented for any improper purpose, such
as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
9
14.
What happens to my child during due process or court proceedings?
Except when your child has violated a school rule or has done something that could have hurt someone, during any
due process or court proceedings--
•
Unless you and the school agree otherwise, your child stays in the current educational placement;
•
If the complaint involves an application for initial admission to school, your child, with your consent, must be placed
in public school until the proceedings are finished.
•
If a hearing or review officer agrees with you that a change in placement is appropriate, the hearing or review officer
may order a different placement for your child. When that occurs, the placement will be treated as an agreement
between the State education agency or the local education agency and the parents.
CHANGE OF PLACEMENT FOR DISCIPLINARY REMOVALS FOR CHILDREN WITH DISABILITIES
State and federal laws have special provisions that control what happens if your child violates a school rule or does
something that caused, or could easily have caused, an injury to him/herself or someone else. These special provisions say
what action the school can take and what your rights are as the child’s parent. The possible actions by the school and your
rights in these matters are explained below.
1. What actions constitute a change of placement for disciplinary purposes?
For disciplinary purposes, removals of your child from his or her current educational placement, which constitute a
change of placement are:
•
The removal is for more than 10 consecutive school days;
•
Your child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10
school days in a school year, and because of factors such as the length of each removal, the total amount of time
your child is removed, and the proximity of the removals to one another; or
•
Your child is to be placed in an interim alternative educational setting.
2. When can school officials take action for a child’s misbehavior?
Children with disabilities are subject to the same rules of conduct that apply to other children. School officials can take
action if a child with a disability does anything listed below:
•
Violates any school rule;
•
Brings, or gets possession of, a weapon at school or at a school activity;
•
Brings, or gets possession of, an illegal drug at school or at a school activity; or
•
Does something that caused serious bodily injury to another person, or does something that could easily have
caused an injury to the child or to someone else.
3. What action can school officials take for children with disabilities?
School officials can take the following actions--
•
If your child violates a school rule, but the misbehavior does not involve a weapon, illegal drugs or dangerous
behavior, school officials may move your child to a different educational setting or they can suspend your child from
school for up to 10 school days. They can do this each time your child violates a rule. If the total number of
suspensions mount up, and they are close together, and show a pattern of removing your child from school, no
further suspensions from school can be made without your involvement.
•
If your child carries or possesses a weapon to or at school or to or at a school function under the jurisdiction of a
State or a local educational agency; or knowingly possesses or uses illegal drugs or sells or solicits the sale of a
controlled substance while at school or a school function under the jurisdiction of a State or local educational
agency, or inflicts serious bodily injury upon another person while at a school or a school function under the
jurisdiction of a State or local educational agency, school personnel may order a change in placement of your child
to an appropriate interim alternative educational setting for the same amount of time that a child without a disability
would be subject to discipline, but for not more than 45 school days.
•
If your child violates school rules over and over, or does something that is serious, like damaging the school
building, school officials can suspend your child from school for up to 10 school days and start action to have your
child removed from school for up to a whole school year.
•
If your child does something that is dangerous (that is, something that caused, or could easily have caused, injury
to him/herself or to someone else), school officials can suspend your child from school for up to 10 school days.
They, also, can start action to either have your child removed from school for up to a whole school year, or to have
a due process hearing officer determine a different place for your child to go to school for up to 45 school days.
4. What steps must be followed to change my child’s placement for removals of 10 school days or less?
10
If your child has violated the school's discipline code, the school may change your child's placement to an interim
alternative setting, another setting or suspension for a period of time not to exceed 10 school days, to the same extent
as a child without a disability.
5. Must educational services be provided if my child has been removed from his or her current placement for 10
school days or less?
No. The school would not be required to provide services to your child during removal from his or her current placement
for not more than 10 consecutive school days in the same school year for separate incidents of misconduct.
6. What steps must be followed to change my child’s placement for removals of more than 10 school days?
If school officials want to suspend your child from school for more than 10 school days in a row, or to have your child’s
educational setting changed for up to 45 school days for weapon or drug possession, for infliction of serious bodily injury
to another or for other dangerous behavior, school officials must notify you of what they intend to do. The law also
states--
•
If the behavior was a manifestation of your child’s disability, and your child does not have a behavior intervention
plan, the IEP team must conduct a functional behavioral assessment and implement a behavioral intervention plan.
If your child already has a behavioral intervention plan, the IEP team must meet to review the plan and its
implementation, and, modify the plan and its implementation, as necessary, to address the behavior.
•
If the behavior was not a manifestation of your child’s disability, the IEP team must determine whether it would be
appropriate for your child to receive a functional behavioral assessment, behavioral intervention services and
modifications, that are designed to address the behavior violation so that it does not recur.
7.
Must educational services be provided if my child has been removed from his or her current placement for 10
days or more
in a school year
?
Yes. After your child has been removed from his or her current placement for more than 10 school days in the same
school year, during any subsequent days of removal, the school must provide services to the extent necessary to
enable your child to continue to participate in the general education curriculum and to progress toward meeting the
goals set out in his or her IEP.
8.
What is a "controlled substance"?
A "controlled substance" means a drug or other substance identified under schedules I, II, III, IV or V in section 202(c)
of the Controlled Substances Act (21U.S.C. §12(c)). This is a federal law.
9.
What is an "illegal drug"?
An "illegal drug" means a controlled substance; but--
•
Does not include a substance that is legally possessed or used under the supervision of a licensed health-care
professional or that is legally possessed or used under any other authority under the Controlled Substances Act or
under any other provisions of federal law.
10. What is a "weapon"?
A "weapon" has the meaning given the term "dangerous weapon" under paragraph (2) of the first subsection (g) of
section 930 of Title 18, United States Code. This federal law defines a weapon as "any weapon, device, instrument,
material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily
injury, except that this term does not include a pocket knife with a blade of less than 2.5 inches in length."
11.
What is “serious bodily injury”?
“Serious bodily injury” means bodily injury which involves:
•
a substantial risk of death;
•
extreme physical pain;
•
protracted and obvious disfigurement; or
•
protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
12. What action can hearing officers take in regard to dangerous behavior?
Hearing officers can take the following actions--
•
An IDEA hearing officer may order a change in placement of your child to an appropriate interim alternative
educational setting for not more than 45 school days, if the hearing officer, in an expedited hearing--
•
Determines the school has demonstrated that maintaining the current placement of your child is substantially
likely to result in injury to your child or to others; and
•
Determines that the interim alternative educational setting that is proposed by school personnel who have
consulted with your child's special education teacher meets the requirements below.
13. Who determines the interim alternative educational setting?
11
The interim alternative educational setting is determined by the IEP team, if a weapon, drugs or serious bodily injury
are involved. It is proposed by school officials, if dangerous behavior is present. Any interim alternative educational
setting in which your child is placed must--
•
Be selected so as to enable your child to continue to participate in the general education curriculum, although in
another setting, and to continue to receive those services and modifications, including those described in your
child's current IEP, that will enable your child to progress toward meeting the goals set out in that IEP; and
•
receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that
are designed to address the behavior violation so that it does not recur.
14. What is a "manifestation determination review"?
A "manifestation determination review" means a review of the relationship between your child's disability and his or her
behavior subject to the disciplinary action.
15. When is a manifestation determination review conducted?
If an action is contemplated involving a removal that constitutes a change of placement for your child--
•
Not later than the date on which the decision to take that action is made, you must be notified of that decision and
provided with the Parent Rights (procedural safeguards) notice; and
•
Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that
action is made, a review must be conducted of the relationship between your child's disability and his or her
behavior subject to the disciplinary action -- the manifestation determination review.
16. Who carries out the manifestation determination review?
The manifestation determination review must be conducted by a group of persons that includes school personnel, you
and other relevant members of the IEP team. In carrying out the manifestation determination review, the group may
determine that the behavior of your child was a manifestation of his or her disability only if it:
•
Reviews all relevant information in your child’s file, including your child’s IEP, any teacher observations, and any
relevant information provided by you, and;
•
Then determines that either--
•
The conduct in question was caused by, or had a direct and substantial relationship to, your child’s disability; or
•
The conduct in question was the direct result of the local educational agency’s failure to implement the IEP.
If the group determines that either of these standards were met, the behavior must be considered a manifestation of
your child's disability.
17. What happens if the IEP team determines that the behavior was not a manifestation of my child's disability?
If the result of the manifestation determination review is a determination that your child's behavior was not
a
manifestation of his or her disability--
•
The relevant disciplinary procedures applicable to children without disabilities may be applied to your child with a
disability in the same manner in which they are applied to children without disabilities, as long as your child
continues to be provided services, as determined by your child's IEP team, to the extent necessary to enable your
child to appropriately continue to participate in the general education curriculum, although in another setting, and to
progress toward meeting the goals set out in his/her IEP.
•
If determined to be appropriate by the IEP team, your child will receive a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address the behavior violation so that it
does not recur.
18. What is my child's placement if I request due process proceedings?
If you request a hearing or an appeal to challenge the manifestation determination decision or the interim alternative
educational setting--
•
School officials may have your child remain in the interim alternative educational setting for the designated period of
the disciplinary removal, or until the hearing officer issues a decision, whichever occurs first (unless you and the
school district agree otherwise). Thereafter, your child will return to the previously agreed upon educational
placement, unless a hearing officer orders another placement or you and the school agree to another placement.
19. What if I disagree with the outcome of my child's manifestation determination review or disciplinary
placement?
If you disagree with the IEP team's determination that your child's behavior was not a manifestation of his or her
disability or any decision regarding your child's disciplinary placement, you may request a due process hearing. You
must file your request with your local board of education. The school then arranges for an expedited due process
hearing by immediately contacting the person on the chart that follows –
12
EXPEDITED DUE PROCESS HEARING
Contact Person
What Information Is Needed?
Rod Bieker, General Counsel
Kansas State Department of Education
120 SE 10
th
Avenue
Topeka, KS 66612-1182
(785) 296-3204 or (800) 203-9462
Your name and address;
Your attorney's name and address, if you have one;
The name of the child;
The address of the residence of the child;
The name of the school the child is attending;
A description of the nature of the problem relating to the
manifestation determination and/or proposed
placement; the facts related to the problem: and
A proposed resolution of the problem to the extent known
and available to you at the time.
20. How is an expedited hearing conducted?
Expedited due process hearings must be conducted as follows--
•
Each of the parties to an expedited due process hearing has the rights afforded to them under the IDEA except that
the parties have the right to prohibit the presentation of any evidence at the expedited hearing that has not been
disclosed to the opposite party at least two business days before the hearing.
•
Each hearing officer must conduct the expedited due process hearing within 20 school days of the date the hearing
is requested and provide the decision in the matter to the parties within 10 school days after the hearing;
•
A hearing officer in an expedited due process hearing cannot grant any extensions; and
•
Either party to an expedited due process hearing may appeal the decision, and the appeal procedures are the same
as those for any other due process hearing.
•
Any hearing officer for an expedited hearing must meet the same qualifications as for those in all other due process
proceedings.
21. Can a hearing officer change my child's placement if he/she is a danger to self or others?
Yes. If the school demonstrates that there is a danger that your child or other students are substantially likely to be
injured if your child stays in his or her current placement, the school may request an expedited hearing to obtain an
order from a hearing officer to change your child's educational placement to an interim alternative educational
placement for up to 45 school days. School officials propose the alternative setting, but the hearing officer finally
decides the interim alternative educational setting. If, at the end of 45 school days, the school determines there
continues to be a danger that your child or other students may be injured if your child is returned to his or her previous
placement, the process may be repeated.
22. Are there any protections for children not yet identified as eligible for special education?
Yes. If your child engages in behavior that violates any rule or code of conduct of the school, you may assert the
protections provided for under the IDEA, if the school had knowledge that your child had a disability before your child
engaged in the misbehavior. The school will be deemed to have had knowledge that your child was a child with a
disability if--
•
You have expressed concern in writing to supervisory or administrative school personnel or to a teacher of your
child that your child is in need of special education and related services;
•
You have requested an evaluation of your child; or
•
Your child's teacher or other school personnel have expressed specific concerns about a pattern of behavior or
performance of your child to the Director of Special Education or to other supervisory personnel in accordance with
the school's child find or special education referral system.
However--
•
Your school will not be deemed to have had knowledge, if either:
•
The school conducted an evaluation and determined that your child was not a child with a disability;
•
You have not allowed an initial evaluation of your child; or
•
You have refused initial services for your child.
23. What conditions apply if there is no basis of knowledge?
If a school does not have knowledge that your child is a child with a disability prior to taking disciplinary measures,
your child may be subjected to the same disciplinary measures as measures applied to children without disabilities
who engage in comparable behaviors consistent with the following limitations--
13
•
If you made a request for an evaluation of your child during the time period in which your child is subjected to
disciplinary measures, the evaluation must be conducted in an expedited manner.
•
Until the evaluation is completed, your child remains in the educational placement determined by school authorities,
which can include suspension or expulsion without educational services.
•
If your child is determined to be a child with a disability, taking into consideration information from the evaluation
conducted by the school and information provided by you, the school must provide special education and related
services in accordance with the IDEA
PLACEMENT OF CHILDREN BY PARENTS IN PRIVATE SCHOOLS WHEN FAPE IS AT ISSUE
1.
If I place my child in a private school, who is responsible to pay for the costs?
Except as may be otherwise provided by state law, the school is not required to pay for the cost of education, including
special education and related services for your child at a private school, if the school made a free appropriate public
education available to your child, but you elected to place your child in a private school. However, the school must
include your child if he or she is included in the group of private school students to whom services will be provided
under services plans. Disagreements between you and the school regarding the availability of an appropriate program
for your child, and the question of financial responsibility, are subject to due process procedures. If the parents of a
child with a disability, who previously received special education and related services, under the authority of a public
agency, enrolls the child in a private preschool, elementary or secondary school without the consent of or referral by
the public agency, a court or hearing officer, may require the agency to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that the agency had not made a free and appropriate education available
to the child in a timely manner prior to the enrollment, and that private school is appropriate. A parental placement may
be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
2.
What must I do if I plan to ask the school district to reimburse me for the costs of a private school?
The cost of reimbursement for your child's private school placement may be reduced or denied if--
•
At the most recent IEP meeting that you attended before removing your child from the public school, you did not
inform the IEP team that you were rejecting the placement proposed by the school to provide a free appropriate
public education to your child. This would include stating your concerns and your intent to enroll your child in a
private school at public expense; or
•
At least 10 business days (including holidays) before removing your child from the public school, you did not give
written notice to the school about your concerns and your intent to enroll your child in a private school at public
expense; or
•
Before you removed your child from public school, the school informed you, by written notice, of its intent to
evaluate your child, including a statement of the purpose of the evaluation that was appropriate and reasonable, but
you did not make your child available for the evaluation; or
•
A court finds that your actions were unreasonable.
Exceptions--
The cost of reimbursement to you cannot be reduced or denied for failure to give notice to the school if:
•
Providing the required notice would likely result in physical harm to your child;
•
The school prevented you from giving notice; or
•
You had not received written notice of your responsibility to give notice to the school before removing your child
from public school and enrolling your child in private school. [This question constitutes the required notice to you of
your responsibility to provide the school with notice as described above.]
The cost of reimbursement to you , may, in the discretion of a court or hearing officer, not be reduced or denied for
failure to give notice to the school if:
•
You cannot read or write in English;
•
Providing the required notice would likely result in serious emotional harm to the child.
STATE COMPLAINT PROCEDURES
1. What is a formal complaint investigation?
A formal complaint investigation is a procedure to determine whether the school is complying with federal or state laws
and/or regulations regarding the provision of special education and related services to children with exceptionalities.
14
2. Who investigates formal complaints?
The Kansas State Department of Education has adopted procedures for resolving formal complaints, including
complaints filed by you, by an organization or by an individual from another state, which meet the following requirement-
•
Complaints must be in writing and be filed with the Formal Complaint Investigator for Special Education at the
Kansas State Department of Education.
The state complaint procedures are widely disseminated to parents and other interested individuals, including parent
training and information centers, protection and advocacy agencies, independent living centers, and other appropriate
entities.
3. What remedies are available for denial of appropriate services to my child?
In resolving a complaint in which it is found that appropriate services are not provided, the Kansas State Department of
Education must address--
•
How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement
or other corrective action appropriate to the needs of your child; and
•
Appropriate future provision of services for all children with exceptionalities.
4. How is a formal complaint investigation conducted?
The Kansas State Department of Education must conduct complaint investigations in the following manner--
•
Adhere to a time limit of 30 calendar days for investigation of your complaint, unless an extension is granted for
extenuating circumstances;
•
Carry out an independent on-site investigation, if it is determined that an investigation is necessary;
•
Give you the opportunity to submit additional information, either orally or in writing, about the allegations in the
complaint;
•
Review all relevant information and make an independent determination as to whether the school is violating a
requirement of state or federal laws or regulations; and
•
Issue a written decision that addresses each allegation in the complaint and contains:
•
Findings of fact and conclusions; and
•
The reasons for the Department's final decision.
The Department may--
•
Extend the time limit if exceptional circumstances exist; and
•
Include procedures for effective implementation of the Department's final decision, if needed, including:
•
Technical assistance activities;
•
Negotiations; and
•
Corrective actions to achieve compliance.
5. May I request a formal complaint investigation and a due process hearing at the same time?
Yes. In this situation, your complaint would be investigated as follows--
•
If a written complaint is received that is also the subject of a due process hearing, or contains multiple issues, of
which one or more are part of that hearing, the Kansas State Department of Education must set aside any part of
your complaint that is being addressed in the due process hearing, until the conclusion of the hearing. However,
any issue in your complaint that is not a part of the due process action must be resolved using the time limit and
procedures described above.
•
If an issue is raised in your complaint that has been previously decided in a due process hearing:
•
The due process hearing decision is binding; and
•
The Department must inform you to that effect.
•
The Department must resolve a complaint alleging the school failed to implement a due process decision.
6. What must I consider when I file a formal complaint?
The Kansas State Department of Education has procedures for you to file a formal complaint. It must be in writing, and
you must sign it and mail or personally deliver it to KSDE. The complaint must include--
•
A statement that the school has violated a requirement of state or federal law or regulations; and
•
The facts on which the statement is based.
The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is
received.
15
7. How can I request a formal complaint investigation?
You can request a complaint investigation by filing a signed complaint with the contact person shown on the chart that
follows:
FORMAL COMPLAINT INVESTIGATION
Contact Person
What Information Is Needed?
Formal Complaint Investigator for Special Education
Kansas State Department of Education
Student Support Services Team
120 SE 10
th
Avenue
Topeka, KS 66612-1182
Your name and address;
The name and age of the child;
The address of the residence of the child;
The name of the school the child is attending;
The specific violation(s) of law or regulation that you believe
have occurred; The facts supporting your allegations;
What efforts have been made to resolve the concern(s) with
the school; and
Your proposed solution to the problem(s).
CONFIDENTIALITY AND ACCESS TO EDUCATIONAL RECORDS
Definitions pertaining to records:
Destruction:
means physical destruction or removal of all personal identifiers from information
Education Record:
the type of records covered under the definition of the Family Educational Rights and Privacy Act
(FERPA)
Participating Agency:
Any agency or institution that collects, maintains, or uses personally identifiable information, or
from which information is obtained.
1.
May I see my child's educational records?
Schools must maintain the confidentiality of information in your child's educational records. The school can assume
that both parents of a child have authority to inspect/review the child's records unless the school has been notified in
writing that a parent's rights to see the records have been terminated by a court order.
a.
You have the right to:
•
Read and review all education records about your child kept by the school.
•
Review those records. The school shall respond to your request:
•
without unnecessary delay (not later than 45 calendar days after your request);
•
before any meeting to develop or review your child’s individualized education program; and/or
•
before any due process hearing.
•
Ask the school to give you an explanation of your child’s records.
•
Ask the school to give you copies of the records, if not getting copies would keep you from reviewing the records.
The school may charge a fee for the copies if it does not keep you from reviewing the records. The school may not
charge a fee to search for or gather the records. (Material with a copyright on it such as test protocols may not be
copied as a part of the child's education record.)
•
Have a representative of your choice, with your written permission, read and review the records.
b.
Record of Access
The school must keep a record of those persons, except parents and authorized employees of the school district,
who obtain access to your child's record, including names, dates, and purposes for the access.
c.
Information on More Than One Child
If any education record includes information on more than one child, you have the right to read and review only the
information relating to your child or to be informed of that specific information.
d.
The school--
•
Must provide parents on request a list of the types and locations of education records collected, maintained, or used
by the agency.
May charge a fee for copies of records that are made for parents under this part if the fee does not effectively
prevent the parents from exercising their right to inspect and review those records.
•
May not
charge a fee to search for or to retrieve information.
16
2. How do I get my child's records changed?
You may ask the school to change information in your child's education record if you believe the information is not
correct, is misleading, or violates your child’s privacy or other rights. If the school agrees, the record must be changed
within a reasonable period of time. If the district refuses to amend the record you will be notified of this in writing. You
may ask for a hearing if the school refuses to change the record as you request. If you request a hearing to challenge
information in your child’s record, the school must provide the hearing. If, as a result of the hearing, the school decides
that the information:
•
Is not correct, is misleading, or a violation of your child’s privacy, the school must change the record and inform you
in writing of the change; or
•
Is correct, not misleading, or not a violation of your child’s privacy, the school must inform you of your right to place
in the records a statement giving your reasons for disagreeing with the school’s decision. This statement must be
kept with the education record for as long as the record is kept by the school and must be included with the record if
it is shared with anyone.
3. What minimum requirements exist for the conduct of a hearing?
The hearing to change information in your child's education record must meet, at a minimum, the following
requirements:
•
The school shall hold the hearing within a reasonable time after it has received the request for the hearing from the
parent or eligible student.
•
The school shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the
hearing.
•
The hearing may be conducted by any individual, including a school official, who does not have a direct interest in
the outcome of the hearing.
•
The school shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the
issues raised. The parent or eligible student may, at their own expense, be assisted or represented by one or more
individuals of his or her own choice, including an attorney.
•
The school shall make its decision in writing within a reasonable period of time after the hearing.
•
The decision must be based solely on the evidence presented at the hearing, and must include a summary of the
evidence and the reasons for the decision.
•
The hearing will be held in accordance with the procedures outlined in the Family Educational Rights and Privacy
Act.
4. Must I give consent for disclosure of personally identifiable information in my child's education records?
The school must obtain your written consent, before any personally identifiable information about your child may be
released to any person not otherwise entitled under the Family Educational Rights and Privacy Act (FERPA) to have
access to it or used for any purpose other than meeting requirements of IDEA. An educational agency or institution may
not release information from education records to participating agencies without parental consent unless authorized to
do so under FERPA.
5. What if I do not give consent?
In the event that you do not give consent when requested by the school district, the school can appeal to the local court
for an order to permit disclosure.
6. What information is kept and shared with regard to disciplinary actions?
The records of a child with a disability may include a statement of any current or previous disciplinary action that has
been taken and transmit the statement to the same extent that the disciplinary information is included in and transmitted
with, the student records of nondisabled children. The statement may include a description of any behavior engaged in
by the child that required disciplinary action, a description of the action taken, and any other information that is relevant
to the safety of the child and other individuals involved with the child. The transmission of any of the child’s records
must include both the child’s current IEP and any statement of current or previous disciplinary action that has been
taken against the child.
7.
What safeguards are in place for protection of confidential information in my child's education records?
The school must protect the confidentiality of personally identifiable information in your child's record in the following
ways:
•
At collection, storage, disclosure, and destruction stages;
•
One official at each school shall assume responsibility for ensuring the confidentiality of any personally identifiable
information;
•
All persons collecting or using personally identifiable information must receive training or instruction regarding the
state's confidentiality procedures; and
•
Each school shall maintain, for public inspection, a current listing of the names and positions of those employees
within the agency who may have access to personally identifiable information.
17
8.
May the school destroy my child's education records?
Yes. The school must inform you when the personally identifiable information in your child's education records is no
longer needed to provide educational services to your child. The education records must be destroyed at your request.
9.
What is directory information?
Part of the education record, known as
directory information
, includes personal information about your child that can be
made public according to your school's student records policy. Directory information may include your child's name,
address, and telephone number, and other information typically found in school yearbooks or athletic programs. Other
examples are names and pictures or participants in various extracurricular activities or recipients of awards, pictures of
students, and height and weight of athletes.
10. Do I have a right to review my child's record when he/she becomes an adult student?
Until your child reaches age 18, you have access to all educational records maintained by the school. When students
reach the age of 18, or when they become students at post-secondary education institutions, they become "eligible
students" and rights under the Family Educational Rights and Privacy Act (FERPA) transfer to them, depending upon
the age of the child and severity of the disability. However, parents retain access to student records of children who
are their dependents for tax purposes. Also, the school must provide any notice required under IDEA to both the
student and the parents when the child turns 18.
STATE ENFORCEMENT OF CONFIDENTIALITY POLICIES AND PROCEDURES
K.S.A. 72-6214 stipulates that every local board of education must adopt policies and procedures in accordance with
applicable federal laws and regulations to protect the right of privacy of any student and his or her family regarding
personally identifiable records, files and data directly related to the student. In the event that this does not occur, the State
can impose sanctions on the local school district.
REIMBURSEMENT FOR SERVICES
1.
Who pays for special education services provided by non-educational public agencies?
If a public agency other than an educational agency fails to provide or pay for the special education and related
services in your child's IEP, the school district (or other State agency responsible for developing the child's IEP) shall
provide or pay for these services to your child in a timely manner. The school district or State agency may then claim
reimbursement for the services from the non-educational public agency that failed to provide or pay for these services
and that agency shall reimburse the school district or State agency in accordance with the terms of the interagency
agreement or other mechanism recognized for payment.
2.
Must I enroll my child in public insurance programs in order for my child to receive FAPE?
No. With regard to services required to provide FAPE, the school district may not require you to sign up for or enroll in
public insurance programs in order for your child to receive FAPE.
3.
If I allow the school district to bill my private insurance for special education services contained in my child's
IEP, must I incur the cost of the deductible or co-payment amount?
No. The school district may not require you to pay any out-of-pocket expenses such as the payment of a deductible or
co-pay amount incurred in filing a claim for services contained in your child's IEP. However, the school district may
pay the cost that you would otherwise be required to pay.
4.
Must I allow the school district to file a claim for health insurance benefits for services provided to my child?
No. School districts may not use a child’s benefits under a public insurance program if that use would --
•
Decrease available lifetime coverage or any other insured benefit;
•
Result in the family paying for services that would otherwise be covered by the public insurance program and that
are required for the child outside of the time the child is in school;
•
Increase premiums or lead to the discontinuation of insurance; or
•
Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.
5.
When is parental consent to the filing of a health insurance claim considered voluntary?
With regard to services required to provide FAPE to your child under Part B of IDEA, the school district may access
your private insurance proceeds only if you --
•
Have been fully informed of all information relevant to the activity to which consent has been sought, in your native
language or other mode of communication;
•
Understand and agree in writing to the carrying out of the activity for which your consent is sought, and the
consent describes that activity and lists the records (if any) that will be released and to whom; and
•
Understand the granting of consent is voluntary on your part and may be revoked at any time.
18
Each time the school district proposes to access your private insurance proceeds, it must --
•
Obtain your consent in accordance with the paragraph above; and
•
Inform you that your refusal to permit the school district to access your private insurance does not relieve the
district of its responsibility to ensure that all required services are provided to your child at no cost to you.
SCHOOL POLICIES AND PROCEDURES FOR SPECIAL EDUCATION
1.
Where can I find the school's policies and procedures for special education?
A copy of the school’s special education policies and procedures are available for your review and inspection at:
_____________________________________
_________________________________________
Name of Building
Address
You may also contact the school, at any time, if you wish to receive information about free or low-cost legal or other services
that may be available to you.
2. How can I get an explanation of the Parent Rights in Special Education?
If you need help in understanding the
Parent Rights in Special Education
or you have any questions about them, you
may contact the following--
a.
Local Level Resources and Information
•
Local Director of Special Education by calling
________________________________
•
Local Parent Resource Center by calling_____________________________________
b.
State Level IDEA Funded Resources and Information
•
Kansas State Department of Education
•
Student Support Services Team at (800) 203-9462;
•
Parent training and information centers--
•
Families Together, Inc. at:
•
Garden City – 888 820-6364
•
Kansas City – 913 384-6783
•
Topeka – 800 264-6343
•
Wichita – 888 815-6364
•
Protection and advocacy agencies--
•
Disability Rights Center of Kansas (DRC) at (877) 776-1541.
•
Keys for Networking at (785) 233-8732
TO:
Special Education Directors
FROM:
Bruce Passman, Student Support Services Team Leader
DATE:
January 8, 2002
RE:
"Reasonable Time" to respond to parent request for evaluation
I thought I would share with each of you the results of a recent complaint made to the Kansas State
Department of Education (KSDE). In the complaint, the parents alleged that they had made a written
request to the school district for a special education evaluation of their child and that the school district
responded with a letter indicating that it would be several months before the evaluation would begin.
The school district's letter to the parents did not include a notice and consent for evaluation form.
The KSDE complaint report indicated that a parent's written request for an evaluation did not
constitute "consent" for an evaluation. Thus, the 60 school-day timeline, in Kansas regulation 91-40-
8(h), for completing an evaluation, determining eligibility, developing an IEP and implementing the IEP
had not started at the time the complaint was filed.
However, the complaint report stated that the school district was required, under Kansas statute,
K.S.A. 72-988(b)(2), to provide the parents with written notice prior to making a proposal, or
refusing a
parent's proposal, to initiate or change the identification, evaluation, or educational placement, or the
provision of a free appropriate public education (FAPE) to a child with an exceptionality. The finding
in the report was that the school district's letter to the parents did not constitute notice to the parents
of the school district's proposal to evaluate their child because it did not provide the parents with a
notice and consent form. The school district's letter also did not notify the parents of a refusal to
evaluate their child. Although the statute requires that the school district provide written notice of its
proposals or its refusals of parental proposals, it does not specify the time in which the school district
must provide such notice to the parents.
The report cited a Kansas Supreme court case stating that when a statute requires notice, but does
not fix a time in which the notice must be given, the notice must be given within a "reasonable" time.
The court added that a reasonable time is to be determined by the court under the circumstances in
each particular case. After reviewing special education laws and regulations regarding time-lines, the
conclusion in the complaint report stated that, because there were no unusual circumstances related
to the facts of this particular complaint, a reasonable time in which to provide notice would have been
15 school days.
I wanted to apprise you of the conclusions contained in this report. Complaint conclusions will be
fairly consistent regarding this matter. We are instructing our complaint investigators that when the
school district is required to provide parents with a written notice of the district's proposal or the
district's refusal of a parent's proposal (whether oral or written) under K.S.A. 72-988(b)(2) (regarding
the initiation, or a change of, identification, evaluation, placement or the provision of FAPE to a child
with an exceptionality), unless there is some unusual circumstance, a reasonable time in which to
provide such notice to the parents is 15 school days.
February 2008
Appendix A, Figure 1-4
Kansas Special Education Process Handbook
PRIOR WRITTEN NOTICE FOR EVALUATION OR REEVALUATION
AND REQUEST FOR CONSENT
To
(Parent/Legal Educational Decision Maker)
Date
On behalf of
__________________________________
(Student's Name)
Address
The [LEA] has been requested, or proposes, to complete the following action to consider your child's needs for special
education services. Please review the items marked. If you have questions, please feel free to discuss them with the [LEA]
education staff.
A. SPECIAL EDUCATION ACTION PROPOSED:
1
.
The [ LEA ] proposes to conduct an initial evaluation.
(Parental Consent Required)
□
(a)
The team is proposing to conduct an initial
evaluation of your child. Included in the evaluation are
assessment tools and strategies (e.g. record reviews,
interviews, observations, tests, your child’s response to
scientific research-based interventions, and information
provided by you). Information will be collected in the areas
checked on the following page that provide relevant
information that directly assist the team in determining:
(a) whether your child is a child with an exceptionality and
the educational needs of your child;
(b) the present levels of academic achievement and related
developmental needs of your child; and
(c) whether your child needs special education and related
services
.
□
(b) No additional information is needed.
Based on a
review of currently available information, it has been
determined that no additional data are needed to conduct
the initial evaluation as described above. Existing
information will be used that will provide relevant
information that will directly assist the team in determining
the educational needs of your child in the areas checked
below.
However, you have the right to request that an assessment
be completed. If you want such an assessment to be
conducted, please contact the following school
representative within 10 school days:
_____________________________________________
School contact
_____________________________________________
Phone
2
.
The [ LEA ] proposes to conduct a reevaluation.
(Parental consent required)
□
(a)
The team is proposing to conduct a reevaluation of
your child. Included in the reevaluation are assessment
tools and strategies (e.g. record reviews, interviews,
observations, tests, your child’s response to scientific
research-based interventions, and information provided by
you). Information will be collected in the areas checked on
the following page that provide relevant information that
directly assist the team in determining:
(a) whether your child continues to be a child with an
exceptionality and the educational needs of your child;
(b) the present levels of academic achievement and related
developmental needs of your child;
(c) whether your child needs special education and related
services; and
(d) whether any additions or modifications to the special
education and related services are needed to enable your
child to meet the measurable annual goals set out in the IEP
of your child and to participate, as appropriate, in the
general
education curriculum.
□
(b) No additional information is needed.
Based on a
review of currently available information, it has been
determined that no additional data are needed to conduct
the reevaluation as described above. Existing information
will be used that will provide relevant information that will
directly assist the team in determining the educational needs
of your child in the areas checked below.
However, you have the right to request that an assessment
be completed. If you want such an assessment to be
conducted, please contact the following school
representative within 10 school days:
_____________________________________________
School contact
_____________________________________________
Phone
KSDE, June 2007
February 2008
Appendix A, Figure 1-5a
Kansas Special Education Process Handbook
1
New
Data
Existing
Data
□
□
Health/Motor Ability -
May include assessment of gross and fine motor skills, and/or evidence of disease or injury. Assessment may
also include laterality, directionality, balance, kinesthetic skills, tactile skills, or ambulatory/postural problems.
□
□
Vision -
May include assessment of near and far point visual acuity, eye muscle control, depth perception, color
blindness and orientation/mobility skills.
□
□
Hearing -
May include assessment of acuity for pure-tones and speech, middle ear function, central auditory processing
skills and the need for/use of amplification.
□
□
Social/Emotional Status/Behavioral Status -
May include assessment of social/emotional/behavioral development in relation to the child’s learning,
interpersonal relationships, feelings and/or physical symptoms. May include a functional behavioral
assessment or evaluation to determine appropriate positive behavioral supports.
□
□
General Intelligence –
May include assessment of general cognitive abilities including the child’s rate of learning, problem solving
skills, level of conceptual understanding, use of cognitive strategies and/or ability to reason and/or generalize.
□
□
Academic Performance –
May include assessment of academic or preacademic skills and achievement levels in relation to the general
curriculum such as oral or written expression, reading skills or comprehension, mathematical calculation or
reasoning. For a child who is blind or visually impaired, the need for Braille instruction may be assessed.
□
□
Communicative Status –
May include assessment of the child’s ability to convey and comprehend information and social intent,
including skills such as expressive and receptive language, articulation, voice, fluency, or augmentative
communication. For a child who is deaf or hard of hearing, consideration of the child’s language and
communication may be assessed.
□
□
Transition Skills –
May include appropriate transition assessment related to training, education, employment, courses of study,
and where appropriate, independent living skills.
□
□
Other Specify:
□
3. The [LEA] refuses to conduct an evaluation. (Parental Consent Not Required)
□
4. The [LEA] refuses to conduct a reevaluation. (Parental Consent Not Required)
KSDE, June 2007
February 2008
Appendix A, Figure 1-5a
Kansas Special Education Process Handbook
2
B. EXPLANATION OF WHY THE ACTION IS PROPOSED OR REFUSED:
C. OPTIONS CONSIDERED AND WHY THE OPTIONS WERE REJECTED:
D. DESCRIPTION OF THE DATA USED AS BASIS FOR THE PROPOSED OR REFUSED ACTION:
(including each evaluation procedure, assessment, record or report used as a basis for the proposed or refused action
)
E. OTHER FACTORS CONSIDERED RELEVENT TO THE PROPOSED OR REFUSED ACTION:
PROCEDURAL SAFEGUARDS TO PROTECT PARENT'S RIGHTS
Both state and federal laws concerning the education of children with exceptionalities include many parental rights.
Receiving notices of action the school wants to take in regard to your child and being a part of your child's educational
planning team are examples of your rights. These laws also require that the school follow certain procedures to make
sure you know your rights and have an opportunity to exercise those rights.
You received a copy of your rights when the initial referral for evaluation was made. You should carefully read them
and, if you have any questions regarding your rights or if you wish to receive an additional copy of your rights, you may
contact the school representative listed below.
ADDITIONAL INFORMATION
You may contact any of the following resources to help you understand the federal and state laws for educating children
with exceptionalities and parental rights (procedural safeguards) granted by those laws:
Kansas State Dept. of Education 800-203-9462
Disability Rights Center of Kansas (DRC): (877) 776-1541
Families Together, Inc. 800-264-6343
Keys for Networking 785-233-8732
Other Local Resources:
KSDE, June 2007
February 2008
Appendix A, Figure 1-5a
Kansas Special Education Process Handbook
3
CONSENT FOR SPECIAL EDUCATION ACTION
If the above information is correct, we ask that you give us consent to carry out special education action as indicated. Any
disagreement we have regarding any of the above matters may be resolved by our mutual agreement, through mediation or
through due process proceedings. An explanation of mediation and due process proceedings is provided upon request.
The proposed action(s) may begin immediately upon receiving your written permission. If this is an initial evaluation your
consent initiates a 60 school day timeline that, if your child is eligible, will conclude with your consent to implement
special education and related services according to an IEP.
Please indicate your consent to the special education action listed below. Sign, date, and return this form to:
_______________________________________________________at__________________________________________
(School Contact Person)
(Phone)
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT
□
I have been fully informed
of all information relevant to the proposed evaluation regarding my child. I understand the
proposed action. If this is an initial evaluation, I have been provided a copy of my parental rights (procedural
safeguards). If this is a reevaluation, I understand that I have a right to request a copy of my parental rights.
GIVE CONSENT
□
I
give consent for the evaluation or reevaluation specified in this notice for my child.
I understand this consent is voluntary and may be revoked at any time.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
DO NOT GIVE CONSENT
□
I
do not give consent for the evaluation or reevaluation specified in this notice for my child.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
REASON(S) FOR NOT GIVING CONSENT FOR THE PROPOSED ACTION(S):
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
KSDE, June 2007
February 2008
Appendix A, Figure 1-5a
Kansas Special Education Process Handbook
4
KSDE, July 2007
February 2008
Appendix A, Figure 1-5b
Kansas Special Education Process Handbook
1
PRIOR WRITTEN NOTICE FOR INITIAL EVALUATION
AND REQUEST FOR CONSENT <school year>
To
(Parent/Legal Educational Decision Maker)
Date
On behalf of
__________________________________
(Student's Name)
Address
The [LEA] has been requested, or proposes, to complete the following action to consider your child's needs for special
education services. Please review the items marked. If you have questions, please feel free to discuss them with the [LEA]
education staff.
A. SPECIAL EDUCATION ACTION PROPOSED
:
1
.
The [ LEA ] proposes to conduct an initial evaluation. (Parental Consent Required)
□
(a)
The team is proposing to conduct an initial evaluation of your child. Included in the evaluation are assessment
tools and strategies (e.g. record reviews, interviews, observations, tests, your child’s response to scientific research-
based interventions, and information provided by you). Information will be collected in the areas checked on the
following page that provide relevant information that directly assist the team in determining:
(a) whether your child is a child with an exceptionality and the educational needs of your child;
(b) the present levels of academic achievement and related developmental needs of your child; and
(c) whether your child needs special education and related services.
□
(b) No additional information is needed.
Based on a review of currently available information, it has been
determined that no additional data are needed to conduct the initial evaluation as described above. Existing
information will be used that will provide relevant information that will directly assist the team in determining the
educational needs of your child in the areas checked below.
However, you have the right to request that an assessment be completed. If you want such an assessment to be
conducted, please contact the following school representative within 10 school days:
_____________________________________________
School contact
_____________________________________________
Ph
one
[will only display (a) or (b) verbiage depending on which is selected]
KSDE, July 2007
February 2008
Appendix A, Figure 1-5b
Kansas Special Education Process Handbook
2
Data
Requested.
□
Health/Motor Ability -
May include assessment of gross and fine motor skills, and/or evidence of disease or injury. Assessment
may also include laterality, directionality, balance, kinesthetic skills, tactile skills, or ambulatory/postural
problems.
□
Vision -
May include assessment of near and far point visual acuity, eye muscle control, depth perception, color
blindness and orientation/mobility skills.
□
Hearing -
May include assessment of acuity for pure-tones and speech, middle ear function, central auditory
processing skills and the need for/use of amplification.
□
Social/Emotional Status/Behavioral Status -
May include assessment of social/emotional/behavioral development in relation to the child’s learning,
interpersonal relationships, feelings and/or physical symptoms. May include a functional behavioral
assessment or evaluation to determine appropriate positive behavioral supports.
□
General Intelligence –
May include assessment of general cognitive abilities including the child’s rate of learning, problem solving
skills, level of conceptual understanding, use of cognitive strategies and/or ability to reason and/or
generalize.
□
Academic Performance –
May include assessment of academic or preacademic skills and achievement levels in relation to the general
curriculum such as oral or written expression, reading skills or comprehension, mathematical calculation or
reasoning. For a child who is blind or visually impaired, the need for Braille instruction may be assessed.
□
Communicative Status –
May include assessment of the child’s ability to convey and comprehend information and social intent,
including skills such as expressive and receptive language, articulation, voice, fluency, or augmentative
communication. For a child who is deaf or hard of hearing, consideration of the child’s language and
communication may be assessed.
□
Transition Skills –
May include appropriate transition assessment related to training, education, employment, courses of study,
and where appropriate, independent living skills.
□
Other Specify:
□
3. The [LEA] refuses to conduct an evaluation. (Parental Consent Not Required)
[question 3 is only displayed when the user indicates that the request is being refused]
KSDE, July 2007
February 2008
Appendix A, Figure 1-5b
Kansas Special Education Process Handbook
3
B. EXPLANATION OF WHY THE ACTION IS <PROPOSED / REFUSED>:
[the term <Proposed / Refused> indicates that the appropriate word will be inserted in the question]
C. OPTIONS CONSIDERED AND WHY THE OPTIONS WERE REJECTED:
D. DESCRIPTION OF THE DATA USED AS BASIS FOR THE <PROPOSED / REFUSED> ACTION:
(including each evaluation procedure, assessment, record or report used as a basis for the proposed or refused action
)
E. OTHER FACTORS CONSIDERED RELEVENT TO THE <PROPOSED / REFUSED> ACTION:
PROCEDURAL SAFEGUARDS TO PROTECT PARENT'S RIGHTS
Both state and federal laws concerning the education of children with exceptionalities include many parental rights.
Receiving notices of action the school wants to take in regard to your child and being a part of your child's educational
planning team are examples of your rights. These laws also require that the school follow certain procedures to make
sure you know your rights and have an opportunity to exercise those rights.
A copy of your rights is included with this initial referral for evaluation. You should carefully read them and, if you
have any questions regarding your rights or if you wish to receive an additional copy of your rights, you may contact the
school representative listed below.
ADDITIONAL INFORMATION
You may contact any of the following resources to help you understand the federal and state laws for educating children
with exceptionalities and parental rights (procedural safeguards) granted by those laws:
Kansas State Dept. of Education 800-203-9462
Disability Rights Center of Kansas (DRC): (877) 776-1541
Families Together, Inc. 800-264-6343
Keys for Networking 785-233-8732
Other Local Resources:
KSDE, July 2007
February 2008
Appendix A, Figure 1-5b
Kansas Special Education Process Handbook
4
CONSENT FOR SPECIAL EDUCATION ACTION
If the above information is correct, we ask that you give us consent to carry out special education action as indicated. Any
disagreement we have regarding any of the above matters may be resolved by our mutual agreement, through mediation or
through due process proceedings. An explanation of mediation and due process proceedings is provided upon request.
The proposed action(s) may begin immediately upon receiving your written permission. Your consent initiates a 60 school
day timeline that, if your child is eligible, will conclude with your consent to implement special education and related
services.
Please indicate your consent to the special education action listed below. Sign, date, and return this form to:
_______________________________________________________at__________________________________________
(School Contact Person)
(Phone)
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT
□
I have been fully informed
of all information relevant to the proposed evaluation regarding my child. I understand the
proposed action. As this is an initial evaluation, I have been provided a copy of my parental rights (procedural
safeguards).
GIVE CONSENT
□
I
give consent for the evaluation specified in this notice for my child.
I understand this consent is voluntary and may be revoked at any time.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
DO NOT GIVE CONSENT
□
I
do not give consent for the evaluation specified in this notice for my child.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
REASON(S) FOR NOT GIVING CONSENT FOR THE PROPOSED ACTION(S):
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
KSDE, July 2007
February 2008
Appendix A, Figure 1-5c
Kansas Special Education Process Handbook
1
PRIOR WRITTEN NOTICE FOR REEVALUATION
AND REQUEST FOR CONSENT <school year>
To
(Parent/Legal Educational Decision Maker)
Date
On behalf of
__________________________________
(Student's Name)
Address
The [LEA] has been requested, or proposes, to complete the following action to consider your child's needs for special
education services. Please review the items marked. If you have questions, please feel free to discuss them with the [LEA]
education staff.
A. SPECIAL EDUCATION ACTION PROPOSED:
2
.
The [ LEA ] proposes to conduct a reevaluation. (Parental consent required)
□
(a)
The team is proposing to conduct a reevaluation of your child. Included in the reevaluation are assessment
tools and strategies (e.g. record reviews, interviews, observations, tests, your child’s response to scientific research-
based interventions, and information provided by you). Information will be collected in the areas checked on the
following page that provide relevant information that directly assist the team in determining:
(a) whether your child continues to be a child with an exceptionality and the educational needs of your child;
(b) the present levels of academic achievement and related developmental needs of your child;
(c) whether your child needs special education and related services; and
(d) whether any additions or modifications to the special education and related services are needed to enable your child
to meet the measurable annual goals set out in the IEP of your child and to participate, as appropriate, in the general
education curriculum.
□
(b) No additional information is needed.
Based on a review of currently available information, it has been
determined that no additional data are needed to conduct the reevaluation as described above. Existing information
will be used that will provide relevant information that will directly assist the team in determining the educational
needs of your child in the areas checked below.
However, you have the right to request that an assessment be completed. If you want such an assessment to be
conducted, please contact the following school representative within 10 school days:
_____________________________________________
School contact
_____________________________________________
Phone
[will display only (a) or (b) verbiage depending on which is selected]
KSDE, July 2007
February 2008
Appendix A, Figure 1-5c
Kansas Special Education Process Handbook
2
New
Data
Existing
Data
□
□
Health/Motor Ability -
May include assessment of gross and fine motor skills, and/or evidence of disease or injury. Assessment may
also include laterality, directionality, balance, kinesthetic skills, tactile skills, or ambulatory/postural problems.
□
□
Vision -
May include assessment of near and far point visual acuity, eye muscle control, depth perception, color
blindness and orientation/mobility skills.
□
□
Hearing -
May include assessment of acuity for pure-tones and speech, middle ear function, central auditory processing
skills and the need for/use of amplification.
□
□
Social/Emotional Status/Behavioral Status -
May include assessment of social/emotional/behavioral development in relation to the child’s learning,
interpersonal relationships, feelings and/or physical symptoms. May include a functional behavioral
assessment or evaluation to determine appropriate positive behavioral supports.
□
□
General Intelligence –
May include assessment of general cognitive abilities including the child’s rate of learning, problem solving
skills, level of conceptual understanding, use of cognitive strategies and/or ability to reason and/or generalize.
□
□
Academic Performance –
May include assessment of academic or preacademic skills and achievement levels in relation to the general
curriculum such as oral or written expression, reading skills or comprehension, mathematical calculation or
reasoning. For a child who is blind or visually impaired, the need for Braille instruction may be assessed.
□
□
Communicative Status –
May include assessment of the child’s ability to convey and comprehend information and social intent,
including skills such as expressive and receptive language, articulation, voice, fluency, or augmentative
communication. For a child who is deaf or hard of hearing, consideration of the child’s language and
communication may be assessed.
□
□
Transition Skills –
May include appropriate transition assessment related to training, education, employment, courses of study,
and where appropriate, independent living skills.
□
□
Other Specify:
□
3. The [LEA] refuses to conduct a reevaluation. (Parental Consent Not Required)
KSDE, July 2007
February 2008
Appendix A, Figure 1-5c
Kansas Special Education Process Handbook
3
B. EXPLANATION OF WHY THE ACTION IS <PROPOSED / REFUSED>:
[the term <Proposed / Refused> indicates that the appropriate word will be inserted in the question]
C. OPTIONS CONSIDERED AND WHY THE OPTIONS WERE REJECTED:
D. DESCRIPTION OF THE DATA USED AS BASIS FOR THE <PROPOSED / REFUSED> ACTION:
(including each evaluation procedure, assessment, record or report used as a basis for the proposed or refused action
)
E. OTHER FACTORS CONSIDERED RELEVENT TO THE <PROPOSED / REFUSED> ACTION:
PROCEDURAL SAFEGUARDS TO PROTECT PARENT'S RIGHTS
Both state and federal laws concerning the education of children with exceptionalities include many parental rights.
Receiving notices of action the school wants to take in regard to your child and being a part of your child's educational
planning team are examples of your rights. These laws also require that the school follow certain procedures to make
sure you know your rights and have an opportunity to exercise those rights.
You received a copy of your rights when the initial referral for evaluation was made. You should carefully read them
and, if you have any questions regarding your rights or if you wish to receive an additional copy of your rights, you may
contact the school representative listed below.
ADDITIONAL INFORMATION
You may contact any of the following resources to help you understand the federal and state laws for educating children
with exceptionalities and parental rights (procedural safeguards) granted by those laws:
Kansas State Dept. of Education 800-203-9462
Disability Rights Center of Kansas (DRC): (877) 776-1541
Families Together, Inc. 800-264-6343
Keys for Networking 785-233-8732
Other Local Resources:
KSDE, July 2007
February 2008
Appendix A, Figure 1-5c
Kansas Special Education Process Handbook
4
CONSENT FOR SPECIAL EDUCATION ACTION
If the above information is correct, we ask that you give us consent to carry out special education action as indicated. Any
disagreement we have regarding any of the above matters may be resolved by our mutual agreement, through mediation or
through due process proceedings. An explanation of mediation and due process proceedings is provided upon request. The
proposed action(s) may begin immediately upon receiving your written permission.
Please indicate your consent to the special education action listed below. Sign, date, and return this form to:
_______________________________________________________at__________________________________________
(School Contact Person)
(Phone)
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT
□
I have been fully informed
of all information relevant to the proposed evaluation regarding my child. I understand the
proposed action. As this is a reevaluation, I understand that I have a right to request a copy of my parental rights.
GIVE CONSENT
□
I
give consent for the reevaluation specified in this notice for my child.
I understand this consent is voluntary and may be revoked at any time.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
DO NOT GIVE CONSENT
□
I
do not give consent for the reevaluation specified in this notice for my child.
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
________________________________________________ Date____________________________
(Parent/Legal Education Decision Maker)
REASON(S) FOR NOT GIVING CONSENT FOR THE PROPOSED ACTION(S):
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
_______________________________________________________________________________________
KSDE
Page 1
February 2008
Appendix A, Figure 1-6
Kansas Special Education Process Handbook
PRIOR WRITTEN NOTICE
for
IDENTIFICATION,
SPECIAL EDUCATION AND RELATED SERVICES,
EDUCATIONAL PLACEMENT,
CHANGE IN SERVICES,
CHANGE IN PLACEMENT, AND
REQUEST FOR CONSENT
To
(Parent/Legal Educational Decision Maker)
Date
On behalf of
(Student's Name)
Address
On
, we met to review the evaluation/assessment data on your child, including any
evaluations or information you provided, current classroom-based assessments and observations, and teacher or other staff
observations to determine, with your input:
□
Whether your child was eligible for special education
□
Special education and related services needed by your child
□
The appropriate educational placement to provide special education and related services identified in your child’s
Individualized Education Program (IEP)
□
Any additions, changes or modifications to the special education and related services or educational placement that are
needed to enable your child to meet the measurable annual goals set in the IEP and to participate, as appropriate, in the
general curriculum.
To the maximum extent appropriate, your child is to be educated with other children in the general education classroom.
Your child shall be removed from the general educational environment only when the nature or severity of his/her needs are
such that education in general education classes, with support services, cannot be achieved satisfactorily. If services are not
to be provided in the general education classroom, the reasons for that are given below, along with the results of our meeting.
□
A. IDENTIFICATION/ ELIGIBILITY (Parental Consent Not Required)
□
YOUR CHILD
IS
ELIGIBLE FOR SPECIAL EDUCATION
□
Your child meets the criteria as a child with an exceptionality
and
□
Special education services are necessary to enable your child to receive educational benefits in accordance with
his/her abilities or capabilities
□
YOUR CHILD
IS NOT
ELIGIBLE FOR SPECIAL EDUCATION
□
Your child does not meet the criteria as a child with an exceptionality.
or
□
Special education services are not necessary to enable your child to receive educational benefits in accordance
with his/her abilities or capabilities
□
B. SPECIAL EDUCATION & RELATED SERVICES (Parental Consent Required)
As explained below, an Individualized Education Program (IEP) proposing appropriate Special Education and related
services was written for your child.
KSDE
Page 2
February 2008
Appendix A, Figure 1-6
Kansas Special Education Process Handbook
□
C. EDUCATIONAL PLACEMENT (Parental Consent Required)
As explained below, an Individualized Education Program (IEP) proposing an appropriate instructional environment for
delivering special education and related services was written for your child.
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
□
D. CHANGE IN SERVICES
□
CHANGE IN SERVICES (Parental Consent Not Required)
As explained below, we are proposing a change (not a material change) of a special education service, a related
service, or a supplementary aid or service specified on your child’s IEP.
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
or
□
MATERIAL CHANGE IN SERVICES (Parental Consent Required)
As explained below, we are proposing a change that results in a decrease or increase of 25% or more of the duration or
frequency of a special education service, a related service ,or a supplementary aid or a service specified on your child's
IEP.
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
□
E. CHANGE IN PLACEMENT
□
CHANGE IN PLACEMENT (Parental Consent Not Required)
As explained below, we are proposing a change (not a substantial change) in placement from a less restrictive
environment to a more restrictive environment, or from a more restrictive environment to a less restrictive
environment.
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
or
□
SUBSTANTIAL CHANGE IN PLACEMENT (Parental Consent Required)
As explained below, we are proposing a change in placement that results in the movement of more than 25% of your
child's school day from a less restrictive environment to a more restrictive environment, or from a more restrictive
environment to a less restrictive environment.
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
_________________________________________________________________________________________
□
F. THE [LEA] REFUSES TO INITIATE OR CHANGE THE IDENTIFICATION,
EVALUATION
,
EDUCATIONAL PLACEMENT, OR PROVISION OF SPECIAL EDUCATION AND RELATED SERVICES
AS EXPLAINED BELOW. (Parental Consent Not
Required)
KSDE
Page 3
February 2008
Appendix A, Figure 1-6
Kansas Special Education Process Handbook
1) A DESCRIPTION OF THE ACTION PROPOSED OR REFUSED:
2) EXPLANATION OF WHY THE ACTION IS PROPOSED OR REFUSED:
3) OPTIONS CONSIDERED AND WHY THE OPTIONS WERE REJECTED:
4) DESCRIPTION OF THE DATA USED AS BASIS FOR THE PROPOSED OR REFUSED ACTION
(
including each evaluation procedure, assessment, record or report used as a basis for the proposed or refused action
):
5) OTHER FACTORS RELEVANT TO THE PROPOSAL OR REFUSAL (e.g. LRE, harmful effects):
ADDITIONAL INFORMATION
You may contact any of the following resources to help you understand the federal and state laws for educating children with
exceptionalities and parental rights (procedural safeguards) granted by those laws:
Kansas State Dept. of Education 800-203-9462
Disability Rights Center of Kansas (DRC): (877) 776-1541
Families Together, Inc. 800-264-6343
Keys for Networking 785-233-8732
Other Local Resources:
KSDE
Page 4
February 2008
Appendix A, Figure 1-6
Kansas Special Education Process Handbook
PROCEDURAL SAFEGUARDS TO PROTECT PARENT’S RIGHTS
Both state and federal laws concerning the education of children with exceptionalities include many parental rights.
Receiving notices of action the school wants to take in regard to your child and being a part of your child’s educational
planning team are examples of the rights these laws give you. These laws also require that the school follow certain
procedures to make sure you know your rights and have an opportunity to exercise those rights.
To receive an additional copy of your rights and the procedural safeguards available to you, and if you have any questions
regarding your rights, you may contact the school representative listed below:
REQUEST FOR CONSENT FOR SPECIAL EDUCATION ACTION
If the above statements are correct, we ask that you give us consent to carry out the special education action as indicated.
Any disagreement we have regarding any of the above matters may be resolved by our mutual agreement, through mediation
or through due process proceedings. An explanation of mediation and due process proceedings is provided upon request.
The proposed action(s) will begin within 10 school days (unless there is a reasonable justification for delay) upon receiving
your written permission. If you have any questions regarding this notice, you may contact the following school representative
or
sign and date this form and return it to:
___________________________________ at __________________________________ or _____________________
(School Contact)
(Address)
(Phone)
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT
□
I have been fully informed
of all information relevant to the proposed actions specified for my child in this notice. I
understand the actions proposed. I understand my parental rights (procedural safeguards). In the case of an initial
evaluation or reevaluation, I have received a copy of my child’s evaluation report.
CONSENT
□
I
give
consent for the special education
placement and
services action
s
in this notice for my child. I understand
this consent is voluntary and may be revoked at any time.
_______________________________________________________
Date _______________________________
(Parent/Legal Education Decision Maker)
_______________________________________________________
Date _______________________________
(Parent/Legal Education Decision Maker)
DO NOT GIVE
CONSENT
□
I
do not give
consent for the special education services action in this notice for my child.
______________________________________________________
Date _______________________________
(Parent/Legal Education Decision Maker)
______________________________________________________
Date _______________________________
(Parent/Legal Education Decision Maker)
KSDE, July 2007
Page 1
February 2008
Appendix A, Figure 1-7
Kansas Special Education Process Handbook
NOTICE OF MEETING
2007-2008
To:_________________________________________
(Parent/Legal Educational Decision Maker)
Date:
__________________________________
On be half of:
________________________________
(Student’s name)
Address:
_______________________________
_______________________________________
P
roposed meeting date, time and place:____________________________________________________
______________________________________________________________________________________
MEETING TO REVIEW THE EVALUATION AND DETERMINE ELIGIBILITY
□
The results of the evaluation or reevaluation of your child are now available. By law, we must meet with you to
review the evaluation results for your child, including any evaluations or information you wish to provide, current
classroom-based assessments and observations, and teacher or other staff observations, to determine, with your
input:
1) your child’s academic achievement, functional performance
,
and educational needs;
2) whether your child has
or continues to have an exceptionality; and
3) whether your child needs special education and related services.
MEETING TO DEVELOP THE INDIVIDUALIZED EDUCATION PROGRAM (IEP)
□
As the parent of an exceptional child, you are entitled to a 10-day prior written notice of any meeting to
discuss the needs of your child and develop an individualized education program (IEP). You may consent to
hold the meeting with less than 10-days written notice.
If it is determined that your child is eligible, or continues to be eligible, for special education and related services, the
IEP team will develop an individualized education program (IEP) for your child and determine the appropriate
placement.
The team will make its decisions based upon the results of the evaluation procedures which we previously told you
we would administer in the Notice of Proposed Evaluation and Request for Consent, which you signed. The team
will also consider the strengths of your child and any recommendations you have for enhancing the education of
your child.
□
Discuss possible changes in your child's individualized education program (IEP).
□
Conduct an annual review of your child's individualized education program (IEP).
□
If your child will be at least 14 years old during the anticipated duration of this IEP, the IEP team will develop
postsecondary goals and transition services to promote movement from school to post school activities.
Postsecondary goals and transition services can be considered at a younger age if determined appropriate by the IEP
Team. Your child is invited by the school to attend the meeting.
□
Other
As required by federal and state law, in addition to you, we will have the following people at our IEP meeting:
1. A general education teacher of your child;
2. A special education teacher of your child;
3. A school representative;
4. If this is an initial IEP, a representative of the Part C system (Early Intervention Program for Infants and
Toddlers with Disabilities) if your child is transitioning from Part C to Part B, and you have requested
participation of a Part C representative.
KSDE, July 2007
Page 2
February 2008
Appendix A, Figure 1-7
Kansas Special Education Process Handbook
4. Student____________________________________________________________________________As required
by federal and state regulations, the district invites your son/daughter to attend the IEP meeting when postsecondary goals and
transition services will be considered. Postsecondary goals and transition services can be considered at any age, but must be
included in the first IEP to be in effect when your child reaches age 14.
Other(s) who can help explain the evaluation results or who have knowledge or special expertise regarding your child or
services that may be needed.
___________________________________________(position) ___________________________________(position )
___________________________________________(position) ___________________________________(position )
If necessary, and with your consent, staff from other agencies that may be able to provide appropriate transition
services/linkages will be invited to our meeting. The agencies they represent are shown below:
______________________________________________ _________________________________________________
It is very important that the parents, or you as the student, if age 18 or over, attend this meeting. Parents may invite their
minor child to this meeting. Students age 18 or over may invite their parents. Also, you have a right to bring one or more
persons with you who are knowledgeable about the needs of the student. If an evaluation has been conducted, you may
review all of the evaluation results before we have our meeting. A copy of the evaluation report will be given to you.
If the above date, time or place is not agreeable to you, or if you would like to schedule an appointment to review the
evaluation results, please contact
__________________________________________________at____________________________________immediately.
(School Contact)
(Phone)
PROCEDURAL SAFEGUARDS TO PROTECT PARENTS’ RIGHTS
Both state and federal laws concerning the education of children with exceptionalities include many parental rights.
Receiving notices of action the school wants to take in regard to your child and being a part of your child’s educational
planning team are examples of the rights these laws give you. These laws also require that the school follow certain
procedures to make sure you know your rights and have an opportunity to exercise those rights.
A copy of your rights is provided to you upon request, and at least once each year. You should carefully read them and,
if you have any questions regarding your rights, you may contact the school representative listed above.
ADDITIONAL INFORMATION
You may contact any of the following resources to help you understand the federal and state laws for educating children
with exceptionalities and parental rights (procedural safeguards) granted by those laws:
Kansas State Dept. of Education 800-203-9462
Disability Rights Center of Kansas (DRC): (877) 776-1541
Families Together, Inc. 800-264-6343
Keys for Networking 785-233-8732
Other Local Resources:
ACKNOWLEDGMENT
□
I plan to attend the meeting as scheduled
□
I am unable to attend the meeting as scheduled and I would like to schedule the meeting at another date, time or place.
I am available to attend a meeting on the following dates and times:
_______________________________________________________________________________
□
I consent to waive my right to a 10-day prior written notice of the meeting to develop, review or revise the IEP for my
child.
_____________________________________________________Date____________________________
(Parent/Legal Education Decision Maker)
____________________________________________________ Date_____________________________
(Parent/Legal Education Decision Maker)
February 2008
Appendix A, Figure 1-8
Kansas Special Education Process Handbook
February 2008
Appendix A, Figure 1-8
Kansas Special Education Process Handbook
February 2008
Appendix A, Figure 1-8
Kansas Special Education Process Handbook
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
JAN 2 3 2007
Margaret A. Smith, D. Ed
.
Superintendent of Schools
Volusia County Schools
P.O. Box 2410 729
Loomis Avenue
Daytona Beach, Florida 32115-2410
Dear Dr. Smith:
This is in response to your August 31, 2006 letter to the Office of Special Education Programs
(OSEP), regarding the parental consent requirements relating to accessing public benefits or
insurance in 34 CFR §300.154(d)(2)(iv)(A) of the final regulations for Part B of the Individuals
with Disabilities Education Act (Part B). I apologize for the delay in our response. In your
letter, you point out potential effects on local educational agencies (LEAs) if they are required
to obtain a separate consent from the parent each time access to Medicaid or other public
benefits or insurance is sought to pay for required special education and related services
provided to Medicaid-eligible children, and propose for our consideration the following
interpretation:
"Due to the very nature of IDEA and its requirements for an Individualized Education
Plan (IEP), interpretation of "each time that access to public benefits or insurance is sought"
should be consistent with the timeframe of the IEP. School districts should be allowed to
obtain consent at the initial development of the IEP and its subsequent reviews. Such an
interpretation would lessen what will be a paperwork burden to teachers, service providers and
public school systems."
We believe that permitting a public agency to obtain parent consent for a specified amount of
services for a specified period of time would be sufficient to enable parents to make an informed
decision as to whether to consent before a public agency can access their or their child's public
benefits or other public insurance.
This consent may be obtained one time for the specific services, and duration of services identified
in a child's individualized education program (IEP), and an LEA would not be required to
obtain a separate consent each time a Medicaid agency or other public insurer or public
program is billed for the provision of required services. For example, if it is known that a child
is to receive three hours per week of occupational therapy (OT) for 36 weeks, parents could be
asked to give consent to the public agency's billing of the parent's public benefits or insurance for
108 hours of service. While this type of consent may be obtained at an IEP meeting, it
could also be obtained at some point after the IEP is developed.
However, if the public agency seeks to use the child's or parents' public benefits or public
insurance to pay for additional hours of service (due to the IEP being revised) or the public
400 MARYLAND AVE., S.W., WASHINGTON, D.C. 20202
www.ed.gov
Our mission is to ensure equal access to education and to promote educational excellence throughout the Nation.
Page 2 - Margaret A. Smith, D.Ed.
agency is charging different amounts for such services, and would like to access the child's
or parents' benefits or insurance for those additional costs, the public agency must obtain
parental consent, covering the additional amount of service or costs to be charged to the
child's or parents' public benefits or public insurance.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
I hope that this information is helpful. If you have any questions regarding this letter, please
contact Dr. Deborah Morrow, at 202-245-7456.
Sincerely,
Alexa Posny, Ph.D.
Director
Office of Special Education
Programs
SAMPLE PUBLIC NOTICE
To:
Newspapers, radio, community bulletin boards, and etc.
From:
LEA
Re:
Special education child find
SEARCH TO FIND CHILDREN IN NEED OF
SPECIAL EDUCATION
The _________________________________________________ is seeking to identify every
student from birth through age 21 who lives within the boundaries
of ________________________________________ who has developmental delays or may be in
need of special education. If you have a child or know of a child who you think has development
delays or special needs, contact:
_______________________________________________________________,
Director of Special Education at _____________________________________
_______________________________________________________________
Areas of special education include: birth through age two (infant-toddler), early childhood -
disability, developmentally delayed, visual impairments including blindness, hearing
impairments including deafness, deaf-blindness, autism, traumatic brain injury, emotional
disturbance, specific learning disabilities, mental retardation, multiple disabilities, orthopedic
impairments, other health impairments, speech or language impairments, and gifted.
Parents are advised that all special education services are designed to offer the utmost in
educational opportunities for each qualifying student, as well as to provide assistance and
support in the areas of physical, mental, emotional, and social growth. State and federal laws are
followed in providing each student with a free appropriate public education in the least restrictive
environment. Call:
_______________________________________________________________
if you have a child or know of a child who may need special education services.
February 2008
Appendix A, Figure 2-1
Kansas Special Education Process Handbook
July 25, 2007
Project SPOT
General Education Interventions (GEI)
Component
Characteristics
Child Find:
Procedures ensuring the early
identification of students enrolled in public school
including screening and intervention for students ages
five through 21.
•
Intervene early for each student who is
presenting academic or behavioral concerns.
•
Utilizes observations, instruments, measures and
techniques that may disclose any potential
exceptionality.
General Education Interventions:
Except in rare
cases, interventions and strategies are implemented to
support each student’s presenting academic or
behavioral concerns, and only when the student’s
progress indicates a potential exceptionality should the
student be moved into initial evaluation for special
education.
•
School personnel have data-based
documentation which indicate an evaluation is
appropriate, or
•
School personnel have data-based
documentation that general education
interventions and strategies would be inadequate
to address the areas of concern for the child.
Data-based Documentation of General Education
Interventions:
Includes specific data as evidence the
student’s needs are beyond what general education
can provide and an evaluation is appropriate.
Specific Documentation:
•
that appropriate instruction was provided to the
student,
•
what educational interventions and strategies
have been implemented,
•
the results of repeated assessments of
achievement which reflect the formal
assessment of the student’s progress during
instruction,
•
that parents have been provided the results
•
the results indicate an evaluation is appropriate
Documentation when using School-Wide (RtI)
approach to General Education Interventions:
In
Kansas, schools may use either a school-wide multi-
tiered model of support or an individual student
problem-solving approach to carry out GEI. Schools
utilizing the school-wide approach need to ensure that
additional parent notification occurred.
Documents that parents were notified about:
•
the State’s policies regarding the amount and
nature of student performance data that would
be collected and the general education services
that would be provided,
•
the strategies for increasing the student’s rate of
learning, and
•
the parents’ right to request an evaluation.
It is recommended to schools that utilize a school-
wide approach that they publish information about
their system. Some ways to accomplish this
additional requirement might include providing
information to parents through methods such as:
•
Brochures that describe the school’s system
of supports
•
School or student handbooks
•
Annual child find notifications
Kansas
Policy
Statement
on
Multi
‐
Tiered
System
of
Supports
As
a
district
implementing
Multi
‐
Tier
System
of
Supports
(MTSS),
we
monitor
each
student’s
response
to
scientific,
research
‐
based
instruction
and
intervention
through
assessments
of
academic
achievement
and
behavior,
repeated
at
reasonable
intervals
to
gauge
individual
student
progress.
Instruction
and
interventions
provided
to
students
are
child
‐
centered,
delivered
by
qualified
personnel,
and
research
‐
based
to
the
extent
feasible.
At
any
time,
if
you
believe
your
child
may
have
an
exceptionality
you
have
the
right
to
request
an
evaluation
for
special
education.
For
your
reference
what
is
required
in
regulation…..
CFR 34 § 300.311 (a)
(7) If the child has participated in a process that assesses the child’s response to scientific,
research-based intervention—
(i) The instructional strategies used and the student-centered data collected; and
(ii) The documentation that the child’s parents were notified about—
(A) The State’s policies regarding the amount and nature of student performance
data that would be collected and the general education services that would be
provided;
(B) Strategies for increasing the child’s rate of learning; and
(C) The parents’ right to request an evaluation.
K.A.R. 91-40-7(c) (proposed)
(c) Any board may refer a child who is enrolled in public school for an evaluation if one of the
following conditions is met:
(1) School personnel have data-based documentation which indicates that general education
interventions and strategies would be inadequate to address the areas of concern for the child.
(2). School personnel have data-based documentation that indicates that prior to, or as a part of
the referral, the following were met;
A. The child was provided appropriate instruction in regular education settings that was
delivered by qualified personnel;
B. The child’s academic achievement was repeatedly assessed at reasonable intervals which
reflected formal assessment of the child’s progress during instruction;
C. The assessment results were provided to the child’s parents; and
D. The assessment results indicate an evaluation is appropriate.
February 2008
Appendix A, Figure 2-3
Kansas Special Education Process Handbook
Notice that No Additional Data are Needed
Evaluation or Reevaluation
To_________________________________________
(Parent/Legal Educational Decision Maker)
Date________________________________________
On behalf of __________________________________
(student's name)
Address______________________________________
As part of the evaluation/reevaluation of your child, the team conducted a review of currently
available information, and concluded that no additional data are needed to determine:
(a) the present levels of academic achievement and related developmental needs
of your child;
(b) the educational needs of your child; and
(c) whether your child is a child with an exceptionality and needs special
education and related services.
Included in the review were assessment tools and strategies (e.g. record reviews, interviews,
observations, tests, and the student’s response to scientific research-based interventions, and
information provided by you) that provide relevant information that directly assist the team in
determining the educational needs of your child.
However, you have the right to request that an assessment be completed to determine whether
your child continues to be a child with an exceptionality, and/or to determine your child’s
educational needs. If you want such an assessment to be conducted, please contact the
following person within 10 school days:
_____________________________________________
School contact
_____________________________________________
Phone
KSDE, March 2007
February 2008
Appendix A, Figure 3-3
Kansas Special Education Process Handbook
Fall, 2007
Eligibility Indicators
Fall, 2007
Version 4.0 (a revision to the September, 2001 version)
A copy of this document may be downloaded by accessing the KSDE Special Education Services web page:
www.kansped.org
This guidance document will continue to be a working document
and will be periodically updated based on input from its use in t
he field.
page 1
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Table of Contents
Eligibility De
termination......................................................................................................
.......................... 3
Examples of S
ources of Data....................................................................................................
................... 6
Autism.........................................................................................................................
.................................. 7
Developmental Dela
y (age 9 and
younger)........................................................................................
........... 9
Emotional Di
sturbance..........................................................................................................
Gifted.........................................................................................................................
................................. 13
Learning Disa
bility............................................................................................................
.......................... 15
Mental Reta
rdation.............................................................................................................
........................ 18
Multiple Di
sabilit
ies..........................................................................................................
........................... 20
Orthopedic Im
pairm
ent..........................................................................................................
..................... 22
Other Health
Impai
rment........................................................................................................
.................... 24
Sensory Im
pairments............................................................................................................
...................... 26
Hearing impairment, Deafness, Visual impairment,
Blindness
................................................................ 27
Deaf-blin
dness.................................................................................................................
....................... 28
Speech Language
Impairm
ent.....................................................................................................
............... 31
Traumatic Br
ain In
jury.........................................................................................................
........................ 33
Reporting Requi
rements.........................................................................................................
.................... 35
page 2
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
This document contains information about e
ligibility determination, appropriate sources of data, and includes Federal and State
definitions of each
exceptionality area. It also pr
ovides information regarding exclusionary factor
s that must be considered and examples of indic
ators
of eligibility to assist
school personnel as they make decisions. The examples of indi
cators provided in this document should not be viewed as all-incl
usive. The purpose of the
document is to provide guidance to evaluation teams as they seek to address the two-
prong test of eligibility when determining
if a student is eligible for
special education. For further guidance and a more complete discuss
ion of the initial evaluation pr
ocess, see Chapter 3 in the Special Education Process
Handbook. This important resource may be viewed an
d downloaded by accessing
the following web page:
www.kansped.org
Eligibility Determination
The initial evaluation must include a variety of assessment tool
s and strategies to gather relevant functional, developmental a
nd academic information,
including information provided by the paren
t, that may assist in deter
mining whether the child is an exceptional child, the edu
cational needs of the child, and
the content of the child’s IEP, includi
ng information related to enabling the child to be involved, and progress in the general
education curriculum or, for
preschool children, to participate in approp
riate activities (K.S.A. 72-
986(b)(1)). When interpre
ting evaluation data for the
purpose of making an eligibility
determination, the team must ens
ure that the child meets the def
inition of one of the categories
of exceptionality and, as a re
sult of that exceptionality,
needs special education and related services (KAR 91-40-1(k)(w); 34
CFR 300.8). This is known as
the two-prong test of eligibi
lity. If a child meets the
definition of an exceptionality category
but does not need special education and re
lated services, s/he will not be determined to be eligible. If the child has
a need for special education and related services but does not m
eet the definition of an except
ionality category, s/he will not
be determined to be eligible.
In the case of a child who is found to have a disability, but
does not need special education and
related services, a referral
for a Section 504 evaluation may
be considered.
1. Determining Whether the Child
is a Child with an Exceptionality
"Exceptional children" means children with
disabilities and gifted childr
en (KAR 91-40-1 (w)). "Chi
ld with a disability" means
the following: (1) a child
evaluated as having mental reta
rdation, hearing impairments in
cluding deafness, speech or language
impairments, visual impairme
nts including blindness,
emotional disturbance, orthopedic im
pairments, autism, traum
atic brain injury, other health impai
rments, or specific learning d
isabilities, deaf-b
lindness, or
multiple disabilities, and who, by reason thereof, needs spec
ial education and related services; and (2) for children ages thre
e through nine, a child who is
experiencing developmental delays and, by
reason thereof, needs special education and rela
ted services ((KAR 91-40-1 (k); CFR 3
00).
When considering the first prong of
the two-prong test of eligibi
lity, the team reviews the init
ial evaluation an
d other data to determine whether or not the
child is a child with an exceptionality.
To do this, team members com
pare the data about the child to see if there is a match
to one of the exceptionality
categories defined in the regulations. Howe
ver, even when the data point to a particula
ity, there are exc
lusionary factors that must be
examined before determining the child is a ch
ild with an exceptionality.
page 3
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Regulations are very clear with
must NOT be determined to be a ch
(a)
the determinant factor is:
•
Lack of appropriate instruction in reading,
including the essential components of reading instruction (defined in section 1208(
3) of the
ESEA(NCLB) as phonemic awareness, phonics, vocabulary development, r
eading fluency including oral reading skills, and reading
comprehension strategies); or
•
Lack of appropriate instruction in math; or
•
Limited English proficiency; and
(b)
the child does not otherwise meet the e
ligibility criteria as a child with an e
xceptionality (KSA 72-
986(f); KAR 91-40-10(c);
34 CFR 300.306(b)).
In addition to these exclusionary factors wh
ich apply to all categories of exceptiona
lity, there are exclus
ionary factors speci
fic to certain disabilities that must
also be ruled out. Those factors are cont
ained in this document and guidance is provi
ded to assist teams in
their evaluation o
f these factors as they
determine eligibility.
If the evaluation data indicates t
here is a match with a particular category of
exceptionality and the team
has ruled out the p
resence of any exclusionary
factors, the team may determine
that the child meets one of the
requirements of eligibility as
a child with an exceptionality (
Prong 1 of the test of eligibility).
If there is not a match or excl
usionary factors are present, the
team must determine that the ch
ild does not meet the eligibili
ty of a child with an
exceptionality. However, being gifted or having a disability does
not necessarily qualify a child for special education servic
es. Thus teams must also
consider the component of the
definition which states: “and who, by reason t
hereof, needs special education and related service
s.”
2. Determining Whether the Child Need
s Special Education and Related Services
The second prong of the test of eligibilit
y is to determine whether or
not the child needs special
education and related servic
es as a result of the
exceptionality. It is helpful fo
r teams to remember that by
definition special education means
specially designed instruction
(KAR 91-40-1(kkk); 34 CFR
300.39(a)(1)), and, that specially designed instruction means adapt
ing the content, methodology or
delivery of instruction to a
ddress the unique needs of a
child that result from the child’s exceptionality to ensure a
ccess of the child to the general education curriculum in order to
meet the educational standards
that apply to all children (KAR 91-40-1 (lll
); 34 CFR 300.39(b)(3)(i-(ii)). This implie
s that in order to have a need for spec
ial education, the child has specific
needs which are so unique as to require
specially designed instruction in order to
access and progress in the general education
curriculum.
Kansas regulations at KAR 91-40-7(c)(1-2),
require that prior to refe
rral for an initial evaluation the school must have data-b
ased documentation of the
following: (1) having provided appropriate in
struction to the child in regular educat
ion settings that was delivered by qualifi
ed personnel (2) repeatedly
assessing the child’s academic achievement at reasonable interval
s which reflect formal assessment
of the child’s progress duri
ng instruction; (3) having
provided the assessment results to the child
’s parents; and, (4) that t
he assessment results indicate an evaluation is appropri
ate. Gone are the days where
school teams can simply indicate the interventions tried with
anecdotal remarks to indicate the need for evaluation. The data
collected prior to referral must
now be documented as indicated above and, if the child goes on for evaluation, that data becomes
an integral part
of the eligib
ility determination of need.
Whether the school is implementi
ng a system of school-wide multi-tiered model of intervention (MTSS) or uses an individual prob
lem solving approach
page 4
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
(SIT, SAT, CARE, etc.) to carry
out interventions and document the child’s progr
ess, the school will have data regarding the ch
ild’s needs related to the
intensity of instruction and supports r
equired for the child to be successful.
The team must review the eval
uation data in such a way as to understand the ext
ent of the child’s needs with regard to speciall
y designed instruction.
Teams should be able to use the data to de
scribe the intensity of the support needed to assist the child in accessing and progr
essing in the general
education curriculum. It is only through this discussion that
the team can determine whether
or not the child’s need for havin
g adapted content,
methodology, or delivery of instruction is so great that it cannot be provided withou
t the support of special education.
If the team determines that t
he child’s need for having adapted content, methodology,
or delivery of instruction is so great th
at it cannot be provided in
regular education without the support of s
pecial education, the team
may determine that the child needs special education and r
elated services (Prong 2 of
the eligibility test). If the data s
uggests the child’s needs for instruction
can
be provided within regular education
without
the support of special education
and related services, the team mu
st determine that the child is
not
in need of special education and related services.
page 5
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Examples of Sources of Data
1.
General Education Interventions or Results of
Data that the child was provided appropria
te instruction in general education setti
intervals, reflecting formal assessment of
child progress during instruction. Includes
records of interventions attempted and
monitoring and evaluation of interventions and data collected through screening measures.
2. Record Review
Information provided by the parents, current
classroom-based assessments, information from
previous services providers, prior s
creenings, previous
evaluations, reports from other agencies, portfolios, discipline records, cumulative f
ile, health records, portfolios, performa
nce in relationship to curricular
standards, and other records.
3. Interview (Parent and othe
r caregivers, Student, Teacher)
Parents, teachers, and the
child can all typically provide insight into areas
of strengths and needs. Interviews can also prov
ide information about
significant historical events in the child’s life as well as
about his performance in the classroom and other settings. May in
clude instructional history, social
history, medical information,
and/or developmental history.
4. Observation
Structured observations, rating scales, ecological instruments
(e.g., EBASS, TIES-II), behaviora
l interventions, functional ana
lysis of behavior and
instruction, anecdotal notes, and other observations (conducted by
parents, teachers, related services personnel, and others).
The purpose of the
observation is to help the evaluation team
understand the extent to whic
h the child’s skills are impacting his/her ability to participate and progress in a
variety of settings.
5. Tests
Standardized norm-referenced tests ar
e helpful if the information being sought is to
determine how a child compares to a nation
al group of children of the
same age or grade. Criterion-re
ference tests are helpful in det
ermining if the child has mastered skills expected of a certain age or grade level. Tests may
include individual measures of ability or
aptitude, curriculum-based assessments (e.g.,
CBA, CBM, or CBE), performance-based as
sessments (i.e., rubric
scoring), or other skill measures such as individual reading in
ventories. Diagnostic testing mi
ght include measures of reading
, math, written language, or
other academic skills, or tests of motor functioning, speech/language skills, adaptive behavior, or self-concept, or appropriat
e tests of any domain of
concern.
page 6
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Autism
KAR 91-40-1
(f) "Autism" means a developmental disability significantly affecting verbal and nonverbal communication and social interaction
, generally evident before age three but
not necessarily so, that adversely affects a child's educational
performance. Other characteristics often associated with autis
m are engagement in repetitive activities
and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory exp
eriences. The term shall not apply
if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 7
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
The term shall not apply if a child's educational performance is adversely affected
primarily because the child has an emotional disturbance.
The team should rule out the presence of an emotional disturbance. If the
data the team collects matches the indicators for emotional disturbance, the
student should be identified as a child with an emotional disturbance rather
than a child with autism.
Prong 1
: Does the child exhibit an exceptionality?
Examples of Indicators
Records contain medical information which provides evidence of autism
Record review, interview, and/or observations indicate student’s skills in verbal and nonverbal communication and social interaction are significantly different from
peers
Record review, interview, and/or observations provide information which substantiates student characteristics such as: engagem
ent in repetitive activities and
stereotyped movements; resistance to environmental change or change in daily routines; and unusual responses to sensory experie
nces which are significantly
different than peers.
Record review, interview and/or observations indicate concerns regarding the student’s communication and social interaction ski
lls were evident before age 3
Record review, interview and/or observation indicate that the student’s condition adversely impacts his/her educational perform
ance
Measures of the student’s communication and social skills indicate skill level is markedly below that of peers
Student progress monitoring data shows student’s educational performance is markedly below that of peers
Prong 2
: Does the child need special education?
Examples of Indicators
Student progress monitoring data indicates intense or sustained re
sources needed in order for student to demonstrate adequate p
rogress
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards in one or more areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions to address
communication, social interaction, and/or academic skills.
Student Progress monitoring data results of
increasingly customized and individually tailored instruction and intervention indi
cate that the student needs specially
designed instruction to access the general curriculum.
page 8
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Developmental Delay (age 9 and younger)
KAR 91-40-1
(q) “Developmental delay” means such a deviation from average dev
elopment in one or more of the following developmental areas t
hat special education and related
services are required:
(A) Physical;
(B) cognitive;
(C) adaptive behavior;
(D) communication; or,
(E) social or emotional development
The deviation from average development shall be documented and
measured by appropriate diagnostic instruments and procedures.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
page 9
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria for disabilities as defined in IDEA.
For example, frequent moves, etc.
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Prong 1
: Does the child exhibit an exceptionality?
Examples of Indicators
Records indicate student is age 9 or under
Rate of skill acquisition as measured by progress monitoring is markedly different from peers
Performance is significantly below developmental expectations as evidenced on a criterion referenced instrument in one or more
developmental areas
Performance is significantly below normative sample on a
standardized assessment in one or more developmental areas
Record review, interview, and/or observations demonstrate signif
icant deviation from average development in one or more develop
mental areas
Student performance is significantly lower than peers on one or more benchmark assessments, curricular objectives or state asse
ssments
Prong 2
: Does the child need special education?
Examples of Indicators
Student progress monitoring data indicates intense or sustained resources needed in order for student to: (a) physically negoti
ate and manipulate the environment,
or (b) understand age appropriate information, reason, and solve problems, or (c) exhibit developmentally appropriate adaptive
skills such as: self-care, home
living, community use, self-direction, health and safety, and functional academics, or (d) convey and comprehend communication
and social intent, or (e) positively
impact relationships with peers and adults,
or (f) initiate, respond to,
and maintain positive social relationships, or (g) mee
t behavioral expectations (e.g. following
directions, rules, and routines)
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards in one or more developmental areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions to address
communication, social interaction, and/or academic skills.
Student progress monitoring data measuring results of increasingly customized and individually tailored instruction and intervention indicate that the student needs
specially designed inst
ruction to access the general curriculum.
page 10
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Emotional Disturbance
KAR 91-40-1
(v) “Emotional disturbance" means a condition exhibiting one or more of the following characteristics over a long period of tim
e and to a marked degree that adversely
affects a child’s educational performance:
(1) An inability to learn that cannot be explain
ed by intellectual, sensory, or health factors;
(2) an inability to build or maintain satisfactory in
terpersonal relationships with peers and teachers;
(3) inappropriate types of behavior or feelings under normal circumstances;
(4) a general pervasive mood of unhappiness or depression; or
(5) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia, but shall not apply to children
who are socially maladjusted, unless it is determined that the
y have an emotional disturbance.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
page 11
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
The student may not be socially maladjusted, unless it is determined that they also
have an emotional disturbance
Courts have interpreted social
maladjustment to mean
a conduct disorder.
Teams should review records to rule out that
the student has been
identified as a student having a conduct disorder, unless other evidence
that the student also has an emotional disturbance exists.
Prong 1
: Does the child exhibit an exceptionality?
Examples of Indicators
Record reviews, interviews, and/or observations indicate levels of physical symptoms or fears which are different from peers an
d are correlated with school
problems
Record reviews, interviews, and/or observations indicate student exhibits inappropriate behaviors or feelings under normal circ
umstances
Record reviews, interviews, and/or observations indicate an inability to build or maintain satisfactory interpersonal relations
hips with peers and teachers
Record reviews, interviews, and/or observations indicate a pervasive mood of unhappiness or depression
Record reviews, interviews, and/or observations indicate that emotional difficulties have been exhibited over a long period of
time
Record reviews, interviews, and/or observations indicate that emotional characteristics are adversely affecting the student’s e
ducational performance
Records document a DSM-IV diagnosis that substantiates one or more of the following: an inability to build or maintain satisfac
tory interpersonal relationships with
peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappi
ness or depression; or a
tendency to develop physical symptoms or fears associated with personal or school problems and includes schizophrenia
Record reviews, interviews, and/or observations indicate a history of academic failure in school curricula that cannot be expla
ined by intellectual, sensory, or health
factors
Assessments indicate behavioral and emotional characterist
ics are exhibited to a marked degree when compared to peers
Prong 2
: Does the child need special education?
Examples of Indicators
Student progress monitoring data indicates intense or sustained re
sources needed in order for student to demonstrate adequate p
rogress
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards in one or more areas
Modifications of instruction, curriculum, and the environment have not adequately addressed the behaviors, feelings, relationsh
symptoms that adversely affect the student’s educational performance
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data showing results of increasingly customized and individually tailored instruction and intervent
ion indicate that the student needs
specially designed instruction to
access the general curriculum
page 12
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Gifted
KAR 91-40-1
(cc) "Gifted" means performing or demonstrating the potential for
performing at significantly higher levels of accomplishment i
n one or more academic fields due to
intellectual ability, when compared to others of similar age, experience and environment.
Prong 1
: Does the child exhibit an exceptionality?
Examples of Indicators
Student progress monitoring indicates st
udent’s skill level in one or more academi
c areas is much above that of peers
Multiple characteristics of giftedness exhibited when interventions provide adaptations, enrichment, or acceleration
Record reviews, interviews, and/or observations indicate student demonstrates a significantly high level of conceptual understa
nding in specific academic areas
Record reviews, interviews, and/or observations indicate student demonstrates superior reasoning and problem solving ability
Record reviews, interviews, and/or observations indicate student shows persistent intellectual curiosity and asks searching que
stions
Record reviews, interviews, and/or observations indicate student shows initiative and originality in intellectual work
Record reviews, interviews, and/or observations indicate student has developed one or more interests to considerable depth
Ease of task completion indicates a significantly high level of intellectual ability and excellence in academics
Persistence to task and generalization of knowledge gained indicate a remarkably high level of accomplishment
Rate of acquisition and retention indicate a significantly high level of intellectual ability and excellence in academics
Coursework analysis indicates a significantly high level of intellectual ability and excellence in academics when provided with
interventions
Products from home or school indicate a significantly high
level of intellectual ability and excellence in academics
GPA, classroom portfolio or rubrics indicate a significantly
high level of intellectual ability and excellence in academics
Work samples and projects show flexibility in thinking and considers problems from a number of viewpoints
Performance significantly higher than peers on one or more area
s on benchmark assessments, curricular objectives, or state asse
ssments
District, state and national assessments indicate a significantly high level of intellectual ability and excellence in academic
s
A rank of not less than the 95th percentile on national norms on a standardized, norm-referenced achievement test in one or mor
e of the academic fields
(mathematics, language arts (including reading), science, and social
science), or evidence that such test scores do not adequat
ely reflect the child's excellence
in academics
A composite rank of not less than the 97th percentile on an individually administered, standardized, norm-referenced test of in
tellectual ability, or evidence that the
child's standardized, intelligence test score does not adequately reflect the child's high intellectual potential
College entrance exams indicate a significantly high level of intellectual ability and excellence in academics
Pre-tests consistently indicate student has already mastered end of unit/curricular objectives prior to instruction
page 13
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 2
: Does the child need special education?
Examples of Indicators
Student progress monitoring data indicates intense or sustained resources needed in order for student to demonstrate appropriat
e progress
Evidence of student’s mastery of successive
levels of instructional objectives or course requirements indicates the need for in
Student progress monitoring data shows that targeted supplemental interventions are insufficient for student to demonstrate appropriate progress
Student progress monitoring data results of increasingly custom
designed instruction to access the general curriculum at appropriate levels of instruction
Intensive changes or modifications needed in instruction, curric
ulum, grouping, assignments, etc. for student to demonstrate ap
propriate progress
Evidence of student's frustration with enriched instructional
environments indicates the need for intensive adaptations or acce
leration
General education interventions such as alternative course selections or cross-age grouping are insufficient to support student
progress
page 14
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Learning Disability
KAR 91-40-1
(mmm) “Specific learning disabili
ty” means a disorder in one of more of the basic psychological processes
involved in understan
ding or using language, spoken or
written, that may manifest itself in an imperfect ability to listen, think, speak, re
ad, write, spell, or to do mathematical ca
lculations, including perceptual disabilities, brain
injury, minimal brain dysfunction, dyslexia, and developmental a
phasia. The term shall not include learning problems that are primarily the result of any of the following:
(1) Visual, hearing, or motor, disabilities; (2) mental retardat
ion; (3) emotional disturbance; or (4) environmental, cultural,
or economic disadvantage.
KAR 91-40-11
(b) A group evaluating a child for a specific learning disability may determine that the child has such a disability only if the following conditions are met:
(1) The child does not achieve adequately for the child's age or meet state-approved grade-level standards, if any, in one or m
ore of the following areas, when the child
is provided with learning experiences and instruction appropriat
e for the child's age and grade level: (A) Oral expression; (B) listening comprehension; (C) written
expression; (D) basic reading skill; (E) reading fluency skills; (F) reading comprehension; (G) mathematics calculation; and (H) mathematics problem solving.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
page 15
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
The determinant factor for why the child does not achieve adequately for the
child’s age or does not make sufficient progress to meet age or State-
approved grade level standards, or exhibits a pattern of strengths and
weaknesses, is not primarily the result of:
•
A visual, hearing or motor disability;
If any of these factors are an issue for the student being evaluated, provide
evidence that the student was provided with appropriate accommodations
and interventions to address them
. If, in spite of appropriate
accommodations and interventions, the student’s learning difficulties
persist, these factors are ruled out as the primary cause. However, it should
be recognized that learning disabilities can co-exist with other types of
disabilities (i.e., co-morbidity).
•
emotional disturbance;
•
cultural factors;
•
environmental or economic disadvantage;
•
limited English proficiency; or
Evidence shows that student information does not match indicators for mental
•
mental retardation
retardation.
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Observation in the student’s learning environment (must include
the general education classroom) provides evidence of the student’s performance and behavior in
the area of difficulty.
[Note: This is
required
for all evaluations of students suspected of having a learning disability]
Record reviews shows DSM-IV diagnosis of learning disability by clinical psychologist or previous identification as having a le
arning disability
Measures of achievement in basic reading skills, reading fluency skills, and/or reading comprehension is significantly lower th
an peers
Measures of achievement in math calculation or math problem-solving is significantly lower than peers
Measures of achievement in written expression is significantly lower than peers
Measures of oral expression and/or listening comprehension indicate student performance is significantly lower than peers
Interviews indicate student demonstrates a high level of understanding during oral discussions but lacks mastery of basic skill
s
Interviews indicate student exhibits good reasoning/mastery of skills outside of academic areas
Student performance significantly lower than peers on one or mo
re benchmark assessments, curricu
lar objectives, or state assess
ments
Student demonstrates average or above scores in one achievement domain but significantly low scores in a different domain
Severe discrepancy (at least 25 points) between standard scores of ability and achievement
Progress monitoring data displayed on charts or graphs shows slow rate of growth in at least one achievement domain despite pro
vision of intense, explicit
instructional interventions
Progress monitoring data displayed on charts or graphs shows student is a non-responder to increasingly intense instructional i
nterventions.
page 16
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 2
: Does the child need special education?
Examples of Indicators
Student progress monitoring data indicates intense or sustained re
sources needed in order for student to demonstrate adequate p
rogress
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards in one or more areas
Despite modifications of instruction, curri
culum, and environment, the student progre
ss monitoring data shows variability acros
s academic performance areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student Progress monitoring data results of
increasingly customized and individually tailored instruction and intervention indi
cate that the student needs specially
designed instruction to access the general curriculum.
Despite implementation of tertiary prevention practices, whic
h include purposeful instructional design and delivery, prioritize
d content, protected time and grouping,
and performance monitoring, the student does not make sufficient
progress to meet age or state-approved grade-level standards i
n one or more areas
page 17
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Mental Retardation
KAR 91-40-1
(oo) "Mental retardation" means significantly subaverage general intellectual functioning, existing concurrently with deficits
in adaptive behavior and manifested
during the developmental period, that adversely affects a child’s educational performance.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 18
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Records, interviews, and/or observations indicate child’s level of educational performance has been significantly less than pee
rs over an extended period of time
Records, interviews, and/or observations indicate adaptive behavior deficits have occurred over an extended period of time
Records and/or interviews indicate deficits in adaptive behavior and low intellectual functioning were manifested during the de
velopmental period
Records indicate a medical diagnosis of mental retardation
Records, interviews, and/or observations indicate student exhibits deficits in adaptive skill areas
Student’s rate of learning as measured by progress monitoring is markedly different from peers
Student’s performance is significantly lower than peers on benc
hmark assessments, curricular objectives, or state assessments
Measures of adaptive behavior skills indicate significant deficits in two or more areas
Measures of academic achievement indicate significant delays across subject areas
Student’s score is two or more standard deviations below the mean on an individually administered, standardized, norm-reference
d test of intellectual ability
Record review, interview and/or observation indicate that the student’s condition adversely impacts his/her educational perform
ance
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Despite modifications in instruction, curriculum and environmen
t, student’s adaptive behavior skills in various age appropriate
environments is significantly delayed
from peers
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student Progress monitoring data results of
increasingly customized and individually tailored instruction and intervention indi
cate that the student needs specially
designed instruction to access the general curriculum.
page 19
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Multiple Disabilities
KAR 91-40-1
(pp) ) "Multiple disabilities" means coexisting impairments, the
combination of which causes such severe educational needs that those needs cannot be accommodated
in special education programs solely for one of the im
pairments. The term shall not include deaf-blindness.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 20
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 1
: Does the student exhibit an exceptionality?
Student progress monitoring data shows student’s educational performance is much below that of peers despite modifications of i
nstruction, curriculum, and
environment
Records contain medical information which provides evidence of multiple disabilities
Interviews indicate a history of co-existing impairments
Measures of educational performance indicate the following:
•
the coexisting impairments are such that the student cannot be
provided services appropriately in classrooms solely for student
s with one of the impairments;
or
•
the coexisting impairments are such that the student cannot be provided services appropriately in general education classrooms
without specific assistance,
modifications, adaptations, or supports necessary to accommodate the multiple impairments
Record review, interviews, and/or observations show that the student’s educational performance is much below that of peers
Record review, interviews, and/or observations show that the student’s condition adversely impact his/her educational performan
ce
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Despite modifications in instruction, curriculum and environmen
t, student’s adaptive behavior skills in various age appropriate
environments is significantly delayed
from peers
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
designed instruction to access the general curriculum.
Student progress monitoring data indicates intense or sustained resources are needed to support interventions (e.g. specific as
sistance, modifications,
adaptations, or other supports) necessary to accommodat
e student needs resulting from coexisting impairments
Record review, interviews, and observations show the coexisting impairments adversely affect the child’s participation and prog
ress in the general curriculum or
participation in age-appropriate activities
page 21
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Orthopedic Impairment
KAR 91-40-1
(tt) "Orthopedic impairment" means a severe orthopedic impairm
ent that adversely affects a child’s educational performance and
includes impairments caused
by any of the following: (1) congenital anomaly, such as clubfoot
or absence of a limb; 2) disease, such as poliomyelitis or bone tuberculosis; and 3) other causes, such
as cerebral palsy, amputation, and fractures or burns that cause contractures.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 22
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 1
: Does the student exhibit an exceptionality?
Records contain medical information which provides evidence of orthopedic impairment
Records contain information substantiating an impairment caused by: congenital anomaly, such as clubfoot or absence of a limb;
disease, such as poliomyelitis or
bone tuberculosis; and, other causes such as cerebral palsy, amputation, and fractures or burns that cause contractures
Records and/or interviews indicate a history of orthopedic impairment
Records, interviews, observations, and/or tests show that the student’s educational performance is much below that of peers
Records, interviews, observatio
ns, and/or tests show that the student’s orthop
edic condition adversely impacts his/her educati
onal performance
Measures of motor skills indicate the student’s skills are much below that of peers
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Despite modifications in instruction, curriculum and environmen
t, student’s adaptive behavior skills in various age appropriate
environments is significantly delayed
from peers
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
ized and individually tailored instruction and intervention indi
designed instruction to access the general curriculum.
page 23
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Other Health Impairment
KAR 91-40-1
(uu) "Other health impairment" means having limited strength, vitality, or alertness, including a heightened alertness to envir
onmental stimuli, that results in
limited alertness with respect to the educational environment and
that meets the following criteria: (1) is due to chronic or a
cute health problems, including asthma,
attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead
poisoning, leukemia, nephritis, rheumatic fever,
sickle cell anemia, and Tourette syndrome; and 2) adversely affects a child’s educational performance.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 24
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Records contain medical information which document chronic or acute health problems including: asthma; attention deficit disord
er or attention deficit hyperactivity
disorder; diabetes; epilepsy; heart condition; hemophilia; lead poisoning; leukemia; nephritis; rheumatic fever; sickle cell an
emia; or Tourette syndrome.
Record review, interviews, observations, and/or tests show that
the student’s educational performance is much below that of pee
rs
Record review, interviews, observations, and/or tests show the st
udent’s strength, vitality, or alertness is/are significantly
different from peers
Record review, interviews, observations, and/or tests show the st
udent demonstrates limited alertness with respect to the educa
tional environment
Record review, interviews, observations, and/or tests show that the student’s condition adversely impacts his/her educational p
erformance
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Providing modifications in instruction, curriculum and environment does not alleviate adverse effects on student’s educational
strength, vitality, or alertness
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
ized and individually tailored instruction and intervention indi
designed instruction to access the general curriculum.
page 25
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Sensory Impairments
KAR 91-40-1
(dd) "
Hearing impairment
" means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance bu
t that does
not constitute deafness as defined in this regulation.
(p) “
Deafness
” means a hearing impairment that is so severe that it impairs a child’s ability to process linguistic information through hear
amplification, and adversely affects
the child’s educational performance.
(uuu) “
Visual impairment
” means an impairment in vision that, even with corrections, adversely affects a child’s educational performance. The term inc
ludes both
partial sight and blindness.
(g) “
Blindness
” means a visual impairment that requires dependence on tactile and auditory media for learning
(o) "
Deaf-blindness
" means the combination of hearing and visual impairments that ca
uses such severe communication and other developmental and edu
cational
needs that they cannot be accommodated in special education programs solely for the hearing impaired or the visually impaired.
The following exclusionary criteria apply
to Hearing impairment, Deafness, Visual
impairment, Blindness, and Deaf-Blindness
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
page 26
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
The following indicators apply to
Hearing Impairment, Deafness, Vi
sual Impairment, and Blindness
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Records contain medical information which provides evidence of hearing impairment, deafness, or visual impairment
Measures of hearing indicate the following:
•
a 30dB (or greater) sensorineural or mixed hearing loss across speech frequencies in the better ear with amplification
•
a 30dB (or greater) conductive hearing loss across speech frequencies in the better ear with amplification (will require annual
audiological evaluations to
maintain deaf-blind certification)
•
a previous chronic condition exists which interferes with the auditory learning mode
•
congenital malformations of the auricle (e.g., absence of a pina or ear canal opening)
“functionally deaf”, “cortically deaf”, or
“central processing loss”- the hearing stru
ctures are present and working; however,
the student does not attend, respond,
localize, or process hearing to receive information from the environment or accurately interpret information about the environm
ent
Measures of vision indicate the following:
•
Measured or estimated corrected visual acuity of 20/20 or less in the better eye
•
A previous chronic condition exists which interferes with the visual learning mode
•
Ocular motor (e.g., Muscle imbalance)
•
Anophthalmus (absence of actual eyeball)
•
Visual field of 40 degrees or less in the better eye
“Functionally blind” or “cortically visually
impaired”- the visual structures are pres
ent and working; however, the student doe
to receive information from the en
vironment or accu
rately interpret informat
ion about the environment
page 27
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Measures of educational performance indicate the following:
•
Hearing or vision losses are such that the student cannot be provided services appropriately in the general education classroom
without specific assistance,
modifications, adaptations, or supports necessary to accommodate the sensory loss
Record review, interviews, observations, and/or tests show that
the student’s educational performance is much below that of pee
rs
Record review, interviews, observations, and/or tests show that
the student’s impairment adversely impact his/her educational p
erformance
Testing indicates student is “functionally deaf”, “cortically deaf”, or has “central processing loss”- the hearing structures a
re present and working; however, the student
does not attend, respond, localize, or process hearing to receiv
e information from the environmen
t or accurately interpret info
rmation about the environment
Testing indicates student is “functionally bl
ind” or “cortically visually impaired”- the visual structures are present and work
ing; however, the student does not track,
localize, or process vision to receive information from the environment or accurately interpret information about the environme
nt
Information from multiple sources of data indicates that the st
udent exhibits a hearing impairment, whether permanent of fluctu
ating, that adversely affects a child’s
educational performance
Information from multiple sources of data indicates that the stud
ent exhibits a hearing impairment that is so severe that it im
pairs a child’s ability to process
linguistic information through hearing, with or without amplific
ation, and adversely affects the child’s educational performanc
e
Information from multiple sources of data indicates that the student exhibits a visual impairment that, even with correction, a
dversely affects a child’s educational
performance
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Student progress monitoring data indicates intense or sustained
resources (e.g. specific assist
ance, modifications, adaptations
, or supports necessary to
accommodate the sensory loss) are needed in order for student to demonstrate adequate progress
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
ized and individually tailored instruction and intervention indi
designed instruction to access the general curriculum.
The following indicators apply to Deaf-blindness
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Records contain medical information which provides evidence of deaf-blindness
page 28
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Measures of hearing indicate the following:
•
A 30db (or greater) sensorineural or mixed hearing loss across speech frequencies in the better ear with amplification
•
A 30db (or greater) conductive hearing loss across speech frequencies in the better ear with amplification (will require annual
audiological evaluations to
maintain deaf-blind certification)
•
A previous chronic condition exists which interferes with the auditory learning mode
•
Congenital malformations of the auricle (e.g., Absence of a pina or ear canal opening)
•
“Functionally deaf”, “cortically deaf”, or
“central processing loss”- the hearing structures are present and working; however,
the student does not attend,
respond, localize, or process hearing to receive information from the environment or accurately interpret information about the
environment
Measures of vision indicate the following:
•
Measured or estimated corrected visual acuity of 20/20 or less in the better eye
•
A previous chronic condition exists which interferes with the visual learning mode
•
Ocular motor (e.g., Muscle imbalance)
•
Anophthalmus (absence of actual eyeball)
•
Visual field of 40 degrees or less in the better eye
•
“Functionally blind” or “cortically visually
impaired”- the visual structures are pres
ent and working; however, the student doe
s not track, localize, or process
vision to receive information from the environment or accurately interpret information about the environment
Measures of educational performance indicate the following:
•
The combined vision and hearing losses are such that the student cannot be provided services appropriately in classrooms solely
for students with visual or
hearing impairments; or
•
The combined vision and hearing losses are such that the student cannot be provided services appropriately in general education
classrooms without specific
assistance, modifications, adaptations, or supports necessary to accommodate both sensory losses
Record review, intervie
w, observation, and/or tests show that the student’s
educational performance is much below that of peers
Record review, interview, observation, and/or tests show that the student’s impairments adversely impact his/her educational pe
rformance
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Student progress monitoring data indicates intense or sustained
resources (e.g. specific assist
ance, modifications, adaptations
, or supports necessary to
accommodate the sensory loss) are needed in order for student to demonstrate adequate progress
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
designed instruction to access the general curriculum.
page 29
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Student progress monitoring data indicates intense or sustained
resources (e.g. specific assist
ance, modifications, adaptations
, or supports necessary to
accommodate both sensory losses) are needed in order for student to demonstrate adequate progress
Information from multiple sources of data indicates that the stud
ent exhibits a combination of hearing and visual impairments w
hich causes such severe
communication and other developmental and educational needs that they cannot be accommodated in special education programs sole
ly for the hearing or
visually impaired
page 30
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Speech or Language Impairment
KAR 91-40-1
(lll) "Speech or language impairment" mean
s a communication disorder, including stutte
ring, impaired articulation, a language i
mpairment, or a voice impairment, that
adversely affects a child’s educational performance
.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 31
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Record review, interview, observations, and/or assessments indicate student’s voice, fluency, speech sounds, or language skills
not commensurate with age
appropriate expectations and have an adverse effect on the student’s educational performance
Record review, interview, observations, and/or assessments indicate student’s communication skill level is much below that of p
eers
Record review, interview, observations, and/or assessments indicate student’s communication skills have impacted development in
other areas, e.g. social-
emotional, cognitive
Records and interviews indicate a history of academic difficulty relative to communication skills
Student performance significantly lower than peers on measures
of language which are related to curricular performance
Information from multiple sources of data indicates that the student exhibits stuttering, impaired articulation, a language imp
airment, or a voice impairment that
adversely affects educational performance
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that the student’s behavior of concern is resistant to targeted supplemental and intensi
ve interventions
Student progress monitoring data results of increasingly custom
ized and individually tailored instruction and intervention indi
designed instruction to access the general curriculum.
page 32
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Traumatic Brain Injury
KAR 91-40-1
(sss) "Traumatic brain injury" means an acquired injury to the br
ain, caused by an external physical force, resulting in total
or partial functional disability or
psychosocial impairment, or both, that adversely affects educational performance. The term shall apply to open or closed head
injuries resulting in impairments in
one or more areas, including the following: (1) cognition; (2) la
nguage; (3) memory; (4) attent
ion; (5) reasoning; (6) abs
tract thinking; (7) j
udgment; (8) problem-
solving; (9) sensory, perceptual and motor
abilities; (10) psychosocial
behavior; (11) physical func
tions; (12) information
processing; and (13) speech. The term
shall not include brain injuries that are congenital or degenerative or that are induced by birth trauma.
Exclusionary Criteria
:
Exclusionary Factor
How to Evaluate
Evidence shows that the student’s previous reading instruction and curriculum
addressed phonemic awareness, phonics, vocabulary development,
reading fluency including oral reading skills, and reading comprehension
strategies. This evidence may come from (a) an evaluation of the school’s
basal curriculum and supplemental materials, and (b) that the student
actually received instruction provided by highly qualified teachers using
appropriate basal curriculum and supplemental materials.
Evidence shows that the student’s previous math instruction and curriculum
addressed math calculation, problem solving, and conceptual
understanding. This evidence may come from (a) an evaluation of the
school’s basal curriculum and supplemental materials, and (b) that the
student actually received instruction provided by highly qualified teachers
using appropriate basal curriculum and supplemental materials.
If the student being evaluated is an English Language Learner, provide
evidence that the student was provided with appropriate accommodations
and interventions to address it. Consider things such as: proficiency in
English and in the student’s native language, amount of time in the country,
level of education in the student’s na
tive country, etc. If, in spite of
appropriate accommodations and interventions, the student’s learning
difficulties persist, this
factor is ruled out.
A child
must NOT be determined
to be a child with
an exceptionality if:
the determinant factor is:
•
Lack of appropriate instruction in reading, including the essential
components of reading instruction (defined in section 1208(3) of
the ESEA(NCLB);
•
Lack of appropriate instruction in math; or
•
Limited English proficiency ;
•
and the child does not otherwise meet the eligibility criteria as a
child with an exceptionality
Evidence shows that the student’s learning difficulties are due to factors other
than those associated with the criteria
for disabilities as defined in IDEA.
For example, frequent moves, incarceration, substance abuse, etc.
page 33
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
The term shall not include brain injuries that
are congenital or degenerative or that
are induced by birth trauma.
The term TBI is not used for a person who is born with a brain injury. It also is
not used for brain injuries that happen during birth. Evidence is provided
that the brain injury was sustained after some period of normal
development.
The term shall not include brain injuries t
hat are the result of brain tumors, brain
infections, cerebral vascular accident (strokes), or poisonings.
The term TBI in not used for a person who sustained a brain injury as a result
of a brain tumor, brain infection, cer
ebral vascular accident (stroke), or
poisoning. Evidence is provided that the brain injury sustained was not
caused by these conditions. (Note: Students with these conditions
may
meet eligibility requirements under the category of “Other Health Impaired”.)
Prong 1
: Does the student exhibit an exceptionality?
Examples of Indicators
Records contain medical information which provides evidence of traumatic brain injury
Record review, interview, observation, and/or tests indicate the injury adversely affects the student’s educational performance
Record review, interview, observation, and/or tests indicates that the student has an acquired injury to the brain (applies to
both open or closed head injuries,
including near drowning) caused by an external physical force th
at has resulted in total or partial functional disability or ps
ychosocial impairment, or both, that
adversely affects educational performance
Record review, interviews, observations, and/or tests in one or
more areas (cognition; language; memory; attention; reasoning;
abstract thin
king; judgment;
problem-solving; sensory, perceptual, and
motor abilities; psychosocial
behavior; physical functions;
information processing; a
nd speech) indicate student’s skill
level is much belo
w that of peers
Record review and/or interview indicates the brain injury is not congenital or degenerative or induced by birth trauma
Record review and/or interview indicates the brain injury is not the result of brain tumors, brain infections, cerebral vascula
r accident (strokes), or poisonings.
Prong 2
: Does the child need special education?
Examples of Indicators
Despite modifications in instruction, curriculum and environment, student’s rate of learning is significantly less than peers
Despite modifications in instruction, curriculum and environment, student’s educational performance in various age appropriate
environments is significantly
delayed from peers
Student progress monitoring data indicates intense or sustained re
sources are needed to support interventions (e.g. specific a
ssistance, modifications,
adaptations, or other supports) necessary to ac
commodate the needs resulting from the injury
Despite modifications of instruction, curriculum, and environment, the student does not make sufficient progress to meet age or
state-approved grade-level
standards across curricular areas
Student progress monitoring data shows that student’s behavior of concern is resistant to targeted supplemental and intensive i
nterventions
page 34
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
Reporting Requirements
When the initial evaluation and eligibility det
ermination are completed, the evaluation
team must prepare a written evaluation/
eligibility report. The report
must include not only the evaluation results, but
also document the elig
ibility determination.
The evaluation report serves as the documentation of the child’s eligibility. The evaluation report and the documentation of e
no cost, to the parent (KAR 91-40-10(b); 34
CFR 300.306(a)(2)). There are specific r
equirements for reporting the eligibility determination (KAR 91-40-
10(a), (e); 34 CFR 300.311). The r
eport must include a statement of:
a.
whether the child is a child with an exceptionality;
b.
the basis for making the determination;
c.
the relevant behavior noted during the observation of the child (and for LD the relati
onship of that behavior to the child’s ac
ademic functioning);
and
d.
the educationally relevant
medical findings, if any;
And for a child determined to have a learning disability, t
he report must also include
documentation of the following
:
(i)
the child does not achieve adequately for the child’s age or to
meet State-approved gr
ade- level standards when provided with
learning experiences and instruction appropriate for th
e child’s age or State-appr
oved grade-level standards,
(ii)
AND
•
the child does not make sufficient progress to meet age
or State-approved grade-level
standards when using a process
based on the child’s response to scientific
, research-based intervention;
OR
•
the child exhibits a pattern of strengt
hs and weaknesses in performance, achiev
ement, or both, relative to age, State-
approved grade-level standards, or
intellectual development.
(iii)
The determinate factor for why t
he child does not achieve adequately for the ch
ild’s age or does not make sufficient pro
gress to
meet age or State-approv
ed grade level standards, or exhibits a pattern of st
rengths and weaknesses, is
not primarily the resul
t of:
•
A visual, hearing or motor disability;
•
mental retardation;
•
emotional disturbance;
•
cultural factors;
•
environmental or economic disadvantage; or
•
limited English proficiency.
page 35
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
Fall 2007
(iv)
If the child has participated in a proc
ess that assesses the child’s response to scientific, research-based intervention (
RtI/MTSS),
the report must also document
o
the instructional strategies used; and
o
the student-centered data collected.
Documentation that the child
’s parents were notified about the process,
including the follo
wing information:
o
the State’s policies regarding the am
ount and nature of st
udent performance data that woul
d be collected and the general
education services that would be provided;
o
strategies for increasing the ch
ild’s rate of learning; and
o
the parent’s right to request an evaluation
(K.A.R. 91-40-10(e), (f);
K.A.R. 91-40-9(a)(2)(3); 34
C.F.R. 300.309(a)(3); 34 C.F
.R.
300.311(a)).
page 36
February 2008
Appendix A, Figure 3-4
Kansas Special Education Process Handbook
06.21.07
Evaluation/Eligibility Report Checklist
The written evaluation report must contain:
The determination of whether the child has an exceptionality (KAR 91-40-10(a)(1)(A))
The basis for making the determination (KAR 91-40-10(a)(1)(B))
Relevant behavior noted during the observation of the child (KAR 91-40-10(a)(1)(C))
The Relationship of that behavior to the child’s academic functioning (KAR 91-40-
10(a)(1)(D))
Educationally relevant medical findings, if any (KAR 91-40-10(a)(1)(E))
Signatures of each team member indicating whether the report reflects their conclusion
(KAR 91-40-10(a)(2))
If not, the team member(s) must submit a separate statement presenting their conclusion
(KAR 91-40-10(a)(2))
If the child was identified with a specific learning disability (SLD) in addition to the above
it must also contain:
An assurance that the determination was made in accordance with applicable laws and
regulations (KAR 91-40-10(e)(2))
Documentation of whether the child:
does not achieve adequately for the child’s age or to meet state-approved grade-level
standards (KAR 91-40-10(e)(5)(A))
does not make sufficient progress to meet age or state-approved standards
or
exhibits a pattern of strengths and weaknesses in performance, achievement, or both,
relative to age, state-approved grade level standards or intellectual development (KAR
91-40-10(e)(5)(B))
Determination of the team concerning the effect of the following factors on the child’s
achievement: visual, hearing, or motor skills disability; mental retardation; emotional
disturbance; cultural factors; environmental or economic disadvantaged; or limited
English proficiency (KAR 91-40-10(e)(6))
If the child participated in a response to intervention (RtI) process the following items must
be included in addition to those listed above:
The instructional strategies used (KAR 91-40-10(f)(1))
The student-centered data collected (KAR 91-40-10(f)(1))
Documentation that parents were notified about:
The state’s policies regarding the amount and nature of student performance data that
would be collected and the general education services that would be provided (KAR 91-
40-10(f)(2)(A))
Strategies for increasing the child’s rate of learning (KAR 91-40-10(f)(2)(B))
The parents’ right to request an evaluation (KAR 91-40-10(f)(2)(C))
February 2008
Appendix A, Figure 3-5
Kansas Special Education Process Handbook
February 2008
Appendix A, Figure 4-1a
Kansas Special Education Process Handbook
1
REGULAR EDUCATION PRESCHOOL TEACHER AT THE IEP/IFSP MEETING
IDEA-2004 regulations establish the requirements for IEP/IFSP teams to include a
regular education teacher of the child. The IEP/IFSP team of each child must include
“at
least one regular education teacher of the child (if the child is, or may be,
participating in the regular education environment).” (34 CFR 300.321(a)(2))
“A regular education teacher of a child with a disability, as a member of an IEP
team, must, to the extent appropriate, participate in the development, review and
revision of the child’s IEP. This participation shall include assisting in making the
following determination [in order for the child to participate in appropriate
activities (general curriculum)]:
•
(1) The appropriate positive behavioral interventions and supports and
other strategies for the child;
•
(2) The supplementary aids and services, program modifications, and
support for school personnel that will be provided to assist the child to:
•
Advance appropriately toward attaining the annual goals;
•
Be involved in and make progress in the general education curriculum
and to participate in extracurricular and other nonacademic
activities; and
•
Be educated and participate with other children with disabilities and
nondisabled children in these activities.” (34 CFR 300.324(a)(3)); 34
CFR 300.320(a)(4))
“Regular education teacher”
means a person who, under state standards, is qualified to
provide instruction to children without disabilities of the same age as the child with a
disability. In the case of preschool age children, the person must be knowledgeable about
age-relevant developmental activities or milestones that typically developing children of
the same age would be performing or would have achieved. (
The Kansas “State
Standard” is that the teacher must meet the requirements of the administering agency.)
“Regular education teacher of the child”
means a regular education teacher who is, or
is anticipated to be, the child’s teacher and is knowledgeable about appropriate activities
of typically developing peers, so the teacher is able to determine how the child’s
disabilities affect the child’s participation (involvement and progress) in those
appropriate activities.
“…if the child is, or may be, participating in the regular education environment.”
• If a public agency provides regular education preschool services to children
without disabilities, then the teacher for these services would be the regular
education teacher of any preschool age child with a disability in that regular
education preschool program. (300.321(a)(2) and 300.324(a)(3))
• If a public agency makes kindergarten available to children without disabilities,
then the kindergarten teacher would appropriately be the regular education teacher
who would be a member of the IEP/IFSP team for a kindergarten age child with a
February 2008
Appendix A, Figure 4-1a
Kansas Special Education Process Handbook
2
disability who is, or may be, participating in the regular education kindergarten
environment.
• If the child with a disability is or may be participating in a regular education
environment for children without disabilities, which is not provided by the public
agency, the agency should invite the regular education preschool teacher.
However, if the teacher does not attend the IEP/IFSP meeting the public agency
shall designate attendance by an appropriate person who, under state standards, is
qualified to serve children without disabilities of the same age as the child with a
disability.
• The regular education preschool teacher attending the IEP/IFSP meeting shall be
the teacher of the child with a disability or the anticipated teacher of the child
(such as the kindergarten teacher if a child is transitioning into kindergarten) or a
representative kindergarten teacher from the child’s home school. If the child is
not in a regular education preschool environment and is not expected to be
participating in a regular education preschool environment or Kindergarten during
the term of the IEP/IFSP, as determined by the IEP/IFSP team, then a regular
education teacher is not required to attend the IEP/IFSP meeting.
• If the child with a disability is receiving special education services in a regular
education preschool environment such as Head Start, Even Start, 4 year old at
risk, or private educational preschool, the lead teacher of the preschool program
shall be the regular education teacher at the IEP/IFSP meeting.
The following information provides guidance for determining the regular education
teacher for specific environments where a child with a disability may be receiving special
education services, and how the state regulations address the issue of dual representation,
“If qualified to do so, an agency member of the IEP/IFSP team may serve in the role of
two or more required members of a child’s IEP/IFSP team.” (KAR 91-40-17(i)).
Home Setting Only
When a child with a disability receives special education services in the home, or the
home of a child care provider, the parent or child care provider is not considered to be a
regular education teacher of the child. In this situation, there is no regular education
teacher of the child. The parent must be invited to participate in all IEP/IFSP meetings.
Also, the parent should consider inviting the child care provider to attend IEP/IFSP
meetings in order to share information about the child and to learn of the type of support
they might be able to provide in the child care environment.
Community-Based Preschool Setting
For preschool children with disabilities who are enrolled in a community-based early
childhood education program, the state has determined that a preschool teacher who
meets the administering agency’s requirements is qualified to be the regular education
teacher of the child. Therefore, a Head Start teacher, or the teacher of any other public or
private early childhood education program who meets the qualifications of the
administering agency, is to serve as the regular education teacher at the IEP/IFSP
meeting. The preschool teacher must be the lead teacher of the child’s classroom.
February 2008
Appendix A, Figure 4-1a
Kansas Special Education Process Handbook
3
If a Head Start teacher, or a regular education teacher in another preschool program who
meets the required state standards, is also a certified/licensed ECSE teacher and is
providing regular education services and special education services to the child with a
disability under an IEP/IFSP (under the supervision of a USD/Cooperative/Interlocal),
this teacher may serve as both the regular education teacher and the special education
teacher of the child.
When a child with a disability receives special education services in a regular education
preschool program that is
not
operated by the LEA, the LEA is required to
invite
the
regular education teacher of the child. If the regular education teacher of the child is not
at the IEP/IFSP meeting the LEA shall designate attendance by an appropriate person
who, under state standards, is qualified to serve children without disabilities of the same
age as the child with a disability.
School-Based Regular Education Preschool Setting
If the public school operates an early childhood program, in which the child with a
disability is enrolled, the teacher of the program would be the regular early childhood
teacher at the IEP/IFSP meeting. For a child attending kindergarten, the kindergarten
teacher is the regular education teacher of the child.
Reverse Mainstreaming Setting Only
If a child with a disability is served in a reverse-mainstream early childhood special
education setting and it is anticipated that the child will continue in that setting, a regular
education teacher is not required to attend the IEP/IFSP meeting. If a school determines
that a regular education teacher should attend an IEP/IFSP meeting, and the ECSE
teacher of a child is also certified/licensed in early childhood education, the teacher may
serve in the role of both the special education teacher and the regular education teacher at
the IEP/IFSP meeting, so long as there is not another regular education teacher of the
child. If it is anticipated that the child will be transitioning to kindergarten during the
year the IEP/IFSP is in effect, the kindergarten teacher should be the regular education
teacher at the IEP/IFSP meeting.
Early Childhood Special Education Setting Only
If a child with a disability is not in a regular education preschool environment and is not
anticipated to be participating in a regular education preschool environment or
Kindergarten during the term of the IEP/IFSP, then a regular education teacher is not
required to attend the IEP/IFSP meeting. However, if a school determines that a regular
education teacher should attend an IEP/IFSP meeting, and the early childhood special
education (ECSE) teacher of a child is also licensed in early childhood education, the
teacher may serve in the role of both the special education teacher and the regular
education teacher at the IEP/IFSP meeting. If it is anticipated that the child will be
transitioning to kindergarten during the year the IEP/IFSP is in effect, the kindergarten
teacher should be the regular education teacher at the IEP/IFSP meeting.
February 2008
Appendix A, Figure 4-1a
Kansas Special Education Process Handbook
4
Initial Eligibility for Part B Services, including Transition from Part C
For an initial IEP/IFSP meeting, if the child with a disability is, or is anticipated to be,
participating in a regular education preschool program, the current regular education
preschool teacher or anticipated regular education teacher would serve in the role of the
regular education teacher. If the child is not in a regular education preschool
environment and is not anticipated to be participating in a regular education preschool
environment or Kindergarten during the term of the IEP/IFSP, as determined by the
IEP/IFSP team, then a regular education teacher is not required to attend the IEP/IFSP
meeting.
Extent of Participation of the Regular Education Teacher
The federal Office of Special Education Programs (OSEP) indicates that, the regular
education teacher of a child with a disability, as a member of the IEP/IFSP team, must, to
the extend appropriate, participate in the development, review and revision of the child’s
IEP/IFSP, including assisting in, (1) the determination of appropriate positive behavioral
interventions and supports and other strategies for the child; and (2) the determination of
supplementary aids and services, program modifications, and supports for school
personnel that will be provided to assist the child. While a regular education teacher
must be a member of the IEP/IFSP team if the child is, or may be, participating in the
regular education environment, the teacher need not (depending upon the child’s needs
and the purpose of the specific IEP/IFSP team meeting) be required to participate in all
decisions made as part of the IEP/IFSP meeting or to be present throughout the entire
IEP/IFSP. Depending upon the specific circumstances, however, it may not be necessary
for the regular education teacher to participate in discussions and decisions regarding, for
example, the physical therapy needs of the child, if the teacher is not responsible for
implementing that portion of the child’s IEP/IFSP. The extent to which it would be
appropriate for the regular education teacher member of the IEP/IFSP team to participate
in IEP/IFSP meetings must be decided on a case-by-case basis.
Revised 10-15-2007
February 2008
Appendix A, Figure 4-1b
Kansas Special Education Process Handbook
1
Regular Education Preschool Teacher at the IEP Meet
ing
(Revised 10/12/07)
If a child with a disability is enrolled
in
a…
Is Designee
Needed?
If yes, then who will fill that role?
LEA operated regular education
preschool.
Yes
The child’s regular education preschool teacher This could include a 4 year-old
at-risk program or Even Start program, etc., operated by the LEA.
LEA operated regular education
kindergarten.
Yes
The child’s regular education kindergarten teacher.
Regular education preschool operated by
the LEA and transition into kindergarten.
Yes
The child’s current regular ed teacher and/or the anticipated kindergarten teache
r.
Reverse Mainstream
operated by LEA.
Child is not participating in a regular
preschool during the term of IEP.
No
The school may invite a regular ed teacher; if dually certified or holds an EC
unified license (EC and ECSE) the child’s special education teacher can act as
both (provided there is not
a regular ed teacher).
Reverse Mainstream
operated by LEA
–
Child is not in regular education
preschool, but is transitioning into
kindergarten.
Yes
The child’s anticipated kindergarten teacher or kindergarten teacher from child’
s
home school
Kindergarten
age but not in any regular
education kindergarten and not
participating in regular education
kindergarten during the term of the IEP.
No
The school may invite a regular ed teacher; if the child’s special education
teacher is dual certified or holds an EC unified license (ECSE and EC/Elem Ed)
can act as both (provided there is not a regular ed teacher).
Early Childhood Special Education
Setting Only
and will continue in that
setting during the term of the IEP.
No
The school may invite a regular ed teacher; if the child’s special education
teacher is dual certified or holds an EC unified license (EC and ECSE) can sign
as both (provided there is not
a regular ed teacher).
Early Childhood Special Education
Setting Only
and will transition into
kindergarten during the term of the IEP.
Yes
The child’s anticipated kindergarten teacher or kindergarten teacher from child’
s
home school.
Community-Based Preschool Setting.
Yes
The teacher of the child
who meets the community-based program requirements
shall be invited. If the teacher does not attend the school shall designate
attendance by a teacher qualified to teach children without disabilities of the sam
e
age.
Home Setting
Only (includes home child
care).
No
There is no regular education teacher (OK for parent to invite child care
provider).
Child Care Center (no specified
educational component).
No
There is no regular education teacher (OK for parent to invite child care
provider).
February 2008
Appendix A, Figure 4-1b
Kansas Special Education Process Handbook
2
Initial Eligibility for Part B Services
(includes Transition from Part C
).
Yes
If in a regular education preschool or anticipated to be in one or kindergarten, it
would be the current or anticipated preschool or kindergarten teacher, or a teacher
qualified to teach children without disabilities of the same age designated by the
school.
Initial Eligibility for Part B Services
(
includes
Transition from Part C
).
No
If not in a regular education pre-school and/or not anticipated to be in regular
education preschool or kindergarten during the IEP term.
6.13.07
February 2008
Appendix A, Figure 4-2
Kansas Special Education Process Handbook
1
Comparison of Individualized Family Service Plan (IFSP)
and the Individualized Education Program (IEP) Content
IFSP
IEP
A statement of the child's present levels of physic al
development (including vision, hearing, and health
status), cognitive development, communication
development, social or emotional development, and
adaptive development
A statement of the child’s present levels of academ ic
achievement and functional performance, including,
how the disability affects the child’s participatio n in
appropriate activities. This could include talking ,
singing songs, playing with friends, pretending,
interacting with adults, participating in small and /or
large groups, climbing up and down play equipment,
running, walking, coloring, painting, constructing
with blocks or other materials, feeding self, dress ing
etc.
A statement of the family’s resources, priorities a nd
concerns related to enhancing the development of
the child with a disability as identified through t he
assessment of the family, and with their
concurrence. This statement, while optional, shoul d
guide the team in writing outcomes for the child an d
family.
In developing the IEP, the IEP Team must consider
the concerns of the parents for enhancing the
education of their child. This information can be
documented in the present levels of academic
achievement and functional performance or may be
written in the “special considerations” section of the
IEP.
A statement of the measurable results or
measurable outcomes expected to be achieved for
the child (including pre-literacy and language skil ls,
as developmentally appropriate for the child) and
family, and the criteria, procedures, and timelines s
used to determine—1) The degree to which
progress toward achieving the results or outcomes i s
being made; and (2) Whether modifications or
revisions of the results, outcomes or services are
necessary.
A statement of measurable annual goals, including
academic and functional goals designed to, a) meet
the child’s needs that result from the child’s disa bility
to enable the child to be involved in and make
progress in the general education curriculum
(participation in appropriate activities), and b) m eet
each of the child’s other educational needs that
result from the child’s disability.
The IEP must also include a description of how the
child’s progress toward meeting the annual goals wi ll
be measured; and identify when/how child progress
on these goals will be reported (such as through th e
use of quarterly or other periodic reports, concurr ent
with the issuance of report cards)
A statement of the specific early intervention
services, based on peer-reviewed research (to the
extent practicable), that are necessary to meet the
unique needs of the child and the family to achieve
the results or outcomes including-the length,
duration, frequency, intensity, and method of
delivering the services;
A statement of the special education and related
services and supplementary aids and services,
based on peer-reviewed research to the extent
practicable, to be provided to the child, or on beh alf
of the child, and a statement of the program
modifications or supports for school personnel that
will be provided to enable the child—(i) To advance
appropriately toward attaining the annual goals;
a) To be involved in and make progress in the
general education curriculum(appropriate activities )
and b) to participate in extracurricular and other
nonacademic activities;
6.13.07
February 2008
Appendix A, Figure 4-2
Kansas Special Education Process Handbook
2
IFSP
A statement of natural environments in which early
intervention services will be provided, including a
justification of the extent, if any, to which servi ces
will not be provided in the natural setting (place
where the child would be if he/she didn’t have a
disability).
An explanation of the extent, if any, to which the
child will not participate with non-disabled childr en
(e.g why they will not be served in early childhood
settings)
The projected date for when services begin and the
anticipated length of the services. It must also
include how often the service will occur, the amoun t
of time (for example 30 minutes versus an hour),
location, payment for services, and the method of
delivering the early intervention services (i.e., d irect
service, consultation), and identify medical and ot her
services that the child or family needs or is recei ving
through other sources, but that are neither require d
nor funded under Part C.
If those services are not currently being provided
then the IFSP must include a description of the
steps the service coordinator or family may take to
assist the child and family in securing those other
services.
The projected date for the beginning and ending
date of service, any modification needed, and
frequency (how often), location, and duration
(length) of services. The amount of time, for
example, could include 30 minutes of direct service
with a speech-language pathologist 3 days per week
or an hour consultation with an early childhood
special educator 1 hour per week.
A review of the IFSP must be conducted every six
months, or more frequently if conditions warrant, o r if
the family requests such a review. The purpose of
the
periodic review is to determine—1) The degree to wh ich
progress toward achieving the outcomes is being mad e;
and 2) Whether modification or revision of the
outcomes or services is necessary.
In addition to the 6-month periodic review, a meet ing
must be conducted on at least an annual basis to
evaluate and revise the IFSP as appropriate.
A description of how the child’s progress toward th e
annual goals will be measured, including how the
child’s parent will be regularly informed about the
child’s progress. This will include information ab out
whether or not the child is progressing enough to
reach his/her goals for the year. Review
periodically, but not less than annually, to determ ine
whether the annual goals are being met.
The contents of the IFSP must be fully explained to
the
parents and informed consent must be obtained prior to
the provision of early intervention services descri bed in
the IFSP. The IFSP therefore requires one signatur e
from the parent to be in effect.
Parent signature on the IEP indicates that the pare nt
participated in the development of the IEP as a tea m
member. Before the initial provision of special
education and related services can be provided to
the child, Prior Written Notice and Informed writte n
consent must be obtained from the parent.
The identification of the service coordinator from the
profession most immediately relevant to the child’s or
family’s needs (or who otherwise is qualified to ca rry
out all applicable responsibilities) who will be
responsible for the implementation of the plan and
coordinate with other agencies and persons.
No comparable requirement. However, best
practice indicators suggest that Part B programs
take an active role in coordinating services for
families who have children with disabilities. Spec ific
coordination activities may be written in the “spec ial
considerations” section of the IEP.
6.13.07
February 2008
Appendix A, Figure 4-2
Kansas Special Education Process Handbook
3
IFSP
IEP
The Infant Toddler Network must establish a
transition plan not fewer than 90 days--and, at the
discretion of all of the parties, not more than nin e
months--before the child’s third birthday; includin g
steps for the child and family to exit the Part C
program, enter the Part B program (or other
services if found not eligible) and any transition
services needed as a part of that process.
At least nine months before the child’s third
birthday, the Infant Toddler Network must notify th e
school district in which the child resides, that th e
child will reach the age of eligibility for service s
under Part B.
For children transitioning into Part B from Part C, the
IEP Team must consider using an IFSP that
contains the IFSP content (including the natural
environments statement and an educational
component that promotes school readiness and
incorporates pre-literacy, language, and numeracy
skills ), and that is developed in accordance with the
IEP procedures
The IFSP may serve as the IEP of the child if it is
consistent with State policy; and is agreed to by b oth
the agency and the child's parents. If an IFSP is
used the school district must provide the parents a
detailed explanation of the differences between an
IFSP and an IEP; and if the parents choose an
IFSP, obtain written informed consent.
Please note: Regardless of which plan is used for children age
3 and older, procedural safeguards for
Part B of IDEA apply (i.e., Free Appropriate Public Education (FAPE), Extended School Year (ESY)).
Developed by: Stroup-Rentier, V.L., Walters, S.E. & Lindeman, D.P. (2000). Comparison of Individualize d Family Service Plan (IFSP) and the
Individualized Education Program (IEP) Content. Kan sas Inservice Training System (KITS), Kansas Univer sity Affiliated Program at Parsons.
Revised by Misty Goosen, KITS Project Coordinator, June 2007.
The Individuals with Disabilities Education Act Ame ndments of 2004, Public Law 108-446 (2004). Subpar ts C and B. Government Printing
Office: Pittsburgh, PA.
6.13.07
February 2008
Appendix A, Figure 4-2
Kansas Special Education Process Handbook
4
Consent for Using an IFSP Instead of an IEP
_____________________________________________
___________________________
Child’s Name
Date of Birth
I (We) grant consent to use an Individualized Family Service Plan (IFSP) instead of an Individualized
Education Program (IEP) for my (our) child who qualifies for early childhood special education services.
I (We) have had the differences between the IFSP and the IEP explained to me (us). I (We) understand that
I (we) may revoke this consent at any time.
___________________________________________________________
_______________________
Parent/Legal Educational Decision Maker
Date
___________________________________________________________
_______________________
Parent/Legal Educational Decision Maker
Date
KSDE, Sept. 2005
February 2008
Appendix A, Figure 4-3
Kansas Special Education Process Handbook
1
EXCUSAL FROM ATTENDANCE AT IEP MEETINGS
of
REQUIRED IEP TEAM MEMBERS
Date: _________________________________
Student: _______________________________
Date of IEP meeting ____________
Name of parent(s)/decision maker _____________________________
Name of school representative: _______________________________
Position of school representative: ______________________________
UNDERSTANDINGS
I have been informed and understand that the IEP team must include at least
the following: (a) parent of the child; (b) one regular education teacher of the
child (if the child is, or may be, participating in the regular education
environment); (c) one special education teacher or special education
provider of the child; (d) a representative of the school district; (e) an
individual who can interpret the instructional implications of evaluation
results; (f) other individuals who, at the discretion of the parent or the
school, have been invited to the meeting because they have knowledge or
special expertise regarding the child; and, (g) when appropriate, the student.
I have also been informed and understand that: (a) all of the required
members of an IEP team (listed above) must attend each IEP meeting unless
both the parent and the school representative agree in writing that a required
team member does not need to attend all or part of an IEP meeting; and (b)
that a required team member may be excused from attending a meeting that
will involve a modification to or a discussion of the required team member’s
area of the curriculum or related services, only if: (1) both the parent and the
school representative give written consent for the member to be excused;
and (2) the member submits written input regarding the development of the
IEP to both the parent and the other members of the IEP team prior to the
meeting.
KSDE, Sept. 2005
February 2008
Appendix A, Figure 4-3
Kansas Special Education Process Handbook
2
IEP TEAM MEMBER’S AREA OF THE CURRICULUM OR RELATED
SERVICES IS NOT BEING MODIFIED OR DISCUSSED
______________________________________________
(Position of team member)
The member of the IEP team noted above
will not attend the IEP meeting
as both
the school and the parent agree that the team member’s attendance at this meeting is
not necessary.
OR
The member of the IEP team noted above will
only attend the portion of the IEP
meeting
in which the following issues are discussed:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
I
agree
disagree
with the above marked statement:
Date:
(Parent/Legal Decision Maker)
Date:
(Authorized District Representative)
KSDE, Sept. 2005
February 2008
Appendix A, Figure 4-3
Kansas Special Education Process Handbook
3
THE IEP TEAM MEMBER’S AREA OF THE CURRICULUM OR RELATED
SERVICES MAY BE MODIFIED OR DISCUSSED
______________________________________
(Position of team member)
The member of the IEP team noted above is
excused from attending this
IEP meeting
, providing that the member submits written input related to the
development of the IEP to both the parent and to the other members of the
team prior to the meeting.
I
consent
do not consent
to the above marked statement
Date:
(Parent/Legal Decision Maker)
Date:
(Authorized District Representative)
February 2008
Appendix A, Figure 4-4
Kansas Special Education Process Handbook
Student Name:______________________
IEP Meeting Date:____________
IEP Team Considerations
(The child’s IEP must reflect these considerations.)
What are the strengths of the child?
How have the child’s strengths been utilized to address the child’s needs on the IEP?
What are the parents’ concerns, if any, for enhancing the education of their child?
How are the parents’ concerns for the education of their child addressed on the IEP?
Are there any potential harmful effects of the recommended placement on the student and/or the quality of
services for the student? (Do the positive effects of the placement outweigh the potential harmful effects?)
February 2008
Appendix A, Figure 4-4
Kansas Special Education Process Handbook
Will the child participate in regular physical education or does the child require specially designed adapted
physical education? (Children with disabilities only.)
Are extended school year services necessary since the benefits accrued to the child during the regular school
term will be significantly jeopardized as a result of a break in educational programming? (Children with
disabilities only.)
IEP Team Consideration of Evaluation Results
and Special Factors
If yes,
where is
this need
addressed
in the IEP?
Have the needs of the child which were identified in the most recent evaluation of
the child, including observed needs and the child’s performance on general State and
district-wide assessments, been considered in the development of the child’s IEP?
Yes
No
Does the child’s behavior impede his or her learning or that of others?
Yes
No
If the child is blind or visually impaired, does evaluation of the child’s reading and
writing skills, needs, and appropriate reading and writing media (including an
evaluation of the child’s future needs for instruction in Braille or the use of Braille),
indicate that instruction in Braille or the use of Braille is appropriate for the child?
(Children with disabilities only.)
Yes
No
Does the child have limited English proficiency?
Yes
No
Does the child have any special communication needs?
Yes
No
If the child is deaf or hard of hearing, does the child have any special communication
needs relating to opportunities for direct communications with peers and professional
personnel in the child’s language and communication mode, academic level, or
opportunities for direct instruction in the child’s language and communication mode?
(Children with disabilities only.)
Yes
No
Does the child require any assistive technology devices or services in order to be
involved, and to progress in the general curriculum or to be educated in a less
restrictive environment? (Children with disabilities only.)
Yes
No
February 2008
Appendix A, Figure 4-5
Kansas Special Education Process Handbook
CONSENT TO INVITE REPRESENTATIVE
OF NONEDUCATIONAL AGENCY
TO IEP MEETING
I, the parent or adult student identified below, have been informed that
_________________________________________:
(Participating Agency)
____ may be providing or paying for certain transition services for my child;
- OR -
____ may be providing or paying for certain transition services for me, an adult student,
and
I have been further informed that:
It is appropriate for a representative of the above agency to attend an IEP meeting at
which transition services will be discussed; and
Information in my child’s (or in my) education records, including the IEP, that is relevant
to the development of postsecondary goals, transition assessments and transition services
may need to be disclosed to the representative of the above agency at the IEP meeting;
and this disclosure can be made only with my consent which I understand must be
voluntarily given and may be revoked at any time;
CONSENT
Having been informed as stated above, I give my consent for the school district to:
(a) invite a representative of the above agency to attend the IEP meeting scheduled for
_______________ and (b) to disclose at the meeting to the agency representative any
information contained in my child’s (or my) education records that is relevant to the
development of postsecondary goals, transition assessments and/or transition services.
_________________________________ Date: ______________________
(Parent/Adult Student
IEP Meeting Requirements
Project SPOT & KSDE, June 2007
February 2008
Appendix A, Figure 4-6
Kansas Special Education Pro
cess Handbook
IEP Meeting for
Annual Review
IEP Meeting for
any other purpose
Amend an IEP
without Meeting
Notice of Meeting (10-Days Prior to Meeting)
Yes
Yes
No
Required Member Attendance
Yes
Yes
No
IEP Team Considerations Must be Addressed
Yes
As Needed
As Needed
Update Present Levels
Yes
As Needed
As Needed
Update/Change Annual Goals
Yes
As Needed
As Needed
Update/Change Assessment Participation
Yes
As Needed
As Needed
Update/Change Postsecondary Goals
As Needed
As Needed
As Needed
Update/Change Statement of Special Education and Related
Services including Transition Services
*
As Needed
As Needed
As Needed
Educational Placement
*
Yes
As Needed
As Needed
Consideration of Least Restrictive Placement
Yes
As Needed
As Needed
IEP Amendment Form
No
No
Yes
Notice of Proposed Action (of any/all changes in IEP)
Yes
Yes
Yes
Resets Annual Review Date of IEP
Yes
No
No
Parent Receive a Copy of the IEP
Yes
Yes
Upon Request
Consent
Only on * items above and meet one of the criteria below.
*
Consent is required when a change in Special Education and Related Services or Placem
ent meets any of these criteria:
1. Substantial change in placement (more than 25% of the child's school day)
2. Material change in services (25% or more of any one service)
3. Add a new service, or delete a service completely (100%)
December 20, 2007
February 2008
Appendix A, Figure 4-7
Kansas Special Education Process Handbook
IEP Checklist
Considerations by the IEP team that must be documented (but not necessarily on the IEP):
€ Strengths of the Child (KSA 72-987(d)(1))
€ Concerns of the Parents for enhancing the education of their child (KSA 72-987(d)(1))
€ Results of the Initial Evaluation or most recent Reevaluation (KSA 72-987(d)(2))
€ Academic, Developmental and Functional Needs of the Child (KSA 72-987(d)(3))
€ Behavioral Concerns (KSA 72-987(d)(4))
€ Limited English Proficiency (KSA 72-987(d)(5))
€ Braille (for children with disabilities) (KSA 72-987(d)(6))
€ Communication Needs of all Children with Exceptionalities (KSA 72-987(d)(7))
€ Communication Needs of Children who are Deaf/Hard of Hearing (for children with
disabilities) (KSA 72-987(d)(7))
€ Assistive Technology (for children with disabilities) (KSA 72-987(d)(8))
€ Extended School Year (for children with disabilities) (KAR 91-40-3(e)
€ Notification to Kansas Rehabilitation Services (for children with disabilities) (KSA 75-
53, 101)
€ Physical Education Needs (for children with disabilities) (KAR 91-40-3(c))
€ Placement Determined Annually (KAR 91-40-21(e))
€ Potential Harmful Effects (for children with disabilities) (KAR 91-40-21(g))
Content of IEP
€ Present Level of Academic Achievement and Functional Performance including how the
child’s exceptionality affects involvement and progress in the general education
curriculum: (KSA 72-987(c)(1))
€ Measurable Annual Goal(s) (KSA 72-987(c)(2))
€ Short-Term Objectives/Benchmarks – only for children participating in Kansas Alternate
Assessment (KAA) (for children with disabilities) (KSA 72-987(c)(1)(C))
€ How progress toward measurable annual goals will be measured (if goals are written
correctly it will contain this information) (KSA 72-987(c)(3))
€ When progress reports will be provided to parents (KSA 72-987(c)(3))
€ Which State and District Assessments the student will participate in for each content area
(for children with disabilities only)
o Accommodations that are necessary on State and District-Wide Assessments
(KSA 72-987(c)(6)(A))
o If the child participates in the KAMM, KAA or not assessed: (KSA 72-
987(c)(6)(B))
?
Which assessment the child will participate in
?
Why the child cannot participate in the regular assessment and
?
Why the particular assessment selected is appropriate for the child
€ Measurable Postsecondary Goals (for children with disabilities age 14+) addressing
education/training, employment and where appropriate independent living (KSA 72-
987(c)(8)(A))
€ Courses of Study (for children with disabilities age 14+) (KSA 72-987(c)(8)(B))
December 20, 2007
February 2008
Appendix A, Figure 4-7
Kansas Special Education Process Handbook
€ Age 16 Transition Services (for children with disabilities age 16+) (KSA 72-
987(c)(8)(C))
€ Transfer of Rights at Age of Majority (KSA 72-987(c)(9))
€ Statement of Special Education, Related Services, Supplementary Aids and Services,
Program Modifications and Supports for School Personnel (KSA 72-987(c)(4))
€ Projected date for beginning of each of the services (KSA 72-987(c)(7))
€ Frequency/Location/Duration of each of the services (KSA 72-987(c)(7))
€ Explanation of the extent the child will not participate with non-exceptional children in
the regular class (KSA 72-987(c)(5)
€ Gifted children shall be permitted to test out, or work at an individual rate, and receive
credit for required or prerequisite courses, or both, at all grade levels, if so specified in
the child’s IEP. (KAR 91-40-3(g))
9/05
February 2008
Appendix A, Figure 4-8
Kansas Special Education Process Handbook
IEP AMENDMENT BETWEEN
ANNUAL IEP MEETINGS
___________________________________
Name of Student
We understand that this student’s IEP must be reviewed at least annually at
an IEP meeting. However, after the annual IEP meeting for a school year,
the law permits a student’s IEP to be amended without an IEP meeting if the
school representative and the parent or educational decision maker for the
student agree that a meeting is not needed.
Description of proposed IEP Change(s) and effective date(s)
:
(Use additional pages if necessary. Changes in services must specify the frequency, location and duration
of the change of services.)
We
agree
disagree to amend this student’s IEP as described above
and we
do
do not wish to convene an
IEP meeting.
Date:
(Parent/Legal Decision Maker)
Date:
(Authorized District Representative)
A prior written notice form accompanies this agreement, and includes
information the school is required to give to parents before implementing
any proposed change to their child’s IEP. If consent is needed for any
proposed change, a parent must give consent by signing in the consent
portion of the attached form before the change may be implemented.
February 2008
Appendix A, Figure 5-1
Kansas Special Education Process Handbook
Wisconsin Assistive Technology Initiative
Assistive Technology Checklist
Writing
Mechanics of Writing
?
Pencil/pen with adaptive grip
?
Adapted paper (e.g. raised line, highlighted lines)
?
Slantboard
?
Typewriter
?
Portable Word Processor
?
Computer
?
Other:
Alternate Computer Access
?
Keyboard w/Easy Access or Access DOS
?
Keyguard
?
Arm Support (e.g. Ergo Rest)
?
Track Ball/Track Pad/Joystick w/OnScreen Keyboard
?
Alternate Keyboard (e.g. IntelliKeys, Discover Board, TASH)
?
Mouth Stick/Head Pointer w/standard/alternate keyboard
?
Head Mouse/Head Master/Tracker w/OnScreen Keyboard
?
Switch with Morse Code
?
Switch with Scanning
?
Voice Recognition Software
?
Word Prediction (e.g. Co:Writer) to reduce keystrokes
?
Other:
Composing Written Material
?
Word cards/work book/word wall
?
Pocket dictionary/thesaurus
?
Electronic/Talking Electronic dictionary/thesaurus/spell
checker (e.g. Franklin Bookman)
?
Word Processor w/Spell Checker/Grammar Checker
?
Word Processor w/Word Prediction (e.g. Co:Writer) to
facilitate spelling and sentence construction
?
Talking Word Processor for multisensory typing
?
Voice Recognition Software
?
Multimedia Software for expression of ideas (assignments)
?
Other:
Communication
?
Communication Board/Book
with pictures/objects/letters/words
?
Eye Gaze Board (Eye Gaze Communication)
?
Simple voice Output Device (e.g. BigMack, Cheap Talk,
Voice in a box, MicroVoice, Talking Picture Frame, Hawk)
?
Voice Output Device w/Levels (e.g. 6 Level Voice in a Box,
Macaw, Digivox, DAC)
?
Voice Output Device w/Dynamic Display (e.g. Dynavox,
Speaking Dynamically w/laptop computer/Freestyle)
?
Voice Output Device w/Icon Sequencing (e.g. AlphaTalker
Liberator, DAC)
?
Device w/Speech Synthesis for typing (e/g/ Cannon
Communicator, Link, Write:Out Loud w/laptop computer)
?
Other:
Lynch, KJ (9/97), Wisconsin Assistive Technology Initiative
Reading, Studying, and Math
Reading
?
Changes in Text Size, Spacing, color, Background Color
?
Use of Pictures with Text (e.g. Picture It, Writing with
Symbols)
?
Book adapted for page turning (e.g. page fluffers, 3-ring
binder)
?
Talking electronic device to pronounce challenging words
(e.g. Franklin Bookman)
?
Scanner w/Talking Word Processor
?
Electronic books
?
Other:
Learning/Studying
?
Print or picture schedule
?
Low tech aids to find materials (ie., index tabs, color coded
folders)
?
Highlight Text (e.g.markers, highlight tape, ruler, etc.)
?
Voice output reminders for assignments, steps of task, etc.
?
Software for manipulation of objects/concept development
(e.g. Blocks in Motion, Toy Store) – may use alternate
input device, (e.g. switch, touch window)
?
Software for Organization of Ideas and Studying
(e.g. Inspiration, Claris Works Outline, PowerPoint, etc.)
?
Recorded material (books on tape, taped lectures with
number coded index, etc.)
?
Other:
Math
?
Abacus/Math Line
?
Calculator/Calculator with print out
?
Talking Calculator
?
Calculator w/large keys and/or large LCD print out
?
On Screen Calculator
?
Software with templates for math computation (may use
adapted input methods)
?
Tactile/Voice Output measuring devices (e.g. clock, ruler)
?
Other:
Recreation & Leisure
?
Adapted Toys and Games (e.g. toy with adaptive handle)
?
Use of Battery Interrupter and switch to operate a toy
?
Adaptive Sporting Equipment (e.g. lighted/bell ball, velcro
mitt)
?
Universal Cuff to hold crayons, markers, paint brush
?
Modified utensils (e.g. rollers, stampers, scissors)
?
Ergo Rest to support arm for drawing/painting
?
Drawing/Graphic program on computer
(e.g. Kid Pix, Blocks in Motion)
?
Playing Games on the Computer
?
Music Software on Computer
?
Other:
February 2008
Appendix A, Figure 5-1
Kansas Special Education Process Handbook
Wisconsin Assistive Technology Initiative
Assistive Technology Checklist
Activities of Daily Living (ADLs)
?
Adaptive Eating devices (e.g. foam handle on utensil
?
Adaptive Drinking Devices (e.g. cup with cut out rim)
?
Adaptive Dressing Equipment (e.g. button hook, reacher)
?
Other:
Mobility
?
Walker
?
Grab Rails
?
Manual Wheelchair
?
Powered Mobility Toy (e.g. Cooper Car, GoBot)
?
Powered Wheelchair w/joystick, head switch or sip/puff
control
?
Other:
Environmental Control
?
Light swtich extension
?
Use of Powerlink and switch to turn on elelctrical appliances
(e.g. radio, fan, blender, etc.)
?
Radio/Ultra Sound/remote controlled appliances
?
Other:
Positioning & Seating
?
Non-slip surface on chair to prevent slipping (e.g. Dycem)
?
Bolster, rolled towel, blocks for feet
?
Adapted/Alternate chair, side lyer, stander
?
Custom Fitted Wheelchair or insert
?
Other:
Vision
?
Eye Glasses
?
Magnifier
?
Large Print Books
?
Screen Magnifier (mounted over screen)
?
Screen Color Contrast (e.g. CloseView)
?
Screen Magnification Software (e.g. CloseView, Zoom Text)
?
CCTV (closed circuit television)
?
Screen Reader (e.g. OutSpoken)
?
Braille Keyboard and Note taker (e.g. Braille N Speak)
?
Braille Translation Software
?
Braille Printer
?
Other:
Hearing
?
Hearing Aid
?
Classroom Amplification
?
Captioning
?
Signaling Device (e.g. vibrating pager)
?
TDD/TTY for phone access
?
Screen Flash for alert signals on computer
?
Other:
Lynch, KJ (9/97), Wisconsin Assistive Technology Initiative
Comments:
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
Olathe District Schools, Department of Special Services, Revised October, 2004
1
February 2008
Appendix A, Figure 5-2
Kansas Special Education Process Handbook
Olathe District Schools
DOCUMENTATION OF NEED FOR EXTENDED SCHOOL YEAR SERVICES
Student
Name:
IEP Meeting
Date:
Directions for using this form:
During the IEP team meeting in which eligibility for ESY is determined, the IEP team should
review and discuss each factor below, including the “Questions to consider:”, and determine
which, if any, factors support the need for Extended School year services for this student. Each
factor should be marked with a checkmark to indicate if Extended School Year Services are
needed in that area or not. A copy of this form must accompany the ESY information sent to
Patty Shelhorn at WDSC-A, as well as accompany the IEP sent into Joyce Wist in Records at
WDSC-A.
FACTORS FOR TEAM CONSIDERATION AND SUPPORTIVE DATA:
REGRESSION/RECOUPMENT
: The IEP team must determine if without ESY services, there is a likelihood of
substantial regression in an identified area of need addressed by the IEP caused by a school break and a failure to
recover those lost skills in a reasonable time following the school break (e.g., six to eight weeks after summer
break). Regression, for the purpose of this document, is a substantial loss of any skill addressed by the IEP. Some
degree of loss in skills typically occurs with all students during normal school breaks and would not be considered
substantial.
Questions to consider:
•
Does regression/recoupment data suggest that this student’s skill losses over breaks are excessive and that it
takes an unacceptably long period of time (more than 6 weeks) for lost skills to be regained upon return?
•
What is the relative impact of short breaks on student performance?
Describe data considered:
Regresion/Recoupment data for this student indicate that ESY services are needed.
Regression/Recoupment data for this student indicate that ESY services are not needed.
Olathe District Schools, Department of Special Services, Revised October, 2004
2
February 2008
Appendix A, Figure 5-2
Kansas Special Education Process Handbook
DEGREE AND/OR RATE OF PROGRESS:
The IEP team must review the student’s progress toward the IEP
goals and determine if without these services, the student’s degree or rate of progress toward those goals, objectives
or benchmarks will prevent the student from receiving benefit from his/her educational placement during the regular
school year.
Questions to consider:
•
Is there any pattern to the timing of progress (or lack of progress) that would indicate a need for ESY
services?
•
Does the student make progress at expected levels given the nature/severity of the child’s disability?
Describe data considered:
The degree and/or rate of progress for this student indicate that ESY services are needed.
The degree and/or rate of progress for this student indicate that ESY services are not needed.
EMERGING SKILLS/BREAKTHROUGH OPPORTUNITIES:
The IEP team must review all IEP goals and
determine if any of these skills are at a breakthrough point. The IEP team must then determine if the interruption in
services and instruction on those goals, objectives or benchmarks by the school break is likely to prevent the student
from receiving benefit from his/her educational program during the regular school year without these services.
Questions to consider:
•
Has the student reached a critical point of instruction or behavior management where a break in
programming would have serious, detrimental effects?
Describe data considered:
Emerging skills/breakthrough opportunities for this student indicate that ESY services are
needed.
Emerging skills/breakthrough opportunities for this student indicate that ESY services are not
needed.
Olathe District Schools, Department of Special Services, Revised October, 2004
3
February 2008
Appendix A, Figure 5-2
Kansas Special Education Process Handbook
INTERFERING BEHAVIORS:
The IEP team must determine if without ESY services any interfering behavior(s)
such as ritualistic, aggressive or self-injurious behavior(s) targeted by IEP goals will prevent the student from
receiving benefit from his/her educational program during the school year. The team must also determine that the
interruption of programming which addresses the interfering behavior(s) is likely to prevent the student from
receiving benefit from his/her educational programming during the next school year.
Questions to consider:
•
Does the student’s behavior (or interruption of programming addressing the behavior) prevent the student
from receiving benefit from his/her educational program?
Describe data considered:
Interfering behaviors for this student indicate that ESY services are needed.
Interfering behaviors for this student indicate that ESY services are not needed.
NATURE AND/OR SEVERITY OF THE DISABILITY:
The IEP team must determine if without ESY services,
the nature and/or severity of the student’s disability is likely to prevent the student from receiving benefit from
his/her educational program during the regular school year.
Questions to consider:
•
Could ESY Services markedly slow the rate of degeneration anticipated due to a student’s medical
condition?
•
Are the services an integral part of a program for populations of students with the same disabling condition
and would a break in programming have a serious, detrimental effect?
•
Are there any other individual circumstances that make the provision of ESY services critical so that this
child can learn or participate in school activities upon return to school?
Describe data considered:
The nature and/or severity of the disability for this student indicate that ESY services are
needed.
The nature and/or severity of the disability for this student indicate that ESY services are not
needed.
Olathe District Schools, Department of Special Services, Revised October, 2004
4
February 2008
Appendix A, Figure 5-2
Kansas Special Education Process Handbook
SPECIAL CIRCUMSTANCES OR OTHER FACTORS:
The IEP team must determine if without ESY services
there are special circumstances that will prevent the student from receiving benefit from his/her education program
during the regular school year. Indicate which, if any, factors are applicable in this case:
Ability of the child’s parents to provide the educational structure at home;
Ability of the child to interact with children without disabilities;
Areas of the child’s curriculum, which need continuous attention; and
The child’s vocational needs.
Describe data considered:
Special circumstances or other factors for this student indicate that ESY services are needed.
Special circumstances or other factors for this student indicate that ESY services are not
needed.
If no empirical data are available on regression, then the need may be shown by expert opinion or prospective
criteria established by the IEP team
. The IEP Team should include their Special Service Coordinator to assist
in this documentation.
This decision should be based upon an examination that includes, but is not limited to the
following:
•
Documented regression and recoupment time;
•
Review of the current IEP goals, objectives or benchmarks;
•
Progress on goals in consecutive IEPs;
•
Observation and data from teachers, therapists, parents, and others having direct contact with the student
before and during breaks in educational programming;
•
Data and observations regarding the student’s performance after long weekends, vacations, and past
summer breaks;
•
Assessment of information maintained on the student, including pretest and post-test data; and
•
Curriculum-based assessment, including pretest and post-test data; and other relevant factors.
•
Progress notes/reports;
•
Standardized tests;
•
Behavior logs;
•
Parent interviews;
•
Attendance information;
•
Other objective evidence; and
•
Expert opinions.
LRE Decision Tree
Project SPOT & KSDE SSS, June 2007
February 2008
Appendix A, Figure 6-1
Kansas Special Education Pro
cess Handbook
1
Will the student be successful
with services/supports provided
within the general classroom?
NO
Placement is the
General
Education
Classroom
.
Are there additional services or
supports
that can be provided that
would enable the student to be
successful in the general
education classroom?
Will the benefits of a more
restrictive setting outweigh the
benefits of remaining in the
general education classroom?
1
2
3
4
4a
4b
4c
Identify
Placement Option
that team feels is
appropriate &
reconsider
questions for
Placement
Determination
.
NO
YES
YES
NO
Placement is the General
Education Classroom
.
YES
Are there additional services or
supports that can be provided that
would enable the student to be
successful in a less restrictive
setting
?
NO
Placement is the
General
Education
Classroom
.
YES
Placement is that
Less Restrictive
Setting
Placement is
made in the
identified setting.
4d
4e
Identify Goals
Evaluate & Identify Individual Student Needs
Determine Services & Supports Needed
Placement Determination
Project SPOT & KSDE SSS, June 2007
February 2008
Appendix A, Figure 6-2
Kansas Special Education Process Handbook
1
Evaluate & Identify Needs
– For the IEP Team to be able to make any decision
s for a student they must clearly understand the st
udent’s needs. Think beyond
academics and consider function as well.
•
Does the team understand how the disability manifes
ts itself within the general education classroom?
•
Does the team understand what it is about the stude
nt’s disability that prevents the student from bein
g successful in the general education classroom?
2
Identify Goals
– After the team completely understands the studen
t’s needs they can then prioritize the needs and id
entify the goals for the student (both post-
school and annual goals). Using their understanding
of the two questions above the team can determine
what the student needs to become more independent a
nd
successful within the general education classroom.
3
Determine Services & Supports Needed to Achieve Goa
ls & Meet Other Needs
– After the goals for the student have been identi
fied that team then moves
to determining what services and supports need to b
e provided to enable the child to achieve those goa
ls and to address the other needs identified in the
present
levels but do not have goals written for them. The
services that the team needs to consider are specia
l education, related services, program modification
s,
supplementary aids & services and supports for scho
ol personnel. When making these decisions the team
needs to keep in mind how much support the student
needs to be successful. Too much support can build
dependence in a child but providing the wrong type
of services can prevent the student from being able
to
function in more independent ways. In addition to a
ll of these considerations it’s important to rememb
er, by law, a child with a disability cannot be rem
oved
from age-appropriate general classrooms solely beca
use of needed modifications in the general educatio
n curriculum. Some questions to keep in mind when
making service decisions include:
•
Are there skills that could be taught to the studen
t in order to reduce the amount of support she/he n
eeds?
•
Is the focus every year on making the student as in
dependent as possible?
Note: The following are placement decisions not ser
vice decisions, they are not considered at this poi
nt: Resource Room, Pull-Out, Self-Contained, Inclus
ion,
Center Based, BD/ED Program.
4
Determine Placement
– Once the team has determined the services that t
he student needs then the discussion can move to pl
acement, where services will be
provided. To assist with this decision process the
following questions lead the team through the place
ment discussion.
4a
Can the services determined necessary be provided w
ithin the general education classroom?
– When having this conversation try to focus on wh
ether
services could be provided in the general education
classroom and not how we typically provide service
s. The discussion of whether the services can be
provided in the general education classroom must be
done for each individual student based on their sp
ecific needs. If the team determines it is possible
to
provide the services in the general education class
room then the least restrictive environment for the
student is the general education classroom.
4b
If not, are there additional services or supports t
hat can be provided that would enable the student t
o be successful within the general education
classroom? –
If the team determines that the services as origina
lly identified as necessary are unable to be provid
ed in the general education classroom the next
discussion should be whether additional supports or
services could be provided that would allow the st
udent to remain within the general education classr
oom.
When making the decisions the team should consider
the same issues of student independence as was cons
idered in Step 3.
4c
If not, will the benefits of a more restrictive set
ting outweigh the benefits of remaining in the gene
ral education classroom?
– If the team determines that
it is not possible to provide additional services a
nd supports in the general education classroom to m
eet the needs of the student then the consideration
of
placement options outside of the general education
classroom are then considered. The team should move
in small incremental steps away from the general
education classroom and at each movement in the con
tinuum the team should readdress questions in 4a an
d 4b for that placement. It is not until this point
in the
placement determination does the team consider plac
ement options such as pull-out, resource room, etc.
In making this decision, the team should consider
(a)
whether reasonable efforts have been made to accomm
odate the student, (b) the educational benefits, bo
th academic and social that are available in each s
etting,
(c) the possible negative effect of the inclusion o
f the student on the education of other students, a
nd (d) the harmful effects of a more restrictive en
vironment on
the student.
4d
Identify Placement Option that team feels is approp
riate & reconsider questions for Placement Determin
ation
– If it is determined that the general
classroom is not appropriate, based on the student’
s needs and the services to be provided, the team i
dentifies a reasonable and appropriate placement.
4e
Are there additional services or supports that can
be provided that would enable the student to be ser
ved in a less restrictive setting?
– The team needs
to consider whether program modifications could occ
ur or additional services could be provided which w
ould enable the student to be appropriately served
in a
less restrictive setting. Even if these program mod
ifications have never before been provided in the l
ess restrictive setting, it should still be conside
red. When
making the decision the team should consider the sa
me issues of student independence as described in S
tep 3. Placement in the less restrictive setting s
hould
occur if additional modifications or supports would
make that setting appropriate for the student.
Kansas State Board of Education
February 2008
Appendix A, Figure 6-3
Kansas Special Education Process Handbook
MEMORANDUM OF CLARIFICATION
94-A
TO:
All Superintendents and Directors of Special Education
FROM:
Director, Student Support Services
DATE:
May 20,1994
RE:
94-A
Kansas State Board of Education Policy on
Least Restrictive Environment
This memorandum is written notification of revocation of Student Support Services Policy
Letter
91-1: Least Restrictive Environment.
This policy letter is replaced by the
Kansas State Board of
Education Policy on Least Restrictive Environment for Students with Disabilities
dated March 8, 1994
and
Response to Questions Regarding the Issue of Inclusion of Special Education Students for the
Senate Education Committee
dated March 30, 1994.
Rationale: On March 8, 1994 the Kansas State Board of Education adopted a policy statement on least
restrictive environment for students with disabilities. On March 30, 1994, the State Board responded
to questions from the Senate Education Committee regarding the issue of inclusion. As a result of
these two new initiatives in the realm of least restrictive environment, the Student Support Services
has decided to revoke Policy
Letter 91-1: Least Restrictive Environment
dated January 7, 1991 and
replace it with the least restrictive environment policy statement adopted by the State Board of
Education and response to questions put forth by the Senate Education Committee.
The State Board of Education adopted the policy statement on least restrictive environment to clarify
its position and give guidance to schools in carrying out federal requirements of the Individuals with
Disabilities Education Act. The federal law involves the practice of including students with disabilities
in the regular education classroom to the maximum extent appropriate.
Under the new policy statement, removing children with disabilities from the regular education
environment occurs only when the nature or seventy of the disability is such that, even using
supplementary aids and services, education cannot be achieved in the regular classroom. Each
student's individual needs will determine placement. The policy statement contends that placement
decisions can no longer be based on categorical labels. However, individual strengths and needs
should determine the student's program.
The responses to the questions regarding inclusion put forth by the Senate Education Committee
should be helpful to Superintendents and Special Education Directors dealing with the vast array of
special education service options available to students with disabilities. Emphasis is given to placing
the student with a disability in his or her neighborhood school. Including all children with disabilities
in the regular education classroom will also require additional teacher training in order to equip
teachers with the tools and skills they need to address curriculum, diversity in the classroom and
teaming concepts.
The policy statement adopted by the State Board of Education and response to questions put forth by
the Senate Education Committee are enclosed.
Kansas State Board of Education
February 2008
Appendix A, Figure 6-3
Kansas Special Education Process Handbook
March 8, 1994 Kansas State Board of Education Policy on Least Restrictive Environment for Students
with Disabilities
Background
Since the enactment of The Individuals with Disabilities Education Act (IDEA), a variety of terms
have been coined to reference the practice of educating students with disabilities with students who are
not disabled. Mainstreaming, the Regular Education Initiative (REI), integration, and inclusion have
been used frequently and interchangeably. Given the absence of State or Federal definition, these
terms mean different things to different people. This policy is intended to set forth guidance to local
education agencies in carrying out the requirement of IDEA that,
to the maximum extent appropriate,
children with disabilities including children in public or private institutions or other care facilities,
are educated with children who are not disabled, and that special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment occurs only when the
nature or severity of the disability is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.
This is the legal premise which
provides the basis for including students with disabilities in general education.
Historically, students with disabilities have been separated from their nondisabled peers based upon
the belief that quality instruction to address their unique needs could only be provided in special
separate settings by personnel with special education or related services credentials. The result has
been the creation of a separate system of education and a dilution of the instructional resources
available to all students. This dual system, while perhaps a necessary step in the evolution of
educational practice, promoted an exclusionary philosophy and the separation of students with
disabilities from their nondisabled peers. Frequently, students with disabilities have been educated in
separate schools or in classrooms located in cluster arrangements rather than in their neighborhood
schools. The result for students with disabilities has been little or no access to the general education
classroom, as well as a lack of opportunities to develop friendships with nondisabled classmates.
Special and general educators have taught in isolation without opportunity for collaboration,
accountability and a mutual responsibility for all children and youth in Kansas.
In contrast, inclusive educational programs are those which serve all students, including those with
disabilities, in the context of general education. Students are removed from the general education
environment only when it is clear that they cannot succeed in that environment even with adequate
supplemental aids and services. The amount of time spent outside of the general education classroom
is determined by the student's individualized education program (IEP). Placement decisions are based
on the student's unique needs rather than on categorical characteristics. It is critical that the placement
process be carefully considered with opportunity for participation by the affected parties - - parents,
students and school personnel. The cost of providing inclusive education may be a factor in
determining placement when that cost has a significant adverse affect on the other students in the
school district. As stipulated in 34 CFR 300.552(c),
[u]nless the IEP of a child with a disability
requires some other arrangement, the child is educated in the school that he or she would attend if
nondisabled.
Placement is reviewed annually, but may be changed whenever the IEP Team deems
necessary. A change of placement is indicated when a student with a disability is so disruptive in a
general education setting that the education of other students is significantly impaired or when the
safety of others is endangered.
Important Points
*
Schools should value each student regardless of his or her abilities or disabilities.
*
Schools should provide dynamic, individualized and innovative learning opportunities for
ALL students.
*
Schools should strive to provide education based on the needs of individual students with
disabilities as determined by a well designed-IEP.
* Schools should facilitate outcomes-based education by combining all of the specialized
Kansas State Board of Education
February 2008
Appendix A, Figure 6-3
Kansas Special Education Process Handbook
resources at the school to enhance learning of all students at the school.
Factors Involved in Student Placement
It is imperative that each student's individual needs determine placement. Placement should reflect the
setting in which the student's needs can best be met when providing the educational services needed to
implement the student's IEP. Placement decisions must not be based solely on any of the following
factors: category of handicapping condition, configuration of the service delivery system, availability
of educational or related services; availability of space; curriculum content; or methods of curriculum
delivery. Individual strengths and needs should determine the student's program. The type and
intensity of special education and related services required for the student to derive educational benefit
must be made available.
In the field of education, the value of diversity is beginning to be recognized, as well as the value of
individualizing each student's education, to address his/her diverse learning styles, strengths and
needs. Kansas students who have disabilities benefit from receiving their education in general
education settings alongside their nondisabled classmates. Similarly, Kansas students who do not have
identified disabilities also benefit from inclusive educational programs by learning to appreciate
diversity and value the achievement of those with disabilities. The Board recognizes the need for a full
continuum of special education service options, but supports the age-appropriate, general education
classroom in the school the student would attend if not disabled as the placement of choice for Kansas
students with disabilities. Instead of a separate track educational system, schools are encouraged to
strive toward a unified system that values and includes students of varying levels of ability.
Important Points
* Placement is comprised of the
setting
of the educational program and the
educational program
itself.
* Placement shall not be made based upon the student's categorical label nor upon administrative
convenience.
* Special education is not a place - it is services which may be provided in any setting.
Supplemental Aids and Services in the Classroom
When students with disabilities are included, adequate resources must be provided from the outset to
the general education program. Support can be provided at many levels. Supplementary aids and
services include, but are not limited to, materials or equipment provided in conjunction with general
education classroom instruction, consulting specialists, itinerant teachers, resource rooms, tutoring,
instructional support provided by paraprofessional personnel, assistive technology, readers and
interpreters. Support may take the form of teacher consultation or direct instruction by the special
educator in the classroom. Teacher training is also a vital support. Training in curriculum models
which address diversity in the classroom, as well as training in skills of collaboration, are key elements
of successful teacher inservice training plans. Practices which have been proven effective include:
teaming arrangements involving general and special education staff and parents working together
collaboratively to support students with and without disabilities; special and general educators
teaching together; and the provision of related services and other needed supports within the context of
the general educational program.
Support in the general education classroom must be more than a token effort. It should not be assumed
that even an extremely skilled teacher and supportive peers can adequately include a student with
disabilities without direct support from special educators. Support must be provided at the level
needed in order for the student with disabilities to derive educational benefit from his/her educational
program. The responsibility for ensuring adequate programming remains with the school district and
the IEP process.
February 2008
Appendix A, Figure 6-4
Kansas Special Education Process Handbook
Kansas State School For The Deaf
Policy Handbook
APPROVED NOVEMBER 14, 2007
February 2008
Appendix A, Figure 6-4
Kansas Special Education Process Handbook
Preface
The following are policies which govern the operation of the Kansas State School
for the Deaf (KSSD). The guidelines and procedures which address the means of
implementing these policies are not included, although this information is readily
available by contacting the Superintendent's office or the Human Resource’s office
at the school, (913) 791-0573.
These policies are reviewed annually on a routine basis, and are subject to review at
any time. Comments and observations related to these policies are always
welcome.
RRRRoooobbbbeeeerrrrt
t t
t AAAA.
.
.
. MMMMaaaaiiiilllleeee
, Ph.D.
Superintendent
The Kansas State School for the Deaf (KSSD) does not discriminate on the basis of race, color,
national origin, sex, disability, or age in its programs or activities. The following person has been
designated to handle inquiries regarding the nondiscrimination policies: Human Resources
Director, 450 E. Park St., Olathe KS 66061 913-791-0573 Voice/TTY.
1
February 2008
Appendix A, Figure 6-4
Kansas Special Education Process Handbook
CONTENTS
INTRODUCTION
Vision, Mission, Belief Statements,
& Agency Objectives
Pg. 3
INSTRUCTION
SECTION 1:
Education Programs
Pg. 5
SECTION 2:
School Improvement
Pg. 8
SECTION 3:
Student Focus
Pg. 9
ADMINISTRATION
SECTION 4:
Office of the Superintendent
Pg. 12
SECTION 5:
Fiscal Management
Pg. 13
SECTION 6:
Human Resources
Pg. 14
SECTION 7:
Facilities Mgt and Support Services
Pg. 18
SECTION 8:
Safety and Security
Pg. 19
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Introduction
VISION STATEMENT
A school, a community, a society in which hearing acuity is incidental, barriers are minimized, human
potential is maximized and people are judged by their contributions and their character. (The extent to
which a person does or does not hear becomes irrelevant.)
MISSION STATEMENT
TOTAL ACCESSIBILITY TO LANGUAGE, COMMUNICATION AND EDUCATIONAL
EXCELLENCE IN A VISUAL ENVIRONMENT
. The education and student life programs at
KSSD not only support this mission for our students, but also work to be an integral part of that
mission.
BELIEF STATEMENT
All students can and will learn and have the right to an academically rigorous and culturally rich
environment. Both American Sign Language and English are equally valued and Deaf culture
and heritage are an integral part of the total school program.
OBJECTIVES
The following objectives support the mission of the Kansas State School for the Deaf:
-
Involve parents and families of deaf children as important participants in the educational
process and strengthen their skills as contributors to communication, language, and social
and cognitive growth.
-
Create a total educational environment including the school, student life facilities, and
extracurricular programs with interdisciplinary teams planning for each student’s social,
emotional, academic, and physical development.
-
Develop in each child a native fluency in one or more languages, and through that
language make accessible the same outcomes accessed by Kansas public school children.
-
Help each student acquire the skills and interests necessary to function in each cultural
group with which the student identifies and to recognize and respect other cultures.
-
Strengthen educational quality and accountability through performance-based curricula
and evaluation systems, strengthen positive environments, and develop environments that
empower the learners and staff.
-
Expand career, lifelong learning, and applied technical preparation which is relevant to the
changed nature of work in an informational society.
-
Extend and update, for educators and other professional staff, the professional competence
and leadership excellence that is essential to quality education.
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-
Increase the Kansas School for the Deaf leadership role in the community, including the
promulgation of awareness of deafness, the delivery of services to persons who are deaf,
and the development of community employment opportunities for the deaf.
-
Provide services to deaf children with special needs, as programs for these children are
developed and appropriately funded.
-
Expand the capacity of the Kansas School for the Deaf to function as a resource center for
all programs and agencies serving deaf and hard-of-hearing children in Kansas.
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Section 1:
INSTRUCTION
P-1000 EDUCATION PROGRAMS
P-1000 Education Programs
The Kansas State School for the Deaf will adhere to state and federal laws and regulations
regarding the education of children with disabilities, including any related policies as may be
issued by the Kansas State Board of Education. KSSD will offer programs and services within
available state resources that assist Kansas schools in meeting their responsibility to provide a
free and appropriate public education to their students who are deaf or hard of hearing. This
includes assisting LEA’s throughout the state in their efforts to identify and serve deaf and hard-
of-hearing children.
P-1100 TITLE IX
The Kansas State School for the Deaf does not discriminate because of sex (gender) in the
education programs or activities that it operates. This requirement not to discriminate in
education programs and activities extends to employment and to admission.
No student or employee of the Kansas State School for the Deaf shall, based on sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity conducted by the Kansas School for the Deaf.
More specifically, the Kansas School for the Deaf will treat its students without discrimination
based on sex regarding access to and participation in course offerings, athletics, counseling,
employment assistance and extracurricular activities as prescribed by the Title IX regulations.
Grievance procedures have been adopted and posted on bulletin boards and are available from the
Human Resources office. All new employees receive/sign for a copy at time of orientation.
(P-6750)
P-1200 ADVISORY COMMITTEE/SITE COUNCIL
A combined KSSD Advisory Committee/Site Council will convene at least twice per year.
Representation will be included from:
-
Kansas Association of the Deaf
-
Kansas Commission for the Deaf and Hard of Hearing
-
Johnson County Mental Health Services
-
Kansas Educational Foundation for the Deaf and Hard of Hearing
-
Olathe Club of the Deaf
-
KSSD Alumni Association
-
KSSD Parent Teacher Staff Organization
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Johnson County Community College
-
Kansas Rehabilitation Services
-
KSSD Teachers
-
KSSD Student Life
-
KSSD Related Services
-
KSSD Student Body Council
P-1300 SCHOOL ACCREDITATION
KSSD shall fulfill all requirements for accreditation by KSDE and by the North Central
Association of Colleges and Schools. This includes the requisite length of school year and
fulfilling all state and federal individualized education program requirements as agreed upon at
IEP meetings.
P-1400 CONFIDENTIALITY (FERPA)
KSSD will ensure the protection of confidentiality of any personally identifiable data, records, or
files collected during the student’s evaluation or maintained during their educational tenure. All
student records will be maintained, accessed, released to outside parties, or disposed of as
specified by law and regulation.
P-1500 REDUCTION BY TERMINATION AND RECALL
The certificated staff may be reduced by termination owing to a decrease in the number of
students, causes over which KSSD has no control, and/or State Board approved modification of
existing programs. Certificated staff may be recalled as conditions permit.
P-1600 PLACEMENT OPTIONS
KSSD serves as a placement option among the continuum of options mandated by federal law. In
addition, students attending KSSD have, as a placement option, participation in Olathe Public
School classes. Such placement must result from the recommendation of the IEP team.
P-1700 COMMUNICATION
Deaf students must communicate and interact in two different cultures. Consequently, American
Sign Language and English are both valued and are an integral part of the total school program.
It is a part of the KSD mission to develop in each child a native fluency in one or more languages,
and through that language make accessible the same outcomes accessed by children in Kansas
Public Schools.
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American Sign Language (ASL) is recognized as the language that characterizes communication
among most of our students. ASL is a first and native language. English is taught as a second
language. Consequently, during a child’s early, formative years an environment rich in first
language communication (ASL) is considered essential for building the foundation needed to
establish fluency in a second language (English).
All means of acquiring a second language facility are implemented as appropriate and indicated
on Individualized Education Programs (IEPs). These include reading, writing, speech and
language therapy, use of amplification, and ASL instruction.
All persons communicating in the KSSD environment are asked to “sign all the time” to the
extent possible.
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Section 2:
INSTRUCTION
School Improvement
P-2000 SCHOOL IMPROVEMENT
The Kansas School for the Deaf shall develop, in accordance with the rules, regulations, and accreditation
requirements of the Kansas State Department of Education a school improvement plan which shall be
reviewed and updated annually.
P-2100 CURRICULUM
Curricula shall be consistent with KSDE academic standards for accredited schools and with the
continuous improvement monitoring (CIM) process. In addition, the curriculum shall reflect
current best practices of instruction for deaf and hard-of-hearing children.
P-2200 GRADUATION REQUIREMENTS
Students may graduate from high school and be issued a credit-based diploma in a manner
consistent with KSDE accreditation requirements, and provisions agreed upon at IEP meetings.
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Section 3:
INSTRUCTION
Student Focus
P-3000 STUDENT RESPONSIBILITY
It is recognized that students have a responsibility to learn and to take advantage of the
opportunities the school offers both inside and outside the classroom to acquire knowledge and
skills and to develop independence, physical fitness, and social skills. Appropriate exercise of
this responsibility is a prerequisite for ongoing placement at KSSD.
P-3100 STUDENT CONDUCT
Students are to conduct themselves in a manner that does not detract from the efforts of other
students to learn and benefit from these opportunities. Students who conduct themselves as stated
by this policy shall be recognized for their efforts. Students whose conduct is not consistent with
this policy will face disciplinary action as delineated in the Parent Student Handbook. This
includes compliance with federal and state regulations regarding drugs, weapons, and firearms.
P-3300 ATTENDANCE
KSSD will follow Kansas State law, which requires that students attend school regularly. LEA
representatives and the District Attorney’s office will be informed when students are out of
compliance.
P-3400 STUDENT SUSPENSIONS AND EXPULSIONS
KSSD shall follow the suspension and expulsion regulations as stated in KSDE special education
regulations. This may include a review of whether KSSD is the appropriate placement for the
student.
P-3500 HARASSMENT
Harassment of others, whether the harassment is physical, sexual, or verbal will not be tolerated.
(Harassment is defined as annoying or tormenting repeatedly and persistently.) Hazing is
considered a form of physical harassment and is also not tolerated.
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P-3550 BULLYING
Bullying on KSSD property, in a KSSD vehicle or at any KSSD-sponsored activity or event is
prohibited.
The Superintendent of KSSD shall develop a plan to address bullying on KSSD property, in
KSSD vehicles and at KSSD sponsored-activities and events. The plan shall be submitted to the
State Board of Education for its approval. When approved, the Superintendent shall assure that
the plan is implemented. As used in this Policy, the following definitions apply.
(1) ‘‘Bullying’’ means: (A) Any intentional gesture or any intentional written, verbal or physical
act or threat that is sufficiently severe, persistent or pervasive that it creates an intimidating,
threatening or abusive educational environment for a student or staff member that a reasonable
person, under the circumstances, knows or should know will have the effect of:
(i) Harming a student or staff member, whether physically or mentally;
(ii) Damaging a student’s or staff member’s property;
(iii) Placing a student or staff member in reasonable fear of harm to the student or staff
member; or
(iv) Placing a student or staff member in reasonable fear of damage to the student’s or
staff member’s property; or
(B) Any other form of intimidation or harassment prohibited by any policy of KSSD.
(2) ‘‘School vehicle’’ means any school bus, school van, other school vehicle and private vehicle
used to transport students or staff members to and from school or any school-sponsored activity
or event.
P-3600 STUDENT BEHAVIOR – ALCOHOL, DRUGS, DRUG
PARAPHERNALIA, AND/OR OTHER CONTROLLED SUBSTANCES
Illegal drugs, alcohol, drug paraphernalia, and/or other controlled substances are not permitted on
the KSSD campus or at any KSSD sponsored activity for any reason at any time. (Prescription
medications for students must be administered under the supervision of or as directed by the
school nurse.)
P-3700 TOBACCO
The use of any tobacco product on campus is prohibited. Tobacco products mean cigarettes,
cigars, chewing tobacco, etc. (Ref. K.S.A. 21-4010)
P-3800 SEARCH AND SEIZURE
School officials have the right to, and will periodically, inspect school property, including
lockers, desks, automobiles, and dormitory rooms, abiding by state and federal right to privacy
requirements.
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P-3850 CORPORAL PUNISHMENT AND PHYSICAL RESTRAINTS
No teacher or administrator shall use physical force or physical contact against a student or strike
a student as punishment. However, nothing in this policy shall be construed to keep a teacher or
administrator from using reasonable and necessary physical force to restrain a student in order to
protect one’s self, other persons, to prevent the destruction of property, or to prevent any illegal
overt act on the part of the student.
P-3900 FIELD TRIPS
All field trips must be educational in purpose and are subject to administrative and parental
approval. (Specific procedures must be followed and related forms completed.)
P-3910 STAFF-STUDENT FRATERNIZATION
To maintain an appropriate, professional staff-student relationship, KSSD employees are not
permitted to associate with students outside of the school environment. Students seeking
counseling, tutoring, or other personal assistance must address this need in the school or
dormitory setting. An exception to this policy may be made with employees who are also parents
of KSSD students. It is understood that their role as employee and parent conflict under this
policy. These employees must notify their supervisors of students who may be visiting their
homes.
P-3920 COMPUTER USE/ACCESS TO THE INTERNET
KSSD views the network file storage areas as public areas which may be monitored. KSSD
reserves the right to, and will periodically, inspect computer files and communications to
maintain system integrity and insure that users are using the system responsibly. Computer users
shall be provided with guidelines and expectations for responsible use. (P-8920/staff)
P-3930 FREEDOM OF SPEECH AND EXPRESSION
The Kansas State School for the Deaf Superintendent or designee may reasonably regulate the
time and place of speeches, assemblies, distribution of literature, and content of school
publications.
P-3940 RESIDENCY
Students are required to live either with their parent/guardian, spouse, or in KSSD’s dormitory.
The IEP team may consider alternate living arrangements. If the IEP team feels that an alternate
living arrangement better fits the individual needs of the student, a recommendation will be made
to the Superintendent that this requirement be waived.
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Section 4:
ADMINISTRATION
Office of the Superintendent
P-4000 SUPERINTENDENT AUTHORIZATION POLICY
The powers and duties of the Superintendent of the Kansas State School for the Deaf are
established by the policies of the Kansas State Board of Education. The Superintendent serves
at the pleasure of the Board and is responsible for all reports to the Board. The Superintendent
also reports to the executive and legislative branches of state government regarding the school’s
services, facilities, and budget. The Superintendent shall administer and implement the written
policies of the State Board of Education as they pertain to KSSD.
In addition, the
Superintendent shall initiate administrative practices and procedures, which will efficiently
fulfill the mission and educational objectives of the school. (Ref. K.S.A. 76-1002)
P-4100 MEDIA AND COMMUNITY RELATIONS
The Superintendent shall be the media contact for all matters concerning the school. The
Superintendent may designate others to perform this function as needed.
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Section 5:
ADMINISTRATION
Fiscal Management
P-5000 BUSINESS OPERATIONS
The Kansas State School for the Deaf shall conduct all business operations in compliance with
federal and state regulations, and professionally accepted business procedures and practices, and
execute its fiduciary responsibilities in compliance with the statutes, regulations and policies of
the State of Kansas. (Ref. KS DOA Division of Accts & Rpts Policy and Procedures Manual)
P-5100 BUSINESS OPERATIONS
All activities conducted under the Business Operations are performed under the guidelines set
forth by the Division of Accounts and Reports according to Generally Accepted Accounting
Procedures (GAAP).
P-5200 STATE PROPERTY
The Kansas State School for the Deaf shall comply with the regulations and policies of the
Department of Administration, Division of Purchases regarding the acquisition, disposition, and
management of state property.
P-5300 SUPERVISION OF FACILITIES & SERVICES
The Kansas State School for the Deaf will manage its facilities and services in a manner that best
supports the school’s mission, and will operate as efficiently as possible within the parameters of
its resources.
P-5400 AUTHORIZATION TO PURCHASE
Purchase contracts (purchase orders) shall be issued only after appropriate authorizations have
been obtained. For requisitions requiring a bid, it shall be the administrative responsibility of the
Business Office/Purchasing Department to work with the representative of the requesting
departments or buildings to issue detailed specifications or requirements describing all materials
and services to be procured by either a Request for Bid or Request for Proposal. (Ref. KS DOA
Division of Purchasing Policy and Procedures Manual)
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Section 6:
ADMINISTRATION
Human Resources
P-6000 EMPLOYMENT WITH THE STATE OF KANSAS
The Kansas State School for the Deaf will comply with all applicable federal and state laws and
regulations regarding employment practices, and will comply with other employment policies that
may be developed by the Kansas State Board of Education.
P-6010 EQUAL EMPLOYMENT OPPORTUNITY / AFFIRMATIVE
ACTION
The Kansas State School for the Deaf (KSSD) does not discriminate on the basis of race, color,
national origin, sex, disability, or age in its programs, employment, or activities. The following
person has been designated to handle inquiries regarding the nondiscrimination policies: Human
Resources Director, 450 E. Park St., Olathe KS 66061 913-791-0573 Voice/TTY.
P-6020 BACKGROUND CHECKS
The Kansas State School for the Deaf will conduct background checks prior to a prospective
employee’s first duty day. These background checks will focus on verification of work history
and education credentials, and identify any criminal history.
P-6100 CLASSIFIED / UNCLASSIFIED SERVICE
The Kansas State School for the Deaf shall comply with all statutes, regulations, policies, and
directives pertaining to all employment actions involving staff in the Classified and Unclassified
Service. (Ref. K.S.A. 76-1002a)
P-6110 SCHOOL VOLUNTEERS
Volunteers approved for assistance on campus or at school-sponsored events may be subject to a
collection of background data, references, and a background check.
P-6200 SEXUAL HARASSMENT
KSSD shall maintain a school environment that is free of sexual harassment. Guidelines and
procedures shall be adopted to implement this policy and shall be posted on campus and available
through the Human Resources office. All new employees receive/sign for a copy at time of
orientation.
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P-6300 PERFORMANCE REVIEWS AND EXPECTATIONS
The Kansas State School for the Deaf expects its employees to fulfill the duties of their job
description in a manner that supports the mission of the school. Each employee will be evaluated
at a minimum of once a year, or as otherwise directed by the Superintendent in a manner
consistent with requirements for state employees.
P-6400 CERTIFIED TEACHING STAFF TENURE
KSSD will comply with the Kansas statutes governing teacher tenure.
P-6420 LICENSES, REGISTRATIONS, AND CERTIFICATIONS
Kansas State School for the Deaf employees shall be properly licensed, registered, or certified in
accordance with the requirements for the position which they hold.
P-6450 EMPLOYMENT ACTIONS
Kansas State School for the Deaf employees will conduct themselves in a manner that supports
the mission of the school and does not cause disruptions to the work or learning of others.
P-6480 EMPLOYMENT ACTIONS: PROMOTIONS/TRANSFERS
KSSD shall treat employees of the school on an equal basis with all other applicants without
regard to race, creed, color, national origin, religion, age, disability, sex, sexual orientation, or
veteran status. This applies to every aspect of work, including hiring, demotion, layoff or other
terminations, recalls from layoff, rates of pay and other benefits, and selection for training.
Promotion/transfer will be considered based on qualifications for the position and the needs of the
school at the time. (Ref. K.S.A. 75-2949)
P-6485 LAYOFF AND RECALL/FURLOUGH
Any layoff or furlough of classified staff will be in accordance with controlling state regulations.
Any layoff or furlough of unclassified staff will be in accordance with directives issued by the
Superintendent.
P-6490 OUTSIDE EMPLOYMENT/EDUCATION
KSSD employees are expected to place the responsibilities and obligations of their KSSD job
first, and will be allowed to engage in outside work/education on off-duty time only if it does not
interfere or create a conflict of interest with their KSSD primary job.
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P-6500 COMPENSATION AND BENEFITS
KSSD will abide by federal and state statutes, regulations, policies, and standard practices
regarding the management and administration of compensation and benefits. (Ref. K.A.R. 1-5-1
to 1-5-30)
P-6510 STARTING SALARY OF UNCLASSIFIED EMPLOYEES
The Superintendent possesses the authority to determine the final placement of an Unclassified
employee on the approved KSBE salary schedule.
P-6600 INCLEMENT WEATHER
Unless otherwise notified staff are to report to work as usual unless doing so would pose undue
hardship or risk. Any official school closing due to inclement weather must be initiated by the
Superintendent. Inclement weather guidelines and procedures are available in the
Superintendent’s office.
P-6610 CONFLICTS OF INTEREST
The Kansas State School for the Deaf expects all employees to comply with the Governmental
Ethics Law and the state regulation on nepotism.
P-6620 WORKPLACE VIOLENCE
Threats, threatening behavior, acts of violence, or any related conduct that disrupts another’s
work performance or the organization’s ability to execute its mission, will not be tolerated.
P-6627 CRISIS MANAGEMENT
The Kansas State School for the Deaf shall establish and maintain a crisis plan to handle
situations of immediate risk to staff, students, and visitors regarding situations involving fire,
weather, intruders, toxic chemicals, bomb threats, etc. This plan shall be available for review in
the superintendent’s office.
P-6630 DRUG FREE WORKPLACE
The Kansas State School for the Deaf will comply with the Drug Free Workplace Act and the
Drug-Free Schools and Communities Act, and abide by related federal, state and local laws.
P-6700 KANSAS OPEN RECORDS ACT
The Kansas State School for the Deaf shall comply with all aspects of the Kansas Open Records
Act.
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P-6750 GRIEVANCE PROCEDURE
The Kansas State School for the Deaf shall provide an equitable and timely method for resolving
dissatisfaction associated with work related issues which may have an adverse affect on an
employee. (Ref. K.A.R. 1-12-1)
P-6800 TOBACCO
The use of any tobacco product on campus is prohibited. Tobacco products mean cigarettes,
cigars, chewing tobacco, etc. (Ref. K.S.A. 21-4010)
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Section 7:
ADMINISTRATION
Facilities Management and Support
Services
P-7000 FACILITIES AND SERVICES
Facilities and services will be provided which directly or indirectly enhance and support the
mission of educating students who are deaf or hard of hearing.
P-7100 FOOD SERVICES PROGRAMS
The School Food Services program shall be consistent with the National School Food Services
program, in addition to offering a la carte food items, thereby providing adequate and nourishing
meals for participating students.
P-7200 BLOODBORNE PATHOGEN EXPOSURE CONTROL
KSSD shall follow the requirement of applicable federal and state law and regulations for a
blood-borne pathogen exposure control plan.
P-7300 COMMUNICABLE DISEASE CONTROL & PREVENTION
KSSD shall implement regulations and inform students, parents, and school personnel of the
regulations pertaining to the control of communicable diseases as established and printed by the
Kansas State Department of Health and Environment and the Johnson County Department of
Community Health.
P-7400 USE OF FACILITY
Facilities are to be used for the education of students who are deaf or hard-of-hearing, and for
activities that support this effort. Other uses of the facilities may be considered from time to time
at the discretion of the Superintendent.
P-7500 USE OF STATE VEHICLES
KSSD vehicles are to be used for the transportation of students and staff in the support of
educating students who are deaf or hard-of-hearing, and for activities that support the mission of
the school.
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Section 8:
ADMINISTRATION
Safety and Security
P-8000 SAFETY AND SECURITY
The Kansas State School for the Deaf shall strive to provide a safe and secure environment for
students, staff and visitors.
P-8100 OCCUPATIONAL SAFETY AND HEALTH
The Kansas State School for the Deaf shall comply with all state and federal laws and regulations
concerning occupational health and safety.
P-8200 REPORTING OF CHILD ABUSE OR NEGLECT
All school employees will take appropriate action to report suspected child abuse or neglect to the
proper authorities in accordance with State statutes.
P-8920 COMPUTER USE/ACCESS TO THE INTERNET
KSSD views the network file storage areas as public areas which may be monitored. KSSD
reserves the right to, and will periodically, inspect computer files and communications to
maintain system integrity and insure that users are using the system responsibly. Computer users
shall be provided with guidelines and expectations for responsible use. (P-3920/student)
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Kansas State School for the Blind
Policy Handbook
Approved November 14, 2007
P-1 General
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Subsections of P-1 General
P-1000 Compliance – Education Programs
Policy ...................................................................................................................... 3
(a) Title IX..................................................................................................... 3
(b) Quality Performance Accreditation (QPA-2005) .................................... 3
(c) No Child Left Behind (NCLB) ................................................................ 3
(d) Individuals with Disabilities Education Act (IDEA-1997, 2004) ........... 3
(e) Family Educational Rights and Privacy Act (FERPA) ........................... 4
(f) Protection of Pupil Rights Amendment (PPRA) ...................................... 4
(g) Safe and Drug Free Schools and Communities Act (SDFSCA) ............... 4
(h) Gun-Free Schools Act (GFSA) – 1994 ................................................... 4
P-1001 Introduction ................................................................................................ 4
P-1002 Definition of Terms .................................................................................... 5
P-1003 Notice of Policy Availability ...................................................................... 5
P-1004 Policy Revisions .......................................................................................... 6
P-1005 Policy Exceptions ......................................................................................... 6
P-1006 Reporting Infractions of Policies.................................................................. 7
P-1007 Policy Sanctions ........................................................................................... 7
(a) Student Considerations ............................................................................. 7
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P-1000 Compliance – Education Programs Policy
The Kansas State School for the Blind (KSSB) shall adhere to state and federal laws and
regulations regarding the education of children with disabilities, including any related policies as
may be issued by the Kansas State Board of Education (KSBE). KSSB will offer programs and
services within available state resources that assist Kansas schools in meeting their responsibility
to provide a Free and Appropriate Public Education to their students with visual impairments.
(a)Title IX
KSSB does not discriminate on the basis of race, color, national origin, sex, age, or
disability in admission or access to, or treatment or employment in, any of its
programs and activities. Any person having inquiries concerning KSSB’s
compliance with the regulations implementing any federal law prohibiting
discrimination may contact the Human Resource Director at KSSB, 1100 State
Avenue, Kansas City, Kansas 66102, (913) 281-3308 (ext. 308), who has been
designated by KSSB to coordinate compliance with the regulations implementing
federal nondiscrimination laws. Any person may also contact the Assistant
Secretary for Civil Rights, U.S. Department of Education.
(b) Quality Performance Accreditation (QPA-2005)
KSSB has been fully accredited through the QPA system since it entered the
process in 1997, and embraces the Continuous Improvement Process.
(c) No Child Left Behind (NCLB)
The reauthorization of the Elementary and Secondary Education Act (ESEA) of
1994 is known as No Child Left Behind (2001). KSSB complies with this federal
mandate, and with its coordination in Kansas with the state accreditation system
(Quality Performance Accreditation – QPA).
(d) Individuals with Disabilities Education Act (IDEA-1997, 2004)
KSSB complies with the requirements of the federal law and the Kansas
regulations, including its compliance with NCLB.
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(e) Family Educational Rights and Privacy Act (FERPA)
KSSB complies with FERPA in ensuring parents and students (at age 18) the right
to review education records, to seek to amend them, and to consent to their
disclosure (except as specified by law). Further, KSSB annually notifies parents
and students (age 18 or older) of these rights and the procedures and criteria
involved (including the right to file a complaint) in the Student/Parent Handbook.
KSSB ensures the protection of confidentiality of any personally identifiable data,
records, or files collected during the students’ evaluation or maintained during
their educational tenure. All student records are maintained, accessed, released to
outside parties, or disposed of as specified by law and regulation.
(f) Protection of Pupil Rights Amendment (PPRA)
KSSB complies with PPRA in affording parents the right to consent before
students (under the age of 18) are required to submit to a survey concerning certain
protected areas. Parents also have the right to receive notice, to opt a student out of
protected information surveys, non-emergency invasive physical exams, and
activities which would involve the marketing of personal information. Parents have
the right to inspect such surveys and any instructional material used as part of the
curriculum. These rights are detailed annually in the Student/Parent Handbook.
(g) Safe and Drug Free Schools and Communities Act (SDFSCA)
KSSB complies with this act in the creation of a safe, disciplined, drug and
violence-free school where the climate is conducive to the achievement of high
standards for all students, and the curriculum includes drug prevention education.
(h) Gun-Free Schools Act (GFSA) – 1994
KSSB complies with this Act consistent with the Individuals with Disabilities
Education Act (IDEA) and state regulations.
P-1001 Introduction
KSSB is a state institution under the control and supervision of the Kansas State Board of
Education (KSBE), authorized by K.S.A 76-1101 through 1117. To regulate the activities of
KSSB personnel and students, KSBE has approved and authorized these policies.
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P-1002 Definition of Terms
The following terms are used in this document. When used in reference to actions an individual
might perform, these words are to be interpreted as follows:
IEP
The abbreviation “IEP” stands for Individualized Educational Program.
KSBE
The abbreviation “KSBE” stands for the Kansas State Board of Education.
KSSB
The abbreviation “KSSB” stands for the Kansas State School for the Blind.
May
The word "may" indicates an optional action or precaution that is not required by
this policy, but is explicitly allowed.
Must
The word "must" indicates a mandatory requirement of this policy.
Optional
The word “optional” will refer to actions that are not required by this policy, but
which are explicitly permitted.
Shall
The word "shall" indicates a mandatory requirement of this policy.
Should
The word "should" indicates a policy recommendation, but not a requirement.
P-1003 Notice of Policy Availability
KSSB shall post and maintain, in at least one conspicuous public location on the KSSB campus, a
notice of policy availability. The notice shall include a listing of the policy sections with the most
recent revision dates, where a copy of these policies is available for on-site review, and an
explanation of how to obtain a copy of these policies for a nominal copying fee as specified by
applicable laws and regulations.
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P-1004 Policy Revisions
The administration of KSSB realizes that policies will not be perfect, and that circumstances will change
over time. As such, these procedures dictate how policies will be revised and kept up-to-date.
The following steps shall be followed:
1. Proposed policy changes shall be submitted to the Office of the Superintendent.
2. A committee appointed by the Superintendent will review policies and proposed changes at least
once every fiscal year.
3. Policy changes that are determined necessary or beneficial shall be combined and submitted to
KSBE for final approval.
4. Approved changes shall be added to the official policies, and appropriate revision records made.
5. A notice of policy changes, if any, shall be distributed with employee time-sheets during the
pay-period following policy approval.
All official copies of these policies shall include obvious and clear indication of the most recent date of
revision.
P-1005 Policy Exceptions
In some circumstances, policies may prevent or impede necessary functions of KSSB employees or
associates. This section outlines the procedures which establish and document exemptions.
The following steps shall be followed:
1. Determine the function(s) impeded by policy.
2. Determine what policies are the cause of impedance.
3. Consult with department supervisors and determine the most specific exemption that will permit
necessary functions.
4. Document the details of the exemption, including what actions are exempted, which employees
are exempted, and the duration of exemption (if applicable). There is no specific form or format
for this purpose.
5. Submit a request to the Office of the Superintendent for approval of the exemption. The
Superintendent or designee shall have final say in what exemptions are approved or denied.
Approved exemptions shall be filed in the Office of Human Resources, and copies shall be made
available to exempted employees.
6. Ensure that members of management, and if necessary other staff members, are notified of
policy exemptions to ensure that unnecessary disciplinary actions are not initiated.
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P-1006 Reporting Infractions of Policies
In order for policies to be effective, infractions must be reported to the proper authorities. Upon witnessing
or discovering any infraction of a KSSB policy, all personnel are required to report the infraction to a
department supervisor and the Superintendent or designee.
There is no form or specific format to be used for reporting purposes. Reports may be in any
form, including but not limited to aural, written, or digital.
When reporting severe infractions, personnel are encouraged to request a written
acknowledgment of their report from the Office of Human Resources.
In the event that an employee reports their own infraction, the act of reporting the infraction does
not excuse or exempt the employee from disciplinary actions. The act of self-reporting may be
considered when determining disciplinary actions.
P-1007 Policy Sanctions
The KSSB Superintendent or designee is authorized by KSBE to administer reasonable progressive
disciplinary actions in response to infractions of these policies.
(a) Student Considerations
Student disciplinary actions will take into considerations the appropriate provisions of IDEA and
state regulations.
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Kansas State School for the Blind
Policy Handbook
P-2 School Organization
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Subsections of P-2 School Organization
P-2001 Governance ................................................................................................ 11
P-2002 Purpose ....................................................................................................... 11
P-2003 Mission....................................................................................................... 11
P-2004 Advisory Council ....................................................................................... 11
(a) Purpose & Functions................................................................................ 11
(b) Membership............................................................................................. 11
(c) Meetings................................................................................................... 12
P-2005 School Organization Plan............................................................................ 12
(a) Elementary School................................................................................... 12
(b) Secondary School..................................................................................... 12
P-2006 Statewide Outreach Services....................................................................... 12
P-2007 Additional Campus-Based Programs & Services........................................ 13
P-2008 Extended Day Program (EDP).................................................................... 13
P-2009 Extended School Year (ESY) Program........................................................ 13
P-2010 School Accreditation................................................................................... 14
P-2011 Student Placement Options......................................................................... 14
P-2012 School Year................................................................................................. 14
P-2013 School Calendar.......................................................................................... 14
P-2014 School Day................................................................................................. 14
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P-2001 Governance
The Kansas State School for the Blind (KSSB) is governed by the Kansas State Board of Education
(KSBE), and receives guidance on its programs and services by the KSSB Advisory Council.
P-2002 Purpose
The Kansas State School for the Blind (KSSB) is a special purpose school for students, ages 3-21 years of
age who are visually impaired and are referred by their local school district for evaluation at KSSB in
consideration of a placement decision. Admission to KSSB is determined by an IEP team based on the
student's need for more intensive and/or specialized services than may be currently available in his/her
home school. KSSB is a secondary service provider that assists school districts in their provision of a Free
and Appropriate Public Education for their students, through time-limited placements and statewide
outreach services. Regardless of where KSSB services are provided, school districts retain primary
responsibility for their students.
P-2003 Mission
The mission of KSSB is to empower students with the knowledge, attitudes, and skills needed to assume
responsible roles in society and to lead fulfilling lives. With an environment rich in comprehensive
services, education specialists, an individualized accredited curriculum, and transition planning, KSSB
will lead through partnerships with parents, local schools, and community resources to ensure equal access
to a high quality education for all Kansas students who are blind or visually impaired regardless of where
they attend school.
P-2004 Advisory Council
KSSB shall establish and maintain an Advisory Council, which will also function as its site council.
(a) Purpose & Functions
The Advisory Council shall be responsible for providing advice and counsel for evaluating state,
school district, and KSSB performance goals and objectives and in recommending methods which
may be employed at KSSB to meet these goals and objectives. The Advisory Council may discuss
and make recommendations to the Superintendent regarding KSSB programs and services.
(b) Membership
The membership of the Advisory Council shall be open to representatives of teachers and other
school personnel, KSSB Alumni, local and state consumer groups, Special Education
Administrators, Kansas Social and Rehabilitation Services (SRS), the Kansas State School for the
Deaf (KSSD), parents of pupils attending the school, the business community, community leaders,
and others as designated by the Superintendent.
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(c) Meetings
The Advisory Council shall establish meeting schedules convenient for its membership. In order
to evaluate effectiveness, the council shall complete a written report at least once each school year
that shall be shared with the superintendent. When required, the Superintendent shall submit these
reports to KSBE.
P-2005 School Organization Plan
KSSB's campus-based school program addresses both academic and disability-specific learning needs
(Braille, utilization of low vision, cane travel skills, assistive technology, daily living skills) of students
through intensive instruction by specialists in blindness during the school day and in evening programs in
the dormitory.
(a) Elementary School
The Elementary Program contains Preschool, Kindergarten, Primary and Elementary
classes including students aged 3 through the 5th grade.
(b) Secondary School
The Secondary Program covers Middle and High School grades 6 through 12.
P-2006 Statewide Outreach Services
KSSB shall provide, within available resources, outreach services to schools, organizations, and
individuals concerned with blindness or visual impairment issues in Kansas in order to enhance and
support services at the local level. These services may include consultative or direct services through
outreach specialist, as well as a materials center and clearing-house for specialized materials for students
with visual impairments including Braille and large type books, educational aids, and assistive technology.
KSSB may charge reasonable fees for such services as authorized by the Superintendent.
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P-2007 Additional Campus-Based Programs & Services
The goal of KSSB's educational program is to prepare blind students for independence. To accomplish
this, KSSB shall integrate several specialized services throughout all programs, including:
(a) Braille instruction.
(b) Tactual and auditory learning methods in all academic and non-academic learning areas.
(c) The use of low vision aids such as telescopes, magnifiers, and closed circuit television reading
systems.
(d) Orientation and Mobility, including cane travel and related skills.
(e) Early-childhood education for children 3-5 years old (day students).
(f) Career Education designed to overcome the high unemployment rate of blind
individuals of working age.
(g) Community-based instruction training students with multiple disabilities how to function
independently in the community.
(h) A full range of athletic and other extracurricular activities which allow participation and
access by all interested students.
(i) Health services such as nursing and eye care required by the many medically fragile students
attending KSSB.
(j) The promotion of self-concepts which empower blind students to view themselves as learners,
contributors, citizens, workers, and future parents.
(k) Training in the use of assistive technology for the blind.
(l) Training in specialized skills used by the blind to live independently in the community.
P-2008 Extended Day Program (EDP)
KSSB shall provide organized, formal instructional services which continue on through the evening hours.
A curriculum focused on the skills of daily living shall be taught by Instructional Assistants under the
guidance of a certified Rehabilitation Teacher.
P-2009 Extended School Year (ESY) Program
KSSB shall provide summer educational programs which allow blind students (both those who do and
those who do not attend KSSB during the regular term) to have access to the specialized services which
are needed to fully meet the requirements of their IEPs. These programs should include career
development training, organizational skills, academic remediation, instruction in compensatory skills (like
Braille), orientation and mobility (travel training), the skills of daily living, and training in specialized
technology, and others as determined by the Superintendent.
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P-2010 School Accreditation
KSSB shall fulfill all requirements for accreditation by KSBE and the Quality Performance
Accreditation System. This includes the requisite length of school year and fulfilling all state and
federal individualized education program requirements as agreed upon at Individualized
Education Program (IEP) meetings. KSSB shall fully engage in the Continuous Improvement
Process as defined by the Quality Performance Accreditation (QPA) system.
P-2011 Student Placement Options
KSSB serves as a placement option among the continuum of options mandated by the federal
Individuals with Disabilities Education Act (IDEA 1997-2004). In addition, students attending
KSSB have, as an additional placement option, part-time participation in local accredited schools
while they also attend KSSB. Such dual placements must result from the recommendation of the
IEP team.
P-2012 School Year
KSSB shall provide for a school term consisting of more than the minimum number of statutorily
required school hours:
(a) greater than 1116 school hours for all grades (K through 11)
(b) greater than 1,086 school hours for grade 12.
P-2013 School Calendar
The Superintendent shall establish a school calendar for each school year.
P-2014 School Day
The Superintendent shall establish the time of beginning and ending the school day and other time
schedules. (KSA 72-1106)
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Kansas State School for the Blind
Policy Handbook
P-3 Administration
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Subsections of P-3 Administration
P-3001 Office of the Superintendent......................................................................... 17
(a) Temporary Policies..................................................................................... 17
P-3002 Office of Human Resources.......................................................................... 17
P-3003 Office of Business Management................................................................... 17
P-3004 Information Sensitivity................................................................................. 18
(a) Confidential Information............................................................................ 18
(1) Encryption......................................................................................... 18
(2) Disposal...................................................................................................... 18
(b) Internal Information................................................................................... 18
(c) Public Information..................................................................................... 18
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P-3001 Office of the Superintendent
The powers and duties of the Superintendent of the Kansas State School for the Blind (KSSB) are
established by the policies of the Kansas State Board of Education (KSBE). The Superintendent serves at
the pleasure of KSBE and is responsible for all reports to KSBE. The Superintendent shall serve as
KSBE's liaison to the executive and legislative branches of state government regarding the school’s
services, facilities and budget. The Superintendent shall have active oversight responsibility for all policy,
personnel, and budgetary decisions, and shall have active leadership in the development of all curricular
and extra-curricular programs of KSSB. The Superintendent, or designee, is the spokesperson for KSSB in
regard to the media or in any other situation where the official position of the school is being represented.
(K.S.A 76-1115)
(a) Temporary Policies
The superintendent has the authority to establish and enforce reasonable temporary policies to
comply with federal or state legislative, judicial, or executive mandates; to implement or maintain
necessary educational services in accordance with KSSB's mission and purpose; and to
accommodate other unforeseen circumstances. These temporary policies shall be provided to
KSBE for modification, permanent approval, and/or dismissal.
P-3002 Office of Human Resources
KSSB's Office of Human Resources shall manage all aspects of employment, compensation and benefits,
and employee relations.
P-3003 Office of Business Management
KSSB's Office of Business Management shall manage all aspects of routine business operations, including
the supervision of budget, facilities, support services, and procurement.
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P-3004 Information Sensitivity
Information at KSSB shall be explicitly classified, as required by applicable law or designated by the
Superintendent, into three categories of sensitivity: confidential, internal, and public. The classification of
information categories shall be documented in the Personnel Handbook and the Student & Parent
Handbook.
(a) Confidential Information
Confidential information shall be kept strictly private and only provided on a need-to-know basis,
and as authorized by applicable laws and regulations.
(1) Encryption
All confidential information, shall be encrypted using approved software tools as defined
in P-9007(b), when: transmitted over untrusted systems (P-9001); stored on a device or
medium not located in a secure KSSB facility; stored on archive media intended to last
more than one year; or as directed by the Superintendent.
(2) Disposal
KSSB personnel and students shall dispose of confidential information by shredding or
other suitable method approved by the Superintendent which will render the information
incomprehensible and irrecoverable.
(b) Internal Information
Internal information shall be kept private and only distributed internally among KSSB personnel.
Internal information shall not be made publicly available or distributed to students or non-KSSB
personnel without explicit authorization from the superintendent.
(c) Public Information
Public information may be distributed freely to anyone.
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Kansas State School for the Blind
Policy Handbook
P-4 Business Management
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Subsections of P-4 Business Management
P-4000 Compliance............................................................................................................... 21
P-4001 Budget....................................................................................................................... 21
P-4002 Purchasing................................................................................................................. 21
(a) Business Procurement Card....................................................................................21
(b) Fuel Charge Card................................................................................................... 21
(c) Local Audit Authority........................................................................................... 22
(d) Cash Accounts...................................................................................................... 22
(1) Petty Cash Fund....................................................................................... 22
(2) Student Trust Fund.................................................................................. 22
(3) Student Benefit Fund................................................................................ 22
(4) KSSB Imprest Fund.................................................................................. 22
P-4003 Travel....................................................................................................................... 22
P-4004 Hazardous Waste Management................................................................................ 23
P-4005 Facilities & Services................................................................................................. 23
(a) Acceptable Use................................................................................................................ 23
(b) Food Services.................................................................................................................. 23
(c) State Vehicles...................................................................................................................23
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P-4000 Compliance
The Kansas State School for the Blind (KSSB) makes every attempt to comply with the requirements of all
applicable laws and regulations. The following laws and regulations are specifically applicable to business
management policies and procedures of KSSB:
(a) Kansas Department of Administration, Division of Accounts and Reports Policy and
Procedures Manual
(b) Kansas Department of Administration, Division of Accounts and Reports Generally
Accepted Accounting Procedures
P-4001 Budget
KSSB's Office of Business Management shall be responsible for managing the process of creating and
maintaining an annual agency budget in accordance with applicable laws and regulations.
P-4002 Purchasing
KSSB shall have Local Purchasing Authority for purchases up to the amount specified by the Kansas
Department of Administration, Division of Purchases. Purchases must follow the policies and procedures
of the Kansas Department of Administration, Division of Purchases. Purchases are to be made from State
of Kansas contracts, Correctional Industries and Industries for the Blind and Disabled when available. A
manual defining the procedures for purchasing shall be maintained by the Office of Business Management.
(a) Business Procurement Card
The State of Kansas Business Procurement Cards (BPC) shall be used in accordance with the
policies and procedures defined by the Kansas Department of Administration, Division of
Purchases and Division of Accounts and Reports. Any BPC may be used for in-store purchases as
well as mail, phone, fax or Internet orders, as allowed by applicable laws and regulations. Each
BPC shall only be used by the authorized cardholder.
(b) Fuel Charge Card
The gasoline charge cards shall be used in accordance with the policies and procedures defined by
the Kansas Department of Administration, Division of Purchases and Division of Accounts and
Reports. Each KSSB vehicle shall be assigned a gasoline charge card. The gasoline charge card
for each vehicle will be carried in the storage compartment of that specific vehicle. Instructions for
using the gasoline charge card to fuel a vehicle shall be stored with each gasoline charge card.
Gasoline charge cards shall be used exclusively to purchase vehicle fuel and minor repairs as
specified in the Kansas Department of Administration guidelines.
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(c) Local Audit Authority
KSSB shall have Local Audit Authority for expenditures under an amount specified by the Kansas
Department of Administration, Division of Accounts and Reports. The KSSB personnel involved
in the KSSB Audit Process will be the Superintendent, Business Manager, Accounting Specialist,
Procurement Officer, and any designee thereof.
(d) Cash Accounts
The Office of Business Management shall maintain the cash accounts defined in this subsection. A
manual defining the procedures for administration of these funds shall be maintained by the Office
of Business Management.
(1) Petty Cash Fund
KSSB shall maintain a petty cash fund to be used to reimburse personnel for eligible
school related purchases as permitted by applicable laws and regulations. When a school
related purchase is made using the personal funds of KSSB personnel, the purchaser may
request reimbursement for the purchase. The itemized cash register receipt for the
payment is required in order to request reimbursement. A canceled check, copy of credit
card slip or other documents are not accepted in lieu of a cash register receipt.
(2) Student Trust Fund
The Student Trust Fund shall be maintained by KSSB for use by students for
miscellaneous personal expenses. Money is received from students, parents, guardians or
other sources that support KSSB students. Expenditures from the Student Trust Fund must
be approved by the Superintendent or designee.
(3) Student Benefit Fund
The Student Benefit Fund shall be maintained by KSSB to be used for the benefit of the
student body in general or for an individual student in need. Money for this fund is
received from vending machine sales, students, parents, guardians or other sources that
support KSSB students. Expenditures from the Student Benefit Fund must be approved by
the Superintendent or designee.
(4) KSSB Imprest Fund
The KSSB Imprest Fund shall be maintained for the purposes provided for by the Kansas
Department of Administration, Division of Accounts and Reports Policies and Procedures.
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P-4003 Travel
KSSB shall adhere to and administer the rules and regulations regarding travel established by the
State of Kansas and the Kansas State Board of Education (KSBE).
P-4004 Hazardous Waste Management
KSSB's Office of Business Management shall maintain a manual of procedures for the handling of
hazardous waste in a manner that complies with applicable laws and regulations, and which serves
the best interest, health, and safety of KSSB students and personnel.
P-4005 Facilities & Services
KSSB shall manage its facilities and services in a manner that best supports the school's mission,
and to operate as efficiently as possible within the parameters of its resources.
(a) Acceptable Use
KSSB shall ensure that its property and services are used for the education of students
who are visually impaired, and for activities that support this effort. Other uses of facilities
may be considered from time to time at the discretion of the Superintendent.
(b) Food Services
The KSSB School Food Services program shall be consistent with the National School
Food Services program, thereby providing adequate and nourishing meals for participating
students.
(c) State Vehicles
KSSB shall ensure that its vehicles are used for the transportation of students and
personnel in the support of educating students who are visually impaired, and for activities
which support this effort.
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Kansas State School for the Blind
Policy Handbook
P-5 Personnel
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Subsections of P-5 Personnel
P-5000 Compliance.............................................................................................................. 27
P-5001 Definitions................................................................................................................ 27
P-5002 Equal Employment Opportunity/Affirmative Action............................................. 28
P-5003 Background Checks................................................................................................ 28
P-5004 Licenses, Registrations, and Certifications............................................................. 29
P-5005 Employee Conduct.................................................................................................. 29
P-5006 Compensation and Benefits..................................................................................... 29
P-5007 Performance and Expectations................................................................................. 29
P-5008 Grievance Procedures............................................................................................... 29
P-5009 Faculty Tenure.......................................................................................................... 29
P-5010 Inclement Weather.................................................................................................... 29
P-5011 Conflicts of Interest.................................................................................................. 29
P-5012 Outside Employment................................................................................................ 30
P-5013 Nepotism.................................................................................................................. 30
P-5014 Retirement Programs............................................................................................... 30
(a) KPERS.................................................................................................................. 30
(b) 457 Plans.............................................................................................................. 30
(c) 403(b) Plans........................................................................................................... 30
(d) U.S. Savings Bonds............................................................................................... 30
P-5015 Volunteering............................................................................................................. 31
P-5016 Recording Device..................................................................................................... 31
P-5017 Staff Reduction and Recall....................................................................................... 31
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P-5000 Compliance
The Kansas State School for the Blind (KSSB) makes every attempt to comply with the requirements of all
applicable laws and regulations. The following laws are specifically applicable to personnel policies and
procedures of KSSB:
(a) Kansas Civil Service Act (K.S.A. 75-2925 et seq.)
(b) Fair Labor Standards Act of 1938, as amended
(c) Equal Pay Act of 1963, as amended
(d) Title VI & VII of the Civil Rights Act of 1964, as amended
(e) Age Discrimination in Employment Act of 1967, as amended
(f) Title IX of the Education Amendments of 1972, as amended
(g) The Rehabilitation of 1973, as amended
(h) The Immigration Reform and Control Act of 1986, as amended
(i) The Americans with Disabilities Act of 1990, as amended
(j) The Civil Rights Act of 1991, as amended
(k) The Family Medical Leave Act of 1993, as amended
P-5001 Definitions
Family Member
A spouse, parent, child, or sibling; sibling as denoted by the prefix half; parent, child or sibling
denoted by the prefix step; foster child; uncle, aunt, nephew, niece; any parent or child of a
preceding or subsequent generation as denoted by the prefix grand or great; or parent, child or
sibling related by marriage as denoted by the suffix of in-law.
Household Member
Any and all persons who reside in, dwell or inhabit the same residence, whether related or not.
Regular Employee
Any individual who is appointed to an established Full Time Equivalent (FTE) position either full
or part-time, and who is not a contractor, volunteer, or employed in a temporary capacity. This
definition applies to positions in both the classified service or unclassified service.
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Temporary Employee
Any individual who is appointed to a position is not assigned Full Time Equivalent (FTE) status
and is limited to not more than 999 hours of employment within a 12 month period. This
definition applies to positions in both the classified service and unclassified service (K.A.R. 1-2-
85).
Contractor
Any consultant, professional or individual who is authorized to perform specific and temporary
contractual services on behalf of the Kansas State School for the Blind in return for compensation.
Contractors are not appointed in any capacity to any KSSB position established within the State of
Kansas payroll system.
Classified Service
All positions established under the Kansas Civil Service Act, as amended (K.S.A. 75-2925).
Unclassified Service
All position specifically exempt from the Kansas Civil Service Act as defined by K.S.A. 75-2935,
as amended, or other sections of the statutes (K.S.A. 75-2935(r); K.S.A. 76-1115 through 76-
1117).
Volunteer
Any person who is authorized to perform services on behalf of the Kansas State School for the
Blind without compensation.
Recording Device
Any device, analog or digital, with a primary purpose of storing or transmitting visual or auditory
information. This includes, but is not limited to, still cameras, video camcorders, web cams,
mobile phones, and voice recorders.
P-5002 Equal Employment Opportunity/Affirmative Action
KSSB does not discriminate on the basis of race, color, national origin, sex, age, disability, sexual
orientation, or other non-merit reasons in admission or access to, or treatment or employment in, any of its
programs and activities, as required by applicable laws and regulations.
P-5003 Background Checks
KSSB shall conduct background checks prior to the first duty day of a prospective regular employee or
temporary employee. These background checks will focus on verification of work history and education
credentials, and identify any criminal history. When deemed necessary, background checks shall be
conducted on volunteers and contractors.
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P-5004 Licenses, Registrations, and Certifications
KSSB employees shall be properly licensed, registered, or certified in accordance with the requirements
for the position which they are appointed.
P-5005 Employee Conduct
KSSB requires that its employees conduct themselves in a manner that supports the mission of the school
and does not cause disruption to the work and learning of others.
P-5006 Compensation and Benefits
KSSB shall abide by statutes, regulations, policies, and standard practices regarding the management and
administration of compensation and benefits. The Superintendent shall determine the appropriate level of
compensation for staff, as authorized within the provisions of the Kansas Civil Service Act and the Kansas
State Board of Education (KSBE).
P-5007 Performance and Expectations
KSSB shall have a performance evaluation system that defines expectations and evaluates outcomes of
regular employees. The performance evaluation system shall provide a defined appeal process.
P
-5008 Grievance Procedures
KSSB shall have grievance procedures that provide an equitable and timely response to dissatisfaction
associated with work related issues.
P-5009 Faculty Tenure
KSSB shall comply with statutes governing the tenure of a “teacher”, as defined in K.S.A. 76-11a04.
P-5010 Inclement Weather
Any official school closing due to inclement weather must be authorized by the Superintendent and
administered in accordance within established procedures.
P-5011 Conflicts of Interest
KSSB shall comply with all aspects of the Kansas Governmental Ethics Commission.
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P-5012 Outside Employment
KSSB requires that its employees do not receive compensation for outside employment activities that
should rightfully be performed by KSSB as part of its responsibilities. Employees are expected to place the
responsibilities and expectations of their position with KSSB above all other employers, and guard against
conditions that could adversely affect performance.
P-5013 Nepotism
KSSB shall not condone an employee to advocate, participate in or cause the appointment, promotion,
transfer, demotion or discipline of a family member or household member. No person shall supervise
(manage), or receive supervision from a family member or household member.
In addition, no two family members or household members will be employed as regular employees if the
normal duties include those of the Office of the Superintendent, the Office of Business Management, the
Office of Human Resources, or Information Technology Staff.
P-5014 Retirement Programs
KSSB shall facilitate participation in employees several retirement programs in which to participate.
(a) KPERS
An employer retirement benefit administered by the Kansas Public Employees Retirement System
(KPERS) shall be made available to all regular employees and implemented as prescribed by
statutes, regulations and procedures (K.S.A. 74-4901 et seq).
(b) 457 Plans
A Deferred Compensation Plan shall be made available to all regular employees who wish to
voluntarily participate, as authorized under Section 457 of Internal Revenue Code. The plan is
managed by a financial institution on behalf of the State of Kansas (K.S.A. 75-5523).
(c) 403(b) Plans
A Voluntary Tax Sheltered Annuities Plan shall be made available to all regular employees who
wish to voluntarily participate, as authorized under Section 403(b) of Internal Revenue Code.
KSSB shall administer this plan in conjunction with the Kansas Department of Administration,
Division of Accounts and Reports and related policies and procedures (K.S.A. 76-11a03).
(d) U.S. Savings Bonds
United States Savings Bonds shall be made available to regular employees and temporary
employees who wish to voluntarily participate, as authorized by applicable statutes and
regulations.
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P-5015 Volunteering
KSSB requires volunteers to comply with the policies, regulations, procedures and practices that govern
KSSB.
P-5016 Recording Device
The use of recording devices to store or transmit photos, audio recordings, or video recordings without the
consent of all involved parties in any context in which KSSB personnel or students have a reasonable
expectation of privacy is prohibited to the extent permitted by law.
Recording devices may be used in accordance with approved educational curriculum, in special
circumstances as authorized by the Superintendent, and for the safety and protection of KSSB students and
personnel.
P-5017 Staff Reduction and Recall
KSSB may furlough and/or layoff any employee at any time, due to budget reductions, decrease in student
enrollment, causes beyond KSSB's control, changes in program functions, and/or if the Superintendent
determines such action is in the best interest of KSSB. As conditions permit, furloughed and laid off
employees may be recalled.
29
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Kansas Special Education Process Handbook
Kansas State School for the Blind
Policy Handbook
P-6 Instructional Services
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Kansas Special Education Process Handbook
Subsections of P-6 Instructional Services
P-6001 Curriculum................................................................................................... 35
P-6002 Graduation Requirements.......................................................................... 35
P-6003 Field Trips.................................................................................................. 35
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P-6001 Curriculum
The Kansas State School for the Blind (KSSB) shall fully engage in the Continuous Improvement Process
as defined by the Quality Performance Accreditation (QPA) system. The curriculum and instruction
guided by this process shall meet the academic and life-skills needs of a wide range of students and will be
grounded in the teaching of specialized skills such as Braille, utilization of low vision, Orientation and
Mobility, daily living skills, and assistive technology. Such instruction to students, and related technical
assistance and support to school districts, will be offered by a variety of campus-based and statewide
outreach means, and shall be delivered by specialists licensed or certificated in their areas of instruction.
P-6002 Graduation Requirements
Students may graduate from high school and be issued a regular credit-based diploma in a manner
consistent with Kansas State Board of Education (KSBE) accreditation requirements, or with provisions
established and agreed upon by the Individualized Education Program (IEP) team. Specific course
requirements are published in the Student/Parent Handbook annually.
P-6003 Field Trips
KSSB shall utilize field trips into the community as part of the learning experience. These generally
involve trips to locations that provide additional learning experiences and might be both recreational and
instructional, including trips to museums, parks, stores, restaurants, movies, and facilities where games
(bowling, mini-gold, etc.) are played. During the enrollment process, parents are asked to provide written
authorization for their children to participate in these field trips. All field trips must be approved by the
Principal or other appropriate administrative staff.
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Kansas Special Education Process Handbook
Kansas State School for the Blind
Policy Handbook
P-7 Students
33
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Kansas Special Education Process Handbook
Subsections of P-7 Students
P-7001 Student Conduct............................................................................................ 39
P-7002 Student Responsibility.................................................................................. 39
P-7003 Attendance..................................................................................................... 39
P-7004 Suspensions and Expulsions........................................................................ 39
P-7005 Bullying......................................................................................................... 40
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P-7001 Student Conduct
Students are to conduct themselves in a manner that does not detract from the efforts of other students to
learn and benefit from these opportunities. Students who conduct themselves as stated by this policy shall
be recognized and rewarded for their efforts. Students whose conduct is not consistent with this policy will
face disciplinary action. The Kansas State School for the Blind (KSSB) will ensure that students have a
safe and orderly environment in which to learn, and will strictly adhere to rules and procedures designed
for student protection both on and off campus.
P-7002 Student Responsibility
Students enrolled at KSSB have a responsibility to attend school regularly, observe school rules essential
for permitting others to learn at school, learn and take advantage of the opportunities the school offers both
inside and outside the classroom to acquire knowledge and skills and to develop independence, physical
fitness, and social skills.
P-7003 Attendance
KSSB will follow applicable Kansas statutes (K.S.A Chapter 76-Article 11), which require that students
attend school regularly. The Local Education Agency (LEA) representatives and the District Attorney’s
office will be informed when students are out of compliance.
P-7004 Suspensions and Expulsions
KSSB shall follow the suspension and expulsion regulations as stated in Kansas State Board of Education
(KSBE) special education regulations. This may include a review of whether KSSB is the appropriate
placement for the student.
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P-7005 Bullying
Bullying on KSSB property, in a KSSB vehicle or at any KSSB-sponsored activity or event is prohibited.
The Superintendent of KSSB shall develop a plan to address bullying on KSSB property, in KSSB
vehicles and at KSSB sponsored-activities and events. The plan shall be submitted to the State Board of
Education for its approval. When approved, the Superintendent shall assure that the plan is implemented.
As used in this Policy, the following definitions apply.
(1) ‘‘Bullying’’ means:
(A) Any intentional gesture or any intentional written, verbal or physical act or threat that
is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or
abusive educational environment for a student or staff member that a reasonable person,
under the circumstances, knows or should know will have the effect of:
(i) Harming a student or staff member, whether physically or mentally;
(ii) damaging a student’s or staff member’s property;
(iii) placing a student or staff member in reasonable fear of harm to the student or
staff member; or
(iv) placing a student or staff member in reasonable fear of damage to the
student’s or staff member’s property; or
(B) any other form of intimidation or harassment prohibited by any policy of KSSB.
(2) ‘‘School vehicle’’ means any school bus, school van, other school vehicle and private vehicle used to
transport students or staff members to and from school or any school-sponsored activity or event.
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Kansas Special Education Process Handbook
Kansas State School for the Blind
Policy Handbook
P-8 Health & Safety
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Kansas Special Education Process Handbook
Subsections of P-8 Health & Safety
P-8001 Student Health Services............................................................................... 43
P-8002 Illegal Drugs & Alcohol............................................................................... 43
P-8003 Medical Drugs.............................................................................................. 43
P-8004 Tobacco........................................................................................................ 43
P-8005 Corporal Punishment.................................................................................... 43
P-8006 Freedom of Speech & Expression................................................................ 43
P-8007 Staff & Student Fraternization..................................................................... 44
P-8008 Harassment................................................................................................... 44
P-8009 Violence........................................................................................................ 44
P-8010 Blood-borne Pathogens................................................................................. 44
P-8011 Communicable Diseases............................................................................... 44
P-8012 Child Abuse & Neglect................................................................................. 44
P-8013 Health & Safety Notices................................................................................ 44
P-8014 Crisis Planning.............................................................................................. 44
(a) Emergency Management Plan................................................................... 45
(b) Emergency Drills........................................................................................ 45
P-8015 Student Safety & Security............................................................................ 45
P-8016 Release of Students and Off-Campus Travel................................................ 45
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P-8001 Student Health Services
The Kansas State School for the Blind (KSSB) shall deliver student health services as may be required by
an Individualized Education Program (IEP) or to respond to immediate health needs of students while
under KSSB's care and supervision. To accomplish this KSSB will operate a Student Health Center staffed
by nurses, and may provide such services as may be necessary to address student health needs such as
medical and dental care with parent permission. All services and facilities shall be conducted and
maintained in accordance with the regulations of the Kansas State Department of Health and Environment,
and the Kansas State Department of Education. Student health and medical needs remain the responsibility
of their parents. Certain health conditions may prevent participation in the student residence component of
school.
P-8002 Illegal Drugs & Alcohol
KSSB will comply with the Drug Free Workplace Act and the Drug-Free Schools and Communities Act,
and abide by related federal, state, and local laws.
Based upon reasonable suspicion of illegal drug use, KSSB may conduct a drug screening of any person
currently holding any KSSB position as authorized by K.S.A 75-4362.
P-8003 Medical Drugs
Prescription and over-the-counter medications for students are kept under lock and key at all times. They
must be administered under the supervision of, or as directed by, the school nurse. A manual defining the
procedures for administering medications shall be maintained by KSSB nursing personnel and located in
the Health Center.
P-8004 Tobacco
KSSB restricts the use of tobacco products in accordance with the provisions of K.S.A 21-4010.
P-8005 Corporal Punishment
Corporal punishment by KSSB personnel, under any circumstances, is forbidden. KSSB also does not
utilize aversive therapy techniques, but complies with the federal Individuals with Disabilities Education
Act of 2004 (IDEA) on behavior assessment and functional behavior plans.
P-8006 Freedom of Speech & Expression
The KSSB Superintendent or designee may reasonably regulate the time and place of speeches,
assemblies, distribution of literature, and content of school publications.
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P-8007 Staff & Student Fraternization
Personnel at KSSB are held to the highest level of responsibility in their relationships with students.
Fraternization between employees and students is prohibited, except within the context of an approved
instructional or recreational activity.
P-8008 Harassment
KSSB shall not tolerate harassment that is physical, sexual, or verbal, including hazing or any related
conduct.
P-8009 Violence
KSSB shall comply with the provisions of the Kansas School Safety and Security Act. Threats, threatening
behavior, acts of violence, or any related conduct that interferes with work or education and KSSB's ability
to fulfill its mission shall not be tolerated (K.S.A 72-89b03).
P-8010 Blood-borne Pathogens
KSSB shall follow the requirement of applicable federal and state law and regulations for a blood-borne
pathogen exposure control plan.
P-8011 Communicable Diseases
KSSB shall implement regulations and inform students, parents, and school personnel of the regulations
pertaining to the control of communicable diseases as established and printed by the Kansas State
Department of Health and Environment and the Wyandotte County Department of Community Health.
P-8012 Child Abuse & Neglect
KSSB shall require that its personnel will take appropriate action to report suspected child abuse or neglect
to the proper authorities in accordance with applicable laws.
P-8013 Health & Safety Notices
KSSB shall post health and safety notices as prescribed by the Kansas State Department of Health and
Environment and other regulatory authorities in accordance with applicable laws.
P-8014 Crisis Planning
At KSSB, student safety is always a top priority. In any threatening situation, all personnel must provide
all necessary assistance to ensure the safety of students. Personnel have easy access to written procedures
and guidance in managing emergency situations and evacuation procedures.
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February 2008
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(a) Emergency Management Plan
KSSB shall maintain an Emergency Management Plan which outlines procedures
to address various foreseeable emergencies and threatening situations.
(b) Emergency Drills
KSSB shall conduct regular fire and tornado drills as prescribed by the State Fire
Marshall and, as deemed appropriate and directed by the KSSB Superintendent,
drills for other potential emergency situations.
P-8015 Student Safety & Security
Student safety and security are the first considerations in any student activity on or off campus at any time
students are under KSSB's care and supervision. All KSSB supervisory staff will evaluate such student
activities to ensure safety prior to the activity, and the responsibility of all staff members to ensure safety
in any student activity in which they are supervising students. Any incident that injures a student, whether
minor or serious, must be reported immediately to an administrator, followed by the completion of an
Incident Report. Parents shall be notified as quickly as possible of all such incidents. Any incident that
falls into the category of abuse or neglect, regardless of whether under KSSB supervision or not, shall be
reported to SRS Child Protective Services within 24 hours of the time such a situation becomes known to
KSSB personnel in accordance with applicable statutes.
P-8016 Release of Students and Off-Campus Travel
Students enrolled at KSSB who are under the age of 18, as well as students of any age for which
guardianship exists, may only leave campus with non-KSSB individuals who are specified on the Parent
Permission Form. Students who have completed a course of study in Orientation and Mobility, who have
demonstrated an ability to safely travel off-campus, and who have parental permission to do so (if under
the age of 18), may apply for an off-campus mobility pass. This pass may or may not define the areas of
travel allowed, is revocable if improperly used, and can only be used with notification of the appropriate
supervisors.
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February 2008
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Kansas Special Education Process Handbook
Kansas State School for the Blind
Policy Handbook
P-9 Information Technology
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Kansas Special Education Process Handbook
Subsections of P-9 Information Technology
P-9000 Compliance................................................................................................... 49
P-9001 Definitions.................................................................................................... 49
P-9002 Information Technology Staff...................................................................... 50
P-9003 Configuration & Continuity Documentation............................................... 50
P-9004 Acceptable Use............................................................................................. 50
P-9005 Electronic Communications......................................................................... 51
P-9006 Equipment..................................................................................................... 51
P-9007 Software........................................................................................................ 51
(a) Anti-Malware Tools.................................................................................... 51
(b) Encryption Tools........................................................................................ 52
P-9008 Incident Handling.......................................................................................... 52
(a) Incident Handler Journals........................................................................... 52
(b) Regular Reports.......................................................................................... 52
(c) Personnel Investigation Authorization....................................................... 52
(d) Student Investigation Authorization........................................................... 52
P-9009 Passwords..................................................................................................... 52
P-9010 Portable Devices............................................................................................ 53
P-9011 Personal Communication Devices................................................................ 53
P-9012 Public Key Infrastructure.............................................................................. 53
P-9013 Technology Purchasing................................................................................. 53
P-9014 Security Breach Reporting............................................................................ 53
P-9015 Safety Reporting........................................................................................... 54
P-9016 Technology Advisory Group (TAG)............................................................ 54
(a) Purpose & Functions.................................................................................. 54
(b) Membership............................................................................................... 54
(c) Meetings.................................................................................................... 54
P-9017 Wireless Communications............................................................................ 54
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P-9000 Compliance
The Kansas State School for the Blind (KSSB) makes every attempt to comply with the requirements of all
applicable laws and regulations. The following laws are specifically applicable to information technology
policies and procedures of KSSB:
(a) The Child Internet Protection Act of 2000, as amended
(b) State of Kansas Department of Administration Information Technology Executive
Council
(ITEC) policies and guidelines.
(c) Section 508 of the Rehabilitation Act of 1973, as amended.
P-9001 Definitions
Incident
An individual or series of adverse actions, events, or occurrences in an information technology
system which is likely to, or intended to, result in harm.
Security Breach
An incident which does, or is likely to, permit unauthorized access to confidential information or
trusted systems.
Personal Communication Device
Any device with the primary purpose of providing personal communication capabilities, including
but not limited to cellular phones, Personal Digital Assistants (PDAs), pagers, and hand-held
computers.
System Administration Activities
Reasonable routine activities necessary for the proper maintenance or security of an information
technology system.
Malware
Any software which is, or is intended to be, malicious in nature, including but is not limited to
viruses, Trojan horses, and software which attempts to unethically invade the privacy of its users
(spy-ware).
Untrusted Systems
Any computing system or network which is not owned or leased by the State of Kansas that is not
specifically designated as a trusted system by the Superintendent, and any wireless network.
Trusted Systems
Any computing system or non-wireless network which is owned or leased by the State of Kansas,
and any system designated by the Superintendent.
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Portable Device
Any Information Technology device which is, or is intended to be, designed for portability. This
includes, but is not limited to, Portable Digital Assistants (PDAs), notebook computers, Tablet
PCs, hand-held computers, audio players, smart phones, flash drives, external hard drives, and
other similar devices.
P-9002 Information Technology Staff
The Office of Human Resources shall assign the duties for maintaining Information Technology Services
to a reasonable number of KSSB personnel, who will serve as KSSB's Information Technology Staff. The
Information Technology Staff should obtain written authorization to perform System Administration
Activities.
P-9003 Configuration & Continuity Documentation
The Information Technology Staff shall maintain a document defining Network Configurations and
Emergency Network Recovery Procedures. Hard copies of this document shall be kept in close proximity
to central network management locations, clearly labeled and conspicuously placed.
P-9004 Acceptable Use
The use of KSSB information technology is a privilege intended for the educational benefit of KSSB
students. KSSB information technology resources shall be used exclusively to support the education of
KSSB students and activities that otherwise support the mission of KSSB.
In no event shall the following activities, if engaged in knowingly or intentionally, be considered
acceptable:
(a) propagation of any form of malware;
(b) lending of authorization credentials (passwords) or accounts to other persons;
(c) publication or propagation of any student's personal contact information, other than an email
address, unless prior authorization has been granted as part of a KSSB academic program;
(d) vandalizing or damaging KSSB information technology resources;
(e) accessing or attempt to access any part of the KSSB network or any part of the Internet without
proper authorization;
(f) plagiarizing the work of others;
(g) using KSSB information technology resources for commercial use, except when part of a
KSSB academic program;
(h) attachment of unauthorized hardware to KSSB information technology resources;
(i) installation of unauthorized software on KSSB information technology resources;
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(j) any activity that otherwise violates applicable laws or regulations; and
(k) any activity that otherwise violates these policies.
P-9005 Electronic Communications
The use of KSSB information technology resources to produce, receive, or otherwise interact with
electronic communications shall be for the educational benefit of KSSB students. When electronic
communications are used to transmit confidential information through untrusted systems, KSSB personnel
shall take reasonable measures to ensure the transmission is completed in a secure manner.
KSSB students and personnel shall not use KSSB information technology resources to transmit or receive
electronic communications which:
1.misrepresent the senders' or recipients' identity;
2.are sexist, racist, harassing or otherwise inflammatory;
3.contain obscene language, graphics, pictures, or attached file, whether or not encoded or
encrypted;
4.otherwise violates applicable laws or regulations; or
5.otherwise violates these policies;
P-9006 Equipment
All physical information technology resources shall remain in or on KSSB owned or operated facilities
except as authorized by the Superintendent or designee. All physical information technology resources not
owned by KSSB shall only be permitted in KSSB facilities when explicitly authorized by the
Superintendent or designee. No peripheral equipment or accessories, whether or not owned by KSSB, shall
be connected to KSSB information technology resources without prior authorization from the Information
Technology Staff.
P-9007 Software
All software used in conjunction with KSSB information technology resources shall be properly licensed.
All software licenses purchased by, or contributed for exclusive use by, KSSB shall only be used with
KSSB information technology resources. Only software explicitly authorized and documented in the
Network Configurations and Emergency Network Recovery Procedures (see P-9.3) shall be installed and
used in or on KSSB information technology resources.
(a) Anti-Malware Tools
All information technology devices which directly interact with the KSSB network shall
implement appropriate anti-malware software tools as defined in the Network Configurations and
Emergency Network Recovery Procedures (see P-9003).
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(b) Encryption Tools
Software tools used by KSSB personnel for the encryption or security of confidential information
must be approved for such use by the Information Technology Staff and documented in the
Network Configurations and Emergency Network Recovery Procedures (see P-9003).
P-9008 Incident Handling
Information Technology Staff shall use Special Publication 800-61 from the National Institute of
Standards and Technology (NIST) as a guideline for defining, handling, and reporting technology
incidents.
(
a) Incident Handler Journals
Information Technology Staff shall maintain regular notes in bound journals with sequentially
numbered pages while handling technology incidents.
(b) Regular Reports
On an interval defined by the Superintendent, the Information Technology Staff shall regularly
provide a single page report of incidents handled during the preceding period to the
superintendent.
(c) Personnel Investigation Authorization
Information Technology Staff shall obtain written authorization from the Office of Human
Resources when investigating incidents which may involve accounts, files, or communications of
KSSB personnel.
(d) Student Investigation Authorization
Information Technology Staff shall obtain written authorization from the Superintendent,
Principal, or Director of Instructional Services when investigating incidents which may involve
accounts, files, or communications of KSSB students.
P-9009 Passwords
KSSB personnel and students shall protect all KSSB-related authentication credentials (passwords, pass-
phrases, and digital certificates) as confidential information, and shall not disseminate them to others
(including other KSSB personnel) without prior explicit permission from the Information Technology
Staff or the Superintendent.
All passwords or pass-phrases for KSSB systems shall meet the minimum length and complexity
requirements, and shall be changed on a regular schedule, as documented in the Network Configurations
and Emergency Network Recovery Procedures (P-9003).
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The Information Technology Staff may periodically or regularly conduct technical strength testing of any
KSSB-controlled passwords. Passwords identified as insecure by the Information Technology Staff shall
be required to be changed.
P-9010 Portable Devices
Portable Devices which are owned by KSSB shall remain on the KSSB campus, except when used as a
part of an authorized off-campus activity, or as authorized by the Superintendent or designee, and shall not
be connected to non-KSSB systems, networks, or peripherals without prior authorization from the
Information Technology Staff.
Portable Devices which are not owned by KSSB shall not be connected to KSSB systems, networks, or
peripherals without prior authorization from the Information Technology Staff.
Portable Devices, whether or not owned by KSSB, which are used by KSSB personnel or students to store
confidential information (P-3004(a)) must be protected by reasonable security measures.
The loss of any Portable Device owned by KSSB shall be immediately reported to the Information
Technology Staff.
P-9011 Personal Communication Devices
The use of personal communication devices, whether or not owned by KSSB, in any manner that disrupts
KSSB educational activities, or which endangers the health or safety of KSSB students or personnel, is
strictly prohibited.
P-9012 Public Key Infrastructure
KSSB shall use public key cryptography technologies only as allowed by Kansas Department of
Administration, Information Technology Executive Council Policy 5200.
P-9013 Technology Purchasing
To ensure that technology purchases are in the best interest of KSSB, are compatible with existing
systems, and are maintainable within allowed resources, all purchase requisitions for technology or
technology related items shall be reviewed and approved by the Information Technology Staff prior to
being processed.
P-9014 Security Breach Reporting
KSSB shall report all applicable network security breaches as required by the Kansas Department of
Administration, Division of Information Systems and Communications (DISC).
In addition, KSSB shall provide limited reports of network security breaches to KSSB's Internet
Service Provider (ISP) and other affected public or private entities as specified in the Network
Configurations and Emergency Network Recovery Procedures (P-9003).
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P-9015 Safety Reporting
In addition to the requirements of P-8012, the Information Technology Staff will report situations
concerning the health, safety, or well-being of KSSB personnel or students to the appropriate authorities as
required by applicable law.
P-9016 Technology Advisory Group (TAG)
KSSB shall establish and maintain a Technology Advisory Group (TAG).
(a) Purpose & Functions
The TAG shall be responsible for providing advice and counsel to the Information Technology
Staff regarding technology. The TAG should discuss and make recommendations of technology
procedures, applications, hardware, and services used by KSSB.
(b) Membership
The membership of the TAG shall be open to representatives of: classroom teachers; the student
council; the extended day program; outreach teachers; health services staff; dietary services;
administration staff; business operations staff; and the Kansas Instructional Resource Center.
Participation shall be voluntary, but strongly encouraged.
(c) Meetings
The TAG should meet regularly, at least once per quarter of the school year, at a time and place
convenient to the majority of the membership.
P-9017 Wireless Communications
All wireless communications involving confidential or internal information (see P-9.9) shall be secured
using approved encryption software as defined in P-9.7(b).
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RE-EVALUATION NOT NEEDED
AGREEMENT FORM
USD # _______
Date: __________________________________________
Student: ________________________________________
Date of last evaluation/re-evaluation: _________________
Name of parent(s)/decision maker: ___________________________________________
Name of school representative: ______________________________________________
Position of school representative: ____________________________________________
Special education laws require a re-evaluation of a child with an exceptionality at least once every
three years, unless the school and the parent(s), or other legally authorized education decision maker,
of the student agree that a re-evaluation is unnecessary.
The above named parent(s)/decision maker and school representative agree that a re-evaluation for the
above named student is not necessary at this time, and therefore no re-evaluation will be conducted.
Both parties understand that a re-evaluation may be requested by either party at any time in the future.
_____________________________________________________
____________
Parent/Legal Decision Maker/Student if age 18 or more
Date
_____________________________________________________
_____________
Parent/Legal Decision Maker/Student if age 18 or more
Date
_____________________________________________________
_____________
School Representative
Date
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
Runkel, Letter to (Grading/Diplomas)
Office for Civil Rights, Region VIII
Robert Runkel
State Director of Special Education
Office of Public Instruction
State Capitol
P.O. Box 202501
Helena, MT 59620-2501
Digest of Inquiry
[Date Not Provided]
• What criteria apply to the grading schemes of students with disabilities?
• What criteria apply to grades, class ranking, and honor roll of students with disabilities?
• What criteria apply to graduation of students with disabilities?
• What criteria apply to the issuance of diplomas for students with disabilities?
Digest of Response
September 30, 1996
Modifications in Grading Schemes Okay Where Similarly Used with Nondisabled Population
In cases where a student with a disability receives special education
accommodations in the regular classroom, it may be permissible for a school
district to use modified grading systems if also used for the general student
population. However, grades can not be modified and eligibility for honors
awards can not be decided on the basis of special education status alone and the
student's IEP should discuss any applicable alternative grading. When a student
with a disability takes a general education class for no credit, it is permissible to
exclude the student from grading and evaluate the student based on IEP
objectives. Collaboration of general and special education teachers in grading
students with disabilities is allowed. A school district may not identify special
education classes on a high school student's
transcript
in order to indicate that
the student has received modifications in the general classroom. However,
course designations with more general connotations which do not give rise to a
suggestion of special education programs are not violative of Section 504 and
Title II of the ADA and this determination largely depends upon how the labels
are used in a specific state or region. A school district can use asterisks or other
symbols on a
transcript
to designate a modified curriculum in general
education provided the grades and courses of all students are treated in a like
manner. A school can disclose the fact that a student has taken special education
courses to a post-secondary institution in instances where the parent and the
student have knowledge of what information is on the
transcript
and have given
written consent.
February 2008
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Eligibility Standards for Class Rank/Honors Must Not Arbitrarily Exclude Grades Earned in Special Ed
It is permissible for school districts to set eligibility criteria for class ranking or
honors, provided it does not "arbitrarily discount" or "exclude grades" received
by students with disabilities with the assistance of special education services.
Weighted grading systems pass legal muster under Section 504 and ADA Title
II where the district can show that such a system is based on "objective rating
criteria". The use of "core courses" for honors, class ranking, or participation in
certain activities is also allowed where all students receive the opportunity to
take such courses and are similarly situated. The varying academic levels of the
students is not a factor in that consideration.
Students with Disabilities May Not Be Precluded from Participating in Main Graduation Ceremony
Neither Section 504 nor Title II of the ADA contain a provision which requires
an IEP meeting before a student eligible for special education under those laws
graduates from high school, although the IDEA specifically addresses this
subject. Since graduation is a "significant change in placement", a student's IEP
should reflect the criteria necessary for graduation. While there is no express
requirement under these laws mandating a "formal" determination on this issue
by an evaluation team or notice of procedural safeguards to parents where this
criteria has been attained, such procedures are advisable. Special education
eligibility under Section 504 and Title II of the ADA terminates when the
student graduates or reaches the maximum age for eligibility in the relevant
state---whichever event comes first. Students who meet graduation criteria are
entitled to the same treatment as the nondisabled population, and this means that
they have the same rights to participate in graduation ceremonies as any other
nondisabled student of the same age would have. While separate services or
activities may be applicable in accordance with the "comparable facilities"
provision at 34 CFR 104.34(c), eligible students with disabilities can not be
prevented from partaking in the district's "main graduation ceremony" under any
circumstances.
Students with Disabilities Entitled to Diplomas Under Same Circumstances as Nondisabled Population
Based on interpretations of the IDEA, Section 504 and Title II of the ADA
students who have satisfied the requirements of their educational programs are
entitled to receive a diploma under similar circumstances where a nondisabled
student would receive a diploma. That diploma should be like the one a
nondisabled student would receive, and any variation in wording may be
permissible provided it is not based upon disability. When using different
wording, it must reflect "objective criteria and each possibility must be available
to all students on a nondiscriminatory basis." An opinion from the Office of
Public Instruction or OCR is advisable prior to using different wording. Section
504 and Title II of the ADA permit schools to modify or adjust graduation
requirements for students with disabilities.
19960930
This responds to your request that the U.S. Department of Education, Office for Civil Rights (OCR) review the
Special Education Bulletin
, dated July, 1995, distributed by your office to local school districts in the State of
Montana. Specifically, you have asked OCR to comment whether the bulletin places greater requirements on local
school districts than are contained in the applicable Federal statutes.
We were not provided information concerning which bulletin responses particularly generated these concerns;
therefore, we shall respond to each item in the order presented in the bulletin. In general, we are in full agreement
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
with the responses provided in the bulletin. Over-all, the bulletin responses are concise, impress us as being
thoughtfully researched and written, and satisfactorily state the requirements contained in Section 504 and Title II,
except where otherwise noted in our review comments.
OCR has enforcement authority over the subject matter covered in the bulletin under Section 504 of the
Rehabilitation Act of 1973 (Section 504), and its implementing regulation contained in 34
Code of Federal
Regulations
(CFR), Part 104, for educational institutions that receive Federal funds from the Department. OCR also
has been delegated enforcement authority over educational institution "public entities" under Title II of the
Americans with Disabilities Act of 1990 (Title II), and its implementing regulation contained in 28 CFR, Part 35.
Our comments are therefore exclusively relegated to these two statutes and their implementing regulations.
Your bulletin in part references the Individual with Disabilities in Education Act (IDEA), and its implementing
regulation contained at 34 CFR, Part 300. It should be made absolutely clear that OCR has no enforcement authority
under IDEA. While we strive to reconcile the requirements of all three statutes and their implementing regulations in
order to facilitate the implementation of a Free Appropriate Public Education (FAPE) for all school-age children
with disabilities, regardless of the exact disability involved, there are some differences. Where significant, we will
point them out.
In Section 504, there are two separate provisions that apply to the bulletin responses. One is § 104.4, which prohibits
discrimination on the basis of disability. This provision requires that with respect to grades, class ranking, honor
rolls, graduation, and diplomas, students with disabilities must be treated the same as all other students. The other is
the part of Section 504 (§§ 104.31-36) that spells out the responsibilities of a preschool, elementary, and secondary
school to provide a FAPE to an otherwise qualified school-age child with a disability.
In Title II, there are no specific provisions explicitly referring to pre-school, elementary and secondary school-age
children or that mention the provision of FAPE, as there are in IDEA and Section 504. By agreement with the U.S.
Department of Justice, the lead enforcement agency for the Americans with Disabilities Act, FAPE issues are
covered under the discrimination prohibition provisions of § 35.130 of Title II.
The bulletin responses cover six pages and 15 individual subjects. We shall not repeat each individual response
verbatim
, but will only summarize where appropriate. Your enclosed bulletin is incorporated into this response for
purposes of distribution to other interested parties. Much of the contents of your bulletin is based on opinions
previously issued either by OCR, the Office of Special Education and Rehabilitation Services (OSERS), or the
Office of Special Education Programs (OSEP), as noted on page six of the bulletin.
Grades
1. May a student with a disability who receives special education accommodations in a
general education classroom be given modified grades?
We agree with your conclusion, and particularly with the discussion that the student's individualized education
program (IEP) should discuss any grading modifications that may apply, particularly with respect to subjects
completed in a general education setting.
As a general observation, it would be suspect if a school district discounted special education courses or otherwise
depreciated special education course grades on a categorical basis. Districts may indicate course modifications made
or alternative grades awarded in any subject or course, with qualifications, as explained further throughout this
correspondence.
In summary, school districts cannot modify grades or determine eligibility for honors awards on the basis of the
student's special education status, alone. To do so raises a strong inference that children with disabilities, who
usually are the students classified as "special education students," are being treated differently on the basis of their
disabilities. Alternate grading systems may be appropriate, as you suggest, if they are available to all students, not
just students with disabilities.
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
2. May a student with a disability enrolled in a general education class for reasons other
than mastery of the course content (example, learning social skills) be excluded from
the class grading and evaluated on specific objectives on the IEP?
We agree with your response that classes taken for no credit as part of the IEP may solely be graded based upon
criteria outlined in the particular student's IEP.
3. Can a general education teacher and a special education teacher assign the grade for a
student with a disability in a general education classroom?
A collaborative grading effort between two or more educators is entirely appropriate in such circumstances. Again,
this should be discussed in the IEP.
4. May classes be identified as special education classes on the high school student's
transcript to indicate that the student has had a modified curriculum in general class?
This is an emphatic no, as you indicate in bold letters in your response. However, we must point out that there is yet
no definitive standards enunciated in any court or OCR decision to indicate exactly what terms are permissible to
use and what are not.
We generally agree with the examples contained in your response. It is much better to use terms such as "basic, level
1, practical," etc., as opposed to "special education." The former may be terms also applicable to remedial courses
taken by persons without disabilities for a variety of reasons. This will always be a factual determination made in
each individual set of circumstances.
Other examples of permissible
transcript
"labeling" or designations used may include "I.S. [independent study]" or
"modified curriculum," if these terms are also used in other courses besides special education, such as the gifted and
talented program.
Examples of
transcript
labels that should be carefully reviewed are "L.C. [learning center]," "H.B. [homebound
instruction]," "resource room," "P.E. requirement waived---medical," "PF [peer facilitator used]," or "S.O.S. (special
opportunity school." We understand that these terms are often used on
transcript
s of "at risk" students who may not
have disabilities, or at least have not been identified as such.
To summarize, if the course designation suggests that it only is used in special education programs involving
students with disabilities covered by Section 504 or Title II, it may be a violation. If it has a more general
connotation, it may not be violative. The response to this question may largely depend on regional as well as state-
wide usage practices.
5. May asterisks or other symbols or codes be written on a high school student transcript
to indicate that the student has had a modified curriculum in a general education?
The bulletin response indicating that modifications or exceptions to the grading scale may be identified on the
academic
transcript
as long as grades and courses of all students, and not just students with disabilities, are
similarly treated is generally correct. For example, if the modification code system covers enhanced or greater
difficulty course-work completed by gifted and talented program students as well as students taking remedial
courses, it may not necessarily violate Section 504 or Title II to also include special education courses. The key will
be to determine if the modification identification tends to focus on students with disabilities as a category. If it does,
it strongly suggests that it may be prohibited under Section 504 or Title II.
Further, since academic
transcript
s should not be released to prospective employers or postsecondary educational
institutions without the permission of the student, the school district should take steps to notify each student of what
his or her academic
transcript
contains in the way of such modification notations, if any, before releasing it to
another party.
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
6. May a student with a disability or parent, when appropriate, disclose the student's
participation in special education services to a post-secondary educational institution?
Your affirmative response frames this question, we believe, in an acceptable context. Voluntary disclosure can assist
the student, but the, parent or student must know what is on the
transcript
and give written consent "specific to the
information sent."
Grades, Class Ranking and Honor Roll
1. Must grades earned in special education classes or in general education classes with the
support of special education services be included in district wide GPA standings? (This
leads to a ranking of students by GPA for honor roll and college scholarship purposes.)
The short answer is that grades earned by students with disabilities cannot categorically be disregarded or excluded,
even if earned with the support of special education services. If a school district wishes to establish standards for
eligibility for class ranking or honors, it may do so, as long as it does not arbitrarily discount or exclude grades
earned by students with disabilities.
One method for doing this is to develop and implement an uncomplicated system of weighted grades. This is usually
done by assigning points to a letter grade based on the degree of difficulty of subject matter completed. This system
will stand scrutiny under Section 504 and Title II as long as it can be demonstrated that the weighting system is
based on objective rating criteria. To work, the system must be fair and simple to understand.
For example, an "A" earned in advanced algebra may be rated worth 5 points in a student's over-all honors
competition compared with another "A" in basic arithmetic given a weight of only one point. One obvious
advantage of this system is that it should not discourage brighter students from taking more challenging courses. A
"B" or even a "C" earned in a tougher course can still be worth more points for purposes of academic comparisons
than an "A" in a less challenging subject. If such a system is utilized , the school district will have the responsibility
to justify the various weights assigned, if challenged.
Another possibility is to establish a list of "core courses" which must be completed in order to be eligible for honors,
class ranking or participation in certain activities. As stated in your bulletin response, the fact that all students may
not be able to perform at higher academic levels is not determinative, as long as all students and not only those with
disabilities are similarly affected, and all are eligible to take these subjects, if desired.
2. May a school district implement a weighted grading system that arbitrarily assigns
lower grade weights to all special education courses?
The clear answer here is no, as stated in your response. If a weighting system is used, each subject or course must be
analyzed separately and assigned a degree of difficulty factor based on its individual contents. In most situations, the
faculty or administrative decision should be accorded great deference if any challenge develops, particularly if the
school district can produce a record explaining the process and criteria used to assign various weights to each course
or subject.
Graduation
1. Is an Individualized Education Program meeting required before a student with
disabilities graduates from high school?
The affirmative response given in the bulletin is presumably based on IDEA and Montana state statutes. There is no
specific requirement on this procedure contained in either Section 504 or Title II. IDEA, on the other hand, covers
this subject in detail.
2. Are procedural safeguards required when a student with disabilities graduates from
high school?
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
Clearly, the graduation of a special education student receiving an education in accordance with an IEP constitutes a
"significant change in placement." Under Section 504 and Title II, the student's most recent IEP should anticipate
the student's graduation by describing the criteria that must be met by the student in order to do so. If this criteria is
achieved, however, there is no explicit Section 504 or Title II requirement that expressly provides that a formal
determination must be made on this point by an evaluation team, along with providing the parents notice of
procedural safeguards.
We believe, however, that as a recommendation, it has great merit. Our observation assumes, to some extent, that
there is no question that as a result of a previous evaluation team meeting, the parents are cognizant of their Section
504 procedural safeguards, or "due process" rights, and giving them notice of these rights again would not be
required, although it would certainly be acceptable to do so.
3. May a student who has graduated from public high school receive special education
services under IDEA until the age of 21?
The response primarily addresses the requirements under IDEA. Under Section 504 or Title II, the school district has
the responsibility of providing a qualified student a FAPE until the student is graduated or achieves the maximum
age for eligibility for public education in that state, whichever happens first.
4. May an IEP team plan a special education program for a student with disabilities to
graduate when the student is age 21?
Under Section 504 or Title II, a student who has met graduation requirements, irrespective of age, cannot be treated
differently on the basis of disability. A qualified student with a disability is eligible to participate in whatever
graduation ceremony a student of similar age without disabilities would be eligible to participate.
Section 504 or Title II does not address participation of a student with disabilities in a separate graduation service or
activity. Section 104.34 (c), Comparable facilities, may apply, if a separate service or activity is undertaken by the
school district. Eligible students with disabilities cannot be precluded, in any event, from participation in the school
district's main graduation ceremony, if the student wishes to do so.
Diploma
1. Are all special education students who are enrolled in public school eligible to receive a
diploma?
The affirmative bulletin response cites IDEA and the Administrative Rules of Montana (ARM) as the legal basis for
this decision. Section 504 and Title II interpretations reach the same result.
2. May a school district use different wording on the diploma received by a student with a
disability?
We agree with the bulletin response that the diploma awarded to each student must be similar in all "significant
respects." Variation in wording may not necessarily be a violation of Section 504 or Title II, so long as the variation
is not based on disability as a category of students.
If different diploma wording is used, the bulletin response is correct that the requirements for being awarded a
particular diploma must be based upon objective criteria and each possibility must be available to all students on a
nondiscriminatory basis.
If the school district wishes, each diploma may contain language that refers to the individual's academic
transcript
for the exact courses or subjects completed.
February 2008
Appendix A, Figure 8-1
Kansas Special Education Process Handbook
Because of the infinite number of wording variations possible to use on a diploma, we recommend that an opinion
be obtained in advance from either the Office of Public Instruction or OCR.
3. May requirements for granting a diploma be waived for students with disabilities?
The succinct answer to this question is yes. There are no restrictions in either Section 504 or Title II that would
prohibit a school district from modifying or adjusting graduation requirements, consistent with the student's IEP.
Because of the wide-spread interest demonstrated in the subject matter of your bulletin, we are sharing its contents
and our comments with other school districts who have inquired on these subjects.
If you wish to discuss this material further, please contact me at (303) 844-4821, or you may contact Robert
Leatherman, Attorney-advisor, at (303) 844-5295.
David Dunbar
Chief Regional Attorney
Volume_Issue: 2504
Posting_Date: 19970226
The Kansas Department of Education
February 2008
Appendix A, Figure 8-2
Kansas Special Education Process Handbook
Summary of Performance
and Recommendations
Student Name :
Date:
Address of Student:
Dear ___________;
Now that you have graduated or are beyond the age of eligibility for special education services,
we are providing you with this Summary of Performance and Recommendations. We are
offering you this information to assist you as you plan for your future. It is divided into two
parts. The first part summarizes your current academic achievement and functional performance.
The second part provides recommendations for how you might receive assistance in meeting the
goal(s) that you have been working toward for your post high school life.
Your Post-secondary Goal(s):
Part I: Summary of Your Academic Achievement and Functional Performance:
Part II: Recommendations to Assist You :
We have enclosed a copy of this document for your parents. We will also place a copy in our
records. If you have questions concerning this document, please contact:
Name/Title: ________________________________
Phone:
_____
School: ____________________________________
The Kansas Department of Education
February 2008
Appendix A, Figure 8-2
Kansas Special Education Process Handbook
This form is used to:
Comply with the new requirement for a “Summary of Performance” in IDEA 2004, Sec.
614(c)(5)(B)(ii).
The Summary of Performance:
a. Provides information to students who are graduating with a regular diploma to assist
them in meeting their post-secondary goals; and
b. Provides information to students who are leaving school because they exceed the age
of eligibility for a free appropriate public education (end of school year in which they
turn 21) to assist them in meeting their post-secondary goals.
Note: The Summary of Performance is NOT required for students with giftedness.
Directions:
1. Enter student’s name and address.
2. Enter the date the form is being sent.
3. Enter the student’s name in the salutation.
4. List the student’s post-secondary goal(s) from the most current IEP
5. Write a summary of the student’s academic achievement and functional performance. This
statement should describe:
• the student’s current academic and functional performance;
• how the student’s disability has affected the student’s academic achievement and
functional performance; and,
• how the student’s current performance is expected to impact the student in the post-
secondary environment.
Potential sources for this information include review of records, interviews, observations,
and tests.
6. Write any recommendations for assisting the student in meeting the student’s post-
secondary goal(s). These may include:
• recommendations for accommodating the student’s disability in post-secondary
environments such as: training, education, employment, and, where appropriate,
independent living; and
• any other recommendations for assisting the student to achieve the student’s post-
secondary goal(s).
Recommendations should be based upon the needs of the student and the types of services
and supports they have been receiving. These
could include such things as adaptive devices,
assistive services, or strategies to enhance the student’s success in the post-high school
environment the student is transitioning to.
7. Enter the name and title of the teacher or provider completing the summary, the name of the
school and school district, a contact phone number for the teacher or provider.
The Kansas Department of Education
February 2008
Appendix A, Figure 8-2
Kansas Special Education Process Handbook
Summary of Performance
And Recommendations
Student Name: Cody
Date: May 5 2006
Dear Cody;
Now that you have graduated or are beyond the age of eligibility for special education services, we are
providing you with this Summary of Performance and Recommendations. We are offering you this
information to assist you as you plan for your future. It is divided into two parts. The first part
summarizes your current academic achievement and functional performance. The second part provides
recommendations for how you might receive assistance in meeting the goals that you have been working
toward for your post high school life.
Your Post-secondary Goals:
As state on your previous EIP, you would like to receive training for another job. You are also interested
in under water welding and plan to live at home for awhile.
Part I: Summary of your Academic Achievement and Functional Performance:
You have successfully met high school requirements. Your academic achievement levels are as follows.
Word recognition is at an 8
th
grade instructional level; reading comprehension is at a 6
th
grade
instructional level. Math computation is at an 8
th
grade level using a calculator. Writing skills are poor
and handwriting is often illegible. You have good common sense in everyday life skills. You may have
difficulty obtaining and keeping a job based upon poor attendance for school/work study. Auditory hands
on learning are your preferred models.
Part II: Recommendations to Assist You:
I would recommend to you to seek jobs that will fit your interest, ability and lifestyle. You may need
assistance with hob seeking through family members. You may also benefit from getting assistance from
vocational rehabilitation services. You will need to reestablish contact if you so decide to seek assistance.
Their number is 620-555-1212. You may want to keep a copy of your most recent IEP and obtain
information from your spec file from the Special Education Coop. At some point in your life/career you
may find it helpful to further your reading, writing and math skills.
We have enclosed a copy of this document for your parents. We will also place a copy in our re cords. If
you have questions concerning this document, please contact:
Name/Title: Merry Sunshine, Case Manager
Phone: 785-555-1212
School: Wheat State High School
This form is used to comply with the requirement for a “Summary of Performance” in IDEA 2004,
Sec.614(c)(5)(B)(ii).
The Kansas Department of Education
February 2008
Appendix A, Figure 8-2
Kansas Special Education Process Handbook
Summary of Performance
And Recommendations
Student Name: Donnetta
Date: May 5 2006
Dear Donnetta;
Now that you have graduated or are beyond the age of eligibility for special education services, we are
providing you with this Summary of Performance and Recommendations. We are offering you this
information to assist you as you plan for your future. It is divided into two parts. The first part
summarizes your current academic achievement and functional performance. The second part provides
recommendations for how you might receive assistance in meeting the goals that you have been working
toward for your post high school life.
Your Post-secondary Goals:
Donnetta, your goal as indicated on the most recent IEP document is to obtain work in a factory doing
packaging or assembly work. A long-range goal is to live as independently as possible in your own
apartment once you have secured a good-paying job.
Part I: Summary of Your Academic Achievement and Functional Performance:
Donnetta, you have met all requirements for graduation on May 20, 2006 from Northern Heights High
School. Your academic performance is well below that of your same age peers but within expectations
based upon intellectual abilities. Your reading comprehension, writing, and math skills are not at levels
that lend themselves to completely independent adult functioning in the home or work environment.
While you are able to do many things and accomplish academic tasks specifically targeted to an
appropriate learning level, and do these very well, progression through the high school curriculum
required specially designed instruction and a majority of academic time in the learning resource room
setting.
Part II: Recommendations to Assist You:
Donetta, through learning and work experiences available to you during your high school enrollments,
you have demonstrated good work ethic in monitored settings. Your vocational rehabilitation assessment
indicates a need for a highly structured work setting with a supervisor or job coach to frequently remind
and prompt for tasks. Further recommendations include short, written sentences or picture-symbols
should be used in the workplace whenever possible. Additionally, continued learning through job
training would be beneficial. Your learning style benefits from concrete examples and from repetition to
grasp new ideas. A calculator is recommended for all applied math tasks.
Requesting copies of pertinent information currently contained in your spec file may be helpful should
you choose to further your training or as sources of necessary information in requesting pot-high school
services. Additionally, utilization of agencies such as Vocation Rehabilitation and Community
Developmental Disabilities Organization is encouraged.
We have enclosed a copy of this document for your parents. We will also place a copy in our re cords. If
you have questions concerning this document, please contact:
Name/Title: Merry Sunshine, Case Manager
Phone: 785-555-1212
School: Wheat State High School
This form is used to comply with the requirement for a “Summary of Performance” in IDEA 2004,
Sec.614(c)(5)(B)(ii).
Febrtuary 2008
Appendix A, Figure 9-1
Kansas Special Education Process Handbook
Model Notification of Rights under FERPA
for Elementary and Secondary Schools
The Family Educational Rights and Privacy Act (FERPA) affords parents and students over 18
years of age ("eligible students") certain rights with respect to the student's education records. These
rights are:
(1) The right to inspect and review the student's education records within 45 days of the day the
School receives a request for access.
Parents or eligible students should submit to the School principal [or appropriate school official] a
written request that identifies the record(s) they wish to inspect. The School official will make
arrangements for access and notify the parent or eligible student of the time and place where the
records may be inspected.
(2) The right to request the amendment of the student’s education records that the parent or eligible
student believes are inaccurate.
Parents or eligible students may ask the School to amend a record that they believe is inaccurate.
They should write the School principal [or appropriate school official], clearly identify the part of the
record they want changed, and specify why it is inaccurate. If the School decides not to amend the
record as requested by the parent or eligible student, the School will notify the parent or eligible
student of the decision and advise them of their right to a hearing regarding the request for amendment.
Additional information regarding the hearing procedures will be provided to the parent or eligible
student when notified of the right to a hearing.
(3) The right to consent to disclosures of personally identifiable information contained in the
student's education records, except to the extent that FERPA authorizes disclosure without consent.
One exception, which permits disclosure without consent, is disclosure to school officials with
legitimate educational interests. A school official is a person employed by the School as an ad-
ministrator, supervisor, instructor, or support staff member (including health or medical staff and law
enforcement unit personnel); a person serving on the School Board; a person or company with whom
the School has contracted to perform a special task (such as an attorney, auditor, medical consultant, or
therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance
committee, or assisting another school official in performing his or her tasks.
A school official has a legitimate educational interest if the official needs to review an education
record in order to fulfill his or her professional responsibility.
[Optional] Upon request, the School discloses education records without consent to officials of
another school district in which a student seeks or intends to enroll. [NOTE: FERPA requires a
school district to make a reasonable attempt to notify the parent or student of the records request unless
it states in its annual notification that it intends to forward records on request.]
(4) The right to file a complaint with the U.S. Department of Education concerning alleged failures
by the
School District
to comply with the requirements of FERPA. The name and address of the
Office that administers FERPA are:
Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-5901
[NOTE: In addition, a school may want to include its directory information public notice, as
required by § 99.37 of the regulations, with its annual notification of rights under FERPA.]
Sample contributed by Flint Hills Special Education Cooperative
February 2008
Appendix A, Figure 9-2
Kansas Special Education Process Handbook
SAMPLE RELEASE OF RECORDS
INTERAGENCY RELEASE OF INFORMATION
By signing and dating this release of information, I allow the persons or agencies listed below to share specific
information as checked about this case. I understand that this is a cooperative effort by agencies involved to share
information that will lead to better utilization of community resources and better cooperation amongst our agencies
to best suit my needs.
Agencies or agency representative that will be sharing information:
Name
Address
Date
The information to be released is:
History
Lab Work
Diagnosis
Psychological Assessment
Summary of Treatment
Psychiatric Evaluation
Medications
Legal issues/concerns
School Evaluation
Other (specify)
Performance
and is to be released for the purpose of
This consent to release is valid for one year or
until otherwise specified and thereafter is invalid.
Specify date, event or condition permit will expire
You are advised that at any time between the time of signing and the expiration date listed above, you have the right
to revoke this consent.
Student Name
Date of Birth
Address
City
State
Zip Code
Witness
Date
Student Signature
Date
(Age 13 years, 9 months and Over)
Position
Signature of Responsible Party,
Date
Guardian, if under Legal Age
Relationship to Student
Sample Contributed by High Plains Educational Cooperative
February 2008
Appendix A, Figure 9-3
Kansas Special Education Process Handbook
SAMPLE LOG FOR ACCESSING RECORDS
PERSON WITH ACCESS TO FILE
1. Parent or Legal Guardian
2. Student (age 18 or over)
3. Certified personnel directly involved with the
education of the student
4. Paraprofessionals directly involved with the
education of the student
5. Building Administration
6. Superintendent / Assist Supt.
7. Director / Assist. Director
8. Authorized personnel of the state
Date
Name
Relationship
Purpose
Sample contributed by Flint Hills Special Education Cooperative
February 2008
Appendix A, Figure 9-4
Kansas Special Education Process Handbook
SAMPLE LIST OF EMPLOYEES WHO CAN ACCESS RECORDS
PERSONNEL GIVEN ACCESS TO CONFIDENTIAL FILES
(Post on Special Education Confidential Student File Cabinet)
The following Personnel have access to the Special Education Confidential Student Files
maintained in this building (list names):
Director of Special Education
Assistant Director of Special Education
Principal
School Psychologist
Special Education Teacher
Special Education Teacher
Special Education Staff
Team Leader(s)
Other, Title
Other, Title
Other, Title
February 2008
Appendix A, Figure 9-5
Kansas Special Education Process Handbook
Student Name
:
DOB:
Parent Name:
Phone:
Address:
City:
State:
Zip
:
School Name:
USD #
I HEREBY CONSENT TO THE RELEASE AND/OR EXCHANGE OF MOST RECENT:
Speech & Language Information
Family Assessment
Audiological Assessment
School Records/Reports
X
Medical Information
Social/Psychological Evaluation
Discharge Summary
X
Individual Educational Program-IEP/IFSP
Intake/Admission Report
Screening Results
Exchange of Information over Telephone
Other
I, the undersigned, do hereby: (a) authorize NEKESC to disclose the above marked information to:
Name of Physician/Healthcare Provider: _______________________________________________
Address: ___________________________________________________________________________
and
(b) authorize the above named physician/healthcare provider to disclose the above marked information to NEKESC.
The purpose of this request is: Obtain a Healthcare Provider’s signature for Medicaid eligible services.
I understand the information obtained will not be transmitted to any other party without my specific written
consent or as otherwise permitted by federal regulations. (Title 45, Part 99.30-99.37) This consent will remain in
effect until it is revoked in writing by me. I have the right to revoke this consent at any time.
_____
(Parent/Legal Guardian Signature)
(Relationship to student)
(Date)
MEDICAID CONSENT FOR RELEASE AND / OR EXCHANGE OF INFORMATION
February 2008
Appendix A, Figure 9-5
Kansas Special Education Process Handbook
Revised 1/23/08
Dear Healthcare Provider:
_______________________________ qualifies to receive one or more of the following services for
school year July 1, 2007 through June 30, 2008:
Physical Therapy
Occupational Therapy
Speech/Language Therapy
Nursing Services
Attendant Care Services
Audiology
The services are part of an Individualized Education Plan and are provided to your student during the
school day by Northeast Kansas Service Center, a Local Education Agency. As a Local Education
Agency (LEA) and a Kansas Medicaid Provider, NEKESC has the authority to seek reimbursement for
the services delivered to students who qualify.
As of December 2006, Medicaid amended the LEA Provider Manual to require a Health Care Provider's
signature prior to billing for approved services. This requirement is to be annually renewed.
Your signature certifies that the listed student qualifies to receive one or more of the above services.
________________________________________________________ _______________
*Healthcare Provider – Signature
Date
________________________________________________________ _______________
*Healthcare Provider – Printed Name
Date
Upon completion of this form, please return it to NEKESC in the enclosed, self-addressed stamped
envelope.
Thank you,
Shelia Smith
Assistant Director of Special Education
*Required/Accepted Healthcare Providers include: Physicians, Advanced Registered Nurse Practitioners
(ARNPs), Physician’s Assistants (PAs) and/or Public or County Health Nurses
February 2008
Appendix A, Figure 9-5
Kansas Special Education Process Handbook
Dear Health Care Provider,
Insert / Merge Student Name
– DOB
Insert / Merge Date
– qualifies to receive one or more of the following
services for school year July 1, 2007 through June 30, 2008:
Physical Therapy
Occupational Therapy
Speech/Language Therapy
Nursing Services
Attendant Care Service
Audiology
The services are part of an Individualized Education Plan and are provided to the student during the school day by
Olathe District Schools, a Local Education Agency. As a Local Education Agency (LEA) and a Kansas Medicaid
Provider, Olathe District Schools has the authority to seek reimbursement for the services delivered to students who
qualify.
As of December, 2006, Medicaid amended the LEA Provider Manual to require a Health Care Provider’s signature
prior to billing for approved services. This requirement is to be annually renewed. If you approve, we request that
you provide your signature below.
Your signature (below) certifies that the above listed student qualifies to receive Physical Therapy, Occupational
Therapy, Speech/Language Therapy, Nursing Services, Attendant Care Service, and/or Audiology Services
_________________________________________________________
_______________
*Health Care Provider – Signature
Date
_________________________________________________________
*Health Care Provider – Printed Name
Upon completion of this form, please return to Olathe District Schools in the enclosed, self-addressed, stamped
envelope to Olathe District Schools, Special Services, 1005 S Pitt, Ste. A, Olathe, KS 66061.
Thank you for your prompt response to this request. If you need additional information, please contact Kathrine
Holloway at 913-780-7024.
*Required/Accepted Health Care Providers include: Physicians; Advanced Registered Nurse Practitioners
(ARNPs); Physician’s Assistants (Pas); and/or Public or County Health Nurses
February 2008
Appendix A, Figure 9-5
Kansas Special Education Process Handbook
--
VERY IMPORTANT
–
Dear Parent / Guardian,
Your child qualifies to receive one or more of the following services for school year July 1,2007 through
June 30, 2008:
Physical Therapy
Occupational Therapy
Speech/Language Therapy
Nursing Services
Attendant Care Service
Audiology
The services are part of an Individualized Education Plan and are provided to your child during the school
day by Olathe District Schools, a Local Education Agency. As a Local Education Agency (LEA) and a
Kansas Medicaid Provider, Olathe District Schools has the authority to seek reimbursement for the services
delivered to students who qualify.
As of December, 2006, Medicaid amended the LEA Provider Manual to require a Health Care Provider's
signature prior to billing for approved services. This requirement is to be annually renewed. According to
this policy,
it is very important that your student's Health Care Provider receive the enclosed
informational letter
/
signature form, and that it be returned to Olathe District Schools upon
completion of the form.
For your and your Health Care Provider's convenience, a self-addressed, stamped envelope has been
enclosed to facilitate the return of the signed form.
Please present the enclosed letter / envelope to your Health Care Provider at your earliest opportunity. Thank
you for your prompt response to this request. If you need additional information, please contact Kathrine
Holloway at 91 3-780-7024.
--
VERY IMPORTANT
--
Dear Parent / Guardian,
Your child qualifies to receive one or more of the following services for school year July 1,2007 through
June 30, 2008:
Physical Therapy
Occupational Therapy
Speech/Language Therapy
Nursing Services
Attendant Care Service
Audiology
The services are part of an Individualized Education Plan and are provided to your child during the school
day by Olathe District Schools, a Local Education Agency. As a Local Education Agency (LEA) and a
Kansas Medicaid Provider, Olathe District Schools has the authority to seek reimbursement for the services
delivered to students who qualify.
As of December, 2006, Medicaid amended the LEA Provider Manual to require a Health Care Provider's
signature prior to billing for approved services. This requirement is to be annually renewed. According to
this policy,
it is very important that your student's Health Care Provider receive the enclosed
informational letter
/
signature form, and that it be returned to Olathe District Schools upon
completion of the form.
For your and your Health Care Provider's convenience, a self-addressed, stamped envelope has been
enclosed to facilitate the return of the signed form.
Please present the enclosed letter / envelope to your Health Care Provider at your earliest opportunity. Thank
you for your prompt response to this request. If you need additional information, please contact Kathrine
Holloway at 91 3-780-7024.
February 2008
Appendix A, Figure 9-5
Kansas Special Education Process Handbook
Education Service Center
USD480
624 N. Grant
Liberal, KS 67901
Phone: 620-604-2400
Fax: 620-604-2401
Website: http://www.usd480.net
Dear Health Care Provider,
______________________ ______(
Student’s Name
) ______________(
DOB
) qualifies to receive one or more of
the following services for school year July 1, 2007 through June 30,2008:
Physical Therapy, Occupational Therapy, Speech/Language Therapy, Nursing Services, Attendant Care
Service, Audio logy.
The services are part of an Individualized Education Plan and are provided to the student during the school day by
Liberal School District, a Local Education Agency. As a Local Education Agency (LEA) and a Kansas Medicaid
Provider, Liberal School District has the authority to seek reimbursement for the services delivered to students who
qualify.
As of December, 2006, Medicaid amended the LEA Provider Manual to require a Health Care Provider's signature
prior to billing for approved services. This requirement is to be annually renewed. If you approve, we request that
you provide your signature below.
Your signature (below) certifies that the above listed student qualifies to receive Physical Therapy, Occupational
Therapy, Speech Language Therapy, Nursing Services, Attendant Care Service, and/or Audio logy Services. This
document serves as a prescription for this service.
______________________________
________________
*Health Care Provider
– Signature
Date
______________________________
*Health Care Provider
- Printed Name
Upon completion of this form, please return it to Liberal School District in the enclosed, self-addressed, stamped
envelope to
Education Service Center, 624 N. Grant, Liberal, Kansas 67901.
Thank you for your prompt response to this request. If you need additional information, please contact Kathy
Coleman, Parent Coordinator at 620-604-2420.
*Required/Accepted Health Care Providers include: Physicians; Advanced Registered Nurse Practitioners (ARNPs);
Physician's Assistants (PAS); and/or Public or County Health Nurses
KANSAS
MEDICAL
ASSISTANCE
PROGRAM
PROVIDER MANUAL
Local Education Agency
Updated 08/07
PART II
LOCAL EDUCATION AGENCY PROVIDER MANUAL
Introduction
Section
BILLING INSTRUCTIONS
Page
7000
Local Education Agency Billing Instructions .. ......... ......... ........
7-1
7010
Local Education Agency Billing Information ... ......... ......... ........
7-2
BENEFITS AND LIMITATIONS
8100
Co-payment ... ........ ......... ......... ......... ......... ......... ........
8-1
8300
Benefit Plans ... ........ ......... ......... ......... ......... ......... ........
8-2
8400
Medicaid ....... ........ ......... ......... ......... ......... ......... ........
8-3
Procedure Codes and Nomenclature
Appendix I
Updated 08/07
PART II
LOCAL EDUCATION AGENCY PROVIDER MANUAL
This is the provider specific section of the manual. This section (Part II) was designed to provide
information and instructions specific to Local Education Agency (LEA) providers. It is divided into
three subsections: Billing Instructions, Benefits and Limitations, and Appendices.
The
Billing Instructions
subsection explains the method of billing applicable to LEA services.
The
Benefits and Limitations
subsection defines specific aspects of the scope of LEA services
allowed within the Kansas Medical Assistance Program (KMAP).
The
Appendix
subsection contains information concerning procedure codes. These appendices were
developed to make finding and using procedure codes easier for the biller.
HIPAA Compliance
As a participant in KMAP, providers are required to comply with compliance reviews and complaint
investigations conducted by the Department of Health and Human Services as part of the Health
Insurance Portability and Accountability Act (HIPAA) in accordance with section 45 of the code of
regulations parts 160 and 164. Providers are required to furnish the Department of Health and Human
Services all information required by the Department during its review and investigation. The
provider is required to provide the same forms of access to records to the Medicaid Fraud and Abuse
Division of the Kansas Attorney General's Office upon request from such office as required by
K.S.A. 21-3853 and amendments thereto.
A provider who receives such a request for access to or inspection of documents and records must
promptly and reasonably comply with access to the records and facility at reasonable times and
places. A provider must not obstruct any audit, review or investigation, including the relevant
questioning of employees of the provider. The provider shall not charge a fee for retrieving and
copying documents and records related to compliance reviews and complaint investigations.
Updated 08/07
7000. LOCAL EDUCATION AGENCY BILLING INSTRUCTIONS
LEA providers must submit claims electronically. Refer to your
Paperless Claim Manual
for
instructions.
Call the Electronic Media Services Department at 1-800-472-6481 for the method that best fits your
needs. Full training and support are provided.
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BILLING INSTRUCTIONS
7-1
Updated 08/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BILLING INSTRUCTIONS
7010. LOCAL EDUCATION AGENCY BILLING INFORMATION
Place of Service Codes
The only allowable place of service values are 03-school, 12-home, or 21-Inpatient.
Nursing Attendant Codes
The only allowable place of service values are 03-school or 12-home.
7-2
Updated 08/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BENEFITS AND LIMITATIONS
BENEFITS AND LIMITATIONS
8100. CO-PAYMENT
LEA services are exempt from co-payment requirements.
8-1
Updated 08/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BENEFITS AND LIMITATIONS
BENEFITS AND LIMITATIONS
8300 BENEFIT PLAN
KMAP beneficiaries will be assigned to one or more Medical Assistance benefit plans. The assigned
plan or plans will be listed on the beneficiary ID card. These benefit plans entitle the beneficiary to
certain services. From the provider's perspective, these benefit plans are very similar to the type of
coverage assignment in the previous Medicaid Management Information System (MMIS). If there are
questions about service coverage for a given benefit plan, contact the Medical Assistance Customer
Service Center at 1-800-933-6593 or 785-274-5990.
8-2
Updated 08/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BENEFITS AND LIMITATIONS
BENEFITS AND LIMITATIONS
8400. MEDICAID
Medicaid reimburses LEAs for all medically necessary services for the child to receive a free and
appropriate public education, as documented on the child's Individualized Educational Program (IEP).
Payment is made to LEAs approved by the Kansas Health Policy Authority (KHPA) for services
provided through KMAP as listed in Appendix I.
Providers of Medicaid reimbursable services in an LEA shall have appropriate credentials as
described in the Medicaid State Plan and as required by the Kansas State Department of Education.
Professionals are expected to supervise the work of same-type paraprofessionals and confine the scope
of practice to the usual and customary for their profession/paraprofession.
KAN Be Healthy screens may be provided and billed by an LEA for eligible Medicaid beneficiaries,
including those without an IEP or an Individualized Family Service Plan (IFSP). In the LEA setting,
Registered Nurses (RNs) who have KBH certification may be used to provide and bill KBH screens
under the LEA provider number. Please refer to Appendix I for a complete list of codes that may be
used to bill KBH screens in the LEA setting.
Services delivered by an LEA do not require a referral from the child's Medicaid managed care
provider (PCCM or HMO).
Services must be
medically necessary
and may be habilitative or rehabilitative for maximum
reduction of disability and restoration to the best possible functional level. Services which are
educationally necessary but not medically necessary will not be covered. Services must be approved
and provided by an Early Childhood Intervention (ECI), Head Start, or LEA program.
Therapy should be provided only for individuals with a Physician Treatment Plan, an IEP or an IFSP.
A physician’s order is required for physical, speech, occupational, and other therapies. Therapy codes
must be billed as one unit equals one visit unless the description of the code specifies the unit.
Occupational therapy services must be provided by a registered occupational therapist or by a certified
occupational therapy assistant working under the supervision of a registered occupational therapist.
Physical therapy services must be provided by a registered physical therapist or by a certified physical
therapy assistant working under the supervision of a registered physical therapist.
Supervision must be clearly documented. This may include, but is not limited to, the registered
occupational or physical therapist initializing each treatment note written by the certified occupational
or physical therapy assistant, or the registered occupational or physical therapist writing “Treatment
was supervised” followed by his or her signature.
8-3
Updated 09/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
BENEFITS AND LIMITATIONS
8400. MEDICAID
Nursing attendant care services may be billed by LEAs for students with those services in their IEPs.
Specific services allowed include:
S9123 Nursing Care, in the home; by RN, per hour Skilled Nursing Service
S9124 Nursing care, in the home; by LPN, per hour LPN Care
The LEA may use its own employees or contracted staff from another agency to provide these
services.
Physician-selected ICD-9-CM diagnosis codes must identify the condition for which the beneficiary is
receiving services. An appropriate diagnosis code would be 783.40.
Documentation of all services performed is required and must include:
•
Date, time, and description of each service delivered and by whom (name, designation of
profession or paraprofession)
•
Assessment and response to intervention/service
•
Progress toward achieving individualized long- and short-term goals
The Kansas Medicaid Fraud Control Act (K.S.A. 2004 Supp. 21-3844 to 21-3855) requires that
providers keep records for five years from the date of payment or, if the claim does not pay, the date
when the provider submitted the claim.
Services provided by LEA providers are by law at no cost to the family. Because the services are at
no charge to the family, most insurance companies consider these services as not covered by their
policies. Therefore, KHPA does not require LEA providers to seek payment from private insurance
companies to be eligible to receive Medicaid reimbursement. Similarly, KHPA will not seek
reimbursement from the insurance companies.
However, KHPA does require all Medicaid providers to report insurance resources of which they
become aware. This reporting assists KHPA in billing for other services that the other insurance
company covers, such as hospitalization.
This policy does not prevent LEA providers from billing and collecting from insurance companies
which do cover these services. If a provider anticipates that an insurance company will cover the
services and the parents give the provider permission to bill the insurance, this private resource
should be accessed prior to accessing taxpayer funded Medicaid.
8-4
Updated 09/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
APPENDIX
APPENDIX I
PROCEDURE CODES AND NOMENCLATURE
The following procedure codes represent an all inclusive list of LEA services billable to KMAP.
Procedures not listed here are considered noncovered.
PROCEDURE
CODE
NOMENCLATURE
AUDIOLOGY
92551
Screening test, pure tone, air only
92552
Pure tone audiometry (threshold); air only
92553
Pure tone audiometry (threshold); air and bone
92555
Speech audiometry threshold
92556
Speech audiometry threshold with speech recognition
92557
Comprehensive audiometry threshold evaluation and speech recognition
92567
Tympanometry (impedance testing)
NURSING
T1001
Nursing assessment/evaluation
T1002
Registered nurse services, up to 15 minutes
T1003
LPN/LVN services, up to 15 minutes
S9123
Nursing care, in the home; by registered nurse
S9124
Nursing care, in the home; by licensed practical nurse
OCC/PHYSICAL/SPEECH THERAPY
97003
Occupational therapy evaluation
97004
Occupational therapy reevaluation
97530
Therapeutic activities, direct (one-on-one) patient contract by the provider (use of
dynamic activities to improve functional performance), each 15 minutes
97532
Development of cognitive skills to improve attention, memory, problem solving,
(includes compensatory training), direct (one-on-one) patient contact by the provider,
each 15 minutes
97533
Sensory integrative techniques to enhance sensory processing and promote adaptive
responses to environmental demands, direct (one-on-one) patient contract by the
provider, each 15 minutes
97535
Self care/home management training (e.g. activities of daily living [ADL] and
compensatory training, meal preparation, safety procedures, and instructions in use of
assistive technology devices/adaptive equipment) direct one-on-one contact by
provider, each 15 minutes
97537
Community/work integration training (e.g. shopping, transportation, money
management, avocational activities and/or work environment/modification analysis,
work task analysis, use of assistive technology device/adaptive equipment), direct one-
on-one contact by provider, each 15 minutes
S5125
Attendant care services; per 15 minutes
97001
Physical therapy evaluation
97002
Physical therapy reevaluation
A-1
Updated 09/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
APPENDIX
97110
Therapeutic procedure, one or more areas, each 15 minutes; therapeutic exercises to
develop strength and endurance, range of motion and flexibility
97112
Therapeutic procedure, one or more areas, each 15 minutes; neuromuscular
reeducation of movement, balance, coordination, kinesthetic sense, posture, and/or
proprioception for sitting and/or standing activities
97113
Therapeutic procedure, one or more areas, each 15 minutes; aquatic therapy with
therapeutic exercises
97116
Therapeutic procedure, one or more areas, each 15 minutes; gait training (includes
stair climbing)
97150
Therapeutic procedure(s), group (2 or more individuals)
92506
Evaluation of speech, language, voice, communication, and/or auditory processing
92507
Treatment of speech, language, voice, communication, and/or auditory processing
disorder; individual
92508
Treatment of speech, language, voice, communication, and/or auditory processing
disorder; group, 2 or more individuals
KBH CODES
99383
Initial preventative medicine evaluation and management of an individual, late
childhood (ages 5 through 11 years)
99384
adolescent (ages 12 through 17 years)
99385
ages 18 - 39 years
99393
Periodic preventative medicine reevaluation and management of an individual, late
childhood (ages 5 through 11 years)
99394
adolescent (ages 12 through 17 years)
99395
ages 18 - 39 years
99201
Office or other outpatient visit for the evaluation and management of a new patient,
which requires these three components: a problem focused history; a problem focused
examination; and straightforward medical decision making. Counseling and/or
coordination of care with other providers or agencies are provided consistent with the
nature of the problem(s) and the patient’s and/or family’s needs. Usually, the
presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes
face-to-face with the patient or family.
99202
Office or other outpatient visit for the evaluation and management of a new patient,
which requires these three components: an expanded problem focused history; an
expanded problem focused examination; and straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided
consistent with the nature of the problem(s) and the patient’s and/or family’s needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians
typically spend 20 minutes face-to-face with the patient or family.
99203
Office or other outpatient visit for the evaluation and management of a new patient,
which requires these three components: a detailed history; a detailed examination; and
medical decision making of low complexity. Counseling and/or coordination of care
with other providers or agencies are provided consistent with the nature of the
problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s)
are of moderate severity. Physicians typically spend 30 minutes face-to-face with the
patient and/or family.
A-2
Updated 09/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
APPENDIX
99204
Office or other outpatient visit for the evaluation and management of a new patient,
which requires these three components: a comprehensive history; a comprehensive
examination; and medical decision making of moderate complexity. Counseling and/or
coordination of care with other providers or agencies are provided consistent with the
nature of the problem(s) and the patient’s and/or family’s needs. Usually, the
presenting problem(s) are of moderate to high severity. Physicians typically spend 45
minutes face-to-face with the patient and/or family.
99205
Office or other outpatient visit for the evaluation and management of a new patient,
which requires these three components: a comprehensive history; a comprehensive
examination; and medical decision making of high complexity. Counseling and/or
coordination of care with other providers or agencies are provided consistent with the
nature of the problem(s) and the patient’s and/or family’s needs. Usually, the
presenting problem(s) are of moderate to high severity. Physicians typically spend 60
minutes face-to-face with the patient and/or family.
99211
Office or other outpatient visits for the evaluation and management of an established
patient, that may not require the presence of a physician. Usually, the presenting
problem(s) are minimal. Typically, 5 minutes are spent performing or supervising
these services.
99212
Office or other outpatient visits for the evaluation and management of an established
patient, which requires at least two of these three components: a problem focused
history; a problem focused examination; and straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided
consistent with the nature of the problem(s) and the patient’s and/or family’s needs.
Usually, the presenting problem(s) are self limited or minor. Physicians typically
spend 10 minutes face-to-face with the patient or family.
99213
Office or other outpatient visits for the evaluation and management of an established
patient, which requires at least two of these three components: an expanded problem
focused history; an expanded problem focused examination; and medical decision
making of low complexity. Counseling and/or coordination of care with other
providers or agencies are provided consistent with the nature of the problem(s) and the
patient’s and/or family’s needs. Usually, the presenting problem(s) are of low to
moderate. Physicians typically spend 15 minutes face-to-face with the patient and/or
family.
99214
Office or other outpatient visits for the evaluation and management of an established
patient, which requires at least two of these three key components: a detailed history;
a detailed examination; and medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided
consistent with the nature of the problem(s) and the patient’s and/or family’s needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians
typically spend 25 minutes face-to-face with the patient and/or family.
99215
Office or other outpatient visits for the evaluation and management of an established
patient, which requires at least two of these three key components: a comprehensive
history; a comprehensive examination; and medical decision making of high
complexity. Counseling and/or coordination of care with other providers or agencies
are provided consistent with the nature of the problem(s) and the patient’s and/or
family’s needs. Usually, the presenting problem(s) are moderate to high severity.
Physicians typically spend 40 minutes face-to-face with the patient and/or family.
A-3
Updated 09/07
KANSAS MEDICAL ASSISTANCE PROGRAM
LOCAL EDUCATION AGENCY PROVIDER MANUAL
APPENDIX
99173
Screening test of visual acuity, quantitative, bilateral
92551
Screening test, pure tone, air only
A-4
February 2008
Appendix A, Figure 10-1
Kansas Special Education Process Handbook
SPECIAL EDUCATION MEDIATION PROCESS
Public awareness and training
are provided. If family or school wants information , contact
Kansas State Department of Education (KSDE), Families Together, Kansas
Association of School Boards, or Kansas Advocacy and
Protective Services.
Family and school agree to mediation
Family and/or school contacts KSDE to request mediator
Mediation Consultant randomly appoints Mediator
Mediator sets up meeting (s)
Mediation is successful,
agreement is written
Mediation is at impasse,
Mediator identifies other options
Mediator sends agreement
to both parties, IEP Team,
and Mediation Consultant
Formal
Complaint
Due
Process
Other
Methods
IEP Team revises IEP to
implement agreement, if
appropriate
Mediator notifies
Mediation Consultant
of Impasse
KSDE/SES October 2007
February 2008
Appendix A, Figure 10-2
Kansas Special Education Process Handbook
Reference Number
Date of Request
REQUEST FOR MEDIATION
Parent(s) Name:
Address City/State/Zip:
Phone Number(s):
USD/Coop/Interlocal
No. & Name:
Address/City/State/Zip:
Contact Name:
Phone Number(s):
Student for whom mediation is requested:
Name: ______________________________________________ Disability
Birthdate:
Has a due process hearing been requested?
yes
no
Has a hearing been scheduled?
yes
no
If yes, please state the date:
Please indicate preferred dates and times you are available for a mediation session.
Unless there is an emergency situation requiring immediate resolution, please allow
approximately two
weeks time for the selection of a mediator and for the mediator to setup a mediation
session.
Preferred Dates:
Please FAX & mail to: Mediation Consultant
Student Support Services
KS State Dept. of Education
120 SE Tenth Avenue
Topeka, KS 66612-1182
Phone: (800) 203-9462 or (785) 296-5478
FAX: (785) 296-6715
KSDE/SES, January, 2007
February 2008
Appendix A, Figure 10-3
Kansas Special Education Process Handbook
Reference Number
AGREEMENT TO MEDIATE
We, the undersigned, have been fully informed of the mediation process and agree to abid e by the procedures
and guidelines governing the process, and that:
1.
The mediator is a specially trained impartial third party whose role is to assist us in making mutuall y
determined decisions regarding the appropriate spec ial education services or placement for:
______________________________________________________________________________________
(Name of Stu
dent)
2.
The mediator is not serving as a legal representat ive, counselor, or advocate and will not make decis ions
regarding the special education services or placeme nt to be provided to the student.
3.
The mediator cannot be called upon as a witness or
consultant in any other administrative, judicial, or
educational process. Mediation discussions are conf idential. Any recording (electronic or otherwise) o f a
mediation session is not permitted. The only writte n record will be the agreement that we jointly deve lop and
agree upon in the mediation process; and
4.
Participation in a mediation session is voluntary, and mediation may not be used to delay or waive th e
parties' right to proceed with a due process hearin g.
5.
Kansas Law, at K.S.A. 72-996, requires that any agr eement reached by the parties to this mediation mus t
be in writing and signed by the parent and an autho rized representative of the school district. The la w also
requires that, at a minimum, every mediation agreem ent must include the following statements:
1) the resolution of each issue presented in the
complaint;
2) all discussions that occurred during the medi ation process are confidential and may not be used
as
evidence in any subsequent due proces
s hearing or civil proceeding; and
3) each party understands that the agreement is
legally binding upon them; and
4) the agreement may be enforced in state or fed
eral court.
6. If this mediation includes complaint issues cu rrently under investigation by the Kansas State Dep artment of
Education, we agree that the timelines for completi on of that investigation shall be extended to provi de us
with an opportunity to complete the mediation proce ss.
Parent:
Signature
Date:
Type or Print Name
Education Agency
Representative:
Signature
Date:
Type or Print Name
Please FAX and mail to:
Mediation Consultant, Stud ent Support Services
KS State Dept. of Education
120 SE Tenth Avenue; Topeka, KS 66612-1182
Phone: (800) 203-9462 or (785) 296-5478
FAX: (785) 296-6715
4/06
February 2008
Appendix A, Figure 10-4
Kansas Special Education Process Handbook
Reference Number
CONFIDENTIALITY PLEDGE
We understand that discussions held in mediation ar e to be kept confidential. Nothing that is said ma y be used as
evidence in any later due process hearing or other
legal action. Specifically, we agree to the follow ing:
• We are not allowed to tell anyone about discussio ns during the mediation process. This includes stat ements made,
settlement proposals made or rejected, and the reas ons an agreement was not reached, if that happens.
We may
not discuss information regarding mediation discuss ions with a judge, administrative hearing officer, complaint
investigator or arbitrator . However, the parties may discuss information, on a need to know basis, with appropriate
staff and professional advisors. Also, a parent may disclose mediation discussions to his/her spouse.
• We agree that we will not at any time, before, du ring, or after mediation, call the mediator or anyo ne associated
with the mediator as a witness. This includes any j udicial, administrative, or arbitration proceeding concerning this
dispute.
• We agree not to subpoena or demand the production
of any recordings, records, notes, work product, o r other
written information of the mediator in any judicial , administrative, or arbitration proceeding concern ing this dispute.
• If at a later date, either party decides to subpo ena the mediator, or the mediator's records, the me diator will contest
the subpoena. The party making the demand agrees t o reimburse the mediator for all expenses related t o
contesting the subpoena. This includes attorney fee s, plus the mediator's hourly rate during the media tion process.
• The exception to the above is that this agreement
to mediate and any written agreement made and sign ed by the
parties as a result of mediation may be used in any
relevant proceeding, unless the parties agree in w riting not to
do so.
Adapted from: Senate Report 105-17, Committee on L abor and Human Resources, S.717, Individuals with D isabilities Education Act Amendment of 1997.
Family member:
Signature
Date:
Type or Print Name
Family member:
Signature
Date:
Type or Print Name
Education Agency
Representative:
Signature
Date:
Type or Print Name
NOTE:
Mediation cannot and will not begin until the Mediation Consultant or mediator has received the
signed Confidentiality Pledge.
Please FAX & mail to:
Mediation Consultant
Student Support Services
KS State Dept. of Education
120 SE Tenth Avenue
Topeka, KS 66612-1182
Phone: (800) 203-9462 or (785) 296-5478
FAX: (785) 296-6715
February 2008
Appendix A, Figure 10-5
Kansas Special Education Process Handbook
SUGGESTED MEDIATION PROCESS TIMELINE
(Calendar Days)
Timeline
Responsible Party
Action
Day 1
Family and School
Mediation Consultant
Agree they want mediation, sign
and forward required forms:
Agreement to Mediate,
Confidentiality Pledge and Request
for Mediation. (Be sure to include
the preferred dates available for
both parties.) Send forms to KSDE
Mediation Consultant
KSDE Mediation Consultant
receives
forms.
By day 4
(within 3 business
days of request)
Mediation
Consultant
Randomly appoints a mediator and
informs both parties of the
appointment
By 7
th
business day
(within 3 business
days of appointment)
Mediator
Arrange mediation at a place and
time acceptable to both parties
By day 17
(within 10 days of
setting mediation
meeting)
This is suggested
timeline. However,
mediation should
occur on one of the
preferred dates of the
parties.
Family, School,
Mediator
Participate in and complete
mediation process
If successful, write agreement and
FAX or send to Mediation Consultant
and IEP team
NOTE: Timeline may be extended,
if needed.
By day 19
(within 2 days of
medition conclusion)
Mediator
Send Mediation Status to Mediation
Consultant
KSDE/SES, March, 2003
February 2008
Appendix A, Figure 10-6
Kansas Special Education Process Handbook
T
R
he fo
u
llow
l
in
e
g is
s
a su
o
mm
f
ary o
M
f pert
e
ine
d
nt ru
i
le
a
s of
t
m
i
e
o
dia
n
tion.
1.
The mediator is an impartial third party.
2.
The mediator has no authority to compel
any action by either party.
3.
Mediation participants for both parties
must include persons who have the
authority to act on behalf of the student
and local district or agency.
4.
Mediation requires the full participation
and commitment of both parties and can
only begin or continue when parties
agree.
5.
The mediation conference is not recorded
by any means. The only record that is
kept of the mediation conference is the
mediation agreement (either hand
written or generated by a laptop
computer) which includes a listing of
participants and the date(s) and
location(s) of the mediation session(s) and
a summary of the outcome. A record of
the mediation discussions will not be
maintained, and no recording
(electronic or otherwise) is
permitted.
6.
Efforts to mediate will not be admissible
as evidence at a due process hearing
except for the purpose of noting that the
mediation occurred and the terms of any
agreement(s) that were reached as a
result of the mediation.
7.
The mediator shall terminate the
mediation at any point that, in the
opinion of the mediator or either party to
the mediation, no resolution of the
disagreement(s) is forthcoming.
8.
The number of participants for each party
shall generally be limited to two or three
persons.
9.
A reasonable time should be set from the
time of initiation to completion of
mediation (generally within ten calendar
days). If needed, the timeline could be
extended by mutual agreement of all
parties.
10. The mediator will chair all mediation
conferences and assure that they are
convened in a timely fashion, according to
an orderly process, and with due regard
to the rights and responsibilities of all
parties to the mediation.
11. The content of the mediation conference
is confidential and shall not be shared
with outside parties.
12. The mediation will be present and future
oriented; past problems will not be the
focus of the mediation conference.
13. The mediation will be conducted with
respect (e.g., name calling or interrupting
will not occur).
14. A copy of the final agreement will become
a part of the student’s school records.
15. Both parties will show good faith and
commitment to implementing the final
agreement.
February 2008
Appendix A, Figure 11-1
Kansas Specia l Education Process Handbook
Formal Complaint Procedure
A complaint alleging a violation of special education
laws or regulations is received by the Kansas State
Department of Education (KSDE)
A courtesy letter
acknowledging
receipt is sent to
complainant and
local education
agency (LEA)
Investigation by
KSDE
Interview with the
complainant and LEA
(may or may not
include onsite visit)
Written Report of
Findings Within
30 Days
Contains corrective actions
if a violation is
substantiated and timelines
for completion, mailed to
complainant and LEA
IF
corrective actions are
accepted and completed
by the LEA, then notice
of completion is given to
the LEA and the
complainant
IF
no appeal and
no corrective
actions
IF
Appealed
REPORT COMPLETE
Complaint File Closed
Commissioner of Education
• Either party may appeal within 10
days from the date of the report
• Review completed by 3 KSDE staff
within 15 days from the date the
appeal is received
• Report issued in 5 days
KSDE, July 2000
February 2008
Appendix A, Figure 11-2
Kansas Specia l Education Process Handbook
Formal Complaint Timeline
Timeline
Responsible
Party
Action
1
s
t
Day
Complaint
Mail or deliver a written, signed complaint form requesting a
formal complaint investigation to the Formal Complaint
Investigator for the Student Support Services Team of the Kansas
State Department of Education.
10
th
Day
KSDE
Mail letters to the complainant and special education
administrator acknowledging receipt of the complaint. Mail
copies of the letters to complainant, special education
administrator, and school district superintendent.
15
th
Day
KSDE
Contact complainant and special education administrator to
clarify issues in complaint letter, to solicit relevant information
and documents, and to schedule a date and time for the on-site
investigation, if necessary.
20
th
Day
KSDE
Conduct investigation. Review and request copies of student
records and IEPs. Interview complainant. Interview special
education administrator and other school personnel.
25
th
Day
KSDE
Prepare written report of findings and corrective actions(s) which
may be required and the time period within which each
corrective action is to be taken.
30
th
Day
KSDE
Mail written report of findings and corrective action(s) to
complainant and special education administrator. Mail copy of
report to school district superintendent.
40
th
Day
(unless
Extension
Granted)
KSDE
Review LEA documentation of implementation of corrective
action(s) contained in written report; or
Review LEA request for an extension of time within which to complete corrective
action(s); or
Review LEA written notice of appeal of written report.
40
th
Day
Complainant
or LEA
Within 10 calendar days from the date the written report was sent
– Send a notice of appeal to the State Commissioner of
Education.
41
st
Day
(unless
Extension
Granted)
KSDE
Pursue sanctions if LEA fails to respond to a written report
within the time allowed
KSDE, October 2007
February 2008
Appendix A, Figure 11-3
Kansas Special Education Process Handbook
KANSAS STATE DEPARTMENT OF EDUCATION
Student Support Services
Formal Complaint Request Form
Any parent of a child with an exceptionality, another individual, or agency or
organization that believes a school district is not following state or federal laws or
regulations related to the Individuals with Disabilities Education Act may file a formal
complaint with the state department of education. A copy of the complaint must also be
sent to the school district. The complaint must allege a violation of special education
laws and regulations that occurred not more than one year before the date the complaint
is filed. The complaint must be in writing, signed, and sent to Student Support Services.
Any document submitted by either the school district or parents will be available to the
other party, upon request. Your request for a formal complaint investigation must include
the following information:
1.
The name, address, and telephone number of the person filing the formal
complaint.
Name___________________________________________________________________
Address_________________________________________________________________
City/State/Zip____________________________________________________________
Telephone_______________________________________________________________
2.
The name, address, and telephone number of the educational agency against
whom the formal complaint is made.
Name of School__________________________________________ USD No.________
School Address___________________________________________________________
City/State/Zip____________________________________________________________
Telephone_______________________________________________________________
3.
The name, category of disability and home address of the child involved.
Name of Child_______________________________ Disability ____________________
Home Address____________________________________________________________
City/State/Zip____________________________________________________________
KSDE, October 2007
February 2008
Appendix A, Figure 11-3
Kansas Special Education Process Handbook
4.
State each of your concerns. You must include the facts that provide the basis of
each concern. Such facts must include when the concern arose and who, or what
circumstances, caused the concern. Also state what you believe the school district
should do to resolve each of your concerns. (Attach additional pages if needed.)
What is Concern #1:
________________________________________________________________________
________________________________________________________________________
What are the facts:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
What do you believe should be done to resolve this concern?
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
If you have additional concerns, please state: (a) each concern; (b) the facts that support
each concern and (c) what you believe should be done to resolve the concern.
______________________________________________________________________
Signature
Date
NOTE: Federal regulations provide that the school district has the discretion of offering a proposal
to resolve the concerns presented in a complaint or offering to participate in voluntary mediation
with the complainant. If the parties agree to (a) mediate any of the concerns presented and (b) to
extend the 60 day time line for completion of a complaint investigation, a mediator will be provided
by the Kansas State Department of Education, at no expense to the parties.
Upon receipt of a written, signed complaint, the Formal Complaint Investigator will conduct an
investigation and provide a written report of findings to the person or agency making the complaint and to
the school district. If a violation is confirmed, the report will contain corrective actions and timelines to be
followed by the school. The formal complaint report is final, unless one of the parties appeals the report.
Either party may appeal the report by filing a written notice of appeal with the Kansas Commissioner of
Education.
The formal complaint must be signed and mailed or personally delivered to:
Formal Complaint
Investigator, Student Support Services, Kansas State Department of Education, 120 SE Tenth
Avenue, Topeka, KS 66612-1182
KSDE 3/26/2007
February 2008
Appendix A, Figure 12-1
Kansas Special Education Process Handbook
DUE PROCESS TIME-LINE SEC. 615
(Pre-hearing procedures)
LEA
Parent
Hearing Officer
Due process
complaint notice
delivered to the other party
and to the SEA which includes
sufficient
information (b)(7)(A)
10 days response and
notice, unless prior written
notice regarding the issues
has already been given to
parents (c)(2)(B)
10 days to
respond
and
specifically address the
issues (c)(2)(B)(ii)
15 days to convene a
resolution session
unless
waived by both parties
(f)(1)(B)(i)(1)
15 days to send
notice of insufficiency
of notice of complaint (c)(2)(C)
5 days from receipt of
Notice of Insufficiency
determine sufficiency
of
complaint notice and notify
parties in writing (c)(2)(D)
5 business days prior to hearing (not less than), each party
must disclose to the other party all
evaluations and
recommendations
based on the evaluations that they
intend to use at the hearing (f)(2)
Amendment
of complaint notice may be made any time
prior to hearing if the other party consents in writing and
has an opportunity for a resolution session or if the hearing
officer grants permission for the amendment—if complaint
notice is amended, all timelines recommence (C)(2)(E)
May grant request for
amendment
not later than 5
days prior to hearing
(c)(2)(E)(i)(9)(11)
Two year limit (exceptions)
30 days from receipt of
Notice of Complaint, if
LEA has not resolved
issues, the
hearing may
begin
and applicable
timelines for hearing shall
commence (f)(1)(B)(ii)
KSDE, October 2007
February 2008
Appendix A, Figure 12-2
Kansas Special Education Process Handbook
USD # _____ NOTICE TO PARENTS OF
SPECIAL EDUCATION DUE PROCESS HEARING
(
Send a signed copy of this due process hearing notice to the student’s parents and to the
Kansas State Department of Education, Student Support Services Team,
120 S.E. 10
th
Ave. Topeka, Kansas 66612
)
This notice is to inform you that USD _____ is initiating a special education due process hearing
relating to the identification, evaluation, or educational placement of your child or the provision
of a free appropriate public education to your child. Therefore, you are being provided with the
following required information (which will also be provided to the hearing officer):
1. Name, address, and telephone number of USD ____ contact person.
Name: _____________________________________________________
Address: ___________________________________________________
Telephone: _________________________________________________
2. The name of the student. _____________________ Disability ________________
3. The name, address, and telephone number of the student’s parents.
Name of father: _____________________________________________________
Address: __________________________________________________________
(or contact information if the child is homeless)
Telephone Number: __________________________________________
Name of mother: ____________________________________________________
Address (if different): __________________________________________________
Telephone Number (if different): __________________________________________
4. A description of each problem, including the facts related to each problem, and a proposed
resolution for correcting each problem.
5. Please note that you are required by law to send, within 10 days of receiving this notice, a
response to the school district that specifically addresses the issues raised in this complaint.
Please refer to the notice of parent rights for a full description of your due process rights. If
this is the first time a due process hearing has been requested regarding your child, a copy of
the parent rights document is enclosed with this notice. If a copy of the parent rights
document is not enclosed with this notice, please be advised that it is always available from
the school district upon request or from the Kansas State Department of Education, Student
Support Services web site at, www.kansped.org.
(over)
KSDE, October 2007
February 2008
Appendix A, Figure 12-2
Kansas Special Education Process Handbook
6. Attached to this notice is a list of qualified special education due process hearing officers,
along with a statement of the qualifications of each. We have already contacted each of the
hearing officers on the list to verify that they are currently available to serve as the hearing
officer for this hearing. You have the right to disqualify any or all of the hearing officers on
the list. You have five days from the date you receive this notice to advise us of any hearing
officers on the list that you wish to disqualify. The school may appoint from this list any
hearing officer who has not been disqualified by you. If you disqualify all of the hearing
officers on the list, the school will, within 3 business days after receiving your notice of
disqualification of all of the hearing officers on the list, notify the Kansas State Department
of Education of the following: (a) your name and address; (b) the name and address of your
attorney, if known; and (c) the names of the hearing officers who were disqualified by you.
At that time, the school will request that the Kansas State Department of Education appoint a
hearing officer for this case.
7. We are also required to inform you of free or low-cost legal and other relevant services. To
fulfill this requirement, we refer you to Kansas Legal Services 1-800-723-6953 and to the
Disability Rights Center of Kansas 1-877-776-1541. Families Together (1-800-264-6343) is
the Parent Information Center and can help parents understand their rights and due process
procedures.
8. Please be advised that a mediation process is also available to help resolve special education
disputes. The costs of mediation are borne by the state. Thus, there are no costs for
mediation to either the parents or the local school district. The mediator is an impartial
professional who is: (a) knowledgeable in special education law; (b) not connected with the
school district; and (c) selected for the mediation by the state department of education.
(Please add additional pages, if necessary)
PROBLEM 1:
________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
FACTS RELATED TO PROBLEM 1
: ____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 1:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
___________________________
_________________________
Date
Signature of authorized
school representative
KSDE, October 2007
February 2008
Appendix A, Figure 12-3
Kansas Special Education Process Handbook
NOTICE OF PARENT’S REQUEST FOR DUE PROCESS HEARING
(Send a signed copy of this due process hearing notice to the School Superintendent or Special
Education Director at the business office of the school and a copy to the Kansas State
Department of Education, Student Support Services Team, 120 S.E. 10
th
Ave. Topeka, Kansas
66612. If you have questions regarding special education or due process hearing rights or
requirements, you may contact the Kansas State Department of Education at 1-800-203-9462)
I have a complaint about the identification, evaluation, or educational placement of my child or
the provision of a free appropriate public education to my child. Therefore, I submit this request
for an impartial special education due process hearing and include the following required
information.
1. My name, address, and telephone number.
Name: _____________________________________________________
Address: ___________________________________________________
Telephone: _________________________________________________
2. The name, category of disability and address of my child.
Name: _______________________________ Disability _____________________
Address: ___________________________________________________
(or contact information if the child is homeless)
3. The name, address, and telephone number of my child’s school.
Name of School: _____________________________________ USD # ________
Address: ____________________________________________________
Telephone Number: ___________________________________________
4. A description of each problem, including the facts related to each problem, and a description
of what I think needs to be done to correct each problem.
5. I have been informed that (a) I have a right to initiate a due process hearing relating to
concerns I have about the identification, evaluation, or placement of my child or the provision
of a free appropriate public education to my child; (b) I must make my request for a due
process hearing within 2 years of the date I knew or should have known of the action that
forms the basis of this complaint; and (c) the 2 year time limit may be extended if the school
district prevented me from requesting the hearing through specific misrepresentations that it
had resolved the problem or if the school district withheld information that it was
required by law to give me. I also understand that a mediation process is available, at
no cost, to help resolve disputes, and that organizations providing low cost legal and
(over)
KSDE, October 2007
February 2008
Appendix A, Figure 12-3
Kansas Special Education Process Handbook
other relevant services are listed in the school’s notice of parent rights. In addition, I
understand that the school must meet with me prior to a due process hearing to
attempt to resolve the problems stated in this due process notice. However, a meeting
is not required if the school and I agree, in writing, to waive such meeting or agree to
use the mediation process. I also understand that I may obtain a copy of the notice of
parent rights explaining my due process rights from the school upon request.
(Please add additional pages, if necessary)
PROBLEM 1:
________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
FACTS RELATED TO PROBLEM 1
: ____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 1:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
PROBLEM 2:
________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
FACTS RELATED TO PROBLEM 2
:_____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 2:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
________________________
________________________
Date
Signature of Parent or Attorney
KSDE 3/26/2007
February 2008
Appendix A, Figure 12-4
Kansas Special Education Process Handbook
DUE PROCESS TIMELINES K.A.R. 91-40-28(d)&(e)
(Selection of hearing officer)
LEA
Parent
Hearing Officer
Due process complaint notice delivered to the other party
And to the SEA which includes sufficient information.
Five business days to furnish
parents with the following:
(a) list of qualified due process
hearing officers;
(b) written notice of
(1) parent’s right (within five
days) to disqualify any or all of
the hearing officers on the list;
(2) school may select any
hearing officers left on the list;
(3) if no hearing officers are left
on the list, the school will
request that the KSDE select a
hearing officer;
(4) availability of mediation.
Also give written notice of the
filing of a due process hearing
to the KSDE.
Five days to respond
with notice of dis-
qualification of hearing
officer(s).
Three business days after a
parent gives notice that all
hearing officers have been
disqualified, contact KSDE and
request appointment of hearing
officer.
(KSDE has three business days
to appoint a hearing officer.)
Hearing must be held within
35 days of date of request.
KSA 72-973(c)
At request of either Party,
the Hearing Officer may
grant specific extensions of
time. KSA 72-975(c)
February 2008
Appendix A, Figure 13-2
Kansas Special Education Process Handbook
Letter to Huefner
Office of Special Education Programs
N/A
October 3, 2006
Case Summary
Just as parents can seek an expedited hearing to dispute a student's
placement in an IAES following a serious disciplinary infraction, LEAs can
request an expedited hearing to ask that potentially dangerous students be
kept out of mainstream classrooms. OSEP informed a professor of special
education law that districts are entitled to speed up the appellate process
when it believes that a child with a disability is substantially likely to injure
himself or other people if he does not remain in an IAES. In a letter to the
professor, OSEP Director Alexa Posny clarified that returning a child to the
placement from which he was removed essentially amounts to maintaining
the child's current educational placement. "If the LEA believes that
'maintaining the current educational placement of the child is substantially
likely to result in injury to the child or to others,' the LEA may appeal that
determination by filing a due process complaint to request an expedited due
process hearing under 34 CFR 300.532(a)," Posny wrote. The director also
noted that an LEA can repeat the procedure if it believes that the child
continues to pose a safety threat after 45 days in an IAES.
Judge / Administrative Officer
Alexa Posny, Director
Full Text
Dixie Snow Huefner
Professor, Department of Special Education
University of Utah
1705 E. Campus Center Drive, Rm. 221 MBH
Salt Lake City, Utah 84112
Dear Ms. Huefner:
This letter is in response to your letter dated October 3, 2006, in which you
request clarification regarding 34 CFR §§ 300.532(a) and 300.533 of the final
regulations for Part B of the Individuals with Disabilities Education Act (Part
February 2008
Appendix A, Figure 13-2
Kansas Special Education Process Handbook
B). The final Part B regulations, published in the Federal Register on August
14, 2006 at 71 Fed. Reg. 46540 became effective on October 13, 2006.
You ask for clarification of the language in 34 CFR § 300.532(a) which gives
a parent or a local educational agency (LEA) the right to request an expedited
due process hearing. That regulation provides that "[t]he parent of a child with
a disability who disagrees with any decision regarding placement under §§
300.530 and 300.531 or the manifestation determination under § 300.530(e),
or an LEA that believes that maintaining the current placement of the child is
substantially likely to result in injury to the child or others, may appeal the
decision by requesting a hearing. The hearing is requested by filing a
complaint pursuant to §§ 300.507 and 300.508(a) and (b)." 34 CFR §
300.532(a). You seek clarification regarding what decision would be the
subject of the LEA's appeal in the expedited hearing, since you believe that
no change in placement to an interim alternative educational setting could
occur until the hearing officer issues a decision in favor of the LEA. We
believe that the language "appeal the decision" refers to a situation where a
child has been removed from the current placement pending the
manifestation determination, and the LEA seeks a hearing officer's
intervention to challenge the decision to return the child to the current
placement as a result of the manifestation determination.
Except for drugs, weapons, or serious bodily injury offenses under 34 CFR §
300.530(g), (where a child can be immediately removed for not more than 45
school days regardless of whether the misconduct is a manifestation of the
child's disability), the Part B regulations provide that a child is returned to the
placement from which he or she was removed for ten days following a
determination that the behavior giving rise to the disciplinary action was a
manifestation of the child's disability, unless the parent and the LEA agree to
a change of placement as part of the modification of the behavioral
intervention plan. 34 CFR § 300.530(f)(2). The return of the child to the
placement from which the child was removed under these circumstances is
tantamount to "maintaining the current placement of the child." If the LEA
believes that "maintaining the current placement of the child is substantially
likely to result in injury to the child or to others" the LEA may appeal that
determination by filing a due process complaint to request an expedited due
process hearing under 34 CFR § 300.532(a). The hearing officer may order a
change of placement under 34 CFR § 300.532(b)(2)(ii) to an appropriate
interim alternative educational setting for not more than 45 school days if the
hearing officer agrees with the LEA that maintaining the current educational
placement of the child is substantially likely to result in injury to the child or to
others. Under 34 CFR § 300.532(b)(3), these procedures may be repeated if
the LEA believes that returning the child to the original placement is
substantially likely to result in injury to the child or to others.
February 2008
Appendix A, Figure 13-2
Kansas Special Education Process Handbook
Regarding 34 CFR § 300.533 (Placement during appeals) you indicate that
you do not understand the meaning of this provision when an LEA requests a
hearing to remove a child from his or her current placement, and ask why an
LEA is permitted to remove the child to an interim educational setting before a
hearing decision is issued. The regulation at 34 CFR § 300.533 is clear that
when an appeal has been made under 34 CFR § 300.532, by either the
parent or the LEA, the child's "stay-put" placement is the interim alternative
educational setting selected by the child's individualized education program
(IBP) Team. In most instances, we believe that the child would be placed in
an interim alternative educational setting pursuant to the LEA's authority
provided undo 34 CFR §§ 300.530 and 300.531 prior to the LEA's request for
an expedited due process hearing, and the LEA would be requesting that the
hearing officer extend the child's placement in the interim alternative
educational setting for an additional 45 school days. As explained in the
Analysis of Comments and Changes published with the final Part B
regulations, 34 CFR § 300.533, which implements section 6l5(k)(4)(A) of the
reauthorized IDEA, reflects "... Congress's clear intent that, when there is an
appeal under section 615(k)(3) of the Act by the parent or the public agency,
the child shall remain in the interim alternative educational setting chosen by
the IEP Team pending the hearing officer's decision or until the time period for
the disciplinary action expires, whichever occurs firsts unless the parent and
the public agency agree otherwise." Assistance to States for the Education of
Children with Disabilities and Preschool Grants for Children with Disabilities,
Final Rule, 71 Fed. Reg. 46540.46726 (Aug. 14, 2006).
Based on section 607(e) of the IDEA, we are informing you that our response
is provided as informal guidance and is not legally binding, but represents an
interpretation by the U.S. Department of Education of the IDEA in the context
of the specific facts presented.
We hope this information is responsive to your request and provides the
clarification you need. If you have further questions, please do not hesitate to
contact this office.
Statutes Cited
20 USC 1415(k)(4)(A)
20 USC 1415(k)(3)
20 USC 1407(e)
Regulations Cited
34 CFR 300.532(a)
34 CFR 300.533
34 CFR 300.530
34 CFR 300.531
34 CFR 300.530(e)
34 CFR 300.507
February 2008
Appendix A, Figure 13-2
Kansas Special Education Process Handbook
34 CFR 300.508(a)
34 CFR 300.508(b)
34 CFR 300.530(g)
34 CFR 300.530(f)(2)
34 CFR 300.532(b)(2)(ii)
34 CFR 300.532(b)(3)
34 CFR 300.532
Guidelines for the Use of Seclusion Rooms and Restraint
on Children with Disabilities
Guideline 1. Definitions. As used in these guidelines, the following terms
shall have the meanings specified herein: (a) "Children with disabilities" has
the meaning specified in K.S.A. 72-962 and amendments thereto.
(b) "Imminent risk of harm" means an immediate and impending threat of
a person causing substantial physical injury to self or others. Violent action that
is destructive of property may involve a substantial risk of injury to a person.
(c) "Individualized education plan" and "IEP" have the meaning specified
in K.S.A. 72-962 and amendments thereto.
(d) "Mechanical restraint" means any device or object used to limit a
person's movement, except that a protective or stabilizing device either ordered
by a person appropriately licensed to issue the order for the device or required
by law shall not be considered to be a mechanical restraint. This term does not
include any device used by a law enforcement officer, campus police officer, or
school security officer in carrying out law enforcement duties.
(e) "Physical restraint" means bodily force used to substantially limit a
person's movement, except that consensual, solicited, or unintentional contact
and contact to provide comfort, assistance, or instruction shall not be deemed
to be physical restraint.
(f) "School employees" means teachers, paraprofessionals, providers of
related services, administrators, and support staff.
Guideline 1
page 2
(g) "Seclusion room" means a room or other confined area in which a
child with a disability is placed in isolation from other persons for a limited time
as a behavior intervention strategy and from which the student is prevented
from having egress.
Guideline 2. Seclusion rooms; use and restrictions. (a) No child with a disability
should be subjected to unreasonable, unsafe, or unwarranted use of seclusion
rooms. Therefore, a child should be placed in a seclusion room only as a
behavior intervention strategy and not for purposes of discipline or punishment,
or for the convenience of staff.
(b) Any child with a disability should be placed in a seclusion room only if
this action is specified in the student's IEP or behavior intervention plan (BIP) or if
the behavior of the student presents an imminent risk of harm.
(c) Unless the behavior of a child with a disability presents an imminent
risk of harm, the child should not be placed in a seclusion room unless other
less-restrictive, positive behavior intervention strategies specified in the child's
IEP or BIP, as appropriate to the behavior exhibited by the child, have been
implemented but were ineffective.
(d)(1) If the IEP team of a child with a disability determines, based upon
the results of a functional assessment of behavior and other relevant
information, that an appropriate behavior intervention plan for the child should
include the use of a seclusion room, the IEP team should include this
information in the child's IEP or BIP and specify the location of each seclusion
room to be used, the maximum length of any period of seclusion, the number of
times during a single school day that the child is to be placed in a seclusion
room, and any other relevant matter agreed to by the IEP team.
(2) The IEP team also should specify the data to be collected to
determine whether placement of the child in a seclusion room is effective with the
Guideline 2
page 2
child, including the number of times that the use of a seclusion room within a
fixed period of time could signify the need for an IEP team meeting, and a date
by which a review of the effectiveness of this intervention should shall be made
and the name of each reviewer. A parent must be given the opportunity to
participate in this review. The initial review date should be scheduled for a date
not exceeding 45 school days after the IEP team meeting. Of course, an IEP
team meeting may be requested at any time to review and consider making
changes in the use of this behavior intervention strategy.
(e) A child with a disability should not be placed in a seclusion room if the
child is known to have any medical condition that a licensed health care provider
has indicated, in a written statement that is provided to the school and that is on
file with the school, precludes this action.
(f) A child with a disability should not be placed in a seclusion room except by a
school employee who has had training in the appropriate use of seclusion rooms,
including getting a child to a seclusion room, placing a child in a seclusion room, and
supervising a child while the child is in the room. The training shall be consistent with
nationally-recognized training programs, such as Mandt or Nonviolent Crisis
Intervention, to ensure the safe use of this behavior intervention strategy.
(g) While a child with a disability is in a seclusion room, the school employee
who is supervising the student should have the ability to see and hear the student at all
times.
Guideline 2
page 3
(h) Not more than one child with a disability should be placed in the same
seclusion room at the same time.
Guideline 3. Seclusion rooms; size and characteristics. Each seclusion
room to be used for any particular child should be of a size that is appropriate to
the child's chronological and developmental age, size, and behavior.
(b) Each seclusion room should have a ceiling height that is comparable
to the ceiling height of the other rooms in the building in which it is located and
should be equipped with heating, cooling, ventilation, and lighting systems that
are comparable to the systems that are in use in the other rooms of the building
in which it is located.
(c) Each seclusion room should be free of any object that poses a danger
to the child with a disability who is being placed in the room.
(d) Any seclusion room should be equipped with a door that locks only if
the lock is equipped with a device that automatically disengages the lock in
case of an emergency, such as a fire or tornatic weather.
Guideline 4. Physical restraint and mechanical restraint; use and
restrictions. (a) No child with a disability should be subjected to unreasonable,
unsafe, or unwarranted use of physical restraint as provided in this guideline. A
child with a disability should not be subjected to any form of mechanical restraint.
(b) Except as provided in paragraph (c), no school employee should use
physical restraint on any child with a disability. Physical restraint should not be
used for discipline, punishment, or the convenience of staff.
(c)(1) A school employee should use physical restraint on a child with a
disability only if the child's behavior presents an imminent risk of harm or the child
is involved in an altercation. Except to intercede in an altercation, each school
employee applying physical restraint should use a method of physical restraint in
which the employee has received training and should apply the physical restraint in
a manner that is proportionate to the circumstances and to the child's size and age
and the severity of the child's behavior.
(2) School employees should be provided training in using an appropriate
method of physical restraint and in determining the circumstances in which the
use of physical restraint is appropriate. The training should be consistent with
nationally-recognized training programs, such as Mandt or Nonviolent Crisis
Intervention, to ensure that school employees are trained in the proper use of
physical restraint to prevent harm to students or others.
Guideline 5. Seclusion rooms and physical restraint; reports and
notification.
(a)(1) When any child with a disability is placed in a seclusion room or is
subjected to physical restraint, the procedures specified in this guideline, or
others providing for parental notification, should be implemented.
(2) As soon as possible after use of the seclusion room or physical
restraint, the school employee who used the seclusion room or physical restraint,
or an employee who witnessed its use, should document the use of the seclusion
room or the physical restraint. This documentation should be completed not later
than the school day following the day on which the seclusion room or physical
restraint is used, and a copy of the documentation provided to the parent of the
child when the documentation is completed.
(b)(1) Each school that uses a seclusion room as defined in guideline 1
must submit annually to the state director of special education the following
information:
(A) The name of the school and the grades offered at the school; and
(B) The length, width and height of each of the seclusion rooms located in
the school.
(2) Each school that uses a seclusion room must submit a quarterly report
to the state director of special education that includes the following information:
(A) The number of students placed in seclusion during the reporting
period;
Guideline 5
page 2
(B) the maximum amount of time any child was in seclusion on a single
occasion; and
(C) the maximum number of times during a single day that a student was
placed in a seclusion room.
(c) The state director of special education will compile the reports from
the schools and provide the results to the State Special Education Advisory
Council, which is to consider the information and make any recommendations it
believes appropriate to the State Board of Education.
October 2007
February 2008
Appendix A, Figure 13-4
Kansas Special Education Process Handbook
USD # _____ NOTICE TO PARENTS OF EXPEDITED
SPECIAL EDUCATION DUE PROCESS HEARING
(
Send a signed copy of this due process hearing notice to the student’s parents
and to the Kansas State Department of Education, Student Support Services Team,
120 S.E. 10
th
Ave. Topeka, Kansas 66612
)
This notice is to inform you that USD _____ is initiating an expedited special education due
process hearing relating to behavior of your child that we believe is substantially likely to result
in injury to your child or to other persons, and that we will be requesting an order approving an
interim alternative educational setting for up to 45 school days. Therefore, you are being
provided with the following required information:
1. Name, address, and telephone number of USD ____ contact person.
Name: _____________________________________________________
Address: ___________________________________________________
Telephone: _________________________________________________
2. Student name: _________________________ Disability ____________________
3. The name, address, and telephone number of the student’s parents.
Name of father: _____________________________________________________
Address: __________________________________________________________
(or contact information if the child is homeless)
Telephone Number: __________________________________________
Name of mother: ____________________________________________________
Address (if different): ____________________________________________________
Telephone Number (if different): ___________________________________________
4. A description of each problem, including the facts related to each problem, and a proposed
resolution for correcting each problem.
5. Please note that you are required by law to send, within 10 days of receiving this notice, a
response to the school district that specifically addresses the issues raised in this complaint.
Please refer to the notice of parent rights for a full description of your due process rights. If
this is the first time a due process hearing has been requested regarding your child, a copy of
the parent rights document is enclosed with this notice. If this is not the first due process
request, a copy of the parent rights document is always available from the director of special
October 2007
February 2008
Appendix A, Figure 13-4
Kansas Special Education Process Handbook
education for the school district or educational cooperative, upon request. The notice of
parent rights is also available on the Kansas State Department of Education, Student Support
Services web site at www.kansped.org.
6. The school is sending a copy of this notice to the Kansas State Department of Education, and
we are requesting that it appoint a hearing officer for this case.
7. We are also required to inform you of free or low-cost legal and other relevant services. To
fulfill this requirement, we refer you to Kansas Legal Services 1-800-723-6953 and to the
Disability Rights Center of Kansas 1-877-776-1541. Families Together (1-800-264-6343) is
the Parent Information Center and can help parents understand their rights and due process
procedures.
(Please add additional pages, if necessary)
PROBLEM 1:
_________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
FACTS RELATED TO PROBLEM 1
: ____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 1:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
________________________
________________________
Date
Signature of Authorized School
Representative
October 2007
February 2008
Appendix A, Figure 13-5
Kansas Special Education Process Handbook
NOTICE OF PARENT’S REQUEST FOR EXPEDITED DUE PROCESS HEARING
(
Send a signed copy of this due process hearing notice to the School Superintendent or Special
Education Director at the business office of the school and a copy to the Kansas State
Department of Education, Student Support Services Team, 120 S.E. 10
th
Ave. Topeka, Kansas
66612. If you have questions regarding special education or due process hearing rights or
requirements, you may contact the Kansas State Department of Education at 1-800-203-9462
)
I have a complaint about the manifestation determination regarding my child and/or the
disciplinary placement of my child. Therefore, I submit this request for an expedited special
education due process hearing, and include the following required information.
1. My name, address, and telephone number.
Name: _____________________________________________________
Address: ___________________________________________________
Telephone: _________________________________________________
2. The name, category of disability, and address of my child.
Name: ________________________________ Disability _______________________
Address: ___________________________________________________
(or contact information if the child is homeless)
3. The name, address, and telephone number of my child’s school.
Name of School: _____________________________________ USD # ________
Address: ____________________________________________________
Telephone Number: ___________________________________________
4. A description of each problem, including the facts related to each problem, and a description
of what I think needs to be done to correct each problem.
5. I have been informed that I have a right to initiate an expedited due process hearing relating
to a manifestation determination and/or a disciplinary change of placement regarding my
child. I also understand that organizations providing low cost legal and other relevant
services are listed in the school’s notice of parent rights. In addition, I understand that the
school must meet with me prior to a due process hearing to attempt to resolve the problems
stated in this due process notice unless the school and I agree, in writing, to waive such
October 2007
February 2008
Appendix A, Figure 13-5
Kansas Special Education Process Handbook
meeting or agree to use the mediation process. I also understand that I may obtain a copy of
the notice of parent rights explaining my due process rights from the school upon request.
(Please add additional pages, if necessary)
PROBLEM 1:
________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
FACTS RELATED TO PROBLEM 1
: ____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 1:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
PROBLEM 2:
________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
FACTS RELATED TO PROBLEM 2
:_____________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
PROPOSED RESOLUTION OF PROBLEM 2:
____________________________________
______________________________________________________________________________
______________________________________________________________________________
________________________
________________________
Date
Signature of Parent or Attorney
February, 2008
Appendix A, Fig. 13-6a, pg 1
Kansas Special Education Process Handbook
Date:____________
_
Functional Behavioral Assessm
ent: Part 1 (Description)
Student Name
:
_____________________________________
ID:_________________ DOB:
______________ Ca
se Manager:_
________________
___________
Data Sources:
Observation
Student Interview
Teacher Interview
Parent Interview
Rating Scales
Testing
Description of Behavior
(No.____)
Setting(s) in which behavior occurs:
Frequency:
Intensity
(Consequences of problem behavior on student, peers, instructional environment
):
Duration:
Describe Previous Interventions:
Educational Impact:
Page____of___
February, 2008
Appendix A, Fig. 13-6a, pg 2
Kansas Special Education Process Handbook
Name: _________________
Functional Behavioral Assessment: Part 2 (Function)
Date: ______________
Function of Behavior
(No. ____
):
Specify hypothesized function for each area checked below.
Affective Regulation/Emotional Reactivity
(Identify emotional factors; anxiety, depression, anger, poor self
-concept; that play a role in
organizing or directing problem
behavior):
Cognitive Distortion
(Identify distorted thoughts; inaccurate attributions, negative self
-statements, erroneous interpretations of events; that play
a role in organizing or directing problem
behavior):
Reinforcement
(Identify environmental triggers and payoffs that play
a role in organizing and directing problem behavior):
Antecedents:
Consequences:
Modeling
(Identify the degree to which the behavior is copied, who they
are copying the behavior from, and why they are copying the beha
vior):
Family Issues
(Identify family issues that play a part
in organizing and directing problem behavior):
Physiological/Constitutional
(Identify physiological and/or personality characteristics; developm
ental disabilities, temperament; that play a part in organi
zing and directing problem behavior):
Communicate need
(Identify what the student is trying to say through the problem behavior):
Curriculum/Instruction
(Identify how instruction, curriculum, or educational envir
onment play a part in organizing
and directing problem behavior):
Page ____ of ____
February, 2008
Appendix A, Fig. 13-6a, pg 3
Kansas Special Education Process Handbook
Behavioral Intervention Plan
Date_____________
Student Name: ______________________________ ID: _________________ DOB: ______________ Case Manager: _____________________
Behavior
Number(s)
Expected Outcome(s)
Goal(s)
Intervention(s) &
Frequency of Intervention
Person
Responsible
Goal/Intervention
Review Notes
* Review Codes: GA = Goal Achieved | C = Continue | DC =
Discontinue Expected Review Dates: __________ | __________ | _________
_
Signatures: _____________________ _____________________ _____________________ _____________________ _____________________
_____________________ _____________________ _____________________ _____________________ _____________________
Page ____ of ____
Information Gathering
Sort and Analyze Information
Is there enough information?
Formulation of Hypothesis about
Function of Behavior
Verify Hypothesis (Data Collection, Variable
Manipulation, Etc.)
Veri
fi
cation Analysis (socially valid data,
reliable data)
Did Data Con
fi
rm Hypothesis?
Statement of Function Determined
Hypothesis Intervention Options
Does Intervention have Potential
to be Effective?
Behavior Plan Development
Implementation
Evaluation
Does Intervention Work?
Monitor and Change as Needed
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
Functional Assessment Process
Is the Hypothesis of
Function Correct?
Check
Check
Check
Check
Check
Check
No
No
No
No
No
No
Yes
Copyright Project STAY 1996-2007
9/05
February 2008
Appendix A, Figure 13-7
Kansas Special Education Process Handbook
MANIFESTATION DETERMINATION REVIEW
Student’s Name:
Date:
School:
Grade:
1.
Summary of the information considered:
A. Student’s behavior
B. Student’s IEP
C. Teacher observation of the student
D. Relevant information provided by the parent
E. Any other relevant information.
2.
Was the conduct in question caused by or have a direct and substantial relationship to the child’s disability?
YES or NO
3.
Was the conduct in question a direct result of the school’s failure to implement the IEP?
YES or NO
9/05
February 2008
Appendix A, Figure 13-7
Kansas Special Education Process Handbook
4.
Determination:
The team (which included the student’s parent(s) or legal decision maker, a representative of the school district and
relevant members of the IEP team) looked at all relevant information, and determined that the behavior
?
IS
a manifestation of the disability
AND:
?
the student will be returned to the placement specified in his/her IEP, unless: (a) the school and
parent(s) agree to a change of placement through the IEP process; or (b) the student is assigned to an
alternative educational setting for possession of a weapon or illegal drugs or for infliction of serious
bodily injury on another person; and
?
the team will conduct a functional behavioral assessment (unless a functional behavioral assessment
has already been conducted), and will implement a behavior intervention plan for the student; or
?
the team will review the existing behavior intervention plan and modify it, as necessary, to address
the behavior that resulted in the disciplinary removal.
OR
?
IS NOT
a manifestation of the disability
AND:
?
disciplinary removal may occur, but the school district must continue to make a free appropriate public
education (FAPE) available to the student in a manner which enables the student to continue to
participate in the general education curriculum, although in another setting, and to progress toward
meeting the goals set out in the student’s IEP; and
?
If appropriate, the school will conduct a functional behavioral assessment and develop a behavior
intervention plan designed to address the behavior violation so that it does not recur.
TEAM MEMBERS PRESENT
NAME
TITLE
NAME
TITLE
DISSENTING OPINION TEAM MEMBERS:
NAME
TITLE
NAME
TITLE
Attachments:
YES
or
NO
February 2008
Appendix B
Kansas Special Education Process Handbook
1
SEC. 602. DEFINITIONS.
Except as otherwise provided, in this title:
(1) ASSISTIVE TECHNOLOGY DEVICE-
(A) IN GENERAL- The term `assistive technology device' means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or customized, that is used
to increase, maintain, or improve functional capabilities of a child with a disability.
(B) EXCEPTION- The term does not include a medical device that is surgically implanted, or the
replacement of such device.
(2) ASSISTIVE TECHNOLOGY SERVICE- The term `assistive technology service' means any service
that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology
device. Such term includes--
(A) the evaluation of the needs of such child, including a functional evaluation of the child in the
child's customary environment;
(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by
such child;
(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing
assistive technology devices;
(D) coordinating and using other therapies, interventions, or services with assistive technology devices,
such as those associated with existing education and rehabilitation plans and programs;
(E) training or technical assistance for such child, or, where appropriate, the family of such child; and
(F) training or technical assistance for professionals (including individuals providing education and
rehabilitation services), employers, or other individuals who provide services to, employ, or are
otherwise substantially involved in the major life functions of such child.
(3) CHILD WITH A DISABILITY-
(A) IN GENERAL- The term `child with a disability' means a child--
(i) with mental retardation, hearing impairments (including deafness), speech or language
impairments, visual impairments (including blindness), serious emotional disturbance (referred
to in this title as `emotional disturbance'), orthopedic impairments, autism, traumatic brain
injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.
(B) CHILD AGED 3 THROUGH 9- The term `child with a disability' for a child aged 3 through 9 (or
any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the
local educational agency, include a child--
(i) experiencing developmental delays, as defined by the State and as measured by appropriate
diagnostic instruments and procedures, in 1 or more of the following areas: physical
development; cognitive development; communication development; social or emotional
development; or adaptive development; and
(ii) who, by reason thereof, needs special education and related services.
(4) CORE ACADEMIC SUBJECTS- The term `core academic subjects' has the meaning given the term in
section 9101 of the Elementary and Secondary Education Act of 1965.
(5) EDUCATIONAL SERVICE AGENCY- The term `educational service agency'--
(A) means a regional public multiservice agency--
(i) authorized by State law to develop, manage, and provide services or programs to local
educational agencies; and
(ii) recognized as an administrative agency for purposes of the provision of special education and
related services provided within public elementary schools and secondary schools of the State;
and
(B) includes any other public institution or agency having administrative control and direction over a
public elementary school or secondary school.
(6) ELEMENTARY SCHOOL- The term `elementary school' means a nonprofit institutional day or
residential school, including a public elementary charter school, that provides elementary education, as
determined under State law.
February 2008
Appendix B
Kansas Special Education Process Handbook
2
(7) EQUIPMENT- The term `equipment' includes--
(A) machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house
such machinery, utilities, or equipment; and
(B) all other items necessary for the functioning of a particular facility as a facility for the provision of
educational services, including items such as instructional equipment and necessary furniture;
printed, published, and audio-visual instructional materials; telecommunications, sensory, and other
technological aids and devices; and books, periodicals, documents, and other related materials.
(8) EXCESS COSTS- The term `excess costs' means those costs that are in excess of the average annual
per-student expenditure in a local educational agency during the preceding school year for an elementary
school or secondary school student, as may be appropriate, and which shall be computed after deducting-
-
(A) amounts received--
(i) under part B;
(ii) under part A of title I of the Elementary and Secondary Education Act of 1965; and
(iii) under parts A and B of title III of that Act; and
(B) any State or local funds expended for programs that would qualify for assistance under any of
those parts.
(9) FREE APPROPRIATE PUBLIC EDUCATION- The term `free appropriate public education' means
special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State
involved; and
(D) are provided in conformity with the individualized education program required under section
614(d).
(10) HIGHLY QUALIFIED-
(A) IN GENERAL- For any special education teacher, the term `highly qualified' has the meaning
given the term in section 9101 of the Elementary and Secondary Education Act of 1965, except that
such term also--
(i) includes the requirements described in subparagraph (B); and
(ii) includes the option for teachers to meet the requirements of section 9101 of such Act by
meeting the requirements of subparagraph (C) or (D).
(B) REQUIREMENTS FOR SPECIAL EDUCATION TEACHERS- When used with respect to any
public elementary school or secondary school special education teacher teaching in a State, such
term means that--
(i) the teacher has obtained full State certification as a special education teacher (including
certification obtained through alternative routes to certification), or passed the State special
education teacher licensing examination, and holds a license to teach in the State as a special
education teacher, except that when used with respect to any teacher teaching in a public charter
school, the term means that the teacher meets the requirements set forth in the State's public
charter school law;
(ii) the teacher has not had special education certification or licensure requirements waived on an
emergency, temporary, or provisional basis; and
(iii) the teacher holds at least a bachelor's degree.
(C) SPECIAL EDUCATION TEACHERS TEACHING TO ALTERNATE ACHIEVEMENT
STANDARDS- When used with respect to a special education teacher who teaches core academic
subjects exclusively to children who are assessed against alternate achievement standards established
under the regulations promulgated under section 1111(b)(1) of the Elementary and Secondary
Education Act of 1965, such term means the teacher, whether new or not new to the profession, may
either--
(i) meet the applicable requirements of section 9101 of such Act for any elementary, middle, or
secondary school teacher who is new or not new to the profession; or
February 2008
Appendix B
Kansas Special Education Process Handbook
3
(ii) meet the requirements of subparagraph (B) or (C) of section 9101(23) of such Act as applied to
an elementary school teacher, or, in the case of instruction above the elementary level, has
subject matter knowledge appropriate to the level of instruction being provided, as determined
by the State, needed to effectively teach to those standards.
(D) SPECIAL EDUCATION TEACHERS TEACHING MULTIPLE SUBJECTS- When used with
respect to a special education teacher who teaches 2 or more core academic subjects exclusively to
children with disabilities, such term means that the teacher may either--
(i) meet the applicable requirements of section 9101 of the Elementary and Secondary Education
Act of 1965 for any elementary, middle, or secondary school teacher who is new or not new to
the profession;
(ii) in the case of a teacher who is not new to the profession, demonstrate competence in all the
core academic subjects in which the teacher teaches in the same manner as is required for an
elementary, middle, or secondary school teacher who is not new to the profession under section
9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard
of evaluation covering multiple subjects; or
(iii) in the case of a new special education teacher who teaches multiple subjects and who is highly
qualified in mathematics, language arts, or science, demonstrate competence in the other core
academic subjects in which the teacher teaches in the same manner as is required for an
elementary, middle, or secondary school teacher under section 9101(23)(C)(ii) of such Act,
which may include a single, high objective uniform State standard of evaluation covering
multiple subjects, not later than 2 years after the date of employment.
(E) RULE OF CONSTRUCTION- Notwithstanding any other individual right of action that a parent or
student may maintain under this part, nothing in this section or part shall be construed to create a
right of action on behalf of an individual student or class of students for the failure of a particular
State educational agency or local educational agency employee to be highly qualified.
(F) DEFINITION FOR PURPOSES OF THE ESEA- A teacher who is highly qualified under this
paragraph shall be considered highly qualified for purposes of the Elementary and Secondary
Education Act of 1965.
(11) HOMELESS CHILDREN- The term `homeless children' has the meaning given the term `homeless
children and youths' in section 725 of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a).
(12) INDIAN- The term `Indian' means an individual who is a member of an Indian tribe.
(13) INDIAN TRIBE- The term `Indian tribe' means any Federal or State Indian tribe, band, rancheria,
pueblo, colony, or community, including any Alaska Native village or regional village corporation (as
defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)).
(14) INDIVIDUALIZED EDUCATION PROGRAM; IEP- The term `individualized education program' or
`IEP' means a written statement for each child with a disability that is developed, reviewed, and revised
in accordance with section 614(d).
(15) INDIVIDUALIZED FAMILY SERVICE PLAN- The term `individualized family service plan' has the
meaning given the term in section 636.
(16) INFANT OR TODDLER WITH A DISABILITY- The term `infant or toddler with a disability' has the
meaning given the term in section 632.
(17) INSTITUTION OF HIGHER EDUCATION- The term `institution of higher education'--
(A) has the meaning given the term in section 101 of the Higher Education Act of 1965; and
(B) also includes any community college receiving funding from the Secretary of the Interior under the
Tribally Controlled College or University Assistance Act of 1978.
(18) LIMITED ENGLISH PROFICIENT- The term `limited English proficient' has the meaning given the
term in section 9101 of the Elementary and Secondary Education Act of 1965.
(19) LOCAL EDUCATIONAL AGENCY-
(A) IN GENERAL- The term `local educational agency' means a public board of education or other
public authority legally constituted within a State for either administrative control or direction of, or
to perform a service function for, public elementary schools or secondary schools in a city, county,
township, school district, or other political subdivision of a State, or for such combination of school
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districts or counties as are recognized in a State as an administrative agency for its public elementary
schools or secondary schools.
(B) EDUCATIONAL SERVICE AGENCIES AND OTHER PUBLIC INSTITUTIONS OR
AGENCIES- The term includes--
(i) an educational service agency; and
(ii) any other public institution or agency having administrative control and direction of a public
elementary school or secondary school.
(C) BIA FUNDED SCHOOLS- The term includes an elementary school or secondary school funded
by the Bureau of Indian Affairs, but only to the extent that such inclusion makes the school eligible
for programs for which specific eligibility is not provided to the school in another provision of law
and the school does not have a student population that is smaller than the student population of the
local educational agency receiving assistance under this title with the smallest student population,
except that the school shall not be subject to the jurisdiction of any State educational agency other
than the Bureau of Indian Affairs.
(20) NATIVE LANGUAGE- The term `native language', when used with respect to an individual who is
limited English proficient, means the language normally used by the individual or, in the case of a child,
the language normally used by the parents of the child.
(21) NONPROFIT- The term `nonprofit', as applied to a school, agency, organization, or institution, means
a school, agency, organization, or institution owned and operated by 1 or more nonprofit corporations or
associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any
private shareholder or individual.
(22) OUTLYING AREA- The term `outlying area' means the United States Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
(23) PARENT- The term `parent' means--
(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law
from serving as a parent);
(B) a guardian (but not the State if the child is a ward of the State);
(C) an individual acting in the place of a natural or adoptive parent (including a grandparent,
stepparent, or other relative) with whom the child lives, or an individual who is legally responsible
for the child's welfare; or
(D) except as used in sections 615(b)(2) and 639(a)(5), an individual assigned under either of those
sections to be a surrogate parent.
(24) PARENT ORGANIZATION- The term `parent organization' has the meaning given the term in
section 671(g).
(25) PARENT TRAINING AND INFORMATION CENTER- The term `parent training and information
center' means a center assisted under section 671 or 672.
(26) RELATED SERVICES-
(A) IN GENERAL- The term `related services' means transportation, and such developmental,
corrective, and other supportive services (including speech-language pathology and audiology
services, interpreting services, psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services, school nurse services designed to enable a
child with a disability to receive a free appropriate public education as described in the
individualized education program of the child, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services, except that such medical
services shall be for diagnostic and evaluation purposes only) as may be required to assist a child
with a disability to benefit from special education, and includes the early identification and
assessment of disabling conditions in children.
(B) EXCEPTION- The term does not include a medical device that is surgically implanted, or the
replacement of such device.
(27) SECONDARY SCHOOL- The term `secondary school' means a nonprofit institutional day or
residential school, including a public secondary charter school, that provides secondary education, as
determined under State law, except that it does not include any education beyond grade 12.
(28) SECRETARY- The term `Secretary' means the Secretary of Education.
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(29) SPECIAL EDUCATION- The term `special education' means specially designed instruction, at no
cost to parents, to meet the unique needs of a child with a disability, including--
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other
settings; and
(B) instruction in physical education.
(30) SPECIFIC LEARNING DISABILITY-
(A) IN GENERAL- The term `specific learning disability' means a disorder in 1 or more of the basic
psychological processes involved in understanding or in using language, spoken or written, which
disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do
mathematical calculations.
(B) DISORDERS INCLUDED- Such term includes such conditions as perceptual disabilities, brain
injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(C) DISORDERS NOT INCLUDED- Such term does not include a learning problem that is primarily
the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or
of environmental, cultural, or economic disadvantage.
(31) STATE- The term `State' means each of the 50 States, the District of Columbia, the Commonwealth of
Puerto Rico, and each of the outlying areas.
(32) STATE EDUCATIONAL AGENCY- The term `State educational agency' means the State board of
education or other agency or officer primarily responsible for the State supervision of public elementary
schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated
by the Governor or by State law.
(33) SUPPLEMENTARY AIDS AND SERVICES- The term `supplementary aids and services' means
aids, services, and other supports that are provided in regular education classes or other education-related
settings to enable children with disabilities to be educated with nondisabled children to the maximum
extent appropriate in accordance with section 612(a)(5).
(34) TRANSITION SERVICES- The term `transition services' means a coordinated set of activities for a
child with a disability that--
(A) is designed to be within a results-oriented process, that is focused on improving the academic and
functional achievement of the child with a disability to facilitate the child's movement from school to
post-school activities, including post-secondary education, vocational education, integrated
employment (including supported employment), continuing and adult education, adult services,
independent living, or community participation;
(B) is based on the individual child's needs, taking into account the child's strengths, preferences, and
interests; and
(C) includes instruction, related services, community experiences, the development of employment and
other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and
functional vocational evaluation.
(35) UNIVERSAL DESIGN- The term `universal design' has the meaning given the term in section 3 of the
Assistive Technology Act of 1998 (29 U.S.C. 3002).
(36) WARD OF THE STATE-
(A) IN GENERAL- The term `ward of the State' means a child who, as determined by the State where
the child resides, is a foster child, is a ward of the State, or is in the custody of a public child welfare
agency.
(B) EXCEPTION- The term does not include a foster child who has a foster parent who meets the
definition of a parent in paragraph (23).
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
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PART B--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES
SEC. 611. AUTHORIZATION; ALLOTMENT; USE OF FUNDS; AUTHORIZATION OF
APPROPRIATIONS.
(a) GRANTS TO STATES-
(1) PURPOSE OF GRANTS- The Secretary shall make grants to States, outlying areas, and freely
associated States, and provide funds to the Secretary of the Interior, to assist them to provide special
education and related services to children with disabilities in accordance with this part.
(2) MAXIMUM AMOUNT- The maximum amount of the grant a State may receive under this section-
(A) for fiscal years 2005 and 2006 is--
(i) the number of children with disabilities in the State who are receiving special education and
related services--
(I) aged 3 through 5 if the State is eligible for a grant under section 619; and
(II) aged 6 through 21; multiplied by
(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary
schools in the United States; and
(B) for fiscal year 2007 and subsequent fiscal years is--
(i) the number of children with disabilities in the 2004-2005 school year in the State who received
special education and related services--
(I) aged 3 through 5 if the State is eligible for a grant under section 619; and
(II) aged 6 through 21; multiplied by
(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary
schools in the United States; adjusted by
(iii) the rate of annual change in the sum of--
(I) 85 percent of such State's population described in subsection (d)(3)(A)(i)(II); and
(II) 15 percent of such State's population described in subsection (d)(3)(A)(i)(III).
(b) OUTLYING AREAS AND FREELY ASSOCIATED STATES; SECRETARY OF THE INTERIOR-
(1) OUTLYING AREAS AND FREELY ASSOCIATED STATES-
(A) FUNDS RESERVED- From the amount appropriated for any fiscal year under subsection (i), the
Secretary shall reserve not more than 1 percent, which shall be used--
(i) to provide assistance to the outlying areas in accordance with their respective populations of
individuals aged 3 through 21; and
(ii) to provide each freely associated State a grant in the amount that such freely associated State
received for fiscal year 2003 under this part, but only if the freely associated State meets the
applicable requirements of this part, as well as the requirements of section 611(b)(2)(C) as such
section was in effect on the day before the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004.
(B) SPECIAL RULE- The provisions of Public Law 95-134, permitting the consolidation of grants by
the outlying areas, shall not apply to funds provided to the outlying areas or the freely associated
States under this section.
(C) DEFINITION- In this paragraph, the term `freely associated States' means the Republic of the
Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.
(2) SECRETARY OF THE INTERIOR- From the amount appropriated for any fiscal year under subsection
(i), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in
accordance with subsection (h).
(c) TECHNICAL ASSISTANCE-
(1) IN GENERAL- The Secretary may reserve not more than 1/2 of 1 percent of the amounts appropriated
under this part for each fiscal year to provide technical assistance activities authorized under section
616(i).
(2) MAXIMUM AMOUNT- The maximum amount the Secretary may reserve under paragraph (1) for any
fiscal year is $25,000,000, cumulatively adjusted by the rate of inflation as measured by the percentage
increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers,
published by the Bureau of Labor Statistics of the Department of Labor.
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(d) ALLOCATIONS TO STATES-
(1) IN GENERAL- After reserving funds for technical assistance, and for payments to the outlying areas,
the freely associated States, and the Secretary of the Interior under subsections (b) and (c) for a fiscal
year, the Secretary shall allocate the remaining amount among the States in accordance with this
subsection.
(2) SPECIAL RULE FOR USE OF FISCAL YEAR 1999 AMOUNT- If a State received any funds under
this section for fiscal year 1999 on the basis of children aged 3 through 5, but does not make a free
appropriate public education available to all children with disabilities aged 3 through 5 in the State in any
subsequent fiscal year, the Secretary shall compute the State's amount for fiscal year 1999, solely for the
purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by
subtracting the amount allocated to the State for fiscal year 1999 on the basis of those children.
(3) INCREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) for a
fiscal year is equal to or greater than the amount allocated to the States under this paragraph for the
preceding fiscal year, those allocations shall be calculated as follows:
(A) ALLOCATION OF INCREASE-
(i) IN GENERAL- Except as provided in subparagraph (B), the Secretary shall allocate for the
fiscal year--
(I) to each State the amount the State received under this section for fiscal year 1999;
(II) 85 percent of any remaining funds to States on the basis of the States' relative populations
of children aged 3 through 21 who are of the same age as children with disabilities for
whom the State ensures the availability of a free appropriate public education under this
part; and
(III) 15 percent of those remaining funds to States on the basis of the States' relative
populations of children described in subclause (II) who are living in poverty.
(ii) DATA- For the purpose of making grants under this paragraph, the Secretary shall use the
most recent population data, including data on children living in poverty, that are available and
satisfactory to the Secretary.
(B) LIMITATIONS- Notwithstanding subparagraph (A), allocations under this paragraph shall be
subject to the following:
(i) PRECEDING YEAR ALLOCATION- No State's allocation shall be less than its allocation
under this section for the preceding fiscal year.
(ii) MINIMUM- No State's allocation shall be less than the greatest of--
(I) the sum of--
(aa) the amount the State received under this section for fiscal year 1999; and
(bb) 1/3 of 1 percent of the amount by which the amount appropriated under subsection (i) for the fiscal year
exceeds the amount appropriated for this section for fiscal year 1999;
(II) the sum of--
(aa) the amount the State received under this section for the preceding fiscal year; and
(bb) that amount multiplied by the percentage by which the increase in the funds appropriated for this section from
the preceding fiscal year exceeds 1.5 percent; or
(III) the sum of--
(aa) the amount the State received under this section for the preceding fiscal year; and
(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated for this section
from the preceding fiscal year.
(iii) MAXIMUM- Notwithstanding clause (ii), no State's allocation under this paragraph shall
exceed the sum of--
(I) the amount the State received under this section for the preceding fiscal year; and
(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the
amount appropriated under this section from the preceding fiscal year.
(C) RATABLE REDUCTION- If the amount available for allocations under this paragraph is
insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to
subparagraph (B)(i).
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(4) DECREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) for a
fiscal year is less than the amount allocated to the States under this section for the preceding fiscal year,
those allocations shall be calculated as follows:
(A) AMOUNTS GREATER THAN FISCAL YEAR 1999 ALLOCATIONS- If the amount available
for allocations is greater than the amount allocated to the States for fiscal year 1999, each State shall
be allocated the sum of--
(i) the amount the State received under this section for fiscal year 1999; and
(ii) an amount that bears the same relation to any remaining funds as the increase the State
received under this section for the preceding fiscal year over fiscal year 1999 bears to the total
of all such increases for all States.
(B) AMOUNTS EQUAL TO OR LESS THAN FISCAL YEAR 1999 ALLOCATIONS-
(i) IN GENERAL- If the amount available for allocations under this paragraph is equal to or less
than the amount allocated to the States for fiscal year 1999, each State shall be allocated the
amount the State received for fiscal year 1999.
(ii) RATABLE REDUCTION- If the amount available for allocations under this paragraph is
insufficient to make the allocations described in clause (i), those allocations shall be ratably
reduced.
(e) STATE-LEVEL ACTIVITIES-
(1) STATE ADMINISTRATION-
(A) IN GENERAL- For the purpose of administering this part, including paragraph (3), section 619,
and the coordination of activities under this part with, and providing technical assistance to, other
programs that provide services to children with disabilities--
(i) each State may reserve for each fiscal year not more than the maximum amount the State was
eligible to reserve for State administration under this section for fiscal year 2004 or $800,000
(adjusted in accordance with subparagraph (B)), whichever is greater; and
(ii) each outlying area may reserve for each fiscal year not more than 5 percent of the amount the
outlying area receives under subsection (b)(1) for the fiscal year or $35,000, whichever is
greater.
(B) CUMULATIVE ANNUAL ADJUSTMENTS- For each fiscal year beginning with fiscal year
2005, the Secretary shall cumulatively adjust--
(i) the maximum amount the State was eligible to reserve for State administration under this part
for fiscal year 2004; and
(ii) $800,000,
by the rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in
the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of
the Department of Labor.
(C) CERTIFICATION- Prior to expenditure of funds under this paragraph, the State shall certify to the
Secretary that the arrangements to establish responsibility for services pursuant to section
612(a)(12)(A) are current.
(D) PART C- Funds reserved under subparagraph (A) may be used for the administration of part C, if
the State educational agency is the lead agency for the State under such part.
(2) OTHER STATE-LEVEL ACTIVITIES-
(A) STATE-LEVEL ACTIVITIES-
(i) IN GENERAL- Except as provided in clause (iii), for the purpose of carrying out State-level
activities, each State may reserve for each of the fiscal years 2005 and 2006 not more than 10
percent from the amount of the State's allocation under subsection (d) for each of the fiscal years
2005 and 2006, respectively. For fiscal year 2007 and each subsequent fiscal year, the State may
reserve the maximum amount the State was eligible to reserve under the preceding sentence for
fiscal year 2006 (cumulatively adjusted by the rate of inflation as measured by the percentage
increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban
Consumers, published by the Bureau of Labor Statistics of the Department of Labor).
(ii) SMALL STATE ADJUSTMENT- Notwithstanding clause (i) and except as provided in clause
(iii), in the case of a State for which the maximum amount reserved for State administration is
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not greater than $850,000, the State may reserve for the purpose of carrying out State-level
activities for each of the fiscal years 2005 and 2006, not more than 10.5 percent from the
amount of the State's allocation under subsection (d) for each of the fiscal years 2005 and 2006,
respectively. For fiscal year 2007 and each subsequent fiscal year, such State may reserve the
maximum amount the State was eligible to reserve under the preceding sentence for fiscal year
2006 (cumulatively adjusted by the rate of inflation as measured by the percentage increase, if
any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers,
published by the Bureau of Labor Statistics of the Department of Labor).
(iii) EXCEPTION- If a State does not reserve funds under paragraph (3) for a fiscal year, then--
(I) in the case of a State that is not described in clause (ii), for fiscal year 2005 or 2006, clause
(i) shall be applied by substituting `9.0 percent' for `10 percent'; and
(II) in the case of a State that is described in clause (ii), for fiscal year 2005 or 2006, clause
(ii) shall be applied by substituting `9.5 percent' for `10.5 percent'.
(B) REQUIRED ACTIVITIES- Funds reserved under subparagraph (A) shall be used to carry out the
following activities:
(i) For monitoring, enforcement, and complaint investigation.
(ii) To establish and implement the mediation process required by section 615(e), including
providing for the cost of mediators and support personnel.
(C) AUTHORIZED ACTIVITIES- Funds reserved under subparagraph (A) may be used to carry out
the following activities:
(i) For support and direct services, including technical assistance, personnel preparation, and
professional development and training.
(ii) To support paperwork reduction activities, including expanding the use of technology in the
IEP process.
(iii) To assist local educational agencies in providing positive behavioral interventions and
supports and appropriate mental health services for children with disabilities.
(iv) To improve the use of technology in the classroom by children with disabilities to enhance
learning.
(v) To support the use of technology, including technology with universal design principles and
assistive technology devices, to maximize accessibility to the general education curriculum for
children with disabilities.
(vi) Development and implementation of transition programs, including coordination of services
with agencies involved in supporting the transition of children with disabilities to postsecondary
activities.
(vii) To assist local educational agencies in meeting personnel shortages.
(viii) To support capacity building activities and improve the delivery of services by local
educational agencies to improve results for children with disabilities.
(ix) Alternative programming for children with disabilities who have been expelled from school,
and services for children with disabilities in correctional facilities, children enrolled in State-
operated or State-supported schools, and children with disabilities in charter schools.
(x) To support the development and provision of appropriate accommodations for children with
disabilities, or the development and provision of alternate assessments that are valid and reliable
for assessing the performance of children with disabilities, in accordance with sections 1111(b)
and 6111 of the Elementary and Secondary Education Act of 1965.
(xi) To provide technical assistance to schools and local educational agencies, and direct services,
including supplemental educational services as defined in 1116(e) of the Elementary and
Secondary Education Act of 1965 to children with disabilities, in schools or local educational
agencies identified for improvement under section 1116 of the Elementary and Secondary
Education Act of 1965 on the sole basis of the assessment results of the disaggregated subgroup
of children with disabilities, including providing professional development to special and
regular education teachers, who teach children with disabilities, based on scientifically based
research to improve educational instruction, in order to improve academic achievement to meet
or exceed the objectives established by the State under section 1111(b)(2)(G) the Elementary
and Secondary Education Act of 1965.
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(3) LOCAL EDUCATIONAL AGENCY RISK POOL-
(A) IN GENERAL-
(i) RESERVATION OF FUNDS- For the purpose of assisting local educational agencies
(including a charter school that is a local educational agency or a consortium of local
educational agencies) in addressing the needs of high need children with disabilities, each State
shall have the option to reserve for each fiscal year 10 percent of the amount of funds the State
reserves for State-level activities under paragraph (2)(A)--
(I) to establish and make disbursements from the high cost fund to local educational agencies
in accordance with this paragraph during the first and succeeding fiscal years of the high
cost fund; and
(II) to support innovative and effective ways of cost sharing by the State, by a local
educational agency, or among a consortium of local educational agencies, as determined
by the State in coordination with representatives from local educational agencies, subject
to subparagraph (B)(ii).
(ii) DEFINITION OF LOCAL EDUCATIONAL AGENCY- In this paragraph the term `local
educational agency' includes a charter school that is a local educational agency, or a consortium
of local educational agencies.
(B) LIMITATION ON USES OF FUNDS-
(i) ESTABLISHMENT OF HIGH COST FUND- A State shall not use any of the funds the State
reserves pursuant to subparagraph (A)(i), but may use the funds the State reserves under
paragraph (1), to establish and support the high cost fund.
(ii) INNOVATIVE AND EFFECTIVE COST SHARING- A State shall not use more than 5
percent of the funds the State reserves pursuant to subparagraph (A)(i) for each fiscal year to
support innovative and effective ways of cost sharing among consortia of local educational
agencies.
(C) STATE PLAN FOR HIGH COST FUND-
(i) DEFINITION- The State educational agency shall establish the State's definition of a high need
child with a disability, which definition shall be developed in consultation with local
educational agencies.
(ii) STATE PLAN- The State educational agency shall develop, not later than 90 days after the
State reserves funds under this paragraph, annually review, and amend as necessary, a State plan
for the high cost fund. Such State plan shall--
(I) establish, in coordination with representatives from local educational agencies, a definition
of a high need child with a disability that, at a minimum--
(aa) addresses the financial impact a high need child with a disability has on the budget of the child's local
educational agency; and
(bb) ensures that the cost of the high need child with a disability is greater than 3 times the average per pupil
expenditure (as defined in section 9101 of the Elementary and Secondary Education Act of 1965) in that State;
(II) establish eligibility criteria for the participation of a local educational agency that, at a
minimum, takes into account the number and percentage of high need children with
disabilities served by a local educational agency;
(III) develop a funding mechanism that provides distributions each fiscal year to local
educational agencies that meet the criteria developed by the State under subclause (II);
and
(IV) establish an annual schedule by which the State educational agency shall make its
distributions from the high cost fund each fiscal year.
(iii) PUBLIC AVAILABILITY- The State shall make its final State plan publicly available not
less than 30 days before the beginning of the school year, including dissemination of such
information on the State website.
(D) DISBURSEMENTS FROM THE HIGH COST FUND-
(i) IN GENERAL- Each State educational agency shall make all annual disbursements from the
high cost fund established under subparagraph (A)(i) in accordance with the State plan
published pursuant to subparagraph (C).
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(ii) USE OF DISBURSEMENTS- Each State educational agency shall make annual disbursements
to eligible local educational agencies in accordance with its State plan under subparagraph
(C)(ii).
(iii) APPROPRIATE COSTS- The costs associated with educating a high need child with a
disability under subparagraph (C)(i) are only those costs associated with providing direct special
education and related services to such child that are identified in such child's IEP.
(E) LEGAL FEES- The disbursements under subparagraph (D) shall not support legal fees, court costs,
or other costs associated with a cause of action brought on behalf of a child with a disability to
ensure a free appropriate public education for such child.
(F) ASSURANCE OF A FREE APPROPRIATE PUBLIC EDUCATION- Nothing in this paragraph
shall be construed--
(i) to limit or condition the right of a child with a disability who is assisted under this part to
receive a free appropriate public education pursuant to section 612(a)(1) in the least restrictive
environment pursuant to section 612(a)(5); or
(ii) to authorize a State educational agency or local educational agency to establish a limit on what
may be spent on the education of a child with a disability.
(G) SPECIAL RULE FOR RISK POOL AND HIGH NEED ASSISTANCE PROGRAMS IN
EFFECT AS OF JANUARY 1, 2004- Notwithstanding the provisions of subparagraphs (A) through
(F), a State may use funds reserved pursuant to this paragraph for implementing a placement neutral
cost sharing and reimbursement program of high need, low incidence, catastrophic, or extraordinary
aid to local educational agencies that provides services to high need students based on eligibility
criteria for such programs that were created not later than January 1, 2004, and are currently in
operation, if such program serves children that meet the requirement of the definition of a high need
child with a disability as described in subparagraph (C)(ii)(I).
(H) MEDICAID SERVICES NOT AFFECTED- Disbursements provided under this paragraph shall
not be used to pay costs that otherwise would be reimbursed as medical assistance for a child with a
disability under the State medicaid program under title XIX of the Social Security Act.
(I) REMAINING FUNDS- Funds reserved under subparagraph (A) in any fiscal year but not expended
in that fiscal year pursuant to subparagraph (D) shall be allocated to local educational agencies for
the succeeding fiscal year in the same manner as funds are allocated to local educational agencies
under subsection (f) for the succeeding fiscal year.
(4) INAPPLICABILITY OF CERTAIN PROHIBITIONS- A State may use funds the State reserves under
paragraphs (1) and (2) without regard to--
(A) the prohibition on commingling of funds in section 612(a)(17)(B); and
(B) the prohibition on supplanting other funds in section 612(a)(17)(C).
(5) REPORT ON USE OF FUNDS- As part of the information required to be submitted to the Secretary
under section 612, each State shall annually describe how amounts under this section--
(A) will be used to meet the requirements of this title; and
(B) will be allocated among the activities described in this section to meet State priorities based on
input from local educational agencies.
(6) SPECIAL RULE FOR INCREASED FUNDS- A State may use funds the State reserves under
paragraph (1)(A) as a result of inflationary increases under paragraph (1)(B) to carry out activities
authorized under clause (i), (iii), (vii), or (viii) of paragraph (2)(C).
(7) FLEXIBILITY IN USING FUNDS FOR PART C- Any State eligible to receive a grant under section
619 may use funds made available under paragraph (1)(A), subsection (f)(3), or section 619(f)(5) to
develop and implement a State policy jointly with the lead agency under part C and the State educational
agency to provide early intervention services (which shall include an educational component that
promotes school readiness and incorporates preliteracy, language, and numeracy skills) in accordance
with part C to children with disabilities who are eligible for services under section 619 and who
previously received services under part C until such children enter, or are eligible under State law to
enter, kindergarten, or elementary school as appropriate.
(f) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES-
(1) SUBGRANTS REQUIRED- Each State that receives a grant under this section for any fiscal year shall
distribute any funds the State does not reserve under subsection (e) to local educational agencies
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(including public charter schools that operate as local educational agencies) in the State that have
established their eligibility under section 613 for use in accordance with this part.
(2) PROCEDURE FOR ALLOCATIONS TO LOCAL EDUCATIONAL AGENCIES- For each fiscal year
for which funds are allocated to States under subsection (d), each State shall allocate funds under
paragraph (1) as follows:
(A) BASE PAYMENTS- The State shall first award each local educational agency described in
paragraph (1) the amount the local educational agency would have received under this section for
fiscal year 1999, if the State had distributed 75 percent of its grant for that year under section 611(d)
as section 611(d) was then in effect.
(B) ALLOCATION OF REMAINING FUNDS- After making allocations under subparagraph (A), the
State shall--
(i) allocate 85 percent of any remaining funds to those local educational agencies on the basis of
the relative numbers of children enrolled in public and private elementary schools and
secondary schools within the local educational agency's jurisdiction; and
(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance
with their relative numbers of children living in poverty, as determined by the State educational
agency.
(3) REALLOCATION OF FUNDS- If a State educational agency determines that a local educational
agency is adequately providing a free appropriate public education to all children with disabilities
residing in the area served by that local educational agency with State and local funds, the State
educational agency may reallocate any portion of the funds under this part that are not needed by that
local educational agency to provide a free appropriate public education to other local educational
agencies in the State that are not adequately providing special education and related services to all
children with disabilities residing in the areas served by those other local educational agencies.
(g) DEFINITIONS- In this section:
(1) AVERAGE PER-PUPIL EXPENDITURE IN PUBLIC ELEMENTARY SCHOOLS AND
SECONDARY SCHOOLS IN THE UNITED STATES- The term `average per-pupil expenditure in
public elementary schools and secondary schools in the United States' means--
(A) without regard to the source of funds--
(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for
which the determination is made (or, if satisfactory data for that year are not available, during
the most recent preceding fiscal year for which satisfactory data are available) of all local
educational agencies in the 50 States and the District of Columbia; plus
(ii) any direct expenditures by the State for the operation of those agencies; divided by
(B) the aggregate number of children in average daily attendance to whom those agencies provided
free public education during that preceding year.
(2) STATE- The term `State' means each of the 50 States, the District of Columbia, and the Commonwealth
of Puerto Rico.
(h) USE OF AMOUNTS BY SECRETARY OF THE INTERIOR-
(1) PROVISION OF AMOUNTS FOR ASSISTANCE-
(A) IN GENERAL- The Secretary of Education shall provide amounts to the Secretary of the Interior
to meet the need for assistance for the education of children with disabilities on reservations aged 5
to 21, inclusive, enrolled in elementary schools and secondary schools for Indian children operated
or funded by the Secretary of the Interior. The amount of such payment for any fiscal year shall be
equal to 80 percent of the amount allotted under subsection (b)(2) for that fiscal year. Of the amount
described in the preceding sentence--
(i) 80 percent shall be allocated to such schools by July 1 of that fiscal year; and
(ii) 20 percent shall be allocated to such schools by September 30 of that fiscal year.
(B) CALCULATION OF NUMBER OF CHILDREN- In the case of Indian students aged 3 to 5,
inclusive, who are enrolled in programs affiliated with the Bureau of Indian Affairs (referred to in
this subsection as the `BIA') schools and that are required by the States in which such schools are
located to attain or maintain State accreditation, and which schools have such accreditation prior to
the date of enactment of the Individuals with Disabilities Education Act Amendments of 1991, the
school shall be allowed to count those children for the purpose of distribution of the funds provided
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under this paragraph to the Secretary of the Interior. The Secretary of the Interior shall be
responsible for meeting all of the requirements of this part for those children, in accordance with
paragraph (2).
(C) ADDITIONAL REQUIREMENT- With respect to all other children aged 3 to 21, inclusive, on
reservations, the State educational agency shall be responsible for ensuring that all of the
requirements of this part are implemented.
(2) SUBMISSION OF INFORMATION- The Secretary of Education may provide the Secretary of the
Interior amounts under paragraph (1) for a fiscal year only if the Secretary of the Interior submits to the
Secretary of Education information that--
(A) demonstrates that the Department of the Interior meets the appropriate requirements, as determined
by the Secretary of Education, of sections 612 (including monitoring and evaluation activities) and
613;
(B) includes a description of how the Secretary of the Interior will coordinate the provision of services
under this part with local educational agencies, tribes and tribal organizations, and other private and
Federal service providers;
(C) includes an assurance that there are public hearings, adequate notice of such hearings, and an
opportunity for comment afforded to members of tribes, tribal governing bodies, and affected local
school boards before the adoption of the policies, programs, and procedures related to the
requirements described in subparagraph (A);
(D) includes an assurance that the Secretary of the Interior will provide such information as the
Secretary of Education may require to comply with section 618;
(E) includes an assurance that the Secretary of the Interior and the Secretary of Health and Human
Services have entered into a memorandum of agreement, to be provided to the Secretary of
Education, for the coordination of services, resources, and personnel between their respective
Federal, State, and local offices and with State and local educational agencies and other entities to
facilitate the provision of services to Indian children with disabilities residing on or near reservations
(such agreement shall provide for the apportionment of responsibilities and costs, including child
find, evaluation, diagnosis, remediation or therapeutic measures, and (where appropriate) equipment
and medical or personal supplies as needed for a child to remain in school or a program); and
(F) includes an assurance that the Department of the Interior will cooperate with the Department of
Education in its exercise of monitoring and oversight of this application, and any agreements entered
into between the Secretary of the Interior and other entities under this part, and will fulfill its duties
under this part.
(3) APPLICABILITY- The Secretary shall withhold payments under this subsection with respect to the
information described in paragraph (2) in the same manner as the Secretary withholds payments under
section 616(e)(6).
(4) PAYMENTS FOR EDUCATION AND SERVICES FOR INDIAN CHILDREN WITH
DISABILITIES AGED 3 THROUGH 5-
(A) IN GENERAL- With funds appropriated under subsection (i), the Secretary of Education shall
make payments to the Secretary of the Interior to be distributed to tribes or tribal organizations (as
defined under section 4 of the Indian Self-Determination and Education Assistance Act) or consortia
of tribes or tribal organizations to provide for the coordination of assistance for special education
and related services for children with disabilities aged 3 through 5 on reservations served by
elementary schools and secondary schools for Indian children operated or funded by the Department
of the Interior. The amount of such payments under subparagraph (B) for any fiscal year shall be
equal to 20 percent of the amount allotted under subsection (b)(2).
(B) DISTRIBUTION OF FUNDS- The Secretary of the Interior shall distribute the total amount of the
payment under subparagraph (A) by allocating to each tribe, tribal organization, or consortium an
amount based on the number of children with disabilities aged 3 through 5 residing on reservations
as reported annually, divided by the total of those children served by all tribes or tribal organizations.
(C) SUBMISSION OF INFORMATION- To receive a payment under this paragraph, the tribe or tribal
organization shall submit such figures to the Secretary of the Interior as required to determine the
amounts to be allocated under subparagraph (B). This information shall be compiled and submitted
to the Secretary of Education.
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(D) USE OF FUNDS- The funds received by a tribe or tribal organization shall be used to assist in
child find, screening, and other procedures for the early identification of children aged 3 through 5,
parent training, and the provision of direct services. These activities may be carried out directly or
through contracts or cooperative agreements with the BIA, local educational agencies, and other
public or private nonprofit organizations. The tribe or tribal organization is encouraged to involve
Indian parents in the development and implementation of these activities. The tribe or tribal
organization shall, as appropriate, make referrals to local, State, or Federal entities for the provision
of services or further diagnosis.
(E) BIENNIAL REPORT- To be eligible to receive a grant pursuant to subparagraph (A), the tribe or
tribal organization shall provide to the Secretary of the Interior a biennial report of activities
undertaken under this paragraph, including the number of contracts and cooperative agreements
entered into, the number of children contacted and receiving services for each year, and the
estimated number of children needing services during the 2 years following the year in which the
report is made. The Secretary of the Interior shall include a summary of this information on a
biennial basis in the report to the Secretary of Education required under this subsection. The
Secretary of Education may require any additional information from the Secretary of the Interior.
(F) PROHIBITIONS- None of the funds allocated under this paragraph may be used by the Secretary
of the Interior for administrative purposes, including child count and the provision of technical
assistance.
(5) PLAN FOR COORDINATION OF SERVICES- The Secretary of the Interior shall develop and
implement a plan for the coordination of services for all Indian children with disabilities residing on
reservations covered under this title. Such plan shall provide for the coordination of services benefiting
those children from whatever source, including tribes, the Indian Health Service, other BIA divisions,
and other Federal agencies. In developing the plan, the Secretary of the Interior shall consult with all
interested and involved parties. The plan shall be based on the needs of the children and the system best
suited for meeting those needs, and may involve the establishment of cooperative agreements between
the BIA, other Federal agencies, and other entities. The plan shall also be distributed upon request to
States, State educational agencies and local educational agencies, and other agencies providing services
to infants, toddlers, and children with disabilities, to tribes, and to other interested parties.
(6) ESTABLISHMENT OF ADVISORY BOARD- To meet the requirements of section 612(a)(21), the
Secretary of the Interior shall establish, under the BIA, an advisory board composed of individuals
involved in or concerned with the education and provision of services to Indian infants, toddlers,
children, and youth with disabilities, including Indians with disabilities, Indian parents or guardians of
such children, teachers, service providers, State and local educational officials, representatives of tribes
or tribal organizations, representatives from State Interagency Coordinating Councils under section 641
in States having reservations, and other members representing the various divisions and entities of the
BIA. The chairperson shall be selected by the Secretary of the Interior. The advisory board shall--
(A) assist in the coordination of services within the BIA and with other local, State, and Federal
agencies in the provision of education for infants, toddlers, and children with disabilities;
(B) advise and assist the Secretary of the Interior in the performance of the Secretary of the Interior's
responsibilities described in this subsection;
(C) develop and recommend policies concerning effective inter- and intra-agency collaboration,
including modifications to regulations, and the elimination of barriers to inter- and intra-agency
programs and activities;
(D) provide assistance and disseminate information on best practices, effective program coordination
strategies, and recommendations for improved early intervention services or educational
programming for Indian infants, toddlers, and children with disabilities; and
(E) provide assistance in the preparation of information required under paragraph (2)(D).
(7) ANNUAL REPORTS-
(A) IN GENERAL- The advisory board established under paragraph (6) shall prepare and submit to
the Secretary of the Interior and to Congress an annual report containing a description of the
activities of the advisory board for the preceding year.
(B) AVAILABILITY- The Secretary of the Interior shall make available to the Secretary of Education
the report described in subparagraph (A).
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(i) AUTHORIZATION OF APPROPRIATIONS- For the purpose of carrying out this part, other than section
619, there are authorized to be appropriated--
(1) $12,358,376,571 for fiscal year 2005;
(2) $14,648,647,143 for fiscal year 2006;
(3) $16,938,917,714 for fiscal year 2007;
(4) $19,229,188,286 for fiscal year 2008;
(5) $21,519,458,857 for fiscal year 2009;
(6) $23,809,729,429 for fiscal year 2010;
(7) $26,100,000,000 for fiscal year 2011; and
(8) such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 612. STATE ELIGIBILITY.
(a) IN GENERAL- A State is eligible for assistance under this part for a fiscal year if the State submits a plan
that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the
State meets each of the following conditions:
(1) FREE APPROPRIATE PUBLIC EDUCATION-
(A) IN GENERAL- A free appropriate public education is available to all children with disabilities
residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who
have been suspended or expelled from school.
(B) LIMITATION- The obligation to make a free appropriate public education available to all children
with disabilities does not apply with respect to children--
(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children
would be inconsistent with State law or practice, or the order of any court, respecting the
provision of public education to children in those age ranges; and
(ii) aged 18 through 21 to the extent that State law does not require that special education and
related services under this part be provided to children with disabilities who, in the educational
placement prior to their incarceration in an adult correctional facility--
(I) were not actually identified as being a child with a disability under section 602; or
(II) did not have an individualized education program under this part.
(C) STATE FLEXIBILITY- A State that provides early intervention services in accordance with part C
to a child who is eligible for services under section 619, is not required to provide such child with a
free appropriate public education.
(2) FULL EDUCATIONAL OPPORTUNITY GOAL- The State has established a goal of providing full
educational opportunity to all children with disabilities and a detailed timetable for accomplishing that
goal.
(3) CHILD FIND-
(A) IN GENERAL- All children with disabilities residing in the State, including children with
disabilities who are homeless children or are wards of the State and children with disabilities
attending private schools, regardless of the severity of their disabilities, and who are in need of
special education and related services, are identified, located, and evaluated and a practical method
is developed and implemented to determine which children with disabilities are currently receiving
needed special education and related services.
(B) CONSTRUCTION- Nothing in this title requires that children be classified by their disability so
long as each child who has a disability listed in section 602 and who, by reason of that disability,
needs special education and related services is regarded as a child with a disability under this part.
(4) INDIVIDUALIZED EDUCATION PROGRAM- An individualized education program, or an
individualized family service plan that meets the requirements of section 636(d), is developed, reviewed,
and revised for each child with a disability in accordance with section 614(d).
(5) LEAST RESTRICTIVE ENVIRONMENT-
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(A) IN GENERAL- To the maximum extent appropriate, children with disabilities, including children
in public or private institutions or other care facilities, are educated with children who are not
disabled, and special classes, separate schooling, or other removal of children with disabilities from
the regular educational environment occurs only when the nature or severity of the disability of a
child is such that education in regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily.
(B) ADDITIONAL REQUIREMENT-
(i) IN GENERAL- A State funding mechanism shall not result in placements that violate the
requirements of subparagraph (A), and a State shall not use a funding mechanism by which the
State distributes funds on the basis of the type of setting in which a child is served that will
result in the failure to provide a child with a disability a free appropriate public education
according to the unique needs of the child as described in the child's IEP.
(ii) ASSURANCE- If the State does not have policies and procedures to ensure compliance with
clause (i), the State shall provide the Secretary an assurance that the State will revise the funding
mechanism as soon as feasible to ensure that such mechanism does not result in such
placements.
(6) PROCEDURAL SAFEGUARDS-
(A) IN GENERAL- Children with disabilities and their parents are afforded the procedural safeguards
required by section 615.
(B) ADDITIONAL PROCEDURAL SAFEGUARDS- Procedures to ensure that testing and evaluation
materials and procedures utilized for the purposes of evaluation and placement of children with
disabilities for services under this title will be selected and administered so as not to be racially or
culturally discriminatory. Such materials or procedures shall be provided and administered in the
child's native language or mode of communication, unless it clearly is not feasible to do so, and no
single procedure shall be the sole criterion for determining an appropriate educational program for a
child.
(7) EVALUATION- Children with disabilities are evaluated in accordance with subsections (a) through (c)
of section 614.
(8) CONFIDENTIALITY- Agencies in the State comply with section 617(c) (relating to the confidentiality
of records and information).
(9) TRANSITION FROM PART C TO PRESCHOOL PROGRAMS- Children participating in early
intervention programs assisted under part C, and who will participate in preschool programs assisted
under this part, experience a smooth and effective transition to those preschool programs in a manner
consistent with section 637(a)(9). By the third birthday of such a child, an individualized education
program or, if consistent with sections 614(d)(2)(B) and 636(d), an individualized family service plan,
has been developed and is being implemented for the child. The local educational agency will participate
in transition planning conferences arranged by the designated lead agency under section 635(a)(10).
(10) CHILDREN IN PRIVATE SCHOOLS-
(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR PARENTS-
(i) IN GENERAL- To the extent consistent with the number and location of children with
disabilities in the State who are enrolled by their parents in private elementary schools and
secondary schools in the school district served by a local educational agency, provision is made
for the participation of those children in the program assisted or carried out under this part by
providing for such children special education and related services in accordance with the
following requirements, unless the Secretary has arranged for services to those children under
subsection (f):
(I) Amounts to be expended for the provision of those services (including direct services to
parentally placed private school children) by the local educational agency shall be equal
to a proportionate amount of Federal funds made available under this part.
(II) In calculating the proportionate amount of Federal funds, the local educational agency,
after timely and meaningful consultation with representatives of private schools as
described in clause (iii), shall conduct a thorough and complete child find process to
determine the number of parentally placed children with disabilities attending private
schools located in the local educational agency.
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(III) Such services to parentally placed private school children with disabilities may be
provided to the children on the premises of private, including religious, schools, to the
extent consistent with law.
(IV) State and local funds may supplement and in no case shall supplant the proportionate
amount of Federal funds required to be expended under this subparagraph.
(V) Each local educational agency shall maintain in its records and provide to the State
educational agency the number of children evaluated under this subparagraph, the
number of children determined to be children with disabilities under this paragraph, and
the number of children served under this paragraph.
(ii) CHILD FIND REQUIREMENT-
(I) IN GENERAL- The requirements of paragraph (3) (relating to child find) shall apply with
respect to children with disabilities in the State who are enrolled in private, including
religious, elementary schools and secondary schools.
(II) EQUITABLE PARTICIPATION- The child find process shall be designed to ensure the
equitable participation of parentally placed private school children with disabilities and
an accurate count of such children.
(III) ACTIVITIES- In carrying out this clause, the local educational agency, or where
applicable, the State educational agency, shall undertake activities similar to those
activities undertaken for the agency's public school children.
(IV) COST- The cost of carrying out this clause, including individual evaluations, may not be
considered in determining whether a local educational agency has met its obligations
under clause (i).
(V) COMPLETION PERIOD- Such child find process shall be completed in a time period
comparable to that for other students attending public schools in the local educational
agency.
(iii) CONSULTATION- To ensure timely and meaningful consultation, a local educational
agency, or where appropriate, a State educational agency, shall consult with private school
representatives and representatives of parents of parentally placed private school children with
disabilities during the design and development of special education and related services for the
children, including regarding--
(I) the child find process and how parentally placed private school children suspected of
having a disability can participate equitably, including how parents, teachers, and private
school officials will be informed of the process;
(II) the determination of the proportionate amount of Federal funds available to serve
parentally placed private school children with disabilities under this subparagraph,
including the determination of how the amount was calculated;
(III) the consultation process among the local educational agency, private school officials, and
representatives of parents of parentally placed private school children with disabilities,
including how such process will operate throughout the school year to ensure that
parentally placed private school children with disabilities identified through the child find
process can meaningfully participate in special education and related services;
(IV) how, where, and by whom special education and related services will be provided for
parentally placed private school children with disabilities, including a discussion of types
of services, including direct services and alternate service delivery mechanisms, how
such services will be apportioned if funds are insufficient to serve all children, and how
and when these decisions will be made; and
(V) how, if the local educational agency disagrees with the views of the private school
officials on the provision of services or the types of services, whether provided directly or
through a contract, the local educational agency shall provide to the private school
officials a written explanation of the reasons why the local educational agency chose not
to provide services directly or through a contract.
(iv) WRITTEN AFFIRMATION- When timely and meaningful consultation as required by clause
(iii) has occurred, the local educational agency shall obtain a written affirmation signed by the
representatives of participating private schools, and if such representatives do not provide such
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affirmation within a reasonable period of time, the local educational agency shall forward the
documentation of the consultation process to the State educational agency.
(v) COMPLIANCE-
(I) IN GENERAL- A private school official shall have the right to submit a complaint to the
State educational agency that the local educational agency did not engage in consultation
that was meaningful and timely, or did not give due consideration to the views of the
private school official.
(II) PROCEDURE- If the private school official wishes to submit a complaint, the official
shall provide the basis of the noncompliance with this subparagraph by the local
educational agency to the State educational agency, and the local educational agency
shall forward the appropriate documentation to the State educational agency. If the
private school official is dissatisfied with the decision of the State educational agency,
such official may submit a complaint to the Secretary by providing the basis of the
noncompliance with this subparagraph by the local educational agency to the Secretary,
and the State educational agency shall forward the appropriate documentation to the
Secretary.
(vi) PROVISION OF EQUITABLE SERVICES-
(I) DIRECTLY OR THROUGH CONTRACTS- The provision of services pursuant to this
subparagraph shall be provided--
(aa) by employees of a public agency; or
(bb) through contract by the public agency with an individual, association, agency, organization, or other entity.
(II) SECULAR, NEUTRAL, NONIDEOLOGICAL- Special education and related services
provided to parentally placed private school children with disabilities, including materials
and equipment, shall be secular, neutral, and nonideological.
(vii) PUBLIC CONTROL OF FUNDS- The control of funds used to provide special education
and related services under this subparagraph, and title to materials, equipment, and property
purchased with those funds, shall be in a public agency for the uses and purposes provided in
this title, and a public agency shall administer the funds and property.
(B) CHILDREN PLACED IN, OR REFERRED TO, PRIVATE SCHOOLS BY PUBLIC
AGENCIES-
(i) IN GENERAL- Children with disabilities in private schools and facilities are provided special
education and related services, in accordance with an individualized education program, at no
cost to their parents, if such children are placed in, or referred to, such schools or facilities by
the State or appropriate local educational agency as the means of carrying out the requirements
of this part or any other applicable law requiring the provision of special education and related
services to all children with disabilities within such State.
(ii) STANDARDS- In all cases described in clause (i), the State educational agency shall
determine whether such schools and facilities meet standards that apply to State educational
agencies and local educational agencies and that children so served have all the rights the
children would have if served by such agencies.
(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN PRIVATE SCHOOLS
WITHOUT CONSENT OF OR REFERRAL BY THE PUBLIC AGENCY-
(i) IN GENERAL- Subject to subparagraph (A), this part does not require a local educational
agency to pay for the cost of education, including special education and related services, of a
child with a disability at a private school or facility if that agency made a free appropriate public
education available to the child and the parents elected to place the child in such private school
or facility.
(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT- If the parents of a child with
a disability, who previously received special education and related services under the authority
of a public agency, enroll the child in a private elementary school or secondary school without
the consent of or referral by the public agency, a court or a hearing officer may require the
agency to reimburse the parents for the cost of that enrollment if the court or hearing officer
finds that the agency had not made a free appropriate public education available to the child in a
timely manner prior to that enrollment.
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(iii) LIMITATION ON REIMBURSEMENT- The cost of reimbursement described in clause (ii)
may be reduced or denied--
(I) if--
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the
parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to
provide a free appropriate public education to their child, including stating their concerns and their intent to enroll
their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from
the public school, the parents did not give written notice to the public agency of the information described in item
(aa);
(II) if, prior to the parents' removal of the child from the public school, the public agency
informed the parents, through the notice requirements described in section 615(b)(3), of
its intent to evaluate the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the child available for such
evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(iv) EXCEPTION- Notwithstanding the notice requirement in clause (iii)(I), the cost of
reimbursement--
(I) shall not be reduced or denied for failure to provide such notice if--
(aa) the school prevented the parent from providing such notice;
(bb) the parents had not received notice, pursuant to section 615, of the notice requirement in clause (iii)(I); or
(cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and
(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure
to provide such notice if--
(aa) the parent is illiterate or cannot write in English; or
(bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.
(11) STATE EDUCATIONAL AGENCY RESPONSIBLE FOR GENERAL SUPERVISION-
(A) IN GENERAL- The State educational agency is responsible for ensuring that--
(i) the requirements of this part are met;
(ii) all educational programs for children with disabilities in the State, including all such programs
administered by any other State agency or local agency--
(I) are under the general supervision of individuals in the State who are responsible for
educational programs for children with disabilities; and
(II) meet the educational standards of the State educational agency; and
(iii) in carrying out this part with respect to homeless children, the requirements of subtitle B of
title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) are met.
(B) LIMITATION- Subparagraph (A) shall not limit the responsibility of agencies in the State other
than the State educational agency to provide, or pay for some or all of the costs of, a free appropriate
public education for any child with a disability in the State.
(C) EXCEPTION- Notwithstanding subparagraphs (A) and (B), the Governor (or another individual
pursuant to State law), consistent with State law, may assign to any public agency in the State the
responsibility of ensuring that the requirements of this part are met with respect to children with
disabilities who are convicted as adults under State law and incarcerated in adult prisons.
(12) OBLIGATIONS RELATED TO AND METHODS OF ENSURING SERVICES-
(A) ESTABLISHING RESPONSIBILITY FOR SERVICES- The Chief Executive Officer of a State or
designee of the officer shall ensure that an interagency agreement or other mechanism for
interagency coordination is in effect between each public agency described in subparagraph (B) and
the State educational agency, in order to ensure that all services described in subparagraph (B)(i) that
are needed to ensure a free appropriate public education are provided, including the provision of
such services during the pendency of any dispute under clause (iii). Such agreement or mechanism
shall include the following:
(i) AGENCY FINANCIAL RESPONSIBILITY- An identification of, or a method for defining,
the financial responsibility of each agency for providing services described in subparagraph
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(B)(i) to ensure a free appropriate public education to children with disabilities, provided that
the financial responsibility of each public agency described in subparagraph (B), including the
State medicaid agency and other public insurers of children with disabilities, shall precede the
financial responsibility of the local educational agency (or the State agency responsible for
developing the child's IEP).
(ii) CONDITIONS AND TERMS OF REIMBURSEMENT- The conditions, terms, and
procedures under which a local educational agency shall be reimbursed by other agencies.
(iii) INTERAGENCY DISPUTES- Procedures for resolving interagency disputes (including
procedures under which local educational agencies may initiate proceedings) under the
agreement or other mechanism to secure reimbursement from other agencies or otherwise
implement the provisions of the agreement or mechanism.
(iv) COORDINATION OF SERVICES PROCEDURES- Policies and procedures for agencies to
determine and identify the interagency coordination responsibilities of each agency to promote
the coordination and timely and appropriate delivery of services described in subparagraph
(B)(i).
(B) OBLIGATION OF PUBLIC AGENCY-
(i) IN GENERAL- If any public agency other than an educational agency is otherwise obligated
under Federal or State law, or assigned responsibility under State policy pursuant to
subparagraph (A), to provide or pay for any services that are also considered special education
or related services (such as, but not limited to, services described in section 602(1) relating to
assistive technology devices, 602(2) relating to assistive technology services, 602(26) relating to
related services, 602(33) relating to supplementary aids and services, and 602(34) relating to
transition services) that are necessary for ensuring a free appropriate public education to
children with disabilities within the State, such public agency shall fulfill that obligation or
responsibility, either directly or through contract or other arrangement pursuant to subparagraph
(A) or an agreement pursuant to subparagraph (C).
(ii) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY- If a public agency other than
an educational agency fails to provide or pay for the special education and related services
described in clause (i), the local educational agency (or State agency responsible for developing
the child's IEP) shall provide or pay for such services to the child. Such local educational agency
or State agency is authorized to claim reimbursement for the services from the public agency
that failed to provide or pay for such services and such public agency shall reimburse the local
educational agency or State agency pursuant to the terms of the interagency agreement or other
mechanism described in subparagraph (A)(i) according to the procedures established in such
agreement pursuant to subparagraph (A)(ii).
(C) SPECIAL RULE- The requirements of subparagraph (A) may be met through--
(i) State statute or regulation;
(ii) signed agreements between respective agency officials that clearly identify the responsibilities
of each agency relating to the provision of services; or
(iii) other appropriate written methods as determined by the Chief Executive Officer of the State
or designee of the officer and approved by the Secretary.
(13) PROCEDURAL REQUIREMENTS RELATING TO LOCAL EDUCATIONAL AGENCY
ELIGIBILITY- The State educational agency will not make a final determination that a local educational
agency is not eligible for assistance under this part without first affording that agency reasonable notice
and an opportunity for a hearing.
(14) PERSONNEL QUALIFICATIONS-
(A) IN GENERAL- The State educational agency has established and maintains qualifications to
ensure that personnel necessary to carry out this part are appropriately and adequately prepared and
trained, including that those personnel have the content knowledge and skills to serve children with
disabilities.
(B) RELATED SERVICES PERSONNEL AND PARAPROFESSIONALS- The qualifications under
subparagraph (A) include qualifications for related services personnel and paraprofessionals that--
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(i) are consistent with any State-approved or State-recognized certification, licensing, registration,
or other comparable requirements that apply to the professional discipline in which those
personnel are providing special education or related services;
(ii) ensure that related services personnel who deliver services in their discipline or profession
meet the requirements of clause (i) and have not had certification or licensure requirements
waived on an emergency, temporary, or provisional basis; and
(iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in
accordance with State law, regulation, or written policy, in meeting the requirements of this part
to be used to assist in the provision of special education and related services under this part to
children with disabilities.
(C) QUALIFICATIONS FOR SPECIAL EDUCATION TEACHERS- The qualifications described in
subparagraph (A) shall ensure that each person employed as a special education teacher in the State
who teaches elementary school, middle school, or secondary school is highly qualified by the
deadline established in section 1119(a)(2) of the Elementary and Secondary Education Act of 1965.
(D) POLICY- In implementing this section, a State shall adopt a policy that includes a requirement that
local educational agencies in the State take measurable steps to recruit, hire, train, and retain highly
qualified personnel to provide special education and related services under this part to children with
disabilities.
(E) RULE OF CONSTRUCTION- Notwithstanding any other individual right of action that a parent or
student may maintain under this part, nothing in this paragraph shall be construed to create a right of
action on behalf of an individual student for the failure of a particular State educational agency or
local educational agency staff person to be highly qualified, or to prevent a parent from filing a
complaint about staff qualifications with the State educational agency as provided for under this part.
(15) PERFORMANCE GOALS AND INDICATORS- The State--
(A) has established goals for the performance of children with disabilities in the State that--
(i) promote the purposes of this title, as stated in section 601(d);
(ii) are the same as the State's definition of adequate yearly progress, including the State's
objectives for progress by children with disabilities, under section 1111(b)(2)(C) of the
Elementary and Secondary Education Act of 1965;
(iii) address graduation rates and dropout rates, as well as such other factors as the State may
determine; and
(iv) are consistent, to the extent appropriate, with any other goals and standards for children
established by the State;
(B) has established performance indicators the State will use to assess progress toward achieving the
goals described in subparagraph (A), including measurable annual objectives for progress by
children with disabilities under section 1111(b)(2)(C)(v)(II)(cc) of the Elementary and Secondary
Education Act of 1965; and
(C) will annually report to the Secretary and the public on the progress of the State, and of children
with disabilities in the State, toward meeting the goals established under subparagraph (A), which
may include elements of the reports required under section 1111(h) of the Elementary and Secondary
Education Act of 1965.
(16) PARTICIPATION IN ASSESSMENTS-
(A) IN GENERAL- All children with disabilities are included in all general State and districtwide
assessment programs, including assessments described under section 1111 of the Elementary and
Secondary Education Act of 1965, with appropriate accommodations and alternate assessments
where necessary and as indicated in their respective individualized education programs.
(B) ACCOMMODATION GUIDELINES- The State (or, in the case of a districtwide assessment, the
local educational agency) has developed guidelines for the provision of appropriate
accommodations.
(C) ALTERNATE ASSESSMENTS-
(i) IN GENERAL- The State (or, in the case of a districtwide assessment, the local educational
agency) has developed and implemented guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot participate in regular
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assessments under subparagraph (A) with accommodations as indicated in their respective
individualized education programs.
(ii) REQUIREMENTS FOR ALTERNATE ASSESSMENTS- The guidelines under clause (i)
shall provide for alternate assessments that--
(I) are aligned with the State's challenging academic content standards and challenging
student academic achievement standards; and
(II) if the State has adopted alternate academic achievement standards permitted under the
regulations promulgated to carry out section 1111(b)(1) of the Elementary and Secondary
Education Act of 1965, measure the achievement of children with disabilities against
those standards.
(iii) CONDUCT OF ALTERNATE ASSESSMENTS- The State conducts the alternate
assessments described in this subparagraph.
(D) REPORTS- The State educational agency (or, in the case of a districtwide assessment, the local
educational agency) makes available to the public, and reports to the public with the same frequency
and in the same detail as it reports on the assessment of nondisabled children, the following:
(i) The number of children with disabilities participating in regular assessments, and the number of
those children who were provided accommodations in order to participate in those assessments.
(ii) The number of children with disabilities participating in alternate assessments described in
subparagraph (C)(ii)(I).
(iii) The number of children with disabilities participating in alternate assessments described in
subparagraph (C)(ii)(II).
(iv) The performance of children with disabilities on regular assessments and on alternate
assessments (if the number of children with disabilities participating in those assessments is
sufficient to yield statistically reliable information and reporting that information will not reveal
personally identifiable information about an individual student), compared with the achievement
of all children, including children with disabilities, on those assessments.
(E) UNIVERSAL DESIGN- The State educational agency (or, in the case of a districtwide assessment,
the local educational agency) shall, to the extent feasible, use universal design principles in
developing and administering any assessments under this paragraph.
(17) SUPPLEMENTATION OF STATE, LOCAL, AND OTHER FEDERAL FUNDS-
(A) EXPENDITURES- Funds paid to a State under this part will be expended in accordance with all
the provisions of this part.
(B) PROHIBITION AGAINST COMMINGLING- Funds paid to a State under this part will not be
commingled with State funds.
(C) PROHIBITION AGAINST SUPPLANTATION AND CONDITIONS FOR WAIVER BY
SECRETARY- Except as provided in section 613, funds paid to a State under this part will be used
to supplement the level of Federal, State, and local funds (including funds that are not under the
direct control of State or local educational agencies) expended for special education and related
services provided to children with disabilities under this part and in no case to supplant such Federal,
State, and local funds, except that, where the State provides clear and convincing evidence that all
children with disabilities have available to them a free appropriate public education, the Secretary
may waive, in whole or in part, the requirements of this subparagraph if the Secretary concurs with
the evidence provided by the State.
(18) MAINTENANCE OF STATE FINANCIAL SUPPORT-
(A) IN GENERAL- The State does not reduce the amount of State financial support for special
education and related services for children with disabilities, or otherwise made available because of
the excess costs of educating those children, below the amount of that support for the preceding
fiscal year.
(B) REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT- The Secretary shall
reduce the allocation of funds under section 611 for any fiscal year following the fiscal year in which
the State fails to comply with the requirement of subparagraph (A) by the same amount by which the
State fails to meet the requirement.
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(C) WAIVERS FOR EXCEPTIONAL OR UNCONTROLLABLE CIRCUMSTANCES- The
Secretary may waive the requirement of subparagraph (A) for a State, for 1 fiscal year at a time, if
the Secretary determines that--
(i) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such
as a natural disaster or a precipitous and unforeseen decline in the financial resources of the
State; or
(ii) the State meets the standard in paragraph (17)(C) for a waiver of the requirement to
supplement, and not to supplant, funds received under this part.
(D) SUBSEQUENT YEARS- If, for any year, a State fails to meet the requirement of subparagraph
(A), including any year for which the State is granted a waiver under subparagraph (C), the financial
support required of the State in future years under subparagraph (A) shall be the amount that would
have been required in the absence of that failure and not the reduced level of the State's support.
(19) PUBLIC PARTICIPATION- Prior to the adoption of any policies and procedures needed to comply
with this section (including any amendments to such policies and procedures), the State ensures that there
are public hearings, adequate notice of the hearings, and an opportunity for comment available to the
general public, including individuals with disabilities and parents of children with disabilities.
(20) RULE OF CONSTRUCTION- In complying with paragraphs (17) and (18), a State may not use funds
paid to it under this part to satisfy State-law mandated funding obligations to local educational agencies,
including funding based on student attendance or enrollment, or inflation.
(21) STATE ADVISORY PANEL-
(A) IN GENERAL- The State has established and maintains an advisory panel for the purpose of
providing policy guidance with respect to special education and related services for children with
disabilities in the State.
(B) MEMBERSHIP- Such advisory panel shall consist of members appointed by the Governor, or any
other official authorized under State law to make such appointments, be representative of the State
population, and be composed of individuals involved in, or concerned with, the education of children
with disabilities, including--
(i) parents of children with disabilities (ages birth through 26);
(ii) individuals with disabilities;
(iii) teachers;
(iv) representatives of institutions of higher education that prepare special education and related
services personnel;
(v) State and local education officials, including officials who carry out activities under subtitle B
of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.);
(vi) administrators of programs for children with disabilities;
(vii) representatives of other State agencies involved in the financing or delivery of related
services to children with disabilities;
(viii) representatives of private schools and public charter schools;
(ix) not less than 1 representative of a vocational, community, or business organization concerned
with the provision of transition services to children with disabilities;
(x) a representative from the State child welfare agency responsible for foster care; and
(xi) representatives from the State juvenile and adult corrections agencies.
(C) SPECIAL RULE- A majority of the members of the panel shall be individuals with disabilities or
parents of children with disabilities (ages birth through 26).
(D) DUTIES- The advisory panel shall--
(i) advise the State educational agency of unmet needs within the State in the education of children
with disabilities;
(ii) comment publicly on any rules or regulations proposed by the State regarding the education of
children with disabilities;
(iii) advise the State educational agency in developing evaluations and reporting on data to the
Secretary under section 618;
(iv) advise the State educational agency in developing corrective action plans to address findings
identified in Federal monitoring reports under this part; and
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(v) advise the State educational agency in developing and implementing policies relating to the
coordination of services for children with disabilities.
(22) SUSPENSION AND EXPULSION RATES-
(A) IN GENERAL- The State educational agency examines data, including data disaggregated by race
and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities--
(i) among local educational agencies in the State; or
(ii) compared to such rates for nondisabled children within such agencies.
(B) REVIEW AND REVISION OF POLICIES- If such discrepancies are occurring, the State
educational agency reviews and, if appropriate, revises (or requires the affected State or local
educational agency to revise) its policies, procedures, and practices relating to the development and
implementation of IEPs, the use of positive behavioral interventions and supports, and procedural
safeguards, to ensure that such policies, procedures, and practices comply with this title.
(23) ACCESS TO INSTRUCTIONAL MATERIALS-
(A) IN GENERAL- The State adopts the National Instructional Materials Accessibility Standard for
the purposes of providing instructional materials to blind persons or other persons with print
disabilities, in a timely manner after the publication of the National Instructional Materials
Accessibility Standard in the Federal Register.
(B) RIGHTS OF STATE EDUCATIONAL AGENCY- Nothing in this paragraph shall be construed to
require any State educational agency to coordinate with the National Instructional Materials Access
Center. If a State educational agency chooses not to coordinate with the National Instructional
Materials Access Center, such agency shall provide an assurance to the Secretary that the agency
will provide instructional materials to blind persons or other persons with print disabilities in a
timely manner.
(C) PREPARATION AND DELIVERY OF FILES- If a State educational agency chooses to
coordinate with the National Instructional Materials Access Center, not later than 2 years after the
date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, the
agency, as part of any print instructional materials adoption process, procurement contract, or other
practice or instrument used for purchase of print instructional materials, shall enter into a written
contract with the publisher of the print instructional materials to--
(i) require the publisher to prepare and, on or before delivery of the print instructional materials,
provide to the National Instructional Materials Access Center electronic files containing the
contents of the print instructional materials using the National Instructional Materials
Accessibility Standard; or
(ii) purchase instructional materials from the publisher that are produced in, or may be rendered in,
specialized formats.
(D) ASSISTIVE TECHNOLOGY- In carrying out this paragraph, the State educational agency, to the
maximum extent possible, shall work collaboratively with the State agency responsible for assistive
technology programs.
(E) DEFINITIONS- In this paragraph:
(i) NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER- The term `National
Instructional Materials Access Center' means the center established pursuant to section 674(e).
(ii) NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARD- The term
`National Instructional Materials Accessibility Standard' has the meaning given the term in
section 674(e)(3)(A).
(iii) SPECIALIZED FORMATS- The term `specialized formats' has the meaning given the term in
section 674(e)(3)(D).
(24) OVERIDENTIFICATION AND DISPROPORTIONALITY- The State has in effect, consistent with
the purposes of this title and with section 618(d), policies and procedures designed to prevent the
inappropriate overidentification or disproportionate representation by race and ethnicity of children as
children with disabilities, including children with disabilities with a particular impairment described in
section 602.
(25) PROHIBITION ON MANDATORY MEDICATION-
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(A) IN GENERAL- The State educational agency shall prohibit State and local educational agency
personnel from requiring a child to obtain a prescription for a substance covered by the Controlled
Substances Act (21 U.S.C. 801 et seq.) as a condition of attending school, receiving an evaluation
under subsection (a) or (c) of section 614, or receiving services under this title.
(B) RULE OF CONSTRUCTION- Nothing in subparagraph (A) shall be construed to create a Federal
prohibition against teachers and other school personnel consulting or sharing classroom-based
observations with parents or guardians regarding a student's academic and functional performance,
or behavior in the classroom or school, or regarding the need for evaluation for special education or
related services under paragraph (3).
(b) STATE EDUCATIONAL AGENCY AS PROVIDER OF FREE APPROPRIATE PUBLIC EDUCATION
OR DIRECT SERVICES- If the State educational agency provides free appropriate public education to children
with disabilities, or provides direct services to such children, such agency--
(1) shall comply with any additional requirements of section 613(a), as if such agency were a local
educational agency; and
(2) may use amounts that are otherwise available to such agency under this part to serve those children
without regard to section 613(a)(2)(A)(i) (relating to excess costs).
(c) EXCEPTION FOR PRIOR STATE PLANS-
(1) IN GENERAL- If a State has on file with the Secretary policies and procedures that demonstrate that
such State meets any requirement of subsection (a), including any policies and procedures filed under
this part as in effect before the effective date of the Individuals with Disabilities Education Improvement
Act of 2004, the Secretary shall consider such State to have met such requirement for purposes of
receiving a grant under this part.
(2) MODIFICATIONS MADE BY STATE- Subject to paragraph (3), an application submitted by a State
in accordance with this section shall remain in effect until the State submits to the Secretary such
modifications as the State determines necessary. This section shall apply to a modification to an
application to the same extent and in the same manner as this section applies to the original plan.
(3) MODIFICATIONS REQUIRED BY THE SECRETARY- If, after the effective date of the Individuals
with Disabilities Education Improvement Act of 2004, the provisions of this title are amended (or the
regulations developed to carry out this title are amended), there is a new interpretation of this title by a
Federal court or a State's highest court, or there is an official finding of noncompliance with Federal law
or regulations, then the Secretary may require a State to modify its application only to the extent
necessary to ensure the State's compliance with this part.
(d) APPROVAL BY THE SECRETARY-
(1) IN GENERAL- If the Secretary determines that a State is eligible to receive a grant under this part, the
Secretary shall notify the State of that determination.
(2) NOTICE AND HEARING- The Secretary shall not make a final determination that a State is not
eligible to receive a grant under this part until after providing the State--
(A) with reasonable notice; and
(B) with an opportunity for a hearing.
(e) ASSISTANCE UNDER OTHER FEDERAL PROGRAMS- Nothing in this title permits a State to reduce
medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act
with respect to the provision of a free appropriate public education for children with disabilities in the State.
(f) BY-PASS FOR CHILDREN IN PRIVATE SCHOOLS-
(1) IN GENERAL- If, on the date of enactment of the Education of the Handicapped Act Amendments of
1983, a State educational agency was prohibited by law from providing for the equitable participation in
special programs of children with disabilities enrolled in private elementary schools and secondary
schools as required by subsection (a)(10)(A), or if the Secretary determines that a State educational
agency, local educational agency, or other entity has substantially failed or is unwilling to provide for
such equitable participation, then the Secretary shall, notwithstanding such provision of law, arrange for
the provision of services to such children through arrangements that shall be subject to the requirements
of such subsection.
(2) PAYMENTS-
(A) DETERMINATION OF AMOUNTS- If the Secretary arranges for services pursuant to this
subsection, the Secretary, after consultation with the appropriate public and private school officials,
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shall pay to the provider of such services for a fiscal year an amount per child that does not exceed
the amount determined by dividing--
(i) the total amount received by the State under this part for such fiscal year; by
(ii) the number of children with disabilities served in the prior year, as reported to the Secretary by
the State under section 618.
(B) WITHHOLDING OF CERTAIN AMOUNTS- Pending final resolution of any investigation or
complaint that may result in a determination under this subsection, the Secretary may withhold from
the allocation of the affected State educational agency the amount the Secretary estimates will be
necessary to pay the cost of services described in subparagraph (A).
(C) PERIOD OF PAYMENTS- The period under which payments are made under subparagraph (A)
shall continue until the Secretary determines that there will no longer be any failure or inability on
the part of the State educational agency to meet the requirements of subsection (a)(10)(A).
(3) NOTICE AND HEARING-
(A) IN GENERAL- The Secretary shall not take any final action under this subsection until the State
educational agency affected by such action has had an opportunity, for not less than 45 days after
receiving written notice thereof, to submit written objections and to appear before the Secretary or
the Secretary's designee to show cause why such action should not be taken.
(B) REVIEW OF ACTION- If a State educational agency is dissatisfied with the Secretary's final
action after a proceeding under subparagraph (A), such agency may, not later than 60 days after
notice of such action, file with the United States court of appeals for the circuit in which such State
is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by
the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of
the proceedings on which the Secretary based the Secretary's action, as provided in section 2112 of
title 28, United States Code.
(C) REVIEW OF FINDINGS OF FACT- The findings of fact by the Secretary, if supported by
substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case
to the Secretary to take further evidence, and the Secretary may thereupon make new or modified
findings of fact and may modify the Secretary's previous action, and shall file in the court the record
of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if
supported by substantial evidence.
(D) JURISDICTION OF COURT OF APPEALS; REVIEW BY UNITED STATES SUPREME
COURT- Upon the filing of a petition under subparagraph (B), the United States court of appeals
shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The
judgment of the court shall be subject to review by the Supreme Court of the United States upon
certiorari or certification as provided in section 1254 of title 28, United States Code.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 613. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.
(a) IN GENERAL- A local educational agency is eligible for assistance under this part for a fiscal year if such
agency submits a plan that provides assurances to the State educational agency that the local educational agency
meets each of the following conditions:
(1) CONSISTENCY WITH STATE POLICIES- The local educational agency, in providing for the
education of children with disabilities within its jurisdiction, has in effect policies, procedures, and
programs that are consistent with the State policies and procedures established under section 612.
(2) USE OF AMOUNTS-
(A) IN GENERAL- Amounts provided to the local educational agency under this part shall be
expended in accordance with the applicable provisions of this part and--
(i) shall be used only to pay the excess costs of providing special education and related services to
children with disabilities;
(ii) shall be used to supplement State, local, and other Federal funds and not to supplant such
funds; and
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(iii) shall not be used, except as provided in subparagraphs (B) and (C), to reduce the level of
expenditures for the education of children with disabilities made by the local educational agency
from local funds below the level of those expenditures for the preceding fiscal year.
(B) EXCEPTION- Notwithstanding the restriction in subparagraph (A)(iii), a local educational agency
may reduce the level of expenditures where such reduction is attributable to--
(i) the voluntary departure, by retirement or otherwise, or departure for just cause, of special
education personnel;
(ii) a decrease in the enrollment of children with disabilities;
(iii) the termination of the obligation of the agency, consistent with this part, to provide a program
of special education to a particular child with a disability that is an exceptionally costly
program, as determined by the State educational agency, because the child--
(I) has left the jurisdiction of the agency;
(II) has reached the age at which the obligation of the agency to provide a free appropriate
public education to the child has terminated; or
(III) no longer needs such program of special education; or
(iv) the termination of costly expenditures for long-term purchases, such as the acquisition of
equipment or the construction of school facilities.
(C) ADJUSTMENT TO LOCAL FISCAL EFFORT IN CERTAIN FISCAL YEARS-
(i) AMOUNTS IN EXCESS- Notwithstanding clauses (ii) and (iii) of subparagraph (A), for any
fiscal year for which the allocation received by a local educational agency under section 611(f)
exceeds the amount the local educational agency received for the previous fiscal year, the local
educational agency may reduce the level of expenditures otherwise required by subparagraph
(A)(iii) by not more than 50 percent of the amount of such excess.
(ii) USE OF AMOUNTS TO CARRY OUT ACTIVITIES UNDER ESEA- If a local educational
agency exercises the authority under clause (i), the agency shall use an amount of local funds
equal to the reduction in expenditures under clause (i) to carry out activities authorized under
the Elementary and Secondary Education Act of 1965.
(iii) STATE PROHIBITION- Notwithstanding clause (i), if a State educational agency determines
that a local educational agency is unable to establish and maintain programs of free appropriate
public education that meet the requirements of subsection (a) or the State educational agency
has taken action against the local educational agency under section 616, the State educational
agency shall prohibit the local educational agency from reducing the level of expenditures under
clause (i) for that fiscal year.
(iv) SPECIAL RULE- The amount of funds expended by a local educational agency under
subsection (f) shall count toward the maximum amount of expenditures such local educational
agency may reduce under clause (i).
(D) SCHOOLWIDE PROGRAMS UNDER TITLE I OF THE ESEA- Notwithstanding subparagraph
(A) or any other provision of this part, a local educational agency may use funds received under this
part for any fiscal year to carry out a schoolwide program under section 1114 of the Elementary and
Secondary Education Act of 1965, except that the amount so used in any such program shall not
exceed--
(i) the number of children with disabilities participating in the schoolwide program; multiplied by
(ii)(I) the amount received by the local educational agency under this part for that fiscal year;
divided by
(II) the number of children with disabilities in the jurisdiction of that agency.
(3) PERSONNEL DEVELOPMENT- The local educational agency shall ensure that all personnel
necessary to carry out this part are appropriately and adequately prepared, subject to the requirements of
section 612(a)(14) and section 2122 of the Elementary and Secondary Education Act of 1965.
(4) PERMISSIVE USE OF FUNDS-
(A) USES- Notwithstanding paragraph (2)(A) or section 612(a)(17)(B) (relating to commingled funds),
funds provided to the local educational agency under this part may be used for the following
activities:
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(i) SERVICES AND AIDS THAT ALSO BENEFIT NONDISABLED CHILDREN- For the costs
of special education and related services, and supplementary aids and services, provided in a
regular class or other education-related setting to a child with a disability in accordance with the
individualized education program of the child, even if 1 or more nondisabled children benefit
from such services.
(ii) EARLY INTERVENING SERVICES- To develop and implement coordinated, early
intervening educational services in accordance with subsection (f).
(iii) HIGH COST EDUCATION AND RELATED SERVICES- To establish and implement cost
or risk sharing funds, consortia, or cooperatives for the local educational agency itself, or for
local educational agencies working in a consortium of which the local educational agency is a
part, to pay for high cost special education and related services.
(B) ADMINISTRATIVE CASE MANAGEMENT- A local educational agency may use funds
received under this part to purchase appropriate technology for recordkeeping, data collection, and
related case management activities of teachers and related services personnel providing services
described in the individualized education program of children with disabilities, that is needed for the
implementation of such case management activities.
(5) TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS- In carrying out this part with
respect to charter schools that are public schools of the local educational agency, the local educational
agency--
(A) serves children with disabilities attending those charter schools in the same manner as the local
educational agency serves children with disabilities in its other schools, including providing
supplementary and related services on site at the charter school to the same extent to which the local
educational agency has a policy or practice of providing such services on the site to its other public
schools; and
(B) provides funds under this part to those charter schools--
(i) on the same basis as the local educational agency provides funds to the local educational
agency's other public schools, including proportional distribution based on relative enrollment
of children with disabilities; and
(ii) at the same time as the agency distributes other Federal funds to the agency's other public
schools, consistent with the State's charter school law.
(6) PURCHASE OF INSTRUCTIONAL MATERIALS-
(A) IN GENERAL- Not later than 2 years after the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2004, a local educational agency that chooses to
coordinate with the National Instructional Materials Access Center, when purchasing print
instructional materials, shall acquire the print instructional materials in the same manner and subject
to the same conditions as a State educational agency acquires print instructional materials under
section 612(a)(23).
(B) RIGHTS OF LOCAL EDUCATIONAL AGENCY- Nothing in this paragraph shall be construed
to require a local educational agency to coordinate with the National Instructional Materials Access
Center. If a local educational agency chooses not to coordinate with the National Instructional
Materials Access Center, the local educational agency shall provide an assurance to the State
educational agency that the local educational agency will provide instructional materials to blind
persons or other persons with print disabilities in a timely manner.
(7) INFORMATION FOR STATE EDUCATIONAL AGENCY- The local educational agency shall
provide the State educational agency with information necessary to enable the State educational agency
to carry out its duties under this part, including, with respect to paragraphs (15) and (16) of section
612(a), information relating to the performance of children with disabilities participating in programs
carried out under this part.
(8) PUBLIC INFORMATION- The local educational agency shall make available to parents of children
with disabilities and to the general public all documents relating to the eligibility of such agency under
this part.
(9) RECORDS REGARDING MIGRATORY CHILDREN WITH DISABILITIES- The local educational
agency shall cooperate in the Secretary's efforts under section 1308 of the Elementary and Secondary
Education Act of 1965 to ensure the linkage of records pertaining to migratory children with a disability
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for the purpose of electronically exchanging, among the States, health and educational information
regarding such children.
(b) EXCEPTION FOR PRIOR LOCAL PLANS-
(1) IN GENERAL- If a local educational agency or State agency has on file with the State educational
agency policies and procedures that demonstrate that such local educational agency, or such State
agency, as the case may be, meets any requirement of subsection (a), including any policies and
procedures filed under this part as in effect before the effective date of the Individuals with Disabilities
Education Improvement Act of 2004, the State educational agency shall consider such local educational
agency or State agency, as the case may be, to have met such requirement for purposes of receiving
assistance under this part.
(2) MODIFICATION MADE BY LOCAL EDUCATIONAL AGENCY- Subject to paragraph (3), an
application submitted by a local educational agency in accordance with this section shall remain in effect
until the local educational agency submits to the State educational agency such modifications as the local
educational agency determines necessary.
(3) MODIFICATIONS REQUIRED BY STATE EDUCATIONAL AGENCY- If, after the effective date
of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this title are
amended (or the regulations developed to carry out this title are amended), there is a new interpretation
of this title by Federal or State courts, or there is an official finding of noncompliance with Federal or
State law or regulations, then the State educational agency may require a local educational agency to
modify its application only to the extent necessary to ensure the local educational agency's compliance
with this part or State law.
(c) NOTIFICATION OF LOCAL EDUCATIONAL AGENCY OR STATE AGENCY IN CASE OF
INELIGIBILITY- If the State educational agency determines that a local educational agency or State agency is
not eligible under this section, then the State educational agency shall notify the local educational agency or
State agency, as the case may be, of that determination and shall provide such local educational agency or State
agency with reasonable notice and an opportunity for a hearing.
(d) LOCAL EDUCATIONAL AGENCY COMPLIANCE-
(1) IN GENERAL- If the State educational agency, after reasonable notice and an opportunity for a
hearing, finds that a local educational agency or State agency that has been determined to be eligible
under this section is failing to comply with any requirement described in subsection (a), the State
educational agency shall reduce or shall not provide any further payments to the local educational agency
or State agency until the State educational agency is satisfied that the local educational agency or State
agency, as the case may be, is complying with that requirement.
(2) ADDITIONAL REQUIREMENT- Any State agency or local educational agency in receipt of a notice
described in paragraph (1) shall, by means of public notice, take such measures as may be necessary to
bring the pendency of an action pursuant to this subsection to the attention of the public within the
jurisdiction of such agency.
(3) CONSIDERATION- In carrying out its responsibilities under paragraph (1), the State educational
agency shall consider any decision made in a hearing held under section 615 that is adverse to the local
educational agency or State agency involved in that decision.
(e) JOINT ESTABLISHMENT OF ELIGIBILITY-
(1) JOINT ESTABLISHMENT-
(A) IN GENERAL- A State educational agency may require a local educational agency to establish its
eligibility jointly with another local educational agency if the State educational agency determines
that the local educational agency will be ineligible under this section because the local educational
agency will not be able to establish and maintain programs of sufficient size and scope to effectively
meet the needs of children with disabilities.
(B) CHARTER SCHOOL EXCEPTION- A State educational agency may not require a charter school
that is a local educational agency to jointly establish its eligibility under subparagraph (A) unless the
charter school is explicitly permitted to do so under the State's charter school law.
(2) AMOUNT OF PAYMENTS- If a State educational agency requires the joint establishment of eligibility
under paragraph (1), the total amount of funds made available to the affected local educational agencies
shall be equal to the sum of the payments that each such local educational agency would have received
under section 611(f) if such agencies were eligible for such payments.
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(3) REQUIREMENTS- Local educational agencies that establish joint eligibility under this subsection
shall--
(A) adopt policies and procedures that are consistent with the State's policies and procedures under
section 612(a); and
(B) be jointly responsible for implementing programs that receive assistance under this part.
(4) REQUIREMENTS FOR EDUCATIONAL SERVICE AGENCIES-
(A) IN GENERAL- If an educational service agency is required by State law to carry out programs
under this part, the joint responsibilities given to local educational agencies under this subsection
shall--
(i) not apply to the administration and disbursement of any payments received by that educational
service agency; and
(ii) be carried out only by that educational service agency.
(B) ADDITIONAL REQUIREMENT- Notwithstanding any other provision of this subsection, an
educational service agency shall provide for the education of children with disabilities in the least
restrictive environment, as required by section 612(a)(5).
(f) EARLY INTERVENING SERVICES-
(1) IN GENERAL- A local educational agency may not use more than 15 percent of the amount such
agency receives under this part for any fiscal year, less any amount reduced by the agency pursuant to
subsection (a)(2)(C), if any, in combination with other amounts (which may include amounts other than
education funds), to develop and implement coordinated, early intervening services, which may include
interagency financing structures, for students in kindergarten through grade 12 (with a particular
emphasis on students in kindergarten through grade 3) who have not been identified as needing special
education or related services but who need additional academic and behavioral support to succeed in a
general education environment.
(2) ACTIVITIES- In implementing coordinated, early intervening services under this subsection, a local
educational agency may carry out activities that include--
(A) professional development (which may be provided by entities other than local educational
agencies) for teachers and other school staff to enable such personnel to deliver scientifically based
academic instruction and behavioral interventions, including scientifically based literacy instruction,
and, where appropriate, instruction on the use of adaptive and instructional software; and
(B) providing educational and behavioral evaluations, services, and supports, including scientifically
based literacy instruction.
(3) CONSTRUCTION- Nothing in this subsection shall be construed to limit or create a right to a free
appropriate public education under this part.
(4) REPORTING- Each local educational agency that develops and maintains coordinated, early
intervening services under this subsection shall annually report to the State educational agency on--
(A) the number of students served under this subsection; and
(B) the number of students served under this subsection who subsequently receive special education
and related services under this title during the preceding 2-year period.
(5) COORDINATION WITH ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965- Funds
made available to carry out this subsection may be used to carry out coordinated, early intervening
services aligned with activities funded by, and carried out under, the Elementary and Secondary
Education Act of 1965 if such funds are used to supplement, and not supplant, funds made available
under the Elementary and Secondary Education Act of 1965 for the activities and services assisted under
this subsection.
(g) DIRECT SERVICES BY THE STATE EDUCATIONAL AGENCY-
(1) IN GENERAL- A State educational agency shall use the payments that would otherwise have been
available to a local educational agency or to a State agency to provide special education and related
services directly to children with disabilities residing in the area served by that local educational agency,
or for whom that State agency is responsible, if the State educational agency determines that the local
educational agency or State agency, as the case may be--
(A) has not provided the information needed to establish the eligibility of such local educational
agency or State agency under this section;
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(B) is unable to establish and maintain programs of free appropriate public education that meet the
requirements of subsection (a);
(C) is unable or unwilling to be consolidated with 1 or more local educational agencies in order to
establish and maintain such programs; or
(D) has 1 or more children with disabilities who can best be served by a regional or State program or
service delivery system designed to meet the needs of such children.
(2) MANNER AND LOCATION OF EDUCATION AND SERVICES- The State educational agency may
provide special education and related services under paragraph (1) in such manner and at such locations
(including regional or State centers) as the State educational agency considers appropriate. Such
education and services shall be provided in accordance with this part.
(h) STATE AGENCY ELIGIBILITY- Any State agency that desires to receive a subgrant for any fiscal year
under section 611(f) shall demonstrate to the satisfaction of the State educational agency that--
(1) all children with disabilities who are participating in programs and projects funded under this part
receive a free appropriate public education, and that those children and their parents are provided all the
rights and procedural safeguards described in this part; and
(2) the agency meets such other conditions of this section as the Secretary determines to be appropriate.
(i) DISCIPLINARY INFORMATION- The State may require that a local educational agency include in the
records of a child with a disability a statement of any current or previous disciplinary action that has been taken
against the child and transmit such statement to the same extent that such disciplinary information is included
in, and transmitted with, the student records of nondisabled children. The statement may include a description
of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action
taken, and any other information that is relevant to the safety of the child and other individuals involved with
the child. If the State adopts such a policy, and the child transfers from 1 school to another, the transmission of
any of the child's records shall include both the child's current individualized education program and any such
statement of current or previous disciplinary action that has been taken against the child.
(j) STATE AGENCY FLEXIBILITY-
(1) ADJUSTMENT TO STATE FISCAL EFFORT IN CERTAIN FISCAL YEARS- For any fiscal year for
which the allotment received by a State under section 611 exceeds the amount the State received for the
previous fiscal year and if the State in school year 2003-2004 or any subsequent school year pays or
reimburses all local educational agencies within the State from State revenue 100 percent of the non-
Federal share of the costs of special education and related services, the State educational agency,
notwithstanding paragraphs (17) and (18) of section 612(a) and section 612(b), may reduce the level of
expenditures from State sources for the education of children with disabilities by not more than 50
percent of the amount of such excess.
(2) PROHIBITION- Notwithstanding paragraph (1), if the Secretary determines that a State educational
agency is unable to establish, maintain, or oversee programs of free appropriate public education that
meet the requirements of this part, or that the State needs assistance, intervention, or substantial
intervention under section 616(d)(2)(A), the Secretary shall prohibit the State educational agency from
exercising the authority in paragraph (1).
(3) EDUCATION ACTIVITIES- If a State educational agency exercises the authority under paragraph (1),
the agency shall use funds from State sources, in an amount equal to the amount of the reduction under
paragraph (1), to support activities authorized under the Elementary and Secondary Education Act of
1965 or to support need based student or teacher higher education programs.
(4) REPORT- For each fiscal year for which a State educational agency exercises the authority under
paragraph (1), the State educational agency shall report to the Secretary the amount of expenditures
reduced pursuant to such paragraph and the activities that were funded pursuant to paragraph (3).
(5) LIMITATION- Notwithstanding paragraph (1), a State educational agency may not reduce the level of
expenditures described in paragraph (1) if any local educational agency in the State would, as a result of
such reduction, receive less than 100 percent of the amount necessary to ensure that all children with
disabilities served by the local educational agency receive a free appropriate public education from the
combination of Federal funds received under this title and State funds received from the State educational
agency.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
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SEC. 614. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED
EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.
(a) EVALUATIONS, PARENTAL CONSENT, AND REEVALUATIONS-
(1) INITIAL EVALUATIONS-
(A) IN GENERAL- A State educational agency, other State agency, or local educational agency shall
conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b),
before the initial provision of special education and related services to a child with a disability under
this part.
(B) REQUEST FOR INITIAL EVALUATION- Consistent with subparagraph (D), either a parent of a
child, or a State educational agency, other State agency, or local educational agency may initiate a
request for an initial evaluation to determine if the child is a child with a disability.
(C) PROCEDURES-
(i) IN GENERAL- Such initial evaluation shall consist of procedures--
(I) to determine whether a child is a child with a disability (as defined in section 602) within
60 days of receiving parental consent for the evaluation, or, if the State establishes a
timeframe within which the evaluation must be conducted, within such timeframe; and
(II) to determine the educational needs of such child.
(ii) EXCEPTION- The relevant timeframe in clause (i)(I) shall not apply to a local educational
agency if--
(I) a child enrolls in a school served by the local educational agency after the relevant
timeframe in clause (i)(I) has begun and prior to a determination by the child's previous
local educational agency as to whether the child is a child with a disability (as defined in
section 602), but only if the subsequent local educational agency is making sufficient
progress to ensure a prompt completion of the evaluation, and the parent and subsequent
local educational agency agree to a specific time when the evaluation will be completed;
or
(II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation.
(D) PARENTAL CONSENT-
(i) IN GENERAL-
(I) CONSENT FOR INITIAL EVALUATION- The agency proposing to conduct an initial
evaluation to determine if the child qualifies as a child with a disability as defined in
section 602 shall obtain informed consent from the parent of such child before
conducting the evaluation. Parental consent for evaluation shall not be construed as
consent for placement for receipt of special education and related services.
(II) CONSENT FOR SERVICES- An agency that is responsible for making a free appropriate
public education available to a child with a disability under this part shall seek to obtain
informed consent from the parent of such child before providing special education and
related services to the child.
(ii) ABSENCE OF CONSENT-
(I) FOR INITIAL EVALUATION- If the parent of such child does not provide consent for an
initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide
the consent, the local educational agency may pursue the initial evaluation of the child by
utilizing the procedures described in section 615, except to the extent inconsistent with
State law relating to such parental consent.
(II) FOR SERVICES- If the parent of such child refuses to consent to services under clause
(i)(II), the local educational agency shall not provide special education and related
services to the child by utilizing the procedures described in section 615.
(III) EFFECT ON AGENCY OBLIGATIONS- If the parent of such child refuses to consent
to the receipt of special education and related services, or the parent fails to respond to a
request to provide such consent--
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(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a
free appropriate public education to the child for the failure to provide such child with the special education and
related services for which the local educational agency requests such consent; and
(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this
section for the child for the special education and related services for which the local educational agency requests
such consent.
(iii) CONSENT FOR WARDS OF THE STATE-
(I) IN GENERAL- If the child is a ward of the State and is not residing with the child's parent,
the agency shall make reasonable efforts to obtain the informed consent from the parent
(as defined in section 602) of the child for an initial evaluation to determine whether the
child is a child with a disability.
(II) EXCEPTION- The agency shall not be required to obtain informed consent from the
parent of a child for an initial evaluation to determine whether the child is a child with a
disability if--
(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;
(bb) the rights of the parents of the child have been terminated in accordance with State law; or
(cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State
law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the
child.
(E) RULE OF CONSTRUCTION- The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be considered to be an
evaluation for eligibility for special education and related services.
(2) REEVALUATIONS-
(A) IN GENERAL- A local educational agency shall ensure that a reevaluation of each child with a
disability is conducted in accordance with subsections (b) and (c)--
(i) if the local educational agency determines that the educational or related services needs,
including improved academic achievement and functional performance, of the child warrant a
reevaluation; or
(ii) if the child's parents or teacher requests a reevaluation.
(B) LIMITATION- A reevaluation conducted under subparagraph (A) shall occur--
(i) not more frequently than once a year, unless the parent and the local educational agency agree
otherwise; and
(ii) at least once every 3 years, unless the parent and the local educational agency agree that a
reevaluation is unnecessary.
(b) EVALUATION PROCEDURES-
(1) NOTICE- The local educational agency shall provide notice to the parents of a child with a disability, in
accordance with subsections (b)(3), (b)(4), and (c) of section 615, that describes any evaluation
procedures such agency proposes to conduct.
(2) CONDUCT OF EVALUATION- In conducting the evaluation, the local educational agency shall--
(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and
academic information, including information provided by the parent, that may assist in determining--
(i) whether the child is a child with a disability; and
(ii) the content of the child's individualized education program, including information related to
enabling the child to be involved in and progress in the general education curriculum, or, for
preschool children, to participate in appropriate activities;
(B) not use any single measure or assessment as the sole criterion for determining whether a child is a
child with a disability or determining an appropriate educational program for the child; and
(C) use technically sound instruments that may assess the relative contribution of cognitive and
behavioral factors, in addition to physical or developmental factors.
(3) ADDITIONAL REQUIREMENTS- Each local educational agency shall ensure that--
(A) assessments and other evaluation materials used to assess a child under this section--
(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;
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(ii) are provided and administered in the language and form most likely to yield accurate
information on what the child knows and can do academically, developmentally, and
functionally, unless it is not feasible to so provide or administer;
(iii) are used for purposes for which the assessments or measures are valid and reliable;
(iv) are administered by trained and knowledgeable personnel; and
(v) are administered in accordance with any instructions provided by the producer of such
assessments;
(B) the child is assessed in all areas of suspected disability;
(C) assessment tools and strategies that provide relevant information that directly assists persons in
determining the educational needs of the child are provided; and
(D) assessments of children with disabilities who transfer from 1 school district to another school
district in the same academic year are coordinated with such children's prior and subsequent schools,
as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.
(4) DETERMINATION OF ELIGIBILITY AND EDUCATIONAL NEED- Upon completion of the
administration of assessments and other evaluation measures--
(A) the determination of whether the child is a child with a disability as defined in section 602(3) and
the educational needs of the child shall be made by a team of qualified professionals and the parent
of the child in accordance with paragraph (5); and
(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given
to the parent.
(5) SPECIAL RULE FOR ELIGIBILITY DETERMINATION- In making a determination of eligibility
under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant
factor for such determination is--
(A) lack of appropriate instruction in reading, including in the essential components of reading
instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965);
(B) lack of instruction in math; or
(C) limited English proficiency.
(6) SPECIFIC LEARNING DISABILITIES-
(A) IN GENERAL- Notwithstanding section 607(b), when determining whether a child has a specific
learning disability as defined in section 602, a local educational agency shall not be required to take
into consideration whether a child has a severe discrepancy between achievement and intellectual
ability in oral expression, listening comprehension, written expression, basic reading skill, reading
comprehension, mathematical calculation, or mathematical reasoning.
(B) ADDITIONAL AUTHORITY- In determining whether a child has a specific learning disability, a
local educational agency may use a process that determines if the child responds to scientific,
research-based intervention as a part of the evaluation procedures described in paragraphs (2) and
(3).
(c) ADDITIONAL REQUIREMENTS FOR EVALUATION AND REEVALUATIONS-
(1) REVIEW OF EXISTING EVALUATION DATA- As part of an initial evaluation (if appropriate) and
as part of any reevaluation under this section, the IEP Team and other qualified professionals, as
appropriate, shall--
(A) review existing evaluation data on the child, including--
(i) evaluations and information provided by the parents of the child;
(ii) current classroom-based, local, or State assessments, and classroom-based observations; and
(iii) observations by teachers and related services providers; and
(B) on the basis of that review, and input from the child's parents, identify what additional data, if any,
are needed to determine--
(i) whether the child is a child with a disability as defined in section 602(3), and the educational
needs of the child, or, in case of a reevaluation of a child, whether the child continues to have
such a disability and such educational needs;
(ii) the present levels of academic achievement and related developmental needs of the child;
(iii) whether the child needs special education and related services, or in the case of a reevaluation
of a child, whether the child continues to need special education and related services; and
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(iv) whether any additions or modifications to the special education and related services are
needed to enable the child to meet the measurable annual goals set out in the individualized
education program of the child and to participate, as appropriate, in the general education
curriculum.
(2) SOURCE OF DATA- The local educational agency shall administer such assessments and other
evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph
(1)(B).
(3) PARENTAL CONSENT- Each local educational agency shall obtain informed parental consent, in
accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability,
except that such informed parental consent need not be obtained if the local educational agency can
demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed
to respond.
(4) REQUIREMENTS IF ADDITIONAL DATA ARE NOT NEEDED- If the IEP Team and other
qualified professionals, as appropriate, determine that no additional data are needed to determine whether
the child continues to be a child with a disability and to determine the child's educational needs, the local
educational agency--
(A) shall notify the child's parents of--
(i) that determination and the reasons for the determination; and
(ii) the right of such parents to request an assessment to determine whether the child continues to
be a child with a disability and to determine the child's educational needs; and
(B) shall not be required to conduct such an assessment unless requested to by the child's parents.
(5) EVALUATIONS BEFORE CHANGE IN ELIGIBILITY-
(A) IN GENERAL- Except as provided in subparagraph (B), a local educational agency shall evaluate
a child with a disability in accordance with this section before determining that the child is no longer
a child with a disability.
(B) EXCEPTION-
(i) IN GENERAL- The evaluation described in subparagraph (A) shall not be required before the
termination of a child's eligibility under this part due to graduation from secondary school with a
regular diploma, or due to exceeding the age eligibility for a free appropriate public education
under State law.
(ii) SUMMARY OF PERFORMANCE- For a child whose eligibility under this part terminates
under circumstances described in clause (i), a local educational agency shall provide the child
with a summary of the child's academic achievement and functional performance, which shall
include recommendations on how to assist the child in meeting the child's postsecondary goals.
(d) INDIVIDUALIZED EDUCATION PROGRAMS-
(1) DEFINITIONS- In this title:
(A) INDIVIDUALIZED EDUCATION PROGRAM-
(i) IN GENERAL- The term `individualized education program' or `IEP' means a written
statement for each child with a disability that is developed, reviewed, and revised in accordance
with this section and that includes--
(I) a statement of the child's present levels of academic achievement and functional
performance, including--
(aa) how the child's disability affects the child's involvement and progress in the general education curriculum;
(bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate
activities; and
(cc) for children with disabilities who take alternate assessments aligned to alternate achievement standards, a
description of benchmarks or short-term objectives;
(II) a statement of measurable annual goals, including academic and functional goals,
designed to--
(aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make
progress in the general education curriculum; and
(bb) meet each of the child's other educational needs that result from the child's disability;
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(III) a description of how the child's progress toward meeting the annual goals described in
subclause (II) will be measured and when periodic reports on the progress the child is
making toward meeting the annual goals (such as through the use of quarterly or other
periodic reports, concurrent with the issuance of report cards) will be provided;
(IV) a statement of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable, to be provided to the
child, or on behalf of the child, and a statement of the program modifications or supports
for school personnel that will be provided for the child--
(aa) to advance appropriately toward attaining the annual goals;
(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to
participate in extracurricular and other nonacademic activities; and
(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities
described in this subparagraph;
(V) an explanation of the extent, if any, to which the child will not participate with
nondisabled children in the regular class and in the activities described in subclause
(IV)(cc);
(VI)(aa) a statement of any individual appropriate accommodations that are necessary to
measure the academic achievement and functional performance of the child on State and
districtwide assessments consistent with section 612(a)(16)(A); and
(bb) if the IEP Team determines that the child shall take an alternate assessment on a
particular State or districtwide assessment of student achievement, a statement of why--
(AA) the child cannot participate in the regular assessment; and
(BB) the particular alternate assessment selected is appropriate for the child;
(VII) the projected date for the beginning of the services and modifications described in
subclause (IV), and the anticipated frequency, location, and duration of those services
and modifications; and
(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated
annually thereafter--
(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to
training, education, employment, and, where appropriate, independent living skills;
(bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and
(cc) beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the
child has been informed of the child's rights under this title, if any, that will transfer to the child on reaching the age
of majority under section 615(m).
(ii) RULE OF CONSTRUCTION- Nothing in this section shall be construed to require--
(I) that additional information be included in a child's IEP beyond what is explicitly required
in this section; and
(II) the IEP Team to include information under 1 component of a child's IEP that is already
contained under another component of such IEP.
(B) INDIVIDUALIZED EDUCATION PROGRAM TEAM- The term `individualized education
program team' or `IEP Team' means a group of individuals composed of--
(i) the parents of a child with a disability;
(ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating
in the regular education environment);
(iii) not less than 1 special education teacher, or where appropriate, not less than 1 special
education provider of such child;
(iv) a representative of the local educational agency who--
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet
the unique needs of children with disabilities;
(II) is knowledgeable about the general education curriculum; and
(III) is knowledgeable about the availability of resources of the local educational agency;
(v) an individual who can interpret the instructional implications of evaluation results, who may be
a member of the team described in clauses (ii) through (vi);
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(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special
expertise regarding the child, including related services personnel as appropriate; and
(vii) whenever appropriate, the child with a disability.
(C) IEP TEAM ATTENDANCE-
(i) ATTENDANCE NOT NECESSARY- A member of the IEP Team shall not be required to
attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local
educational agency agree that the attendance of such member is not necessary because the
member's area of the curriculum or related services is not being modified or discussed in the
meeting.
(ii) EXCUSAL- A member of the IEP Team may be excused from attending an IEP meeting, in
whole or in part, when the meeting involves a modification to or discussion of the member's
area of the curriculum or related services, if--
(I) the parent and the local educational agency consent to the excusal; and
(II) the member submits, in writing to the parent and the IEP Team, input into the
development of the IEP prior to the meeting.
(iii) WRITTEN AGREEMENT AND CONSENT REQUIRED- A parent's agreement under clause
(i) and consent under clause (ii) shall be in writing.
(D) IEP TEAM TRANSITION- In the case of a child who was previously served under part C, an
invitation to the initial IEP meeting shall, at the request of the parent, be sent to the part C service
coordinator or other representatives of the part C system to assist with the smooth transition of
services.
(2) REQUIREMENT THAT PROGRAM BE IN EFFECT-
(A) IN GENERAL- At the beginning of each school year, each local educational agency, State
educational agency, or other State agency, as the case may be, shall have in effect, for each child
with a disability in the agency's jurisdiction, an individualized education program, as defined in
paragraph (1)(A).
(B) PROGRAM FOR CHILD AGED 3 THROUGH 5- In the case of a child with a disability aged 3
through 5 (or, at the discretion of the State educational agency, a 2-year-old child with a disability
who will turn age 3 during the school year), the IEP Team shall consider the individualized family
service plan that contains the material described in section 636, and that is developed in accordance
with this section, and the individualized family service plan may serve as the IEP of the child if
using that plan as the IEP is--
(i) consistent with State policy; and
(ii) agreed to by the agency and the child's parents.
(C) PROGRAM FOR CHILDREN WHO TRANSFER SCHOOL DISTRICTS-
(i) IN GENERAL-
(I) TRANSFER WITHIN THE SAME STATE- In the case of a child with a disability who
transfers school districts within the same academic year, who enrolls in a new school, and
who had an IEP that was in effect in the same State, the local educational agency shall
provide such child with a free appropriate public education, including services
comparable to those described in the previously held IEP, in consultation with the parents
until such time as the local educational agency adopts the previously held IEP or
develops, adopts, and implements a new IEP that is consistent with Federal and State law.
(II) TRANSFER OUTSIDE STATE- In the case of a child with a disability who transfers
school districts within the same academic year, who enrolls in a new school, and who had
an IEP that was in effect in another State, the local educational agency shall provide such
child with a free appropriate public education, including services comparable to those
described in the previously held IEP, in consultation with the parents until such time as
the local educational agency conducts an evaluation pursuant to subsection (a)(1), if
determined to be necessary by such agency, and develops a new IEP, if appropriate, that
is consistent with Federal and State law.
(ii) TRANSMITTAL OF RECORDS- To facilitate the transition for a child described in clause
(i)--
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(I) the new school in which the child enrolls shall take reasonable steps to promptly obtain the
child's records, including the IEP and supporting documents and any other records
relating to the provision of special education or related services to the child, from the
previous school in which the child was enrolled, pursuant to section 99.31(a)(2) of title
34, Code of Federal Regulations; and
(II) the previous school in which the child was enrolled shall take reasonable steps to
promptly respond to such request from the new school.
(3) DEVELOPMENT OF IEP-
(A) IN GENERAL- In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall
consider--
(i) the strengths of the child;
(ii) the concerns of the parents for enhancing the education of their child;
(iii) the results of the initial evaluation or most recent evaluation of the child; and
(iv) the academic, developmental, and functional needs of the child.
(B) CONSIDERATION OF SPECIAL FACTORS- The IEP Team shall--
(i) in the case of a child whose behavior impedes the child's learning or that of others, consider the
use of positive behavioral interventions and supports, and other strategies, to address that
behavior;
(ii) in the case of a child with limited English proficiency, consider the language needs of the child
as such needs relate to the child's IEP;
(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and
the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and
writing skills, needs, and appropriate reading and writing media (including an evaluation of the
child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or
the use of Braille is not appropriate for the child;
(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard
of hearing, consider the child's language and communication needs, opportunities for direct
communications 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; and
(v) consider whether the child needs assistive technology devices and services.
(C) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER- A regular
education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate,
participate in the development of the IEP of the child, including the determination of appropriate
positive behavioral interventions and supports, and other strategies, and the determination of
supplementary aids and services, program modifications, and support for school personnel consistent
with paragraph (1)(A)(i)(IV).
(D) AGREEMENT- In making changes to a child's IEP after the annual IEP meeting for a school year,
the parent of a child with a disability and the local educational agency may agree not to convene an
IEP meeting for the purposes of making such changes, and instead may develop a written document
to amend or modify the child's current IEP.
(E) CONSOLIDATION OF IEP TEAM MEETINGS- To the extent possible, the local educational
agency shall encourage the consolidation of reevaluation meetings for the child and other IEP Team
meetings for the child.
(F) AMENDMENTS- Changes to the IEP may be made either by the entire IEP Team or, as provided
in subparagraph (D), by amending the IEP rather than by redrafting the entire IEP. Upon request, a
parent shall be provided with a revised copy of the IEP with the amendments incorporated.
(4) REVIEW AND REVISION OF IEP-
(A) IN GENERAL- The local educational agency shall ensure that, subject to subparagraph (B), the
IEP Team--
(i) reviews the child's IEP periodically, but not less frequently than annually, to determine whether
the annual goals for the child are being achieved; and
(ii) revises the IEP as appropriate to address--
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(I) any lack of expected progress toward the annual goals and in the general education
curriculum, where appropriate;
(II) the results of any reevaluation conducted under this section;
(III) information about the child provided to, or by, the parents, as described in subsection
(c)(1)(B);
(IV) the child's anticipated needs; or
(V) other matters.
(B) REQUIREMENT WITH RESPECT TO REGULAR EDUCATION TEACHER- A regular
education teacher of the child, as a member of the IEP Team, shall, consistent with paragraph (1)(C),
participate in the review and revision of the IEP of the child.
(5) MULTI-YEAR IEP DEMONSTRATION-
(A) PILOT PROGRAM-
(i) PURPOSE- The purpose of this paragraph is to provide an opportunity for States to allow
parents and local educational agencies the opportunity for long-term planning by offering the
option of developing a comprehensive multi-year IEP, not to exceed 3 years, that is designed to
coincide with the natural transition points for the child.
(ii) AUTHORIZATION- In order to carry out the purpose of this paragraph, the Secretary is
authorized to approve not more than 15 proposals from States to carry out the activity described
in clause (i).
(iii) PROPOSAL-
(I) IN GENERAL- A State desiring to participate in the program under this paragraph shall
submit a proposal to the Secretary at such time and in such manner as the Secretary may
reasonably require.
(II) CONTENT- The proposal shall include--
(aa) assurances that the development of a multi-year IEP under this paragraph is optional for parents;
(bb) assurances that the parent is required to provide informed consent before a comprehensive multi-year IEP is
developed;
(cc) a list of required elements for each multi-year IEP, including--
(AA) measurable goals pursuant to paragraph (1)(A)(i)(II), coinciding with natural transition points for the child,
that will enable the child to be involved in and make progress in the general education curriculum and that will meet
the child's other needs that result from the child's disability; and
(BB) measurable annual goals for determining progress toward meeting the goals described in subitem (AA); and
(dd) a description of the process for the review and revision of each multi-year IEP, including--
(AA) a review by the IEP Team of the child's multi-year IEP at each of the child's natural transition points;
(BB) in years other than a child's natural transition points, an annual review of the child's IEP to determine the
child's current levels of progress and whether the annual goals for the child are being achieved, and a requirement to
amend the IEP, as appropriate, to enable the child to continue to meet the measurable goals set out in the IEP;
(CC) if the IEP Team determines on the basis of a review that the child is not making sufficient progress toward the
goals described in the multi-year IEP, a requirement that the local educational agency shall ensure that the IEP Team
carries out a more thorough review of the IEP in accordance with paragraph (4) within 30 calendar days; and
(DD) at the request of the parent, a requirement that the IEP Team shall conduct a review of the child's multi-year
IEP rather than or subsequent to an annual review.
(B) REPORT- Beginning 2 years after the date of enactment of the Individuals with Disabilities
Education Improvement Act of 2004, the Secretary shall submit an annual report to the Committee
on Education and the Workforce of the House of Representatives and the Committee on Health,
Education, Labor, and Pensions of the Senate regarding the effectiveness of the program under this
paragraph and any specific recommendations for broader implementation of such program,
including--
(i) reducing--
(I) the paperwork burden on teachers, principals, administrators, and related service providers;
and
(II) noninstructional time spent by teachers in complying with this part;
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(ii) enhancing longer-term educational planning;
(iii) improving positive outcomes for children with disabilities;
(iv) promoting collaboration between IEP Team members; and
(v) ensuring satisfaction of family members.
(C) DEFINITION- In this paragraph, the term `natural transition points' means those periods that are
close in time to the transition of a child with a disability from preschool to elementary grades, from
elementary grades to middle or junior high school grades, from middle or junior high school grades
to secondary school grades, and from secondary school grades to post-secondary activities, but in no
case a period longer than 3 years.
(6) FAILURE TO MEET TRANSITION OBJECTIVES- If a participating agency, other than the local
educational agency, fails to provide the transition services described in the IEP in accordance with
paragraph (1)(A)(i)(VIII), the local educational agency shall reconvene the IEP Team to identify
alternative strategies to meet the transition objectives for the child set out in the IEP.
(7) CHILDREN WITH DISABILITIES IN ADULT PRISONS-
(A) IN GENERAL- The following requirements shall not apply to children with disabilities who are
convicted as adults under State law and incarcerated in adult prisons:
(i) The requirements contained in section 612(a)(16) and paragraph (1)(A)(i)(VI) (relating to
participation of children with disabilities in general assessments).
(ii) The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VIII) (relating to transition
planning and transition services), do not apply with respect to such children whose eligibility
under this part will end, because of such children's age, before such children will be released
from prison.
(B) ADDITIONAL REQUIREMENT- If a child with a disability is convicted as an adult under State
law and incarcerated in an adult prison, the child's IEP Team may modify the child's IEP or
placement notwithstanding the requirements of sections 612(a)(5)(A) and paragraph (1)(A) if the
State has demonstrated a bona fide security or compelling penological interest that cannot otherwise
be accommodated.
(e) EDUCATIONAL PLACEMENTS- Each local educational agency or State educational agency shall ensure
that the parents of each child with a disability are members of any group that makes decisions on the
educational placement of their child.
(f) ALTERNATIVE MEANS OF MEETING PARTICIPATION- When conducting IEP team meetings and
placement meetings pursuant to this section, section 615(e), and section 615(f)(1)(B), and carrying out
administrative matters under section 615 (such as scheduling, exchange of witness lists, and status conferences),
the parent of a child with a disability and a local educational agency may agree to use alternative means of
meeting participation, such as video conferences and conference calls.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 615. PROCEDURAL SAFEGUARDS.
(a) ESTABLISHMENT OF PROCEDURES- Any State educational agency, State agency, or local educational
agency that receives assistance under this part shall establish and maintain procedures in accordance with this
section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with
respect to the provision of a free appropriate public education by such agencies.
(b) TYPES OF PROCEDURES- The procedures required by this section shall include the following:
(1) An opportunity for the parents of a child with a disability to examine all records relating to such child
and to participate in meetings with respect to the identification, evaluation, and educational placement of
the child, and the provision of a free appropriate public education to such child, and to obtain an
independent educational evaluation of the child.
(2)(A) Procedures to protect the rights of the child whenever the parents of the child are not known, the
agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including
the assignment of an individual to act as a surrogate for the parents, which surrogate shall not be an
employee of the State educational agency, the local educational agency, or any other agency that is
involved in the education or care of the child. In the case of--
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(i) a child who is a ward of the State, such surrogate may alternatively be appointed by the judge
overseeing the child's care provided that the surrogate meets the requirements of this paragraph; and
(ii) an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(6)), the local educational agency shall appoint a surrogate in
accordance with this paragraph.
(B) The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days
after there is a determination by the agency that the child needs a surrogate.
(3) Written prior notice to the parents of the child, in accordance with subsection (c)(1), whenever the local
educational agency--
(A) proposes to initiate or change; or
(B) refuses to initiate or change,
the identification, evaluation, or educational placement of the child, or the provision of a free appropriate
public education to the child.
(4) Procedures designed to ensure that the notice required by paragraph (3) is in the native language of the
parents, unless it clearly is not feasible to do so.
(5) An opportunity for mediation, in accordance with subsection (e).
(6) An opportunity for any party to present a complaint--
(A) with respect to any matter relating to the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to such child; and
(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent
or public agency knew or should have known about the alleged action that forms the basis of the
complaint, or, if the State has an explicit time limitation for presenting such a complaint under this
part, in such time as the State law allows, except that the exceptions to the timeline described in
subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.
(7)(A) Procedures that require either party, or the attorney representing a party, to provide due process
complaint notice in accordance with subsection (c)(2) (which shall remain confidential)--
(i) to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to
the State educational agency; and
(ii) that shall include--
(I) the name of the child, the address of the residence of the child (or available contact information
in the case of a homeless child), and the name of the school the child is attending;
(II) in the case of a homeless child or youth (within the meaning of section 725(2) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact
information for the child and the name of the school the child is attending;
(III) a description of the nature of the problem of the child relating to such proposed initiation or
change, including facts relating to such problem; and
(IV) a proposed resolution of the problem to the extent known and available to the party at the
time.
(B) A requirement that a party may not have a due process hearing until the party, or the attorney
representing the party, files a notice that meets the requirements of subparagraph (A)(ii).
(8) Procedures that require the State educational agency to develop a model form to assist parents in filing a
complaint and due process complaint notice in accordance with paragraphs (6) and (7), respectively.
(c) NOTIFICATION REQUIREMENTS-
(1) CONTENT OF PRIOR WRITTEN NOTICE- The notice required by subsection (b)(3) shall include--
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take the action and a description of each
evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or
refused action;
(C) a statement that the parents of a child with a disability have protection under the procedural
safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can be obtained;
(D) sources for parents to contact to obtain assistance in understanding the provisions of this part;
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(E) a description of other options considered by the IEP Team and the reason why those options were
rejected; and
(F) a description of the factors that are relevant to the agency's proposal or refusal.
(2) DUE PROCESS COMPLAINT NOTICE-
(A) COMPLAINT- The due process complaint notice required under subsection (b)(7)(A) shall be
deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other
party in writing that the receiving party believes the notice has not met the requirements of
subsection (b)(7)(A).
(B) RESPONSE TO COMPLAINT-
(i) LOCAL EDUCATIONAL AGENCY RESPONSE-
(I) IN GENERAL- If the local educational agency has not sent a prior written notice to the
parent regarding the subject matter contained in the parent's due process complaint
notice, such local educational agency shall, within 10 days of receiving the complaint,
send to the parent a response that shall include--
(aa) an explanation of why the agency proposed or refused to take the action raised in the complaint;
(bb) a description of other options that the IEP Team considered and the reasons why those options were rejected;
(cc) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the
proposed or refused action; and
(dd) a description of the factors that are relevant to the agency's proposal or refusal.
(II) SUFFICIENCY- A response filed by a local educational agency pursuant to subclause (I)
shall not be construed to preclude such local educational agency from asserting that the
parent's due process complaint notice was insufficient where appropriate.
(ii) OTHER PARTY RESPONSE- Except as provided in clause (i), the non-complaining party
shall, within 10 days of receiving the complaint, send to the complaint a response that
specifically addresses the issues raised in the complaint.
(C) TIMING- The party providing a hearing officer notification under subparagraph (A) shall provide
the notification within 15 days of receiving the complaint.
(D) DETERMINATION- Within 5 days of receipt of the notification provided under subparagraph (C),
the hearing officer shall make a determination on the face of the notice of whether the notification
meets the requirements of subsection (b)(7)(A), and shall immediately notify the parties in writing of
such determination.
(E) AMENDED COMPLAINT NOTICE-
(i) IN GENERAL- A party may amend its due process complaint notice only if--
(I) the other party consents in writing to such amendment and is given the opportunity to
resolve the complaint through a meeting held pursuant to subsection (f)(1)(B); or
(II) the hearing officer grants permission, except that the hearing officer may only grant such
permission at any time not later than 5 days before a due process hearing occurs.
(ii) APPLICABLE TIMELINE- The applicable timeline for a due process hearing under this part
shall recommence at the time the party files an amended notice, including the timeline under
subsection (f)(1)(B).
(d) PROCEDURAL SAFEGUARDS NOTICE-
(1) IN GENERAL-
(A) COPY TO PARENTS- A copy of the procedural safeguards available to the parents of a child with
a disability shall be given to the parents only 1 time a year, except that a copy also shall be given to
the parents--
(i) upon initial referral or parental request for evaluation;
(ii) upon the first occurrence of the filing of a complaint under subsection (b)(6); and
(iii) upon request by a parent.
(B) INTERNET WEBSITE- A local educational agency may place a current copy of the procedural
safeguards notice on its Internet website if such website exists.
(2) CONTENTS- The procedural safeguards notice shall include a full explanation of the procedural
safeguards, written in the native language of the parents (unless it clearly is not feasible to do so) and
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written in an easily understandable manner, available under this section and under regulations
promulgated by the Secretary relating to--
(A) independent educational evaluation;
(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) the opportunity to present and resolve complaints, including--
(i) the time period in which to make a complaint;
(ii) the opportunity for the agency to resolve the complaint; and
(iii) the availability of mediation;
(F) the child's placement during pendency of due process proceedings;
(G) procedures for students who are subject to placement in an interim alternative educational setting;
(H) requirements for unilateral placement by parents of children in private schools at public expense;
(I) due process hearings, including requirements for disclosure of evaluation results and
recommendations;
(J) State-level appeals (if applicable in that State);
(K) civil actions, including the time period in which to file such actions; and
(L) attorneys' fees.
(e) MEDIATION-
(1) IN GENERAL- Any State educational agency or local educational agency that receives assistance under
this part shall ensure that procedures are established and implemented to allow parties to disputes
involving any matter, including matters arising prior to the filing of a complaint pursuant to subsection
(b)(6), to resolve such disputes through a mediation process.
(2) REQUIREMENTS- Such procedures shall meet the following requirements:
(A) The procedures shall ensure that the mediation process--
(i) is voluntary on the part of the parties;
(ii) is not used to deny or delay a parent's right to a due process hearing under subsection (f), or to
deny any other rights afforded under this part; and
(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation
techniques.
(B) OPPORTUNITY TO MEET WITH A DISINTERESTED PARTY- A local educational agency or
a State agency may establish procedures to offer to parents and schools that choose not to use the
mediation process, an opportunity to meet, at a time and location convenient to the parents, with a
disinterested party who is under contract with--
(i) a parent training and information center or community parent resource center in the State
established under section 671 or 672; or
(ii) an appropriate alternative dispute resolution entity,
to encourage the use, and explain the benefits, of the mediation process to the parents.
(C) LIST OF QUALIFIED MEDIATORS- The State shall maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating to the provision of special
education and related services.
(D) COSTS- The State shall bear the cost of the mediation process, including the costs of meetings
described in subparagraph (B).
(E) SCHEDULING AND LOCATION- Each session in the mediation process shall be scheduled in a
timely manner and shall be held in a location that is convenient to the parties to the dispute.
(F) WRITTEN AGREEMENT- In the case that a resolution is reached to resolve the complaint
through the mediation process, the parties shall execute a legally binding agreement that sets forth
such resolution and that--
(i) states that all discussions that occurred during the mediation process shall be confidential and
may not be used as evidence in any subsequent due process hearing or civil proceeding;
(ii) is signed by both the parent and a representative of the agency who has the authority to bind
such agency; and
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(iii) is enforceable in any State court of competent jurisdiction or in a district court of the United
States.
(G) MEDIATION DISCUSSIONS- Discussions that occur during the mediation process shall be
confidential and may not be used as evidence in any subsequent due process hearing or civil
proceeding.
(f) IMPARTIAL DUE PROCESS HEARING-
(1) IN GENERAL-
(A) HEARING- Whenever a complaint has been received under subsection (b)(6) or (k), the parents or
the local educational agency involved in such complaint shall have an opportunity for an impartial
due process hearing, which shall be conducted by the State educational agency or by the local
educational agency, as determined by State law or by the State educational agency.
(B) RESOLUTION SESSION-
(i) PRELIMINARY MEETING- Prior to the opportunity for an impartial due process hearing
under subparagraph (A), the local educational agency shall convene a meeting with the parents
and the relevant member or members of the IEP Team who have specific knowledge of the facts
identified in the complaint--
(I) within 15 days of receiving notice of the parents' complaint;
(II) which shall include a representative of the agency who has decisionmaking authority on
behalf of such agency;
(III) which may not include an attorney of the local educational agency unless the parent is
accompanied by an attorney; and
(IV) where the parents of the child discuss their complaint, and the facts that form the basis of
the complaint, and the local educational agency is provided the opportunity to resolve the
complaint,
unless the parents and the local educational agency agree in writing to waive such meeting, or
agree to use the mediation process described in subsection (e).
(ii) HEARING- If the local educational agency has not resolved the complaint to the satisfaction
of the parents within 30 days of the receipt of the complaint, the due process hearing may occur,
and all of the applicable timelines for a due process hearing under this part shall commence.
(iii) WRITTEN SETTLEMENT AGREEMENT- In the case that a resolution is reached to resolve
the complaint at a meeting described in clause (i), the parties shall execute a legally binding
agreement that is--
(I) signed by both the parent and a representative of the agency who has the authority to bind
such agency; and
(II) enforceable in any State court of competent jurisdiction or in a district court of the United
States.
(iv) REVIEW PERIOD- If the parties execute an agreement pursuant to clause (iii), a party may
void such agreement within 3 business days of the agreement's execution.
(2) DISCLOSURE OF EVALUATIONS AND RECOMMENDATIONS-
(A) IN GENERAL- Not less than 5 business days prior to a hearing conducted pursuant to paragraph
(1), each party shall disclose to all other parties all evaluations completed by that date, and
recommendations based on the offering party's evaluations, that the party intends to use at the
hearing.
(B) FAILURE TO DISCLOSE- A hearing officer may bar any party that fails to comply with
subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without
the consent of the other party.
(3) LIMITATIONS ON HEARING-
(A) PERSON CONDUCTING HEARING- A hearing officer conducting a hearing pursuant to
paragraph (1)(A) shall, at a minimum--
(i) not be--
(I) an employee of the State educational agency or the local educational agency involved in
the education or care of the child; or
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(II) a person having a personal or professional interest that conflicts with the person's
objectivity in the hearing;
(ii) possess knowledge of, and the ability to understand, the provisions of this title, Federal and
State regulations pertaining to this title, and legal interpretations of this title by Federal and
State courts;
(iii) possess the knowledge and ability to conduct hearings in accordance with appropriate,
standard legal practice; and
(iv) possess the knowledge and ability to render and write decisions in accordance with
appropriate, standard legal practice.
(B) SUBJECT MATTER OF HEARING- The party requesting the due process hearing shall not be
allowed to raise issues at the due process hearing that were not raised in the notice filed under
subsection (b)(7), unless the other party agrees otherwise.
(C) TIMELINE FOR REQUESTING HEARING- A parent or agency shall request an impartial due
process hearing within 2 years of the date the parent or agency knew or should have known about the
alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for
requesting such a hearing under this part, in such time as the State law allows.
(D) EXCEPTIONS TO THE TIMELINE- The timeline described in subparagraph (C) shall not apply
to a parent if the parent was prevented from requesting the hearing due to--
(i) specific misrepresentations by the local educational agency that it had resolved the problem
forming the basis of the complaint; or
(ii) the local educational agency's withholding of information from the parent that was required
under this part to be provided to the parent.
(E) DECISION OF HEARING OFFICER-
(i) IN GENERAL- Subject to clause (ii), a decision made by a hearing officer shall be made on
substantive grounds based on a determination of whether the child received a free appropriate
public education.
(ii) PROCEDURAL ISSUES- In matters alleging a procedural violation, a hearing officer may
find that a child did not receive a free appropriate public education only if the procedural
inadequacies--
(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decisionmaking
process regarding the provision of a free appropriate public education to the parents'
child; or
(III) caused a deprivation of educational benefits.
(iii) RULE OF CONSTRUCTION- Nothing in this subparagraph shall be construed to preclude a
hearing officer from ordering a local educational agency to comply with procedural
requirements under this section.
(F) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed to affect the right of a
parent to file a complaint with the State educational agency.
(g) APPEAL-
(1) IN GENERAL- If the hearing required by subsection (f) is conducted by a local educational agency,
any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings
and decision to the State educational agency.
(2) IMPARTIAL REVIEW AND INDEPENDENT DECISION- The State educational agency shall
conduct an impartial review of the findings and decision appealed under paragraph (1). The officer
conducting such review shall make an independent decision upon completion of such review.
(h) SAFEGUARDS- Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted
pursuant to subsection (g), shall be accorded--
(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or
training with respect to the problems of children with disabilities;
(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;
(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and
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(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions, which
findings and decisions--
(A) shall be made available to the public consistent with the requirements of section 617(b) (relating to
the confidentiality of data, information, and records); and
(B) shall be transmitted to the advisory panel established pursuant to section 612(a)(21).
(i) ADMINISTRATIVE PROCEDURES-
(1) IN GENERAL-
(A) DECISION MADE IN HEARING- A decision made in a hearing conducted pursuant to subsection
(f) or (k) shall be final, except that any party involved in such hearing may appeal such decision
under the provisions of subsection (g) and paragraph (2).
(B) DECISION MADE AT APPEAL- A decision made under subsection (g) shall be final, except that
any party may bring an action under paragraph (2).
(2) RIGHT TO BRING CIVIL ACTION-
(A) IN GENERAL- Any party aggrieved by the findings and decision made under subsection (f) or (k)
who does not have the right to an appeal under subsection (g), and any party aggrieved by the
findings and decision made under this subsection, shall have the right to bring a civil action with
respect to the complaint presented pursuant to this section, which action may be brought in any State
court of competent jurisdiction or in a district court of the United States, without regard to the
amount in controversy.
(B) LIMITATION- The party bringing the action shall have 90 days from the date of the decision of
the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing
such action under this part, in such time as the State law allows.
(C) ADDITIONAL REQUIREMENTS- In any action brought under this paragraph, the court--
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.
(3) JURISDICTION OF DISTRICT COURTS; ATTORNEYS' FEES-
(A) IN GENERAL- The district courts of the United States shall have jurisdiction of actions brought
under this section without regard to the amount in controversy.
(B) AWARD OF ATTORNEYS' FEES-
(i) IN GENERAL- In any action or proceeding brought under this section, the court, in its
discretion, may award reasonable attorneys' fees as part of the costs--
(I) to a prevailing party who is the parent of a child with a disability;
(II) to a prevailing party who is a State educational agency or local educational agency against
the attorney of a parent who files a complaint or subsequent cause of action that is
frivolous, unreasonable, or without foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became frivolous, unreasonable, or without
foundation; or
(III) to a prevailing State educational agency or local educational agency against the attorney
of a parent, or against the parent, if the parent's complaint or subsequent cause of action
was presented for any improper purpose, such as to harass, to cause unnecessary delay, or
to needlessly increase the cost of litigation.
(ii) RULE OF CONSTRUCTION- Nothing in this subparagraph shall be construed to affect
section 327 of the District of Columbia Appropriations Act, 2005.
(C) DETERMINATION OF AMOUNT OF ATTORNEYS' FEES- Fees awarded under this paragraph
shall be based on rates prevailing in the community in which the action or proceeding arose for the
kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees
awarded under this subsection.
(D) PROHIBITION OF ATTORNEYS' FEES AND RELATED COSTS FOR CERTAIN SERVICES-
(i) IN GENERAL- Attorneys' fees may not be awarded and related costs may not be reimbursed in
any action or proceeding under this section for services performed subsequent to the time of a
written offer of settlement to a parent if--
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(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil
Procedure or, in the case of an administrative proceeding, at any time more than 10 days
before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds that the relief finally obtained by the
parents is not more favorable to the parents than the offer of settlement.
(ii) IEP TEAM MEETINGS- Attorneys' fees may not be awarded relating to any meeting of the
IEP Team unless such meeting is convened as a result of an administrative proceeding or
judicial action, or, at the discretion of the State, for a mediation described in subsection (e).
(iii) OPPORTUNITY TO RESOLVE COMPLAINTS- A meeting conducted pursuant to
subsection (f)(1)(B)(i) shall not be considered--
(I) a meeting convened as a result of an administrative hearing or judicial action; or
(II) an administrative hearing or judicial action for purposes of this paragraph.
(E) EXCEPTION TO PROHIBITION ON ATTORNEYS' FEES AND RELATED COSTS-
Notwithstanding subparagraph (D), an award of attorneys' fees and related costs may be made to a
parent who is the prevailing party and who was substantially justified in rejecting the settlement
offer.
(F) REDUCTION IN AMOUNT OF ATTORNEYS' FEES- Except as provided in subparagraph (G),
whenever the court finds that--
(i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably
protracted the final resolution of the controversy;
(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the
hourly rate prevailing in the community for similar services by attorneys of reasonably
comparable skill, reputation, and experience;
(iii) the time spent and legal services furnished were excessive considering the nature of the action
or proceeding; or
(iv) the attorney representing the parent did not provide to the local educational agency the
appropriate information in the notice of the complaint described in subsection (b)(7)(A),
the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section.
(G) EXCEPTION TO REDUCTION IN AMOUNT OF ATTORNEYS' FEES- The provisions of
subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local
educational agency unreasonably protracted the final resolution of the action or proceeding or there
was a violation of this section.
(j) MAINTENANCE OF CURRENT EDUCATIONAL PLACEMENT- Except as provided in subsection
(k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local
educational agency and the parents otherwise agree, the child shall remain in the then-current educational
placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the
parents, be placed in the public school program until all such proceedings have been completed.
(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING-
(1) AUTHORITY OF SCHOOL PERSONNEL-
(A) CASE-BY-CASE DETERMINATION- School personnel may consider any unique circumstances
on a case-by-case basis when determining whether to order a change in placement for a child with a
disability who violates a code of student conduct.
(B) AUTHORITY- School personnel under this subsection may remove a child with a disability who
violates a code of student conduct from their current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than 10 school days (to the extent
such alternatives are applied to children without disabilities).
(C) ADDITIONAL AUTHORITY- If school personnel seek to order a change in placement that would
exceed 10 school days and the behavior that gave rise to the violation of the school code is
determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the
relevant disciplinary procedures applicable to children without disabilities may be applied to the
child in the same manner and for the same duration in which the procedures would be applied to
children without disabilities, except as provided in section 612(a)(1) although it may be provided in
an interim alternative educational setting.
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(D) SERVICES- A child with a disability who is removed from the child's current placement under
subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the
child's disability) or subparagraph (C) shall--
(i) continue to receive educational services, as provided in section 612(a)(1), so as to enable the
child to continue to participate in the general education curriculum, although in another setting,
and to progress toward meeting the goals set out in the child's IEP; and
(ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services
and modifications, that are designed to address the behavior violation so that it does not recur.
(E) MANIFESTATION DETERMINATION-
(i) IN GENERAL- Except as provided in subparagraph (B), within 10 school days of any decision
to change the placement of a child with a disability because of a violation of a code of student
conduct, the local educational agency, the parent, and relevant members of the IEP Team (as
determined by the parent and the local educational agency) shall review all relevant information
in the student's file, including the child's IEP, any teacher observations, and any relevant
information provided by the parents to determine--
(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the
child's disability; or
(II) if the conduct in question was the direct result of the local educational agency's failure to
implement the IEP.
(ii) MANIFESTATION- If the local educational agency, the parent, and relevant members of the
IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the
conduct shall be determined to be a manifestation of the child's disability.
(F) DETERMINATION THAT BEHAVIOR WAS A MANIFESTATION- If the local educational
agency, the parent, and relevant members of the IEP Team make the determination that the conduct
was a manifestation of the child's disability, the IEP Team shall--
(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for
such child, provided that the local educational agency had not conducted such assessment prior
to such determination before the behavior that resulted in a change in placement described in
subparagraph (C) or (G);
(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral
intervention plan if the child already has such a behavioral intervention plan, and modify it, as
necessary, to address the behavior; and
(iii) except as provided in subparagraph (G), return the child to the placement from which the
child was removed, unless the parent and the local educational agency agree to a change of
placement as part of the modification of the behavioral intervention plan.
(G) SPECIAL CIRCUMSTANCES- School personnel may remove a student to an interim alternative
educational setting for not more than 45 school days without regard to whether the behavior is
determined to be a manifestation of the child's disability, in cases where a child--
(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function
under the jurisdiction of a State or local educational agency;
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance,
while at school, on school premises, or at a school function under the jurisdiction of a State or
local educational agency; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or
at a school function under the jurisdiction of a State or local educational agency.
(H) NOTIFICATION- Not later than the date on which the decision to take disciplinary action is made,
the local educational agency shall notify the parents of that decision, and of all procedural safeguards
accorded under this section.
(2) DETERMINATION OF SETTING- The interim alternative educational setting in subparagraphs (C)
and (G) of paragraph (1) shall be determined by the IEP Team.
(3) APPEAL-
(A) IN GENERAL- The parent of a child with a disability who disagrees with any decision regarding
placement, or the manifestation determination under this subsection, or a local educational agency
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that believes that maintaining the current placement of the child is substantially likely to result in
injury to the child or to others, may request a hearing.
(B) AUTHORITY OF HEARING OFFICER-
(i) IN GENERAL- A hearing officer shall hear, and make a determination regarding, an appeal
requested under subparagraph (A).
(ii) CHANGE OF PLACEMENT ORDER- In making the determination under clause (i), the
hearing officer may order a change in placement of a child with a disability. In such situations,
the hearing officer may--
(I) return a child with a disability to the placement from which the child was removed; or
(II) order a change in placement of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 school days if the hearing officer
determines that maintaining the current placement of such child is substantially likely to
result in injury to the child or to others.
(4) PLACEMENT DURING APPEALS- When an appeal under paragraph (3) has been requested by either
the parent or the local educational agency--
(A) the child shall remain in the interim alternative educational setting pending the decision of the
hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever
occurs first, unless the parent and the State or local educational agency agree otherwise; and
(B) the State or local educational agency shall arrange for an expedited hearing, which shall occur
within 20 school days of the date the hearing is requested and shall result in a determination within
10 school days after the hearing.
(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND
RELATED SERVICES-
(A) IN GENERAL- A child who has not been determined to be eligible for special education and
related services under this part and who has engaged in behavior that violates a code of student
conduct, may assert any of the protections provided for in this part if the local educational agency
had knowledge (as determined in accordance with this paragraph) that the child was a child with a
disability before the behavior that precipitated the disciplinary action occurred.
(B) BASIS OF KNOWLEDGE- A local educational agency shall be deemed to have knowledge that a
child is a child with a disability if, before the behavior that precipitated the disciplinary action
occurred--
(i) the parent of the child has expressed concern in writing to supervisory or administrative
personnel of the appropriate educational agency, or a teacher of the child, that the child is in
need of special education and related services;
(ii) the parent of the child has requested an evaluation of the child pursuant to section
614(a)(1)(B); or
(iii) the teacher of the child, or other personnel of the local educational agency, has expressed
specific concerns about a pattern of behavior demonstrated by the child, directly to the director
of special education of such agency or to other supervisory personnel of the agency.
(C) EXCEPTION- A local educational agency shall not be deemed to have knowledge that the child is
a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant
to section 614 or has refused services under this part or the child has been evaluated and it was
determined that the child was not a child with a disability under this part.
(D) CONDITIONS THAT APPLY IF NO BASIS OF KNOWLEDGE-
(i) IN GENERAL- If a local educational agency does not have knowledge that a child is a child
with a disability (in accordance with subparagraph (B) or (C)) prior to taking disciplinary
measures against the child, the child may be subjected to disciplinary measures applied to
children without disabilities who engaged in comparable behaviors consistent with clause (ii).
(ii) LIMITATIONS- If a request is made for an evaluation of a child during the time period in
which the child is subjected to disciplinary measures under this subsection, the evaluation shall
be conducted in an expedited manner. If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by the agency and
information provided by the parents, the agency shall provide special education and related
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services in accordance with this part, except that, pending the results of the evaluation, the child
shall remain in the educational placement determined by school authorities.
(6) REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES-
(A) RULE OF CONSTRUCTION- Nothing in this part shall be construed to prohibit an agency from
reporting a crime committed by a child with a disability to appropriate authorities or to prevent State
law enforcement and judicial authorities from exercising their responsibilities with regard to the
application of Federal and State law to crimes committed by a child with a disability.
(B) TRANSMITTAL OF RECORDS- An agency reporting a crime committed by a child with a
disability shall ensure that copies of the special education and disciplinary records of the child are
transmitted for consideration by the appropriate authorities to whom the agency reports the crime.
(7) DEFINITIONS- In this subsection:
(A) CONTROLLED SUBSTANCE- The term `controlled substance' means a drug or other substance
identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21
U.S.C. 812(c)).
(B) ILLEGAL DRUG- The term `illegal drug' means a controlled substance but does not include a
controlled substance that is legally possessed or used under the supervision of a licensed health-care
professional or that is legally possessed or used under any other authority under that Act or under
any other provision of Federal law.
(C) WEAPON- The term `weapon' has the meaning given the term `dangerous weapon' under section
930(g)(2) of title 18, United States Code.
(D) SERIOUS BODILY INJURY- The term `serious bodily injury' has the meaning given the term
`serious bodily injury' under paragraph (3) of subsection (h) of section 1365 of title 18, United States
Code.
(l) RULE OF CONSTRUCTION- Nothing in this title shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V
of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except
that before the filing of a civil action under such laws seeking relief that is also available under this part, the
procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the
action been brought under this part.
(m) TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY-
(1) IN GENERAL- A State that receives amounts from a grant under this part may provide that, when a
child with a disability reaches the age of majority under State law (except for a child with a disability
who has been determined to be incompetent under State law)--
(A) the agency shall provide any notice required by this section to both the individual and the parents;
(B) all other rights accorded to parents under this part transfer to the child;
(C) the agency shall notify the individual and the parents of the transfer of rights; and
(D) all rights accorded to parents under this part transfer to children who are incarcerated in an adult or
juvenile Federal, State, or local correctional institution.
(2) SPECIAL RULE- If, under State law, a child with a disability who has reached the age of majority
under State law, who has not been determined to be incompetent, but who is determined not to have the
ability to provide informed consent with respect to the educational program of the child, the State shall
establish procedures for appointing the parent of the child, or if the parent is not available, another
appropriate individual, to represent the educational interests of the child throughout the period of
eligibility of the child under this part.
(n) ELECTRONIC MAIL- A parent of a child with a disability may elect to receive notices required under this
section by an electronic mail (e-mail) communication, if the agency makes such option available.
(o) SEPARATE COMPLAINT- Nothing in this section shall be construed to preclude a parent from filing a
separate due process complaint on an issue separate from a due process complaint already filed.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
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SEC. 616. MONITORING, TECHNICAL ASSISTANCE, AND ENFORCEMENT.
(a) FEDERAL AND STATE MONITORING-
(1) IN GENERAL- The Secretary shall--
(A) monitor implementation of this part through--
(i) oversight of the exercise of general supervision by the States, as required in section 612(a)(11);
and
(ii) the State performance plans, described in subsection (b);
(B) enforce this part in accordance with subsection (e); and
(C) require States to--
(i) monitor implementation of this part by local educational agencies; and
(ii) enforce this part in accordance with paragraph (3) and subsection (e).
(2) FOCUSED MONITORING- The primary focus of Federal and State monitoring activities described in
paragraph (1) shall be on--
(A) improving educational results and functional outcomes for all children with disabilities; and
(B) ensuring that States meet the program requirements under this part, with a particular emphasis on
those requirements that are most closely related to improving educational results for children with
disabilities.
(3) MONITORING PRIORITIES- The Secretary shall monitor the States, and shall require each State to
monitor the local educational agencies located in the State (except the State exercise of general
supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using
such qualitative indicators as are needed to adequately measure performance in the following priority
areas:
(A) Provision of a free appropriate public education in the least restrictive environment.
(B) State exercise of general supervisory authority, including child find, effective monitoring, the use
of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services as
defined in sections 602(34) and 637(a)(9).
(C) Disproportionate representation of racial and ethnic groups in special education and related
services, to the extent the representation is the result of inappropriate identification.
(4) PERMISSIVE AREAS OF REVIEW- The Secretary shall consider other relevant information and data,
including data provided by States under section 618.
(b) STATE PERFORMANCE PLANS-
(1) PLAN-
(A) IN GENERAL- Not later than 1 year after the date of enactment of the Individuals with
Disabilities Education Improvement Act of 2004, each State shall have in place a performance plan
that evaluates that State's efforts to implement the requirements and purposes of this part and
describes how the State will improve such implementation.
(B) SUBMISSION FOR APPROVAL- Each State shall submit the State's performance plan to the
Secretary for approval in accordance with the approval process described in subsection (c).
(C) REVIEW- Each State shall review its State performance plan at least once every 6 years and
submit any amendments to the Secretary.
(2) TARGETS-
(A) IN GENERAL- As a part of the State performance plan described under paragraph (1), each State
shall establish measurable and rigorous targets for the indicators established under the priority areas
described in subsection (a)(3).
(B) DATA COLLECTION-
(i) IN GENERAL- Each State shall collect valid and reliable information as needed to report
annually to the Secretary on the priority areas described in subsection (a)(3).
(ii) RULE OF CONSTRUCTION- Nothing in this title shall be construed to authorize the
development of a nationwide database of personally identifiable information on individuals
involved in studies or other collections of data under this part.
(C) PUBLIC REPORTING AND PRIVACY-
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(i) IN GENERAL- The State shall use the targets established in the plan and priority areas
described in subsection (a)(3) to analyze the performance of each local educational agency in
the State in implementing this part.
(ii) REPORT-
(I) PUBLIC REPORT- The State shall report annually to the public on the performance of
each local educational agency located in the State on the targets in the State's
performance plan. The State shall make the State's performance plan available through
public means, including by posting on the website of the State educational agency,
distribution to the media, and distribution through public agencies.
(II) STATE PERFORMANCE REPORT- The State shall report annually to the Secretary on
the performance of the State under the State's performance plan.
(iii) PRIVACY- The State shall not report to the public or the Secretary any information on
performance that would result in the disclosure of personally identifiable information about
individual children or where the available data is insufficient to yield statistically reliable
information.
(c) APPROVAL PROCESS-
(1) DEEMED APPROVAL- The Secretary shall review (including the specific provisions described in
subsection (b)) each performance plan submitted by a State pursuant to subsection (b)(1)(B) and the plan
shall be deemed to be approved by the Secretary unless the Secretary makes a written determination,
prior to the expiration of the 120-day period beginning on the date on which the Secretary received the
plan, that the plan does not meet the requirements of this section, including the specific provisions
described in subsection (b).
(2) DISAPPROVAL- The Secretary shall not finally disapprove a performance plan, except after giving the
State notice and an opportunity for a hearing.
(3) NOTIFICATION- If the Secretary finds that the plan does not meet the requirements, in whole or in
part, of this section, the Secretary shall--
(A) give the State notice and an opportunity for a hearing; and
(B) notify the State of the finding, and in such notification shall--
(i) cite the specific provisions in the plan that do not meet the requirements; and
(ii) request additional information, only as to the provisions not meeting the requirements, needed
for the plan to meet the requirements of this section.
(4) RESPONSE- If the State responds to the Secretary's notification described in paragraph (3)(B) during
the 30-day period beginning on the date on which the State received the notification, and resubmits the
plan with the requested information described in paragraph (3)(B)(ii), the Secretary shall approve or
disapprove such plan prior to the later of--
(A) the expiration of the 30-day period beginning on the date on which the plan is resubmitted; or
(B) the expiration of the 120-day period described in paragraph (1).
(5) FAILURE TO RESPOND- If the State does not respond to the Secretary's notification described in
paragraph (3)(B) during the 30-day period beginning on the date on which the State received the
notification, such plan shall be deemed to be disapproved.
(d) SECRETARY'S REVIEW AND DETERMINATION-
(1) REVIEW- The Secretary shall annually review the State performance report submitted pursuant to
subsection (b)(2)(C)(ii)(II) in accordance with this section.
(2) DETERMINATION-
(A) IN GENERAL- Based on the information provided by the State in the State performance report,
information obtained through monitoring visits, and any other public information made available, the
Secretary shall determine if the State--
(i) meets the requirements and purposes of this part;
(ii) needs assistance in implementing the requirements of this part;
(iii) needs intervention in implementing the requirements of this part; or
(iv) needs substantial intervention in implementing the requirements of this part.
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(B) NOTICE AND OPPORTUNITY FOR A HEARING- For determinations made under clause (iii)
or (iv) of subparagraph (A), the Secretary shall provide reasonable notice and an opportunity for a
hearing on such determination.
(e) ENFORCEMENT-
(1) NEEDS ASSISTANCE- If the Secretary determines, for 2 consecutive years, that a State needs
assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this part, the Secretary
shall take 1 or more of the following actions:
(A) Advise the State of available sources of technical assistance that may help the State address the
areas in which the State needs assistance, which may include assistance from the Office of Special
Education Programs, other offices of the Department of Education, other Federal agencies, technical
assistance providers approved by the Secretary, and other federally funded nonprofit agencies, and
require the State to work with appropriate entities. Such technical assistance may include--
(i) the provision of advice by experts to address the areas in which the State needs assistance,
including explicit plans for addressing the area for concern within a specified period of time;
(ii) assistance in identifying and implementing professional development, instructional strategies,
and methods of instruction that are based on scientifically based research;
(iii) designating and using distinguished superintendents, principals, special education
administrators, special education teachers, and other teachers to provide advice, technical
assistance, and support; and
(iv) devising additional approaches to providing technical assistance, such as collaborating with
institutions of higher education, educational service agencies, national centers of technical
assistance supported under part D, and private providers of scientifically based technical
assistance.
(B) Direct the use of State-level funds under section 611(e) on the area or areas in which the State
needs assistance.
(C) Identify the State as a high-risk grantee and impose special conditions on the State's grant under
this part.
(2) NEEDS INTERVENTION- If the Secretary determines, for 3 or more consecutive years, that a State
needs intervention under subsection (d)(2)(A)(iii) in implementing the requirements of this part, the
following shall apply:
(A) The Secretary may take any of the actions described in paragraph (1).
(B) The Secretary shall take 1 or more of the following actions:
(i) Require the State to prepare a corrective action plan or improvement plan if the Secretary
determines that the State should be able to correct the problem within 1 year.
(ii) Require the State to enter into a compliance agreement under section 457 of the General
Education Provisions Act, if the Secretary has reason to believe that the State cannot correct the
problem within 1 year.
(iii) For each year of the determination, withhold not less than 20 percent and not more than 50
percent of the State's funds under section 611(e), until the Secretary determines the State has
sufficiently addressed the areas in which the State needs intervention.
(iv) Seek to recover funds under section 452 of the General Education Provisions Act.
(v) Withhold, in whole or in part, any further payments to the State under this part pursuant to
paragraph (5).
(vi) Refer the matter for appropriate enforcement action, which may include referral to the
Department of Justice.
(3) NEEDS SUBSTANTIAL INTERVENTION- Notwithstanding paragraph (1) or (2), at any time that the
Secretary determines that a State needs substantial intervention in implementing the requirements of this
part or that there is a substantial failure to comply with any condition of a State educational agency's or
local educational agency's eligibility under this part, the Secretary shall take 1 or more of the following
actions:
(A) Recover funds under section 452 of the General Education Provisions Act.
(B) Withhold, in whole or in part, any further payments to the State under this part.
(C) Refer the case to the Office of the Inspector General at the Department of Education.
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(D) Refer the matter for appropriate enforcement action, which may include referral to the Department
of Justice.
(4) OPPORTUNITY FOR HEARING-
(A) WITHHOLDING FUNDS- Prior to withholding any funds under this section, the Secretary shall
provide reasonable notice and an opportunity for a hearing to the State educational agency involved.
(B) SUSPENSION- Pending the outcome of any hearing to withhold payments under subsection (b),
the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate
funds under this part, or both, after such recipient has been given reasonable notice and an
opportunity to show cause why future payments or authority to obligate funds under this part should
not be suspended.
(5) REPORT TO CONGRESS- The Secretary shall report to the Committee on Education and the
Workforce of the House of Representatives and the Committee on Health, Education, Labor, and
Pensions of the Senate within 30 days of taking enforcement action pursuant to paragraph (1), (2), or (3),
on the specific action taken and the reasons why enforcement action was taken.
(6) NATURE OF WITHHOLDING-
(A) LIMITATION- If the Secretary withholds further payments pursuant to paragraph (2) or (3), the
Secretary may determine--
(i) that such withholding will be limited to programs or projects, or portions of programs or
projects, that affected the Secretary's determination under subsection (d)(2); or
(ii) that the State educational agency shall not make further payments under this part to specified
State agencies or local educational agencies that caused or were involved in the Secretary's
determination under subsection (d)(2).
(B) WITHHOLDING UNTIL RECTIFIED- Until the Secretary is satisfied that the condition that
caused the initial withholding has been substantially rectified--
(i) payments to the State under this part shall be withheld in whole or in part; and
(ii) payments by the State educational agency under this part shall be limited to State agencies and
local educational agencies whose actions did not cause or were not involved in the Secretary's
determination under subsection (d)(2), as the case may be.
(7) PUBLIC ATTENTION- Any State that has received notice under subsection (d)(2) shall, by means of a
public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this
subsection to the attention of the public within the State.
(8) JUDICIAL REVIEW-
(A) IN GENERAL- If any State is dissatisfied with the Secretary's action with respect to the eligibility
of the State under section 612, such State may, not later than 60 days after notice of such action, file
with the United States court of appeals for the circuit in which such State is located a petition for
review of that action. A copy of the petition shall be transmitted by the clerk of the court to the
Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which
the Secretary's action was based, as provided in section 2112 of title 28, United States Code.
(B) JURISDICTION; REVIEW BY UNITED STATES SUPREME COURT- Upon the filing of such
petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in
whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the
United States upon certiorari or certification as provided in section 1254 of title 28, United States
Code.
(C) STANDARD OF REVIEW- The findings of fact by the Secretary, if supported by substantial
evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the
Secretary to take further evidence, and the Secretary may thereupon make new or modified findings
of fact and may modify the Secretary's previous action, and shall file in the court the record of the
further proceedings. Such new or modified findings of fact shall be conclusive if supported by
substantial evidence.
(f) STATE ENFORCEMENT- If a State educational agency determines that a local educational agency is not
meeting the requirements of this part, including the targets in the State's performance plan, the State educational
agency shall prohibit the local educational agency from reducing the local educational agency's maintenance of
effort under section 613(a)(2)(C) for any fiscal year.
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(g) RULE OF CONSTRUCTION- Nothing in this section shall be construed to restrict the Secretary from
utilizing any authority under the General Education Provisions Act to monitor and enforce the requirements of
this title.
(h) DIVIDED STATE AGENCY RESPONSIBILITY- For purposes of this section, where responsibility for
ensuring that the requirements of this part are met with respect to children with disabilities who are convicted as
adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State
educational agency pursuant to section 612(a)(11)(C), the Secretary, in instances where the Secretary finds that
the failure to comply substantially with the provisions of this part are related to a failure by the public agency,
shall take appropriate corrective action to ensure compliance with this part, except that--
(1) any reduction or withholding of payments to the State shall be proportionate to the total funds allotted
under section 611 to the State as the number of eligible children with disabilities in adult prisons under
the supervision of the other public agency is proportionate to the number of eligible individuals with
disabilities in the State under the supervision of the State educational agency; and
(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the
failure to comply with this part.
(i) DATA CAPACITY AND TECHNICAL ASSISTANCE REVIEW- The Secretary shall--
(1) review the data collection and analysis capacity of States to ensure that data and information determined
necessary for implementation of this section is collected, analyzed, and accurately reported to the
Secretary; and
(2) provide technical assistance (from funds reserved under section 611(c)), where needed, to improve the
capacity of States to meet the data collection requirements.
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 617. ADMINISTRATION.
(a) RESPONSIBILITIES OF SECRETARY- The Secretary shall--
(1) cooperate with, and (directly or by grant or contract) furnish technical assistance necessary to, a State in
matters relating to--
(A) the education of children with disabilities; and
(B) carrying out this part; and
(2) provide short-term training programs and institutes.
(b) PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL- Nothing in this title
shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control
a State, local educational agency, or school's specific instructional content, academic achievement standards and
assessments, curriculum, or program of instruction.
(c) CONFIDENTIALITY- The Secretary shall take appropriate action, in accordance with section 444 of the
General Education Provisions Act, to ensure the protection of the confidentiality of any personally identifiable
data, information, and records collected or maintained by the Secretary and by State educational agencies and
local educational agencies pursuant to this part.
(d) PERSONNEL- The Secretary is authorized to hire qualified personnel necessary to carry out the Secretary's
duties under subsection (a), under section 618, and under subpart 4 of part D, without regard to the provisions of
title 5, United States Code, relating to appointments in the competitive service and without regard to chapter 51
and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates, except that
no more than 20 such personnel shall be employed at any time.
(e) MODEL FORMS- Not later than the date that the Secretary publishes final regulations under this title, to
implement amendments made by the Individuals with Disabilities Education Improvement Act of 2004, the
Secretary shall publish and disseminate widely to States, local educational agencies, and parent and community
training and information centers--
(1) a model IEP form;
(2) a model individualized family service plan (IFSP) form;
(3) a model form of the notice of procedural safeguards described in section 615(d); and
(4) a model form of the prior written notice described in subsections (b)(3) and (c)(1) of section 615 that is
consistent with the requirements of this part and is sufficient to meet such requirements.
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[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 618. PROGRAM INFORMATION.
(a) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior, shall
provide data each year to the Secretary of Education and the public on the following:
(1)(A) The number and percentage of children with disabilities, by race, ethnicity, limited English
proficiency status, gender, and disability category, who are in each of the following separate categories:
(i) Receiving a free appropriate public education.
(ii) Participating in regular education.
(iii) In separate classes, separate schools or facilities, or public or private residential facilities.
(iv) For each year of age from age 14 through 21, stopped receiving special education and related
services because of program completion (including graduation with a regular secondary school
diploma), or other reasons, and the reasons why those children stopped receiving special education
and related services.
(v)(I) Removed to an interim alternative educational setting under section 615(k)(1).
(II) The acts or items precipitating those removals.
(III) The number of children with disabilities who are subject to long-term suspensions or
expulsions.
(B) The number and percentage of children with disabilities, by race, gender, and ethnicity, who are
receiving early intervention services.
(C) The number and percentage of children with disabilities, by race, gender, and ethnicity, who, from birth
through age 2, stopped receiving early intervention services because of program completion or for other
reasons.
(D) The incidence and duration of disciplinary actions by race, ethnicity, limited English proficiency status,
gender, and disability category, of children with disabilities, including suspensions of 1 day or more.
(E) The number and percentage of children with disabilities who are removed to alternative educational
settings or expelled as compared to children without disabilities who are removed to alternative
educational settings or expelled.
(F) The number of due process complaints filed under section 615 and the number of hearings conducted.
(G) The number of hearings requested under section 615(k) and the number of changes in placements
ordered as a result of those hearings.
(H) The number of mediations held and the number of settlement agreements reached through such
mediations.
(2) The number and percentage of infants and toddlers, by race, and ethnicity, who are at risk of having
substantial developmental delays (as defined in section 632), and who are receiving early intervention
services under part C.
(3) Any other information that may be required by the Secretary.
(b) DATA REPORTING-
(1) PROTECTION OF IDENTIFIABLE DATA- The data described in subsection (a) shall be publicly
reported by each State in a manner that does not result in the disclosure of data identifiable to individual
children.
(2) SAMPLING- The Secretary may permit States and the Secretary of the Interior to obtain the data
described in subsection (a) through sampling.
(c) TECHNICAL ASSISTANCE- The Secretary may provide technical assistance to States to ensure
compliance with the data collection and reporting requirements under this title.
(d) DISPROPORTIONALITY-
(1) IN GENERAL- Each State that receives assistance under this part, and the Secretary of the Interior,
shall provide for the collection and examination of data to determine if significant disproportionality
based on race and ethnicity is occurring in the State and the local educational agencies of the State with
respect to--
(A) the identification of children as children with disabilities, including the identification of children as
children with disabilities in accordance with a particular impairment described in section 602(3);
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(B) the placement in particular educational settings of such children; and
(C) the incidence, duration, and type of disciplinary actions, including suspensions and expulsions.
(2) REVIEW AND REVISION OF POLICIES, PRACTICES, AND PROCEDURES- In the case of a
determination of significant disproportionality with respect to the identification of children as children
with disabilities, or the placement in particular educational settings of such children, in accordance with
paragraph (1), the State or the Secretary of the Interior, as the case may be, shall--
(A) provide for the review and, if appropriate, revision of the policies, procedures, and practices used
in such identification or placement to ensure that such policies, procedures, and practices comply
with the requirements of this title;
(B) require any local educational agency identified under paragraph (1) to reserve the maximum
amount of funds under section 613(f) to provide comprehensive coordinated early intervening
services to serve children in the local educational agency, particularly children in those groups that
were significantly overidentified under paragraph (1); and
(C) require the local educational agency to publicly report on the revision of policies, practices, and
procedures described under subparagraph (A).
[ [ [ [ [ [ [ [ [ [ [ [ [ [ [ [
SEC. 619. PRESCHOOL GRANTS.
(a) IN GENERAL- The Secretary shall provide grants under this section to assist States to provide special
education and related services, in accordance with this part--
(1) to children with disabilities aged 3 through 5, inclusive; and
(2) at the State's discretion, to 2-year-old children with disabilities who will turn 3 during the school year.
(b) ELIGIBILITY- A State shall be eligible for a grant under this section if such State--
(1) is eligible under section 612 to receive a grant under this part; and
(2) makes a free appropriate public education available to all children with disabilities, aged 3 through 5,
residing in the State.
(c) ALLOCATIONS TO STATES-
(1) IN GENERAL- The Secretary shall allocate the amount made available to carry out this section for a
fiscal year among the States in accordance with paragraph (2) or (3), as the case may be.
(2) INCREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) for a
fiscal year is equal to or greater than the amount allocated to the States under this section for the
preceding fiscal year, those allocations shall be calculated as follows:
(A) ALLOCATION-
(i) IN GENERAL- Except as provided in subparagraph (B), the Secretary shall--
(I) allocate to each State the amount the State received under this section for fiscal year 1997;
(II) allocate 85 percent of any remaining funds to States on the basis of the States' relative
populations of children aged 3 through 5; and
(III) allocate 15 percent of those remaining funds to States on the basis of the States' relative
populations of all children aged 3 through 5 who are living in poverty.
(ii) DATA- For the purpose of making grants under this paragraph, the Secretary shall use the
most recent population data, including data on children living in poverty, that are available and
satisfactory to the Secretary.
(B) LIMITATIONS- Notwithstanding subparagraph (A), allocations under this paragraph shall be
subject to the following:
(i) PRECEDING YEARS- No State's allocation shall be less than its allocation under this section
for the preceding fiscal year.
(ii) MINIMUM- No State's allocation shall be less than the greatest of--
(I) the sum of--
(aa) the amount the State received under this section for fiscal year 1997; and
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(bb) 1/3 of 1 percent of the amount by which the amount appropriated under subsection (j) for the fiscal year
exceeds the amount appropriated for this section for fiscal year 1997;
(II) the sum of--
(aa) the amount the State received under this section for the preceding fiscal year; and
(bb) that amount multiplied by the percentage by which the increase in the funds appropriated under this section
from the preceding fiscal year exceeds 1.5 percent; or
(III) the sum of--
(aa) the amount the State received under this section for the preceding fiscal year; and
(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated under this section
from the preceding fiscal year.
(iii) MAXIMUM- Notwithstanding clause (ii), no State's allocation under this paragraph shall
exceed the sum of--
(I) the amount the State received under this section for the preceding fiscal year; and
(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the
amount appropriated under this section from the preceding fiscal year.
(C) RATABLE REDUCTIONS- If the amount available for allocations under this paragraph is
insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to
subparagraph (B)(i).
(3) DECREASE IN FUNDS- If the amount available for allocations to States under paragraph (1) for a
fiscal year is less than the amount allocated to the States under this section for the preceding fiscal year,
those allocations shall be calculated as follows:
(A) ALLOCATIONS- If the amount available for allocations is greater than the amount allocated to
the States for fiscal year 1997, each State shall be allocated the sum of--
(i) the amount the State received under this section for fiscal year 1997; and
(ii) an amount that bears the same relation to any remaining funds as the increase the State
received under this section for the preceding fiscal year over fiscal year 1997 bears to the total
of all such increases for all States.
(B) RATABLE REDUCTIONS- If the amount available for allocations is equal to or less than the
amount allocated to the States for fiscal year 1997, each State shall be allocated the amount the State
received for fiscal year 1997, ratably reduced, if necessary.
(d) RESERVATION FOR STATE ACTIVITIES-
(1) IN GENERAL- Each State may reserve not more than the amount described in paragraph (2) for
administration and other State-level activities in accordance with subsections (e) and (f).
(2) AMOUNT DESCRIBED- For each fiscal year, the Secretary shall determine and report to the State
educational agency an amount that is 25 percent of the amount the State received under this section for
fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of--
(A) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this
section; or
(B) the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All
Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor.
(e) STATE ADMINISTRATION-
(1) IN GENERAL- For the purpose of administering this section (including the coordination of activities
under this part with, and providing technical assistance to, other programs that provide services to
children with disabilities) a State may use not more than 20 percent of the maximum amount the State
may reserve under subsection (d) for any fiscal year.
(2) ADMINISTRATION OF PART C- Funds described in paragraph (1) may also be used for the
administration of part C.
(f) OTHER STATE-LEVEL ACTIVITIES- Each State shall use any funds the State reserves under subsection
(d) and does not use for administration under subsection (e)--
(1) for support services (including establishing and implementing the mediation process required by section
615(e)), which may benefit children with disabilities younger than 3 or older than 5 as long as those
services also benefit children with disabilities aged 3 through 5;
(2) for direct services for children eligible for services under this section;
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(3) for activities at the State and local levels to meet the performance goals established by the State under
section 612(a)(15);
(4) to supplement other funds used to develop and implement a statewide coordinated services system
designed to improve results for children and families, including children with disabilities and their
families, but not more than 1 percent of the amount received by the State under this section for a fiscal
year;
(5) to provide early intervention services (which shall include an educational component that promotes
school readiness and incorporates preliteracy, language, and numeracy skills) in accordance with part C
to children with disabilities who are eligible for services under this section and who previously received
services under part C until such children enter, or are eligible under State law to enter, kindergarten; or
(6) at the State's discretion, to continue service coordination or case management for families who receive
services under part C.
(g) SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES-
(1) SUBGRANTS REQUIRED- Each State that receives a grant under this section for any fiscal year shall
distribute all of the grant funds that the State does not reserve under subsection (d) to local educational
agencies in the State that have established their eligibility under section 613, as follows:
(A) BASE PAYMENTS- The State shall first award each local educational agency described in
paragraph (1) the amount that agency would have received under this section for fiscal year 1997 if
the State had distributed 75 percent of its grant for that year under section 619(c)(3), as such section
was then in effect.
(B) ALLOCATION OF REMAINING FUNDS- After making allocations under subparagraph (A), the
State shall--
(i) allocate 85 percent of any remaining funds to those local educational agencies on the basis of
the relative numbers of children enrolled in public and private elementary schools and
secondary schools within the local educational agency's jurisdiction; and
(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance
with their relative numbers of children living in poverty, as determined by the State educational
agency.
(2) REALLOCATION OF FUNDS- If a State educational agency determines that a local educational
agency is adequately providing a free appropriate public education to all children with disabilities aged 3
through 5 residing in the area served by the local educational agency with State and local funds, the State
educational agency may reallocate any portion of the funds under this section that are not needed by that
local educational agency to provide a free appropriate public education to other local educational
agencies in the State that are not adequately providing special education and related services to all
children with disabilities aged 3 through 5 residing in the areas the other local educational agencies serve.
(h) PART C INAPPLICABLE- Part C does not apply to any child with a disability receiving a free appropriate
public education, in accordance with this part, with funds received under this section.
(i) STATE DEFINED- In this section, the term `State' means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico.
(j) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to carry out this
section such sums as may be necessary.
Monday,
August 14, 2006
Part II
Department of
Education
34 CFR Parts 300 and 301
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities;
Final Rule
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Federal Register
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DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 301
RIN 1820–AB57
Assistance to States for the Education
of Children With Disabilities and
Preschool Grants for Children With
Disabilities
AGENCY:
Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION:
Final regulations.
SUMMARY:
The Secretary issues final
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program. These regulations are needed
to implement changes made to the
Individuals with Disabilities Education
Act, as amended by the Individuals with
Disabilities Education Improvement Act
of 2004 (Act or IDEA).
DATES:
These regulations take effect on
October 13, 2006.
FOR FURTHER INFORMATION CONTACT:
Alexa Posny, U.S. Department of
Education, Potomac Center Plaza, 550
12th Street, SW., Washington, DC
20202–2641. Telephone: (202) 245–
7459, ext. 3.
If you use a telecommunications
device for the deaf (TDD), you may call
the Federal Relay System (FRS) at 1–
800–877–8339.
Individuals with disabilities may
obtain this document in an alternate
format (e.g., Braille, large print,
audiotape, or computer diskette) on
request to the contact person listed
under
FOR FURTHER INFORMATION
CONTACT.
SUPPLEMENTARY INFORMATION:
These
regulations implement changes in the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program and the Preschool
Grants for Children with Disabilities
Program necessitated by the
reauthorization of the IDEA. With the
issuance of these final regulations, part
301 has been removed and the
regulations implementing the Preschool
Grants for Children with Disabilities
Program are included under subpart H
of these final regulations.
On June 21, 2005, the Secretary
published a notice of proposed
rulemaking in the
Federal Register
(70
FR 35782) (NPRM) to amend the
regulations governing the Assistance to
States for Education of Children with
Disabilities Program, the Preschool
Grants for Children with Disabilities
Program, and Service Obligations under
Special Education Personnel
Development to Improve Services and
Results for Children with Disabilities. In
the preamble to the NPRM, the
Secretary discussed, on pages 35783
through 35819, the changes proposed to
the regulations for these programs;
specifically, the amendments to 34 CFR
part 300, the removal of 34 CFR part 301
and relocation of those provisions to
subpart H of 34 CFR part 300, and the
amendments to 34 CFR part 304.
Final regulations for 34 CFR Part
304—Special Education-Personnel
Development to Improve Services and
Results for Children with Disabilities
were published in the
Federal Register
(71 FR 32396) on June 5, 2006, and
became effective July 5, 2006.
Major Changes in the Regulations
The following is a summary of the
major substantive changes in these final
regulations from the regulations
proposed in the NPRM (the rationale for
each of these changes is discussed in the
Analysis of Comments and Changes
section of this preamble):
Subpart A—General
Definitions
•
The definition of
child with a
disability
in § 300.8 has been revised as
follows:
(1) Section 300.8(b) (Children aged
three through nine experiencing
developmental delays) has been
changed to clarify that the use of the
term ‘‘developmental delay’’ is subject
to the conditions described in
§ 300.111(b).
(2) The definition of
other health
impairment
in § 300.8(c)(9)(i) has been
changed to add ‘‘Tourette Syndrome’’ to
the list of chronic or acute health
problems.
•
The definition of
excess costs
in
§ 300.16 has been revised to clarify that
the computation of excess costs may not
include capital outlay and debt service.
In addition, a new ‘‘Appendix A to Part
300—Excess Cost Calculation’’ has been
added to provide a description (and an
example) of how to calculate excess
costs under the Act and these
regulations.
•
The definition of
highly qualified
special education teacher
in § 300.18
has been revised, as follows:
(1) Section 300.18(b), regarding
requirements for highly qualified
special education teachers in general,
has been modified to clarify that, when
used with respect to any special
education teacher teaching in a charter
school,
highly qualified
means that the
teacher meets the certification or
licensing requirements, if any, set forth
in the State’s public charter school law.
(2) A new § 300.18(e), regarding
separate ‘‘high objective uniform State
standards of evaluation’’ (HOUSSE), has
been added to provide that a State may
develop a separate HOUSSE for special
education teachers, provided that any
adaptations of the State’s HOUSSE
would not establish a lower standard for
the content knowledge requirements for
special education teachers and meets all
the requirements for a HOUSSE for
regular education teachers. This
provision also clarifies that a State may
develop a separate HOUSSE for special
education teachers, which may include
single HOUSSE evaluations that cover
multiple subjects.
(3) Section 300.18(g) (proposed
§ 300.18(f)) (‘‘Applicability of definition
to ESEA requirements; and clarification
of new special education teacher’’) has
been revised as follows: (1) The heading
has been revised, and (2) the language
changed to clarify when a special
education teacher is considered ‘‘new’’
for some purposes.
(4) Section 300.18(h) (proposed
§ 300.18(g)) has been modified to clarify
that the highly qualified special
education teacher requirements also do
not apply to private school teachers
hired or contracted by LEAs to provide
equitable services to parentally-placed
private school children with disabilities
under § 300.138.
•
The definition of
Indian and Indian
tribe
in § 300.21 has been changed to
clarify that nothing in the definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
tribe that is not listed in the
Federal
Register
list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
•
The definition of
parent
in § 300.30
has been revised to substitute
‘‘biological’’ for ‘‘natural’’ each time it
appears in the definition, and to add
language clarifying that to be considered
a parent under this definition a
‘‘guardian’’ must be a person generally
authorized to act as the child’s parent,
or authorized to make educational
decisions for the child.
•
The definition of
related services
in
§ 300.34 has been revised as follows:
(1) Section 300.34(a) (General) has
been modified to (A) add the statutory
term ‘‘early identification and
assessment of disabilities in children,’’
which was inadvertently omitted from
the NPRM, (B) combine ‘‘school health
services’’ and ‘‘school nurse services,’’
and (C) remove the clause relating to a
free appropriate public education under
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‘‘school nurse services’’ because it
duplicates the clause in § 300.34(c)(13).
(2) Section 300.34(b) has been
changed to (A) expand the title to read
‘‘Exception; services that apply to
children with surgically implanted
devices, including cochlear implants,’’
and (B) clarify, in new paragraph (b)(1),
that related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (
e.g.
, mapping),
maintenance of that device, or the
replacement of that device.
(3) A new § 300.34(b)(2) has been
added to make clear that nothing in
paragraph (b)(1) of § 300.34 (A) limits
the right of a child with a surgically
implanted device (
e.g.
, a cochlear
implant) to receive related services, as
listed in § 300.34(a), that are determined
by the IEP Team to be necessary for the
child to receive FAPE; (B) limits the
responsibility of a public agency to
appropriately monitor and maintain
medical devices that are needed to
maintain the health and safety of the
child, including breathing, nutrition, or
operation of other bodily functions,
while the child is transported to and
from school or is at school; or (C)
prevents the routine checking of an
external component of a surgically-
implanted device to make sure it is
functioning properly, as required in
§ 300.113(b).
(4) The definition of
interpreting
services
in § 300.34(c)(4) has been
changed to clarify that the term includes
(A) transcription services, such as
communication access real-time
translation (CART), C-Print, and
TypeWell for children who are deaf or
hard of hearing, and (B) special
interpreting services for children who
are deaf-blind.
(5) The definition of
orientation and
mobility services
in § 300.34(c)(7) has
been changed to remove the term ‘‘travel
training instruction.’’ The term is under
the definition of
special education
, and
is defined in § 300.39(b)(4).
(6) The definition of
school nurse
services
in 300.34(c)(13) has been
expanded and re-named
school health
services and school nurse services.
The
expanded definition clarifies that
‘‘school nurse services’’ are provided by
a qualified school nurse, and ‘‘school
health services’’ may be provided by a
qualified school nurse or other qualified
person.
•
A definition of
scientifically based
research
has been added in new
§ 300.35 that incorporates by reference
the definition of that term from the
Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. 6301
et seq.
(ESEA).
With the addition of the new
definition in § 300.35, the definitions in
subpart A, beginning with the definition
of
secondary school
, have been
renumbered.
•
The definition of
special education
in § 300.39 (proposed § 300.38) has been
revised to remove the definition of
vocational and technical education
that
was included in proposed
§ 300.38(b)(6).
•
The definition of
supplementary
aids and services
in § 300.42 (proposed
§ 300.41) has been modified to specify
that aids, services, and other supports
are also provided to enable children
with disabilities to participate in
extracurricular and nonacademic
settings.
Subpart B—State Eligibility
FAPE Requirements
•
Section 300.101(c) has been revised
to clarify that a free appropriate public
education (FAPE) must be available to
any individual child with a disability
who needs special education and
related services, even though the child
has not failed or been retained in a
course, and is advancing from grade to
grade.
•
Section 300.102(a)(3), regarding
exceptions to FAPE, has been changed
to clarify that a regular high school
diploma does not include an alternative
degree that is not fully aligned with the
State’s academic standards, such as a
certificate or a general educational
development credential (GED).
•
Section 300.105, regarding assistive
technology and proper functioning of
hearing aids, has been re-titled
‘‘Assistive technology,’’ and proposed
paragraph (b), regarding the proper
functioning of hearing aids, has been
moved to new § 300.113(a).
•
Section 300.107(a), regarding
nonacademic services, has been revised
to specify the steps each public agency
must take, including the provision of
supplementary aids and services
determined appropriate and necessary
by the child’s IEP Team, to provide
nonacademic and extracurricular
services and activities in the manner
necessary to afford children with
disabilities an equal opportunity for
participation in those services and
activities.
•
Proposed § 300.108(a), regarding
physical education services, has been
revised to specify that physical
education must be made available to all
children with disabilities receiving
FAPE, unless the public agency enrolls
children without disabilities and does
not provide physical education to
children without disabilities in the same
grades.
•
A new § 300.113, regarding routine
checking of hearing aids and external
components of surgically implanted
medical devices, has been added, as
follows:
(1) Paragraph (a) of § 300.113 requires
each public agency to ensure that
hearing aids worn in school by children
with hearing impairments, including
deafness, are functioning properly.
(2) A new § 300.113(b)(1) requires
each public agency to ensure that the
external components of surgically
implanted medical devices are
functioning properly. However, new
§ 300.113(b)(2) has been added to make
it clear that, for a child with a surgically
implanted medical device who is
receiving special education and related
services, a public agency is not
responsible for the post-surgical
maintenance, programming, or
replacement of the medical device that
has been surgically implanted (or of an
external component of the surgically
implanted medical device).
Least Restrictive Environment
•
Section 300.116(b)(3) and (c)
regarding placements, has been revised
to remove the qualification ‘‘unless the
parent agrees otherwise’’ from the
requirements that (1) the child’s
placement be as close as possible to the
child’s home, and (2) the child is
educated in the school he or she would
attend if not disabled.
•
Section 300.117 (Nonacademic
settings) has been changed to clarify that
each public agency must ensure that
each child with a disability has the
supplementary aids and services
determined by the child’s
individualized education program (IEP)
Team to be appropriate and necessary
for the child to participate with
nondisabled children in the
extracurricular services and activities to
the maximum extent appropriate to the
needs of that child.
Children With Disabilities Enrolled by
Their Parents in Private Schools
•
Section 300.130 (definition of
parentally-placed private school
children with disabilities
) has been
revised to clarify that the term means
children with disabilities enrolled by
their parents in private, including
religious, schools or facilities, that meet
the definition of
elementary school
in
§ 300.13 or
secondary school
in
§ 300.36.
•
A new § 300.131(f), regarding child
find for out-of-State parentally-placed
private school children with disabilities,
has been added to clarify that each LEA
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in which private (including religious)
elementary schools and secondary
schools are located must include
parentally-placed private school
children who reside in a State other
than the State in which the private
schools that they attend are located.
•
Section 300.133, regarding
expenditures for parentally-placed
private school children with disabilities,
has been revised, as follows:
(1) A new § 300.133(a)(2)(ii), has been
added to clarify that children aged three
through five are considered to be
parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of
elementary school
in
§ 300.13.
(2) A new § 300.133(a)(3) has been
added to specify that, if an LEA has not
expended for equitable services for
parentally-placed private school
children with disabilities all of the
applicable funds described in
§ 300.133(a)(1) and (a)(2) by the end of
the fiscal year for which Congress
appropriated the funds, the LEA must
obligate the remaining funds for special
education and related services
(including direct services) to parentally-
placed private school children with
disabilities during a carry-over period of
one additional year.
•
Section 300.136, regarding
compliance related to parentally-placed
private school children with disabilities,
has been revised to remove the
requirement that private school officials
must submit complaints to the SEA
using the procedures in §§ 300.151
through 300.153.
•
Section 300.138(a), regarding the
requirement that services to parentally-
placed private school children with
disabilities must be provided by
personnel meeting the same standards
as personnel providing services in the
public schools, has been modified to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements in
§ 300.18.
•
Section 300.140, regarding due
process complaints and State
complaints, has been revised to make
the following changes:
(1) Section 300.140(b)(1) (proposed
§ 300.140(a)(2)), regarding child find
complaints, has been changed to clarify
that the procedures in §§ 300.504
through 300.519 apply to complaints
that an LEA has failed to meet the child
find requirements in § 300.131,
including the requirements in
§§ 300.301 through 300.311.
(2) A new paragraph (b)(2) has been
added to provide that any due process
complaint regarding the child find
requirements (as described in
§ 300.140(b)(1)) must be filed with the
LEA in which the private school is
located and a copy of the complaint
must be forwarded to the SEA.
(3) A new § 300.140(c), regarding
State complaints by private school
officials, has been added to clarify that
(A) any complaint that an SEA or LEA
has failed to meet the requirements in
§§ 300.132 through 300.135 and 300.137
through 300.144 must be filed in
accordance with the procedures
described in §§ 300.151 through
300.153, and (B) a complaint filed by a
private school official under
§ 300.136(a) must be filed with the SEA
in accordance with the procedures in
§ 300.136(b).
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Section 300.148 Placement of Children
by Parents if FAPE Is at Issue
•
A new § 300.148(b), regarding
disagreements about FAPE, has been
added (from current § 300.403(b)) to
clarify that disagreements between a
parent and a public agency regarding
the availability of a program appropriate
for a child with a disability, and the
question of financial reimbursement, are
subject to the due process procedures in
§§ 300.504 through 300.520.
State Complaint Procedures
•
Section 300.152(a)(3)(ii) (proposed
paragraph (a)(3)(B)) has been revised to
clarify that each SEA’s complaint
procedures must provide the public
agency with an opportunity to respond
to a complaint filed under § 300.153,
including, at a minimum, an
opportunity for a parent who has filed
a complaint and the public agency to
voluntarily engage in mediation
consistent with § 300.506.
•
Section 300.152(b)(1)(ii), regarding
time extensions for filing a State
complaint, has been revised to clarify
that it would be permissible to extend
the 60-day timeline if the parent (or
individual or organization if mediation
or other alternative means of dispute
resolution is available to the individual
or organization under State procedures)
and the public agency agree to engage in
mediation or to engage in other
alternative means of dispute resolution,
if available in the State.
•
Section 300.152(c), regarding
complaints filed under § 300.152 and
due process hearings under § 300.507
and §§ 300.530 through 300.532, has
been revised to clarify that if a written
complaint is received that is also the
subject of a due process hearing under
§§ 300.507 or 300.530 through 300.532,
or contains multiple issues of which one
or more are part of a due process
hearing, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not part of the due process
hearing must be resolved using the time
limit and procedures described
elsewhere in the State complaint
procedures. A new paragraph (c)(3) also
has been added to require SEAs to
resolve complaints alleging a public
agency’s failure to implement a due
process hearing. This is the same
requirement in current § 300.661(c)(3).
•
Section 300.153(c), regarding the
one year time limit from the date the
alleged violation occurred and the date
the complaint is received in accordance
with § 300.151, has been revised by
removing the exception clause related to
complaints covered under
§ 300.507(a)(2).
Methods of Ensuring Services
•
Section 300.154(d), regarding
children with disabilities who are
covered by public benefits or insurance,
has been revised to clarify that the
public agency must (1) obtain parental
consent each time that access to the
parent’s public benefits or insurance is
sought, and (2) notify parents that
refusal to allow access to their public
benefits or insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents.
Additional Eligibility Requirements
•
Section 300.156(e), regarding
personnel qualifications, has been
revised (1) to add ‘‘or a class of
students,’’ to clarify that a judicial
action on behalf of a class of students
may not be filed for failure of a
particular SEA or LEA employee to be
highly qualified, and (2) to substitute
the word ‘‘employee’’ for ‘‘staff person,’’
to be more precise in the rule of
construction in new § 300.18(f)
(proposed § 300.18(e)).
•
Section 300.160 (participation in
assessments) has been removed, and the
section has been designated as
‘‘Reserved.’’ Participation in
assessments is the subject of a new
notice of proposed rulemaking issued
on December 15, 2005 (70 FR 74624) to
amend the regulations governing
programs under Title I of the ESEA and
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46543
Part B of the IDEA regarding additional
flexibility for States to measure the
achievement of children with
disabilities based on modified
achievement standards.
Other Provisions Required for State
Eligibility
•
Section 300.172, regarding access to
instructional materials, has been
revised: (1) To make clear that States
must adopt the National Instructional
Materials Accessibility Standard
(NIMAS), published as Appendix C to
these final regulations; (2) to establish a
definition of ‘‘timely manner,’’ for
purposes of § 300.172(b)(2) and (b)(3) if
the State is not coordinating with the
National Instructional Materials Access
Center (NIMAC), or § 300.172(b)(3) and
(c)(2) if the State is coordinating with
the NIMAC; (3) to add a new
§ 300.172(b)(4) to require SEAs to
ensure that all public agencies take all
reasonable steps to provide instructional
materials in accessible formats to
children with disabilities who need
those instructional materials at the same
time as other children receive
instructional materials; and (4) to add a
new § 300.172(e)(2) to clarify, that all
definitions in § 300.172(e)(1) apply to
each State and LEA, whether or not the
State or LEA chooses to coordinate with
the NIMAC.
•
A new § 300.177 has been added to
include a provision regarding ‘‘States’
sovereign immunity.’’ That provision,
which has been added to incorporate
the language in section 604 of the Act,
makes clear that a State that accepts
funds under Part B of the Act waives its
immunity under the 11th amendment of
the Constitution of the United States
from suit in Federal court for a violation
of Part B of the Act.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
•
Section 300.300, regarding parental
consent, has been revised, as follows:
(1) Paragraph (a) of § 300.300,
regarding consent for initial evaluation,
has been changed to provide that the
public agency proposing to conduct an
initial evaluation to determine if a child
qualifies as a child with a disability
must, after providing notice consistent
with §§ 300.503 and 300.504, obtain
informed consent, consistent with
§ 300.9, from the parent of the child
before conducting the evaluation. A new
paragraph (a)(1)(iii) has been added to
require a public agency to make
reasonable efforts to obtain the informed
consent from the parent for an initial
evaluation.
(2) Section 300.300(a)(3), regarding a
parent’s failure to provide consent for
initial evaluation, has been changed to
clarify, in a new paragraph (a)(3)(ii), that
the public agency does not violate its
obligation under § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue the evaluation.
(3) Section 300.300(b), regarding
parental consent for services, has been
modified by a new paragraph (b)(2) that
requires a public agency to make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services.
(4) Section 300.300(c)(1), regarding
parental consent for reevaluations, has
been modified to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
consent override procedures in
§ 300.300(a)(3), and the public agency
does not violate its obligation under
§ 300.111 and §§ 300.301 through
300.311 if it declines to pursue the
evaluation or reevaluation.
(5) A new § 300.300(d)(4) has been
added to provide that if a parent of a
child who is home schooled or placed
in a private school by the parent at the
parent’s expense, does not provide
consent for an initial evaluation or a
reevaluation, or the parent fails to
respond to a request to provide consent,
the public agency (A) may not use the
consent override procedures (described
elsewhere in § 300.300), and (B) is not
required to consider the child eligible
for services under the requirements
relating to parentally-placed private
school children with disabilities
(§§ 300.132 through 300.144).
(6) A new § 300.300(d)(5) has been
added to clarify that in order for a
public agency to meet the reasonable
efforts requirement to obtain informed
parental consent for an initial
evaluation, initial services, or a
reevaluation, a public agency must
document its attempts to obtain parental
consent using the procedures in
§ 300.322(d).
Additional Procedures for Evaluating
Children With Specific Learning
Disabilities (SLD)
•
Section 300.307 (Specific learning
disabilities) has been revised, as
follows:
(1) Proposed paragraph (a)(1) of
§ 300.307, which allowed a State to
prohibit the use of a severe discrepancy
between intellectual ability and
achievement for determining if a child
has an SLD, has been removed, and
proposed paragraph (a)(2) of § 300.307
has been redesignated as paragraph
(a)(1).
(2) Section 300.307(a)(2) (proposed
paragraph (a)(3)) has been changed to
clarify that the criteria adopted by the
State must permit the use of a process
based on the child’s response to
scientific, research-based intervention.
•
Section 300.308 (Group members)
has been changed to require the
eligibility group for children suspected
of having SLD to include the child’s
parents and a team of qualified
professionals, which must include the
child’s regular teacher (or if the child
does not have a regular teacher, a
regular classroom teacher qualified to
teach a child of his or her age) or for a
child of less than school age, an
individual qualified by the SEA to teach
a child of his or her age; and at least one
person qualified to conduct individual
diagnostic examinations of children,
such as a school psychologist, speech-
language pathologist, or remedial
reading teacher. These are the same
requirements in current § 300.540.
•
Section 300.309 (Determining the
existence of a specific learning
disability) has been revised, as follows:
(1) Paragraph (a) of § 300.309 has been
changed (A) to clarify that the group
described in 300.306 may determine
that a child has a specific learning
disability if the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards in
one or more of eight areas (e.g., oral
expression, basic reading skill, etc.),
when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards; and (B) to add
‘‘limited English proficiency’’ to the
other five conditions that could account
for the child’s learning problems, and
that the group considers in determining
whether the child has an SLD.
(2) Section 300.309(b) has been
changed to clarify (A) that, in order to
ensure that underachievement in a child
suspected of having an SLD is not due
to lack of appropriate instruction in
reading or math, the group must
consider, as part of the evaluation
described in §§ 300.304 through
300.306, data that demonstrate that
prior to, or as a part of, the referral
process, the child was provided
appropriate instruction in regular
education settings, delivered by
qualified personnel, and (B) to replace
(in paragraph (b)(1)) the term ‘‘high
quality research-based instruction’’ with
‘‘appropriate instruction.’’
(3) Section 300.309(c) has been
changed to provide that the public
agency must promptly request parental
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consent to evaluate a child suspected of
having an SLD who has not made
adequate progress after an appropriate
period of time when provided
appropriate instruction, and whenever a
child is referred for an evaluation.
•
Section 300.310, regarding
Observation, has been revised, as
follows:
(1) Paragraph (a) of proposed
§ 300.310 has been revised (A) to
remove the phrase ‘‘trained in
observation, and (B) to specify that the
public agency must ensure that the
child is observed in the child’s learning
environment.
(2) A new § 300.310(b) has been
added to require the eligibility group to
decide to (A) use information obtained
from an observation in routine
classroom instruction and monitoring of
the child’s performance that was done
before the child was referred for an
evaluation, or (B) have at least one
member of the group described in
§ 300.306(a)(1) conduct an observation
of the child’s academic performance in
the regular classroom after the child has
been referred for an evaluation and
parental consent is obtained.
Paragraph (b) of proposed § 300.310
has been redesignated as new
§ 300.310(c).
•
Section 300.311 (Written report) has
been renamed ‘‘Specific documentation
for the eligibility determination,’’ and
has been revised, as follows:
(1) Section 300.311(a)(5), regarding
whether the child does not achieve
commensurate with the child’s age, has
been modified and expanded to add
whether the child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards
consistent with § 300.309(a)(1), and (A)
the child does not make sufficient
progress to meet age or to meet State-
approved grade-level standards
consistent with § 300.309(a)(2)(i), or (B)
the child exhibits a pattern of strengths
and weaknesses in performance,
achievement, or both, relative to age,
State-approved grade level standards or
intellectual development consistent
with § 300.309(a)(2)(ii).
(2) Proposed § 300.311(a)(6), regarding
whether there are strengths or
weaknesses or both in performance or
achievement or both relative to
intellectual development, has been
removed.
(3) A new § 300.311(a)(6) has been
added to clarify that the documentation
must include a statement of the
determination of the group concerning
the effects of visual, hearing, or motor
disability, mental retardation, emotional
disturbance, cultural factors,
environmental or economic
disadvantage, or limited English
proficiency on the child’s achievement
level.
(4) A new § 300.311(a)(7) has been
added to provide that if the child has
participated in a process that assesses
the child’s response to scientific,
research-based intervention, the
documentation must include the
instructional strategies used and the
student-centered data collected, and
documentation that the child’s parents
were notified about (A) the State’s
policies regarding the amount and
nature of student performance data that
would be collected and the general
education services that would be
provided, (B) strategies for increasing
the child’s rate of learning, and (C) the
parents’ right to request an evaluation.
Individualized Education Programs
•
Section 300.320 (Definition of IEP)
has been revised in paragraph (a)(5) to
replace ‘‘regular education
environment’’ with ‘‘regular class,’’ in
order to be consistent with the language
in the Act.
•
Section 300.321(e), regarding
attendance at IEP Team meetings, has
been revised to clarify that the excusal
of IEP Team members from attending an
IEP Team meeting under certain
circumstances, refers to the IEP Team
members in § 300.320(a)(2) through
(a)(5).
•
Section 300.322, regarding parent
participation, has been revised to: (1)
Include, in § 300.322(d), examples of the
records a public agency must keep of its
attempts to involve the parents in IEP
meetings; (2) add a new § 300.322(e),
which requires the public agency to take
whatever action is necessary to ensure
that the parent understands the
proceedings of the IEP meeting,
including arranging for an interpreter
for parents with deafness or whose
native language is other than English;
and (3) redesignate paragraph (e) as
paragraph (f) accordingly.
•
Section 300.323(d) has been revised
to require public agencies to ensure that
each regular teacher, special education
teacher, related services provider, and
any other service provider who is
responsible for the implementation of a
child’s IEP, is informed of his or her
specific responsibilities related to
implementing the child’s IEP and the
specific accommodations,
modifications, and supports that must
be provided for the child in accordance
with the child’s IEP. These are the same
requirements in current
§ 300.342(b)(3)(i) and (b)(3)(ii).
•
Section 300.323(e), regarding IEPs
for children who transfer public
agencies, has been revised to: (1) Divide
the provision into three separate
paragraphs (§ 300.323(e), (f), and (g)) for
purposes of clarity and improved
readability (e.g., transfers within the
same State, transfers from another State,
and transmittal of records); (2) adopt
‘‘school year’’ in lieu of ‘‘academic
year’’ as the term commonly used by
parents and public agencies; and (3)
adopt other modifiers (e.g., ‘‘new’’ and
‘‘previous’’) to distinguish between
States and public agencies that are
involved in transfers by children with
disabilities.
•
Section 300.324(a)(4), regarding
changes to an IEP after the annual IEP
meeting for a school year, has been
restructured into two paragraphs, and a
new paragraph (a)(4)(ii) has been added
to require the public agency to ensure
that, if changes are made to a child’s IEP
without an IEP meeting, that the child’s
IEP Team is informed of the changes.
•
Section 300.324(b), regarding the
review and revision of IEPs, has been
changed to include a new paragraph
(b)(2), to clarify that, in conducting a
review of a child’s IEP, the IEP Team
must consider the same special factors
it considered when developing the
child’s IEP.
Subpart E—Procedural Safeguards
•
Section 300.502, regarding
independent educational evaluations,
has been revised, as follows:
(1) A new § 300.502(b)(5) has been
added to make clear that a parent is
entitled to only one independent
educational evaluation at public
expense each time the public agency
conducts an evaluation with which the
parent disagrees.
(2) Section 300.502(c) has been
changed to clarify that if a parent
obtains an independent evaluation at
public expense or shares with the public
agency an evaluation obtained at private
expense, the public agency must
consider the evaluation, if it meets
agency criteria, in any decision made
with respect to the provision of FAPE to
the child.
•
Section 300.504 (Procedural
safeguards notice) has been revised, as
follows:
(1) Paragraph (a)(2) of § 300.504 has
been changed to add that a copy of the
procedural safeguards notice must be
given upon receipt of the first due
process complaint under § 300.507 in a
school year, as well as upon receipt of
the first State complaint under § 300.151
through 300.153.
(2) A new § 300.504(a)(3) has been
added to provide that the notice must be
given to the parents of a child with a
disability in accordance with the
discipline procedures in § 300.530(h).
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46545
•
Section 300.506(b), regarding the
requirements for mediation, has been
revised by (1) removing the provision
about the ‘‘confidentiality pledge,’’ in
proposed paragraph (b)(9), because it is
no longer required under the Act, and
(2) changing paragraph (b)(8), regarding
the prohibition against using
discussions that occur in the mediation
process, to clarify that ‘‘civil
proceedings’’ includes any Federal court
or State court of a State receiving
assistance under this part.
•
Section 300.509, regarding model
forms to assist parents and public
agencies in filing due process
complaints and parents and other
parties in filing State complaints, has
been revised to add, with respect to due
process complaints, ‘‘public agencies,’’
and with respect to State complaints,
‘‘other parties,’’ as well as parents, and
to clarify that (1) while each SEA must
develop model forms, the SEA or LEA
may not require the use of the forms,
and (2) parents, public agencies, and
other parties may either use the
appropriate model form, or another form
or other document, so long as the form
or document meets, as appropriate, the
requirements for filing a due process
complaint or a State complaint.
•
Section 300.510 (Resolution
process) has been revised, as follows:
(1) Section 300.510(b)(1), regarding
the resolution period, has been changed
to state that a due process hearing ‘‘may
occur’’ (in lieu of ‘‘must occur’’) by the
end of the resolution period, if the
parties have not resolved the dispute
that formed the basis for the due process
complaint.
(2) A new § 300.510(b)(3) has been
added to provide that, except where the
parties have jointly agreed to waive the
resolution process or to use mediation
(notwithstanding § 300.510(b)(1) and
(2)), the failure of a parent filing a due
process complaint to participate in the
resolution meeting will delay the
timelines for the resolution process and
due process hearing until the meeting is
held.
(3) A new § 300.510(b)(4) has been
added to provide that if an LEA is
unable to obtain the participation of the
parent in the resolution meeting after
reasonable efforts have been made, and
documented using the procedures in
§ 300.322(d), the LEA may, at the
conclusion of the 30-day resolution
period, request that a hearing officer
dismiss the parent’s due process
complaint.
(4) A new paragraph (b)(5) of
§ 300.510 has been added to provide
that, if the LEA fails to hold the
resolution meeting within 15 days of
receiving notice of a parent’s due
process complaint or fails to participate
in the resolution meeting, the parent
may seek the intervention of a hearing
officer to begin the due process hearing
timelines.
(5) A new § 300.510(c) (Adjustments
to the 30-day resolution period) has
been added that specifies exceptions to
the 30-day resolution period (e.g., (A)
both parties agree in writing to waive
the resolution meeting; (B) after either
the mediation or resolution meeting
starts but before the end of the 30-day
period, the parties agree in writing that
no agreement is possible; or (C) if both
parties agree in writing to continue the
mediation at the end of the 30-day
resolution period, but later, the parent
or public agency withdraws from the
mediation process). Subsequent
paragraphs have been renumbered
accordingly.
(6) Paragraph (d)(2) of § 300.510
(proposed paragraph(c)(2)), regarding
the enforceability of a written settlement
agreement in any State court of
competent jurisdiction or in a district
court of the United States, has been
expanded to add the SEA, if the State
has other mechanisms or procedures
that permit parties to seek enforcement
of resolution agreements, pursuant to a
new § 300.537.
•
Section 300.513(a) (Decision of
hearing officer) has been revised by (1)
changing the paragraph title to read
‘‘Decision of hearing officer on the
provision of FAPE,’’ and (2) clarifying
that a hearing officer’s determination of
whether a child received FAPE must be
based on substantive grounds.
•
Section 300.515(a), regarding
timelines and convenience of hearings
and reviews, has been revised to include
a specific reference to the adjusted time
periods described in § 300.510(c).
•
Section 300.516(b), regarding the
90-day time limitation from the date of
the decision of the hearing to file a civil
action, has been revised to provide that
the 90-day period begins from the date
of the decision of the hearing officer or
the decision of the State review official.
•
Section 300.518 (Child’s status
during proceedings) has been revised by
adding a new paragraph (c), which
provides that if a complaint involves an
application for initial services under
this part from a child who is
transitioning from Part C of the Act to
Part B and is no longer eligible for Part
C services because the child has turned
3, the public agency is not required to
provide the Part C services that the
child had been receiving. If the child is
found eligible for special education and
related services under Part B and the
parent consents to the initial provision
of special education and related services
under § 300.300(b), then the public
agency must provide those special
education and related services that are
not in dispute between the parent and
the public agency.
•
Section 300.520(b), regarding a
special rule about the transfer of
parental rights at the age of majority, has
been revised to more clearly state that
a State must establish procedures for
appointing the parent of a child with a
disability, or if the parent is not
available, another appropriate
individual, to represent the educational
interests of the child throughout the
child’s eligibility under Part B of the Act
if, under State law, a child who has
reached the age of majority, but has not
been determined to be incompetent, can
be determined not to have the ability to
provide informed consent with respect
to the child’s educational program.
Discipline Procedures
•
Section 300.530(d)(1)(i), regarding
services, has been revised to be
consistent with section 615(k)(1)(D)(i) of
the Act, by adding a reference to the
FAPE requirements in § 300.101(a).
•
Section 300.530(d)(4), regarding the
removal of a child with a disability from
the child’s current placement for 10
school days in the same school year, has
been revised to remove the reference to
school personnel, in consultation with
at least one of the child’s teachers,
determining the location in which
services will be provided.
•
Section 300.530(d)(5), regarding
removals that constitute a change of
placement under § 300.536, has been
revised to remove the reference to the
IEP Team determining the location in
which services will be provided.
•
A new § 300.530(e)(3), has been
added to provide that, if the LEA, the
parent, and members of the child’s IEP
Team determine that the child’s
behavior was the direct result of the
LEA’s failure to implement the child’s
IEP, the LEA must take immediate steps
to remedy those deficiencies.
•
Section 300.530(h), regarding
notification, has been changed to
specify that, on the date on which a
decision is made to make a removal that
constitutes a change in the placement of
a child with a disability because of a
violation of a code of student conduct,
the LEA must notify the parents of that
decision, and provide the parents the
procedural safeguards notice described
in § 300.504.
•
Section 300.532 (Appeal) has been
revised, as follows:
(1) Paragraph (a) of § 300.532,
regarding the conditions in which the
parent of a child with a disability or an
LEA may request a hearing, has been
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modified to clarify that the hearing is
requested by filing a complaint pursuant
to §§ 300.507 and 300.508(a) and (b).
(2) Section 300.532(b)(3) has been
changed to more definitively provide
that if the LEA believes that returning
the child to his or her original
placement is substantially likely to
result in injury to the child or others.
(3) Section 300.532(c)(3), regarding an
expedited due process hearing, has been
adjusted to provide that unless the
parents and an LEA agree in writing to
waive a resolution meeting, or agree to
use the mediation process described in
§ 300.506, the resolution meeting must
occur within seven days of receiving
notice of the due process complaint, and
the hearing may proceed within 15 days
of receipt of the due process complaint
unless the matter has been resolved to
satisfaction of both parties.
(4) Proposed § 300.532(c)(4), regarding
the two-day timeframe for disclosing
information to the opposing party prior
to an expedited due process hearing, has
been removed.
•
Section 500.536(a)(2)(ii) (proposed
§ 300.536(b)(2)) has been revised to
remove the requirement that a child’s
behavior must have been a
manifestation of the child’s disability
before determining that a series of
removals constitutes a change in
placement under § 300.536. Paragraph
(a)(2)(ii) has also been amended to
reference the child’s behavior in
‘‘previous’’ incidents that resulted in the
series of removals.
•
A new § 300.536(b) has been added
to clarify that the public agency (subject
to review through the due process and
judicial proceedings) makes the
determination, on a case-by-case basis,
whether a pattern of removals
constitutes a change in placement and
that the determination is subject to
review through due process and judicial
determinations.
•
A new § 300.537 (State enforcement
mechanisms) has been added to clarify
that notwithstanding § 300.506(b)(7) and
§ 300.510(c)(2), which provide for
judicial enforcement of a written
agreement reached as a result of a
mediation or resolution meeting,
nothing in this part would prevent the
SEA from using other mechanisms to
seek enforcement of that agreement,
provided that use of those mechanisms
is not mandatory and does not delay or
deny a party the right to seek
enforcement of the written agreement in
a State court of competent jurisdiction
or in a district court of the United
States.
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
•
Section 300.600 (State monitoring
and enforcement) has been revised, as
follows:
(1) Section 300.600(a) has been
amended to require the State to enforce
Part B of the Act in accordance with
§ 300.604(a)(1) and (a)(3), (b)(2)(i) and
(b)(2)(v), and (c)(2).
(2) A new paragraph (d) has been
added, which provides that the State
must monitor the LEAs located in the
State, using quantifiable indicators in
each of the following priority areas, and
such qualitative indicators as are
needed to adequately measure
performance in those areas, including:
(A) Provision of FAPE in the least
restrictive environment; (B) State
exercise of general supervision,
including child find, effective
monitoring, the use of resolution
meetings, and a system of transition
services as defined in § 300.43 and in 20
U.S.C. 1437(a)(9); and (C)
disproportionate representation of racial
and ethnic groups in special education
and related services, to the extent the
representation is the result of
inappropriate identification.
•
A new § 300.601(b)(2), regarding
State use of targets and reporting, has
been added to specify that, if permitted
by the Secretary, if a State collects data
on an indicator through State
monitoring or sampling, the State must
collect data on the indicator at least
once during the period of the State
performance plan.
•
A new § 300.608(b), regarding State
enforcement, has been added to specify
that States are not restricted from
utilizing any other authority available to
them to monitor and enforce the
requirements of Part B of the Act.
Confidentiality of Information
•
Section 300.622 (Consent) has been
restructured and revised to more
accurately reflect the Department’s
policy regarding when parental consent
is required for disclosures of personally
identifiable information, as follows:
(1) Paragraph (a) of § 300.622 has been
changed to provide that parental
consent must be obtained before
personally identifiable information is
disclosed to parties other than officials
of participating agencies, unless the
information is contained in education
records, and the disclosure is authorized
without parental consent under the
regulations for the Family Educational
Rights and Privacy Act (FERPA, 34 CFR
part 99).
(2) A new § 300.622(b)(1) has been
added to clarify that parental consent is
not required before personally
identifiable information is released to
officials of participating agencies for
purposes of meeting a requirement of
Part B of the Act or these regulations.
(3) A new § 300.622(b)(2) has been
added to provide that parental consent
must be obtained before personally
identifiable information is released to
officials of participating agencies that
provide or pay for transition services.
(4) A new paragraph (b)(3) has been
added to require that, with respect to
parentally-placed private school
children with disabilities, parental
consent must be obtained before any
personally identifiable information is
released between officials in the LEA
where the private school is located and
the LEA of the parent’s residence.
(5) Proposed § 300.622(c), regarding
the requirement to provide policies and
procedures for use in the event that a
parent refuses to consent, has been
removed because it is covered elsewhere
in these regulations.
Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
•
Section 300.701(a)(1)(ii)(A),
regarding the applicable requirements of
Part B of the Act that apply to freely
associated States, has been revised by
removing the five listed requirements
because those requirements did not
include all requirements that apply to
freely associated States. This change
clarifies that freely associated States
must meet the applicable requirements
that apply to States under Part B of the
Act.
•
Section 300.704(c)(3)(i), regarding
the requirement to develop, annually
review, and revise (if necessary) a State
plan for the high cost fund, has been
revised to add a new paragraph (F) that
requires that if the State elects to reserve
funds for supporting innovative and
effective ways of cost sharing, it must
describe in its State plan how these
funds will be used.
•
Section 300.706 (Allocation for
State in which by-pass is implemented
for parentally-placed private school
children with disabilities) has been
removed because it is no longer
applicable. The section has been
redesignated as ‘‘Reserved.’’
Secretary of the Interior
•
Section 300.707 (Use of amounts by
Secretary of the Interior) has been
changed, as follows:
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(1) The definition of
Tribal governing
body of a school
has been replaced with
the definition of
tribal governing body
from 25 U.S.C. 2021(19).
(2) Section 300.707(c), regarding an
additional requirement under ‘‘Use of
amounts by Secretary of the Interior,’’
has been revised to clarify that, with
respect to all other children aged 3 to
21, inclusive, on reservations, the SEA
of the State in which the reservation is
located must ensure that all the
requirements of Part B of the Act are
met.
•
Section 300.713 (Plan for
coordination of services) has been
revised to require (1) in § 300.713(a), the
Secretary of the Interior to develop and
implement a plan for the coordination
of services for all Indian children with
disabilities residing on reservations
served by elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior, and (2) in § 300.713(b), the
plan to provide for the coordination of
services benefiting these children from
whatever source covered by the plan,
including SEAs, and State, local, and
tribal juvenile and adult correctional
facilities.
Analysis of Comments and Changes
Introduction
In response to the invitation in the
NPRM, more than 5,500 parties
submitted comments on the proposed
regulations. An analysis of the
comments and of the changes in the
regulations since publication of the
NPRM immediately follows this
introduction.
The perspectives of parents,
individuals with disabilities, teachers,
related services providers, State and
local officials, members of Congress,
and others were very important in
helping us to identify where changes to
the proposed regulations were
necessary, and in formulating many of
the changes. In light of the comments
received, a number of significant
changes are reflected in these final
regulations.
We discuss substantive issues under
the subpart and section to which they
pertain. References to subparts in this
analysis are to those contained in the
final regulations. The analysis generally
does not address—
(a) Minor changes, including
technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is
not legally authorized to make under
applicable statutory authority; and
(c) Comments that express concerns of
a general nature about the Department
or other matters that are not directly
relevant to these regulations, such as
requests for information about
innovative instructional methods or
matters that are within the purview of
State and local decision-makers.
Subpart A—General
Definitions Used in This Part
Applicability of This Part to State and
Local Agencies (§ 300.2)
Comment:
None.
Discussion:
Section § 300.2(c)(2)
contains an incorrect reference to
§ 300.148(b). The correct reference
should be to § 300.148.
Changes:
We have removed the
reference to § 300.148(b) and replaced it
with a reference to § 300.148.
Assistive Technology Device (§ 300.5)
Comment:
Some commenters opposed
the exclusion of surgically implanted
medical devices in the definition of
assistive technology device
. Another
commenter recommended limiting the
definition of
assistive technology device
to a device that is needed to achieve
educational outcomes, rather than
requiring local educational agencies
(LEAs) to pay for any assistive
technology device that increases,
maintains, or improves any functional
need of the child.
Discussion:
The definition of
assistive
technology device
in § 300.5
incorporates the definition in section
602(1)(B) of the Act. We do not believe
the definition should be changed in the
manner suggested by the commenters
because the changes are inconsistent
with the statutory definition. The
definition in the Act specifically refers
to any item, piece of equipment, or
product system that is used to increase,
maintain, or improve the functional
capabilities of the child and specifically
excludes a medical device that is
surgically implanted or the replacement
of such device. Accordingly, we
continue to believe it is appropriate to
exclude surgically implanted medical
devices from this definition. In response
to the second comment, § 300.105(a)
requires each public agency to ensure
that assistive technology devices (or
assistive technology services, or both)
are made available to a child with a
disability if required as part of the
child’s special education, related
services, or supplementary aids and
services. This provision ties the
definition to a child’s educational
needs, which public agencies must meet
in order to ensure that a child with a
disability receives a free appropriate
public education (FAPE).
Changes:
None.
Comment:
One commenter requested
that the regulations clarify that an
assistive technology device is not
synonymous with an augmentative
communication device. A few
commenters recommended including
recordings for the blind and dyslexic
playback devices in the definition of
assistive technology devices
. Some
commenters recommended including
language in the regulations clarifying
that medical devices used for breathing,
nutrition, and other bodily functions are
assistive technology devices.
Discussion:
The definition of
assistive
technology device
does not list specific
devices, nor would it be practical or
possible to include an exhaustive list of
assistive technology devices. Whether
an augmentative communication device,
playback devices, or other devices could
be considered an assistive technology
device for a child depends on whether
the device is used to increase, maintain,
or improve the functional capabilities of
a child with a disability, and whether
the child’s individualized education
program (IEP) Team determines that the
child needs the device in order to
receive a free appropriate public
education (FAPE). However, medical
devices that are surgically implanted,
including those used for breathing,
nutrition, and other bodily functions,
are excluded from the definition of an
assistive technology device
in section
602(1)(B) of the Act. The exclusion
applicable to a medical device that is
surgically implanted includes both the
implanted component of the device, as
well as its external components.
Changes:
None.
Comment:
A few commenters asked
whether the definition of
assistive
technology device
includes an internet-
based instructional program, and what
the relationship is between internet-
based instructional programs and
specially-designed instruction.
Discussion:
An instructional program
is not a device, and, therefore, would
not meet the definition of an
assistive
technology device
. Whether an internet-
based instructional program is
appropriate for a particular child is
determined by the child’s IEP Team,
which would determine whether the
program is needed in order for the child
to receive FAPE.
Changes:
None.
Comment:
A few commenters
recommended including the proper
functioning of hearing aids in the
definition of
assistive technology device
.
Discussion:
We believe that the
provision requiring public agencies to
ensure that hearing aids worn in school
are functioning properly is more
appropriately included in new § 300.113
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(proposed § 300.105(b)). As noted in the
Analysis of Comments and Changes
section discussing subpart B, we have
added a new § 300.113 to address the
routine checking (
i.e.
, making sure they
are turned on and working) of hearing
aids and external components of
surgically implanted devices.
Changes:
None.
Assistive Technology Service (§ 300.6)
Comment:
One commenter requested
clarifying ‘‘any service’’ in the
definition of
assistive technology
service
.
Discussion:
We believe the definition
is clear that an
assistive technology
service
is any service that helps a child
with a disability select an appropriate
assistive technology device, obtain the
device, or train the child to use the
device.
Changes:
None.
Comment:
One commenter stated that
services necessary to support the use of
playback devices for recordings for the
blind and dyslexic should be added to
the definition of
assistive technology
service
.
Discussion:
A service to support the
use of recordings for the blind and
dyslexic on playback devices could be
considered an assistive technology
service if it assists a child with a
disability in the selection, acquisition,
or use of the device. If so, and if the
child’s IEP Team determines it is
needed for the child to receive FAPE,
the service would be provided. The
definition of
assistive technology service
does not list specific services. We do not
believe it is practical or possible to
include an exhaustive list of assistive
technology services, and therefore,
decline to add the specific assistive
technology service recommended by the
commenter to the definition.
Changes:
None.
Comment:
One commenter
recommended evaluating all children
with speech or hearing disabilities to
determine if they can benefit from the
Federal Communications Commission’s
specialized telephone assistive services
for people with disabilities.
Discussion:
Evaluations under section
614 of the Act are for the purpose of
determining whether a child has a
disability and because of that disability
needs special education and related
services, and for determining the child’s
special education and related services
needs. It would be inappropriate under
the Act to require evaluations for other
purposes or to require an evaluation for
telephone assistive services for all
children with speech and hearing
disabilities. However, if it was
determined that learning to use
telephone assisted services, was an
important skill for a particular child
(e.g., as part of a transition plan), it
would be appropriate to conduct an
evaluation of that particular child to
determine if the child needed
specialized instruction in order to use
such services.
Changes:
None.
Comment:
One commenter requested
that the definition of
assistive
technology service
specifically exclude a
medical device that is surgically
implanted, the optimization of device
functioning, maintenance of the device,
and the replacement of the device.
Discussion:
The definition of
related
services
in § 300.34(b) specifically
excludes a medical device that is
surgically implanted, the optimization
of device functioning, maintenance of
the device, or the replacement of that
device. In addition, the definition of
assistive technology device
in § 300.5
specifically excludes a medical device
that is surgically implanted and the
replacement of that device. We believe
it is unnecessary to repeat these
exclusions in the definition of
assistive
technology service.
Changes:
None.
Charter School (§ 300.7)
Comment:
Several commenters
suggested that we include in the
regulations the definitions of terms that
are defined in other statutes. For
example, one commenter requested
including the definition of
charter
school
in the regulations.
Discussion:
Including the actual
definitions of terms that are defined in
statutes other than the Act is
problematic because these definitions
may change over time (
i.e.
, through
changes to statutes that establish the
definitions). In order for these
regulations to retain their accuracy over
time, the U.S. Department of Education
(Department) would need to amend the
regulations each time an included
definition that is defined in another
statute changes. The Department
believes that this could result in
significant confusion.
However, we are including the
current definition of
charter school
in
section 5210(1) of the ESEA here for
reference.
The term
charter school
means a
public school that:
1. In accordance with a specific State
statute authorizing the granting of
charters to schools, is exempt from
significant State or local rules that
inhibit the flexible operation and
management of public schools, but not
from any rules relating to the other
requirements of this paragraph [the
paragraph that sets forth the Federal
definition];
2. Is created by a developer as a
public school, or is adapted by a
developer from an existing public
school, and is operated under public
supervision and direction;
3. Operates in pursuit of a specific set
of educational objectives determined by
the school’s developer and agreed to by
the authorized public chartering agency;
4. Provides a program of elementary
or secondary education, or both;
5. Is nonsectarian in its programs,
admissions policies, employment
practices, and all other operations, and
is not affiliated with a sectarian school
or religious institution;
6. Does not charge tuition;
7. Complies with the Age
Discrimination Act of 1975, Title VI of
the Civil Rights Act of 1964, Title IX of
the Education Amendments of 1972,
Section 504 of the Rehabilitation Act of
1973, Title II of the Americans with
Disabilities Act of 1990, and Part B of
the Individuals with Disabilities
Education Act;
8. Is a school to which parents choose
to send their children, and that admits
students on the basis of a lottery, if more
students apply for admission than can
be accommodated;
9. Agrees to comply with the same
Federal and State audit requirements as
do other elementary schools and
secondary schools in the State, unless
such requirements are specifically
waived for the purpose of this program
[the Public Charter School Program];
10. Meets all applicable Federal,
State, and local health and safety
requirements;
11. Operates in accordance with State
law; and
12. Has a written performance
contract with the authorized public
chartering agency in the State that
includes a description of how student
performance will be measured in charter
schools pursuant to State assessments
that are required of other schools and
pursuant to any other assessments
mutually agreeable to the authorized
public chartering agency and the charter
school.
Changes:
None.
Child With a Disability (§ 300.8)
General (§ 300.8(a))
Comment:
Several commenters stated
that many children with fetal alcohol
syndrome (FAS) do not receive special
education and related services and
recommended adding a disability
category for children with FAS to help
solve this problem.
Discussion:
We believe that the
existing disability categories in section
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602(3) of the Act and in these
regulations are sufficient to include
children with FAS who need special
education and related services. Special
education and related services are based
on the identified needs of the child and
not on the disability category in which
the child is classified. We, therefore, do
not believe that adding a separate
disability category for children with
FAS is necessary to ensure that children
with FAS receive the special education
and related services designed to meet
their unique needs resulting from FAS.
Changes:
None.
Comment:
Some commenters
suggested that the definition of
child
with a disability
be changed to ‘‘student
with a disability’’ and that the word
‘‘student,’’ rather than ‘‘child,’’ be used
throughout the regulations because
students over the age of 18 are not
children.
Discussion:
Section 602(3) of the Act
defines
child with a disability,
not
student with a disability. Therefore, we
do not believe it is appropriate to
change the definition as requested by
the commenters. The words ‘‘child’’ and
‘‘student’’ are used throughout the Act
and we generally have used the word
‘‘child’’ or ‘‘children,’’ except when
referring to services and activities for
older students (e.g., transition services,
postsecondary goals).
Changes:
None.
Comment:
Some commenters
supported § 300.8(a)(2), which states
that if a child needs only a related
service and not special education, the
child is not a child with a disability
under the Act. Another commenter
recommended a single standard for the
provision of a related service as special
education, rather than allowing States to
determine whether a related service is
special education.
Discussion:
Section 300.8(a)(2)(i)
states that if a child has one of the
disabilities listed in § 300.8(a)(1), but
only needs a related service, the child
is not a child with a disability under the
Act. However, § 300.8(a)(2)(ii) provides
that, if a State considers a particular
service that could be encompassed by
the definition of
related services
also to
be special education, then the child
would be determined to be a child with
a disability under the Act. We believe it
is important that States have the
flexibility to determine whether,
consistent with the definition of the
term
special education
in section
602(29) of the Act and new § 300.39
(proposed § 300.38), such a service
should be regarded as special education
and to identify a child who needs that
service as a child with a disability.
States are in the best position to
determine whether a service that is
included in the definition of
related
services
should also be considered
special education in that State.
Changes:
None.
Comment:
None.
Discussion:
Section § 300.8(a)(2)(ii)
contains an incorrect reference to
§ 300.38(a)(2). The correct reference
should be to § 300.39(a)(2).
Changes:
We have removed the
reference to § 300.38(a)(2) and replaced
it with a reference to § 300.39(a)(2).
Children Aged Three Through Nine
Experiencing Developmental Delays
(§ 300.8(b))
Comment:
Several commenters
expressed support for allowing LEAs to
select a subset of the age range from
three through nine for their definition of
developmental delay
. A few
commenters recommended clarifying
that States, not the LEAs, define the age
range of children eligible under this
category of developmental delay.
Discussion:
Section 300.8(b) states
that the use of the developmental delay
category for a child with a disability
aged three through nine, or any subset
of that age range, must be made in
accordance with § 300.111(b). Section
300.111(b) gives States the option of
adopting a definition of
developmental
delay,
but does not require an LEA to
adopt and use the term. However, if an
LEA uses the category of developmental
delay, the LEA must conform to both the
State’s definition of the term and the age
range that has been adopted by the
State. If a State does not adopt the
category of developmental delay, an
LEA may not use that category as the
basis for establishing a child’s eligibility
for special education and related
services.
Based on the comments, it appears
that § 300.8(b) has been misinterpreted
as stating that LEAs are allowed to
establish the age range for defining
developmental delay
independent of the
State. We believe it is important to
avoid such confusion and, therefore,
will modify § 300.8(b) to clarify the
provision.
Changes:
For clarity, we have
removed the phrase, ‘‘at the discretion
of the State and LEA in accordance with
§ 300.111(b)’’ and replaced it with
‘‘subject to the conditions in
§ 300.111(b).’’
Deafness (§ 300.8(c)(3))
Comment:
One commenter stated that
children who are hard of hearing are
often denied special education and
related services because the definition
of
deafness
includes the phrase,
‘‘adversely affects a child’s educational
performance,’’ which school district
personnel interpret to mean that the
child must be failing in school to
receive special education and related
services.
Discussion:
As noted in the
Analysis
of Comments and Changes
section
discussing subpart B, we have clarified
in § 300.101(c) that a child does not
have to fail or be retained in a course
or grade in order to be considered for
special education and related services.
However, in order to be a child with a
disability under the Act, a child must
have one or more of the impairments
identified in section 602(3) of the Act
and need special education and related
services because of that impairment.
Given the change in § 300.101(c), we do
not believe clarification in § 300.8(c)(3)
is necessary.
Changes:
None.
Emotional Disturbance (§ 300.8(c)(4))
Comment:
Numerous commenters
requested defining or eliminating the
term ‘‘socially maladjusted’’ in the
definition of
emotional disturbance
stating that there is no accepted
definition of the term, and no valid or
reliable instruments or methods to
identify children who are, or are not,
‘‘socially maladjusted.’’ Some
commenters stated that children who
need special education and related
services have been denied these
services, or have been inappropriately
identified under other disability
categories and received inappropriate
services because the definition of
emotional disturbance
excludes
children who are socially maladjusted.
One commenter stated that using the
term ‘‘socially maladjusted’’ contributes
to the negative image of children with
mental illness and does a disservice to
children with mental illness and those
who seek to understand mental illness.
One commenter stated that emotional
disturbance is one of the most misused
and misunderstood disability categories
and is often improperly used to protect
dangerous and aggressive children who
violate the rights of others. The
commenter stated that the definition of
emotional disturbance
is vague and
offers few objective criteria to
differentiate an emotional disability
from ordinary development, and
requires the exclusion of conditions in
which the child has the ability to
control his or her behavior, but chooses
to violate social norms.
One commenter recommended adding
autism to the list of factors in
§ 300.8(c)(4)(i)(A) that must be ruled out
before making an eligibility
determination based on emotional
disturbance. The commenter stated that
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many children with autism are
inappropriately placed in alternative
educational programs designed for
children with serious emotional and
behavioral problems.
Discussion:
Historically, it has been
very difficult for the field to come to
consensus on the definition of
emotional disturbance,
which has
remained unchanged since 1977. On
February 10, 1993, the Department
published a ‘‘Notice of Inquiry’’ in the
Federal Register
(58 FR 7938) soliciting
comments on the existing definition of
serious emotional disturbance
. The
comments received in response to the
notice of inquiry expressed a wide range
of opinions and no consensus on the
definition was reached. Given the lack
of consensus and the fact that Congress
did not make any changes that required
changing the definition, the Department
recommended that the definition of
emotional disturbance
remain
unchanged. We reviewed the Act and
the comments received in response to
the NPRM and have come to the same
conclusion. Therefore, we decline to
make any changes to the definition of
emotional disturbance.
Changes:
None.
Comment:
One commenter suggested
that the regulations include a process to
identify children who are at risk for
having an emotional disturbance.
Discussion:
We decline to include a
process to identify children who are at
risk for having an emotional
disturbance. A child who is at risk for
having any disability under the Act is
not considered a
child with a disability
under § 300.8 and section 602(3) of the
Act and, therefore, is not eligible for
services under the Act.
Changes:
None.
Mental Retardation (§ 300.8(c)(6))
Comment:
One commenter suggested
using the term ‘‘intellectual disability’’
in place of ‘‘mental retardation’’ because
‘‘intellectual disability’’ is a more
acceptable term. The commenter also
stated that the definition of
mental
retardation
is outdated, and should,
instead, address a child’s functional
limitations in specific life areas.
Discussion:
Section 602(3)(A) of the
Act refers to a ‘‘child with mental
retardation,’’ not a ‘‘child with
intellectual disabilities,’’ and we do not
see a compelling reason to change the
term. However, States are free to use a
different term to refer to a child with
mental retardation, as long as all
children who would be eligible for
special education and related services
under the Federal definition of
mental
retardation
receive FAPE.
We do not believe the definition of
mental retardation
needs to be changed
because it is defined broadly enough in
§ 300.8(c)(6) to include a child’s
functional limitations in specific life
areas, as requested by the commenter.
There is nothing in the Act or these
regulations that would prevent a State
from including ‘‘functional limitations
in specific life areas’’ in a State’s
definition of
mental retardation
, as long
as the State’s definition is consistent
with these regulations.
Changes:
None.
Multiple Disabilities (§ 300.8(c)(7))
Comment:
One commenter asked why
the category of multiple disabilities is
included in the regulations when it is
not in the Act.
Discussion:
The definition of
multiple
disabilities
has been in the regulations
since 1977 and does not expand
eligibility beyond what is provided for
in the Act. The definition helps ensure
that children with more than one
disability are not counted more than
once for the annual report of children
served because States do not have to
decide among two or more disability
categories in which to count a child
with multiple disabilities.
Changes:
None.
Orthopedic Impairment (§ 300.8(c)(8))
Comment:
One commenter requested
that the examples of congenital
anomalies in the definition of
orthopedic impairment
in current
§ 300.7(c)(8) be retained.
Discussion:
The examples of
congenital anomalies in current
§ 300.7(c)(8) are outdated and
unnecessary to understand the meaning
of
orthopedic impairment
. We,
therefore, decline to include the
examples in § 300.8(c)(8).
Changes:
None.
Other Health Impairment (§ 300.8(c)(9))
Comment:
We received a significant
number of comments requesting that we
include other examples of specific acute
or chronic health conditions in the
definition of
other health impairment
. A
few commenters recommended
including children with dysphagia
because these children have a
swallowing and feeding disorder that
affects a child’s vitality and alertness
due to limitations in nutritional intake.
Other commenters recommended
including FAS, bipolar disorders, and
organic neurological disorders.
Numerous commenters requested
including Tourette syndrome disorders
in the definition of
other health
impairment
because children with
Tourette syndrome are frequently
misclassified as emotionally disturbed.
A number of commenters stated that
Tourette syndrome is a neurological
disorder and not an emotional disorder,
yet children with Tourette syndrome
continue to be viewed as having a
behavioral or conduct disorder and,
therefore, do not receive appropriate
special education and related services.
Discussion:
The list of acute or
chronic health conditions in the
definition of
other health impairment
is
not exhaustive, but rather provides
examples of problems that children
have that could make them eligible for
special education and related services
under the category of other health
impairment. We decline to include
dysphagia, FAS, bipolar disorders, and
other organic neurological disorders in
the definition of
other health
impairment
because these conditions
are commonly understood to be health
impairments. However, we do believe
that Tourette syndrome is commonly
misunderstood to be a behavioral or
emotional condition, rather than a
neurological condition. Therefore,
including Tourette syndrome in the
definition of
other health impairment
may help correct the misperception of
Tourette syndrome as a behavioral or
conduct disorder and prevent the
misdiagnosis of their needs.
Changes:
We have added Tourette
syndrome as an example of an acute or
chronic health problem in
§ 300.8(c)(9)(i).
Comment:
A few commenters
expressed concern about determining a
child’s eligibility for special education
services under the category of other
health impairment based on conditions
that are not medically determined
health problems, such as ‘‘central
auditory processing disorders’’ or
‘‘sensory integration disorders.’’ One
commenter recommended that the
regulations clarify that ‘‘chronic or acute
health problems’’ refer to health
problems that are universally
recognized by the medical profession.
Discussion:
We cannot make the
change requested by the commenters.
The determination of whether a child is
eligible to receive special education and
related services is made by a team of
qualified professionals and the parent of
the child, consistent with
§ 300.306(a)(1) and section 614(b)(4) of
the Act. The team of qualified
professionals and the parent of the child
must base their decision on careful
consideration of information from a
variety of sources, consistent with
§ 300.306(c). There is nothing in the Act
that requires the team of qualified
professionals and the parent to consider
only health problems that are
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universally recognized by the medical
profession, as requested by the
commenters. Likewise, there is nothing
in the Act that would prevent a State
from requiring a medical evaluation for
eligibility under other health
impairment, provided the medical
evaluation is conducted at no cost to the
parent.
Changes:
None.
Comment:
One commenter stated that
the category of other health impairment
is one of the most rapidly expanding
eligibility categories because the
definition is vague, confusing, and
redundant. The commenter noted that
the definition of
other health
impairment
includes terms such as
‘‘alertness’’ and ‘‘vitality,’’ which are
difficult to measure objectively.
Discussion:
We believe that the
definition of
other health impairment
is
generally understood and that the group
of qualified professionals and the parent
responsible for determining whether a
child is a child with a disability are able
to use the criteria in the definition and
appropriately identify children who
need special education and related
services. Therefore, we decline to
change the definition.
Changes:
None.
Specific Learning Disability
(§ 300.8(c)(10))
Comment:
One commenter
recommended changing the definition
of
specific learning disability
to refer to
a child’s response to scientific, research-
based intervention as part of the
procedures for evaluating children with
disabilities, consistent with
§ 300.307(a). A few commenters
recommended aligning the definition of
specific learning disability
with the
requirements for determining eligibility
in § 300.309.
One commenter recommended using
the word ‘‘disability,’’ instead of
‘‘disorder,’’ and referring to specific
learning disabilities as a ‘‘disability in
one or more of the basic psychological
processes.’’ A few commenters stated
that the terms ‘‘developmental aphasia’’
and ‘‘minimal brain dysfunction’’ are
antiquated and should be removed from
the definition. A few commenters
questioned using ‘‘imperfect ability’’ in
the definition because it implies that a
child with minor problems in listening,
thinking, speaking, reading, writing,
spelling, or calculating math could be
determined to have a specific learning
disability.
Discussion:
The definition of
specific
learning disability
is consistent with the
procedures for evaluating and
determining the eligibility of children
suspected of having a specific learning
disability in §§ 300.307 through
300.311. We do not believe it is
necessary to repeat these procedures in
the definition of
specific learning
disability
.
Section 602(30) of the Act refers to a
‘‘disorder’’ in one or more of the basic
psychological processes and not to a
‘‘disability’’ in one or more of the basic
psychological processes. We believe it
would be inconsistent with the Act to
change ‘‘disorder’’ to ‘‘disability,’’ as
recommended by one commenter. We
do not believe that the terms
‘‘developmental aphasia’’ and ‘‘minimal
brain dysfunction’’ should be removed
from the definition. Although the terms
may not be as commonly used as
‘‘specific learning disability,’’ the terms
continue to be used and we see no harm
in retaining them in the definition. We
do not agree that the phrase ‘‘imperfect
ability’’ implies that a child has a minor
problem and, therefore, decline to
change this phrase in the definition of
specific learning disability
.
Changes:
None.
Comment:
We received several
requests to revise the definition of
specific learning disability
to include
specific disabilities or disorders that are
often associated with specific learning
disabilities, including Aspergers
syndrome, FAS, auditory processing
disorders, and nonverbal learning
disabilities.
Discussion:
Children with many types
of disabilities or disorders may also
have a specific learning disability. It is
not practical or feasible to include all
the different disabilities that are often
associated with a specific learning
disability. Therefore, we decline to add
these specific disorders or disabilities to
the definition of
specific learning
disability
.
Changes:
None.
Comment:
A few commenters
suggested clarifying the word ‘‘cultural’’
in § 300.8(c)(10)(ii) to clarify that
cultural disadvantage or language
cannot be the basis for determining that
a child has a disability.
Discussion:
We believe the term
‘‘cultural’’ is generally understood and
do not see a need for further
clarification. We also do not believe that
it is necessary to clarify that language
cannot be the basis for determining
whether a child has a specific learning
disability. Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, clearly states that limited
English proficiency cannot be the basis
for determining a child to be a child
with a disability under any of the
disability categories in § 300.8.
Changes:
None.
Consent (§ 300.9)
Comment:
Numerous commenters
noted that the regulations include the
terms ‘‘consent,’’ ‘‘informed consent,’’
‘‘agree,’’ and ‘‘agree in writing’’ and
asked whether all the terms have the
same meaning.
Discussion:
These terms are used
throughout the regulations and are
consistent with their use in the Act. The
definition of
consent
requires a parent
to be fully informed of all information
relevant to the activity for which
consent is sought. The definition also
requires a parent to agree in writing to
an activity for which consent is sought.
Therefore, whenever
consent
is used in
these regulations, it means that the
consent is both informed and in writing.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as
consent
.
‘‘Agree’’ or ‘‘agreement’’ refers to an
understanding between the parent and
the public agency about a particular
question or issue, which may be in
writing, depending on the context.
Changes:
None.
Comment:
A few commenters
recommended adding a requirement to
the definition of
consent
that a parent be
fully informed of the reasons why a
public agency selected one activity over
another.
Discussion:
We do not believe it is
necessary to include the additional
requirement recommended by the
commenter. The definition of
consent
already requires that the parent be fully
informed of all the information relevant
to the activity for which consent is
sought.
Changes:
None.
C
omment:
A few commenters
requested that the Department address
situations in which a child is receiving
special education services and the
child’s parent wants to discontinue
services because they believe the child
no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to
continue to provide special education
and related services to a child whose
parent withdraws consent for the
continued provision of special
education and related services.
Discussion:
The Department intends
to propose regulations to permit parents
who previously consented to the
initiation of special education services,
to withdraw their consent for their child
to receive, or continue to receive,
special education services. Because this
is a change from the Department’s
longstanding policies and was not
proposed in the NPRM, we will provide
the public the opportunity to comment
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on this proposed change in a separate
notice of proposed rulemaking.
Changes:
None.
Core Academic Subjects (§ 300.10)
Comment:
A few commenters
suggested adding the definition of
core
academic subjects
from the ESEA to the
regulations and including any
additional subjects that are considered
core academic subjects for children in
the State in which the child resides.
Discussion:
The definition of
core
academic subjects
in § 300.10,
consistent with section 602(4) of the
Act, is the same as the definition in
section 9101 of the ESEA. We believe it
is unnecessary to change the definition
to include additional subjects that
particular States consider to be core
academic subjects. However, there is
nothing in the Act or these regulations
that would prevent a State from
including additional subjects in its
definition of ‘‘core academic subjects.’’
Changes:
None.
Comment:
A few commenters
requested clarifying the definition of
core academic subjects
for a secondary
school student when the student is
functioning significantly below the
secondary level.
Discussion:
The definition of
core
academic subjects
does not vary for
secondary students who are functioning
significantly below grade level. The Act
focuses on high academic standards and
clear performance goals for children
with disabilities that are consistent with
the standards and expectations for all
children. As required in § 300.320(a),
each child’s IEP must include annual
goals to enable the child to be involved
in and make progress in the general
education curriculum, and a statement
of the special education and related
services and supplementary aids and
services to enable the child to be
involved and make progress in the
general education curriculum. It would,
therefore, be inconsistent and contrary
to the purposes of the Act for the
definition of
core academic subjects
to
be different for students who are
functioning below grade level.
Changes:
None.
Comment:
One commenter asked that
the core content area of ‘‘science’’ apply
to social sciences, as well as natural
sciences.
Discussion:
We cannot change the
regulations in the manner recommended
by the commenter because the ESEA
does not identify ‘‘social sciences’’ as a
core academic subject. Neither does it
identify ‘‘social studies’’ as a core
academic subject. Instead, it identifies
specific core academic areas: History,
geography, economics, and civics and
government. The Department’s
nonregulatory guidance on ‘‘Highly
Qualified Teachers, Improving Teacher
Quality State Grants’’ (August 3, 2005)
explains that if a State issues a
composite social studies license, the
State must determine in which of the
four areas (history, geography,
economics, and civics and government),
if any, a teacher is qualified. (see
question A–20 in the Department’s
nonregulatory guidance available at
http://www.ed.gov/programs/
teacherqual/legislation.html#guidance)
.
Changes:
None.
Day; Business Day; School Day
(§ 300.11)
Comment:
A few commenters stated
that a partial day should be considered
a school day only if there is a safety
reason for a shortened day, such as a
two hour delay due to snow, and that
regularly scheduled half days should
not be considered a
school day
for
funding purposes. One commenter
stated that many schools count the time
on the bus, recess, lunch period, and
passing periods as part of a school day
for children with disabilities, and
recommended that the regulations
clarify that non-instructional time does
not count against a child’s instructional
day unless such times are counted
against the instructional day of all
children. One commenter recommended
the definition of
school day
include
days on which extended school year
(ESY) services are provided to children
with disabilities.
Discussion:
The length of the school
day and the number of school days do
not affect the formula used to allocate
Part B funds to States.
School day,
as
defined in § 300.11(c)(1), is any day or
partial day that children are in
attendance at school for instructional
purposes. If children attend school for
only part of a school day and are
released early (e.g., on the last day
before summer vacation), that day
would be considered to be a
school day.
Section 300.11(c)(2) already defines
school day
as having the same meaning
for all children, including children with
and without disabilities. Therefore, it is
unnecessary for the regulations to
clarify that non-instructional time (e.g.,
recess, lunch) is not counted as
instructional time for a child with a
disability unless such times are counted
as instructional time for all children.
Consistent with this requirement, days
on which ESY services are provided
cannot be counted as a
school day
because ESY services are provided only
to children with disabilities.
Changes:
None.
Educational Service Agency (§ 300.12)
Comment:
One commenter questioned
the accuracy of the citation, 20 U.S.C.
1401(5), as the basis for including
‘‘intermediate educational unit’’ in the
definition of
educational service agency.
Discussion:
The definition of
educational service agency
is based on
the provisions in section 602(5) of the
Act. The definition was added by the
Amendments to the Individuals with
Disabilities Education Act in 1997, Pub.
L. 105–17, to replace the definition of
‘‘intermediate educational unit’’ (IEU) in
section 602(23) of the Act, as in effect
prior to June 4, 1997.
Educational
service agency
does not exclude entities
that were considered IEUs under prior
law. To avoid any confusion about the
use of this term, the definition clarifies
that
educational service agency
includes
entities that meet the definition of IEU
in section 602(23) of the Act as in effect
prior to June 4, 1997. We believe the
citation for IEU is consistent with the
Act.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify that the
reference to the definition of
educational service agency
in the
definition of
local educational agency or
LEA
in § 300.28 means that educational
service agencies (ESAs) and Bureau of
Indian Affairs (BIA) schools have full
responsibility and rights as LEAs under
all provisions of the Act, including
§ 300.226 (early intervening services).
Discussion:
With respect to ESAs, we
believe that the provisions in § 300.12
and § 300.28 clarify that ESAs have full
responsibility and rights as LEAs,
including the provisions in § 300.226
related to early intervening services.
However, the commenter’s request
regarding BIA schools is inconsistent
with the Act. The definition of
local
educational agency
in § 300.28 and
section 602(19) of the Act, including the
provision on BIA funded schools in
section 602(19)(C) of the Act and in
§ 300.28(c), states that the term ‘‘LEA’’
includes an elementary school or
secondary school funded by the BIA,
‘‘but only to the extent that the
inclusion makes the school eligible for
programs for which specific eligibility is
not provided to the school in another
provision of law and the school does not
have a student population that is
smaller than the student population of
the LEA receiving assistance under the
Act with the smallest student
population.’’ Therefore, BIA schools do
not have full responsibility and rights as
LEAs under all provisions of the Act.
Changes:
None.
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Excess Costs (§ 300.16)
Comment:
One commenter stated that
an example on calculating excess costs
would be a helpful addition to the
regulations.
Discussion:
We agree with the
commenter and will include an example
of calculating excess costs in
Appendix
A to Part 300—Excess Costs
Calculation.
In developing the example,
we noted that while the requirements in
§ 300.202 exclude debt service and
capital outlay in the calculation of
excess costs, the definition of
excess
costs
in § 300.16 does not mention this
exclusion. We believe it is important to
include this exclusion in the definition
of
excess costs
and will add language in
§ 300.16 to make this clear and
consistent with the requirements in
§ 300.202.
Changes:
We have revised § 300.16(b)
to clarify that the calculation of excess
costs may not include capital outlay or
debt service. We have also added
Appendix A to Part 300—Excess Costs
Calculation
that provides an example
and an explanation of how to calculate
excess costs under the Act. A reference
to Appendix A has been added in
§ 300.16(b).
Free Appropriate Public Education or
FAPE (§ 300.17)
Comment:
One commenter stated that
the requirements in §§ 300.103 through
300.112 (Other FAPE Requirements)
should be included in the definition of
FAPE.
Discussion:
The other FAPE
requirements in §§ 300.103 through
300.112 are included in subpart B of
these regulations, rather than in the
definition of
FAPE
in subpart A, to be
consistent with the order and structure
of section 612 of the Act, which
includes all the statutory requirements
related to State eligibility. The order and
structure of these regulations follow the
general order and structure of the
provisions in the Act in order to be
helpful to parents, State and LEA
personnel, and the public both in
reading the regulations, and in finding
the direct link between a given statutory
requirement and the regulation related
to that requirement.
Changes:
None.
Comment:
Some commenters stated
that the definition of
FAPE
should
include special education services that
are provided in conformity with a
child’s IEP in the least restrictive
environment (LRE), consistent with the
standards of the State educational
agency (SEA).
Discussion:
The definition of
FAPE
in
§ 300.17 accurately reflects the specific
language in section 602(9) of the Act.
We believe it is unnecessary to change
the definition of
FAPE
in the manner
recommended by the commenters
because providing services in
conformity with a child’s IEP in the LRE
is implicit in the definition of
FAPE.
Consistent with § 300.17(b),
FAPE
means that special education and
related services must meet the standards
of the SEA and the requirements in Part
B of the Act, which include the LRE
requirements in §§ 300.114 through
300.118. Additionally, § 300.17(d)
provides that
FAPE
means that special
education and related services are
provided in conformity with an IEP that
meets the requirements in section
614(d) of the Act. Consistent with
section 614(d)(1)(i)(V) of the Act, the
IEP must include a statement of the
extent, if any, to which the child will
not participate with nondisabled
children in the regular education class.
Changes:
None.
Comment:
One commenter
recommended removing ‘‘including the
requirements of this part’’ in § 300.17(b)
because this phrase is not included in
the Act, and makes every provision in
Part B of the Act a component of FAPE.
Discussion:
Section 300.17 is the same
as current § 300.13, which has been in
the regulations since 1977. We do not
believe that § 300.17 makes every
provision of this part applicable to
FAPE.
Changes:
None.
Highly Qualified Special Education
Teachers (§ 300.18)
Comment:
One commenter requested
including the definition of ‘‘highly
qualified teacher,’’ as defined in the
ESEA, in the regulations.
Discussion:
The ESEA defines ‘‘highly
qualified’’ with regard to any public
elementary or secondary school teacher.
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
definition here for reference.
The term ‘‘highly qualified’’—
(A) When used with respect to any
public elementary school or secondary
school teacher teaching in a State,
means that—
(i) The teacher has obtained full State
certification as a teacher (including
certification obtained through
alternative routes to certification) or
passed the State teacher licensing
examination, and holds a license to
teach in such State, except that when
used with respect to any teacher
teaching in a public charter school, the
term means that the teacher meets the
requirements set forth in the State’s
public charter school law; and
(ii) The teacher has not had
certification or licensure requirements
waived on an emergency, temporary, or
provisional basis;
(B) When used with respect to—
(i) An elementary school teacher who
is new to the profession, means that the
teacher—
(I) Holds at least a bachelor’s degree;
and
(II) Has demonstrated, by passing a
rigorous State test, subject knowledge
and teaching skills in reading, writing,
mathematics, and other areas of the
basic elementary school curriculum
(which may consist of passing a State-
required certification or licensing test or
tests in reading, writing, mathematics,
and other areas of the basic elementary
school curriculum); or
(ii) A middle or secondary school
teacher who is new to the profession,
means that the teacher holds at least a
bachelor’s degree and has demonstrated
a high level of competency in each of
the academic subjects in which the
teacher teaches by—
(I) Passing a rigorous State academic
subject test in each of the academic
subjects in which the teacher teaches
(which may consist of a passing level of
performance on a State-required
certification or licensing test or tests in
each of the academic subjects in which
the teacher teaches); or
(II) Successful completion, in each of
the academic subjects in which the
teacher teaches, of an academic major,
a graduate degree, coursework
equivalent to an undergraduate
academic major, or advanced
certification or credentialing; and
(C) When used with respect to an
elementary, middle, or secondary school
teacher who is not new to the
profession, means that the teacher holds
at least a bachelor’s degree and—
(i) Has met the applicable standard in
clause (i) or (ii) of subparagraph (B),
which includes an option for a test; or
(ii) Demonstrates competence in all
the academic subjects in which the
teacher teaches based on a high
objective uniform State standard of
evaluation that—
(I) Is set by the State for both grade
appropriate academic subject matter
knowledge and teaching skills;
(II) Is aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
(III) Provides objective, coherent
information about the teacher’s
attainment of core content knowledge in
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the academic subjects in which a
teacher teaches;
(IV) Is applied uniformly to all
teachers in the same academic subject
and the same grade level throughout the
State;
(V) Takes into consideration, but not
be based primarily on, the time the
teacher has been teaching in the
academic subject;
(VI) Is made available to the public
upon request; and
(VII) May involve multiple, objective
measures of teacher competency.
Changes:
None.
Comment:
A few commenters
recommended defining the term
‘‘special education teacher.’’ Other
commenters recommended that States
define highly qualified special
education teachers and providers. One
commenter stated that the regulations
should define the role of the special
education teacher as supplementing and
supporting the regular education teacher
who is responsible for teaching course
content.
One commenter requested that the
regulations clarify that a special
education teacher who is certified as a
regular education teacher with an
endorsement in special education meets
the requirements for a highly qualified
special education teacher. Another
commenter recommended changing the
definition of a
highly qualified special
education teacher
so that States cannot
provide a single certification for all
areas of special education. One
commenter requested clarification
regarding the highly qualified special
education teacher standards for special
education teachers with single State
endorsements in the area of special
education. A few commenters
recommended clarifying that when a
State determines that a teacher is fully
certified in special education, this
means that the teacher is knowledgeable
and skilled in the special education area
in which certification is received. One
commenter recommended that teacher
qualifications and standards be
consistent from State to State.
Discussion:
Section 300.18(b),
consistent with section 602(10)(B) of the
Act, provides that a highly qualified
special education teacher must have full
State special education certification
(including certification obtained
through alternative routes to
certification) or have passed the State
special education teacher licensing
examination and hold a license to teach
in the State; have not had special
education certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
hold at least a bachelor’s degree. Except
to the extent addressed in § 300.18(c)
and (d), special education teachers who
teach core academic subjects must, in
addition to meeting these requirements,
demonstrate subject-matter competency
in each of the core academic subjects in
which the teacher teaches.
States are responsible for establishing
certification and licensing standards for
special education teachers. Each State
uses its own standards and procedures
to determine whether teachers who
teach within that State meet its
certification and licensing requirements.
Teacher qualifications and standards are
consistent from State to State to the
extent that States work together to
establish consistent criteria and
reciprocity agreements. It is not the role
of the Federal government to regulate
teacher certification and licensure.
Changes:
None.
Comment:
One commenter stated that
LEAs must train special education
teachers because most special education
teachers are not highly qualified upon
graduation from a college program. A
few commenters recommended that the
regulations encourage SEAs to require
coursework for both special education
and general education teachers in the
areas of behavior management and
classroom management. One commenter
recommended that the requirements for
special education teachers include
competencies in reading instruction and
in properly modifying and
accommodating instruction. Another
commenter supported training in
special education and related services
for general education teachers. One
commenter expressed support for
collaboration between special education
and regular education teachers. Some
commenters recommended requiring a
highly qualified general education
teacher teaching in a self-contained
special education classroom to work in
close collaboration with the special
education teacher assigned to those
children. Another commenter stated
that the definition of a
highly qualified
special education teacher
will be
meaningless if the training for teachers
is not consistent across States.
Discussion:
Personnel training needs
vary across States and it would be
inappropriate for the regulations to
require training on specific topics.
Consistent with § 300.156 and section
612(a)(14) of the Act, each State is
responsible for ensuring that teachers,
related services personnel,
paraprofessionals, and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
required to serve children with
disabilities.
Changes:
None.
Comment:
One commenter
recommended that the regulations
include standards for highly qualified
special education paraprofessionals,
similar to the requirements under the
ESEA.
Discussion:
Section § 300.156(b)
specifically requires the qualifications
for paraprofessionals to be consistent
with any State-approved or State-
recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services.
In addition, the ESEA requires that
paraprofessionals, including special
education paraprofessionals who assist
in instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals
(March 1,
2004), which can be found on the
Department’s Web site at:
http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
We believe these requirements are
sufficient to ensure that children with
disabilities receive services from
paraprofessionals who are appropriately
and adequately trained. Therefore, we
decline to include additional standards
for paraprofessionals.
Changes:
None.
Comment:
Numerous commenters
requested clarification as to whether
early childhood and preschool special
education teachers must meet the highly
qualified special education teacher
standards. Several commenters stated
that requiring early childhood and
preschool special education teachers to
meet the highly qualified special
education teacher standards would
exceed statutory authority and
exacerbate the shortage of special
education teachers. A few commenters
supported allowing States to decide
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whether the highly qualified special
education teacher requirements apply to
preschool teachers.
Discussion:
The highly qualified
special education teacher requirements
apply to all public elementary school
and secondary school special education
teachers, including early childhood or
preschool teachers if a State includes
the early childhood or preschool
programs as part of its elementary
school and secondary school system. If
the early childhood or preschool
program is not a part of a State’s public
elementary school and secondary school
system, the highly qualified special
education teacher requirements do not
apply.
Changes:
None.
Comment:
One commenter requested
clarification regarding the scope of the
highly qualified special education
teacher requirements for instructors
who teach core academic subjects in
specialized schools, such as schools for
the blind, and recommended that there
be different qualifications for instructors
who provide orientation and mobility
instruction or travel training for
children who are blind or visually
impaired.
One commenter requested adding
travel instructors to the list of special
educators who need to be highly
qualified. Some commenters
recommended adding language to
include certified and licensed special
education teachers of children with low
incidence disabilities as highly qualified
special education teachers. A few
commenters requested that the
requirements for teachers who teach
children with visual impairments
include competencies in teaching
Braille, using assistive technology
devices, and conducting assessments,
rather than competencies in core subject
areas. Some commenters requested more
flexibility in setting the standards for
teachers of children with visual
impairments and teachers of children
with other low incidence disabilities.
One commenter requested clarification
regarding the requirements for teachers
of children with low incidence
disabilities.
Discussion:
Consistent with § 300.156
and section 612(a)(14) of the Act, it is
the responsibility of each State to ensure
that teachers and other personnel
serving children with disabilities under
Part B of the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities,
including teachers of children with
visual impairments and teachers of
children with other low incidence
disabilities.
The highly qualified special
education teacher requirements apply to
all public school special education
teachers. There are no separate or
special provisions for special education
teachers who teach in specialized
schools, for teachers of children who are
blind and visually impaired, or for
teachers of children with other low
incidence disabilities and we do not
believe there should be because these
children should receive the same high
quality instruction from teachers who
meet the same high standards as all
other teachers and who have the subject
matter knowledge and teaching skills
necessary to assist these children to
achieve to high academic standards.
Changes:
None.
Comment:
One commenter requested
clarification on how the highly qualified
special education teacher requirements
impact teachers who teach children of
different ages. A few commenters
recommended adding a provision for
special education teachers who teach at
multiple age levels, similar to the
special education teacher who teaches
multiple subjects.
Discussion:
The Act does not include
any special requirements for special
education teachers who teach at
multiple age levels. Teachers who teach
at multiple age levels must meet the
same requirements as all other special
education teachers to be considered
highly qualified. The clear intent of the
Act is to ensure that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we do not believe
there should be different requirements
for teachers who teach at multiple age
levels.
Changes:
None.
Comment:
One commenter
recommended including specific criteria
defining a highly qualified special
education literacy teacher.
Discussion:
Under § 300.18(a), a
special education literacy teacher who
is responsible for teaching reading must
meet the ESEA highly qualified teacher
requirements including competency in
reading, as well as the highly qualified
special education teacher requirements.
We do not believe that further
regulation is needed as the Act leaves
teacher certification and licensing
requirements to States.
Changes:
None.
Comment:
Many commenters
expressed concern that the highly
qualified special education teacher
standards will make it more difficult to
recruit and retain special education
teachers. Some commenters stated that
most special education teachers will
need to hold more than one license or
certification to meet the highly qualified
special education teacher requirements
and that the time and expense needed
to obtain the additional licenses or
certifications is unreasonable. One
commenter stated that schools will have
to hire two or three teachers for every
one special education teacher, thereby
increasing education costs.
One commenter expressed concern
about losing special education teachers
who teach multiple subjects in
alternative education and homebound
programs because they will not meet the
highly qualified special education
teacher requirements. One commenter
expressed concern that the requirements
set a higher standard for teachers in self-
contained classrooms. Another
commenter stated that requiring special
education teachers in secondary schools
to be experts in all subjects is a burden
that elementary teachers do not have.
Discussion:
The Department
understands the concerns of the
commenters. However, the clear
intention of the Act is to ensure that all
children with disabilities have teachers
with the subject-matter knowledge and
teaching skills necessary to assist
children with disabilities achieve to
high academic standards.
To help States and districts meet
these standards, section 651 of the Act
authorizes State Personnel Development
grants to help States reform and
improve their systems for personnel
preparation and professional
development in early intervention,
educational, and transition services in
order to improve results for children
with disabilities. In addition, section
662 of the Act authorizes funding for
institutions of higher education, LEAs,
and other eligible local entities to
improve or develop new training
programs for teachers and other
personnel serving children with
disabilities.
Changes:
None.
Comment:
One commenter requested
further clarification regarding the
requirements for secondary special
education teachers to be highly
qualified in the core subjects they teach,
as well as certified in special education.
Discussion:
Consistent with
§ 300.18(a) and (b) and section
602(10)(A) and (B) of the Act, secondary
special education teachers who teach
core academic subjects must meet the
highly qualified teacher standards
established in the ESEA (which
includes competency in each core
academic subject the teacher teaches)
and the highly qualified special
education teacher requirements in
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§ 300.18(b) and section 602(10)(B) of the
Act.
Consistent with § 300.18(c) and
section 602(10)(C) of the Act, a
secondary special education teacher
who teaches core academic subjects
exclusively to children assessed against
alternate achievement standards can
satisfy the highly qualified special
education teacher requirements by
meeting the requirements for a highly
qualified elementary teacher under the
ESEA, or in the case of instruction
above the elementary level, have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, to effectively
teach to those standards.
Changes:
None.
Comment:
One commenter expressed
concern that the highly qualified teacher
requirements will drive secondary
teachers who teach children with
emotional and behavioral disorders out
of the field and requested that the
requirements be changed to require
special education certification in one
core area, plus a reasonable amount of
training in other areas. Another
commenter recommended permitting
special education teachers of core
academic subjects at the elementary
level to be highly qualified if they major
in elementary education and have
coursework in math, language arts, and
science. One commenter recommended
that any special education teacher
certified in a State prior to 2004 be
exempt from having to meet the highly
qualified special education teacher
requirements.
Discussion:
The definition of a
highly
qualified special education teacher
in
§ 300.18 accurately reflects the
requirements in section 602(10) of the
Act. To change the regulations in the
manner recommended by the
commenters would be inconsistent with
the Act and the Act’s clear intent of
ensuring that all children with
disabilities have teachers with the
subject matter knowledge and teaching
skills necessary to assist children with
disabilities achieve to high academic
standards. Therefore, we decline to
change the requirements in § 300.18.
Changes:
None.
Comment:
One commenter stated that
there is a double standard in the highly
qualified teacher requirements because
general education teachers are not
required to be certified in special
education even though they teach
children with disabilities. Another
commenter recommended requiring
general education teachers who teach
children with disabilities to meet the
highly qualified special education
teacher requirements.
Discussion:
We cannot make the
changes suggested by the commenter
because the Act does not require general
education teachers who teach children
with disabilities to be certified in
special education. Further, the
legislative history of the Act would not
support these changes. Note 21 in the
U.S. House of Representatives
Conference Report No. 108–779 (Conf.
Rpt.), p. 169, clarifies that general
education teachers who are highly
qualified in particular subjects and who
teach children with disabilities in those
subjects are not required to have full
State certification as a special education
teacher. For example, a reading
specialist who is highly qualified in
reading instruction, but who is not
certified as a special education teacher,
would not be prohibited from providing
reading instruction to children with
disabilities.
The Act focuses on ensuring that
children with disabilities achieve to
high academic standards and have
access to the same curriculum as other
children. In order to achieve this goal,
teachers who teach core academic
subjects to children with disabilities
must be competent in the core academic
areas in which they teach. This is true
for general education teachers, as well
as special education teachers.
Changes:
None.
Comment:
Some commenters
expressed concern that LEAs may
reduce placement options for children
with disabilities because of the shortage
of highly qualified teachers. A few
commenters recommended requiring
each State to develop and implement
policies to ensure that teachers meet the
highly qualified special education
teacher requirements, while maintaining
a full continuum of services and
alternative placements to respond to the
needs of children with disabilities.
Discussion:
It would be inconsistent
with the LRE requirements in section
612(a)(5) of the Act for a public agency
to restrict the placement options for
children with disabilities. Section
300.115, consistent with section
612(a)(5) of the Act, requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities.
The additional requirements
requested by the commenter are not
necessary because States already must
develop and implement policies to
ensure that the State meets the LRE and
personnel standards requirements in
sections 612(a)(5) and (a)(14) of the Act,
respectively.
Changes:
None.
Comment:
One commenter stated that
personnel working in charter schools
should meet the same requirements as
all other public school personnel.
Several commenters expressed concern
regarding the exemption of charter
school teachers from the highly
qualified special education teacher
requirements. One commenter stated
that while a special education teacher in
a charter school does not have to be
licensed or certified by the State if the
State’s charter school law does not
require such licensure or certification,
all other elements of the highly
qualified special education teacher
requirements should apply to charter
school teachers, including demonstrated
competency in core academic subject
areas.
Discussion:
The certification
requirements for charter school teachers
are established in a State’s public
charter school law, and may differ from
the requirements for full State
certification for teachers in other public
schools. The Department does not have
the authority to change State charter
school laws to require charter school
teachers to meet the same requirements
as all other public school teachers.
In addition to the certification
requirements established in a State’s
public charter school law, if any, section
602(10) of the Act requires charter
school special education teachers to
hold at least a bachelor’s degree and, if
they are teaching core academic
subjects, demonstrate competency in the
core academic areas they teach. We will
add language in § 300.18(b) to clarify
that special education teachers in public
charter schools must meet the
certification or licensing requirements,
if any, established by a State’s public
charter school law.
Changes:
We have added the words
‘‘if any’’ in § 300.18(b)(1)(i) to clarify
that special education teachers in public
charter schools must meet any
certification or licensing requirements
established by a State’s public charter
school law.
Comment:
One commenter stated that
the regulations use the terms ‘‘highly
qualified’’ and ‘‘fully certified’’ in a
manner that implies they are
synonymous, and recommended that
the regulations maintain the distinction
between the two terms.
Discussion:
Full State certification is
determined under State law and policy
and means that a teacher has fully met
State requirements, including any
requirements related to a teacher’s years
of teaching experience. For example,
State requirements may vary for first-
year teachers versus teachers who are
not new to the profession. Full State
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certification also means that the teacher
has not had certification or licensure
requirements waived on an emergency,
temporary, or provisional basis.
The terms ‘‘highly qualified’’ and
‘‘fully certified’’ are synonymous when
used to refer to special education
teachers who are not teaching core
academic subjects. For special
education teachers teaching core
academic subjects, however, both full
special education certification or
licensure and subject matter
competency are required.
Changes:
We have changed the
heading to § 300.18(a) and the
introductory material in § 300.18(a) and
(b)(1) for clarity.
Comment:
A few commenters
recommended prohibiting States from
creating new categories to replace
emergency, temporary, or provisional
licenses that lower the standards for full
certification in special education.
Discussion:
We do not believe it is
necessary to add the additional language
recommended by the commenters.
Section 300.18(b)(1)(ii) and section
602(10)(B)(ii) of the Act are clear that a
teacher cannot be considered a highly
qualified special education teacher if
the teacher has had special education
certification or licensure waived on an
emergency, temporary, or provisional
basis. This would include any new
certification category that effectively
allows special education certification or
licensure to be waived on an emergency,
temporary, or provisional basis.
Changes:
None.
Comment:
Some commenters
supported alternative route to
certification programs for special
education teachers. One commenter
stated that these programs are necessary
to increase the number of highly
qualified teachers and will help schools
on isolated tribal reservations recruit,
train, and retain highly qualified
teachers. However, numerous
commenters expressed concerns and
objections to alternative route to
certification programs for special
education teachers. Several commenters
stated that allowing individuals making
progress in an alternative route to
certification program to be considered
highly qualified and fully certified
creates a lower standard, short-changes
children, is not supported by any
provision in the Act, and undermines
the requirement for special education
teachers to be fully certified. One
commenter stated that this provision is
illogical and punitive to higher
education teacher training programs
because it allows individuals in an
alternative route to certification program
to be considered highly qualified and
fully certified during their training
program, while at the same time
individuals in regular teacher training
programs that meet the same
requirements as alternative route to
certification programs are not
considered highly qualified or fully
certified. One commenter argued that an
individual participating in an
alternative route to certification program
would need certification waived on an
emergency, temporary, or provisional
basis, which means the individual has
not met the requirements in
§ 300.18(b)(1)(ii). Another commenter
stated that three years is not enough
time for a teacher enrolled in an
alternative route to certification program
to assume the functions of a teacher.
Discussion:
While we understand the
general objections to alternative route to
certification programs expressed by the
commenters, the Department believes
that alternative route to certification
programs provide an important option
for individuals seeking to enter the
teaching profession. The requirements
in § 300.18(b)(2) were included in these
regulations to provide consistency with
the requirements in 34 CFR
200.56(a)(2)(ii)(A) and the ESEA,
regarding alternative route to
certification programs. To help ensure
that individuals participating in
alternative route to certification
programs are well trained, there are
certain requirements that must be met as
well as restrictions on who can be
considered to have obtained full State
certification as a special education
teacher while enrolled in an alternative
route to certification program. An
individual participating in an
alternative route to certification program
must (1) hold at least a bachelor’s degree
and have demonstrated subject-matter
competency in the core academic
subject(s) the individual will be
teaching; (2) assume the functions of a
teacher for not more than three years;
and (3) demonstrate satisfactory
progress toward full certification, as
prescribed by the State. The individual
also must receive, before and while
teaching, high-quality professional
development that is sustained,
intensive, and classroom-focused and
have intensive supervision that consists
of structured guidance and regular
ongoing support.
It was the Department’s intent to
allow an individual who wants to
become a special education teacher, but
does not plan to teach a core academic
subject, to enroll in an alternative route
to certification program and be
considered highly qualified, provided
that the individual holds at least a
bachelor’s degree. This requirement,
however, was inadvertently omitted in
the NPRM. Therefore, we will add
appropriate references in § 300.18(b)(3)
to clarify that an individual
participating in an alternative route to
certification program in special
education who does not intend to teach
a core academic subject, may be
considered a highly qualified special
education teacher if the individual
holds at least a bachelor’s degree and
participates in an alternative route to
certification program that meets the
requirements in § 300.18(b)(2).
Changes:
Appropriate citations have
been added in § 300.18(b)(3) to clarify
the requirements for individuals
enrolled in alternative route to special
education teacher certification
programs.
Comment:
A few commenters
recommended more specificity in the
requirements for teachers participating
in alternative route to certification
programs, rather than giving too much
discretion to States to develop programs
that do not lead to highly qualified
personnel. However, one commenter
recommended allowing States the
flexibility to create their own guidelines
for alternative route to certification
programs.
Several commenters recommended
clarifying the requirements for the
teacher supervising an individual who
is participating in an alternative route to
certification program. One commenter
recommended requiring supervision,
guidance, and support by a professional
with expertise in the area of special
education in which the teacher desires
to become certified.
Discussion:
Consistent with
§ 300.18(b)(2)(ii), States are responsible
for ensuring that the standards for
alternative route to certification
programs in § 300.18(b)(2)(i) are met. It
is, therefore, up to each State to
determine whether to require specific
qualifications for the teachers
responsible for supervising teachers
participating in an alternative route to
certification program.
Changes:
None.
Comment:
One commenter requested
clarification regarding the roles and
responsibilities of special education
teachers who do not teach core
academic subjects.
Discussion:
Special education
teachers who do not directly instruct
children in any core academic subject or
who provide only consultation to highly
qualified teachers of core academic
subjects do not need to demonstrate
subject-matter competency in those
subjects. These special educators could
provide consultation services to other
teachers, such as adapting curricula,
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using behavioral supports and
interventions, or selecting appropriate
accommodations for children with
disabilities. They could also assist
children with study skills or
organizational skills and reinforce
instruction that the child has already
received from a highly qualified teacher
in that core academic subject.
Changes:
None.
Comment:
Many commenters
recommended including language in the
regulations to clarify that special
education teachers who do not teach
core academic subjects and provide only
consultative services must restrict their
services to areas that supplement, not
replace, the direct instruction provided
by a highly qualified general education
teacher. One commenter recommended
that States develop criteria for teachers
who provide consultation services.
Another commenter stated that special
education teachers should not work on
a consultative basis.
Discussion:
The definition of
consultation services and whether a
special education teacher provides
consultation services are matters best
left to the discretion of each State.
While States may develop criteria to
distinguish consultation versus
instructional services, the Act and the
ESEA are clear that teachers who
provide direct instruction in a core
academic subject, including special
education teachers, must meet the
highly qualified teacher requirements,
which include demonstrated
competency in each of the core
academic subjects the teacher teaches.
Changes:
None.
Requirements for Highly Qualified
Special Education Teachers Teaching to
Alternate Achievement Standards
(§ 300.18(c))
Comment:
One commenter
recommended replacing ‘‘alternate
achievement standards’’ with ‘‘alternate
standards.’’ A few commenters
requested including a definition of
alternate achievement standards in the
regulations.
Discussion:
‘‘Alternate achievement
standards’’ is statutory language and,
therefore, it would be inappropriate to
change ‘‘alternate achievement
standards’’ to ‘‘alternate standards.’’
For the reasons set forth earlier in this
notice, we are not adding definitions
from other statutes to these regulations.
However, we will include the current
description of alternate achievement
standards in 34 CFR 200.1(d) of the
ESEA regulations here for reference.
For children under section 602(3) of
the Individuals with Disabilities
Education Act with the most significant
cognitive disabilities who take an
alternate assessment, a State may,
through a documented and validated
standards-setting process, define
alternate academic achievement
standards, provided those standards—
(1) Are aligned with the State’s
academic content standards;
(2) Promote access to the general
curriculum; and
(3) Reflect professional judgment of
the highest achievement standards
possible.
Changes:
None.
Comment:
Several commenters
expressed concern with allowing high
school students with significant
cognitive disabilities to be taught by a
certified elementary school teacher. One
commenter stated that high school
students with disabilities should be
prepared to lead productive adult lives,
and not be treated as young children.
Another commenter stated that these
requirements foster low expectations for
children with the most significant
cognitive disabilities and will be used to
justify providing children with
instruction that is not age appropriate or
that denies access to the general
education curriculum. A few
commenters stated that the
requirements for special education
teachers teaching to alternate
achievement standards should be the
same as the requirements for all special
education teachers.
Some commenters recommended
requiring teachers who teach to
alternate achievement standards to have
subject matter knowledge to provide
instruction aligned to the academic
content standards for the grade level in
which the student is enrolled. One
commenter recommended requiring any
special education teacher teaching to
alternate achievement standards to
demonstrate knowledge of age-
appropriate core curriculum content to
ensure children with disabilities are
taught a curriculum that is closely tied
to the general education curriculum
taught to other children of the same age.
Discussion:
The regulations
promulgated under section 1111(b)(1) of
the ESEA permit States to use alternate
achievement standards to evaluate the
performance of a small group of
children with the most significant
cognitive disabilities who are not
expected to meet grade-level standards
even with the best instruction. An
alternate achievement standard sets an
expectation of performance that differs
in complexity from a grade-level
achievement standard. Section
602(10)(C)(ii) of the Act, therefore,
allows special education teachers
teaching exclusively children who are
assessed against alternate achievement
standards to meet the highly qualified
teacher standards that apply to
elementary school teachers. In the case
of instruction above the elementary
level, the teacher must have subject
matter knowledge appropriate to the
level of instruction being provided, as
determined by the State, in order to
effectively teach to those standards.
We do not agree that allowing middle
and high school students with the most
significant cognitive disabilities to be
taught by teachers who meet the
qualifications of a highly qualified
elementary teacher fosters low
expectations, encourages students to be
treated like children, promotes
instruction that is not age appropriate,
or denies students access to the general
curriculum. Although alternate
achievement standards differ in
complexity from grade-level standards,
34 CFR 200.1(d) requires that alternate
achievement standards be aligned with
the State’s content standards, promote
access to the general curriculum, and
reflect professional judgment of the
highest achievement standards possible.
In short, we believe that the
requirements in § 300.18(c) will ensure
that teachers teaching exclusively
children who are assessed against
alternate achievement standards will
have the knowledge to provide
instruction aligned to grade-level
content standards so that students with
the most significant cognitive
disabilities are taught a curriculum that
is closely tied to the general curriculum.
Changes:
None.
Comment:
A few commenters
requested clarification regarding the
meaning of ‘‘subject matter knowledge
appropriate to the level of instruction
provided’’ in § 300.18(c)(2).
Discussion:
Section 300.18(c)(2)
requires that if a teacher (who is
teaching exclusively to alternate
achievement standards) is teaching
students who need instruction above the
elementary school level, the teacher
must have subject matter knowledge
appropriate to the level of instruction
needed to effectively teach to those
standards. The purpose of this
requirement is to ensure that teachers
exclusively teaching children who are
assessed based on alternate academic
achievement standards above the
elementary level have sufficient subject
matter knowledge to effectively instruct
in each of the core academic subjects
being taught, at the level of difficulty
being taught. For example, if a high
school student (determined by the IEP
Team to be assessed against alternate
achievement standards) has knowledge
and skills in math at the 7th grade level,
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but in all other areas functions at the
elementary level, the teacher would
need to have knowledge in 7th grade
math in order to effectively teach the
student to meet the 7th grade math
standards. No further clarification is
necessary.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
include requirements for teachers who
provide instruction to children assessed
against modified achievement
standards. Several commenters stated
that the requirements for teachers
teaching children assessed against
modified achievement standards should
be the same for teachers teaching
children assessed against alternate
achievement standards.
Discussion:
The Department has not
issued final regulations addressing
modified achievement standards and
the specific criteria for determining
which children with disabilities should
be assessed based on modified
achievement standards. As proposed,
the modified achievement standards
must be aligned with the State’s
academic content standards for the
grade in which the student is enrolled
and provide access to the grade-level
curriculum. For this reason, we see no
need for a further exception to the
‘‘highly qualified teacher’’ provisions at
this time.
Changes:
None.
Requirements for Highly Qualified
Special Education Teachers Teaching
Multiple Subjects (§ 300.18(d))
Comment:
A few commenters stated
that the requirements for teachers who
teach two or more core academic
subjects exclusively to children with
disabilities are confusing. Some
commenters requested additional
guidance and flexibility for special
education teachers teaching two or more
core academic subjects. Other
commenters recommended allowing
special education teachers more time to
become highly qualified in all the core
academic subjects they teach.
Discussion:
The requirements in
§ 300.18(d), consistent with section
602(10)(C) of the Act, provide flexibility
for teachers who teach multiple core
academic subjects exclusively to
children with disabilities. Section
300.18(d)(2) and (3) allows teachers who
are new and not new in the profession
to demonstrate competence in all the
core academic subjects in which the
teacher teaches using a single, high
objective uniform State standard of
evaluation (HOUSSE) covering multiple
subjects. In addition, § 300.18(d)(3)
gives a new special education teacher
who teaches multiple subjects, and who
is highly qualified in mathematics,
language arts, or science at the time of
hire, two years after the date of
employment to demonstrate competence
in the other core academic subjects in
which the teacher teaches. We do not
believe that further clarification is
necessary.
Changes:
None.
Comment:
One commenter requested
clarification regarding the meaning of
the following phrases in § 300.18(d):
‘‘multiple subjects,’’ ‘‘in the same
manner,’’ and ‘‘all the core academic
subjects.’’
Discussion:
‘‘Multiple subjects’’ refers
to two or more core academic subjects.
Section 300.18(d) allows teachers who
are new or not new to the profession to
demonstrate competence in ‘‘all the core
subjects’’ in which the teacher teaches
‘‘in the same manner’’ as is required for
an elementary, middle, or secondary
school teacher under the ESEA. As used
in this context, ‘‘in the same manner’’
means that special education teachers
teaching multiple subjects can
demonstrate competence in the core
academic subjects they teach in the
same way that is required for
elementary, middle, or secondary school
teachers in 34 CFR 200.56 of the ESEA
regulations. ‘‘All the core subjects’’
refers to the core academic subjects,
which include English, reading or
language arts, mathematics, science,
foreign languages, civics and
government, economics, arts, history,
and geography, consistent with § 300.10.
Changes:
None.
Comment:
One commenter
recommended ensuring that the
requirements in § 300.18(d) apply to
special education teachers who teach
children with severe disabilities in more
than one core subject area.
Discussion:
The requirements in
§ 300.18(d) do not exclude teachers who
teach children with severe disabilities
in more than one core subject area.
Consistent with § 300.18(d) and section
602(10)(D) of the Act, the requirements
apply to special education teachers who
teach two or more core academic
subjects exclusively to children with
disabilities, including, but not limited
to, children with severe disabilities. We
do not believe that further clarification
is necessary.
Changes:
None.
Comment:
A significant number of
commenters recommended adding
language to the regulations to permit a
separate HOUSSE for special education
teachers, including a single HOUSSE
that covers multiple subjects. Some
commenters supported a single
HOUSSE covering multiple subjects for
special education teachers, as long as
those adaptations of a State’s HOUSSE
for use with special education teachers
do not establish lower standards for the
content knowledge requirements for
special education teachers.
Discussion:
States have the option of
developing a method by which teachers
can demonstrate competency in each
subject they teach on the basis of a
HOUSSE. Likewise, we believe States
should have the option of developing a
separate HOUSSE for special education
teachers.
States have flexibility in developing
their HOUSSE evaluation as long as it
meets each of the following criteria
established in section 9101(23)(C)(ii) of
the ESEA:
•
Be set by the State for both grade-
appropriate academic subject-matter
knowledge and teaching skills;
•
Be aligned with challenging State
academic content and student academic
achievement standards and developed
in consultation with core content
specialists, teachers, principals, and
school administrators;
•
Provide objective, coherent
information about the teacher’s
attainment of core content knowledge in
the academic subjects in which a
teacher teaches;
•
Be applied uniformly to all teachers
in the same academic subject and
teaching in the same grade level
throughout the State;
•
Take into consideration, but not be
based primarily on, the time the teacher
has been teaching in the academic
subject; and
•
Be made available to the public
upon request.
The ESEA also permits States, when
developing their HOUSSE procedures,
to involve multiple, objective measures
of teacher competency. Each evaluation
should have a high, objective, uniform
standard that the candidate is expected
to meet or to exceed. These standards
for evaluation must be applied to each
candidate in the same way.
We believe it is appropriate and
consistent with the Act to permit States
to develop a separate HOUSSE for
special education teachers to
demonstrate subject matter competency
and to use a single HOUSSE covering
multiple subjects, provided that any
adaptations to the HOUSSE do not
establish a lower standard for the
content knowledge requirements for
special education teachers and meet all
the requirements for a HOUSSE for
regular education teachers established
in section 9101(23)(C)(ii) of the ESEA.
Changes:
We have added a new
paragraph (e) to § 300.18 to allow States
to develop a separate HOUSSE for
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special education teachers and to permit
the use of a single HOUSSE covering
multiple subjects. Subsequent
paragraphs have been renumbered.
Comment:
A few commenters stated
that the HOUSSE should only be used
to address the content requirements, not
primary certification as a special
educator.
Discussion:
A HOUSSE is a method
by which teachers can demonstrate
competency in each subject they teach.
A HOUSSE does not address the
requirement for full State certification as
a special education teacher.
Changes:
None.
Comment:
Several commenters
recommended clarifying the
requirements for a HOUSSE,
particularly at the high school level.
One commenter recommended
clarifying the use of a separate HOUSSE
for teachers of children with visual
impairments.
Discussion:
The requirements for a
HOUSSE apply to public school
elementary, middle, and high school
special education teachers. Neither the
Act nor the ESEA provides for different
HOUSSE procedures at the high school
level. Similarly, there are no
requirements for separate HOUSSE
procedures for teachers who teach
children with visual impairments or any
other specific type of disability. We do
not believe it is necessary or appropriate
to establish separate requirements for
separate HOUSSE procedures for
teachers who teach children with visual
impairments or any other specific type
of disability. All children with
disabilities, regardless of their specific
disability, should have teachers with the
subject matter knowledge to assist them
to achieve to high academic standards.
Changes:
None.
Comment:
One commenter
recommended that States work
collaboratively to ensure there is State
reciprocity of content area standards for
special education teachers, including
HOUSSE provisions.
Discussion:
It is up to each State to
determine when and on what basis to
accept another State’s determination
that a particular teacher is highly
qualified. Additionally, each State
determines whether to consider a
teacher from another State to be both
fully certified and competent in each
subject area.
Changes:
None.
Comment:
One commenter requested
specific guidance on how to design a
multi-subject HOUSSE for special
education teachers.
Discussion:
The Department’s non-
regulatory guidance on
Improving
Teacher Quality State Grants
issued on
August 3, 2005 (available at
http://
www.ed.gov/programs/teacherqual/
guidance.doc.
) provides the following
guidance to States when developing
their HOUSSE procedures (see question
A–10):
•
Do the HOUSSE procedures provide
an ‘‘objective’’ way of determining
whether teachers have adequate subject-
matter knowledge in each core academic
subject they teach?
•
Is there a strong and compelling
rationale for each part of the HOUSSE
procedures?
•
Do the procedures take into
account, but not primarily rely on,
previous teaching experience?
•
Does the plan provide solid
evidence that teachers have mastered
the subject-matter content of each of the
core academic subjects they are
teaching? (Note: experience and
association with content-focused groups
or organizations do not necessarily
translate into an objective measure of
content knowledge.)
•
Has the State consulted with core
content specialists, teachers, principals,
and school administrators?
•
Does the State plan to widely
distribute its HOUSSE procedures, and
are they presented in a format
understandable to all teachers?
Changes:
None.
Comment:
A few commenters asked
whether the additional time allowed for
teachers living in rural areas who teach
multiple subjects applies to special
education teachers. One commenter
requested that teachers in rural areas
have three extra years after the date of
employment to meet the standards.
Another commenter stated it will be
difficult for these teachers to meet the
highly qualified special education
teacher requirements even with an
extended deadline.
Discussion:
The Department’s policy
on flexibility for middle and high school
teachers in rural schools applies to
special education teachers. Under this
policy, announced on March 15, 2004,
States may permit LEAs eligible to
participate in the Small Rural School
Achievement (SRSA) program that
employ teachers who teach multiple
subjects and are highly qualified in at
least one core academic subject, to have
until the end of the 2006–07 school year
for these teachers to be highly qualified
in each subject that they teach. Newly-
hired teachers in these covered LEAs
have three years from the date of hire to
become highly qualified in each core
academic subject that they teach. More
information about this policy is
available in the Department’s
nonregulatory guidance,
Improving
Teacher Quality State Grants
(August 3,
2005), which can be found on the
Department’s Web site at:
http://
www.ed.gov/programs/teacherqual/
guidance.doc
.
Changes:
None.
Comment:
Some commenters
requested a definition of ‘‘new’’ special
education teacher and asked whether it
applies to teachers hired after the date
of enactment of the Act, December 3,
2004, or after the 2005–06 school year.
One commenter asked whether a fully
certified regular education teacher who
enrolls in a special education teacher
training program would be considered
‘‘new’’ to the profession when he or she
completes the training program.
Discussion:
Under the Act, mere
completion of a special education
teacher training program is not a
sufficient predicate for being considered
a highly qualified special education
teacher. Section 602(10)(B) of the Act
requires full State certification or
licensure as a special education teacher,
and this would apply to teachers who
are already certified or licensed as a
regular education teacher, as well as to
other individuals.
On the question of when a person is
‘‘new to the profession,’’ the
Department’s non-regulatory guidance
on
Improving Teacher Quality State
Grants
issued on August 3, 2005,
clarifies that States have the authority to
define which teachers are new and not
new to the profession; however, those
definitions must be reasonable. The
guidance further states that the
Department strongly believes that a
teacher with less than one year of
teaching experience is ‘‘new’’ to the
profession (see Question A–6). (The
guidance is available at
http://
www.ed.gov/programs/teacherqual/
guidance.doc
). This guidance is
applicable to determinations of when a
person is new or not new to the
profession under section 602(10)(C) and
(D)(ii) of the Act and § 300.18(c) and
(d)(2).
Under section 602(10)(D)(iii) of the
Act, and reflected in § 300.18(d)(3),
there is additional flexibility for ‘‘a new
special education teacher’’ who is
teaching multiple subjects and is highly
qualified in mathematics, language arts,
or science, to demonstrate competence
in the other core academic subjects in
which the teacher teaches in the same
manner as is required for an elementary,
middle, or secondary school teacher
who is not new to the profession, which
may include a single, high objective
uniform State standard of evaluation
covering multiple subjects, not later
than 2 years after the date of
employment. The phrase ‘‘2 years after
the date of employment’’ in section
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602(10)(D)(iii) of the Act is interpreted
to mean 2 years after employment as a
special education teacher.
For purposes of this provision, we
consider it appropriate to consider a
fully certified regular education teacher
who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
‘‘new special education teacher’’ when
they are first hired as a special
education teacher. We will add language
to new § 300.18(g) (proposed § 300.18(f))
to make this clear.
Changes:
We have restructured
§ 300.18(g) (proposed § 300.18(f)) and
added a new paragraph (g)(2) to permit
a fully certified regular education
teacher who subsequently becomes fully
certified or licensed as a special
education teacher to be considered a
new special education teacher when
first hired as a special education
teacher.
Comment:
Some commenters
recommended that the regulations
clarify how co-teaching fits with the
highly qualified special education
teacher requirements. A few
commenters stated that a special
education teacher should be considered
a highly qualified teacher if co-teaching
with a highly qualified general
education teacher. One commenter
stated that co-teaching will encourage
districts to work toward more inclusive
settings for children with disabilities
while also ensuring that teachers with
appropriate qualifications are in the
classroom. One commenter supported
co-teaching as a method for special
education teachers to learn core content
knowledge and be supported by the
general education teacher. One teacher
recommended that a highly qualified
general education teacher supervise
teachers who do not meet the highly
qualified special education teacher
requirements.
Discussion:
The term ‘‘co-teaching’’
has many different meanings depending
on the context in which it is used.
Whether and how co-teaching is
implemented is a matter that is best left
to State and local officials’ discretion.
Therefore, we decline to include
language regarding co-teaching in these
regulations. Regardless of whether co-
teaching models are used, States and
LEAs must ensure that teachers meet the
highly qualified teacher requirements in
34 CFR 200.56 and section 9101(23) of
the ESEA and the highly qualified
special education teacher requirements
in § 300.18 and section 602(10) of the
Act, as well as the personnel
requirements in § 300.156 and section
612(a)(14) of the Act.
Changes:
None.
Comment:
One commenter
recommended requiring schools to post
the credentials of educational personnel
in a place with public access, and to
include in the procedural safeguards
notice a parent’s right to request the
credentials of any teacher who supports
the child in an educational
environment. Another commenter stated
that parents should have access to
records documenting the type of
supervision that is being provided when
a teacher or other service provider is
under the supervision of a highly
qualified teacher. One commenter stated
that the ESEA requires districts to
provide parents with information about
the personnel qualifications of their
child’s classroom teachers and asked
whether this requirement applies to
special education teachers.
Discussion:
There is nothing in the
Act that authorizes the Department to
require schools to publicly post the
credentials of educational personnel or
to provide parents with information
about the qualification of their child’s
teachers and other service providers.
Section 615 of the Act describes the
guaranteed procedural safeguards
afforded to children with disabilities
and their parents under the Act but does
not address whether parents can request
information about the qualifications of
teachers and other service providers.
However, section 1111(h)(6) of the
ESEA requires LEAs to inform parents
about the quality of a school’s teachers
in title I schools. The ESEA requires that
at the beginning of each school year, an
LEA that accepts title I, part A funding
must notify parents of children in title
I schools that they can request
information regarding their child’s
classroom teachers, including, at a
minimum: (1) Whether the teacher has
met the State requirements for licensure
and certification for the grade levels and
subject matters in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide parents with timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to those special
education teachers who teach core
academic subjects in title I schools.
Changes:
None.
Rule of Construction (New § 300.18(f))
(Proposed § 300.18(e))
Comment:
A number of commenters
stated that the rule of construction in
new § 300.18(f) (proposed § 300.18(e))
and § 300.156(e) should use the same
language. One commenter stated that in
order to prevent confusion, the right of
action limitations regarding highly
qualified teachers in new § 300.18(f)
(proposed § 300.18(e)) and personnel
qualifications in § 300.156(e) should use
consistent language regarding
individual and class actions, and clearly
underscore that the limitations are
applicable to both administrative and
judicial actions. One commenter
recommended reiterating the language
from section 612(a)(14)(D) of the Act
that nothing prevents a parent from
filing a State complaint about staff
qualifications. Another commenter
expressed concern because new
§ 300.18(f) (proposed § 300.18(e)) and
§ 300.156(e) may be construed to
prevent due process hearings when an
LEA or SEA fails to provide a highly
qualified teacher.
Discussion:
We agree that the rule of
construction in new § 300.18(f)
(proposed § 300.18(e)) and § 300.156(e)
should be the same. We will change the
regulations to clarify that a parent or
student may not file a due process
complaint on behalf of a student, or file
a judicial action on behalf of a class of
students for the failure of a particular
SEA or LEA employee to be highly
qualified; however, a parent may file a
complaint about staff qualifications with
the SEA. In addition to permitting a
parent to file a complaint with the SEA,
an organization or an individual may
also file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§ 300.151 through 300.153.
Changes:
We have added ‘‘or to
prevent a parent from filing a complaint
about staff qualifications with the SEA
as provided for under this part’’ in new
§ 300.18(f) (proposed § 300.18(e)).
Comment:
Several commenters
recommended that the regulations
specify that the failure of an SEA or LEA
to provide a child with a disability a
highly qualified teacher can be a
consideration in the determination of
whether a child received FAPE, if the
child is not learning the core content
standards or not meeting IEP goals.
However, a few commenters
recommended that the regulations
clarify that it is not a denial of FAPE if
a special education teacher is not highly
qualified.
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Discussion:
If the only reason a parent
believes their child was denied FAPE is
that the child did not have a highly
qualified teacher, the parent would have
no right of action under the Act on that
basis. The rules of construction in new
§ 300.18(f) (proposed § 300.18(e)) and
§ 300.156(e) do not allow a parent or
student to file a due process complaint
for failure of an LEA or SEA to provide
a highly qualified teacher.
Changes:
None.
Comment:
One commenter expressed
concern with the rule of construction in
new § 300.18(f) (proposed § 300.18(e))
because there are no requirements to
develop a specific enforcement system
to ensure that teachers meet the highly
qualified standard. A few commenters
recommended changing the rule of
construction so that States meet their
supervisory responsibilities under the
Act if LEAs in the State are sanctioned
under the ESEA for not having highly
qualified teachers.
Some commenters recommended
clarifying that when the SEA or LEA
employs an individual who is not
highly qualified, States meet their
responsibilities for general supervision
under the Act through the notice and
other sanction procedures identified
under the ESEA.
One commenter stated that the
regulations are silent with regard to SEA
actions when meeting the general
supervision requirements under the Act,
and noted that unless the regulations are
expanded to clarify that SEA
enforcement procedures under
compliance monitoring are limited to
ESEA enforcement procedures, the
highly qualified teacher requirements of
an individual teacher may
inappropriately become the target for a
finding of noncompliance. This
commenter further stated that the ESEA
contains specific procedures for failure
of a district to comply with the highly
qualified teacher provisions, and if the
SEA also exercises sanctioning authority
under the Act, schools could be
punished twice under two separate
provisions of Federal law for the same
infraction. The commenter
recommended that to avoid double
jeopardy the regulations should clarify
that the ESEA enforcement procedures
for a district’s failure to hire a highly
qualified teacher follow the provisions
of the ESEA, not the Act.
Discussion:
The implementation and
enforcement of the highly qualified
teacher standards under the ESEA and
the Act complement each other. The
Office of Elementary and Secondary
Education (OESE) currently monitors
the implementation of the highly
qualified teacher standards for teachers
of core academic subjects under the
ESEA. This includes special education
teachers who teach core academic
subjects.
The Office of Special Education
programs (OSEP) collects data about
special education personnel
qualifications and requires that SEAs
establish and maintain qualifications to
ensure that personnel essential to
carrying out the purposes of Part B of
the Act are appropriately and
adequately prepared and trained. Those
personnel must also have the content
knowledge and skills to serve children
with disabilities, consistent with
§ 300.156.
OESE and OSEP will share their data
to ensure that the highly qualified
teacher requirements under the ESEA
and the Act are met. This sharing of
information will also prevent schools
from being punished twice for the same
infraction.
Changes:
None.
Teachers Hired by Private Elementary
and Secondary Schools (New
§ 300.18(h)) (Proposed § 300.18(g))
Comment:
Some commenters agreed
with new § 300.18(h) (proposed
§ 300.18(g)), which states that the highly
qualified special education teacher
requirements do not apply to teachers
hired by private elementary schools and
secondary schools. However, many
commenters disagreed, stating that
children placed by an LEA in a private
school are entitled to receive the same
high quality instruction as special
education children in public schools. A
few commenters stated that LEAs will
place children in private schools to
avoid hiring highly qualified teachers.
Some commenters stated that public
funds should not be used for any school
that is not held to the same high
standards as public schools. Other
commenters stated that children with
the most significant disabilities who are
placed in private schools are children
with the most need for highly qualified
teachers. A few commenters stated that
this provision is contrary to the intent
of the ESEA and the Act to support the
educational achievement of children
with disabilities. Other commenters
stated that if instruction by a highly
qualified teacher is a hallmark of FAPE,
it should be an element of FAPE in any
educational setting in which the child is
enrolled by a public agency.
A few commenters recommended that
States have the discretion to determine
whether and to what extent the highly
qualified teacher requirements apply to
teachers who teach publicly-placed and
parentally-placed children with
disabilities. The commenters stated that
the SEA is in the best position to weigh
the needs of private school children for
highly qualified teachers and to assess
what effect these requirements would
have on the shortage of special
education teachers in the State. One
commenter asked whether the highly
qualified teacher requirements apply to
providers in private residential
treatment centers where children with
disabilities are placed to receive FAPE.
Discussion:
New § 300.18(h)
(proposed § 300.18(g)) accurately
reflects the Department’s position that
the highly qualified special education
teacher requirements do not apply to
teachers hired by private elementary
schools and secondary schools. This
includes teachers hired by private
elementary schools and secondary
schools who teach children with
disabilities. Consistent with this
position and in light of comments
received regarding the requirements for
private school teachers providing
equitable services for parentally-placed
private school children with disabilities
under § 300.138, we will add language
to new § 300.18(h) (proposed
§ 300.18(g)) to clarify that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities
under § 300.138.
Changes:
We have added language in
new § 300.18(h) (proposed § 300.18(g))
to clarify that the highly qualified
special education teacher requirements
also do not apply to private school
teachers who provide equitable services
to parentally-placed private school
children with disabilities under
§ 300.138.
Homeless Children (§ 300.19)
Comment:
Several commenters
requested adding the definition of
homeless children
in the regulations so
that it is readily accessible to parents,
advocates, and educators.
Discussion:
The term
homeless
children
is defined in the McKinney-
Vento Homeless Assistance Act. For the
reasons set forth earlier in this notice,
we are not adding the definitions of
other statutes to these regulations.
However, we will include the current
definition of
homeless children
in
section 725 (42 U.S.C. 11434a) of the
McKinney-Vento Homeless Assistance
Act, as amended, 42 U.S.C. 11431
et seq.
(McKinney-Vento Act) here for
reference.
The term homeless children and
youths—
(A) means individuals who lack a
fixed, regular, and adequate nighttime
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residence (within the meaning of
section 103(a)(1)); and
(B) includes—
(i) children and youths who are
sharing the housing of other persons
due to loss of housing, economic
hardship, or a similar reason; are living
in motels, hotels, trailer parks, or
camping grounds due to the lack of
alternative adequate accommodations;
are living in emergency or transitional
shelters; are abandoned in hospitals; or
are awaiting foster care placement;
(ii) children and youths who have a
primary nighttime residence that is a
public or private place not designed for
or ordinarily used as a regular sleeping
accommodation for human beings
(within the meaning of section
103(a)(2)(C));
(iii) children and youths who are
living in cars, parks, public spaces,
abandoned buildings, substandard
housing, bus or train stations, or similar
settings; and
(iv) migratory children (as such term
is defined in section 1309 of the
Elementary and Secondary Education
Act of 1965) who qualify as homeless
for the purposes of this subtitle because
the children are living in circumstances
described in clauses (i) through (iii).
Changes:
None.
Comment:
One commenter stated that
regulations are needed to address school
selection and enrollment provisions
under the McKinney-Vento Act.
Another commenter recommended that
the regulations include the McKinney-
Vento Act’s requirement that school
stability for homeless children be
maintained during periods of residential
mobility and that homeless children
enrolled in new schools have the ability
to immediately attend classes and
participate in school activities.
Discussion:
We appreciate the
commenters’ concerns, but do not
believe it is necessary to duplicate the
requirements of the McKinney-Vento
Act in these regulations. We believe that
these issues, as well as other issues
regarding children with disabilities who
are homeless, would be more
appropriately addressed in non-
regulatory guidance, in which more
detailed information and guidance can
be provided on how to implement the
requirements of the Act and the
McKinney-Vento Act to best meet the
needs of homeless children with
disabilities. We will work with the
Office of Elementary and Secondary
Education to provide guidance and
disseminate information to special
education teachers and administrators
regarding their responsibilities for
serving children with disabilities who
are homeless.
Changes:
None.
Indian and Indian Tribe (§ 300.21)
Comment:
One commenter expressed
support for combining and moving the
definition of
Indian and Indian tribe
from current § 300.264 to the definitions
section of these regulations because the
term is applicable in instances not
related to BIA schools. However,
another commenter stated that the
definition was unnecessary because the
purpose of the Act is to ensure that
every child has FAPE.
Discussion:
The definitions of
Indian
and Indian tribe
are included in
sections 602(12) and (13) of the Act,
respectively, and are, therefore,
included in subpart A of these
regulations. Subpart A includes
definitions for those terms and phrases
about which we are frequently asked
and which we believe will assist SEAs
and LEAs in implementing the
requirements of the Act. Including the
definitions of
Indian and Indian tribe
in
the definitions section does not in any
way affect the provision of FAPE to all
eligible children under the Act.
Changes:
None.
Comment:
One commenter requested
omitting ‘‘State Indian tribes’’ that are
not also federally-recognized tribes from
the definition of
Indian and Indian tribe
stating that Federal recognition of an
Indian tribe should be a predicate for
the tribe’s eligibility for Federal
programs and services. One commenter
expressed concern that including ‘‘State
Indian tribes’’ in the definition could
imply that the Secretary of the Interior
is responsible for providing special
education and related services or
funding to all State Indian tribes.
Discussion:
Section 602(13) of the Act
and § 300.21(b) define
Indian tribe
as
‘‘any Federal or State Indian tribe’’ and
do not exclude State Indian tribes that
are not federally-recognized tribes. We
will add a new paragraph (c) to § 300.21
clarifying that the definition of
Indian
and Indian tribe
is not intended to
indicate that the Secretary of Interior is
required to provide services or funding
to a State Indian tribe that is not listed
in the
Federal Register
list of Indian
entities recognized as eligible to receive
services from the United States,
published pursuant to Section 104 of
the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a–1.
Changes:
A new paragraph (c) has
been added to § 300.21 to provide this
clarification.
Comment:
One commenter stated that
it was unclear how many States have
defined Indian tribes that are not
defined by the Federal government and
asked what the effect would be on the
provision of services by including State
Indian tribes in the definition. Another
commenter stated that including State
Indian tribes in the definition of
Indian
and Indian tribe
implies that children of
State-recognized tribes are considered
differently than other children.
Discussion:
As noted in the
discussion responding to the previous
comment, the list of Indian entities
recognized as eligible to receive services
from the United States is published in
the
Federal Register
, pursuant to
Section 104 of the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C.
479a–1. The Federal government does
not maintain a list of other State Indian
tribes. Including State Indian tribes that
are not federally recognized in the
definition does not affect who is
responsible under the Act for the
provision of services to children with
disabilities who are members of State
Indian tribes. Under section 611(h)(1) of
the Act, the Secretary of the Interior is
responsible for providing special
education and related services to
children age 5 through 21 with
disabilities on reservations who are
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. With respect to all other
children aged 3 through 21 on
reservations, the SEA of the State in
which the reservation is located is
responsible for ensuring that all the
requirements of Part B of the Act are
implemented.
Changes:
None.
Individualized Family Service Plan
(§ 300.24)
Comment:
A few commenters
recommended including the entire
definition of
individualized family
service plan
in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion:
Adding the entire
definition of
individualized family
service plan
in section 636 of the Act,
which includes information related to
assessment and program development;
periodic review; promptness after
assessment; content of the plan; and
parental consent, would unnecessarily
add to the length of the regulations.
However, the required content of the
IFSP in section 636(d) of the Act is
added here for reference.
The
individualized family service
plan
shall be in writing and contain—
(1) A statement of the infant’s or
toddler’s present levels of physical
development, cognitive development,
communication development, social or
emotional development, and adaptive
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development, based on objective
criteria;
(2) a statement of the family’s
resources, priorities, and concerns
relating to enhancing the development
of the family’s infant or toddler with a
disability;
(3) a statement of the measurable
results or outcomes expected to be
achieved for the infant or toddler and
the family, including pre-literacy and
language skills, as developmentally
appropriate for the child, and the
criteria, procedures, and timelines used
to determine the degree to which
progress toward achieving the results or
outcomes is being made and whether
modifications or revisions of the results
or outcomes or services are necessary;
(4) a statement of specific early
intervention services based on peer-
reviewed research, to the extent
practicable, necessary to meet the
unique needs of the infant or toddler
and the family, including the frequency,
intensity, and method of delivering
services;
(5) a statement of the natural
environments in which early
intervention services will appropriately
be provided, including a justification of
the extent, if any, to which the services
will not be provided in a natural
environment;
(6) the projected dates for initiation of
services and the anticipated length,
duration, and frequency of the services;
(7) the identification of the service
coordinator from the profession most
immediately relevant to the infant’s or
toddler’s or family’s needs (or who is
otherwise qualified to carry out all
applicable responsibilities under this
part) who will be responsible for the
implementation of the plan and
coordination with other agencies and
persons, including transition services;
and
(8) the steps to be taken to support the
transition of the toddler with a
disability to preschool or other
appropriate services.
Changes:
None.
Infant or Toddler With a Disability
(§ 300.25)
Comment:
A few commenters
recommended including the entire
definition of
infant or toddler with a
disability
in the regulations so that
parents and school personnel do not
have to shift back and forth between
documents.
Discussion:
We agree with the
commenters and, therefore, will include
the definition of
infant or toddler with
a disability
from section 632(5) of the
Act in these regulations for reference.
Changes:
Section 300.25 has been
revised to include the entire definition
of
infant or toddler with a disability
from section 632(5) of the Act.
Institution of Higher Education
(§ 300.26)
Comment:
One commenter
recommended including the definition
of
institution of higher education
in
these regulations.
Discussion:
The term
institution of
higher education
is defined in section
101 of the Higher Education Act of
1965, as amended, 20 U.S.C. 1021
et
seq.
(HEA). For the reasons set forth
earlier in this notice, we are not adding
definitions from other statutes to these
regulations. However, we are including
the current definition here for reference.
(a) Institution of higher education—
For purposes of this Act, other than title
IV, the term
institution of higher
education
means an educational
institution in any State that—
(1) Admits as regular students only
persons having a certificate of
graduation from a school providing
secondary education, or the recognized
equivalent of such a certificate;
(2) is legally authorized within such
State to provide a program of education
beyond secondary education;
(3) provides an educational program
for which the institution awards a
bachelor’s degree or provides not less
than a 2-year program that is acceptable
for full credit toward such a degree;
(4) is a public or other nonprofit
institution; and
(5) is accredited by a nationally
recognized accrediting agency or
association, or if not so accredited, is an
institution that has been granted
preaccreditation status by such an
agency or association that has been
recognized by the Secretary for the
granting of preaccreditation status, and
the Secretary has determined that there
is satisfactory assurance that the
institution will meet the accreditation
standards of such an agency or
association within a reasonable time.
(b) Additional Institutions Included—
For purposes of this Act, other than title
IV, the term
institution of higher
education
also includes—
(1) Any school that provides not less
than a 1-year program of training to
prepare students for gainful
employment in a recognized occupation
and that meets the provision of
paragraphs (1), (2), (4), and (5) of
subsection (a); and
(2) a public or nonprofit private
educational institution in any State that,
in lieu of the requirement in subsection
(a)(1), admits as regular students
persons who are beyond the age of
compulsory school attendance in the
State in which the institution is located.
Changes:
None.
Comment:
One commenter requested
that we add language to the regulations
that would allow Haskell and Sipi,
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731
et seq.
, to be included in the
definition of
institution of higher
education.
Discussion:
The Haskell and Sipi
postsecondary programs under the
Haskell Indian Nations University and
Southwestern Indian Polytechnic
Institute Administrative Act of 1988, 25
U.S.C. 3731
et seq.
meet the statutory
definition of
institution of higher
education
in section 602(17) of the Act
because they meet the definition of the
term in section 101 of the HEA. The Act
does not include specific institutions in
the definition of
institution of higher
education
, nor do we believe it is
necessary to add specific institutions to
the definition in § 300.26.
Changes:
None.
Limited English Proficient (§ 300.27)
Comment:
One commenter requested
specific information about bilingual
qualified personnel and qualified
interpreters. Some commenters
recommended including the definition
of ‘‘limited English proficient’’ in the
regulations.
Discussion:
Each State is responsible
for determining the qualifications of
bilingual personnel and interpreters for
children with limited English
proficiency.
The term
limited English proficient
is
defined in the ESEA. For the reasons set
forth earlier in this notice, we are not
adding the definitions from other
statutes to these regulations. However,
we will include the current definition in
section 9101(25) of the ESEA here for
reference.
The term
limited English proficient
when used with respect to an
individual, means an individual—
(A) Who is aged 3 through 21;
(B) Who is enrolled or preparing to
enroll in an elementary school or
secondary school;
(C)(i) who was not born in the United
States or whose native language is a
language other than English;
(ii)(I) who is a Native American or
Alaska Native, or a native resident of the
outlying areas; and
(II) who comes from an environment
where a language other than English has
had a significant impact on the
individual’s level of English language
proficiency; or
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(iii) who is migratory, whose native
language is a language other than
English, and who comes from an
environment where a language other
than English is dominant; and
(D) whose difficulties in speaking,
reading, writing, or understanding the
English language may be sufficient to
deny the individual—
(i) the ability to meet the State’s
proficient level of achievement on State
assessments described in section
1111(b)(3);
(ii) the ability to successfully achieve
in classrooms where the language of
instruction is English; or
(iii) the opportunity to participate
fully in society.
Changes:
None.
Local Educational Agency (§ 300.28)
Comment:
One commenter suggested
revising § 300.28 to ensure that all
responsibilities and rights attributed to
an LEA apply to an ESA.
Discussion:
We believe that the
provisions in § 300.12 and § 300.28 are
clear that ESAs have full responsibilities
and rights as LEAs. We, therefore,
decline to revise § 300.28.
Changes:
None.
Comment:
None.
Discussion:
Through its review of
charter schools’ access to Federal
funding, it has come to the Department’s
attention that additional guidance is
needed regarding whether charter
schools that are established as their own
LEAs must be nonprofit entities in order
to meet the definition of LEA in
§ 300.28. The definition of
LEA
in
§ 300.28(b)(2) specifically includes a
public charter school that is established
as an LEA under State law and that
exercises administrative control or
direction of, or performs a service
function for, itself. For purposes of the
Act, the definitions of
charter school,
elementary school
, and
secondary
school
in §§ 300.7, 300.13, and 300.36,
respectively, require that a public
elementary or secondary charter school
be a nonprofit entity. Therefore, a public
elementary or secondary charter school
established as its own
LEA
under State
law, also must be a nonprofit entity.
Although these regulations do not
specifically define nonprofit, the
definition in 34 CFR § 77.1 applies to
these regulations. In order to eliminate
any confusion on this issue, we will
revise the definition of
LEA
to reflect
that a public elementary or secondary
charter school that is established as its
own LEA under State law must be a
nonprofit entity.
Changes:
For clarity, we have revised
§ 300.28(b)(2) by inserting the term
‘‘nonprofit’’ before ‘‘charter school that
is established as an LEA under State
law.’’
Comment:
One commenter stated that
§ 300.28(c) is in error from a technical
drafting perspective because it does not
follow the statutory language in section
602(19)(C) of the Act. The commenter
also suggested adding a definition of
‘‘BIA funded school,’’ rather than
adding a new definition of LEA related
to BIA funded schools.
Discussion:
We agree that § 300.28(c)
does not accurately reflect the statutory
language in section 602(19)(C) of the Act
and, as written, could be interpreted as
defining BIA funded schools. This was
not our intent. Rather, the intent was to
include ‘‘BIA funded schools’’ in the
definition of
LEA
, consistent with
section 602(19)(C) of the Act.
In order to correct the technical
drafting error, we will change
§ 300.28(c) to accurately reflect section
602(19)(C) of the Act. We decline to add
a definition of ‘‘BIA funded schools.’’
The Act does not define this term and
the Department does not believe that it
is necessary to define the term.
Changes:
In order to correct a
technical drafting error, § 300.28(c) has
been revised to be consistent with
statutory language.
Native Language (§ 300.29)
Comment:
A few commenters
expressed support for retaining the
definition of
native language
, stating
that it is important to clarify that sign
language is the native language of many
children who are deaf. One commenter
stated it is important to clarify that the
language normally used by the child
may be different than the language
normally used by the parents. Another
commenter stated that the definition of
native language
does not adequately
cover individuals with unique language
and communication techniques such as
deafness or blindness or children with
no written language.
Discussion:
The definition of
native
language
was expanded in the 1999
regulations to ensure that the full range
of needs of children with disabilities
whose native language is other than
English is appropriately addressed. The
definition clarifies that in all direct
contact with the child (including an
evaluation of the child),
native language
means the language normally used by
the child and not that of the parents, if
there is a difference between the two.
The definition also clarifies that for
individuals with deafness or blindness,
or for individuals with no written
language, the
native language
is the
mode of communication that is
normally used by the individual (such
as sign language, Braille, or oral
communication). We believe this
language adequately addresses the
commenters’ concerns.
Changes:
None.
Parent (§ 300.30)
Comment:
Several commenters
objected to the term ‘‘natural parent’’ in
the definition of
parent
because
‘‘natural parent’’ presumes there are
‘‘unnatural parents.’’ The commenters
recommended using ‘‘birth parent’’ or
‘‘biological parent’’ throughout the
regulations.
Discussion:
We understand that many
people find the term ‘‘natural parent’’
offensive. We will, therefore, use the
term ‘‘biological parent’’ to refer to a
non-adoptive parent.
Changes:
We have replaced the term
‘‘natural parent’’ with ‘‘biological
parent’’ in the definition of
parent
and
throughout these regulations.
Comment:
A significant number of
commenters recommended retaining the
language in current § 300.20(b), which
states that a foster parent can act as a
parent if the biological parent’s
authority to make educational decisions
on the child’s behalf have been
extinguished under State law, and the
foster parent has an ongoing, long-term
parental relationship with the child; is
willing to make the educational
decisions required of parents under the
Act; and has no interest that would
conflict with the interest of the child.
A few commenters stated that current
§ 300.20(b) better protects children’s
interests and should not be removed.
Another commenter stated that
removing current § 300.20 will have
unintended consequences for the many
foster children who move frequently to
new homes because there will be
confusion as to who has parental rights
under the Act. A few commenters stated
that short-term foster parents may not
have the knowledge of the child or the
willingness to actively participate in the
special education process, which will
effectively leave the child without a
parent.
One commenter stated that § 300.30
needs to be changed to protect
biological and adoptive parents from
arbitrary decisions by educational
officials who lack the legal authority to
make educational decisions for the child
and to ensure that when no biological or
adoptive parent is available, a person
with a long-term relationship with, and
commitment to, the child has decision-
making authority.
Discussion:
Congress changed the
definition of parent in the Act. The
definition of
parent
in these regulations
reflects the revised statutory definition
of
parent
in section 602(23) of the Act.
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The Department understands the
concerns expressed by the commenters,
but believes that the changes requested
would not be consistent with the intent
of the statutory changes. In changing the
definition of
parent
in the Act, Congress
incorporated some of the wording from
the current regulations and did not
incorporate in the new definition of
parent
, the current foster parent
language referenced by the commenters.
Changes:
None.
Comment:
One commenter
recommended allowing a foster parent
who does not have a long-term
relationship to be the parent, if a court,
after notifying all interested parties,
determines that it is in the best interest
of the child.
Discussion:
Section 300.30(b)(2)
clearly states that if a person is specified
in a judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be considered the parent
under Part B of the Act.
Changes:
None.
Comment:
One commenter stated that
§ 300.30(a)(2) withdraws the rights of
biological parents under the Act without
due process of law.
Discussion:
We do not agree with the
commenter. If more than one person is
attempting to act as a parent,
§ 300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§ 300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. We do not believe that provisions
regarding lack of legal authority or
judicial orders or decrees would apply
unless there has already been a
determination, through appropriate
legal processes, that the biological
parent should not make educational
decisions for the child or that another
person has been ordered to serve as the
parent.
Changes:
None.
Comment:
One commenter stated that
§ 300.30(a)(2) is unwieldy and difficult
to implement because it requires
extensive fact finding by the LEA to
determine whether any contractual
obligations would prohibit the foster
parent from acting as a parent.
Discussion:
The statutory language
concerning the definition of
parent
was
changed to permit foster parents to be
considered a child’s parent, unless State
law prohibits a foster parent from
serving as a parent. The language in the
regulations also recognizes that similar
restrictions may exist in State
regulations or in contractual agreements
between a State or local entity and a
foster parent, and should be accorded
similar deference. We believe it is
essential for LEAs to have knowledge of
State laws, regulations, and any
contractual agreements between a State
or local entity and a foster parent to
ensure that the requirements in
§ 300.30(a)(2) are properly
implemented. States and LEAs should
develop procedures to make this
information more readily and easily
available so that LEAs do not have to
engage in extensive fact finding each
time a child with a foster parent enrolls
in a school.
Changes:
None.
Comment:
One commenter stated that
the regulations need to clarify that
guardians
ad litem
do not meet the
definition of a
parent
except for wards
of the State where consent for the initial
evaluation has been given by an
individual appointed by the judge to
represent the child in the educational
decisions concerning the child.
Discussion:
We agree that guardians
with limited appointments that do not
qualify them to act as a parent of the
child generally, or do not authorize
them to make educational decisions for
the child, should not be considered to
be a
parent
within the meaning of these
regulations. What is important is the
legal authority granted to individuals
appointed by a court, and not the term
used to identify them. Whether a person
appointed as a guardian
ad litem
has the
requisite authority to be considered a
parent
under this section depends on
State law and the nature of the person’s
appointment. We will revise
§ 300.30(a)(3) to clarify that a guardian
must be authorized to act as the child’s
parent generally or must be authorized
to make educational decisions for the
child in order to fall within the
definition of
parent
.
Changes:
We have added language in
§ 300.30(a)(3) to clarify when a guardian
can be considered a
parent
under the
Act.
Comment:
One commenter requested
adding a ‘‘temporary parent’’ appointed
in accordance with sections 615(b)(2) or
639(a)(5) of the Act to the definition of
parent
.
Discussion:
There is nothing in the
Act that would prevent a temporary
surrogate parent from having all the
rights of a parent. Note 89 of the Conf.
Rpt., p. 35810, provides that appropriate
staff members of emergency shelters,
transitional shelters, independent living
programs, and street outreach programs
would not be considered to be
employees of agencies involved in the
education or care of unaccompanied
youth (and thus prohibited from serving
as a surrogate parent), provided that
such a role is temporary until a
surrogate parent can be appointed who
meets the requirements for a surrogate
parent in § 300.519(d). This provision is
included in § 300.519(f), regarding
surrogate parents. Therefore, we do not
believe it is necessary to add
‘‘temporary parent’’ to the definition of
parent
in § 300.30.
Changes:
None.
Comment:
A few commenters stated
that the definition of
parent
is
confusing, especially in light of the
definition of
ward of the State
in new
§ 300.45 (proposed § 300.44) and the
LEA’s obligation to appoint a surrogate
parent. These commenters stated that
§ 300.30 should cross-reference the
definition of
ward of the State
in new
§ 300.45 (proposed § 300.44) and state
that the appointed surrogate parent for
a child who is a ward of the State is the
parent.
Discussion:
Section 615(b)(2) of the
Act does not require the automatic
appointment of a surrogate parent for
every child with a disability who is a
ward of the State. States and LEAs must
ensure that the rights of these children
are protected and that a surrogate parent
is appointed, if necessary, as provided
in § 300.519(b)(1). If a child who is a
ward of the State already has a person
who meets the definition of
parent
in
§ 300.30, and that person is willing and
able to assume the responsibilities of a
parent under the Act, a surrogate parent
might not be needed. Accordingly, we
do not believe it is necessary to make
the changes suggested by the
commenters.
Changes:
None.
Comment:
One commenter expressed
concern that public agencies will
require biological or adoptive parents to
affirmatively assert their rights or to take
action in order to be presumed to be the
parent. The commenter requested
clarifying in § 300.30(b)(1) that
biological or adoptive parents do not
have to take affirmative steps in order
for the presumption to apply.
Discussion:
The biological or adoptive
parent would be presumed to be the
parent under these regulations, unless a
question was raised about their legal
authority. There is nothing in the Act
that requires the biological or adoptive
parent to affirmatively assert their rights
to be presumed to be the parent. We
continue to believe that § 300.30(b)(1) is
clear and, therefore, will not make the
changes requested by the commenters.
Changes:
None.
Comment:
Some commenters
recommended removing ‘‘when
attempting to act as a parent under this
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part’’ in § 300.30(b)(1). A few
commenters stated that there is no
explanation of what it means for a
biological parent to ‘‘attempt to act as a
parent.’’ Another commenter stated that
the regulations do not set any guidelines
for determining how a public agency
decides if a biological or adoptive
parent is attempting to act as a parent.
One commenter stated ‘‘attempting to
act’’ would require LEAs to make
determinations about a biological
parent’s decision-making authority and
this should be left up to courts to
determine. One commenter stated that
the regulations permit multiple persons
to act as a child’s parent and do not
adequately set forth a process to
determine who should be identified as
the actual parent for decision-making
purposes. The commenter further stated
that the regulations do not set out a
procedure or a timeframe by which
public agency officials should
determine if a biological parent has
retained the right to make educational
decisions for his or her child.
One commenter stated that the
definition of
parent
gives school
districts excessive power; for example a
school could appoint a surrogate parent
if the foster parent was excessively
demanding. The commenter further
stated that a clearer order of priority and
selection mechanism with judicial
oversight needs to be in place so that
school districts cannot ‘‘parent shop’’
for the least assertive individual, and so
that relatives, foster parents, social
workers, and others involved with the
child will know who has educational
decision making authority.
One commenter questioned whether
§ 300.30(b) helps identify parents or
confuses situations in which the person
to be designated the parent is in dispute.
Another commenter stated that the
requirements in § 300.30(b) place the
responsibility of determining who
serves as the parent of a child in foster
care directly on the shoulders of school
administrators who are not child
welfare experts. The commenter
recommended that a foster parent
automatically qualify as a parent when
the rights of the child’s biological
parents have been extinguished and the
foster parent has a long-term
relationship with the child, no conflict
of interest, and is willing to make
educational decisions.
Discussion:
Section 300.30(b) was
added to assist schools and public
agencies in determining the appropriate
person to serve as the parent under Part
B of the Act in those difficult situations
in which more than one individual is
‘‘attempting to act as a parent’’ and
make educational decisions for a child.
It recognizes the priority of the
biological or adoptive parent and the
authority of the courts to make
decisions, and does not leave these
decisions to school administrators.
The phrase ‘‘attempting to act as a
parent’’ is generally meant to refer to
situations in which an individual
attempts to assume the responsibilities
of a parent under the Act. An individual
may ‘‘attempt to act as a parent’’ under
the Act in many situations; for example,
if an individual provides consent for an
evaluation or reevaluation, or attends an
IEP Team meeting as the child’s parent.
We do not believe it is necessary or
possible to include in these regulations
the numerous situations in which an
individual may ‘‘attempt to act as a
parent.’’
Section 300.30(b)(1) provides that the
biological or adoptive parent is
presumed to be the parent if that person
is attempting to act as the parent under
§ 300.30, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child, or there is a judicial order
or decree specifying some other person
to act as a parent under Part B of the
Act. Section 300.30(b)(2) provides that if
a person (or persons) is specified in a
judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be the parent under Part
B of the Act. We do not believe that it
is necessary for these regulations to
establish procedures or a timeline for a
public agency to determine whether a
biological parent has retained the right
to make educational decisions for a
child. Such procedures and timelines
will vary depending on how judicial
orders or decrees are routinely handled
in a State or locality, and are best left
to State and local officials to determine.
Changes:
None.
Comment:
A few commenters
recommended modifying § 300.30(b)(2)
to clarify that a court has the discretion
to decide who has the right to make
educational decisions for a child. One
commenter recommended clarifying
that the judicial decree referred to in
§ 300.30(b)(2) relates specifically to
divorce situations, rather than situations
involving children who are wards of the
State. Another commenter stated that
§ 300.30(b)(2) appears to be aimed at
situations where the court has
designated a parent, such as in a
custody decree, and that it is not clear
what the provision adds.
Discussion:
Section 300.30(b)(2)
specifically states that if a judicial
decree or order identifies a person or
persons to act as the parent of a child
or to make educational decisions on
behalf of a child, then that person
would be determined to be the parent.
It was intended to add clarity about who
would be designated a parent when
there are competing individuals under
§ 300.30(a)(1) through (4) who could be
considered a parent for purposes of this
part. It is not necessary to specify or
limit this language to provide that the
judicial decree or order applies to
specific situations, such as divorce or
custody cases. However, it should not
authorize courts to appoint individuals
other than those identified in
§ 300.30(a)(1) through (4) to act as
parents under this part. Specific
authority for court appointment of
individuals to provide consent for
initial evaluations in limited
circumstances is in § 300.300(a)(2)(c).
Authority for court appointment of a
surrogate parent in certain situations is
in § 300.519(c).
Changes:
We have revised
§ 300.30(b)(2) to limit its application to
individuals identified under
§ 300.30(a)(1) through (4) and have
deleted the phrase ‘‘except that a public
agency that provides education or care
for the child may not act as the parent’’
as unnecessary.
Comment:
One commenter
recommended allowing foster parents to
act as parents only when the birth
parent’s rights have been extinguished
or terminated. A few commenters
requested that the regulations clarify the
circumstances under which a foster
parent can take over educational
decision making. One commenter stated
that allowing a foster parent to act as a
parent would disrupt the special
education process.
Discussion:
Under § 300.30(a)(2), a
foster parent can be considered a parent,
unless State law, regulations, or
contractual obligations with a State or
local entity prohibit a foster parent from
acting as a parent. However, in cases
where a foster parent and a biological or
adoptive parent attempt to act as the
parent, § 300.30(b)(1) clarifies that the
biological or adoptive parent is
presumed to be the parent, unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child. Section
300.30(b)(2) further clarifies that if a
person or persons such as a foster parent
or foster parents is specified in a
judicial order or decree to act as the
parent for purposes of § 300.30, that
person would be the parent under Part
B of the Act. We do not believe that
further clarification is necessary.
Changes:
None.
Comment:
A few commenters
recommended that ‘‘extinguished under
State law’’ be defined to mean both
temporary and permanent termination
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of parental rights to make educational
decisions because this would allow
courts to make more timely decisions
regarding the role of a parent and not
feel bound to wait for a full termination
of parental rights.
Discussion:
The phrase ‘‘extinguished
under State law’’ is not used in the Act
or these regulations. The phrase was
used in the definition of parent in
current § 300.20(b)(1). The comparable
provision in these regulations is in
§ 300.30(b)(1), which refers to situations
in which the ‘‘biological or adoptive
parent does not have legal authority to
make educational decisions for the
child.’’ We do not believe that either of
these phrases affects the timeliness of
decision making by courts regarding
parental rights.
Changes:
None.
Comment:
Some commenters stated
that ‘‘consistent with State law’’ should
be included in § 300.30(b)(2) in order to
honor local laws already in place to
protect these children.
Discussion:
We do not believe the
change recommended by the
commenters is necessary. Courts issue
decrees and orders consistent with
applicable laws.
Changes:
None.
Comment:
One commenter stated that
it would not be wise to completely
exclude an agency involved in the
education or care of the child from
serving as a parent because situations in
which an LEA acts as a parent are very
rare and only occur under very unusual
circumstances.
Discussion:
The exclusion of an
agency involved in the education or care
of the child from serving as a parent is
consistent with the statutory prohibition
that applies to surrogate parents in
sections 615(b)(2) and 639(a)(5) of the
Act.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify the responsibilities of the LEA
when a biological or adoptive parent
and a foster parent attempt to act as the
parent. Although the regulations state
that the biological or adoptive parent
must be presumed to be the parent
unless the biological or adoptive parent
has been divested of this authority by a
court, the commenter stated that the
regulations are not clear as to whether
the LEA has the duty to notify the
biological or adoptive parent,
accommodate his or her schedule, or
otherwise take steps to facilitate the
biological or adoptive parent’s
participation.
One commenter recommended
clarifying the relative rights of a
biological or adoptive parent and a
foster parent when a child is in foster
care and the foster parent is not
prohibited by the State from acting as a
parent.
Discussion:
Section 300.30(b)(1) states
that when more than one party is
qualified under § 300.30(a) to act as the
parent, the biological or adoptive parent
is presumed to be the parent (unless a
judicial decree or order identifies a
specific person or persons to act as the
parent of a child). The biological or
adoptive parent has all the rights and
responsibilities of a parent under the
Act, and the LEA must provide notice
to the parent, accommodate his or her
schedule when arranging meetings, and
involve the biological or adoptive parent
in the education of the child with a
disability. Thus, if a child is in foster
care (and the foster parent is not
prohibited by the State from acting as a
parent) and the biological or adoptive
parent is attempting to act as a parent,
the biological or adoptive parent is
presumed to be the parent unless the
biological or adoptive parent does not
have legal authority to make educational
decisions for the child or a judicial
decree or order identifies a specific
person or persons to act as the parent of
a child.
Changes:
None.
Comment:
A few commenters stated
that it is unclear when or under what
circumstances a biological or adoptive
parent ceases or surrenders their rights
to a foster parent to make educational
decisions for a child. One commenter
stated that the regulations should define
clearly the situations when this would
occur and the level of proof that must
be shown by the party seeking to make
educational decisions on behalf of a
child. The commenter stated that only
under the most extreme and compelling
circumstances should a court be able to
appoint another individual to take the
place of a biological or adoptive parent.
Discussion:
It would be inappropriate
and beyond the authority of the
Department to regulate on the
termination of parental rights to make
educational decisions. It is the
responsibility of a court to decide
whether to appoint another person or
persons to act as a parent of a child or
to make educational decisions on behalf
of a child.
Changes:
None.
Comment:
One commenter requested
clarifying to whom LEAs must provide
notice, or obtain consent in situations
where there are disputes between
biological or adoptive parents (e.g.,
when parents separate or divorce).
Discussion:
In situations where the
parents of a child are divorced, the
parental rights established by the Act
apply to both parents, unless a court
order or State law specifies otherwise.
Changes:
None.
Comment:
A few commenters
recommended clarifying in the
regulations that a private agency that
contracts with a public agency for the
education or care of the child may not
act as a parent.
Discussion:
A private agency that
contracts with a public agency for the
education or care of the child, in
essence, works for the public agency,
and therefore, could not act as a parent
under the Act. We do not believe it is
necessary to regulate on this matter.
Changes:
None.
Parent Training and Information Center
(§ 300.31)
Comment:
One commenter requested
describing a
parent training and
information center
(PTI) and a
community parent resource center
(CPRC) in the regulations, rather than
referencing section 671 or 672 of the
Act.
Discussion:
We do not believe it is
necessary to include these descriptions
in the regulations. Section 671 of the
Act describes the program requirements
for a PTI and section 672 of the Act
describes the program requirements for
a CPRC. These sections describe the
activities required of PTIs and CPRCs, as
well as the application process for
discretionary funding under Part D of
the Act, and would unnecessarily add to
the length of the regulations.
Changes:
None.
Comment:
One commenter stated that,
in order for a State or LEA to be
considered for funding under the Act,
the regulations should require
partnerships with the PTIs and the
CPRCs, as well as input from PTIs and
CPRCs on assessing State and local
needs, and developing and
implementing a plan to address State
and local needs.
Discussion:
We disagree with the
commenter. There is nothing in the Act
that requires States or LEAs, as a
condition of funding, to obtain input
from PTIs and CPRCs in assessing needs
or developing and implementing a plan
to address State or local needs. States
and LEAs are free to do so, but it is not
a requirement for funding.
Changes:
None.
Public Agency (§ 300.33)
Comment:
One commenter stated that
the term
public agency
is not in the Act
and noted that no State has created a
new type of public education agency
beyond LEAs and SEAs. The commenter
stated that including the definition of
public agency
in the regulations,
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therefore, raises concerns regarding the
responsibility and authority for future
special education services.
Discussion:
The definition of
public
agency
refers to all agencies responsible
for various activities under the Act. The
terms ‘‘LEA’’ or ‘‘SEA’’ are used when
referring to a subset of public agencies.
We disagree that the definition raises
concerns about the responsibility and
authority for future educational services
because the term
public agency
is used
only for those situations in which a
particular regulation does not apply
only to SEAs and LEAs.
During our internal review of the
NPRM, we found several errors in the
definition of
public agency
. Our intent
was to use the same language in current
§ 300.22. We will, therefore, correct
these errors to be consistent with
current § 300.22. Additionally, we will
clarify that a charter school must be a
nonprofit charter school. As noted in
the discussion regarding § 300.28(b)(2),
we clarified that a charter school
established as its own LEA under State
law, must be a nonprofit charter school.
Changes:
We have removed the
phrase ‘‘otherwise included as’’ the
second time it appears, and replaced it
with ‘‘a school of an’’ in § 300.33. We
have also changed ‘‘LEAs’’ to ‘‘LEA’’
and ‘‘ESAs’’ to ‘‘ESA’’ the third time
these abbreviations appear in § 300.33.
Related Services (§ 300.34)
Related Services, General (§ 300.34(a))
Comment:
One commenter requested
defining
related services
as enabling a
child with a disability to receive FAPE
in the LRE.
Discussion:
The definition of
related
services
is consistent with section
601(26) of the Act, which does not refer
to LRE. The Department believes that
revising the regulations as requested
would inappropriately expand the
definition in the Act. Furthermore, the
regulations in § 300.114(a)(2)(ii) already
prevent placement of a child outside the
regular education environment unless
the child cannot be satisfactorily
educated in the regular education
environment with the use of
supplementary aids and services.
Therefore, we see no need to make the
change suggested by the commenter.
Changes:
None.
Comment:
We received numerous
requests to revise § 300.34 to add
specific services in the definition of
related services
. A few commenters
recommended including marriage and
family therapy. One commenter
recommended adding nutrition therapy
and another commenter recommended
adding recreation therapy. A significant
number of commenters recommended
adding art, music, and dance therapy.
One commenter recommended adding
services to ensure that medical devices,
such as those used for breathing,
nutrition, and other bodily functions,
are working properly. One commenter
requested adding programming and
training for parents and staff as a related
service.
A few commenters requested
clarification on whether auditory
training and aural habilitation are
related services. One commenter asked
whether hippotherapy should be
included as a related service. Other
commenters recommended adding
language in the regulations stating that
the list of related services is not
exhaustive. A few commenters asked
whether a service is prohibited if it is
not listed in the definition of
related
services
.
Discussion:
Section 300.34(a) and
section 602(26) of the Act state that
related services
include other
supportive services that are required to
assist a child with a disability to benefit
from special education. We believe this
clearly conveys that the list of services
in § 300.34 is not exhaustive and may
include other developmental, corrective,
or supportive services if they are
required to assist a child with a
disability to benefit from special
education. It would be impractical to
list every service that could be a related
service, and therefore, no additional
language will be added to the
regulations.
Consistent with §§ 300.320 through
300.328, each child’s IEP Team, which
includes the child’s parent along with
school officials, determines the
instruction and services that are needed
for an individual child to receive FAPE.
In all cases concerning related services,
the IEP Team’s determination about
appropriate services must be reflected in
the child’s IEP, and those listed services
must be provided in accordance with
the IEP at public expense and at no cost
to the parents. Nothing in the Act or in
the definition of
related services
requires the provision of a related
service to a child unless the child’s IEP
Team has determined that the related
service is required in order for the child
to benefit from special education and
has included that service in the child’s
IEP.
Changes:
None.
Comment:
One commenter
recommended adding behavior
interventions to the list of related
services, stating that while positive
behavioral interventions and supports
are often provided by one of the
professionals listed in § 300.34(c), other
types of specialists also often provide
them.
Discussion:
The list of related services
in § 300.34 is consistent with section
602(26) of the Act and, as noted above,
we do not believe it is necessary to add
additional related services to this list.
We agree with the commenter that there
may be many professionals in a school
district who are involved in the
development of positive behavioral
interventions. Including the
development of positive behavioral
interventions in the description of
activities under
psychological services
(§ 300.34(b)(10)) and
social work
services in schools
(§ 300.34(b)(14)) is
not intended to imply that school
psychologists and social workers are
automatically qualified to perform these
services or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes:
None.
Exception; Services That Apply to
Children With Cochlear Implants
(§ 300.34(b))
Comment:
Many commenters opposed
the exclusion of surgically implanted
devices from the definition of
related
services
. Many commenters stated that
the Act does not exclude the
maintenance or programming of
surgically implanted devices from the
definition of related services, and that
the regulations should specifically state
that
related services
includes the
provision of mapping services for a
child with a cochlear implant. A few
commenters stated that the issue of
mapping cochlear implants needs to be
clarified so that schools and parents
understand who is responsible for
providing this service. One commenter
requested that the regulations clearly
specify that optimization of a cochlear
implant is a medical service and define
mapping as an audiological service.
Discussion:
The term ‘‘mapping’’
refers to the optimization of a cochlear
implant and is not included in the
definition of
related services
.
Specifically, ‘‘mapping’’ and
‘‘optimization’’ refer to adjusting the
electrical stimulation levels provided by
the cochlear implant that is necessary
for long-term post-surgical follow-up of
a cochlear implant. Although the
cochlear implant must be properly
mapped in order for the child to hear
well in school, the mapping does not
have to be done in school or during the
school day in order for it to be effective.
The exclusion of mapping from the
definition of
related services
reflects the
language in Senate Report (S. Rpt.) No.
108–185, p. 8, which states that the
Senate committee did not intend that
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mapping a cochlear implant, or even the
costs associated with mapping, such as
transportation costs and insurance co-
payments, be the responsibility of a
school district. These services and costs
are incidental to a particular course of
treatment chosen by the child’s parents
to maximize the child’s functioning, and
are not necessary to ensure that the
child is provided access to education,
regardless of the child’s disability,
including maintaining health and safety
while in school. We will add language
in § 300.34(b) to clarify that mapping a
cochlear implant is an example of
device optimization and is not a related
service under the Act.
Changes:
We have added ‘‘(e.g.,
mapping)’’ following ‘‘functioning’’ in
§ 300.34(b) to clarify that mapping a
surgically implanted device is not a
related service under the Act.
Comment:
A significant number of
commenters stated that children with
cochlear implants need instruction in
listening and language skills to process
spoken language, just as children with
hearing loss who use hearing aids, and
requested that the regulations clarify
that excluding the optimization of
device functioning from the definition
of
related services
does not impact a
child’s access to related services such as
speech and language therapy, assistive
listening devices, appropriate classroom
acoustics, auditory training, educational
interpreters, cued speech transliterators,
and specialized instruction.
One commenter requested that the
regulations explicitly state whether a
public agency is required to provide
more speech and language services or
audiology services to a child with a
cochlear implant. Another commenter
requested that the regulations clarify
that optimization only refers to access to
assistive technology, such as assistive
listening devices (e.g., personal
frequency modulation (FM) systems)
and monitoring and troubleshooting of
the device function that is required
under proper functioning of hearing
aids.
Discussion:
Optimization generally
refers to the mapping necessary to make
the cochlear implant work properly and
involves adjusting the electrical
stimulation levels provided by the
cochlear implant. The exclusion of
mapping as a related service is not
intended to deny a child with a
disability assistive technology (e.g., FM
system); proper classroom acoustical
modifications; educational support
services (e.g., educational interpreters);
or routine checking to determine if the
external component of a surgically
implanted device is turned on and
working. Neither does the exclusion of
mapping as a related service preclude a
child with a cochlear implant from
receiving the related services (e.g.,
speech and language services) that are
necessary for the child to benefit from
special education services. As the
commenters point out, a child with a
cochlear implant may still require
related services, such as speech and
language therapy, to process spoken
language just as other children with
hearing loss who use hearing aids may
need those services and are entitled to
them under the Act if they are required
for the child to benefit from special
education. Each child’s IEP Team,
which includes the child’s parent along
with school officials, determines the
related services, and the amount of
services, that are required for the child
to benefit from special education. It is
important that the regulations clearly
state that a child with a cochlear
implant or other surgically implanted
medical device is entitled to related
services that are determined by the
child’s IEP Team to be necessary for the
child to benefit from special education.
Therefore, we will add language in
§ 300.34(b) to clarify that a child with a
cochlear implant or other surgically
implanted medical device is entitled to
those related services that are required
for the child to benefit from special
education, as determined by the child’s
IEP Team.
Changes:
We have reformatted
§ 300.34(b) and added a new paragraph
(2) to clarify that a child with a cochlear
implant or other surgically implanted
device is entitled to the related services
that are determined by the child’s IEP
Team to be required for the child to
benefit from special education. We have
also added the phrase ‘‘services that
apply to children with surgically
implanted devices, including cochlear
implants’ to the heading in § 300.34(b).
Comment:
One commenter expressed
concern that excluding the optimization
of device functioning and maintenance
of the device as related services will
establish different standards for serving
children with cochlear implants versus
children who use hearing aids and other
external amplification devices, and
recommended clarifying that routine
monitoring of cochlear implants and
other surgically implanted devices to
ensure that they are functioning in a
safe and effective manner is permitted
under the Act.
A few commenters stated that some
schools are interpreting the exclusion of
device optimization, functioning, and
maintenance to mean that they do not
have to help the child change a battery
in the externally worn speech processor
connected with the surgically implanted
device, make certain that it is turned on,
or help the child to learn to listen with
the cochlear implant. One commenter
stated that children with cochlear
implants should have the same services
as children who use a hearing aid when
the battery needs changing or
equipment breaks down.
One commenter stated that § 300.34(b)
is confusing and should explicitly state
that the exception of the optimization of
device functioning, maintenance of the
device, or replacement of the device is
limited to surgically implanted devices.
The commenter stated that the language
could erroneously lead to an
interpretation that this exception is
applicable to all medical devices. One
commenter expressed concern that this
misinterpretation could put insulin
pumps and other medical devices that
are required for the health of the child
in the same category as cochlear
implants.
A few commenters stated that it is
important to clarify that excluding the
optimization of device functioning and
the maintenance of the device should
not be construed to exclude medical
devices and services that children need
to assist with breathing, nutrition, and
other bodily functions while the child is
involved with education and other
school-related activities.
One commenter stated that a school
nurse, aide, teacher’s aide, or any other
person who is qualified and trained
should be allowed to monitor and
maintain, as necessary, a surgically
implanted device.
Discussion:
A cochlear implant is an
electronic device surgically implanted
to stimulate nerve endings in the inner
ear (cochlea) in order to receive and
process sound and speech. The device
has two parts, one that is surgically
implanted and attached to the skull and,
the second, an externally worn speech
processor that attaches to a port in the
implant. The internal device is intended
to be permanent.
Optimization or ‘‘mapping’’ adjusts or
fine tunes the electrical stimulation
levels provided by the cochlear implant
and is changed as a child learns to
discriminate signals to a finer degree.
Optimization services are generally
provided at a specialized clinic. As we
discussed previously regarding § 300.34,
optimization services are not a covered
service under the Act. However, a
public agency still has a role in
providing services and supports to help
children with cochlear implants.
Particularly with younger children or
children who have recently obtained
implants, teachers and related services
personnel frequently are the first to
notice changes in the child’s perception
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of sounds that the child may be missing.
This may manifest as a lack of attention
or understanding on the part of the
child or frustration in communicating.
The changes may indicate a need for
remapping, and we would expect that
school personnel would communicate
with the child’s parents about these
issues. To the extent that adjustments to
the devices are required, a specially
trained professional would provide the
remapping, which is not considered the
responsibility of the public agency.
In many ways, there is no substantive
difference between serving a child with
a cochlear implant in a school setting
and serving a child with a hearing aid.
The externally worn speech processor
connected with the surgically implanted
device is similar to a hearing aid in that
it must be turned on and properly
functioning in order for the child to
benefit from his or her education.
Parents of children with cochlear
implants and parents of children with
hearing aids both frequently bring to
school extra batteries, cords, and other
parts for the hearing aids and externally
worn speech processors connected with
the surgically-implanted devices,
especially for younger children. The
child also may need to be positioned so
that he or she can directly see the
teacher at all times, or may need an FM
amplification system such as an audio
loop.
For services that are not necessary to
provide access to education by
maintaining the health or safety of the
child while in school, the distinguishing
factor between those services that are
not covered under the Act, such as
mapping, and those that are covered,
such as verifying that a cochlear implant
is functioning properly, in large
measure, is the level of expertise
required. The maintenance and
monitoring of surgically implanted
devices require the expertise of a
licensed physician or an individual
with specialized technical expertise
beyond that typically available from
school personnel. On the other hand,
trained lay persons or nurses can
routinely check an externally worn
processor connected with a surgically
implanted device to determine if the
batteries are charged and the external
processor is operating. (As discussed
below, the Act does require public
agencies to provide those services that
are otherwise related services and are
necessary to maintain a child’s health or
safety in school even if those services
require specialized training.) Teachers
and related services providers can be
taught to first check the externally worn
speech processor to make sure it is
turned on, the volume and sensitivity
settings are correct, and the cable is
connected, in much the same manner as
they are taught to make sure a hearing
aid is properly functioning. To allow a
child to sit in a classroom when the
child’s hearing aid or cochlear implant
is not functioning is to effectively
exclude the child from receiving an
appropriate education. Therefore, we
believe it is important to clarify that a
public agency is responsible for the
routine checking of the external
components of a surgically implanted
device in much the same manner as a
public agency is responsible for the
proper functioning of hearing aids.
The public agency also is responsible
for providing services necessary to
maintain the health and safety of a child
while the child is in school, with
breathing, nutrition, and other bodily
functions (e.g., nursing services,
suctioning a tracheotomy, urinary
catheterization) if these services can be
provided by someone who has been
trained to provide the service and are
not the type of services that can only be
provided by a licensed physician.
(
Cedar Rapids Community School
District
v.
Garret F.,
526 U.S. 66 (1999)).
Changes:
We have added new
§ 300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted devices. The
requirement for the routine checking of
hearing aids has been removed from
proposed § 300.105 and included in
new § 300.113(a). The requirement for
routine checking of an external
component of a surgically implanted
medical device has been added as new
§ 300.113(b). The requirements for
assistive technology devices and
services remain in § 300.105 and the
heading has been changed to reflect this
change. We have also included a
reference to new § 300.113(b) in new
§ 300.34(b)(2).
Comment:
A few commenters stated
that specialized cochlear implant
audiologists who are at implant centers
or closely associated with them should
program cochlear implants. One
commenter stated that, typically, school
audiologists and school personnel do
not have the specialized experience to
program cochlear implants.
Discussion:
The personnel with the
specific expertise or licensure required
for the optimization (e.g., mapping) of
surgically implanted devices are
decisions to be made within each State
based on applicable State statutes and
licensing requirements. Since mapping
is not covered under the Act, personnel
standards for individuals who provide
mapping services are beyond the scope
of these regulations.
Changes:
None.
Audiology (§ 300.34(c)(1))
Comment:
One commenter stated that
the definition of
audiology
does not
reflect current audiology practice in
schools and recommended new
language to include services for children
with auditory-related disorders,
provision of comprehensive audiologic
habilitation and rehabilitation services;
consultation and training of teachers
and other school staff; and involvement
in classroom acoustics.
Discussion:
The definition of
audiology
is sufficiently broad to enable
audiologists to be involved in the
activities described by the commenter.
We do not believe it is necessary to
change the definition to add the specific
functions recommended by the
commenter.
Changes:
None.
Comment:
A few commenters
requested adding mapping services for a
child with a cochlear implant to the
definition of
audiology.
Discussion:
For the reasons discussed
previously in this section, § 300.34(b)
specifically excludes the optimization of
a surgically implanted device from the
definition of
related services.
This
includes mapping of a cochlear implant.
Changes:
None.
Comment:
One commenter stated that
the definition of
audiology
appears to be
limited to children who are deaf or hard
of hearing, and recommended adding
language to allow children without
expressive speech to receive such
services.
Discussion:
The term
audiology,
as
defined in § 300.34(c)(1), focuses on
identifying and serving children who
are deaf or hard of hearing. It is not
necessary to add language in the
regulations regarding children without
expressive speech because the
determining factor of whether audiology
services are appropriate for a child is
whether the child may be deaf or hard
of hearing, not whether a child has
expressive speech.
Changes:
None.
Early Identification and Assessment of
Disabilities (§ 300.34(c)(3))
Comment:
Some commenters noted
that ‘‘early identification and
assessment of disabilities’’ was removed
from the list of related services in
§ 300.34(a).
Discussion:
‘‘Early identification and
assessment of disabilities’’ was
inadvertently omitted from the list of
related services in § 300.34(a).
Changes:
‘‘Early identification and
assessment’’ will be added to the list of
related services in § 300.34(a).
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Interpreting Services (§ 300.34(c)(4))
Comment:
One commenter
recommended that the definition of
interpreting services
requires that such
services be provided by a qualified
interpreter who is able to effectively,
accurately, and impartially use any
specialized vocabulary, both receptively
and expressively. A few commenters
strongly recommended requiring
interpreting services to be provided by
qualified interpreters to ensure
equivalent communication access and
effective communication with, and for,
children who are deaf or hard of
hearing. The commenter stated that
personnel standards for interpreters
vary greatly across SEAs and LEAs, and
requiring qualified interpreters would
be consistent with the definition of
other related services included in these
regulations such as
physical therapy
and
occupational therapy.
One commenter recommended
defining the function of an interpreter as
a person who facilitates communication
between children who are deaf or hard
of hearing, staff, and children,
regardless of the job title.
Discussion:
Section 300.156,
consistent with section 612(a)(14) of the
Act, clarifies that it is the responsibility
of each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities. It is
not necessary to add more specific
functions of individuals providing
interpreting services, as recommended
by the commenters. States are
appropriately given the flexibility to
determine the qualifications and
responsibilities of personnel, based on
the needs of children with disabilities in
the State.
Changes:
None.
Comment:
A few commenters
recommended including American sign
language and sign language systems in
the definition of
interpreting services.
Discussion:
The definition of
interpreting services
is sufficiently
broad to include American sign
language and sign language systems,
and therefore, will not be changed. We
believe it is important to include sign
language transliteration (e.g., translation
systems such as Signed Exact English
and Contact Signing), in addition to sign
language interpretation of another
language (e.g., American sign language)
in the definition of
interpreting services,
and will add this language to
§ 300.34(c)(4)(i).
Changes:
We have added language to
§ 300.34(c)(4)(i) to include sign language
transliteration.
Comment:
A few commenters
recommended changing the definition
of
interpreting services
to clarify that the
need for interpreting services must be
based on a child’s disability and not
degree of English proficiency.
Discussion:
The definition of
interpreting services
clearly states that
interpreting services are used with
children who are deaf or hard of
hearing. The nature and type of
interpreting services required for
children who are deaf or hard of hearing
and also limited in English proficiency
are to be determined by reference to the
Department’s regulations and policies
regarding students with limited English
proficiency. For example, the
Department’s regulations in 34 CFR part
100, implementing Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d,
require that recipients of Federal
financial assistance ensure meaningful
access to their programs and activities
by students who are limited English
proficient, including those who are deaf
or hard of hearing. The requirement to
provide services to students who are
limited English proficient and others is
also governed by various Department
policy memoranda including the
September 27, 1991 memorandum,
‘‘Department of Education Policy
Update on Schools’ Obligations Toward
National Origin Minority Students With
Limited English Proficiency’’; the
December 3, 1985 guidance document,
‘‘The Office for Civil Rights’ Title VI
Language Minority Compliance
Procedures’’; and the May 1970
memorandum to school districts,
‘‘Identification of discrimination and
Denial of Services on the Basis of
National Origin,’’ 35 FR 11595. These
documents are available at
http://
www.lep.gov
. We do not believe
additional clarification is necessary.
Changes:
None.
Comment:
One commenter stated that
the definition of
interpreting services
appears to be limited to children who
are deaf or hard of hearing, and
recommended adding language to allow
children without expressive speech to
receive such services.
Discussion: Interpreting services,
as
defined in § 300.34(c)(4), clearly states
that interpreting services are used with
children who are deaf and hard of
hearing. Therefore, a child who is not
deaf or hard of hearing, but who is
without expressive speech, would not
be considered eligible to receive
interpreting services as defined in
§ 300.34(c)(4). However, such a child
could be considered eligible for speech-
language pathology services, consistent
with § 300.34(c)(15).
Changes:
None.
Comment:
Some commenters
recommended including
communication access real-time
transcription (CART) services in the
definition of
interpreting services
because these services are being used
with increasing frequency in
postsecondary education and
employment settings, and familiarity
and experience with CART services may
better prepare children who are deaf or
hard of hearing to transition to higher
education and employment
environments. A few commenters stated
that the definition of
interpreting
services
appears to limit interpreting
services to the methods listed in
§ 300.34(c)(4), which exclude tactile and
close vision interpreting for children
who are deaf-blind.
Discussion:
Although the definition of
interpreting services
is written broadly
to include other types of interpreting
services, we believe that it is important
to include in the definition services in
which oral communications are
transcribed into real-time text.
Therefore, we are adding language to
§ 300.34(c)(4) to refer to transcription
services and include several examples
of transcription systems used to provide
such services.
We also believe that it is important
that the definition of
interpreting
services
include services for children
who are deaf-blind. However, because
there are many types of interpreting
services for children who are deaf-blind,
in addition to tactile and close vision
interpreting services, we will add a
more general statement to include
interpreting services for children who
are deaf-blind, rather than listing all the
different methods that might be used for
children who are deaf-blind.
Changes:
We have restructured
§ 300.34(c)(4) and added ‘‘and
transcription services such as
communication real-time translation
(CART), C-Print, and TypeWell’’ to the
definition of interpreting services in
paragraph (c)(4)(i). We have also added
a new paragraph (c)(4)(ii) to include
interpreting services for children who
are deaf-blind.
Medical Services (§ 300.34(c)(5))
Comment:
One commenter stated that
the definition of
medical services
is not
in the Act and recommended that the
definition be broader than the decision
in
Cedar Rapids Community School
Dist.
v.
Garrett F.,
526 U.S. 66 (1999),
which the definition appears to follow.
Discussion:
The list of related services
in § 300.34(a) includes medical services
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for diagnostic and evaluation purposes,
consistent with section 602(26) of the
Act. The Department continues to
believe that using language from the Act
to define
medical services
is essential.
Defining
medical services
more broadly,
as recommended by the commenter,
would not be consistent with the Act.
Changes:
None.
Orientation and Mobility Services
(§ 300.34(c)(7))
Comment:
Several commenters
supported including travel training in
the definition of
orientation and
mobility services
and recommended
adding a reference to the definition of
travel training
in new § 300.39(b)(4)
(proposed § 300.38(b)(4)). However,
other commenters stated that travel
training should appear as a distinct
related service and should not be
included in the definition of
orientation
and mobility services
because children
who are blind and visually impaired
receive this type of instruction from
certified orientation and mobility
specialists. One commenter stated that
the regulations should specify that
travel training is for children with
cognitive or other disabilities.
Discussion:
We believe that including
travel training in the definition of
orientation and mobility services
may be
misinterpreted to mean that travel
training is available only for children
who are blind or visually impaired or
that travel training is the same as
orientation and mobility services. We
will, therefore, remove travel training
from § 300.34(c)(7). This change,
however, does not diminish the services
that are available to children who are
blind or visually impaired.
Travel training
is defined in new
§ 300.39(b)(4) (proposed § 300.38(b)(4))
for children with significant cognitive
disabilities and any other children with
disabilities who require this instruction,
and, therefore, would be available for
children who are blind or visually
impaired, as determined by the child’s
IEP Team. Travel training is not the
same as orientation and mobility
services and is not intended to take the
place of appropriate orientation and
mobility services.
Changes:
We have removed ‘‘travel
training instruction’’ from
§ 300.34(c)(7)(ii) to avoid confusion
with the definition of
travel training
in
new § 300.39(b)(4) (proposed
§ 300.38(b)(4)), and to clarify that travel
training is not the same as orientation
and mobility services and cannot take
the place of appropriate orientation and
mobility services.
Comment:
One commenter
recommended that the regulations
specify who is qualified to provide
travel training instruction and stated
that it is critical that skills such as street
crossing be taught correctly.
Discussion:
Section 300.156,
consistent with section 612(a)(14) of the
Act, requires each State to establish
personnel qualifications to ensure that
personnel necessary to carry out the
purposes of the Act are appropriately
and adequately prepared and trained
and have the content knowledge and
skills to serve children with disabilities.
It is, therefore, the State’s responsibility
to determine the qualifications that are
necessary to provide travel training
instruction.
Changes:
None.
Parent Counseling and Training
(§ 300.34(c)(8))
Comment:
A few commenters stated
that the definition of
parent counseling
and training
in § 300.34(c)(8) is not
included in the definition of
related
services
in section 602(26)(A) of the Act
and, therefore, should not be included
in the regulations.
Discussion:
Paragraphs (i) and (ii) of
§ 300.34(c)(8), regarding assisting
parents in understanding the special
needs of their child, and providing
parents with information about child
development, respectively, are protected
by section 607(b) of the Act, and cannot
be removed. Section 300.34(c)(8)(iii),
regarding helping parents acquire the
skills to allow them to support the
implementation of their child’s IEP or
IFSP, was added in the 1999 regulations
to recognize the more active role of
parents as participants in the education
of their children. Although not included
in the Act, we believe it is important to
retain this provision in these regulations
so that there is no question that parent
counseling and training includes
helping parents acquire skills that will
help them support the implementation
of their child’s IEP or IFSP.
Changes:
None.
Comment:
One commenter
recommended that the regulations
describe the responsibility of LEAs to
provide parent counseling and training.
Discussion:
As with other related
services, an LEA only is responsible for
providing parent counseling and
training if a child’s IEP Team
determines that it is necessary for the
child to receive FAPE. To include this
language in the definition of
parent
counseling and training,
moreover,
would be unnecessarily duplicative of
§ 300.17(d), which states that FAPE
means special education and related
services that are provided in conformity
with an IEP that meets the requirements
in §§ 300.320 through 300.324.
Changes:
None.
Physical Therapy (§ 300.34(c)(9))
Comment:
One commenter
recommended the definition of
physical
therapy
include related therapeutic
services for children with degenerative
diseases.
Discussion:
We do not believe the
suggested change is necessary because
the definition of
physical therapy
is
broadly defined and could include
therapeutic services for children with
degenerative diseases. It is the
responsibility of the child’s IEP Team to
determine the special education and
related services that are necessary for a
child to receive FAPE. There is nothing
in the Act that prohibits the provision
of therapeutic services for children with
degenerative diseases, if the IEP Team
determines they are needed for an
individual child and, thereby, includes
the services in the child’s IEP.
Changes:
None.
Comment:
One commenter stated that
the definition of
physical therapy
in
§ 300.34(c)(9) is circular and requested
that a functional definition be provided.
Discussion:
The definition of
physical
therapy
has been in the regulations
since 1977 and is commonly accepted
by SEAs, LEAs, and other public
agencies. We do not believe it is
necessary to change the definition.
Changes:
None.
Psychological Services (§ 300.34(c)(10))
Comment:
One commenter
recommended that the definition of
psychological services
include strategies
to facilitate social-emotional learning.
Discussion:
We do not believe the
definition should be revised to add a
specific reference to the strategies
recommended by the commenter. The
definition of
psychological services
is
sufficiently broad to enable
psychologists to be involved in
strategies to facilitate social-emotional
learning.
Changes:
None.
Comment:
One commenter stated that
unless the definition of
psychological
services
includes research-based
counseling, schools will argue that they
are required to provide counseling
services delivered by social workers
because counseling is included in the
definition of
social work services in
schools.
Discussion:
We do not believe
including research-based counseling in
the definition of
psychological services
is necessary. Including counseling in
the definition of
social work services in
schools
in § 300.34(c)(14) is intended to
indicate the types of personnel who
assist in this activity and is not intended
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either to imply that school social
workers are automatically qualified to
perform counseling or to prohibit other
qualified personnel from providing
counseling, consistent with State
requirements.
Changes:
None.
Comment:
One commenter stated that
other related services personnel, in
addition to school psychologists, should
be permitted to develop and deliver
positive behavioral intervention
strategies.
Discussion:
There are many
professionals who might also play a role
in developing and delivering positive
behavioral intervention strategies. The
standards for personnel who assist in
developing and delivering positive
behavioral intervention strategies will
vary depending on the requirements of
the State. Including the development
and delivery of positive behavioral
intervention strategies in the definition
of
psychological services
is not intended
to imply that school psychologists are
automatically qualified to perform these
duties or to prohibit other qualified
personnel from providing these services,
consistent with State requirements.
Changes:
None.
Recreation (§ 300.34(c)(11))
Comment:
A few commenters
requested modifying the definition of
recreation
to include therapeutic
recreation services provided by a
qualified recreational therapist, which
include services that restore, remediate,
or rehabilitate to improve functioning
and independence, and reduce or
eliminate the effects of illness or
disability.
Discussion:
We do not believe it is
necessary to change the definition of
recreation
as recommended by the
commenters because the definition is
sufficiently broad to include the
services mentioned by the commenters.
Changes:
None.
School Health Services and School
Nurse Services (Proposed School Nurse
Services) (§ 300.34(c)(13))
Comment:
Some commenters noted
that while ‘‘school health services’’ is
included in the list of related services in
§ 300.34(a), it is not defined, which will
result in confusion about the
relationship between ‘‘school health
services’’ and ‘‘school nurse services.’’
Some commenters stated that adding
the definition of
school nurse services
and eliminating the definition of
school
health services
must not narrow the
range of related services available to
children. One commenter recommended
that the definition of
school nurse
services
allow school nurse services to
be provided by other qualified persons,
as well as a qualified school nurse,
because the majority of schools do not
have a school nurse on staff. One
commenter requested that the
regulations clarify that schools can
continue to use registered nurses or
other personnel to provide school nurse
services, consistent with State law.
Another commenter stated that there is
well-established case law upholding the
obligation of an SEA and LEA to
provide health-related services
necessary for a child to benefit from
special education.
Discussion:
School health services
was retained in the definition of
related
services
in § 300.34(a). However, the
definition of
school health services
was
inadvertently removed in the NPRM. To
correct this error, we will add school
health services to the definition of
school nurse services
and clarify that
school health services and school nurse
services
means health services that are
designed to enable a child with a
disability to receive FAPE. We will also
add language to clarify that school nurse
services are provided by a qualified
school nurse and that school health
services are provided by either a
qualified school nurse or other qualified
person. We recognize that most schools
do not have a qualified school nurse on
a full-time basis (i.e., a nurse that meets
the State standards for a qualified
school nurse), and that many schools
rely on other qualified school personnel
to provide school health services under
the direction of a school nurse.
Therefore, we believe it is important to
retain the definition of
school health
services and school nurse services
in
these regulations.
With the changes made in § 300.34(c),
it is not necessary for the reference to
‘‘school nurse services’’ in § 300.34(a) to
include the phrase, ‘‘designed to enable
a child with a disability to receive a free
appropriate public education as
described in the IEP of the child.’’ We
will, therefore, remove this phrase in
§ 300.34(a).
Changes:
Section 300.34(c)(13) has
been revised to include a definition of
school health services and school nurse
services.
Additional language has been
added to clarify who provides school
health services and school nurse
services. We have also modified
§ 300.34(a) by deleting the redundant
phrase, ‘‘designed to enable a child with
a disability to receive a free appropriate
public education as described in the IEP
of the child.’’
Comment:
One commenter stated that
adding
school nurse services
to the
definition of
related services
makes it
more burdensome for the delivery of
services to children who are medically-
fragile.
Discussion:
It is unclear how adding
school nurse services
to the definition of
related services
affects services to
children who are medically fragile. As
defined in § 300.34(c)(13),
school health
services and school nurse services
are
designed to enable a child with a
disability to receive FAPE as described
in the child’s IEP. A child who is
medically fragile and needs school
health services or school nurse services
in order to receive FAPE must be
provided such services, as indicated in
the child’s IEP.
Changes:
None.
Comment:
One commenter stated that
the definition of
school nurse services
should include services that enable a
child with a disability to receive FAPE
in the LRE. Another commenter stated
that school nurses can be extremely
supportive of children with disabilities
receiving FAPE in the LRE and
recommended changing the regulations
to ensure that parents understand that
the definition of
related services
includes school nurse services.
Discussion:
The LRE requirements in
§§ 300.114 through 300.120 provide,
that to the maximum extent appropriate,
children with disabilities are to be
educated with children who are not
disabled. It is not necessary to repeat
this requirement in the definition of
school health services and school nurse
services.
We agree that school health services
and school nurse services are important
related services. Section 300.34(a) and
section 602(26)(A) of the Act are clear
that the definition of
related services
includes school health services and
school nurse services. The IEP Team, of
which the parent is an integral member,
is responsible for determining the
services that are necessary for the child
to receive FAPE. We, therefore, do not
believe that it is necessary to add a
regulation requiring public agencies to
ensure that parents understand that
related services include school health
services and school nurse services.
Changes:
None.
Comment:
One commenter stated that
including the phrase, ‘‘designed to
enable a child with a disability to
receive a free appropriate public
education’’ in § 300.34(c)(13) in relation
to school nurse services, is unnecessary
and confusing.
Discussion:
As stated in § 300.34(a),
the purpose of related services is to
assist a child with a disability to benefit
from special education. We believe it is
necessary to specify that school health
services and school nurse services are
related services only to the extent that
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the services allow a child to benefit
from special education and enable a
child with a disability to receive FAPE.
Changes:
None.
Social Work Services in Schools
(§ 300.34(c)(14))
Comment:
One commenter
recommended including strategies to
facilitate social-emotional learning in
the definition of
social work services in
schools.
A few commenters stated that
the role of the school social worker is
evolving and recommended that the
definition include the role of social
workers as integral members of pre-
referral teams that deliver interventions
to decrease the number of referrals to
special education. One commenter
recommended that the definition
include a reference to the social
worker’s role in addressing the relevant
history and current functioning of an
individual within his or her
environmental context, rather than
referring to social-developmental
histories. Another commenter stated
that social workers are trained to find
resources in the home, school, and
community and recommended
including such language in the
definition.
Discussion:
The definition of
social
work services in schools
is sufficiently
broad to include the services described
by the commenters and we do not
believe the definition should be revised
to add these more specific functions.
Changes:
None.
Comment:
One commenter stated that
the definition of
social work services in
schools
removes language from the 1983
regulations that states that social work
services allow children with disabilities
to maximize benefit from the learning
program. The commenter stated that this
is a higher standard than what is
required in § 300.34(c)(14), which only
requires that services enable a child to
learn as effectively as possible, and,
therefore, the 1983 definition should be
retained, consistent with section 607(b)
of the Act.
Discussion:
We disagree with the
commenter. The definition of
social
work services in schools
in the 1977
regulations included ‘‘mobilizing school
and community resources to enable the
child to receive maximum benefit from
his or her educational program.’’ As
explained in the preamble to the final
1992 regulations, the phrase ‘‘to receive
maximum benefit’’ was intended only to
provide that the purpose of activities
carried out by personnel qualified to
provide social work services in schools
is to mobilize resources so that a child
can learn as effectively as possible in his
or her educational program. The
language in the preamble to the final
1992 regulations also clarified that this
provision did not set a legal standard for
that program or entitle the child to a
particular educational benefit. The
preamble further explained that, during
the public comment period for the 1992
regulations, commenters raised
concerns that the term ‘‘maximum
benefit’’ appeared to be inconsistent
with the decision by the United States
Supreme Court in
Board of Education
v.
Rowley,
458 U.S. 176 (1982). Therefore,
the phrase was revised to read ‘‘to learn
as effectively as possible in his or her
educational program.’’ This is the same
phrase used in the 1999 regulations and
in these regulations in
§ 300.34(c)(14)(iv). Because the language
in the 1977 final regulations did not
entitle a child to any particular benefit,
the change made in 1992 did not lessen
protections for a child, and, therefore, is
not subject to section 607(b) of the Act.
Changes:
None.
Comment:
One commenter
recommended adding a reference to
‘‘functional behavioral assessments’’ in
§ 300.34(c)(14)(v) because functional
behavioral assessments should always
precede the development of behavioral
intervention strategies. Another
commenter expressed concern that
§ 300.34(c)(14)(iv), regarding social
work services to mobilize school and
community resources to enable the
child to learn as effectively as possible,
creates a potential for litigation. The
commenter asked whether a school
district could face a due process hearing
for failure to mobilize community
resources if there are no community
resources to address the needs of the
child or family.
Discussion:
The definition of
social
work services in schools
includes
examples of the types of social work
services that may be provided. It is not
a prescriptive or exhaustive list. The
child’s IEP Team is responsible for
determining whether a child needs
social work services, and what specific
social work services are needed in order
for the child to receive FAPE. Therefore,
while conducting a functional
behavioral assessment typically
precedes developing positive behavioral
intervention strategies, we do not
believe it is necessary to include
functional behavioral assessments in the
definition of
social work services in
schools
because providing positive
behavioral intervention strategies is just
an example of a social work service that
might be provided to a child if the
child’s IEP Team determines that such
services are needed for the child to
receive FAPE. Similarly, if a child’s IEP
Team determines that mobilizing
community resources would not be an
effective means of enabling the child to
learn as effectively as possible because
there are no community resources to
address the needs of the child, the IEP
Team would need to consider other
ways to meet the child’s needs. While
there is the possibility that a due
process hearing might be filed based on
a failure to mobilize community
resources that do not exist, we do not
believe that such a claim could ever be
successful, as the regulation does not
require the creation of community
resources that do not exist.
Changes:
None.
Speech-language Pathology Services
(§ 300.34(c)(15))
Comment:
One commenter stated that
children who need speech therapy
should have it for a full classroom
period, five days a week, and not be
removed from other classes to receive
this related service.
Discussion:
It would be inconsistent
with the Act to dictate the amount and
location of services for all children
receiving speech-language pathology
services, as recommended by the
commenter. As with all related services,
section 614(d)(1)(A)(i)(IV) of the Act
provides that the child’s IEP Team is
responsible for determining the services
that are needed for the child to receive
FAPE. This includes determining the
type of related service, as well as the
amount and location of services.
Changes:
None.
Comment:
One commenter stated that
the definition of
speech-language
pathology services
appears to be limited
to children who are deaf or hard of
hearing, and recommended adding
language to the regulations to allow
children without expressive speech to
receive such services.
Discussion:
There is nothing in the
Act or the regulations that would limit
speech-language pathology services to
children who are deaf or hard of hearing
or to children without expressive
speech. The definition of
speech-
language pathology services
specifically
includes services for children who have
language impairments, as well as speech
impairments.
Changes:
None.
Comment:
One commenter requested
the definition of
speech-language
pathology services
specify the
qualifications and standards for speech-
language professionals. Another
commenter requested that the definition
require a highly qualified provider to
deliver speech-language services. One
commenter requested that the definition
require a speech-language pathologist to
provide speech-language services.
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Discussion:
Consistent with § 300.156
and section 612(a)(14) of the Act, it is
up to each State to establish personnel
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained and
have the content knowledge and skills
to serve children with disabilities.
Section 300.156(b), consistent with
section 614(a)(14)(B) of the Act,
specifically requires that these
personnel qualifications must include
qualifications for related services
personnel. Establishing qualifications
for individuals providing speech-
language services in these regulations
would be inconsistent with these
statutory and regulatory requrements.
Changes:
None.
Comment:
One commenter stated that
the roles and responsibilities for speech-
language pathologists in schools have
been expanded to help all children gain
language and literacy skills and
recommended that the definition of
speech-language pathology services
be
revised to include consultation and
collaboration with other staff members
to plan and implement special
intervention monitoring programs and
modify classroom instruction to assist
children in achieving academic success.
The commenter also recommended
including services for other health
impairments, such as dysphagia, in the
definition of
speech-language pathology
services.
Discussion:
The Act provides for
speech-language pathology services for
children with disabilities. It does not
include speech-language pathology
services to enable all children to gain
language and literacy skills, as
suggested by the commenter. It would,
therefore, be inconsistent with the Act
to change the definition of
speech-
language pathology services
in the
manner recommended by the
commenter. We believe that the
definition is sufficiently broad to
include services for other health
impairments, such as dysphagia, and
therefore, decline to revise the
definition to include this specific
service.
Changes:
None.
Transportation (§ 300.34(c)(16))
Comment:
A few commenters stated
that the definition of
transportation
should require transportation to be
provided between school and other
locations in which IEP services are
provided. Other commenters requested
that the definition explicitly define
transportation as door-to-door services,
including provisions for an aide to
escort the child to and from the bus
each day.
Discussion:
A child’s IEP Team is
responsible for determining whether
transportation between school and other
locations is necessary in order for the
child to receive FAPE. Likewise, if a
child’s IEP Team determines that
supports or modifications are needed in
order for the child to be transported so
that the child can receive FAPE, the
child must receive the necessary
transportation and supports at no cost to
the parents. We believe the definition of
transportation
is sufficiently broad to
address the commenters’ concerns.
Therefore, we decline to make the
requested changes to the definition.
Changes:
None.
Comment:
Some commenters
recommended removing the term
‘‘special transportation’’ from the
definition of
transportation
because the
term gives the impression that adapted
buses are used for a separate and
different transportation system, when,
in fact, adapted buses are part of the
regular transportation fleet and system.
These commenters stated that adapted
buses should only be used as a separate,
special transportation service if the
child’s IEP indicates that the
transportation needs of the child can be
met only with transportation services
that are separate from the transportation
services for all children.
Discussion:
We do not believe it is
necessary to make the change requested
by the commenters. It is assumed that
most children with disabilities will
receive the same transportation
provided to nondisabled children,
consistent with the LRE requirements in
§§ 300.114 through 300.120, unless the
IEP Team determines otherwise. While
we understand the commenter’s
concern, adapted buses may or may not
be part of the regular transportation
system in a particular school system. In
any case, if the IEP Team determines
that a child with a disability requires
transportation as a related service in
order to receive FAPE, or requires
supports to participate in integrated
transportation with nondisabled
children, the child must receive the
necessary transportation or supports at
no cost to the parents.
Changes:
None.
Scientifically Based Research (new
§ 300.35)
Comment:
A number of commenters
requested that the regulations include a
definition of
scientifically based
research.
Discussion:
The definition of
scientifically based research
is
important to the implementation of Part
B of the Act and, therefore, we will
include a reference to the definition of
that term in section 9101(37) of the
ESEA.
For the reasons set forth earlier in this
notice, we are not including definitions
from other statutes in these regulations.
However, we will include the current
definition of
scientifically based
research
in section 9101(37) of the
ESEA here for reference.
Scientifically based research—
(a) Means research that involves the
application of rigorous, systematic, and
objective procedures to obtain reliable
and valid knowledge relevant to
education activities and programs; and
(b) Includes research that—
(1) Employs systematic, empirical
methods that draw on observation or
experiment;
(2) Involves rigorous data analyses
that are adequate to test the stated
hypotheses and justify the general
conclusions drawn;
(3) Relies on measurements or
observational methods that provide
reliable and valid data across evaluators
and observers, across multiple
measurements and observations, and
across studies by the same or different
investigators;
(4) Is evaluated using experimental or
quasi-experimental designs in which
individuals, entities, programs, or
activities are assigned to different
conditions and with appropriate
controls to evaluate the effects of the
condition of interest, with a preference
for random-assignment experiments, or
other designs to the extent that those
designs contain within-condition or
across-condition controls;
(5) Ensures that experimental studies
are presented in sufficient detail and
clarity to allow for replication or, at a
minimum, offer the opportunity to build
systematically on their findings; and
(6) Has been accepted by a peer-
reviewed journal or approved by a panel
of independent experts through a
comparably rigorous, objective, and
scientific review.
Changes:
A cross-reference to the
definition of
scientifically based
research
in section 9101(37) of the
ESEA has been added as new § 300.35.
Subsequent definitions have been
renumbered accordingly.
Secondary School (New § 300.36)
(Proposed § 300.35)
Comment:
One commenter requested
clarification regarding the definition of
secondary school
and whether ‘‘grade
12’’ refers to the regular grade 12
curriculum aligned to State academic
achievement standards under the ESEA
or a limit on the number of years
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children with a disabilities can spend in
school.
Discussion:
The term ‘‘grade 12’’ in
the definition of
secondary school
has
the meaning given it under State law. It
is not intended to impose a Federal
limit on the number of years a child
with a disability is allowed to complete
his or her secondary education, as some
children with disabilities may need
more than 12 school years to complete
their education.
Changes:
None.
Services Plan (New § 300.37) (Proposed
§ 300.36)
Comment:
One commenter stated that
the term services plan is not in the Act
and, therefore, should be removed.
However, the commenter stated that if
the definition of
services plan
remained
in the regulations, it should reflect the
fact that parentally-placed private
school children are not entitled to
FAPE.
Discussion
: The definition of
services
plan
was included to describe the
content, development, and
implementation of plans for parentally-
placed private school children with
disabilities who have been designated to
receive equitable services. The
definition cross-references the specific
requirements for the provision of
services to parentally-placed private
school children with disabilities in
§ 300.132 and §§ 300.137 through
300.139, which provide that parentally-
placed private school children have no
individual right to special education
and related services and thus are not
entitled to FAPE. We do not believe
further clarification is necessary.
Changes:
None.
Special Education (New § 300.39)
(Proposed § 300.38)
Comment:
One commenter requested
modifying the definition of
special
education
to distinguish special
education from other forms of
education, such as remedial
programming, flexible grouping, and
alternative education programming. The
commenter stated that flexible grouping,
diagnostic and prescriptive teaching,
and remedial programming have
expanded in the general curriculum in
regular classrooms and the expansion of
such instruction will only be
encouraged with the implementation of
early intervening services under the Act.
Discussion:
We believe the definition
of
special education
is clear and
consistent with the definition in section
602(29) of the Act. We do not believe it
is necessary to change the definition to
distinguish special education from the
other forms of education mentioned by
the commenter.
Changes:
None.
Individual Special Education Terms
Defined (New § 300.39(b)) (Proposed
§ 300.38(b))
Comment:
A few commenters
provided definitions of
‘‘accommodations’’ and ‘‘modifications’’
and recommended including them in
new § 300.39(b) (proposed § 300.38(b)).
Discussion:
The terms
‘‘accommodations’’ and ‘‘modifications’’
are terms of art referring to adaptations
of the educational environment, the
presentation of educational material, the
method of response, or the educational
content. They are not, however,
examples of different types of
‘‘education’’ and therefore we do not
believe it is appropriate to define these
terms of art or to include them in new
§ 300.39(b) (proposed § 300.38(b)).
Changes:
None.
Physical Education (New § 300.39(b)(2))
(Proposed § 300.38(b)(2))
Comment:
One commenter requested
that adaptive physical education be
subject to the LRE requirements of the
Act.
Discussion:
The requirements in
§§ 300.114 through 300.120 require that,
to the maximum extent appropriate,
children with disabilities are educated
with children who are nondisabled.
This requirement applies to all special
education services, including adaptive
physical education. We see no need to
repeat this requirement specifically for
the provision of adaptive physical
education.
Changes:
None.
Specially Designed Instruction (New
§ 300.39(b)(3)) (Proposed § 300.38(b)(3))
Comment:
One commenter stated that
the regulations should strengthen the
requirements ensuring children access
to the general curriculum, because many
children with disabilities still do not
have the tools they need or the teachers
with expertise to access the general
curriculum.
Discussion:
We believe the regulations
place great emphasis on ensuring that
children with disabilities have access to
the general education curriculum. New
§ 300.39(b)(3) (proposed § 300.38(b)(3))
defines
specially designed instruction
as
adapting the content, methodology, or
delivery of instruction to address the
unique needs of the child and to ensure
access to the general curriculum so that
the child can meet the educational
standards within the jurisdiction of the
public agency that apply to all children.
In addition, ensuring that children with
disabilities have access to the general
curriculum is a major focus of the
requirements for developing a child’s
IEP. For example, § 300.320(a)(1)
requires a child’s IEP to include a
statement of how the child’s disability
affects the child’s involvement and
progress in the general education
curriculum; § 300.320(a)(2)(i) requires
annual IEP goals to be designed to
enable the child to be involved in and
make progress in the general education
curriculum; and § 300.320(a)(4) requires
the IEP to include a statement of the
special education and related services
the child will receive, as well as the
program modifications or supports for
school personnel that will be provided,
to enable the child to be involved in and
make progress in the general education
curriculum. We do not believe
additional language is necessary.
Changes:
None.
Travel Training (New § 300.39(b)(4))
(Proposed § 300.38(b)(4))
Comment:
A few commenters
recommended strengthening the
definition of
travel training
in new
§ 300.39(b)(4) (proposed § 300.38(b)(4))
and adding travel training to new
§ 300.43 (proposed § 300.42) (
transition
services
) to acknowledge that
transportation is vitally important for
children with disabilities to have full
participation in the community. The
commenters recommended that the
definition of
travel training
include
providing instruction to children with
disabilities, other than blindness, to
enable them to learn the skills and
behaviors necessary to move effectively
and safely in various environments,
including use of public transportation.
Discussion:
We believe the definition
of
travel training
already acknowledges
the importance of transportation in
supporting children with disabilities to
fully participate in their communities.
New § 300.43(a)(4) (proposed
§ 300.42(a)(4)) defines
travel training
to
include providing instruction that
enables children to learn the skills
necessary to move effectively and safely
from place to place in school, home, at
work and in the community. Therefore,
we do not believe that further
clarification is necessary. We also do
not believe that it is necessary to add
travel training to the definition of
transition services
, as recommended by
the commenters. We believe that IEP
Teams already consider the importance
of transportation and travel training
services in the course of planning for a
student’s postsecondary transition
needs. It is unnecessary to state that
travel training includes instructing
children with disabilities other than
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blindness, as requested by the
commenters, because the definition of
travel training
already states that travel
training is appropriate for any child
with a disability who requires this
instruction.
Changes:
None.
Comment:
A few commenters strongly
recommended clarifying that the
definition of
travel training
does not
include training for children with visual
impairments, regardless of whether they
have additional disabilities.
Discussion:
Any child with a
disability, including a child with a
visual impairment, who needs travel
training instruction to receive FAPE, as
determined by the child’s IEP Team, can
receive travel training instruction. New
§ 300.39(b)(4) (proposed § 300.38(b)(4))
specifically states that
travel training
means providing instruction to children
with significant cognitive disabilities
and any other children with disabilities
who require this instruction. We,
therefore, decline to change the
definition, as recommended by the
commenters.
Changes:
None.
Vocational Education (New
§ 300.39(b)(5)) (Proposed § 300.38(b)(5))
Comment:
A few commenters
recommended revising the definition of
vocational education
to include
specially designed educational
programs that are directly related to the
preparation of individuals for paid or
unpaid employment or for additional
preparation for a career not requiring a
baccalaureate or advanced degree.
Discussion:
We believe that the more
general reference to ‘‘organized
education programs’’ in the definition of
vocational education
is accurate and
should not be changed to refer to
‘‘specially designed educational
programs,’’ as recommended by the
commenter, because some children with
disabilities will benefit from
educational programs that are available
for all children and will not need
specially designed programs.
Changes:
None.
Comment:
Some commenters stated
that Congress did not intend that the
definition of
vocational education
would include vocational and technical
education. The commenters stated that
the addition of vocational and technical
education to the definition of
vocational
education
creates a right under the Act
to educational services that would be
extremely costly for States and LEAs to
implement.
Other commenters stated that
including the definition of
vocational
and technical education
from the Carl
D. Perkins Act expands FAPE beyond
secondary education, which is an
unwarranted responsibility for school
districts. One commenter stated that the
definition could be interpreted to
require public agencies to provide two
years of postsecondary education for
students with disabilities. A few
commenters strongly recommended
removing the definition of
vocational
and technical education
.
Some commenters recommended
removing the reference to the
postsecondary level for a 1-year
certificate, an associate degree, and
industry-recognized credential in the
definition of
vocational and technical
education
. One commenter suggested
that proposed § 300.38(b)(6)(i)(A)
conclude with the word ‘‘or’’ to clarify
that the sequence of courses is
discretionary.
Discussion:
The definition of
vocational education
was revised to
include the definition of
vocational and
technical education
in the Carl D.
Perkins Vocational and Applied
Technology Act of 1988, as amended, 20
U.S.C. 2301, 2302(29). However, based
on the comments we received, it is
apparent that including the definition of
vocational and technical education
has
raised concerns and confusion regarding
the responsibilities of SEAs and LEAs to
provide vocational education.
Therefore, we will remove the definition
of
vocational and technical education
in
proposed § 300.38(b)(6) and the
reference to vocational and technical
education in proposed § 300.38(b)(5)(ii).
Changes:
The definition of
vocational
and technical education
in proposed
§ 300.38(b)(6) has been removed.
Accordingly, the reference to vocational
and technical education in proposed
§ 300.38(b)(5)(ii)) has also been
removed.
Supplementary Aids and Services (New
§ 300.42) (Proposed § 300.41)
Comment:
A few commenters stated
that the definition of
supplementary
aids and services
should be changed to
mean aids, services, and other supports
provided in general education classes or
other settings to children with
disabilities, as well as to educators,
other support staff, and nondisabled
peers, if necessary, to support the
inclusion of children with disabilities.
Discussion:
The definition of
supplementary aids and services
in new
§ 300.42 (proposed § 300.41) is
consistent with the specific language in
section 602(33) of the Act, and refers to
aids, services, and other supports for
children with disabilities. We do not
believe it is necessary to change the
definition to include providing aids,
services, and supports to other
individuals because § 300.320(a)(4)
requires each child’s IEP to include a
statement of the program modifications
or supports for school personnel that
will be provided to enable the child to
be involved in and make progress in the
general education curriculum, and to
participate in extracurricular and other
nonacademic activities.
As noted in the
Analysis of Comments
and Changes
section for subpart B, we
have clarified in § 300.107(a) that States
must ensure that public agencies take
steps to provide nonacademic and
extracurricular services and activities,
including providing supplementary aids
and services determined appropriate
and necessary by the child’s IEP Team
to afford children with disabilities an
equal opportunity for participation in
those services and activities. We have,
therefore, revised the definition of
supplementary aids and services
in new
§ 300.42 (proposed § 300.41) to be
consistent with this change.
Changes:
We have added language in
new § 300.42 (proposed § 300.41) to
clarify that supplementary aids and
services can be provided in
extracurricular and nonacademic
settings to enable children with
disabilities to be educated with
nondisabled children to the maximum
extent appropriate.
Comment:
None.
Discussion:
New § 300.42 (proposed
§ 300.41) contains an incorrect reference
to § 300.112. The correct reference
should be to § 300.114.
Changes:
We have removed the
reference to § 300.112 and replaced it
with a reference to § 300.114.
Transition Services (New § 300.43)
(Proposed § 300.42)
Comment:
One commenter
recommended replacing the word
‘‘child’’ with ‘‘student’’ in the definition
of
transition services
.
Discussion:
The definition of
transition services
follows the language
in section 602(34) of the Act. The words
‘‘child’’ and ‘‘student’’ are used
throughout the Act and we have used
the statutory language in these
regulations whenever possible.
Changes:
None.
Comment:
One commenter
recommended that the regulations
include vocational and career training
through work-study as a type of
transition service. A few commenters
stated that the definition of
transition
services
must specify that a student’s
need for transition services cannot be
based on the category or severity of a
student’s disability, but rather on the
student’s individual needs.
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Discussion:
We do not believe it is
necessary to change the definition of
transition services
because the
definition is written broadly to include
a range of services, including vocational
and career training that are needed to
meet the individual needs of a child
with a disability. The definition clearly
states that decisions regarding transition
services must be made on the basis of
the child’s individual needs, taking into
account the child’s strengths,
preferences, and interests. As with all
special education and related services,
the student’s IEP Team determines the
transition services that are needed to
provide FAPE to a child with a
disability based on the needs of the
child, not on the disability category or
severity of the disability. We do not
believe further clarification is necessary.
Changes:
None.
Comment:
A few commenters stated
that the regulations do not define
‘‘functional’’ or explain how a student’s
functional performance relates to the
student’s unique needs or affects the
student’s education. The commenters
noted that the word ‘‘functional’’ is used
throughout the regulations in various
forms, including ‘‘functional
assessment,’’ ‘‘functional goals,’’
‘‘functional abilities,’’ ‘‘functional
needs,’’ ‘‘functional achievement,’’ and
‘‘functional performance,’’ and should
be defined to avoid confusion. One
commenter recommended either
defining the term or explicitly
authorizing States to define the term.
One commenter recommended
clarifying that ‘‘functional performance’’
must be a consideration for any child
with a disability who may need services
related to functional life skills and not
just for students with significant
cognitive disabilities. A few
commenters stated that the definition of
transition services
must specify that
‘‘functional achievement’’ includes
achievement in all major life functions,
including behavior, social-emotional
development, and daily living skills.
Discussion:
We do not believe it is
necessary to include a definition of
‘‘functional’’ in these regulations
because the word is generally used to
refer to activities and skills that are not
considered academic or related to a
child’s academic achievement as
measured on Statewide achievement
tests. There is nothing in the Act that
would prohibit a State from defining
‘‘functional,’’ as long as the definition
and its use are consistent with the Act.
We also do not believe it is necessary
for the definition of
transition services
to refer to all the major life functions or
to clarify that functional performance
must be a consideration for any child
with a disability, and not just for
students with significant cognitive
disabilities. As with all special
education and related services, the
student’s IEP Team determines the
services that are needed to provide
FAPE to a child with a disability based
on the needs of the child.
Changes:
None.
Comment:
One commenter requested
a definition of ‘‘results-oriented
process.’’
Discussion:
The term ‘‘results-
oriented process,’’ which appears in the
statutory definition of
transition
services
, is generally used to refer to a
process that focuses on results. Because
we are using the plain meaning of the
term (i.e., a process that focuses on
results), we do not believe it is
necessary to define the term in these
regulations.
Changes:
None.
Comment:
A few commenters stated
that ‘‘acquisition of daily living skills
and functional vocational evaluation’’ is
unclear as a child does not typically
‘‘acquire’’ an evaluation. The
commenters stated that the phrase
should be changed to ‘‘functional
vocational skills.’’
Discussion:
We agree that the phrase
is unclear and will clarify the language
in the regulation to refer to the
‘‘provision of a functional vocational
evaluation.’’
Changes:
We have added ‘‘provision
of a’’ before ‘‘functional vocational
evaluation’’ in new § 300.43(a)(2)(v) for
clarity.
Universal Design (New § 300.44)
(Proposed § 300.43)
Comment:
Many commenters
requested including the full definition
of
universal design
in the regulations,
rather than providing a reference to the
definition of the term.
Discussion:
The term
universal design
is defined in the Assistive Technology
Act of 1998, as amended. For the
reasons set forth earlier in this notice,
we are not including in these
regulations full definitions of terms that
are defined in other statutes. However,
we will include the definition of this
term from section 3 of the Assistive
Technology Act of 1998, as amended, 29
U.S.C. 3002, here for reference.
The term
universal design
means a
concept or philosophy for designing and
delivering products and services that are
usable by people with the widest
possible range of functional capabilities,
which include products and services
that are directly accessible (without
requiring assistive technologies) and
products and services that are
interoperable with assistive
technologies.
Changes:
None.
Comment:
Several commenters stated
that the definition of
universal design
should be changed to include the
universal design of academic content
standards, curricula, instructional
materials, and assessments.
Discussion:
The definition of
universal design
is statutory. Congress
clearly intended that we use this
specific definition when it used this
term in the Act. We do not believe we
can change this definition as suggested
by the commenters.
Changes:
None.
Subpart B—State Eligibility
FAPE Requirements
Free Appropriate Public Education
(FAPE) (§ 300.101)
Comment:
One commenter
recommended revising § 300.101 to
ensure that children with disabilities
who are suspended or expelled from
their current placement are provided
educational services consistent with
State academic achievement standards.
One commenter asked whether children
with disabilities who are suspended or
expelled from their current placement
must continue to be taught by highly
qualified teachers.
Discussion:
We believe the concern
raised by the commenter is already
addressed by this regulation and
elsewhere in the regulations and that no
changes to § 300.101 are necessary.
Section 300.530(d), consistent with
section 615(k)(1)(D) of the Act, clarifies
that a child with a disability who is
removed from his or her current
placement for disciplinary reasons,
irrespective of whether the behavior is
determined to be a manifestation of the
child’s disability, must be allowed to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting his or
her IEP goals. As the term ‘‘general
education curriculum’’ is used
throughout the Act and in these
regulations, the clear implication is that
there is an education curriculum that is
applicable to all children and that this
curriculum is based on the State’s
academic content standards.
Children with disabilities who are
suspended or expelled from their
current placement in public schools
must continue to be taught by highly
qualified teachers, consistent with the
requirements in §§ 300.156 and 300.18.
Private school teachers are not subject to
the highly qualified teacher
requirements under this part.
Changes:
None.
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Comment:
One commenter suggested
clarifying in § 300.101 that FAPE must
be available to children with disabilities
in the least restrictive environment.
Discussion:
We do not believe further
clarification is needed in § 300.101, as
the matter is adequately covered
elsewhere in the regulations. Section
300.101 clarifies that, in order to be
eligible to receive funds under Part B of
the Act, States must, among other
conditions, ensure that FAPE is made
available to all children with specified
disabilities in mandated age ranges. The
term
FAPE
is defined in § 300.17 and
section 602(9)(D) of the Act as
including, among other elements,
special education and related services,
provided at no cost to parents, in
conformity with an individualized
education program (IEP). Sections
300.114 through 300.118, consistent
with section 612(a)(5) of the Act,
implement the Act’s strong preference
for educating children with disabilities
in regular classes with appropriate aids
and supports. Specifically, § 300.114
provides that States must have in effect
policies and procedures ensuring that,
to the maximum extent appropriate,
children with disabilities, including
children in public or private institutions
or other care facilities, are educated
with children who are nondisabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes:
None.
Comment:
A few commenters
recommended including language in
§ 300.101(a) specifying that children
with disabilities expelled or suspended
from the general education classroom
must be provided FAPE in the least
restrictive environment.
Discussion:
The Department believes
it would not be appropriate to include
the requested language in this section
because services in these circumstances
are provided under somewhat different
criteria than is normally the case.
Section 300.530 clarifies the procedures
school personnel must follow when
removing a child with a disability who
violates a code of student conduct from
their current placement (e.g.,
suspension and expulsion). This
includes how decisions are made
regarding the educational services the
child receives and the location in which
they will be provided. School officials
need some reasonable amount of
flexibility in providing services to
children with disabilities who have
violated school conduct rules, and
should not necessarily have to provide
exactly the same services, in the same
settings, to these children. Therefore, we
decline to regulate further in this regard.
Changes:
None.
Comment:
Some commenters
expressed concern that children with
disabilities have to fail or be retained in
a grade or course in order to be
considered eligible for special education
and related services.
Discussion:
Section 300.101(c)
provides that a child is eligible to
receive special education and related
services even though the child is
advancing from grade to grade. Further,
it is implicit from paragraph (c) of this
section that a child should not have to
fail a course or be retained in a grade in
order to be considered for special
education and related services. A public
agency must provide a child with a
disability special education and related
services to enable him or her to progress
in the general curriculum, thus making
clear that a child is not ineligible to
receive special education and related
services just because the child is, with
the support of those individually
designed services, progressing in the
general curriculum from grade-to-grade
or failing a course or grade. The group
determining the eligibility of a child for
special education and related services
must make an individual determination
as to whether, notwithstanding the
child’s progress in a course or grade, he
or she needs or continues to need
special education and related services.
However, to provide additional clarity
we will revise paragraph (c)(1) of this
section to explicitly state that children
do not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Changes:
Section 300.101(c)(1) has
been revised to provide that children do
not have to fail or be retained in a
course or grade in order to be
considered eligible for special education
and related services.
Limitation—Exception to FAPE for
Certain Ages (§ 300.102)
Comment:
One commenter requested
that the regulations clarify that children
with disabilities who do not receive a
regular high school diploma continue to
be eligible for special education and
related services. One commenter
expressed concern that the provision in
§ 300.102(a)(3)(ii) regarding children
with disabilities who have not been
awarded a regular high school diploma
could result in the delay of transition
services in the context of the child’s
secondary school experience and
postsecondary goals.
Discussion:
We believe that
§ 300.102(a)(3) is sufficiently clear that
public agencies need not make FAPE
available to children with disabilities
who have graduated with a regular high
school diploma and that no change is
needed to the regulations. Children with
disabilities who have not graduated
with a regular high school diploma still
have an entitlement to FAPE until the
child reaches the age at which eligibility
ceases under the age requirements
within the State. However, we have
reviewed the regulations and believe
that it is important for these regulations
to define ‘‘regular diploma’’ consistent
with the ESEA regulations in 34 CFR
§ 200.19(a)(1)(i). Therefore, we will add
language to clarify that a regular high
school diploma does not include an
alternative degree that is not fully
aligned with the State’s academic
standards, such as a certificate or
general educational development (GED)
credential.
We do not believe § 300.102 could be
interpreted to permit public agencies to
delay implementation of transition
services, as stated by one commenter
because transition services must be
provided based on a child’s age, not the
number of years the child has remaining
in the child’s high school career.
Section 300.320(b), consistent with
section 614(d)(1)(A)(i)(VIII) of the Act,
requires each child’s IEP to include,
beginning not later than the first IEP to
be in effect when the child turns 16, or
younger if determined appropriate by
the IEP Team, appropriate measurable
postsecondary goals and the transition
services needed to assist the child in
reaching those goals.
Changes:
A new paragraph (iv) has
been added in § 300.102(a)(3) stating
that a regular high school diploma does
not include an alternative degree that is
not fully aligned with the State’s
academic standards, such as a certificate
or GED.
Comment
: One commenter requested
clarification as to how States should
include children with disabilities who
require special education services
through age 21 in calculating, for
adequate yearly progress (AYP)
purposes, the percentage of children
who graduate with a regular high school
diploma in the standard number of
years. The commenter expressed
concern that States, in order to comply
with their high school graduation rate
academic outcome requirements under
the ESEA, will change the grade status
from 12th grade to 11th grade for those
children with disabilities who will
typically age out of the public education
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system under the Act. The commenter
further stated that this will affect the
exception to FAPE provisions in
§ 300.102 for children with disabilities
who require special education services
through age 21.
Discussion:
The calculation of
graduation rates under the ESEA for
AYP purposes (34 CFR 200.19(a)(1)(i))
does not alter the exception to FAPE
provisions in § 300.102(a)(3) for
children with disabilities who graduate
from high school with a regular high
school diploma, but not in the standard
number of years. The public agency
must make FAPE available until age 21
or the age limit established by State law,
even though the child would not be
included as graduating for AYP
purposes under the ESEA. In practice,
though, there is no conflict between the
Act and the ESEA, as the Department
interprets the ESEA title I regulations to
permit States to propose a method for
accurately accounting for students who
legitimately take longer than the
standard number of years to graduate.
Changes:
None.
Residential Placement: (§ 300.104)
Comment:
A few commenters
requested that the regulations clarify
that parents cannot be held liable for
any costs if their child with a disability
is placed in a residential setting by a
public agency in order to provide FAPE
to the child.
Discussion:
Section 300.104,
consistent with section 612(a)(1) and
(a)(10)(B) of the Act, is a longstanding
provision that applies to placements
that are made by public agencies in
public and private institutions for
educational purposes and clarifies that
parents are not required to bear the costs
of a public or private residential
placement if such placement is
determined necessary to provide FAPE.
If a public agency determines in an
individual situation that a child with a
disability cannot receive FAPE from the
programs that the public agency
conducts and, therefore, placement in a
public or private residential program is
necessary to provide special education
and related services to the child, the
program, including non-medical care
and room and board, must be at no cost
to the parents of the child.
In situations where a child’s
educational needs are inseparable from
the child’s emotional needs and an
individual determination is made that
the child requires the therapeutic and
habilitation services of a residential
program in order to ‘‘benefit from
special education,’’ these therapeutic
and habilitation services may be
‘‘related services’’ under the Act. In
such a case, the SEA is responsible for
ensuring that the entire cost of that
child’s placement, including the
therapeutic care as well as room and
board, is without cost to the parents.
However, the SEA is not responsible for
providing medical care. Thus, visits to
a doctor for treatment of medical
conditions are not covered services
under Part B of the Act and parents may
be responsible for the cost of the
medical care.
Changes:
None.
Assistive Technology (§ 300.105)
Comment:
One commenter
recommended removing § 300.105 and
including the requirements in this
section in the definition of
assistive
technology device
in § 300.5 and
assistive technology service
in § 300.6.
Discussion:
Section 300.5 and § 300.6
define the terms
assistive technology
device
and
assistive technology service
,
respectively. Section 300.105 is not part
of the definition of these terms, but
rather is necessary to specify the
circumstances under which public
agencies are responsible for making
available assistive technology devices
and assistive technology services to
children with disabilities.
Changes:
None.
Comment:
A few commenters
requested clarifying in § 300.105(b)
whether hearing aids are included in the
definition of an
assistive technology
device
.
Discussion:
An
assistive technology
device
, as defined in § 300.5, means any
item, piece of equipment, or product
system that is used to increase,
maintain, or improve the functional
capabilities of a child with a disability.
The decision of whether a hearing aid
is an assistive technology device is a
determination that is made on an
individual basis by the child’s IEP
Team. However, even if the IEP Team
determines that a hearing aid is an
assistive technology device
, within the
meaning of § 300.5, for a particular
child, the public agency is responsible
for the provision of the assistive
technology device as part of FAPE, only
if, as specified in § 300.105, the device
is required as part of the child’s
special
education
defined in § 300.39,
related
services
defined in § 300.34, or
supplementary aids and services
defined in § 300.42.
As a general matter, public agencies
are not responsible for providing
personal devices, such as eyeglasses or
hearing aids that a child with a
disability requires, regardless of
whether the child is attending school.
However, if it is not a surgically
implanted device and a child’s IEP
Team determines that the child requires
a personal device (e.g., eyeglasses) in
order to receive FAPE, the public
agency must ensure that the device is
provided at no cost to the child’s
parents.
Changes:
None.
Comment:
One commenter
recommended adding language to
§ 300.105(b) to include, in addition to
hearing aids, other hearing
enhancement devices, such as a
cochlear implant.
Discussion:
Section 300.105(b), as
proposed, requires a public agency to
ensure that hearing aids worn in school
by children with hearing impairments,
including deafness, are functioning
properly. This is a longstanding
requirement and was included pursuant
to a House Committee Report on the
1978 appropriations bill (H. Rpt. No.
95–381, p. 67 (1977)) directing the
Department to ensure that children with
hearing impairments are receiving
adequate professional assessment,
follow-up, and services. The
Department believes that, given the
increase in the number of children with
disabilities with surgically implanted
devices (e.g., cochlear implants, vagus
nerve stimulators, electronic muscle
stimulators), and rapid advances in new
technologies to help children with
disabilities, it is important that these
regulations clearly address any
obligation public agencies have to
provide follow-up and services to
ensure that such devices are functioning
properly.
Section 602(1) of the Act clarifies that
the definition of
assistive technology
device
does not include a medical
device that is surgically implanted or
the replacement of such device. Section
602(26) of the Act also stipulates that
only medical services that are for
diagnostic and evaluative purposes and
required to assist a child with a
disability to benefit from special
education are considered a
related
service
. We believe Congress was clear
in its intent in S. Rpt. 108–185, p. 8,
which states:
[T]he definitions of ‘‘assistive technology
device’’ and ‘‘related services’’ do not
include a medical device that is surgically
implanted, or the post-surgical maintenance,
programming, or replacement of such device,
or an external device connected with the use
of a surgically implanted medical device
(other than the costs of performing routine
maintenance and monitoring of such external
device at the same time the child is receiving
other services under the act).
The Department believes, however,
that public agencies have an obligation
to change a battery or routinely check an
external component of a surgically
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implanted medical device to make sure
it is turned on and operating. However,
mapping a cochlear implant (or paying
the costs associated with mapping) is
not routine checking as described above
and should not be the responsibility of
a public agency. We will add language
to the regulations to clarify a public
agency’s responsibility regarding the
routine checking of external
components of surgically implanted
medical devices.
Changes:
A new § 300.113 has been
added with the heading, ‘‘Routine
checking of hearing aids and external
components of surgically implanted
medical devices.’’ Section 300.105(b),
regarding the proper functioning of
hearing aids, has been removed and
redesignated as new § 300.113(a). We
have added a new paragraph (b) in new
§ 300.113 clarifying that, for a child
with a surgically implanted medical
device who is receiving special
education and related services under
this part, a public agency is responsible
for routine checking of external
components of surgically implanted
medical devices, but is not responsible
for the post-surgical maintenance,
programming, or replacement of a
medical device that has been surgically
implanted (or of an external component
of a surgically implanted medical
device).
The provisions in § 300.105 have been
changed to conform with the other
changes to this section and the phrase
‘‘proper functioning of hearing aids’’ has
been removed from the heading.
Extended School Year Services
(§ 300.106)
Comment:
Several commenters
recommended removing § 300.106
because the requirement to provide
extended school year (ESY) services to
children with disabilities is not required
in the Act.
Discussion:
The requirement to
provide ESY services to children with
disabilities who require such services in
order to receive FAPE reflects a
longstanding interpretation of the Act
by the courts and the Department. The
right of an individual child with a
disability to receive ESY services is
based on that child’s entitlement to
FAPE under section 612(a)(1) of the Act.
Some children with disabilities may not
receive FAPE unless they receive
necessary services during times when
other children, both disabled and
nondisabled, normally would not be
served. We believe it is important to
retain the provisions in § 300.106
because it is necessary that public
agencies understand their obligation to
ensure that children with disabilities
who require ESY services in order to
receive FAPE have the necessary
services available to them, and that
individualized determinations about
each disabled child’s need for ESY
services are made through the IEP
process.
Changes:
None.
Comment:
One commenter stated that
the ESY requirements in § 300.106
should not be included as part of the
State eligibility requirements and would
be more appropriately included in the
definition of FAPE in § 300.17.
Discussion:
The definition of FAPE in
§ 300.17 is taken directly from section
602(9) of the Act. We believe the ESY
requirements are appropriately included
under the FAPE requirements as a part
of a State’s eligibility for assistance
under Part B of the Act because the right
of an individual child with a disability
to ESY services is based on a child’s
entitlement to FAPE. As a part of the
State’s eligibility for assistance under
Part B of the Act, the State must make
FAPE available to all children with
disabilities residing in the State in
mandated age ranges.
Changes:
None.
Comment:
One commenter
recommended removing the word
‘‘only’’ in § 300.106(a)(2) because it is
unduly limiting.
Discussion:
The inclusion of the word
‘‘only’’ is intended to be limiting. ESY
services must be provided ‘‘only’’ if a
child’s IEP Team determines, on an
individual basis, in accordance with
§§ 300.320 through 300.324, that the
services are necessary for the provision
of FAPE to the child. We do not think
this language is overly restrictive;
instead, we think it is necessary for
providing appropriate parameters to the
responsibility of the IEP Team.
Changes:
None.
Comment:
A few commenters
suggested revising § 300.106(a)(3)(i) to
specifically state that, in addition to
particular categories of disabilities,
public agencies may not limit ESY
services to particular age ranges. Other
commenters proposed adding
‘‘preschooler with a disability’’ to the
definition of ESY services in
§ 300.106(b)(1).
Discussion:
The revisions
recommended by the commenters are
not necessary. Section 300.106(a)
clarifies that each public agency must
ensure that ESY services are available
for children with disabilities if those
services are necessary for the children to
receive FAPE. Section 300.101(a) clearly
states that FAPE must be available to all
children aged 3 through 21, inclusive,
residing in the State, except for children
ages 3, 4, 5, 18, 19, 20, or 21 to the
extent that its application to those
children would be inconsistent with
State law or practice, or the order of any
court, regarding the provision of public
education to children of those ages. We
do not believe any further clarification
is necessary.
Changes:
None.
Comment:
One commenter requested
that language be added to
§ 300.106(b)(1)(i) to clarify that
providing ESY services to a child with
a disability beyond the normal school
year includes, but is not limited to,
before and after regular school hours, on
weekends, and during regular school
vacations.
Discussion:
Typically, ESY services
are provided during the summer
months. However, there is nothing in
§ 300.106 that would limit a public
agency from providing ESY services to
a child with a disability during times
other than the summer, such as before
and after regular school hours or during
school vacations, if the IEP Team
determines that the child requires ESY
services during those time periods in
order to receive FAPE. The regulations
give the IEP Team the flexibility to
determine when ESY services are
appropriate, depending on the
circumstances of the individual child.
Changes:
None.
Comment:
One commenter suggested
adding language to § 300.106 clarifying
that ‘‘recoupment and retention’’ should
not be used as the sole criteria for
determining the child’s eligibility for
ESY services.
Discussion:
We do not believe the
commenter’s suggested change should
be made. The concepts of ‘‘recoupment’’
and ‘‘likelihood of regression or
retention’’ have formed the basis for
many standards that States use in
making ESY eligibility determinations
and are derived from well-established
judicial precedents. (See, for example,
Johnson
v.
Bixby Independent School
District 4
, 921 F.2d 1022 (10th Cir.
1990);
Crawford
v.
Pittman
, 708 F.2d
1028 (5th Cir. 1983);
GARC
v.
McDaniel
,
716 F.2d 1565 (11th Cir. 1983)). States
may use recoupment and retention as
their sole criteria but they are not
limited to these standards and have
considerable flexibility in determining
eligibility for ESY services and
establishing State standards for making
ESY determinations. However, whatever
standard a State uses must be consistent
with the individually-oriented
requirements of the Act and may not
limit eligibility for ESY services to
children with a particular disability
category or be applied in a manner that
denies children with disabilities who
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require ESY services in order to receive
FAPE access to necessary ESY services.
Changes:
None.
Nonacademic Services (§ 300.107)
Comment:
One commenter
recommended adding more specific
language in § 300.107 regarding services
and accommodations available for
nonacademic activities to ensure that
children with disabilities are fully
included in nonacademic activities.
Discussion:
We agree with the
commenter. Section 300.107(a), as
proposed, requires public agencies to
take steps to provide nonacademic and
extracurricular services and activities in
a manner necessary to afford children
with disabilities an equal opportunity to
participate in those services and
activities. In addition,
§ 300.320(a)(4)(ii), consistent with
section 614(d)(1)(i)(IV)(bb) of the Act,
clarifies that an IEP must include a
statement of the special education and
related services and supplementary aids
and services to be provided to the child
to participate in extracurricular and
other nonacademic activities. We will
add language in § 300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Changes:
Additional language has
been added in § 300.107(a) to clarify
that the steps taken by public agencies
to provide access to nonacademic and
extracurricular services and activities
include the provision of supplementary
aids and services determined
appropriate and necessary by the child’s
IEP Team.
Comment:
One commenter expressed
concern about including ‘‘nonacademic
services’’ in § 300.107, because it is not
in the Act. The commenter stated that
services such as athletics, recreational
activities and clubs, counseling,
transportation and health services
should not be included in the
regulations because they may be costly
and are usually available on a limited
basis. One commenter stated that it is
confusing to include related services in
the examples of nonacademic services
and recommended that they be
removed.
Discussion:
The list of nonacademic
and extracurricular services and
activities in § 300.107(b) is not
exhaustive. The list provides public
agencies with examples of services and
activities that may afford children with
disabilities an equal opportunity for
participation in the services offered to
other children of the public agency. We
disagree that the list of activities causes
confusion with related services, as we
think that the public can easily
recognize the difference between
academic counseling services, for
example, that are offered to all children,
and the type of counseling services that
might be included in a child’s IEP as a
related service. For these reasons, we
believe it is appropriate to maintain the
list of nonacademic and extracurricular
services and activities in § 300.107,
including those services that are also
related services
in § 300.34.
Changes:
None.
Physical Education (§ 300.108)
Comment:
A few commenters stated
that, in some States, physical education
is not required for every nondisabled
child every year and this creates
situations in which children with
disabilities are in segregated physical
education classes. The commenters
recommended that the regulations
clarify the requirements for public
agencies to make physical education
available to children with disabilities
when physical education is not
available to children without
disabilities.
Discussion:
Section 300.108 describes
two considerations that a public agency
must take into account to meet the
physical education requirements in this
section. First, physical education must
be made available equally to children
with disabilities and children without
disabilities. If physical education is not
available to all children (
i.e.
, children
with and without disabilities), the
public agency is not required to make
physical education available for
children with disabilities (
e.g.
, a district
may provide physical education to all
children through grade 10, but not to
any children in their junior and senior
years). Second, if physical education is
specially designed to meet the unique
needs of a child with a disability and is
set out in that child’s IEP, those services
must be provided whether or not they
are provided to other children in the
agency.
This is the Department’s longstanding
interpretation of the requirements in
§ 300.108 and is based on legislative
history that the intent of Congress was
to ensure equal rights for children with
disabilities. The regulation as
promulgated in 1977 was based on an
understanding that physical education
was available to all children without
disabilities and, therefore, must be made
available to all children with
disabilities. As stated in H. Rpt. No. 94–
332, p. 9, (1975):
Special education as set forth in the
Committee bill includes instruction in
physical education, which is provided as a
matter of course to all non-handicapped
children enrolled in public elementary and
secondary schools. The Committee is
concerned that although these services are
available to and required of all children in
our school systems, they are often viewed as
a luxury for handicapped children.
We agree that § 300.108(a) could be
interpreted to mean that physical
education must be made available to all
children with disabilities, regardless of
whether physical education is provided
to children without disabilities. We
will, therefore, revise paragraph (a) to
clarify that the public agency has no
obligation to provide physical education
for children with disabilities if it does
not provide physical education to
nondisabled children attending their
schools.
Changes:
Section 300.108(a) has been
revised as described in the preceding
paragraph.
Full Education Opportunity Goal
(FEOG) (§ 300.109)
Comment:
One commenter requested
that the regulations clarify how a State
communicates and monitors the
progress of the State’s FEOG.
Discussion:
We do not believe it is
appropriate to regulate how a State
communicates and monitors its progress
toward the State’s FEOG. We believe the
State should have the flexibility needed
to implement the provisions of this
section and the State is in the best
position to make this determination.
Changes:
None.
Program Options (§ 300.110)
Comment:
A few commenters
recommended revising § 300.110 to
require States to ensure that each public
agency have in effect policies,
procedures, and programs to provide
children with disabilities the variety of
educational programs and services
available to nondisabled children. The
commenters stated that § 300.110 does
not provide any guidance to educators.
A few commenters stated that
‘‘vocational education is an outdated
term’’ and proposed replacing it with
‘‘career-technical and adult education’’
or ‘‘career and technical education.’’
Discussion:
We do not believe it is
necessary to change § 300.110. Under
this provision, States must ensure that
public agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency, whatever
those options are, and we are not aware
of any implementation problems with
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this requirement. We believe that it is
important that educators understand
that children with disabilities must have
access to the same range of programs
and services that a public agency
provides to nondisabled children and
that the regulation conveys this point.
We also do not believe it is necessary to
replace the term ‘‘vocational education’’
with the language recommended by the
commenter. The term is broad in its
meaning and generally accepted and
understood in the field and, therefore,
would encompass such areas as ‘‘career-
technical’’ and ‘‘technical education.’’
Changes:
None.
Comment:
Several commenters
requested that the regulations explicitly
state that a child with a disability who
has not yet received a regular high
school diploma or ‘‘aged out’’ of special
education may participate in dual
enrollment programs and receive
services in a postsecondary or
community-based setting if the IEP
Team decides it is appropriate.
Discussion:
Section 300.110,
consistent with section 612(a)(2) of the
Act, requires States to ensure that public
agencies take steps to ensure that
children with disabilities have access to
the same program options that are
available to nondisabled children in the
area served by the agency. This would
apply to dual enrollment programs in
post-secondary or community-based
settings. Therefore, a State would be
responsible for ensuring that a public
agency that offered dual enrollment
programs in post-secondary or
community-based settings to a
nondisabled student would have that
option available to a student with
disabilities whose IEP Team determined
that such a program would best meet the
student’s needs. However, we do not
believe that the Act requires public
agencies to provide dual enrollment
programs in post-secondary or
community-based settings for students
with disabilities, if such programs are
not available to nondisabled secondary
school students. Therefore, we are not
modifying the regulations.
Changes:
None.
Child Find (§ 300.111)
Comment:
Several commenters
expressed confusion about the child
find requirements in § 300.111 and the
parental consent requirements in
§ 300.300, and requested clarification on
whether child find applies to private
school children and whether LEAs may
use the consent override procedures for
children with disabilities enrolled in
private schools. Two commenters
requested that § 300.111(a)(1)(i) specify
that child find does not apply to private
school children whose parents refuse
consent.
Discussion:
This issue is addressed in
the
Analysis of Comments and Changes
section for subpart D in response to
comments on § 300.300.
Changes:
None.
Comment:
One commenter
recommended retaining current
§ 300.125(b) to ensure that the child find
requirements are retained for parentally-
placed private school children.
Discussion:
Current § 300.125(b) was
removed from these regulations because,
under the Act, States are no longer
required to have State policies and
procedures on file with the Secretary.
Furthermore, the Department believes
the requirements in §§ 300.111 and
300.131 adequately ensure that
parentally-placed private school
children are considered in the child find
process.
Changes:
None.
Comment:
One commenter requested
a definition of the term ‘‘private
school,’’ as used in § 300.111.
Discussion:
The term ‘‘private school’’
as used in § 300.111 means a private
elementary school
or
secondary school
,
including a religious school. The terms
elementary school and secondary school
are defined in subpart A of these
regulations. The term
private
is defined
in 34 CFR Part 77, which applies to this
program, and we see no need to include
those definitions here.
Changes:
None.
Comment:
One commenter requested
that the child find requirements in
§ 300.111(c)(2) include homeless
children.
Discussion:
Homeless children are
already included in the child find
requirements. Section 300.111(a)(1)(i)
clarifies that the State must have
policies and procedures to ensure that
children with disabilities who are
homeless and who are in need of special
education and related services, are
identified, located, and evaluated. No
further clarification is needed.
Changes:
None.
Comment:
A few commenters
recommended including in § 300.111
the requirements in current § 300.125(c),
regarding child find for children from
birth through age two when the SEA
and lead agency for the Part C program
are different. The commenters stated
that this will ensure that children with
disabilities from birth through age two
are eligible to participate in child find
activities when the Part C lead agency
is not the SEA.
Discussion:
The Department does not
believe it is necessary to retain the
language in current § 300.125(c). The
child find requirements in § 300.111
have traditionally been interpreted to
mean identifying and evaluating
children beginning at birth. While child
find under Part C of the Act overlaps, in
part, with child find under Part B of the
Act, the coordination of child find
activities under Part B and Part C is an
implementation matter that is best left
to each State. Nothing in the Act or
these regulations prohibits a Part C lead
agency’s participation, with the
agreement of the SEA, in the actual
implementation of child find activities
for infants and toddlers with
disabilities.
Changes:
None.
Comment:
One commenter
recommended removing § 300.111(c)
because child find for children with
developmental delays, older children
progressing from grade to grade, and
highly mobile children is not
specifically required by the Act.
Discussion:
The changes requested by
the commenter cannot be made because
they are inconsistent with the Act.
Section 300.111(a)(1)(i), consistent with
section 612(a)(3)(A) of the Act,
explicitly requires that
all
children with
disabilities residing in the State are
identified, located, and evaluated. This
includes children suspected of having
developmental delays, as defined in
section 602(3)(B) of the Act. We
recognize that it is difficult to locate,
identify, and evaluate highly mobile and
migrant children with disabilities.
However, we strongly believe it is
important to stress in these regulations
that the States’ child find
responsibilities in § 300.111 apply
equally to such children. We also
believe it is important to clarify that a
child suspected of having a disability
but who has not failed, is making
academic progress, and is passing from
grade to grade must be considered in the
child find process as any other child
suspected of having a disability. As
noted earlier in the discussion regarding
§ 300.101, paragraph (c)(1) of § 300.111
has been revised to clarify that children
do not have to fail or be retained in a
course or grade in order to be
considered for special education and
related services.
Changes:
None.
Comment:
One commenter requested
that § 300.111 explicitly require that
children in residential facilities be
included in the public agency’s child
find process.
Discussion
: We believe § 300.111(a),
consistent with section 612(a)(3)(A) of
the Act, clarifies that the State must
ensure that all children with disabilities
residing in the State are identified,
located, and evaluated. This would
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include children in residential facilities.
No further clarification is necessary.
Changes:
None.
Individualized Education Programs
(IEP) (§ 300.112)
Comment:
One commenter objected to
including the reference to
§ 300.300(b)(3)(ii) in § 300.112, stating
that it is not necessary to ensure
compliance with the requirement for an
IEP or IFSP to be developed, reviewed,
and revised for each child with a
disability.
Discussion
: Section 300.300(b)(3)(ii)
states that if a parent refuses to consent
to the initial provision of special
education and related services, or the
parent fails to respond to a request to
provide consent for the initial provision
of special education and related
services, the public agency is not
required to convene an IEP meeting or
develop an IEP for the child. It is
necessary to include this reference in
§ 300.112 to clarify the circumstances
under which a public agency is not
required to develop an IEP for an
eligible child with a disability.
Changes:
None.
Routine Checking of Hearing Aids and
External Components of Surgically
Implanted Medical Devices (§ 300.113)
Comment
: None.
Discussion
: New § 300.113 is
addressed in the
Analysis of Comments
and Changes
section for subpart A in
response to comments on § 300.34(b).
Changes
: We have added new
§ 300.113 to cover the routine checking
of hearing aids and external components
of surgically implanted medical devices.
The requirement for the routine
checking of hearing aids has been
removed from proposed § 300.105 and
included in new § 300.113(a). The
requirement for routine checking of an
external component of a surgically
implanted medical device has been
added as new § 300.113(b). The
requirements for assistive technology
devices and services remain in
§ 300.105 and the heading has been
changed to reflect this change. We have
also included a reference to new
§ 300.113(b) in new § 300.34(b)(2).
Least Restrictive Environment (LRE)
LRE Requirements (§ 300.114)
Comment
: One commenter
recommended including language in the
regulations that respects and safeguards
parental involvement and protects the
rights of children with disabilities to be
educated in the least restrictive
environment (LRE).
Discussion
: We believe that the LRE
requirements in §§ 300.114 through
300.120 address the rights of children
with disabilities to be educated in the
LRE, as well as safeguard parental
rights. Section 300.114, consistent with
section 612(a)(5) of the Act, requires
each public agency to ensure that, to the
maximum extent appropriate, children
with disabilities are educated with
children who are not disabled. Further,
§ 300.116 ensures that a child’s parent is
included in the group of persons making
the decision about the child’s
placement.
Changes:
None.
Comment
: A number of comments
were received regarding
§ 300.114(a)(2)(ii), which requires each
public agency to ensure that the removal
of children with disabilities from the
regular educational environment occurs
only when the nature or severity of the
disability is such that the education in
regular classes with the use of
supplementary aids and services cannot
be achieved satisfactorily. Many
commenters recommended replacing
‘‘regular educational environment’’ with
‘‘regular classroom’’ because ‘‘regular
classroom’’ is less likely to be
misinterpreted to mean any kind of
contact with children without
disabilities. A few commenters
expressed concern that using the phrase
‘‘regular educational environment’’
weakens the LRE protections. Another
commenter recommended the
regulations clarify that the ‘‘regular
educational environment’’ means the
participation of children with
disabilities with their nondisabled peers
in regular classrooms and other
educational settings including
nonacademic settings.
Discussion
: Section 300.114(a)(2)(ii)
follows the specific language in section
612(a)(5)(A) of the Act and reflects
previous regulatory language. This
requirement is longstanding. We do not
believe the language should be revised,
as recommended by the commenters,
because ‘‘regular educational
environment’’ encompasses regular
classrooms and other settings in schools
such as lunchrooms and playgrounds in
which children without disabilities
participate.
Changes:
None.
Comment
: One commenter requested
revising § 300.114(a)(2) to require a
public agency to document and justify
placements of children with disabilities
in environments outside the general
education classroom.
Discussion
: The additional language
requested by the commenter is not
necessary and would impose
unwarranted paperwork burdens on
schools. Section 300.320(a)(5),
consistent with section
614(d)(1)(A)(i)(V) of the Act, already
requires a child’s IEP to include an
explanation of the extent, if any, to
which the child will not participate
with nondisabled children in the regular
class. As noted previously, parents are
a part of the group making placement
decisions. We believe these provisions
provide sufficient safeguards on the
placement process.
Changes:
None.
Comment
: One commenter stated that
the LRE requirements are often
misinterpreted to be a mandate to
include all children who are deaf or
hard of hearing in their local schools.
The commenter stated that the
placement decision for a child who is
deaf or hard of hearing should be based
on the child’s communication needs
and must be the environment that
presents the fewest language and
communication barriers to the child’s
cognitive, social, and emotional
development. Some commenters
cautioned that inclusive settings might
be inappropriate for a child who is deaf
and who requires communication
support and stated that the LRE should
be the place where a child can be
educated successfully. A few
commenters requested the regulations
clarify that all placement options must
remain available for children who are
deaf.
One commenter recommended
strengthening the requirement for a
continuum of alternative placements
and stated that a full range of placement
options is necessary to meet the needs
of all children with visual impairments.
Another commenter urged the
Department to ensure that children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) have access to appropriate
educational programming and services
at all times, including center-based
schools, which may be the most
appropriate setting for children with
low-incidence disabilities.
Discussion
: The LRE requirements in
§§ 300.114 through 300.117 express a
strong preference, not a mandate, for
educating children with disabilities in
regular classes alongside their peers
without disabilities. Section
300.114(a)(2), consistent with section
612(a)(5)(A) of the Act, requires that, to
the maximum extent appropriate,
children with disabilities are educated
with children who are not disabled, and
that special classes, separate schooling,
or other removal of children with
disabilities from the regular educational
environment occurs only when the
nature or severity of the disability is
such that education in regular classes
with the use of supplementary aids and
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services cannot be achieved
satisfactorily.
With respect to the recommendation
that the placement for children who are
deaf or hard of hearing be based on the
child’s communication needs,
§ 300.324(a)(2)(iv), consistent with
section 614(d)(3)(B)(iv) of the Act,
clarifies that the IEP Team, in
developing the IEP for a child who is
deaf or hard of hearing, must consider
the child’s language and communication
needs, opportunities for direct
communication with peers and
professional personnel in the child’s
language and communication mode, and
the child’s academic level and full range
of needs, including opportunities for
direct instruction in the child’s language
and communication mode.
With respect to strengthening the
continuum of alternative placement
requirements, nothing in the LRE
requirements would prevent an IEP
Team from making a determination that
placement in the local school is not
appropriate for a particular child.
Section 300.115 already requires each
public agency to ensure that a
continuum of alternative placements is
available to meet the needs of children
with disabilities for special education
and related services. We believe this
adequately addresses the commenter’s
concern.
The process for determining the
educational placement for children with
low-incidence disabilities (including
children who are deaf, hard of hearing,
or deaf-blind) is the same process used
for determining the educational
placement for all children with
disabilities. That is, each child’s
educational placement must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances, rather than by the child’s
category of disability, and must be based
on the child’s IEP. We believe the LRE
provisions are sufficient to ensure that
public agencies provide low-incidence
children with disabilities access to
appropriate educational programming
and services in the educational setting
appropriate to meet the needs of the
child in the LRE.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify that children
with disabilities who are suspended or
expelled from school are entitled to be
educated with children who are not
disabled. The commenter stated that
this clarification is necessary to reduce
the use of home instruction as a
placement option for these children.
Discussion:
The Act does not require
that children with disabilities
suspended or expelled for disciplinary
reasons continue to be educated with
children who are not disabled during
the period of their removal. We believe
it is important to ensure that children
with disabilities who are suspended or
expelled from school receive
appropriate services, while preserving
the flexibility of school personnel to
remove a child from school, when
necessary, and to determine how best to
address the child’s needs during periods
of removal and where services are to be
provided to the child during such
periods of removals, including, if
appropriate, home instruction. Sections
300.530 through 300.536 address the
options available to school authorities
in disciplining children with disabilities
and set forth procedures that must be
followed when taking disciplinary
actions and in making decisions
regarding the educational services that a
child will receive and the location in
which services will be provided. We
believe including the language
recommended by the commenter would
adversely restrict the options available
to school personnel for disciplining
children with disabilities and
inadvertently tie the hands of school
personnel in responding quickly and
effectively to serious child behaviors
and in creating safe classrooms for all
children.
Changes:
None.
Additional Requirement—State Funding
Mechanism (§ 300.114(b))
Comment:
One commenter stated that
§ 300.114(b) does not adequately
address the requirements for funding
mechanisms relative to the LRE
requirements and requested that note 89
of the Conf. Rpt. be included in the
regulations.
Discussion:
Section 300.114(b)
incorporates the language from section
612(a)(5)(B) of the Act and prohibits
States from maintaining funding
mechanisms that violate the LRE
provisions. We do not believe it is
necessary to provide additional
clarification in the regulations. While
we agree with the commenter that note
89 of the Conf. Rpt. makes clear
Congress’ intent that State funding
mechanisms support the LRE
requirements and do not provide an
incentive or disincentive for certain
placement decisions, we believe the
requirements in § 300.114(b) accurately
capture the essence of the Conf. Rpt.
and including additional language in
this paragraph is not needed.
Changes:
None.
Comment:
One commenter urged the
Department to impose financial
sanctions on States that continue to base
their funding on certain placement
decisions. A few commenters suggested
changing the requirement in
§ 300.114(b)(2) for States to provide an
assurance that the State will revise its
funding mechanism ‘‘as soon as
feasible’’ to ‘‘no later than the start of
the 2006–2007 school year.’’
Discussion:
Section 300.114(b)(2)
incorporates the language in section
612(a)(5)(B)(ii) of the Act, and requires
that if a State does not have policies and
procedures to ensure that the State’s
funding mechanism does not violate the
LRE requirements, the State must
provide the Secretary an assurance that
the State will revise its funding
mechanism as soon as feasible. We do
not believe it is necessary to include in
these regulations a specific timeline for
a State to revise its funding mechanism,
if required to do so pursuant to
300.114(b)(2). We believe the statutory
language ‘‘as soon as feasible,’’ while
providing flexibility as to how each
State meets the requirement, is
sufficient to ensure States’ compliance
with this requirement.
Further, we believe the enforcement
options in § 300.604 give the Secretary
sufficient means to address a State’s
noncompliance with the requirements
in § 300.114(b)(2). Section 300.604
describes the enforcement options
available to the Secretary if the
Secretary determines that a State needs
assistance or intervention implementing
the requirements of Part B of the Act, or
that there is a substantial failure to
comply with any condition of an SEA’s
or LEA’s eligibility under Part B of the
Act. Enforcement options available to
the Secretary include, among others,
recovery of funds or withholding, in
whole or in part, any further payments
to the State under Part B of the Act.
Changes:
None.
Continuum of Alternative Placements
(§ 300.115)
Comment:
One commenter
recommended revising § 300.115 so that
only the specific allowable alternative
settings listed in the definition of
special education
in new § 300.39
(proposed § 300.38) (i.e., classroom,
home, hospitals, institutions) are
permitted.
Discussion:
Section 300.115 requires
each public agency to ensure that a
continuum of alternative placements
(including instruction in regular classes,
special classes, special schools, home
instruction, and instruction in hospitals
and institutions) is available to meet the
needs of children with disabilities for
special education and related services.
The list of placement options in this
section only expands the settings
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mentioned in new § 300.39 (proposed
§ 300.38) by recognizing the various
types of classrooms and settings for
classrooms in which special education
is provided. This continuum of
alternative placements is intended to
ensure that a child with a disability is
served in a setting where the child can
be educated successfully in the LRE.
Changes:
None.
Comment:
One commenter suggested
adding language to the regulations to
clarify that difficulty recruiting and
hiring qualified special education
teachers does not relieve an LEA of its
obligation to ensure a continuum of
alternative placements and to offer a full
range of services to meet the needs of
children with disabilities.
Discussion:
We do not believe it is
necessary to include the language
suggested by the commenter, because
§ 300.116 is sufficiently clear that
placement decisions must be based on
the individual needs of each child with
a disability. Public agencies, therefore,
must not make placement decisions
based on a public agency’s needs or
available resources, including budgetary
considerations and the ability of the
public agency to hire and recruit
qualified staff.
Changes:
None.
Comment:
A few commenters
recommended revising § 300.115(a) to
clarify that the continuum of alternative
placements must be available to eligible
preschool children with disabilities.
Discussion:
It is not necessary to
revise § 300.115(a) in the manner
suggested by the commenters. Section
300.116 clearly states that the
requirements for determining the
educational placement of a child with a
disability include preschool children
with disabilities and that such decisions
must be made in conformity with the
LRE provisions in §§ 300.114 through
300.118. This includes ensuring that a
continuum of services is available to
meet the needs of children with
disabilities for special education and
related services.
Changes:
None.
Placements (§ 300.116)
Comment:
One commenter
recommended the regulations clarify
that the regular class must always be
considered the first placement option.
Discussion:
We do not believe it is
necessary to include the clarification
recommended by the commenter.
Section 300.116 clarifies that placement
decisions must be made in conformity
with the LRE provisions, and
§ 300.114(a)(2) already requires that
special classes, separate schooling or
other removal of children with
disabilities from the regular education
environment only occurs if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Changes:
None.
Comment:
A few commenters
recommended revising § 300.116 to
require that children with disabilities
have access to, and make progress in,
the general curriculum, and that
children receive the special education
and related services included in their
IEPs.
Discussion:
The issues raised by the
commenters are already addressed
elsewhere in the regulations. The IEP
requirements in § 300.320(a), consistent
with section 614(d) of the Act, clarify
that children with disabilities must be
provided special education and related
services and needed supplementary aids
and services to enable them to be
involved in and make progress in the
general curriculum. In addition,
§ 300.323(c)(2) requires that, as soon as
possible following the development of
an IEP, special education and related
services are made available to the child
in accordance with the child’s IEP. We
believe that these regulations adequately
address the commenters’ concerns, and
that no further clarification is necessary.
Changes:
None.
Comment:
One commenter stated that
the placement requirements in § 300.116
encourage school districts to assign a
child with a disability to a particular
place or setting, rather than providing a
continuum of increasingly
individualized and intensive services.
The commenter suggested requiring that
the continuum of alternative placements
include a progressively more intensive
level of individualized, scientifically
based instruction and related services,
both with increased time and lower
pupil-teacher ratio, in addition to
regular instruction with supplementary
aids and services.
Discussion:
The overriding rule in
§ 300.116 is that placement decisions for
all children with disabilities must be
made on an individual basis and ensure
that each child with a disability is
educated in the school the child would
attend if not disabled unless the child’s
IEP requires some other arrangement.
However, the Act does not require that
every child with a disability be placed
in the regular classroom regardless of
individual abilities and needs. This
recognition that regular class placement
may not be appropriate for every child
with a disability is reflected in the
requirement that LEAs make available a
range of placement options, known as a
continuum of alternative placements, to
meet the unique educational needs of
children with disabilities. This
requirement for the continuum
reinforces the importance of the
individualized inquiry, not a ‘‘one size
fits all’’ approach, in determining what
placement is the LRE for each child
with a disability. The options on this
continuum must include the alternative
placements listed in the definition of
special education under § 300.38
(instruction in regular classes, special
classes, special schools, home
instruction, and instruction in hospitals
and institutions). These options must be
available to the extent necessary to
implement the IEP of each child with a
disability. The group determining the
placement must select the placement
option on the continuum in which it
determines that the child’s IEP can be
implemented in the LRE. Any
alternative placement selected for the
child outside of the regular educational
environment must include appropriate
opportunities for the child to interact
with nondisabled peers, to the extent
appropriate to the needs of the children,
consistent with § 300.114(a)(2)(i).
Because placement decisions must be
determined on an individual case-by-
case basis depending on each child’s
unique educational needs and
circumstances and based on the child’s
IEP, we do not believe it is appropriate
to require in the regulations that the
continuum of alternative placements
include a progressively more intensive
level of individualized scientifically
based instruction and related services as
suggested by the commenter.
Changes:
None.
Comment:
We received a number of
comments regarding the phrase, ‘‘unless
the parent agrees otherwise’’ in
proposed § 300.116(b)(3) and (c). As
proposed, § 300.116(b)(3) requires the
child’s placement to be as close as
possible to the child’s home, ‘‘unless the
parent agrees otherwise;’’ and
§ 300.116(c) requires that, unless the
child’s IEP requires some other
arrangement, the child must be
educated in the school that he or she
would attend if nondisabled, ‘‘unless
the parent agrees otherwise.’’ Many
commenters requested removing the
phrase ‘‘unless the parent agrees
otherwise,’’ because it is not included in
section 612(a)(5) of the Act and is not
necessary to clarify that a parent may
place his or her child in a charter,
magnet, or other specialized school
without violating the LRE requirements.
Other commenters suggested removing
the phrase and clarifying that a decision
by the child’s parent to send the child
to a charter, magnet, or other specialized
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school is not a violation of the LRE
requirements.
Several commenters stated that
including the phrase undermines the
statutory requirement for children with
disabilities to be placed in the LRE
based on their IEPs and allows more
restrictive placements based on parental
choice. Many commenters interpreted
this phrase to mean that placement is a
matter of parental choice even in public
school settings and stated that a child’s
LRE rights should not be overridden by
parental choice. One commenter stated
that the phrase might intimidate parents
into accepting inappropriate
placements.
A few commenters stated that this
phrase is unnecessary because the Act
already requires parents to be involved
in placement decisions, and expressed
concern that including this phrase in
the regulations could lead to confusion
and litigation. One commenter stated
that the phrase suggests that additional
consent is required if the parent chooses
to send the child to a charter, magnet,
or other specialized school.
Discussion:
The phrase ‘‘unless the
parent agrees otherwise’’ in proposed
§ 300.116(b)(3) and (c) was added to
clarify that a parent may send the child
to a charter, magnet, or other specialized
school without violating the LRE
mandate. A parent has always had this
option; a parent who chooses this
option for the child does not violate the
LRE mandate as long as the child is
educated with his or her peers without
disabilities to the maximum extent
appropriate. However, we agree that this
phrase is unnecessary, confusing, and
may be misunderstood to mean that
parents have a right to veto the
placement decision made by the group
of individuals in § 300.116(a)(1). We
will, therefore, remove the phrase.
Changes:
We have removed the
phrase ‘‘unless the parent agrees
otherwise’’ in § 300.116(b)(3) and (c).
Comment:
One commenter disagreed
with the requirement in § 300.116(b)(3)
that placements be as close as possible
to the child’s home, stating that the
requirement is administratively
prohibitive and beyond the scope of the
Act. The commenter stated that it is not
possible for school districts to provide
classes for children with all types and
degrees of disabilities in each school
building. The commenter stated that
‘‘placement’’ should be understood as
the set of services outlined in a child’s
IEP, and recommended that school
districts be permitted to provide these
services in the school building that is
most administratively feasible.
Discussion:
We do not believe the
requirement imposes unduly restrictive
administrative requirements. The
Department has consistently maintained
that a child with a disability should be
educated in a school as close to the
child’s home as possible, unless the
services identified in the child’s IEP
require a different location. Even though
the Act does not mandate that a child
with a disability be educated in the
school he or she would normally attend
if not disabled, section 612(a)(5)(A) of
the Act presumes that the first
placement option considered for each
child with a disability is the regular
classroom in the school that the child
would attend if not disabled, with
appropriate supplementary aids and
services to facilitate such placement.
Thus, before a child with a disability
can be placed outside of the regular
educational environment, the full range
of supplementary aids and services that
could be provided to facilitate the
child’s placement in the regular
classroom setting must be considered.
Following that consideration, if a
determination is made that a particular
child with a disability cannot be
educated satisfactorily in the regular
educational environment, even with the
provision of appropriate supplementary
aids and services, that child could be
placed in a setting other than the regular
classroom.
Although the Act does not require
that each school building in an LEA be
able to provide all the special education
and related services for all types and
severities of disabilities, the LEA has an
obligation to make available a full
continuum of alternative placement
options that maximize opportunities for
its children with disabilities to be
educated with nondisabled peers to the
extent appropriate. In all cases,
placement decisions must be
individually determined on the basis of
each child’s abilities and needs and
each child’s IEP, and not solely on
factors such as category of disability,
severity of disability, availability of
special education and related services,
configuration of the service delivery
system, availability of space, or
administrative convenience.
Changes:
None.
Comment:
One commenter requested
clarifying the difference, if any, between
‘‘placement’’ and ‘‘location.’’ One
commenter recommended requiring the
child’s IEP to include a detailed
explanation of why a child’s
educational needs cannot be met in the
location requested by the parent when
the school district opposes the parent’s
request for services to be provided to the
child in the school that the child would
attend if the child did not have a
disability.
Discussion:
Historically, we have
referred to ‘‘placement’’ as points along
the continuum of placement options
available for a child with a disability,
and ‘‘location’’ as the physical
surrounding, such as the classroom, in
which a child with a disability receives
special education and related services.
Public agencies are strongly encouraged
to place a child with a disability in the
school and classroom the child would
attend if the child did not have a
disability. However, a public agency
may have two or more equally
appropriate locations that meet the
child’s special education and related
services needs and school
administrators should have the
flexibility to assign the child to a
particular school or classroom, provided
that determination is consistent with the
decision of the group determining
placement. It also should be noted that,
under section 615(b)(3) of the Act, a
parent must be given written prior
notice that meets the requirements of
§ 300.503 a reasonable time before a
public agency implements a proposal or
refusal to initiate or change the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
Consistent with this notice requirement,
parents of children with disabilities
must be informed that the public agency
is required to have a full continuum of
placement options, as well as about the
placement options that were actually
considered and the reasons why those
options were rejected. While public
agencies have an obligation under the
Act to notify parents regarding
placement decisions, there is nothing in
the Act that requires a detailed
explanation in children’s IEPs of why
their educational needs or educational
placements cannot be met in the
location the parents’ request. We believe
including such a provision would be
overly burdensome for school
administrators and diminish their
flexibility to appropriately assign a
child to a particular school or
classroom, provided that the assignment
is made consistent with the child’s IEP
and the decision of the group
determining placement.
Changes:
None.
Comment:
One commenter
recommended including in the
regulations the Department’s policy that
a child’s placement in an educational
program that is substantially and
materially similar to the former
placement is not a change in placement.
Discussion:
As stated by the
commenter, it is the Department’s
longstanding position that maintaining a
child’s placement in an educational
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program that is substantially and
materially similar to the former
placement is not a change in placement.
We do not believe further clarification is
necessary in the regulations, however,
as the distinction seems to be commonly
accepted and understood.
Changes:
None.
Comment:
Many commenters
suggested requiring a public agency to
pay all costs associated with providing
FAPE for a child in a private preschool,
including paying for tuition,
transportation and such special
education, related services and
supplementary aids and services as the
child needs, if an inclusive preschool is
the appropriate placement for a child,
and there is no inclusive public
preschool that can provide all the
appropriate services and supports.
Discussion:
The LRE requirements in
§§ 300.114 through 300.118 apply to all
children with disabilities, including
preschool children who are entitled to
FAPE. Public agencies that do not
operate programs for preschool children
without disabilities are not required to
initiate those programs solely to satisfy
the LRE requirements of the Act. Public
agencies that do not have an inclusive
public preschool that can provide all the
appropriate services and supports must
explore alternative methods to ensure
that the LRE requirements are met.
Examples of such alternative methods
might include placement options in
private preschool programs or other
community-based settings. Paying for
the placement of qualified preschool
children with disabilities in a private
preschool with children without
disabilities is one, but not the only,
option available to public agencies to
meet the LRE requirements. We believe
the regulations should allow public
agencies to choose an appropriate
option to meet the LRE requirements.
However, if a public agency determines
that placement in a private preschool
program is necessary as a means of
providing special education and related
services to a child with a disability, the
program must be at no cost to the parent
of the child.
Changes:
None.
Comment:
One commenter suggested
clarifying that if a child’s behavior in
the regular classroom significantly
impairs the learning of the child or
others, that placement would not meet
the child’s needs and would not be
appropriate for that child.
Discussion:
Although the Act places a
strong preference in favor of educating
children with disabilities in the regular
classroom with appropriate aids and
supports, a regular classroom placement
is not appropriate for every child with
a disability. Placement decisions are
made on a case-by-case basis and must
be appropriate for the needs of the
child. The courts have generally
concluded that, if a child with a
disability has behavioral problems that
are so disruptive in a regular classroom
that the education of other children is
significantly impaired, the needs of the
child with a disability generally cannot
be met in that environment. However,
before making such a determination,
LEAs must ensure that consideration
has been given to the full range of
supplementary aids and services that
could be provided to the child in the
regular educational environment to
accommodate the unique needs of the
child with a disability. If the group
making the placement decision
determines, that even with the provision
of supplementary aids and services, the
child’s IEP could not be implemented
satisfactorily in the regular educational
environment, that placement would not
be the LRE placement for that child at
that particular time, because her or his
unique educational needs could not be
met in that setting. (
See Roncker
v.
Walter
, 700 F. 2d 1058 (6th Cir. 1983);
Devries
v.
Fairfax County School Bd.
,
882 F. 2d 876, 879 (4th Cir. 1989);
Daniel R.R.
v.
State Bd. of Educ.
, 874 F.
2d 1036 (5th Cir. 1989); and
A.W.
v.
Northwest R–1 School Dist.
, 813 F.2d
158, 163 (8th Cir. 1987).)
Changes:
None.
Nonacademic Settings (§ 300.117)
Comment:
One commenter requested
that the regulations clarify that children
with disabilities should receive the
supplementary aids and services
necessary to ensure their participation
in nonacademic and extracurricular
services and activities.
Discussion:
Section 300.117,
consistent with section 612(a)(5) of the
Act, requires that children with
disabilities participate in nonacademic
and extracurricular services and
activities with their nondisabled peers
to the maximum extent appropriate to
the needs of the child. The Act places
great emphasis on ensuring that
children with disabilities are educated,
to the maximum extent appropriate,
with children who are nondisabled and
are included in nonacademic and
extracurricular services and activities as
appropriate to the needs of the child.
We believe the public agency has an
obligation to provide a child with a
disability with appropriate aids,
services, and other supports, as
determined by the IEP Team, if
necessary to ensure the child’s
participation in nonacademic and
extracurricular services and activities.
Therefore, we will clarify in § 300.117
that each public agency must ensure
that children with disabilities have the
supplementary aids and services
determined necessary by the child’s IEP
Team for the child to participate in
nonacademic and extracurricular
services and activities to the maximum
extent appropriate to the needs of that
child.
Changes:
We have added language to
§ 300.117 to ensure that children with
disabilities receive the supplementary
aids and services needed to participate
in nonacademic and extracurricular
services and activities.
Technical Assistance and Training
Activities (§ 300.119)
Comment:
One commenter requested
that the regulations define ‘‘training.’’
Discussion:
The Department intends
the term ‘‘training,’’ as used in
§ 300.119, to have its generally accepted
meaning. Training is generally agreed to
be any activity used to enhance one’s
skill or knowledge to acquire, maintain,
and advance knowledge, skills, and
abilities. Given the general
understanding of the term ‘‘training,’’
we do not believe it is necessary to
regulate on this matter.
Changes:
None.
Children in Private Schools
Children With Disabilities Enrolled by
Their Parents in Private Schools
General Comments
Comment:
Many comments were
received regarding the parentally-placed
private school children with disabilities
requirements in §§ 300.130 through
300.144. Many commenters supported
the changes to the regulations and
believed the regulations simplify the
processes for both private schools and
public schools. Numerous commenters,
however, expressed concern regarding
the implementation of the private
school requirements.
Many of the commenters expressed
concern with the requirement that the
LEAs where private elementary schools
and secondary schools are located are
now responsible for child find,
individual evaluations, and the
provision of services for children with
disabilities enrolled by their parents in
private schools located in the LEA.
These commenters described the private
school provisions in the Act and the
NPRM as burdensome and difficult to
understand.
Discussion:
The revisions to the Act
in 2004 significantly changed the
obligation of States and LEAs to
children with disabilities enrolled by
their parents in private elementary
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schools and secondary schools. Section
612(a)(10)(A) of the Act now requires
LEAs in which the private schools are
located, rather than the LEAs in which
the parents of such children reside, to
conduct child find and provide
equitable services to parentally-placed
private school children with disabilities.
The Act provides that, in calculating
the proportionate amount of Federal
funds under Part B of the Act that must
be spent on parentally-placed private
school children with disabilities, the
LEAs where the private schools are
located, after timely and meaningful
consultation with representatives of
private elementary schools and
secondary schools and representatives
of parents of parentally-placed private
school children with disabilities, must
conduct a thorough and complete child
find process to determine the number of
parentally-placed children with
disabilities attending private elementary
schools and secondary schools located
in the LEAs. In addition, the obligation
of the LEA to spend a proportionate
amount of funds to provide services to
children with disabilities enrolled by
their parents in private schools is now
based on the total number of children
with disabilities who are enrolled in
private schools located in the LEA
whether or not the children and their
parents reside in the LEA.
We believe these regulations and the
additional clarification provided in our
responses to comments on §§ 300.130
through 300.144 will help States and
LEAs to better understand their
obligations in serving children with
disabilities placed by their parents in
private elementary schools and
secondary schools. In addition, the
Department has provided additional
guidance on implementing the
parentally-placed private school
requirements on the Department’s Web
site. We also are including in these
regulations
Appendix B to Part 300—
Proportionate Share Calculation
to
assist LEAs in calculating the
proportionate amount of Part B funds
that they must expend on parentally-
placed private school children with
disabilities attending private elementary
schools and secondary schools located
in the LEA.
Changes:
We have added a reference
to Appendix B in § 300.133(b).
Comment:
Several commenters
expressed concern that §§ 300.130
through 300.144 include requirements
that go beyond the Act and
recommended that any requirement
beyond what is statutory be removed
from these regulations.
Discussion:
In general, the regulations
track the language in section
612(a)(10)(A) of the Act regarding
children enrolled in private schools by
their parents. However, we determined
that including clarification of the
statutory language on parentally-placed
private school children with disabilities
in these regulations would be helpful.
The volume of comments received
concerning this topic confirm the need
to regulate in order to clarify the
statutory language and to help ensure
compliance with the requirements of the
Act.
Changes:
None.
Comment:
Some commenters
requested that the regulations provide
flexibility to States to provide services
to parentally-placed private school
children with disabilities beyond what
they would be able to do with the
proportionate share required under the
Act. A few of these commenters
requested that those States already
providing an individual entitlement to
special education and related services or
providing a full range of special
education services to parentally-placed
private school children be deemed to
have met the requirements in §§ 300.130
through 300.144 and be permitted to
continue the State’s current practices.
One commenter specifically
recommended allowing States that
provide additional rights or services to
parentally-placed private school
children with disabilities (including
FAPE under section 612 of the Act and
the procedural safeguards under section
615 of the Act), the option of requesting
that the Secretary consider alternate
compliance with these requirements
that would include evidence and
supporting documentation of alternate
procedures under State law to meet all
the requirements in §§ 300.130 through
300.144.
A few commenters requested that the
child find and equitable participation
requirements should not apply in States
with dual enrollment provisions where
children with disabilities who are
parentally-placed in private elementary
schools or secondary schools are also
enrolled in public schools for special
education and have IEPs and retain their
due process rights.
Discussion:
The Act in no way
prohibits States or LEAs from spending
additional State or local funds to
provide special education or related
services for parentally-placed private
school children with disabilities in
excess of those required in § 300.133
and section 612(a)(10)(A) of the Act,
consistent with State law or
administrative procedures. The Act,
however, does not provide the Secretary
with the authority to waive, in whole or
in part, the parentally-placed private
school requirements in §§ 300.130
through 300.144 for States or LEAs that
spend State or local funds to provide
special education or related services
beyond those required under Part B of
the Act. The Secretary, therefore, cannot
consider alternative compliance with
the parentally-placed private school
provisions in the Act and these
regulations or consider States and LEAs
that use State and local funds to provide
services to parentally-placed private
school children with disabilities beyond
the required proportionate share of
Federal Part B funds, including
providing FAPE to such children, to
have met the statutory and regulatory
requirements governing parentally-
placed private school children with
disabilities. States and LEAs must meet
the requirements in the Act and these
regulations.
With regard to the comment
requesting that the child find and
equitable participation requirements for
parentally-placed private school
children with disabilities not apply in
States with dual enrollment, there is no
exception in the Act to the child find
and equitable participation
requirements of section 612(a)(10)(A) for
States that permit dual enrollment of a
child at a parent’s discretion. Therefore,
there is no basis to regulate to provide
such an exception. It would be a matter
of State or local discretion to decide
whether to have a dual enrollment
policy and, if established, how it would
be implemented. Whether dual
enrollment alters the rights of
parentally-placed private school
children with disabilities under State
law is a State matter. There is nothing,
however, in Part B of the Act that would
prohibit a State from requiring dual
enrollment as a condition for a
parentally-placed private school child
with a disability to be eligible for
services from a public agency. As long
as States and LEAs meet the
requirements in §§ 300.130 through
300.144, the local policy covering
enrollment is a matter of State and local
discretion.
Changes:
None.
Comment:
Several commenters
expressed concern regarding the
applicability of the child find and
equitable participation requirements in
§§ 300.130 through 300.144 for children
with disabilities who reside in one State
and are enrolled by their parents in
private elementary schools or secondary
schools located in another State. These
commenters recommended that the
regulations clarify whether the LEA in
the State where the private elementary
school or secondary school is located or
the LEA in the State where the child
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resides is responsible for conducting
child find (including individual
evaluations and reevaluations), and
providing and paying for equitable
services for children who are enrolled
by their parents in private elementary
schools or secondary schools.
Discussion:
Section 612(a)(10)(A)(i)(II)
of the Act provides that the LEA where
the private elementary schools and
secondary schools are located, after
timely and meaningful consultation
with private school representatives, is
responsible for conducting the child
find process to determine the number of
parentally-placed children with
disabilities attending private schools
located in the LEA. We believe this
responsibility includes child find for
children who reside in other States but
who attend private elementary schools
and secondary schools located in the
LEA, because section 612(a)(10)(A)(i)(II)
of the Act is clear about which LEA is
responsible for child find and the Act
does not provide an exception for
children who reside in one State and
attend private elementary schools and
secondary schools in other States.
Under section 612(a)(10)(A)(i) of the
Act, the LEA where the private
elementary schools and secondary
schools are located, in consultation with
private school officials and
representatives of parents of parentally-
placed private school children with
disabilities, also is responsible for
determining and paying for the services
to be provided to parentally-placed
private school children with disabilities.
We believe this responsibility extends to
children from other States who are
enrolled in a private school located in
the LEA, because section
612(a)(10)(A)(i) of the Act clarifies that
the LEA where the private schools are
located is responsible for spending a
proportionate amount of its Federal Part
B funds on special education and
related services for children enrolled by
their parents in the private schools
located in the LEA. The Act does not
provide an exception for out-of-State
children with disabilities attending a
private school located in the LEA and,
therefore, out-of-State children with
disabilities must be included in the
group of parentally-placed children
with disabilities whose needs are
considered in determining which
parentally-placed private school
children with disabilities will be served
and the types and amounts of services
to be provided.
Changes:
We have added a new
paragraph (f) to § 300.131 clarifying that
each LEA where private, including
religious, elementary schools and
secondary schools are located must, in
carrying out the child find requirements
in this section, include parentally-
placed private school children who
reside in the State other than where the
private schools they attend are located.
Comment:
A few commenters
recommended the regulations clarify the
LEA’s obligation under §§ 300.130
through 300.144 regarding child find
and equitable participation for children
from other countries enrolled in private
elementary schools and secondary
schools by their parents.
Discussion:
The obligation to consider
children with disabilities for equitable
services extends to all children with
disabilities in the State who are enrolled
by their parents in private schools
within each LEA’s jurisdiction.
Changes:
None.
Comment:
Several commenters
recommended the regulations clarify the
applicability of the child find and
equitable participation requirements in
§§ 300.130 through 300.144 for children
with disabilities, aged three through
five, enrolled by their parents in private
preschools or day care programs. Many
commenters recommended the
regulations clarify that preschool
children with disabilities should be
counted in determining the
proportionate share of funds available to
serve children enrolled in private
elementary schools by their parents.
Discussion:
If a private preschool or
day care program is considered an
elementary school, as defined in
§ 300.13, the child find and equitable
services participation requirements in
§§ 300.130 through 300.144, consistent
with section 612(a)(10) of the Act, apply
to children with disabilities aged three
through five enrolled by their parents in
such programs. Section 300.13,
consistent with section 602(6) of the
Act, defines an
elementary school
as a
nonprofit institutional day or residential
school, including a public elementary
charter school, which provides
elementary education, as determined
under State law. We believe it is
important to clarify in the regulations
that children aged three through five are
considered parentally-placed private
school children with disabilities
enrolled in private elementary schools
only if they are enrolled in private
schools that meet the definition of
elementary school
in § 300.13.
Changes:
We have added a new
§ 300.133(a)(2)(ii) to clarify that children
aged three through five are considered
to be parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of
elementary school
in
§ 300.13.
Definition of Parentally-Placed Private
School Children With Disabilities
(§ 300.130)
Comment:
A few commenters
recommended removing ‘‘or facilities’’
from the definition of parentally-placed
private school children because it is not
defined in the Act or the regulations.
Another commenter recommended
including a definition of ‘‘facilities.’’
Discussion:
Under section
612(a)(10)(A) of the Act, the obligation
to conduct child find and provide
equitable services extends to children
who are enrolled by their parents in
private elementary schools and
secondary schools. This obligation also
applies to children who have been
enrolled by their parents in private
facilities if those facilities are
elementary schools or secondary
schools, as defined in subpart A of the
regulations. Because facilities that meet
the definition of elementary school or
secondary school are covered under this
section, we believe it is important to
retain the reference to facilities in these
regulations. We will, however, revise
§ 300.130 to clarify that children with
disabilities who are enrolled by their
parents in facilities that meet the
definition of
elementary school
in
§ 300.13 or
secondary school
in new
§ 300.36 (proposed § 300.35) would be
considered parentally-placed private
school children with disabilities.
Changes:
Section 300.130 has been
revised to clarify that parentally-placed
private school children with disabilities
means children with disabilities
enrolled by their parents in private,
including religious, schools or facilities
that meet the definition of an
elementary school
in § 300.13 or
secondary school
in § 300.36.
Child Find for Parentally-Placed Private
School Children With Disabilities
(§ 300.131)
Comment:
A few commenters
recommended permitting the LEA
where private schools are located to
request reimbursement from the LEA
where the child resides for the cost of
conducting an individual evaluation, as
may be required under the child find
requirements in § 300.131.
One commenter recommended that
the LEA where private schools are
located be responsible for locating and
identifying children with disabilities
enrolled by their parents in private
schools and the LEA where the children
reside be responsible for conducting
individual evaluations.
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Discussion:
Section 300.131,
consistent with section 612(a)(10)(A)(i)
of the Act, requires that the LEA where
private elementary schools and
secondary schools in which the child is
enrolled are located, not the LEA where
the child resides, is responsible for
conducting child find, including an
individual evaluation for a child with a
disability enrolled by the child’s parent
in a private elementary school or
secondary school located in the LEA.
The Act specifies that the LEA where
the private schools are located is
responsible for conducting both the
child find process and the initial
evaluation. Therefore, the LEA where
private schools are located may not seek
reimbursement from the LEA of
residence for the cost of conducting the
evaluation or to request that the LEA of
residence conduct the evaluation.
However, the LEA where the private
elementary school or secondary school
is located has options as to how it meets
its responsibilities. For example, the
LEA may assume the responsibility
itself, contract with another public
agency (including the public agency of
residence), or make other arrangements.
Changes:
None.
Comment:
One commenter
recommended permitting a parent who
enrolled a child in a private elementary
school or secondary school the option of
not participating in child find required
under § 300.131.
Discussion:
New § 300.300(e)(4)
clarifies that parents who enroll their
children in private elementary schools
and secondary schools have the option
of not participating in an LEA’s child
find activities required under § 300.131.
As noted in the
Analysis of Comments
and Changes
section for subpart D, once
parents opt out of the public schools,
States and school districts do not have
the same interest in requiring parents to
agree to the evaluation of their children
as they do for children enrolled in
public schools, in light of the public
agencies’ obligation to educate public
school children with disabilities. We
further indicate in the discussion of
subpart D that we have added new
§ 300.300(e)(4) (proposed § 300.300(d))
to clarify that if the parent of a child
who is home schooled or placed in a
private school by the child’s parent at
the parent’s own expense does not
provide consent for an initial evaluation
or reevaluation, the public agency may
not use the due process procedures in
section 615 of the Act and the public
agency is not required to consider the
child for equitable services.
Changes:
None.
Comment:
Several commenters
recommended permitting amounts
expended for child find, including
individual evaluations, to be deducted
from the required amount of funds to be
expended on equitable services for
parentally-placed private school
children with disabilities.
Discussion:
The requested changes
would be inconsistent with the Act.
There is a distinction under the Act
between the obligation to conduct child
find activities, including individual
evaluations, for parentally-placed
private school children with disabilities,
and the obligation to use an amount of
funds equal to a proportionate amount
of the Federal Part B grant flowing to
LEAs to provide special education and
related services to parentally-placed
private school children with disabilities.
The obligation to conduct child find for
parentally-placed private school
children, including individual
evaluations, is independent of the
services provision. Further,
§ 300.131(d), consistent with section
612(a)(10)(A)(ii)(IV) of the Act, clarifies
that the costs of child find activities for
parentally-placed private school
children, including individual
evaluations, may not be considered in
determining whether the LEA has spent
an appropriate amount on providing
special education and related services to
parentally-placed private school
children with disabilities.
Changes:
None.
Comment:
One commenter requested
clarifying whether an LEA may exclude
children suspected of having certain
disabilities, such as those with specific
learning disabilities, in conducting
individual evaluations of suspected
children with disabilities enrolled in
private schools by their parents.
Discussion:
The LEA where the
private elementary schools and
secondary schools are located must
identify and evaluate all children
suspected of having disabilities as
defined under section 602(3) of the Act.
LEAs may not exclude children
suspected of having certain disabilities,
such as those with specific learning
disabilities, from their child find
activities. The Department recommends
that LEAs and private elementary
schools and secondary schools consult
on how best to implement the State’s
evaluation criteria and the requirements
under this part for identifying children
with specific learning disabilities
enrolled in private schools by their
parents. This is explained in more detail
in the discussion of comments under
§ 300.307.
Changes:
None.
Comment:
A few commenters
expressed concern that parents who
place their children in private
elementary schools and secondary
schools outside the district of residence,
and who are determined by the LEA
where the private schools are located,
through its child find process, to be
children with disabilities eligible for
special education and related services,
would have no knowledge of the special
education and related services available
for their children if they choose to
attend a public school in their district
of residence. A few commenters
suggested clarifying the obligation of the
LEA where the private school is located
to provide the district of residence the
results of an evaluation and eligibility
determination of the parentally-placed
private school child.
A few commenters recommended that
the parent of a child with a disability
identified through the child find process
in § 300.131 be provided with
information regarding an appropriate
educational program for the child.
Discussion:
The Act is silent on the
obligation of officials of the LEA where
private elementary schools and
secondary schools are located to share
personally identifiable information,
such as individual evaluation
information, with officials of the LEA of
the parent’s residence. We believe that
the LEA where the private schools are
located has an obligation to protect the
privacy of children placed in private
schools by their parents. We believe that
when a parentally-placed private school
child is evaluated and identified as a
child with a disability by the LEA in
which the private school is located,
parental consent should be required
before such personally identifiable
information is released to officials of the
LEA of the parent’s residence.
Therefore, we are adding a new
paragraph (b)(3) to § 300.622 to make
this clear. We explain this revision in
more detail in the discussion of
comments under § 300.622.
We believe the regulations adequately
ensure that parents of children enrolled
in private schools by their parents, who
are identified as children with
disabilities through the child find
process, receive information regarding
an appropriate educational program for
their children. Section 300.138(b)
provides that each parentally-placed
private school child with a disability
who has been designated to receive
equitable services must have a services
plan that describes the specific
education and related services that the
LEA where the private school is located
has determined it will make available to
the child and the services plan must, to
the extent appropriate, meet the IEP
content, development, review and
revision requirements described in
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section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
Furthermore, the LEA where the
private school is located must, pursuant
to § 300.504(a) and section 615(d) of the
Act, provide the parent a copy of the
procedural safeguards notice upon
conducting the initial evaluation.
Changes:
We have added a new
paragraph (b)(3) to § 300.622 to require
parental consent for the disclosure of
records of parentally-placed private
school children between LEAs.
Comment:
A few commenters stated
that § 300.131 does not address which
LEA has the responsibility for
reevaluations.
Discussion:
The LEA where the
private schools are located is
responsible for conducting
reevaluations of children with
disabilities enrolled by their parents in
private elementary schools and
secondary schools located within the
LEA. Reevaluation is a part of the LEA’s
child find responsibility for parentally-
placed private school children under
section 612(a)(10)(A) of the Act.
Changes:
None.
Comment:
One commenter expressed
concern that the regulations permit a
parent to request an evaluation from the
LEA of residence at the same time the
child is being evaluated by the LEA
where the private elementary school or
secondary school is located, resulting in
two LEAs simultaneously conducting
evaluations of the same child.
Discussion:
We recognize that there
could be times when parents request
that their parentally-placed child be
evaluated by different LEAs if the child
is attending a private school that is not
in the LEA in which they reside. For
example, because most States generally
allocate the responsibility for making
FAPE available to the LEA in which the
child’s parents reside, and that could be
a different LEA from the LEA in which
the child’s private school is located,
parents could ask two different LEAs to
evaluate their child for different
purposes at the same time. Although
there is nothing in this part that would
prohibit parents from requesting that
their child be evaluated by the LEA
responsible for FAPE for purposes of
having a program of FAPE made
available to the child at the same time
that the parents have requested that the
LEA where the private school is located
evaluate their child for purposes of
considering the child for equitable
services, we do not encourage this
practice. We note that new
§ 300.622(b)(4) requires parental consent
for the release of information about
parentally-placed private school
children between LEAs; therefore, as a
practical matter, one LEA may not know
that a parent also requested an
evaluation from another LEA. However,
we do not believe that the child’s best
interests would be well-served if the
parents requested evaluations of their
child by the resident school district and
the LEA where the private school is
located, even though these evaluations
are conducted for different purposes. A
practice of subjecting a child to repeated
testing by separate LEAs in close
proximity of time may not be the most
effective or desirable way of ensuring
that the evaluation is a meaningful
measure of whether a child has a
disability or of providing an appropriate
assessment of the child’s educational
needs.
Changes:
None.
Comment:
Some commenters
requested the regulations clarify which
LEA (the LEA of residence or the LEA
where the private elementary schools or
secondary schools are located) is
responsible for offering FAPE to
children identified through child find
under § 300.131 so that parents can
make an informed decision regarding
their children’s education.
Discussion:
If a determination is made
by the LEA where the private school is
located that a child needs special
education and related services, the LEA
where the child resides is responsible
for making FAPE available to the child.
If the parent makes clear his or her
intention to keep the child enrolled in
the private elementary school or
secondary school located in another
LEA, the LEA where the child resides
need not make FAPE available to the
child. We do not believe that a change
to the regulations is necessary, as
§ 300.201 already clarifies that the
district of residence is responsible for
making FAPE available to the child.
Accordingly, the district in which the
private elementary or secondary school
is located is not responsible for making
FAPE available to a child residing in
another district.
Changes:
None.
Comment:
One commenter requested
clarification of the term ‘‘activities
similar’’ in § 300.131(c). Another
commenter recommended clarifying
that these activities include, but are not
limited to, activities relating to
evaluations and reevaluations. One
commenter requested that children with
disabilities parentally-placed in private
schools be identified and evaluated as
quickly as possible.
Discussion:
Section 300.131(c),
consistent with section
612(a)(10)(A)(ii)(III) of the Act, requires
that, in carrying out child find for
parentally-placed private school
children, SEAs and LEAs must
undertake activities similar to those
activities undertaken for their publicly
enrolled or publicly-placed children.
This would generally include, but is not
limited to, such activities as widely
distributing informational brochures,
providing regular public service
announcements, staffing exhibits at
health fairs and other community
activities, and creating direct liaisons
with private schools. Activities for child
find must be completed in a time period
comparable to those activities for public
school children. This means that LEAs
must conduct child find activities,
including individual evaluations, for
parentally-placed private school
children within a reasonable period of
time and without undue delay, and may
not wait until after child find for public
school children is conducted. In
addition, evaluations of all children
suspected of having disabilities under
Part B of the Act, regardless of whether
they are enrolled by their parents in
private elementary schools or secondary
schools, must be conducted in
accordance with the requirements in
§§ 300.300 through 300.311, consistent
with section 614(a) through (c) of the
Act, which describes the procedures for
evaluations and reevaluations for all
children with disabilities. We believe
the phrase ‘‘activities similar’’ is
understood by SEAs and LEAs and,
therefore, it is not necessary to regulate
on the meaning of the phrase.
Changes:
None.
Provision of Services for Parentally-
Placed Private School Children With
Disabilities—Basic Requirement
(§ 300.132)
Comment:
Several commenters
expressed confusion regarding which
LEA is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child, the
district of the child’s residence or the
LEA where the private school is located.
Discussion:
We believe § 300.133,
consistent with section 612(a)(10)(A) of
the Act, is sufficiently clear that the
LEA where the private elementary
schools and secondary schools are
located is responsible for paying for the
equitable services provided to a
parentally-placed private elementary
school or secondary school child. These
provisions provide that the LEA where
the private elementary and secondary
schools are located must spend a
proportionate amount of its Federal
funds available under Part B of the Act
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for services for children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools located in the LEA. The Act
does not permit an exception to this
requirement. No further clarification is
needed.
Changes:
None.
Comment:
One commenter
recommended the regulations clarify
which LEA in the State is responsible
for providing equitable services to
parentally-placed private school
children with disabilities who attend a
private school that straddles two LEAs
in the State.
Discussion:
The Act does not address
situations where a private school
straddles more than one LEA. However,
the Act does specify that the LEA in
which the private school is located is
responsible for providing special
education to children with disabilities
placed in private schools by their
parents, consistent with the number of
such children and their needs. In
situations where more than one LEA
potentially could assume the
responsibility of providing equitable
services, the SEA, consistent with its
general supervisory responsibility,
determines which LEA in the State is
responsible for ensuring the equitable
participation of children with
disabilities attending that private
school. We do not believe that the
situation is common enough to warrant
a change in the regulations.
Changes:
None.
Comment:
A few commenters
recommended revising the heading for
§ 300.132(b) to clarify that LEAs, not
SEAs, are responsible for developing
service plans.
Discussion:
We agree with the
commenters that the heading for
§ 300.132(b) should be changed to
accurately reflect the requirement and to
avoid confusion.
Changes:
We have revised the heading
for § 300.132(b) by removing the
reference to SEA responsibility.
Comment:
One commenter requested
requiring in § 300.132(c) that data on
parentally-placed private school
children with disabilities be submitted
to the Department. Another commenter
agreed, stating that the data should be
submitted the same day as the annual
child count.
Discussion:
The purpose of the child
count under § 300.132(c) is to determine
the amount of Federal funds that the
LEA must spend on providing special
education and related services to
parentally-placed private school
children with disabilities in the next
fiscal year. We are not requiring States
to submit these data to the Department
as the Department does not have a
programmatic or regulatory need to
collect this information at this time.
Section 300.644 permits the SEA to
include in its annual report of children
served those parentally-placed private
school children who are eligible under
the Act and receive special education or
related services. We believe this is
sufficient to meet the Department’s need
to collect data on this group of children
and we do not wish to place an
unnecessary data collection and
paperwork burden on States.
Changes:
None.
Expenditures (§ 300.133)
Comment:
One commenter requested
the regulations clarify whether an LEA
must spend its entire proportionate
share for parentally-placed private
school children with disabilities by the
end of a fiscal year or could carry over
any remaining funds into the next fiscal
year.
Discussion:
We agree with the
commenter that a provision should be
included in these regulations to clarify
that, if an LEA has not expended for
equitable services all of the
proportionate amount of Federal funds
to be provided for parentally-placed
private school children with disabilities
by the end of the fiscal year for which
Congress appropriated the funds, the
LEA must obligate the remaining funds
for special education and related
services (including direct services) to
parentally-placed private school
children with disabilities during a carry-
over period of one additional year.
Changes:
A new paragraph (a)(3) has
been added to § 300.133 to address the
carry over of funds not expended by the
end of the fiscal year.
Comment:
None.
Discussion:
It has come to our
attention that there is some confusion
among States and LEAs between the
count of the number of children with
disabilities receiving special education
and related services as required under
section 618 of the Act, and the
requirement under section
612(a)(10)(A)(i)(II) of the Act that each
LEA conduct an annual count of the
number of parentally-placed private
school children with disabilities
attending private schools in the LEA.
We will, therefore, revise the heading
(child count) for § 300.133(c) and the
regulatory language in § 300.133(c) to
avoid any confusion regarding the
requirements in paragraph (c).
Changes:
Section 300.133(c) has been
revised as described above.
Comment:
One commenter
interpreted § 300.133(d) to require that:
(1) LEAs provide services to parentally-
placed private school children with
disabilities with funds provided under
the Act and (2) LEAs no longer have the
option of using local funds equal to, and
in lieu of, the Federal pro-rated share
amount. This commenter recommended
that LEAs continue to be allowed to use
local funds for administrative
convenience.
Discussion:
The commenter’s
interpretation is correct. The Act added
the supplement, not supplant
requirement in section
612(a)(10)(A)(i)(IV), which is included
in § 300.133(d). This requirement
provides that State and local funds may
supplement, but in no case supplant the
proportionate amount of the Federal
Part B funds that must be expended
under this provision. Prior to the change
in the Act, if a State was spending more
than the Federal proportional share of
funds from State or local funds, then the
State would not have to spend any
Federal Part B funds. That is no longer
permissible under the Act.
Changes:
None.
Comment:
A few commenters
requested revising § 300.133 to include
home-schooled children with
disabilities in the same category as
parentally-placed private school
children with disabilities.
Discussion:
Whether home-schooled
children with disabilities are considered
parentally-placed private school
children with disabilities is a matter left
to State law. Children with disabilities
in home schools or home day cares must
be treated in the same way as other
parentally-placed private school
children with disabilities for purposes
of Part B of the Act only if the State
recognizes home schools or home day
cares as private elementary schools or
secondary schools.
Changes:
None.
Consultation (§ 300.134)
Comment:
Some commenters
recommended requiring, in § 300.134(e),
that the LEA include, in its written
explanation to the private school, its
reason whenever: (1) The LEA does not
provide services by a professional
directly employed by that LEA to
parentally-placed private school
children with a disability when
requested to do so by private school
officials; and (2) the LEA does not
provide services through a third party
provider when requested to do so by the
private school officials.
Discussion:
Section 300.134(e)
incorporates the language from section
612(a)(10)(A)(iii)(V) of the Act and
requires the LEA to provide private
school officials with a written
explanation of the reasons why the LEA
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chose not to provide services directly or
through contract. We do not believe that
the additional language suggested by the
commenter is necessary because we
view the statutory language as sufficient
to ensure that the LEA meets its
obligation to provide private school
officials a written explanation of any
reason why the LEA chose not to
provide services directly or through a
contract.
Changes:
None.
Written Affirmation (§ 300.135)
Comment:
Several commenters
recommended requiring LEAs to
forward the written affirmation to the
SEA, because this information is
important for the SEA to exercise
adequate oversight over LEAs with
respect to the participation of private
school officials in the consultation
process.
Discussion:
Section 300.135,
regarding written affirmation, tracks the
language in section 612(a)(10)(A)(iv) of
the Act. Including a requirement in the
regulations that the LEA must submit a
copy of signed written affirmations to
the SEA would place reporting burdens
on the LEA that are not required by the
Act and that we do not believe are
warranted in this circumstance. We
expect that in most circumstances
private school officials and LEAs will
have cooperative relationships that will
not need State involvement. If private
school officials believe that there was
not meaningful consultation, they may
raise that issue with the SEA through
the procedures in § 300.136. However,
there is nothing in the Act or these
regulations that would preclude a State
from requiring LEAs to submit a copy of
the written affirmation obtained
pursuant to § 300.135, in meeting its
general supervision responsibilities
under § 300.149 or as a part of its
monitoring of LEAs’ implementation of
Part B of the Act as required in
§ 300.600. Consistent with
§ 300.199(a)(2) and section 608(a)(2) of
the Act, a State that chooses to require
its LEAs to submit copies of written
affirmations to the SEA beyond what is
required in § 300.135 would have to
identify, in writing, to the LEAs located
in the State and to the Secretary, that
such rule, regulation, or policy is a
State-imposed requirement that is not
required by Part B of the Act or these
regulations.
Changes:
None.
Compliance (§ 300.136)
Comment:
One commenter
recommended revising § 300.136 to
permit an LEA to submit a complaint to
the State if private school officials do
not engage in meaningful consultation
with the LEA.
Discussion:
Section 300.136,
consistent with section 612(a)(10)(A)(v)
of the Act, provides that a private school
official has the right to complain to the
SEA that the LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school official. The provisions in the
Act and the regulations apply to the
responsibilities of the SEA and its LEAs
and not to private schools or entities.
Because the requirements of the Act do
not apply to private schools, we do not
believe requiring SEAs to permit an LEA
to submit a complaint to the SEA
alleging that representatives of the
private schools did not consult in a
meaningful way with the LEA would
serve a meaningful purpose. The
equitable services made available under
Part B of the Act are a benefit to the
parentally-placed private school
children and not services provided to
the private schools.
Changes:
None.
Comment:
Several commenters
recommended revising § 300.136 to
allow States to determine the most
appropriate procedures for a private
school official to submit a complaint to
the SEA that an LEA did not engage in
consultation that was meaningful and
timely, or did not give due
consideration to the views of the private
school officials. Many of these
commenters stated that requiring such
complaints be filed pursuant to the State
complaint procedures in §§ 300.151
through 300.153 is not required by the
Act and recommended we remove this
requirement.
Discussion:
We agree with the
commenters that section
612(a)(10)(A)(v) of the Act does not
stipulate how a private school official
must submit a complaint to the SEA that
the LEA did not engage in consultation
that was meaningful and timely, or did
not give due consideration to the views
of the private school official. We also
agree with the commenters that the SEA
should have flexibility to determine
how such complaints will be filed with
the State. We will, therefore, revise
§ 300.136(a) to remove the requirement
that private school officials must file a
complaint with the SEA under the State
complaint procedures in §§ 300.151
through 300.153. States may, if they so
choose, use their State complaint
procedures under §§ 300.151 through
300.153 as the means for a private
school to file a complaint under
§ 300.136.
Changes:
Section 300.136 has been
revised to remove the requirement that
a private school official submit a
complaint to the SEA using the
procedures in §§ 300.151 through
300.153.
Equitable Services Determined
(§ 300.137)
Comment:
One commenter
recommended removing § 300.137(a),
stating it is discriminatory and that
parentally-placed private school
children must receive the same amount
of services as children with disabilities
in public schools.
Discussion:
Section 300.137(a) reflects
the Department’s longstanding policy,
consistent with section 612(a)(10) of the
Act, and explicitly provides that
children with disabilities enrolled in
private schools by their parents have no
individual entitlement to receive some
or all of the special education and
related services they would receive if
enrolled in the public schools. Under
the Act, LEAs only have an obligation
to provide parentally-placed private
school children with disabilities an
opportunity for equitable participation
in the services funded with Federal Part
B funds that the LEA has determined,
after consultation, to make available to
its population of parentally-placed
private school children with disabilities.
LEAs are not required to spend more
than the proportionate Federal share on
those services.
Changes:
None.
Equitable Services Provided (§ 300.138)
Comment:
Several commenters
requested clarifying whether the
requirement in § 300.138(a) that services
provided to parentally-placed private
school children with disabilities be
provided by personnel meeting the same
standards (
i.e.
, highly qualified teacher
requirements) as personnel providing
services in the public schools applies to
private school teachers who are
contracted by the LEA to provide
equitable services.
Discussion:
As discussed in the
Analysis of Comments and Changes
section, in the response to comments on
§ 300.18, it is the Department’s position
that the highly qualified special
education teacher requirements do not
apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. Further, it is the
Department’s position that the highly
qualified special education teacher
requirements also do not apply to
private school teachers who provide
equitable services to parentally-placed
private school children with disabilities.
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In addition to the revision we are
making to new § 300.18(h) (proposed
§ 300.18(g)) to make this position clear,
we also will revise § 300.138(a)(1) to
clarify that private elementary school
and secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements.
Changes:
We have revised
§ 300.138(a)(1) as indicated.
Comment:
A few commenters
requested clarifying the process for
developing a services plan and
explaining how a services plan differs
from an IEP.
Discussion:
We do not believe that
additional explanation in the regulation
is needed. Under § 300.138(b), each
parentally-placed private school child
with a disability who has been
designated by the LEA in which the
private school is located to receive
special education or related services
must have a services plan. The services
plan must describe the specific special
education and related services offered to
a parentally-placed private school child
with a disability designated to receive
services. The services plan also must, to
the extent appropriate, meet the IEP
content, development, review, and
revision requirements described in
section 614(d) of the Act, or, when
appropriate, for children aged three
through five, the IFSP requirements
described in section 636(d) of the Act as
to the services that are to be provided.
The LEA must ensure that a
representative of the private school
attends each meeting to develop the
services plan and if the representative
cannot attend, use other methods to
ensure participation by the private
school, including individual or
conference telephone calls.
Children with disabilities enrolled in
public schools or who are publicly-
placed in private schools are entitled to
FAPE and must receive the full range of
services under Part B of the Act that are
determined by the child’s IEP Team to
be necessary to meet the child’s
individual needs and provide FAPE.
The IEPs for these children generally
will be more comprehensive than the
more limited services plans developed
for parentally-placed private school
children with disabilities designated to
receive services.
Changes:
None.
Comment:
A few commenters
recommended revising the definition of
services plan
to clarify that an IEP could
serve as the services plan; otherwise,
States that provide IEP services to
parentally-placed private school
children with disabilities would be
required to develop a services plan and
an IEP.
Discussion:
We do not believe it is
appropriate to clarify in the regulations
that the IEP can serve as the services
plan because, as stated elsewhere in this
preamble, a services plan should only
describe the specific special education
and related services offered to a
parentally-placed private school child
with a disability designated to receive
services. We believe that using an IEP in
lieu of a services plan for these children
may not be appropriate in light of the
fact that an IEP developed pursuant to
section 614(d) of the Act will generally
include much more than just those
services that a parentally-placed private
school child with a disability may
receive, if designated to receive services.
There is nothing, however, in these
regulations that would prevent a State
that provides more services to
parentally-placed private school
children with disabilities than they are
required to do under the Act to use an
IEP in place of a services plan,
consistent with State law.
Changes:
None.
Location of Services and Transportation
(§ 300.139)
Comment:
A few commenters asked
for clarification as to how the location
where services will be provided to
parentally-placed private school
children with disabilities is determined.
Discussion:
Under § 300.134(d), how,
where, and by whom special education
and related services are provided to
parentally-placed private school
children with disabilities are subjects of
the process of consultation among LEA
officials, private school representatives,
and representatives of parents of
parentally-placed private school
children with disabilities. Further,
§ 300.137(b)(2) clarifies that, after this
consultation process, the final decision
with respect to the services provided to
eligible parentally-placed private school
children with disabilities is made by the
LEA.
Changes:
None.
Comment:
Some commenters
recommended specifying that providing
services on the premises of private
elementary schools and secondary
schools is the preferred means of
serving parentally-placed private school
children with disabilities. A few
commenters recommended revising
§ 300.139(a) to stipulate that services
‘‘should’’ or ‘‘must’’ be provided on the
premises of private schools, unless there
is a compelling rationale for these
services to be provided off-site. In
contrast, several commenters objected to
the statement in the preamble to the
NPRM that services should be provided
on-site unless there is a compelling
rationale to provide services off-site. A
few of these commenters stated that the
Act does not indicate a preference for
one location of services over another
and the Department has no authority to
provide such a strong comment on this
issue.
Discussion:
Services offered to
parentally-placed private school
children with disabilities may be
provided on-site at a child’s private
school, including a religious school, to
the extent consistent with law, or at
another location. The Department
believes, in the interests of the child,
LEAs should provide services on site at
the child’s private school so as not to
unduly disrupt the child’s educational
experience, unless there is a compelling
rationale for these services to be
provided off-site. The phrase ‘‘to the
extent consistent with law’’ is in section
612(a)(10)(A)(i)(III) of the Act. We
interpret this language to mean that the
provision of services on the premises of
a private school takes place in a manner
that would not violate the Establishment
Clause of the First Amendment to the
U.S. Constitution and would not be
inconsistent with applicable State
constitutions or law. We, therefore, do
not have the statutory authority to
require that services be provided on-
site.
Changes:
None.
Comment:
A few commenters
expressed concern that § 300.139(b),
regarding transportation services, goes
beyond the requirements in the Act and
should be removed. A few commenters
stated that transportation is a related
service and should be treated as such
with respect to parentally-placed
children with disabilities in private
schools.
Discussion:
We do not agree that
transportation services should be
removed from § 300.139(b). If services
are offered at a site separate from the
child’s private school, transportation
may be necessary to get the child to and
from that other site. Failure to provide
transportation could effectively deny
the child an opportunity to benefit from
the services that the LEA has
determined through consultation to
offer its parentally-placed private school
children with disabilities. In this
situation, although transportation is not
a
related service,
as defined in § 300.34,
transportation is necessary to enable the
child to participate and to make the
offered services accessible to the child.
LEAs should work in consultation with
representatives of private school
children to ensure that services are
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provided at sites, including on the
premises of the child’s private school,
so that LEAs do not incur significant
transportation costs.
However, for some children with
disabilities, special modifications in
transportation may be necessary to
address the child’s unique needs. If the
group developing the child’s services
plan determines that a parentally-placed
private school child with a disability
chosen to receive services requires
transportation as a related service in
order to receive special education
services, this transportation service
should be included as a related service
in the services plan for the child.
In either case, the LEA may include
the cost of the transportation in
calculating whether it has met the
requirement of § 300.133.
Changes:
None.
Due Process Complaints and State
Complaints (§ 300.140)
Comment:
Several commenters
expressed concern that the right of
parents of children with disabilities
enrolled by their parents in private
elementary schools and secondary
schools to file a due process complaint
against an LEA is limited to filing a due
process complaint that an LEA has
failed to comply with the child find and
evaluation requirements, and not an
LEA’s failure to provide special
education and related services as
required in the services plan. A few
commenters recommended that the
regulations clarify whether the parent
should file a due process complaint
with the LEA of residence or with the
LEA where the private school is located.
Discussion:
Section 615(a) of the Act
specifies that the procedural safeguards
of the Act apply with respect to the
identification, evaluation, educational
placement, or provision of FAPE to
children with disabilities. The special
education and related services provided
to parentally-placed private school
children with disabilities are
independent of the obligation to make
FAPE available to these children.
While there may be legitimate issues
regarding the provision of services to a
particular parentally-placed private
school child with a disability an LEA
has agreed to serve, the due process
provisions in section 615 of the Act and
§§ 300.504 through 300.519 do not
apply to these disputes, because there is
no individual right to these services
under the Act. Disputes that arise about
these services are properly subject to the
State complaint procedures under
§§ 300.151 through 300.153.
Child find, however, is a part of the
basic obligation that public agencies
have to all children with disabilities,
and failure to locate, identify, and
evaluate a parentally-placed private
school child would be subject to due
process. Therefore, the due process
provisions in §§ 300.504 through
300.519 do apply to complaints that the
LEA where the private school is located
failed to meet the consent and
evaluation requirements in §§ 300.300
through 311.
In light of the comments received, we
will clarify in § 300.140 that parents of
parentally-placed private school
children with disabilities may file a due
process complaint with the LEA in
which the private school is located (and
forward a copy to the SEA) regarding an
LEA’s failure to meet the consent and
evaluation requirements in §§ 300.300
through 300.311. We also will clarify
that a complaint can be filed with the
SEA under the State complaint
procedures in §§ 300.151 through
300.153 that the SEA or LEA has failed
to meet the requirements in §§ 300.132
through 300.135 and §§ 300.137 through
300.144. There would be an exception,
however, for complaints filed pursuant
to § 300.136. Complaints under
§ 300.136 must be filed in accordance
with the procedures established by each
State under § 300.136.
Changes:
Proposed § 300.140(a)(2) has
been redesignated as new paragraph (b).
A new paragraph (b)(2) has been added
to this section to clarify that any due
process complaint regarding the
evaluation requirements in § 300.131
must be filed with the LEA in which the
private school is located, and a copy
must be forwarded to the SEA. Proposed
§ 300.140(b) has been redesignated as
new paragraph (c), and has been revised
to clarify that a complaint that the SEA
or LEA has failed to meet the
requirements in §§ 300.132 through
300.135 and §§ 300.137 through 300.144
can be filed with the SEA under the
State complaint procedures in
§§ 300.151 through 300.153. Complaints
filed pursuant to § 300.136 must be filed
with the SEA under the procedures
established under § 300.136(b).
Comment:
A few commenters
requested clarification as to whether a
parent of a parentally-placed private
school child should request an
independent educational evaluation at
public expense under § 300.502(b) with
the LEA of residence or the LEA where
the private school is located.
Discussion:
We do not believe that
this level of detail needs to be included
in the regulation. If a parent of a
parentally-placed child disagrees with
an evaluation obtained by the LEA in
which the private school is located, the
parent may request an independent
educational evaluation at public
expense with that LEA.
Changes:
None.
Use of Personnel (§ 300.142)
Comment:
Several commenters
requested clarifying language regarding
who must provide equitable services to
parentally-placed private school
children with disabilities.
Discussion:
Under section
612(a)(10)(A)(vi)(I) of the Act, equitable
services must be provided by employees
of a public agency or through contract
by the public agency with an individual,
association, agency, organization, or
other entity. Section 300.142(a) provides
that an LEA may use Part B funds to
make public school personnel available
in other than public facilities to the
extent necessary to provide equitable
services for parentally-placed children
with disabilities attending private
schools and if those services are not
otherwise provided by the private
school to children as a benefit provided
to all children attending that school.
Under § 300.142(b), an LEA may use
Part B funds to pay for the services of
an employee of a private school to
provide equitable services if the
employee performs the services outside
of his or her regular hours of duty and
the employee performs the services
under public supervision and control.
We believe that the regulation is
sufficiently clear on this point.
Changes:
None.
Property, Equipment, and Supplies
(§ 300.144)
Comment:
A few commenters
requested clarification as to whether
private school officials may purchase
equipment and supplies with Part B
funds to provide services to parentally-
placed private school children with
disabilities designated to receive
services.
Discussion:
We do not believe the
additional clarification suggested by the
commenters is necessary. Section
300.144, consistent with section
612(a)(10)(A)(vii) of the Act, already
requires that the LEA must control and
administer the funds used to provide
special education and related services to
parentally-placed private school
children with disabilities, and maintain
title to materials, equipment, and
property purchased with those funds.
Thus, the regulations and the Act
prevent private school officials from
purchasing equipment and supplies
with Part B funds.
Changes:
None.
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Children With Disabilities in Private
Schools Placed or Referred by Public
Agencies
Applicability of §§ 300.146 Through
300.147 (§ 300.145)
Comment:
One commenter stated that
§§ 300.145 through 300.147 are
unnecessary and solely administrative,
because these sections are addressed in
the Act and the proposed regulations
provide no additional information on
the application of the statutory
requirements.
Discussion:
We do not agree with the
commenter that the provisions in
§§ 300.146 through 300.147 are
unnecessary and solely administrative.
We believe it is necessary to retain these
requirements in the regulations,
consistent with section 612(a)(10)(B) of
the Act, to ensure that public agencies
are fully aware of their obligation to
ensure that children with disabilities
who are placed in or referred to a
private school or facility by public
agencies are entitled to receive FAPE to
the same extent as they would if they
were placed in a public agency school
or program.
Changes:
None.
Responsibility of SEA (§ 300.146)
Comment:
Many commenters
disagreed with the exception to the
‘‘highly qualified teacher’’ requirements
in paragraph (b) of this section and
stated that the ‘‘highly qualified
teacher’’ requirements should apply to
private school teachers of children with
disabilities placed or referred by public
agencies. Several commenters stated
that these children are likely to have
more severe disabilities and, therefore,
have a greater need for highly qualified
teachers than children served in public
schools.
Several commenters stated that
exempting teachers in private schools
from the requirement to be ‘‘highly
qualified’’ in situations where children
with disabilities are publicly-placed in
order to receive FAPE is not consistent
with the requirement that the education
provided to children in such settings
meet the standards that apply to
children served by public agencies, or
with the ESEA and the goal in the Act
of helping all children with disabilities
achieve high standards.
A few commenters supported the
exception to ‘‘highly qualified teacher’’
requirements. One commenter stated
that States should make their own
decisions in this area in light of resource
constraints.
One commenter opposed the
expenditure of public school funds for
the education of publicly-placed private
school children by teachers who do not
meet the ‘‘highly qualified’’
requirements.
Discussion:
Section 602(10) of the Act
states that ‘‘highly qualified’’ has the
meaning given the term in section 9101
of the ESEA, which clarifies that the
requirements regarding highly qualified
teachers apply to public school teachers
and not teachers teaching as employees
of private elementary schools and
secondary schools. As we stated in the
Analysis of Comments and Changes
section regarding § 300.138 in this
subpart and § 300.18 in subpart A, it is
the Department’s position that the
highly qualified teacher requirements
do not apply to teachers hired by private
elementary schools and secondary
schools. This includes teachers hired by
private elementary schools and
secondary schools who teach children
with disabilities. We agree with the
commenters that, in many instances, a
public agency may choose to place a
child with a severe disability and with
more intensive educational needs in a
private school or facility as a means of
providing FAPE. When the public
agency chooses to place a child with a
significant disability, or any child with
a disability, in a private school as a
means of providing FAPE, the public
agency has an obligation to ensure that
the child receives FAPE to the same
extent the child would if placed in a
public school, irrespective of whether
the private school teachers meet the
highly qualified teacher requirements in
§§ 300.18 and 300.156(c). FAPE
includes not just the special education
and related services that a child with a
disability receives, but also includes an
appropriate preschool, elementary and
secondary school education in the State
involved. The required special
education and related services must be
provided at public expense, at no cost
to the parent, in accordance with an IEP,
and the education provided to the child
must meet the standards that apply to
educational services provided by the
SEA and LEA (except for the highly
qualified teacher requirements in
§§ 300.18 and 300.156(c)). In addition,
the SEA must ensure that the child has
all the rights of a child with a disability
who is served by a public agency.
We do not agree with the premise of
the commenters that not requiring
private school teachers who provide
services to publicly-placed children
with disabilities to meet the highly
qualified teacher requirements means
that the education provided to these
children in the private school setting
does not meet the standards that apply
to children with disabilities served by
the public agency. States have flexibility
in developing standards that meet the
requirements of the Act. The standards
that SEAs apply to private schools that
contract with public agencies to provide
FAPE to children with disabilities, are,
so long as they meet the requirements of
Part B of the Act and its regulations, a
State matter. Federal law does not
encourage or prohibit the imposition of
additional requirements as a condition
of placing these children in the private
school.
With regard to the comment opposing
the use of public school funds for the
education of publicly-placed private
school children by teachers who do not
meet the highly qualified teacher
requirements, a State or public agency
may use whatever State, local, Federal,
and private sources of support that are
available in the State to meet the
requirements of the Act. We believe
restricting the use of public school
funds as requested by the commenter
would not only be inconsistent with the
Act, but also may unnecessarily limit a
public agency’s options for providing
FAPE to its publicly-placed children
with disabilities.
Changes:
None.
Comment:
A few commenters
recommended requiring States to have
rules, regulations, and contracts
requiring private schools that accept
publicly-placed children with
disabilities to guarantee that children
with disabilities receive FAPE and their
parents retain all of the protections
mandated for public schools, including
the right to pendency placements if the
parents challenge the decisions of the
private school to terminate the
children’s placements. One commenter
recommended that the regulations
clarify that private schools serving
children placed by a public agency are
not exempt from the obligation to
provide FAPE.
Discussion:
The Act does not give
States and other public agencies
regulatory authority over private schools
and does not place requirements on
private schools. The Act imposes
requirements on States and public
agencies that refer to or place children
with disabilities in private schools for
the purposes of providing FAPE to those
children because the public agency is
unable to provide FAPE in a public
school or program. The licensing and
regulation of private schools are matters
of State law. The Act requires States and
public agencies, including LEAs, to
ensure that FAPE is made available to
all children with disabilities residing in
the State in mandatory age ranges, and
that the rights and protections of the Act
are extended to eligible children and
their parents. If the State or public
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agency has placed children with
disabilities in private schools for
purposes of providing FAPE to those
children, the State and the public
agency must ensure that these children
receive the required special education
and related services at public expense,
at no cost to the parents, in accordance
with each child’s IEP. It is the
responsibility of the public agency to
determine whether a particular private
school in which the child with a
disability will be placed for purposes of
providing FAPE meets the standards
that apply to the SEA and LEA and that
a child placed by a public agency be
afforded all the rights, including FAPE,
that the child would otherwise have if
served by the public agency directly.
Changes:
None.
Comment:
One commenter stated that,
in cases where the public agency places
a child in a private school or residential
treatment facility for the purposes of
providing FAPE, the public agency
should be required to determine and
inform the private school or residential
treatment facility about the person or
persons who have the legal authority to
make educational decisions for the
child.
Discussion:
The change requested by
the commenter is not needed because
the public agency, not the private
agency, is responsible for providing
FAPE to a child who is placed by the
public agency in a private school.
Consistent with § 300.146 and section
612(a)(10)(B) of the Act, a public agency
that places a child with a disability in
a private school or facility as a means
of carrying out the requirements of Part
B of the Act, must ensure that the child
has all the rights of a child with a
disability who is served by a public
agency, which includes ensuring that
the consent requirements in § 300.300
and sections 614(a)(1)(D) and 614(c) of
the Act are followed. A public agency
must, therefore, secure the needed
consent from the person or persons who
have the legal authority to make such
decisions, unless the public agency has
made other arrangements with the
private school or facility to secure that
consent. We do not believe it is
necessary or appropriate to require the
public agency to inform the private
school or facility of the persons or
persons who have the legal authority to
make educational decisions for the child
because this will depend on the specific
arrangements made by the public
agency with a private school or facility
and, should, therefore, be determined by
the public agency on a case by case
basis.
Changes:
None.
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
Placement of Children by Parents When
FAPE Is at Issue (§ 300.148)
Comment:
Several commenters
recommended retaining in these
regulations the requirement in current
§ 300.403(b) that disagreements between
a parent and the LEA regarding the
availability of a FAPE and the question
of financial responsibility, are subject to
the due process procedures in section
615 of the Act.
Discussion:
The provision in current
§ 300.403(b) was in the 1983 regulations
and, therefore, should have been
included in the NPRM in light of section
607(b) of the Act. Section 607(b) of the
Act provides that the Secretary cannot
publish final regulations that would
procedurally or substantively lessen the
protections provided to children with
disabilities in the regulations that were
in effect on July 20, 1983. We will revise
§ 300.148 to include the requirement in
current § 300.403(b).
Changes:
Section 300.148 has been
revised to include the requirement in
current § 300.403(b) that disagreements
between a parent and a public agency
regarding the availability of a program
appropriate for the child and the
question of financial responsibility are
subject to the due process procedures in
§§ 300.504 through 300.520.
Comment:
One commenter requested
revising the regulations to eliminate
financial incentives for parents to refer
children for special education and then
unilaterally placing their child in
private schools without first receiving
special education and related services
from the school district. The commenter
stated that it should be clear that a
unilateral placement in a private school
without first receiving special education
and related services from the LEA does
not require the public agency to provide
reimbursement for private school
tuition.
One commenter stated that proposed
§ 300.148(b) goes beyond the Act and
only applies if the court or hearing
officer finds that the agency had not
made FAPE available to the child in a
timely manner prior to enrollment in
the private school. The commenter
stated that a determination that a
placement is ‘‘appropriate,’’ even if it
does not meet the State standards that
apply to education provided by the SEA
or LEAs, conflicts with the SEA’s or
LEA’s responsibility to ensure FAPE to
children with disabilities.
Discussion:
The provision in
§ 300.148(b) that a parental placement
does not need to meet State standards in
order to be ‘‘appropriate’’ under the Act
is retained from current § 300.402(c) to
be consistent with the Supreme Court’s
decisions in
School Committee of the
Town of Burlington
v.
Department of
Education
, 471 U.S. 359 (1985)
(
Burlington
) and
Florence County
School District Four
v.
Carter
, 510 U.S.
7 (1993) (
Carter
). Under the Supreme
Court’s decision in
Carter
, a court may
order reimbursement for a parent who
unilaterally withdraws his or her child
from a public school that provides an
inappropriate education under the Act
and enrolls the child in a private school
that provides an education that is
otherwise proper under the Act, but
does not meet the State standards that
apply to education provided by the SEA
and LEAs. The Court noted that these
standards apply only to public agencies’
own programs for educating children
with disabilities and to public agency
placements of children with disabilities
in private schools for the purpose of
providing a program of special
education and related services. The
Court reaffirmed its prior holding in
Burlington
that tuition reimbursement is
only available if a Federal court
concludes ‘‘both that the public
placement violated IDEA, and that the
private school placement was proper
under the Act.’’ (510 U.S. at 12). We
believe LEAs can avoid reimbursement
awards by offering and providing FAPE
consistent with the Act either in public
schools or in private schools in which
the parent places the child. However, a
decision as to whether an LEA’s offer or
provision of FAPE was proper under the
Act and any decision regarding
reimbursement must be made by a court
or hearing officer. Therefore, we do not
believe it is appropriate to include in
these regulations a provision relieving a
public agency of its obligation to
provide tuition reimbursement for a
unilateral placement in a private school
if the child did not first receive special
education and related services from the
LEA.
This authority is independent of the
court’s or hearing officer’s authority
under section 612 (a)(10)(C)(ii) of the
Act to award reimbursement for private
placements of children who previously
were receiving special education and
related services from a public agency.
Changes:
None.
SEA Responsibility for General
Supervision and Implementation of
Procedural Safeguards
SEA Responsibility for General
Supervision (§ 300.149)
Comment:
One commenter requested
that the Department clarify in these
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regulations how the requirements for
SEA responsibility in § 300.149 apply
with respect to children attending BIA-
funded schools who are sent to State
prisons, including whether the Office of
Indian Education Programs in the
Department of the Interior can delegate
the responsibility of ensuring that the
requirements of Part B of the Act are
met by the State prison. The commenter
further requested clarification regarding
tribally controlled detention facilities
that incarcerate a student from a
different reservation than the
reservation where the student attended
a BIA-funded school.
Discussion:
As a general matter, for
educational purposes, students who
were enrolled in a BIA-funded school
and are subsequently convicted as an
adult and incarcerated in a State run
adult prison are the responsibility of the
State where the adult prison is located.
Section 612(a)(11)(C) of the Act and
§ 300.149(d) allow flexibility to States in
that the Governor, or another individual
pursuant to State law, can designate a
public agency in the State, other than
the SEA, as responsible for ensuring that
FAPE is made available to eligible
students with disabilities who are
convicted under State law and
incarcerated in the State’s adult prisons.
This provision does not apply to the
Secretary of the Interior. Therefore, the
Office of Indian Education Programs
cannot delegate the responsibility of
ensuring that the requirements of Part B
of the Act are met by the State prison.
The Act does not specifically address
who is responsible for education of
students with disabilities in tribally
controlled detention facilities. However,
the Secretary of the Interior is only
responsible for students who are
enrolled in schools operated or funded
by the Department of the Interior.
Changes:
None.
Comment:
One commenter
recommended adding a heading prior to
§ 300.149 to separate this section from
the regulations governing private
schools.
Discussion:
We agree with the
commenter that a heading should be
added to separate the private school
provisions from other State eligibility
requirements.
Changes:
We have added a heading
before § 300.149 to separate the private
school provisions from the provisions
relating to the SEA’s responsibility for
general supervision and implementation
of procedural safeguards.
State Complaint Procedures (§§ 300.151
through 300.153)
Comment:
We received several
comments questioning the statutory
basis for the State complaint provisions
in §§ 300.151 through 300.153. One
commenter stated that the Act includes
only two statutory references to State
complaints and both references
(sections 612(a)(14)(E) and 615(f)(3)(F)
of the Act) immediately follow statutory
prohibitions on due process remedies.
One commenter stated that Congress
did not require SEAs to create a
complaint system and that section
1232c(a) of the General Education
Provisions Act, 20 U.S.C. 1232c(a)
(GEPA), provides only that the
Department may require a State to
investigate and resolve all complaints
received by the State related to the
administration of an applicable
program. The commenter stated that the
permissive wording of this provision
suggests that the Secretary or the
Department can choose not to require a
complaint investigation and resolution
mechanism, particularly when such
mechanism is unnecessary or, as in the
case of the Act, effectively preempted by
more specific requirements in the Act
governing the applicable program.
Another commenter concluded that
there is no basis for the State complaint
procedures in §§ 300.151 through
300.153 because the Act only allows
complaints to be filed with the State in
two situations: (1) By private school
officials, regarding consultation and
child find for parentally-placed private
school children pursuant to section
612(a)(10)(A)(i) and (10)(A)(iii) of the
Act, and (2) by parents, regarding
personnel qualifications in section
612(a)(14)(E) of the Act. The commenter
stated that in both cases, the Act does
not detail a complaint process.
Discussion:
Although Congress did
not specifically detail a State complaint
process in the Act, we believe that the
State complaint process is fully
supported by the Act and necessary for
the proper implementation of the Act
and these regulations. We believe a
strong State complaint system provides
parents and other individuals an
opportunity to resolve disputes early
without having to file a due process
complaint and without having to go to
a due process hearing. The State
complaint procedures are referenced in
the following three separate sections of
the Act: (1) Section 611(e)(2)(B)(i) of the
Act, which requires that States spend a
portion of the amount of Part B funds
that they can use for State-level
activities on complaint investigations;
(2) Section 612(a)(14)(E) of the Act,
which provides that nothing in that
paragraph creates a private right of
action for the failure of an SEA or LEA
staff person to be highly qualified or
prevents a parent from filing a
complaint about staff qualifications with
the SEA, as provided for under this part;
and (3) Section 615(f)(3)(F) of the Act,
which states that ‘‘[n]othing in this
paragraph shall be construed to affect
the right of a parent to file a complaint
with the State educational agency.’’
Paragraph (f)(3) is titled ‘‘Limitations on
Hearing’’ and addresses issues such as
the statute of limitations and that
hearing issues are limited to the issues
that the parent has raised in their due
process notice. The Senate Report
explains that this provision clarifies that
‘‘nothing in section 615 shall be
construed to affect a parent’s right to file
a complaint with the State educational
agency, including complaints of
procedural violations’ (S. Rpt. No. 108–
185, p. 41).
Furthermore, the State complaint
procedures were a part of the initial Part
B regulations in 1977 (45 CFR
121a.602). These regulations were
moved into part 76 of the Education
Department General Administrative
Regulations (EDGAR) in the early 1980s,
and were returned to the Part B
regulations in 1992 (after the
Department decided to move the
regulations out of EDGAR and place
them in program regulations for the
major formula grant programs).
Although the State complaint
procedures have changed in some
respects in the years since 1977, the
basic right of any individual or
organization to file a complaint with the
SEA alleging any violation of program
requirements has remained the same.
For these reasons, we believe the State
complaint procedures should be
retained in the regulations.
Changes:
None.
Comment:
Several commenters stated
that use of the term ‘‘complaint’’ in
reference to due process complaints and
State complaint procedures is
confusing. One commenter requested
that we use the phrase ‘‘due process
hearing request’’ instead of ‘‘due process
complaint’’ in the regulations to avoid
confusion between the two processes.
Discussion:
Section 615 of the Act
uses the term ‘‘complaint’’ to refer to
due process complaints. We have used
the phrase ‘‘due process complaint’’
instead of the statutory term
‘‘complaint’’ throughout these
regulations to provide clarity and
reduce confusion between due process
complaints in section 615 of the Act and
complaints under the State complaint
procedures in §§ 300.151 through
300.153. We believe this distinction is
sufficient to reduce confusion and it is
not necessary to add further clarification
regarding the use of the term
‘‘complaint’’ in these regulations.
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The regulations for State complaints
under §§ 300.151 through 300.153
provide for the resolution of any
complaint, including a complaint filed
by an organization or an individual from
another State alleging that the public
agency violated a requirement of Part B
of the Act or of part 300. The public
agency must resolve a State complaint
within 60 days, unless there is a time
extension as provided in § 300.152(b).
Due process complaints, as noted in
§ 300.507, however, may be filed by a
parent or a public agency, consistent
with §§ 300.507 through 300.508 and
§§ 300.510 through 300.515.
Changes:
None.
Adoption of State Complaint Procedures
(§ 300.151)
Comment:
Many commenters
recommended that only issues related to
violations of the law should be subject
to the State complaint process. One
commenter stated that the State
complaint procedures should be used
only for systemic violations that reach
beyond the involvement of one child in
a school.
A few commenters requested that the
regulations clarify that the State
complaint procedures can be used for
the denial of appropriate services and
the failure to provide FAPE in
accordance with a child’s IEP. However,
some commenters requested that the
regulations clarify that disputes
involving appropriateness of services
and whether FAPE was provided should
be dealt with in a due process hearing.
One commenter stated that the State
complaint procedures should be used to
investigate whether required procedures
were followed and not to determine if
evaluation data and student-specific
data support the IEP Team’s
determination of what is appropriate for
the child. The commenter went on to
state that the procedures for
administrative hearings permit the
examination and cross-examination of
expert witnesses and establishing the
credibility of the testimonies, which are
the functions of a hearing officer, not
SEA complaint specialists.
Discussion:
Some commenters, as
noted above, seek to limit the scope of
the State complaint system. We believe
the broad scope of the State complaint
procedures, as permitted in the
regulations, is critical to each State’s
exercise of its general supervision
responsibilities. The complaint
procedures provide parents,
organizations, and other individuals
with an important means of ensuring
that the educational needs of children
with disabilities are met and provide the
SEA with a powerful tool to identify
and correct noncompliance with Part B
of the Act or of part 300. We believe
placing limits on the scope of the State
complaint system, as suggested by the
commenters, would diminish the SEA’s
ability to ensure its LEAs are in
compliance with Part B of the Act and
its implementing regulations, and may
result in an increase in the number of
due process complaints filed and the
number of due process hearings held.
We do not believe it is necessary to
clarify in the regulations that the State
complaint procedures can be used to
resolve a complaint regarding the denial
of appropriate services or FAPE for a
child, since § 300.153 is sufficiently
clear that an organization or individual
may file a written complaint that a
public agency has violated a
requirement of Part B of the Act or part
300. The State complaint procedures
can be used to resolve any complaint
that meets the requirements of
§ 300.153, including matters concerning
the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child.
We believe that an SEA, in resolving
a complaint challenging the
appropriateness of a child’s educational
program or services or the provision of
FAPE, should not only determine
whether the public agency has followed
the required procedures to reach that
determination, but also whether the
public agency has reached a decision
that is consistent with the requirements
in Part B of the Act in light of the
individual child’s abilities and needs.
Thus, the SEA may need to review the
evaluation data in the child’s record, or
any additional data provided by the
parties to the complaint, and the
explanation included in the public
agency’s notice to the parent as to why
the agency made the determination
regarding the child’s educational
program or services. If necessary, the
SEA may need to interview appropriate
individuals, to determine whether the
agency followed procedures and applied
standards that are consistent with State
standards, including the requirements of
Part B of the Act, and whether the
determination made by the public
agency is consistent with those
standards and supported by the data.
The SEA may, in its effort to resolve a
complaint, determine that interviews
with appropriate individuals are
necessary for the SEA to obtain the
relevant information needed to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or of
part 300. However, such interviews
conducted by the SEA, as part of its
effort to resolve a State complaint, are
not intended to be comparable to the
requirement in section 615(h)(2) of the
Act, which provides any party to a due
process hearing the right to present
evidence and confront, cross-examine,
and compel the attendance of witnesses.
In addition, a parent always has the
right to file a due process complaint and
request a due process hearing on any
matter concerning the identification,
evaluation, or educational placement of
his or her child, or the provision of
FAPE and may seek to resolve their
disputes through mediation. It is
important to clarify that when the
parent files both a due process
complaint and a State complaint on the
same issue, the State must set aside any
part of the complaint that is being
addressed in the due process hearing
until the conclusion of the hearing.
However, any issue in the complaint
that is not a part of the due process
hearing must be resolved using the State
complaint procedures in § 300.152,
including using the time limit and
procedures in paragraphs (b) and (d) of
§ 300.152. (See § 300.152(c)(1)). Under
the Act, the decision reached through
the due process proceedings is the final
decision on those matters, unless a party
to the hearing appeals that decision by
requesting State-level review, if
applicable, or by bringing a civil action
in an appropriate State or Federal court.
Changes:
None.
Comment:
A few commenters
requested amending § 300.151(a)(2) to
specifically include school personnel
and teacher organizations in the list of
entities to whom the SEA must
disseminate the State complaint
procedures. Another commenter
requested that representatives of private
schools or residential treatment
facilities be included on the list of
entities to whom the State must
disseminate complaint procedures.
Discussion:
Section 300.151(a)(2)
already requires the State to widely
disseminate the State complaint
procedures in §§ 300.151 through
300.153 to parents and other interested
parties, including parent training and
information centers, protection and
advocacy organizations, independent
living centers, and other appropriate
entities. There is nothing in these
regulations that would prevent a State
from disseminating information about
the State complaint procedures to
school personnel, teacher organizations,
or representatives of private schools or
residential facilities. However, we
believe this decision is best left to the
States. We do not believe that there is
a need to add these entities to the
mandatory distribution as individuals
involved in the education of children
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with disabilities are generally
acquainted with these procedures.
Changes:
None.
Remedies for Denial of Appropriate
Services (§ 300.151(b))
Comment:
Many commenters
requested retaining current
§ 300.660(b)(1), regarding the awarding
of monetary reimbursement as a remedy
for denial of appropriate services. One
commenter stated that the regulations
should clarify that States continue to
have authority to award monetary
reimbursement, when appropriate. A
few commenters stated that the
regulations should clarify that monetary
reimbursement is not appropriate for a
majority of State complaints. Some
commenters stated that removing
current § 300.660(b)(1) creates
ambiguity and may result in increased
litigation because parents may choose to
use the more costly and time-consuming
due process system if they believe that
monetary relief is not available to them
under the State complaint system. Some
commenters stated that removing
current § 300.660(b)(1) implies that
monetary reimbursement is never
appropriate. A few commenters stated
that removing the monetary
reimbursement provision in current
§ 300.660(b)(1) suggests that the
Department no longer supports the use
of this remedy. A few commenters
requested that the regulations clarify
that compensatory services are an
appropriate remedy when the LEA has
failed to provide appropriate services.
Discussion:
The SEA is responsible
for ensuring that all public agencies
within its jurisdiction meet the
requirements of the Act and its
implementing regulations. In light of the
SEA’s general supervisory authority and
responsibility under sections 612(a)(11)
and 616 of the Act, we believe the SEA
should have broad flexibility to
determine the appropriate remedy or
corrective action necessary to resolve a
complaint in which the SEA has found
that the public agency has failed to
provide appropriate services to children
with disabilities, including awarding
monetary reimbursement and
compensatory services. To make this
clear, we will change § 300.151 to
include monetary reimbursement and
compensatory services as examples of
corrective actions that may be
appropriate to address the needs of the
child.
Changes:
We have added
‘‘compensatory services or monetary
reimbursement’’ as examples of
corrective actions in § 300.151(b)(1).
Comment:
One commenter stated that
the remedies available in § 300.151(b)
are silent about whether the
complainant may be reimbursed for
attorneys’ fees and requested
clarification as to whether
reimbursement is permissible for State
complaints. Another commenter
requested that the language in section
615(i)(3)(B) of the Act, regarding the
awarding of attorneys’ fees for due
process hearings, be included in the
State complaint procedures as a way to
limit repetitive, harassing complaints.
Discussion:
The awarding of
attorneys’ fees is not addressed in
§ 300.151(b) because the State complaint
process is not an administrative
proceeding or judicial action, and,
therefore, the awarding of attorneys’ fees
is not available under the Act for State
complaint resolutions. Section
615(i)(3)(B) of the Act clarifies that a
court may award attorneys’ fees to a
prevailing party in any action or
proceeding brought under section 615 of
the Act. We, therefore, may not include
in the regulations the language from
section 615(i)(3)(B) of the Act, as
suggested by the commenters, because
State complaint procedures are not an
action or proceeding brought under
section 615 of the Act.
Changes:
None.
Minimum State Complaint Procedures
(§ 300.152)
Time Limit; Minimum Procedures
(§ 300.152(a))
Comment:
One commenter suggested
changing § 300.152(a)(1), to include
situations when the SEA is the subject
of a complaint. Another commenter
recommended that the State complaint
procedures include how the SEA should
handle a complaint against the SEA for
its failure to supervise the LEA or
failure to provide direct services when
given notice that the LEA has failed to
do so.
Discussion:
We do not believe it is
necessary to specify in the regulations
how the SEA should handle a complaint
filed against the SEA because § 300.151
clarifies that, if an organization or
individual files a complaint, pursuant to
§§ 300.151 through 300.153, that a
public agency has violated a
requirement of Part B of the Act or part
300, the SEA must resolve the
complaint. Pursuant to § 300.33 and
section 612(a)(11) of the Act, the term
public agency
includes the SEA. The
SEA must, therefore, resolve any
complaint against the SEA pursuant to
the SEA’s adopted State complaint
procedures. The SEA, however, may
either appoint its own personnel to
resolve the complaint, or may make
arrangements with an outside party to
resolve the complaint. If it chooses to
use an outside party, however, the SEA
remains responsible for complying with
all procedural and remediation steps
required in part 300.
Changes:
None.
Comment:
One commenter suggested
that the regulations include language
requiring an on-site investigation unless
the SEA determines that it can collect
all evidence and fairly determine
whether a violation has occurred with
the evidence provided by the
complainant and a review of records.
Discussion:
We do not believe the
regulations should require the SEA to
conduct an on-site investigation in the
manner suggested by the commenter
because we believe § 300.152(a)(1) is
sufficient to ensure that an independent
on-site investigation is carried out if the
SEA determines that such an
investigation is necessary to resolve a
complaint. The minimum State
complaint procedures in § 300.152 are
intended to be broad in recognition of
the fact that States operate differently
and standards appropriate to one State
may not be appropriate in another State.
Therefore, the standards to be used in
conducting an on-site investigation are
best determined by the State.
Changes:
None.
Comment:
One commenter stated that
§ 300.152 would allow an unlimited
period of time to resolve complaints and
requested that the regulations limit the
complaint resolution process to 30 days,
similar to the procedures when a due
process hearing is requested. A few
commenters requested that the 60-day
time limit be lengthened to 90 days,
given that many complaints involve
complex issues and multiple interviews
with school administrators.
Discussion:
Section 300.152 does not
allow an unlimited period of time to
resolve a complaint. Paragraph (a) of
this section provides that an SEA has a
time limit of 60 days after a complaint
is filed to issue a written decision to the
complainant that addresses each
allegation in the complaint (unless,
under paragraph (b) of this section,
there is an extension for exceptional
circumstances or the parties agree to
extend the timeline because they are
engaged in mediation or in other
alternative means of dispute resolution,
if available in the State). We believe the
right of parents to file a complaint with
the SEA alleging any violation of Part B
of the Act or part 300 to receive a
written decision within 60 days is
reasonable in light of the SEA’s
responsibilities in resolving a complaint
pursuant to its complaint procedures,
and is appropriate to the interest of
resolving allegations promptly. In
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addition, the 60-day time limit for
resolving a State complaint is a
longstanding requirement and States
have developed their State complaint
procedures based on the 60-day time
limit. We believe altering this timeframe
would be unnecessarily disruptive to
States’ developed complaint procedures.
For these reasons, we do not believe it
is appropriate to change the time limit
as recommended by the commenters.
Changes:
None.
Comment:
One commenter expressed
concern that the regulations are silent as
to how an amended State complaint
should be handled. One commenter
expressed concern about resolving
complaints within the 60-day time limit
when the complainant submits
additional information about the
complaint and amends the complaint.
The commenter requested that in such
cases, the regulations should allow the
60-day time limit to begin from the date
the State receives the amended
complaint.
Discussion:
Section 300.152 provides
that the complaint must be resolved 60
days after a complaint is filed and that
the complainant must be given an
opportunity to submit additional
information, either orally or in writing,
about the allegations in the complaint.
Generally, if the additional information
a parent submits is on the same or
related incident, it would be part of the
amended complaint. If the information
submitted by the complainant is on a
different or unrelated incident,
generally, the new information would
be treated as a separate complaint. On
the other hand, if the information
submitted by the complainant were on
the same incident, generally, the new
information would be treated as an
amendment to the original complaint. It
is, ultimately, left to each State to
determine whether the new information
constitutes a new complaint or whether
it is related to a pending complaint. We
believe the decision regarding whether
the additional information is a new
complaint or an amendment to an
existing complaint, is best left to the
State. The State must have the flexibility
to make this determination based on the
circumstances of a particular complaint
and consistent with its State complaint
process and, therefore, we do not
believe it is appropriate to regulate
further on this matter.
There are no provisions in Part B of
the Act or in these regulations that
permit the 60-day time limit to begin
from the date the State receives an
amended complaint, if additional
information submitted by the
complainant results in an amendment to
the complaint. However, § 300.152(b)
permits an extension of the 60-day time
limit if exceptional circumstances exist
or the parent and the public agency
agree to extend the time limit to attempt
to resolve the complaint through
mediation.
Changes:
None.
Comment:
One commenter requested
clarification regarding the time limit for
a public agency to respond with a
proposal to resolve the complaint.
Discussion:
The 60-day time limit to
resolve a complaint does not change if
a public agency decides to respond to
the complaint with a proposal to resolve
the complaint. However, § 300.152(b)(2)
permits the 60-day time limit to be
extended under exceptional
circumstances or if the parent and
public agency agree to engage in
mediation or in other alternative means
of dispute resolution, if available in the
State.
Changes:
None.
Comment:
One commenter expressed
concern that § 300.152(a) could limit the
SEA’s investigation of a complaint to an
exchange of papers since the SEA is not
required to conduct an on-site
investigation.
Discussion:
Section 300.152 provides
that the SEA must review all relevant
information and, if it determines it to be
necessary, carry out an independent on-
site investigation in order to make an
independent determination as to
whether the public agency is violating a
requirement of Part B of the Act or part
300. We believe the SEA is in the best
position, and should have the
flexibility, to determine what
information is necessary to resolve a
complaint, based on the facts and
circumstances of the individual case. It
is true that, in some cases, a review of
documents provided by the parties may
be sufficient for the SEA to resolve a
complaint and that conducting an on-
site investigation or interviews with
staff, for example, may be unnecessary.
The SEA, based on the facts in the case,
must decide whether an on-site
investigation is necessary. We also
believe requiring an on-site
investigation for each State complaint
would be overly burdensome for public
agencies and unnecessary.
Changes:
None.
Comment:
A few commenters
requested adding language to proposed
§ 300.152(a)(3) to allow an SEA to
provide opportunities for resolving the
complaint through mediation and other
informal mechanisms for dispute
resolution with any party filing a
complaint, not only the parents. Some
commenters requested that the
regulations clarify that mediation is the
appropriate method to resolve State
complaints regarding the denial of
appropriate services.
A few commenters expressed concern
that the phrase ‘‘[w]ith the consent of
the parent’’ in proposed § 300.152(a)(3)
implies that complaints are
disagreements between parents and
public agencies, rather than allegations
of violations of a child’s or a parent’s
rights under the Act.
A few commenters supported the use
of mediation to resolve a complaint, but
requested that alternative means of
dispute resolution be deleted. Other
commenters expressed concern that
providing yet another means of
initiating mediation or other dispute
resolution is unnecessary because these
options are already available to parties
who wish to use them. A few
commenters requested that the
regulations define alternative means of
dispute resolution.
Discussion:
Section 300.152(a)(3) was
proposed to encourage meaningful,
informal, resolution of disputes between
the public agency and parents,
organizations, or other individuals by
providing an opportunity for parties to
resolve disputes at the local level
without the need for the SEA to resolve
the matter. We believe that, at a
minimum, the State’s complaint
procedures should allow the public
agency that is the subject of the
complaint the opportunity to respond to
a complaint by proposing a resolution
and provide an opportunity for a parent
who has filed a complaint and the
public agency to resolve a dispute by
voluntarily engaging in mediation.
However, we do not believe that the
SEA should be required to offer other
alternative means of dispute resolution,
and so will remove the reference to
these other alternatives from the
minimum procedures in § 300.152(a)(3).
We believe it is important to retain
the provision in § 300.152(a)(3)(ii)
(proposed § 300.152(a)(3)(B)), with
modification, to reinforce the use of
voluntary mediation as a viable option
for resolving disputes between the
public agency and the parents at the
local level prior to the SEA
investigating, if necessary, and resolving
a dispute. Resolving disputes between
parties at the local level through the use
of mediation, or other alternative means
of dispute resolution, if available in the
State, will be less adversarial and less
time consuming and expensive than a
State complaint investigation, if
necessary, or a due process hearing and,
ultimately, children with disabilities
will be the beneficiaries of a local level
resolution.
Requiring that the public agency
provide an opportunity for the parent
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who has filed a complaint and the
public agency to voluntarily engage in
mediation in an effort to resolve a
dispute is an appropriate minimum
requirement and consistent with the
statutory provision in section 615(e) of
the Act that voluntary mediation be
made available to parties (
i.e.
, parent
and public agency) to disputes
involving any matter under Part B of the
Act, including matters arising prior to
the filing of a due process complaint.
However, the statute does not require
that mediation be available to other
parties, and we believe it would be
burdensome to expand, through
regulation, new § 300.152(a)(3)(ii)
(proposed § 300.152(a)(3)(B)) to require
that States offer mediation to non-
parents. Although we do not believe we
should regulate to require that
mediation be offered to non-parents,
there is nothing in the Act or these
regulations that would preclude an SEA
from permitting the use of mediation, or
other alternative dispute resolution
mechanisms, if available in the State, to
resolve a State complaint filed by an
organization or individual other than a
parent, and we will add language to
§ 300.152(b)(1)(ii) to permit extensions
of the timeline if the parties are
voluntarily engaged in any of these
dispute resolution procedures. In fact,
we encourage SEAs and their public
agencies to consider alternative means
of resolving disputes between the public
agency and organizations or other
individuals, at the local level, consistent
with State law and administrative
procedures. It is up to each State,
however, to determine whether non-
parents can use mediation or other
alternative means of dispute resolution.
Section 615(e) of the Act makes clear
that mediation is a voluntary
mechanism for resolving disputes and
may not be used to delay or deny a
parent’s right to a due process hearing
on the parent’s due process complaint,
or to deny any other rights afforded
under Part B of the Act. In light of the
fact that mediation is a voluntary
process, the parties only need to agree
to engage in mediation and it is not
necessary to obtain parental written
consent to engage in this voluntary
process. We will, therefore, change new
§ 300.152(a)(3)(ii) (proposed
§ 300.152(a)(3)(B)) by removing the
phrase ‘‘[w]ith the consent of the
parent’’ and adding a reference to
§ 300.506.
We do not believe it is necessary to
include in the regulations a definition of
the term ‘‘alternative means of dispute
resolution’’ because the term is
generally understood to refer to other
procedures and processes that States
have found to be effective in resolving
disputes quickly and effectively but
does not include those dispute
resolution processes required under the
Act or these final regulations.
Changes:
We have changed new
§ 300.152(a)(3)(ii) (proposed
§ 300.152(a)(3)(B)) by removing ‘‘with
the consent of the parent’’ and ‘‘or other
alternative means of dispute resolution’’
and adding a reference to § 300.506. We
have also amended § 300.152(b)(1)(ii), as
stated above, to clarify that a public
agency’s State complaint procedures
must permit an extension of the 60-day
time limit if a parent (or individual or
organization, if mediation, or other
alternative means of dispute resolution
is available to the individual or
organization under State procedures)
who has filed a complaint and the
public agency voluntarily agree to
extend the time to engage in mediation
or other alternative means of dispute
resolution, if available in the State.
Comment:
A few commenters stated
that the agreement to extend the 60-day
time limit (to allow the parties to engage
in mediation, or alternative means of
dispute resolution, or both) should meet
the consent requirements in § 300.9.
One commenter requested an extension
of the 60-day time limit to resolve
complaints when mediation is
underway.
Discussion:
We do not agree that
consent
, as defined in § 300.9, should be
required to extend the 60-day time limit
because it would add burden and is not
necessary. It is sufficient to require
agreement of the parties. At any time
that either party withdraws from
mediation or other alternative means of
dispute resolution, or withdraws
agreement to the extension of the time
limit, the extension would end. We
believe § 300.152(b) is sufficiently clear
that an extension of the 60-day time
limit is permissible if exceptional
circumstances exist with respect to a
particular complaint, or if the parent
and the public agency agree to extend
the time to engage in mediation. We also
believe it would be permissible to
extend the 60-day time limit if the
public agency and an organization or
other individual agree to engage in an
alternative means of dispute resolution,
if available in the State, and the parties
agree to extend the 60-day time limit.
We will revise § 300.152(b)(1)(ii) to
include this exception.
Changes:
We have revised
§ 300.152(b)(1)(ii) to clarify that it
would be permissible to extend the 60-
day time limit if the parties agree to
engage in other alternative means of
dispute resolution, if available in the
State.
Comment:
Several commenters
requested that § 300.152(a) be modified
to include language allowing parents, in
addition to the public agency, an
opportunity to submit a proposal to
resolve the complaint.
Discussion:
We do not believe it is
necessary to include the language in
§ 300.152(a) as suggested by the
commenter because § 300.153(b)(4)(v)
already requires that the signed written
complaint submitted to the SEA by the
complainant include a proposed
resolution to the problem. A parent who
is a complainant must include a
proposed resolution to the problem to
the extent known and available to the
parent at the time the complaint is filed.
Changes:
None.
Complaints Filed Under This Section
and Due Process Hearings Under
§ 300.507 or §§ 300.530 Through
300.532 (§ 300.152(c))
Comment:
A few commenters
requested that the regulations include a
provision to allow parents to use the
State complaint process to enforce
agreements reached in mediation and
resolution sessions. One commenter
expressed concern that if an SEA does
not have authority to enforce
agreements arising from mediation and
resolution sessions, the burden will be
on a parent to incur costs necessary to
file a petition with a court to have the
agreement enforced.
Discussion:
The Act provides that the
enforcement and implementation of
agreements reached through mediation
and resolution sessions may be obtained
through State and Federal courts.
Section 300.506(b)(7), consistent with
section 615(e)(2)(F)(iii) of the Act, states
that a written, signed mediation
agreement is enforceable in any State
court of competent jurisdiction or in a
district court of the United States.
Similarly, § 300.510(c)(2), consistent
with section 615(f)(1)(B)(iii)(II) of the
Act, states that a written settlement
agreement resulting from a resolution
meeting is enforceable in any State court
of competent jurisdiction or in a district
court of the United States.
However, as noted in the
Analysis of
Comments and Changes
for subpart E,
we have added new § 300.537 that
allows, but does not require, a State to
have mechanisms or procedures that
permit parties to mediation or
resolution agreements to seek
enforcement of those agreements and
decisions at the SEA level. We believe
this provision is sufficient to allow
States the flexibility to determine what
mechanisms or procedures, if any, may
be appropriate to enforce such
agreements, including utilizing their
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State complaint procedures, if they
choose to do so, so long as the
mechanisms or procedures are not used
to deny or delay a parent’s right to seek
enforcement through State and Federal
courts.
Changes:
None.
Comment:
Numerous commenters
requested that current § 300.661(c)(3),
regarding the SEA’s responsibility to
resolve complaints alleging a public
agency’s failure to implement due
process decisions, be retained. Many
commenters raised concerns that
removing this language will lead to
more litigation. One commenter stated
that parents would be forced to litigate
due process decisions, which will
prolong the denial of FAPE to children.
Another commenter stated that not
allowing States to enforce a hearing
officer’s decision encourages litigation
because it is the only avenue for relief.
Several commenters stated that parents
are placed at a disadvantage because
they may not have the resources to file
in State or Federal court.
Discussion:
The SEA’s obligation to
implement a final hearing decision is
consistent with the SEA’s general
supervisory responsibility, under
sections 612(a)(11) and 616 of the Act,
over all education programs for children
with disabilities in the State, which
includes taking necessary and
appropriate actions to ensure that the
provision of FAPE and all the
requirements in Part B of the Act and
part 300 are carried out. However, we
agree that the requirements from current
§ 300.661(c)(3) should be retained for
clarity.
Changes:
We have added the
requirement in current § 300.661(c)(3) as
new § 300.152(c)(3).
Comment:
Numerous commenters
requested retaining current
§ 300.661(c)(1), which requires that any
issue in the complaint that is not a part
of a due process complaint be resolved
using the applicable State complaint
timelines and procedures. One
commenter stated that § 300.152(c)(1)
requires the State to set aside an entire
complaint if due process proceedings
commence with respect to any subject
that is raised in the complaint. A few
commenters expressed concern that if
issues in a State complaint, which are
not part of a due process complaint, are
not investigated until the due process
complaint is resolved, children may go
without FAPE for extended periods of
time. These commenters also stated that
parents are likely to file for due process
on every issue of concern, rather than
using the more expeditious and less
expensive State complaint procedures.
Discussion:
We agree that language in
current § 300.661(c), requiring that
States set aside any part of a State
complaint that is being addressed in a
due process hearing, until the
conclusion of the hearing and resolve
any issue that is not a part of the due
process hearing, should be retained.
Changes:
We have revised
§ 300.152(c)(1) by adding the
requirements in current § 300.661(c)(1)
to the regulations.
Comment:
One commenter stated that
the regulations do not address the
disposition of a complaint if a parent
and a public agency come to a
resolution of a complaint through
mediation. One commenter
recommended that the regulations
provide guidance on how an SEA
should handle a complaint that is
withdrawn. Another commenter
requested clarification on what should
occur if an SEA does not approve of the
agreement reached between the parent
and the public agency.
Discussion:
We do not believe it is
necessary to regulate on these matters,
as recommended by the commenters.
Section 615(e)(2)(F) of the Act and
§ 300.506(b)(7) clarify that an agreement
reached through mediation is a legally
binding document enforceable in State
and Federal courts. Therefore, an
agreement reached through mediation is
not subject to the SEA’s approval. We
strongly encourage parties to resolve a
complaint at the local level without the
need for the SEA to intervene. If a
complaint is resolved at the local level
or is withdrawn, no further action is
required by the SEA to resolve the
complaint.
Changes:
None.
Comment:
One commenter suggested
including language in the regulations
that would require parties to provide
evidence under threat of perjury.
Another commenter stated that the State
complaint process should be non-
adversarial and that neither party
should have the right to review the
other’s submissions or to cross-examine
the other party.
Discussion:
We do not believe it is
appropriate to include the language
suggested by the commenters because
we believe requiring parties to provide
evidence under the threat of perjury,
permitting parties to review
submissions, and allowing one party to
cross-examine the other party are
contrary to the intent of the State
complaint process. The State complaint
process is intended to be less
adversarial than the more formal filing
of a due process complaint and possibly
going to a due process hearing. To make
the changes requested by the
commenters will serve only to make the
State complaint process more
adversarial and will not be in the best
interest of the child. The State
complaint procedures in §§ 300.151
through 300.153 do not require parties
to provide evidence, nor do they require
that a State allow parties to review the
submissions of the other party or to
cross-examine witnesses.
Changes:
None.
Filing a Complaint (§ 300.153)
Comment:
One commenter
recommended the regulations include a
limit on the number of times that an
individual may file a State complaint
against a public agency.
Discussion:
An SEA is required to
resolve any complaint that meets the
requirements of § 300.153, including
complaints that raise systemic issues,
and individual child complaints. It
would be inconsistent with the Act’s
provisions in section 616 regarding
enforcement and the Act’s provisions in
section 612 regarding general
supervision for an SEA to have a State
complaint procedure that removes or
limits a party’s right to file a complaint
that a public agency has violated a
requirement of Part B of the Act or part
300, including limiting the number of
times a party can file a complaint with
the SEA. Therefore, it is not appropriate
to include in the regulations the
language suggested by the commenter,
nor should the SEA include in its State
complaint procedures any restriction on
the number of times a party can file a
complaint, as long as the complaint
meets the requirements of § 300.153.
Changes:
None.
Comment:
Many commenters
requested retaining current § 300.662(c),
which permits a complaint to be filed
about a violation that occurred more
than one year prior to the date the
complaint is received if the violation is
continuing or the complainant is
requesting compensatory services for a
violation that occurred more than three
years prior to the date the complaint is
received.
Some commenters requested that the
regulations permit a parent to have as
much time to file a State complaint as
a parent would have to file a due
process complaint (two years, unless
provided otherwise by State law). One
commenter stated that extensions of the
statute of limitations should be granted
when circumstances warrant an
extension.
Another commenter suggested adding
language providing that the timeline
begins when a parent first learns about
the violation. A few commenters stated
that parents need a longer statute of
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limitations for State complaints because
they do not always know about
violations when they occur and may not
fully understand how the violation
affects their child’s education.
Several commenters stated that
Congress did not intend to create a one-
year statute of limitations for State
complaints when it created a two-year
statute of limitations for due process
hearings. Several commenters stated
that there is no evidence that Congress
intended to change the current three-
year statute of limitations on the
parents’ right to file a State complaint
when the violation is ongoing or
compensatory services are being
requested.
Discussion:
We believe a one-year
timeline is reasonable and will assist in
smooth implementation of the State
complaint procedures. The references to
longer periods for continuing violations
and for compensatory services claims in
current § 300.662(c) were removed to
ensure expedited resolution for public
agencies and children with disabilities.
Limiting a complaint to a violation that
occurred not more than one year prior
to the date that the complaint is
received will help ensure that problems
are raised and addressed promptly so
that children receive FAPE. We believe
longer time limits are not generally
effective and beneficial to the child
because the issues in a State complaint
become so stale that they are unlikely to
be resolved. However, States may
choose to accept and resolve complaints
regarding alleged violations that
occurred outside the one-year timeline,
just as they are free to add additional
protections in other areas that are not
inconsistent with the requirements of
the Act and its implementing
regulations. For these reasons, we do
not believe it is necessary to retain the
language in current § 300.662(c).
We do not believe it is appropriate to
change the timeline to begin when a
parent first learns about the violation, as
suggested by the commenter, because
such a provision could lead to some
complaints being filed well beyond one
year from the time the violation actually
occurred. This also would make the
issue of the complaint so stale that the
SEA would not be able to reasonably
resolve the complaint and recommend
an appropriate corrective action.
As we stated earlier in the
Analysis of
Comments and Changes
for this subpart,
Congress did not specifically address or
detail a State complaint process in the
Act; nor did Congress express an
opinion regarding the time limit for
filing a complaint under a State’s
complaint process.
Changes:
None.
Comment:
Several commenters stated
that § 300.153(c) appears to indicate that
if a State complaint, is also the subject
of a due process complaint, the time
period to file the complaint is two years,
rather than the one-year time limit
applicable for all other State complaints.
Several commenters stated that this
provision should be removed and that a
one-year limitation should apply to all
State complaints, regardless of whether
a request for a due process hearing is
filed on the issue(s) in the complaint.
Discussion:
If a State complaint
contains multiple issues of which one or
more is part of a due process hearing,
the one-year statute of limitations would
apply to the issues that are resolved
under the State complaint procedures;
the State due process statute of
limitations would apply to the issues
that are the subject of the due process
hearing. We agree that the language in
§ 300.153 is confusing and will amend
the language to remove the reference to
the due process complaint.
Changes:
We have removed the
phrase, ‘‘Except for complaints covered
under § 300.507(a)(2)’’ in § 300.153(c).
Comment:
Some commenters
recommended removing the
requirement in § 300.153(d) that
requires the party filing the complaint to
forward a copy of the complaint to the
LEA or public agency serving the child
at the same time the party files the
complaint with the SEA. One
commenter stated that filing a complaint
is onerous enough for parents, without
including an extra step of requiring a
copy of the complaint to be forwarded
to the school. One commenter stated
that this poses an unnecessary
paperwork burden on parents. A few
commenters stated that forwarding a
copy of the complaint to the LEA should
be the responsibility of the SEA, not the
parents.
One commenter expressed concern
that requiring the party filing the
complaint to forward a copy of the
complaint to the LEA or public agency
serving the child will discourage
parents or school personnel whistle
blowers from filing a complaint and
recommended instead, that the
regulations require SEAs to provide the
LEA with a concise statement of fact
upon which the complaint is based and
the provisions of laws and rules that are
at issue. A few commenters requested
including language in § 300.153(d)
giving the SEA discretion to protect the
confidentiality of the complainant. A
few commenters recommended
removing the requirement in
§ 300.153(b)(3) for the written complaint
to include the signature and contact
information for the complainant.
Discussion:
The purpose of requiring
the party filing the complaint to forward
a copy of the complaint to the LEA or
public agency serving the child, at the
same time the party files the complaint
with the SEA, is to ensure that the
public agency involved has knowledge
of the issues and an opportunity to
resolve them directly with the
complaining party at the earliest
possible time. The sooner the LEA
knows that a complaint is filed and the
nature of the issue(s), the quicker the
LEA can work directly with the
complainant to resolve the complaint.
We believe the benefit of having the
complainant forward a copy of the
complaint to the LEA or public agency
far outweigh the minimal burden placed
on the complainant because it will lead
to a faster resolution of the complaint at
the local level. For these reasons, we
also do not believe it is more efficient
to have the SEA forward the complaint
to the public agency or provide the
public agency with a statement
summarizing the complaint.
We do not believe that the complaint
procedures should provide for the
confidentiality of the complainant. The
complainant should not remain
unknown to the public agency that is
the subject of the complaint because
that public agency needs to know who
the complainant is and something about
the complaint (consistent with
§ 300.153) before it can be expected to
resolve the issues. We believe it is
reasonable to require a party to file a
signed complaint and provide contact
information to the SEA in order to
ensure the credibility of the complaint
and provide the SEA with the basic
contact information necessary for the
SEA to handle complaints
expeditiously. If the SEA receives a
complaint that is not signed, as required
in § 300.153, the SEA may choose to
dismiss the complaint.
Changes:
None.
Comment:
One commenter expressed
concern that a parent must have legal
knowledge in order to correctly file a
State complaint.
Discussion:
Contrary to the
commenter’s assertion that a parent
must have legal knowledge to file a
complaint, we believe the State
complaint procedures, which are under
the direct control of the SEA, provide
the parent and the school district with
mechanisms that allow them to resolve
differences without having to resort to a
more costly and cumbersome due
process complaint, which, by its nature,
is litigious. We believe if a State
effectively implements its State
complaint procedures, both parents and
public agencies will generally find the
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process efficient and easy to initiate. We
further believe that the requirement in
§ 300.509 that each SEA must develop
model forms to assist parents in filing a
State complaint in accordance with
§§ 300.151 through 300.153, and in
filing a due process complaint in
accordance with §§ 300.507(a) and
300.508(a) through (c), will make the
process of filing such complaints much
easier for parents and others.
Changes:
We have made a minor
wording change in § 300.153(b)(4) for
clarity.
Comment:
One commenter stated that
the complainant should not have to
propose a resolution to the problem, as
required in § 300.153(b)(4)(v), in order
to have the State investigate a
complaint.
Discussion:
Section 300.153(b)(4)(v)
requires the complainant to propose a
resolution to the complaint only to the
extent known and available to the
complainant at the time the complaint
is filed. We believe this proposed
resolution is necessary because it gives
the complainant an opportunity to state
what he or she believes to be the
problem and how the complainant
believes it can be resolved. This is
important because it gives the
complainant an opportunity to tell the
public agency what is wrong and what
it would take to fix the problem from
the complainant’s point of view. It also
will give the LEA an opportunity to
choose either to do as the complainant
requests or propose a solution that it
believes would resolve the issue raised
by the complainant. Thus, if successful,
the parties will avoid an adversarial
relationship and possibly the expense of
a due process hearing.
Changes:
None.
Comment:
One commenter requested
that § 300.153(d) include language
allowing an LEA to appeal an SEA
finding to an administrative hearing or
the courts. Another commenter
expressed concern that the State
complaint procedures lack an appeals
process for parties that lose under the
State complaint procedures.
Discussion:
The regulations neither
prohibit nor require the establishment of
procedures to permit an LEA or other
party to request reconsideration of a
State complaint decision. We have
chosen to be silent in the regulations
about whether a State complaint
decision may be appealed because we
believe States are in the best position to
determine what, if any, appeals process
is necessary to meet each State’s needs,
consistent with State law.
If a State chooses, however, to adopt
a process for appealing a State
complaint decision, such process may
not waive any of the requirements in
§§ 300.151 through 300.153. Section
300.152 requires that the SEA issue a
final decision on each complaint within
60 calendar days after the complaint is
filed, unless the SEA extends the
timeline as provided in § 300.152(b).
This means that, absent an appropriate
extension of the timeline for a particular
complaint, the State must issue a final
decision within 60 calendar days.
However, if after the SEA’s final
decision is issued, a party who has the
right to request a due process hearing
(that is, the parent or LEA) and who
disagrees with the SEA’s decision may
initiate a due process hearing, provided
that the subject of the State complaint
involves an issue about which a due
process hearing can be filed and the
two-year statute of limitations for due
process hearings (or other time limit
imposed by State law) has not expired.
Changes:
None.
Method of Ensuring Services (§ 300.154)
Establishing Responsibility for Services
(§ 300.154(a))
Comment:
One commenter suggested
posting interagency agreements on SEA
Web sites and in public buildings, and
making them available upon request.
Discussion:
There is nothing in the
Act or these regulations that would
prohibit an SEA from posting
interagency agreements on Web sites, in
public buildings, or making them
available upon request. However, we
believe that it would be unnecessarily
burdensome to require SEAs to do so
and any decision regarding posting
interagency agreements is best left to the
States’ discretion.
Changes:
None.
Comment:
One commenter stated that
interagency agreements are important
because agencies other than SEAs (
e.g.
,
mental health agencies that place
children in residential facilities) are
responsible for providing special
educational services. The commenter
requested that the regulations specify
that residential facilities be allowed
reimbursement for providing
educational services and that children
in these facilities are entitled to FAPE.
Discussion:
We do not believe it is
necessary to further clarify in the
regulations that children with
disabilities who are placed in
residential facilities by public agencies
are entitled to FAPE because § 300.146,
consistent with section 612(a)(10)(B) of
the Act, provides that SEAs must ensure
that children with disabilities receive
FAPE when they are placed in or
referred to private schools or facilities
by public agencies. Whether residential
facilities can receive reimbursement for
educational services will depend on
how States have apportioned financial
responsibility among State agencies and
we do not believe that regulating on this
issue is appropriate or necessary.
Changes:
None.
Obligation of Noneducational Public
Agencies (§ 300.154(b))
Comment:
One commenter expressed
concern that § 300.154(b) allows LEAs
to discontinue services when there is a
dispute with other agencies and
requested the regulations require LEAs
to bear the ultimate responsibility for
providing services.
Discussion:
We do not believe it is
necessary to further clarify that the LEA
is ultimately responsible for providing
services because § 300.154(b)(2)
sufficiently requires that if a public
agency other than an educational agency
fails to provide or pay for the special
education and related services in
§ 300.154(b)(1), the LEA or State agency
responsible for developing the child’s
IEP must provide or pay for these
services to the child in a timely manner.
Disagreements about the interagency
agreements should not stop or delay the
receipt of the services described in the
child’s IEP. Section 300.103(c) also
addresses timely services and clarifies
that, consistent with § 300.323(c), the
State must ensure there is no delay in
implementing a child’s IEP, including
any situation in which the source for
providing or paying for the special
education or related services to a child
is being determined. Section
612(a)(12)(A)(i) of the Act provides that
the financial responsibility of public
agencies (other than an educational
agency), including Medicaid and other
public insurers obligated under Federal
or State law or assigned responsibility
under State policy, must precede
financial responsibility of the LEA.
Changes:
None.
Children With Disabilities Who Are
Covered by Public Benefits or Insurance
(§ 300.154(d))
Comment:
One commenter expressed
concern regarding the use of a parent’s
public benefits or insurance to pay for
services required under Part B of the Act
because co-payments and other out-of-
pocket expenses would be a hardship to
low-income families. A few commenters
stated that services paid for by public
benefits or insurance would count
against a child’s lifetime cap.
Discussion:
The commenters’
concerns are addressed in
§ 300.154(d)(2)(ii) and (d)(2)(iii). Section
300.154(d)(2)(ii) states that a public
agency may not require parents to incur
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an out-of-pocket expense, such as the
payment of a deductible or co-pay
amount, in filing a claim for services,
and may pay from funds reserved under
the Act, the cost that the parent would
otherwise be required to pay. In
addition, § 300.154(d)(2)(iii) states that a
public agency may not use a child’s
benefits under a public benefits or
insurance program if that use would
decrease lifetime coverage or any other
insured benefit; result in the family
paying for services that would otherwise
be covered by the public benefits or
insurance program and that are required
for the child outside of the time the
child is in school; increase premiums or
lead to the discontinuation of benefits or
insurance; or risk loss of eligibility for
home and community-based waivers,
based on aggregate health-related
expenditures.
Changes:
None.
Comment:
One commenter suggested
changing ‘‘parental consent’’ to
‘‘informed parental consent.’’ One
commenter recommended requiring
public agencies to obtain parental
consent each time the public agency
seeks to access the parent’s public
benefits or insurance. Some commenters
recommended removing the
requirement to obtain parental consent
to use Medicaid benefits to pay for
services required under Part B of the
Act. A few commenters opposed
requiring parental consent, stating the
process is an administrative burden.
Other commenters recommended
waiving the requirement for consent if
the agency has taken reasonable
measures to obtain such consent or the
parent’s consent was given to the State
Medicaid Agency.
Discussion:
In order for a public
agency to use the Medicaid or other
public benefits or insurance program in
which a child participates to provide or
pay for services required under the Act,
the public agency must provide the
benefits or insurance program with
information from the child’s education
records (
e.g.
, services provided, length
of the services). Information from a
child’s education records is protected
under the Family Educational Rights
and Privacy Act of 1974, 20 U.S.C.
1232(g) (FERPA), and section 617(c) of
the Act. Under FERPA and section
617(c) of the Act, a child’s education
records cannot be released to a State
Medicaid agency without parental
consent, except for a few specified
exceptions that do not include the
release of education records for
insurance billing purposes. Parental
consent requires, among other things,
that the parent be fully informed in his
or her native language, or other mode of
communication, consistent with § 300.9.
Thus, there is no need to change
‘‘parental consent’’ to ‘‘informed
consent,’’ as recommended by one
commenter. However, we believe it
would avoid confusion for the
references to ‘‘consent’’ in paragraphs
(d) and (e) in § 300.154 to be consistent.
Therefore, we will add a reference to
§ 300.9 in § 300.154(d)(2)(iv)(A) and
delete ‘‘informed’’ from § 300.154(e)(1).
We believe obtaining parental consent
each time the public agency seeks to use
a parent’s
public
insurance or other
public benefits to provide or pay for a
service is important to protect the
privacy rights of the parent and to
ensure that the parent is fully informed
of a public agency’s access to his or her
public benefits or insurance and the
services paid by the public benefits or
insurance program. Therefore, we will
revise § 300.154(d)(2)(iv) to clarify that
parental consent is required each time
the public agency seeks to use the
parent’s
public
insurance or other
public benefits. We do not believe that
it would be appropriate to include a
provision permitting waiver of parental
consent in this circumstance, even
where a public agency makes reasonable
efforts to obtain the required parental
consent. However, we agree with the
commenter that a public agency could
satisfy parental consent requirements
under FERPA and section 617(c) of the
Act if the parent provided the required
parental consent to the State Medicaid
agency, and the consent satisfied the
Part B definition of
consent
in § 300.9.
We also believe that it is important to
let parents know that their refusal to
allow access to their public benefits or
insurance does not relieve the public
agency of its responsibility to ensure
that all required services are provided at
no cost to the parents. We will,
therefore, add a new paragraph (B) to
§ 300.154(d)(2)(iv) to make this clear.
Finally, because we have referenced
the definition of
consent
in § 300.9
throughout the rest of these regulations,
rather than the consent provisions in
§ 300.622, we have removed the
reference to § 300.622.
Changes:
Section 300.154(d)(2)(iv) has
been changed to clarify that consent
must be obtained each time the public
agency seeks to access a parent’s
public
benefits or insurance and to clarify that
a parent’s refusal to allow access to the
parent’s public benefits or insurance
does not relieve the public agency of its
responsibility to ensure that all required
services are provided at no cost to the
parent. The reference to § 300.622 has
been removed and we have added
‘‘consistent with § 300.9’’ following
‘‘parental consent’’ in
§ 300.154(d)(2)(iv)(A). For consistency,
we have removed ‘‘informed’’ before
‘‘consent’’ in § 300.154(e)(1).
Comment:
One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion:
We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision
that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
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Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes:
None.
Comment:
One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion:
We do not believe further
clarification is necessary because
§ 300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, § 300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes:
None.
Comment:
One commenter stated that
LEAs and agencies that, by law, must
provide educational services should not
be allowed to use public benefits or
insurance to pay for these programs.
One commenter suggested that the Act
be more closely aligned with the
Medicaid laws. One commenter
requested requiring public benefits or
insurance agencies, when paying for
special education, to meet the standards
of the Act, and not the standards for
medical environments.
Discussion:
We disagree with the
comment that LEAs and other public
agencies responsible for providing
special education and related services to
children with disabilities should not be
allowed to use public benefits or
insurance to pay for these services.
Pursuant to section 612(a)(12) of the
Act, if a child is covered by a public
benefits or insurance program and there
is no cost to the family or the child in
using the benefits of that program to
support a service included in a child’s
IEP, the public agency is encouraged to
use the public benefits or insurance to
the extent possible. We believe public
benefits or insurance are important
resources for LEAs and other public
agencies to access, when appropriate, to
assist in meeting their obligation to
make FAPE available to all children
who are eligible to receive services.
Section 300.103 retains the
Department’s longstanding provision
that clarifies that each State may use
whatever State, local, Federal, and
private sources of support are available
in the State to meet the requirements of
part 300. Nothing in part 300 relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
pay for services provided to a child with
a disability.
The Act does not give the Department
the authority to impose the standards of
the Act on public benefits or insurance
agencies, when paying for special
education. If, however, a third party
provider, such as a public benefits or
insurance company, is unable to
provide funding for services outside a
clinical setting or other specific setting,
the public agency cannot use the third
party provider’s inability to provide
such funding as an appropriate
justification for not providing a child
with a disability FAPE in the LRE.
Nothing in part 300 alters the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulation, or policy under Title XIX or
Title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396(v) and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program. See section 612(a)(12) and (e)
of the Act.
We believe the regulations are
sufficiently aligned with the Medicaid
program and consistent with the Act
and no further clarification is necessary.
Changes:
None.
Comment:
One commenter requested
clarifying that a child cannot be denied
Medicaid-supported medical services
merely because he or she receives
educational services funded by
Medicaid.
Discussion:
We do not believe further
clarification is necessary because
§ 300.154(d)(2) is sufficiently clear that
the child’s receipt of Medicaid-funded
educational services, consistent with the
Act and these regulations, should not
deny the child receipt of other services
for which he or she may be eligible
under Medicaid or other noneducational
programs. Further, § 300.103(b) provides
that nothing in part 300 relieves an
insurer or third party from an otherwise
valid obligation to pay for services
provided to a child with a disability.
Changes:
None.
Personnel Qualifications (§ 300.156)
Comment:
One commenter requested
that § 300.156 use the term ‘‘standards’’
when referring to personnel
qualifications.
Discussion:
We are not changing
§ 300.156 because its language follows
the specific language in section
612(a)(14) of the Act. Current § 300.136
refers to ‘‘personnel standards’’ but was
removed consistent with the changes in
section 612(a)(14) of the Act.
Changes:
None.
Comment:
Some commenters
requested that the personnel
qualification requirements in § 300.156
apply to personnel who provide travel
instruction and teachers of children
with visual impairments. Other
commenters requested that personnel
who provide therapeutic recreation
services be required to meet the
personnel qualifications. Some
commenters requested that the
personnel qualifications apply to
preschool special education teachers.
Discussion:
It is not necessary to list
the specific personnel who provide
services to children with disabilities
under the Act and to whom the
requirements in § 300.156 apply because
the regulations are sufficiently clear that
all needed personnel are covered. This
includes personnel who provide travel
instruction or therapeutic recreation
services; teachers of children with
visual impairments, if such personnel
are necessary to carry out the purposes
of this part; and preschool teachers in
States where preschool teachers are
considered elementary school teachers.
Section 300.156(a), consistent with
section 612(a)(14)(A) of the Act, requires
each SEA to establish and maintain
personnel qualification requirements to
ensure that personnel necessary to carry
out the purposes of Part B of the Act and
part 300 are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Changes:
None.
Comment:
One commenter stated that
the regulations should define what it
means to be qualified to provide
services to children with disabilities
under the Act. The commenter stated
that the regulations do not include any
requirements for general education
teachers or administrators who are
involved in providing instruction and
services for children in special
education.
Discussion:
It is not necessary to
change the regulations to define what it
means to be qualified to provide
services because we believe that, aside
from the ‘‘highly qualified’’
requirements for teachers and special
education teachers in ESEA and the Act,
other personnel qualifications are
appropriately left to the States, in light
of the variability in State circumstances.
Further, § 300.156, consistent with
section 612(a)(14) of the Act, makes it
clear that it is the responsibility of the
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SEA, not the Federal government, to
establish and maintain qualifications for
personnel who provide services to
children with disabilities under the Act.
Changes:
None.
Comment:
One commenter objected to
the removal of the requirements for a
comprehensive system of personnel
development in current § 300.135. The
commenter also stated that regular
education teachers need to be trained to
work with children with disabilities to
ensure that their inclusion in the regular
classroom is successful.
Discussion:
Current § 300.135
required States to have in effect a
system of personnel development to
ensure an adequate supply of qualified
special education, regular education,
and related services personnel. Section
612(a)(14) of the Act removed this
requirement. The removal of current
§ 300.135, however, does not diminish
the responsibility of each State to
establish and maintain qualifications to
ensure that personnel (including regular
education teachers) necessary to carry
out the purposes of the Act are
appropriately and adequately prepared
and trained, consistent with § 300.156.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
include language from note 97 of the
Conf. Rpt., p. 192, which requires SEAs
to establish rigorous qualifications for
related services providers to ensure that
children with disabilities receive the
appropriate quality and quantity of care.
Several commenters requested that the
regulations require SEAs to consult with
LEAs, other State agencies, the
disability community, and professional
organizations regarding appropriate
qualifications for related services
providers and different service delivery
models (
e.g.
, consultative, supervisory,
and collaborative models).
Discussion:
We believe that States
already have sufficient incentive to
ensure that related services providers
provide services of appropriate quality
so that children with disabilities can
achieve to high standards and that
further regulation in this area is not
necessary. Section 300.156(b),
consistent with section 612(a)(14)(B) of
the Act, includes the qualifications for
related services personnel. There is
nothing in the Act that requires SEAs to
consult with LEAs, other State agencies,
or other groups and organizations to
determine the appropriate qualifications
for related services providers and the
use of different service delivery models,
and while we agree that this is good
practice and encourage SEAs to
participate in such consultation, we do
not believe that we should regulate in
this manner. States should have the
flexibility, based on each State’s unique
circumstances, to determine how best to
establish and maintain standards for all
personnel who are providers of special
education and related services.
Changes:
None.
Comment:
Numerous commenters
objected to § 300.156(b) and the removal
of the requirement in current § 300.136
for State professional requirements to be
based on the highest requirements in the
State. The commenters stated that the
removal of this requirement relaxes the
qualification standards for speech-
language pathologists and other related
services personnel. Several commenters
stated that speech-language
professionals should be required to have
advanced degrees (i.e., master’s level)
because a bachelor’s degree does not
provide adequate preparation. Many
commenters expressed concern that the
requirements in § 300.156(b) will lead to
a decline in the quality of related
services provided to children with
disabilities in public schools. Other
commenters expressed concern that
increasing the standards will exacerbate
the shortage of related services
personnel experienced by large urban
school districts.
Discussion:
We are not changing
§ 300.156 because it reflects the specific
language in section 612(a)(14) of the
Act, which was intended to provide
greater flexibility to SEAs to establish
appropriate personnel standards,
including the standards for speech-
language pathologists. As indicated in
note 97 of the Conf. Rpt., p. 192, section
612(a)(14) of the Act removes the
requirement for State professional
requirements to be based on the highest
requirements in the State because of
concerns that the previous law,
regarding the qualifications of related
services providers, established an
unreasonable standard for SEAs to meet,
and as a result, led to a shortage of
related services providers for children
with disabilities. We believe that States
can exercise the flexibility provided in
§ 300.156 and section 612(a)(14) of the
Act while ensuring appropriate services
for children with disabilities without
additional regulation.
Changes:
None.
Comment:
Many commenters
expressed concern that § 300.156(b)
establishes qualifications for related
services providers in public schools that
are less rigorous than the qualifications
for related services providers who
provide Medicaid services or services in
other public settings, such as hospitals.
The commenters stated that less
rigorous qualifications would result in a
two-tiered system in which related
services providers in public schools will
be less qualified than related services
providers in other public agencies.
Another commenter expressed concern
that the relaxation of standards for
speech-language pathologists would
cause LEAs to lose Medicaid funds that
are used to assist children with
disabilities.
Discussion:
Section 300.156,
consistent with section 612(a)(14)(B)(i)
of the Act, clarifies that it is up to each
SEA to establish qualifications for
personnel to carry out the purposes of
the Act. This will require weighing the
various policy concerns unique to each
State. The qualifications of related
services providers required under
Medicaid, or in hospitals and other
public settings, and the fact that
Medicaid will not pay for providers who
do not meet Medicaid provider
qualifications should serve as an
incentive for States that want to bill for
medical services on children’s IEPs to
impose consistent requirements for
qualifications of related services
providers.
Changes:
None.
Comment:
Some commenters stated
that related services personnel should
be considered to have met the
qualifications in § 300.156(b)(1),
regarding State-recognized certification,
licensing, registration or other
comparable requirements, if such
personnel hold an academic degree
consistent with their profession’s
national certification or State license to
practice; demonstrate satisfactory
progress toward full certification in the
schools as prescribed by the State; and
assume related services personnel
functions for a specified period not to
exceed three years.
A few commenters objected to the
requirement that related services
personnel must not have had
certification or licensure requirements
waived. One commenter stated that
emergency, temporary, or provisional
certificates are necessary for
professionals relocating from different
States or different countries, and
predicted that professionals with
emergency, temporary, or provisional
certification would work for contract
agencies to bypass the requirements.
Discussion:
We believe the provisions
in § 300.156(b) that State qualifications
for related services personnel must
include qualifications that are
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services, are
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sufficient to ensure related services
personnel are qualified to provide
appropriate services to children with
disabilities while maintaining the
States’ flexibility to establish
appropriate personnel standards for
related services personnel. We do not
believe, therefore, that it is necessary to
include additional regulation as
suggested by commenters.
Section 300.156(b)(2)(ii) tracks the
statutory requirement in section
612(a)(14)(B)(ii) of the Act, which
requires that related services personnel
not have certification or licensure
requirements waived on an emergency,
temporary, or provisional basis. We do
not believe this provision unnecessarily
hinders States from hiring professionals
from other States or countries. States, in
examining the credentials of prospective
related services personnel from other
States or countries, may find that their
existing certification or licensure
requirements are ones that these related
services personnel could readily meet.
Because each State has full authority to
define and enforce its own requirements
that personnel must meet in order to
receive full State certification or
licensure, States that employ related
services personnel from other States or
countries may, consistent with State law
and policy, consider establishing a
separate category of certification that
would differ from emergency,
temporary, or provisional certification
in that the State would not be waiving
any training or experiential
requirements.
Changes:
None.
Comment:
One commenter
recommended using nationally
recognized standards to determine the
qualifications of related services
personnel. Another commenter
recommended requiring SEAs to
consider current professional standards
in establishing appropriate
qualifications for related services
personnel. One commenter requested
adding language to the regulations to
prevent professional organizations from
establishing personnel standards for
related services personnel that override
standards set by the SEA.
Discussion:
We do not believe it is
necessary to regulate as suggested by the
commenters because these matters are
better left to States to decide as States
are in the best position to determine
appropriate professional requirements
for their States. There is nothing in the
Act that requires an SEA to determine
qualifications of related services
personnel based on nationally
recognized standards or current
professional standards. Professional
organizations may establish personnel
standards for related services personnel
that differ from the standards
established by a State, but section
612(a)(14) of the Act clarifies that the
State is responsible for establishing and
maintaining personnel qualifications to
ensure that related services personnel
have the knowledge and skills to serve
children with disabilities under the Act.
Changes:
None.
Comment:
A few commenters
requested that the regulations specify
that an SEA, and not the State, has the
authority to establish certification and
licensure qualifications of related
services personnel.
Discussion:
We do not believe it is
necessary to change the regulation
because § 300.156(b), which follows the
language in section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
Changes:
None.
Comment:
Some commenters
requested that the regulations require
related services providers who do not
meet existing State standards to be
supervised by qualified personnel.
Discussion:
Related services providers
who do not meet the personnel
qualifications established by the SEA
would not be considered qualified to
serve children with disabilities under
the Act even with supervision by
qualified personnel. Section 300.156(d),
consistent with section 612(a)(14)(D) of
the Act, clarifies that each State must
ensure that LEAs take measurable steps
to recruit, hire, train, and retain highly
qualified special education personnel to
provide special education and related
services to children with disabilities
under the Act.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
require high standards for
paraprofessionals. Several commenters
requested guidance on the appropriate
use of paraprofessionals to ensure that
paraprofessionals and assistants are not
used as a means of circumventing
certification and licensing requirements
for related services providers. A few
commenters requested language
clarifying that the elimination of the
requirement that State professional
requirements be based on the highest
requirements in the State in current
§ 300.136(b) must not be used to justify
the inappropriate use of
paraprofessionals or related services
providers. Another commenter asked
that the regulations require States to
ensure that paraprofessionals are
properly supervised at all times. One
commenter stated that the regulations
should clarify the use of State standards
for speech-language pathology
paraprofessionals.
Discussion:
We believe the provisions
in § 300.156, consistent with section
612(a)(14) of the Act, are sufficient to
ensure that paraprofessionals meet high
standards and that including additional
requirements in these regulations is
unnecessary. These provisions require
an SEA to establish and maintain
qualifications to ensure that personnel,
including paraprofessionals, are
appropriately and adequately prepared
and trained, and have the content
knowledge and skills to serve children
with disabilities; and require the
qualifications for paraprofessionals to be
consistent with any State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the
professional discipline in which those
personnel are providing special
education or related services. In
addition, the ESEA requires that
paraprofessionals working in a program
supported by title I of the ESEA,
including special education
paraprofessionals who assist in
instruction in title I-funded programs,
have at least an associate’s degree, have
completed at least two years of college,
or meet a rigorous standard of quality
and demonstrate, through a formal State
or local assessment, knowledge of, and
the ability to assist in instruction in
reading, writing, and mathematics,
reading readiness, writing readiness, or
mathematics readiness, as appropriate.
Paraprofessionals in title I schools do
not need to meet these requirements if
their role does not involve instructional
support, such as special education
paraprofessionals who solely provide
personal care services. For more
information on the ESEA requirements
for paraprofessionals, see 34 CFR 200.58
and section 1119 of the ESEA, and the
Department’s nonregulatory guidance,
Title I Paraprofessionals
(March 1,
2004), which can be found on the
Department’s Web site at:
http://
www.ed.gov/policy/elsec/guid/
paraguidance.pdf.
With regard to the commenter
requesting that the regulations clarify
the use of State standards for speech-
language paraprofessionals, we do not
believe it is appropriate to include
clarification regarding a specific
discipline in these regulations because
the Act requires States to establish and
maintain qualifications to ensure that
paraprofessionals, including speech-
language paraprofessionals, are
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appropriately and adequately prepared
and trained.
Section 300.156(b)(2)(iii), consistent
with section 612(a)(14)(B)(iii) of the Act,
does specifically allow
paraprofessionals and assistants who are
appropriately trained and supervised, in
accordance with State law, regulation,
or written policy, to assist in providing
special education and related services to
children with disabilities under the Act.
However, this provision should not be
construed to permit or encourage the
use of paraprofessionals as a
replacement for teachers or related
services providers who meet State
qualification standards. To the contrary,
using paraprofessionals and assistants
as teachers or related services providers
would be inconsistent with the State’s
duty to ensure that personnel necessary
to carry out the purposes of Part B of the
Act are appropriately and adequately
prepared and trained. Paraprofessionals
in public schools are not directly
responsible for the provision of special
education and related services to
children with disabilities; rather, these
aides provide special education and
related services to children with
disabilities only under the supervision
of special education and related services
personnel. We believe the provision in
§ 300.156(b)(2)(iii) sufficiently ensures
that paraprofessionals and assistants are
adequately supervised and further
clarification in these regulations is
unnecessary.
The Act makes clear that the use of
paraprofessionals and assistants who are
appropriately trained and supervised
must be contingent on State law,
regulation, and written policy giving
States the option of determining
whether paraprofessionals and
assistants can be used to assist in the
provision of special education and
related services under Part B of the Act,
and, if so, to what extent their use
would be permissible. However, it is
critical that States that use
paraprofessionals and assistants to assist
in providing special education and
related services to children with
disabilities do so in a manner that is
consistent with the rights of children
with disabilities to FAPE under Part B
of the Act. There is no need to provide
additional guidance on how States and
LEAs should use paraprofessionals and
assistants because States have the
flexibility to determine whether to use
them, and, if so, to determine the scope
of their responsibilities.
Changes:
None.
Comment:
One commenter
recommended different requirements for
paraprofessionals who perform routine
tasks and those who perform specific
activities to assist in the provision of
special education and related services.
Discussion:
We do not see the need to
make a change to the regulations as
suggested by the commenter because,
under § 300.156, consistent with section
612(a)(14) of the Act, SEAs have the
responsibility for establishing and
maintaining qualifications to ensure that
personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained.
Furthermore, SEAs and LEAs have the
flexibility to determine the tasks and
activities to be performed by
paraprofessionals and assistants, as long
as they are consistent with the rights of
children with disabilities to FAPE.
It should be kept in mind, however,
that the ESEA has different
requirements for paraprofessionals,
including special education
paraprofessionals, who assist in
instruction in title I schools versus
paraprofessionals in title I schools who
do not provide instructional support,
such as special education
paraprofessionals who solely provide
personal care services.
Changes:
None.
Comment:
A number of comments
were received on the qualifications for
special education teachers in
§ 300.156(c) that were similar to the
comments received regarding the
definition of
highly qualified special
education teacher
in § 300.18.
Discussion:
We combined and
responded to these comments with the
comments received in response to the
requirements in § 300.18.
Changes:
None.
Comment:
Some commenters
requested that the regulations allow
alternative routes to certification for
related services personnel and other
non-teaching personnel, just as such
routes are allowed for highly qualified
teachers.
Discussion:
As we stated earlier in
this section, section 612(a)(14)(B) of the
Act, clarifies that the SEA must
establish qualifications for related
services personnel that are consistent
with State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to related services personnel.
While the Act does not address
alternative routes to certification
programs for related services personnel
or other non-teaching personnel, there is
nothing in the Act or the regulations
that would preclude a State from
providing for alternate routes for
certification for related services
personnel or other non-teaching
personnel. It is, however, up to a State
to determine whether related services or
non-teaching personnel participating in
alternative routes to certification
programs meet personnel requirements
established by the State, consistent with
the requirements in § 300.156 and
section 612(a)(14) of the Act.
Changes:
None.
Comment:
Many commenters
recommended that § 300.156 provide
more guidance to ensure that States and
LEAs implement proven strategies for
recruiting and retaining qualified
personnel. A few commenters stated
that this is especially important for
speech-language pathologists because
large caseloads, increased paperwork,
and lack of time for planning and
collaboration have been shown to
contribute to their burn out and
attrition. Several commenters
recommended that strategies to recruit
and retain qualified personnel include
reasonable workloads, improved
working conditions, incentive programs,
salary supplements, loan forgiveness,
tuition assistance, signing bonuses,
streamlined application processes, State
and national advertising venues, school
and university partnerships, release
time for professional development,
certification reciprocity between States,
grants to LEAs for recruitment and
retention programs, alternate
professional preparation models,
caseload size standards, and classroom
size standards.
One commenter requested that the
requirements to recruit, hire, train, and
retain highly qualified personnel in
§ 300.156(d) apply to paraprofessionals
who provide special education and
related services.
Discussion:
The list of strategies
recommended by the commenters
includes many strategies that may be
effective in recruiting and retaining
highly qualified personnel; however, we
do not believe it is appropriate to
include these or other strategies in our
regulations because recruitment and
retention strategies vary depending on
the unique needs of each State and LEA.
States and LEAs are in the best position
to determine the most effective
recruitment and retention strategies for
their location.
With regard to the comment regarding
the applicability of § 300.156(d) to
paraprofessionals who provide special
education and related services,
§ 300.156(d), consistent with section
612(a)(14)(C) of the Act, applies to all
personnel who provide special
education and related services under the
Act, including paraprofessionals.
Changes:
None.
Comment:
A few commenters stated
that the rule of construction in
§ 300.156(e) is inconsistent with the rule
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of construction in the definition of
highly qualified teacher in proposed
§ 300.18(e). Some commenters requested
that the regulations clarify that the rule
of construction in § 300.156(e) is
applicable to both administrative and
judicial actions.
A few commenters requested that the
regulations specify that a parent may
file a State complaint with the State
regarding failure of their child to receive
FAPE because staff is not highly
qualified. However, several commenters
stated that parents should not be
allowed to file a State complaint under
§§ 300.151 through 300.153 regarding
staff qualifications.
Discussion:
We agree that the rules of
construction in both proposed
§ 300.156(e) and proposed § 300.18(e)
must be revised so that both rules are
the same. The changes will clarify that
a parent or student may not file a due
process complaint on behalf of a
student, or file a judicial action on
behalf of a class of students for the
failure of a particular SEA or LEA
employee to be highly qualified;
however, a parent may file a complaint
about staff qualifications with the SEA.
In addition to permitting a parent to file
a State complaint with the SEA, an
organization or an individual may also
file a complaint about staff
qualifications with the SEA, consistent
with the State complaint procedures in
§§ 300.151 through 300.153. We believe
that this is appropriate given the
wording of section 612(a)(14)(E) of the
Act ‘‘ * * * or to prevent a parent from
filing a complaint about staff
qualifications with the State educational
agency’’ and incorporated in the
regulations in § 300.156(e) and new
§ 300.18(f) (proposed § 300.18(e)). By
incorporating the wording from the
construction clause in section
612(a)(14)(E) of the Act in the
regulations as previously noted, parents
and other interested parties, may seek
compliance through the State complaint
process.
Changes:
We have added ‘‘or a class
of students’’ to § 300.156(e) to clarify
that a judicial action on behalf of a class
of students may not be filed for failure
of a particular SEA or LEA employee to
be highly qualified. We have substituted
the word, ‘‘employee’’ for ‘‘staff person’’
to be more precise and for consistency
with the rule of construction in new
§ 300.18(f) (proposed § 300.18(e)). We
have also reformatted § 300.156(e).
Comment:
Some commenters
recommended adding language to the
regulations restricting a parent’s right to
file a complaint regarding an LEA’s
failure to take measurable steps to
recruit, hire, train, and retain highly
qualified personnel.
Discussion:
We believe the regulations
do not need clarification. Section
§ 300.151(a) is sufficiently clear that an
organization or individual may file a
State complaint under §§ 300.151
through 300.153 alleging a violation of
a requirement of Part B of the Act or of
this part. This includes the requirement
that an LEA take measurable steps to
recruit, hire, train, and retain highly
qualified personnel consistent with
section 612(a)(14)(D) of the Act.
Changes:
None.
Comment:
Some commenters
requested that the regulations clarify
that, unless the State has statutory
control over district staffing, parents
cannot obtain compensatory damages or
services or a private school placement
based on the lack of highly qualified
personnel.
Discussion:
We do not agree that the
exception requested by the commenter
should be added to the regulations
because new § 300.18(f) (proposed
§ 300.18(e)), and § 300.156(e) are
sufficiently clear that nothing in part
300 shall be construed to create a right
of action on behalf of an individual
child for the failure of a particular SEA
or LEA staff person to be highly
qualified.
Changes:
None.
Comment:
One commenter
recommended that the qualifications of
all personnel should be made a matter
of public record.
Discussion:
To do as the commenter
recommends would add burden for
local school personnel and it is not
required under the Act. In contrast, title
I of the ESEA required that LEAs
receiving title I funds provide parents,
at their request, the qualifications of
their children’s classroom teachers.
There is nothing in the Act or these
regulations, however, which would
prevent an SEA or LEA from adopting
such a policy should it wish to do so.
In the absence of a congressional
requirement in the Act, such policies
are matters best left to State law.
Section 1111(h)(6) of the ESEA
requires LEAs to inform parents about
the professional qualifications of their
children’s classroom teachers. The
ESEA requires that at the beginning of
each school year, an LEA that accepts
title I, part A funding must notify
parents of students in title I schools that
they can request information regarding
their children’s classroom teachers,
including, at a minimum: (1) Whether
the teacher has met the State
requirements for licensure and
certification for the grade levels and
subject-matters in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
have been waived; (3) the college major
and any other graduate certification or
degree held by the teacher, and the field
of discipline of the certification or
degree; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide each parent timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks by, a teacher who is
not highly qualified. These
requirements apply only to special
education teachers who teach core
academic subjects in Title I schools.
Changes:
None.
Performance Goals and Indicators
(§ 300.157)
Comment:
Several commenters
recommended that the regulations retain
current § 300.137(a)(2), which requires
that States have goals for the
performance of children with
disabilities in the State that are
consistent, to the maximum extent
appropriate, with other goals and
standards for all children established by
the State. The commenters specifically
objected to the removal of the word
‘‘maximum’’ before ‘‘extent
appropriate;’’ and the removal of the
word ‘‘all’’ before ‘‘children’’ in
§ 300.157(a)(4).
Discussion:
Section 612(a)(15)(A)(iv)
of the Act specifically removed the
words in current § 300.137(a)(2) that the
comment references. Therefore, we
believe that it would be contrary to the
intent of the statutory drafters to restore
these words to the regulatory provision.
Changes:
None.
Comment:
A few commenters
requested that the regulations in
§ 300.156(b) require States to involve
parent centers in establishing the
performance goals and indicators and
measurable annual objectives for
children with disabilities.
Discussion:
We encourage broad
stakeholder involvement in the
development of performance goals,
indicators, and annual objectives for
children with disabilities, including the
involvement of parent centers. We see
no need to single out a particular group,
however. The regulations in § 300.165(a)
already require specific public
participation in the adoption of policies
and procedures needed to demonstrate
eligibility under Part B, including this
requirement.
Changes:
None.
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Participation in Assessments (Proposed
§ 300.160)
Comment:
None.
Discussion:
Participation in
assessments is the subject of a notice of
proposed rulemaking published in the
Federal Register
on December 15, 2005
(70 FR 74624) to amend the regulations
governing programs under title I of the
ESEA and Part B of the Act, regarding
additional flexibility for States to
measure the achievement of children
with disabilities based on modified
achievement standards.
Changes:
Therefore, we are removing
proposed § 300.160 and designating the
section as ‘‘Reserved.’’
Supplementation of State, Local, and
Other Federal Funds (§ 300.162)
Comment:
One commenter disagreed
with the removal of current § 300.155,
which requires that States have policies
and procedures on file with the
Secretary to ensure that funds paid to
the State under Part B of the Act are
spent in accordance with the provisions
of Part B.
Discussion:
Current § 300.155 was
removed from these regulations
consistent with section 612(a)(17) of the
Act. The removal of this requirement is
also consistent with section 612(a) of
the Act, which requires a State to
submit a plan that provides assurances
to the Secretary that the State has in
effect policies and procedures to ensure
that the State meets the requirements of
the Act rather than submitting the actual
policies and procedures to the
Department. To alleviate burden,
Congress removed the statutory
provisions which required that States
have policies and procedures on file
with the Secretary to ensure that funds
paid to the State under Part B of the Act
are spent in accordance with the
provisions of Part B. OSEP continues to
have responsibility to ensure that States
are properly implementing the Act.
Given the statutory change that
Congress made to remove the prior
requirement, we believe it would be
inappropriate to include it in these
regulations.
Changes:
None.
Maintenance of State Financial Support
(§ 300.163)
Comment:
One commenter requested
that § 300.163(c)(1), regarding waivers
for maintenance of State financial
support for exceptional or
uncontrollable circumstances, provide
examples of what would be considered
a precipitous and unforeseen decline in
the State’s financial resources.
Discussion:
We decline to limit the
Secretary’s discretion in these matters in
the abstract. The Secretary makes the
determinations regarding these waivers
on a case-by-case basis and given the
facts and circumstances at the time such
a request is made.
Changes:
None.
Public Participation (§ 300.165)
Comment:
Several commenters
objected to the removal of current
§§ 300.280 through 300.284, regarding
public participation, and recommended
that all provisions, including those
related to public hearings, comment
periods, and review of public comments
be restored.
Discussion:
We do not believe it is
necessary to retain in the regulations the
requirements in current §§ 300.280
through 300.284 because the provisions
in § 300.165 and GEPA, in 20 U.S.C.
1232d(b)(7), provide sufficient
opportunities for public participation.
We also believe retaining the
requirements in §§ 300.280 through
300.284 would place unnecessary
regulatory burden on States. Section
300.165(a) incorporates the language in
section 612(a)(19) of the Act, regarding
public participation in the adoption of
policies and procedures to implement
Part B of the Act, and requires States to
ensure that there are public hearings,
adequate notice of hearings, and an
opportunity for comment available to
the general public. Furthermore,
paragraph (b) of this section requires
States to comply with the public
participation requirements of GEPA, in
20 U.S.C. 1232d(b)(7), before submitting
a State plan under this part. In
accordance with the GEPA requirement,
the State must assure that it will provide
reasonable opportunities for
participation by local agencies,
representatives of the class of
individuals affected by programs under
this part and other interested
institutions, organizations, and
individuals in the planning for the
operation of programs under this part.
GEPA also requires that the State
publish each proposed State plan under
this part, in a manner that will ensure
circulation throughout the State, at least
60 days prior to the date on which the
State plan is submitted to the Secretary
or on which the State plan becomes
effective, whichever occurs earlier, with
an opportunity for public comments on
such plan to be accepted for at least 30
days. In addition, the State must comply
with any State-specific public
participation requirements in adopting
policies and procedures related to Part
B of the Act.
Changes:
None.
Comment:
One commenter requested
that the regulations define the meaning
of ‘‘adequate notice’’ as it is used in
§ 300.165(a) to ensure that there is
adequate notice of public hearings prior
to adopting any policies and procedures
needed to comply with Part B of the
Act.
Discussion:
We do not think it is
appropriate or necessary to include in
the regulations a definition of ‘‘adequate
notice’’ because what constitutes
‘‘adequate notice’’ will vary depending
on the unique circumstances in each
State and we believe States should have
the flexibility of determining and
applying a workable and reasonable
standard that meets their circumstances
to ensure public participation at public
hearings. We believe it would be
reasonable for the State to assume that
it provided adequate notice if, at its
public hearings, there were sufficient
representatives of the general public,
including individuals with disabilities
and parents of children with
disabilities, in attendance.
Changes:
None.
Comment:
One commenter requested
that the regulations require States to
provide notices of public hearings in
multiple languages and alternative
formats.
Discussion:
It is unnecessary to
include regulations requiring States to
provide notice of public hearings in
multiple languages and alternative
formats. Public agencies are required by
other Federal statutes to take
appropriate actions to ensure that the
public has access, in alternative formats
and languages other than English, to
public hearings. The other Federal
statutory provisions that apply in this
regard are section 504 of the
Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR
part 104 (prohibiting discrimination on
the basis of disability by recipients of
Federal financial assistance), title II of
the Americans With Disabilities Act and
its implementing regulations in 28 CFR
part 35 (prohibiting discrimination on
the basis of disability by public entities,
regardless of receipt of Federal funds),
and title VI of the Civil Rights Act of
1964 and its implementing regulations
in 34 CFR part 100 (prohibiting
discrimination on the basis of race,
color, or national origin by recipients of
Federal financial assistance).
Changes:
None.
Comment:
One commenter requested
that the regulations require States to
work with the parent centers to identify
appropriate locations and times for
public hearings.
Discussion:
There is nothing in the
Act or these regulations that would
prohibit a State from working with the
parent centers to identify appropriate
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46615
locations and times for public hearings,
but we see no need to require States to
do so. We believe that this matter
should be left to State discretion.
Changes:
None.
Rule of Construction (§ 300.166)
Comment:
One commenter requested
clarification regarding the use of Federal
funds to offset decreases in State
formula allocations to LEAs that use
attendance, enrollment, or inflation as
elements of the State funding formula
for special education.
Discussion:
Section 300.166 was
added to incorporate language in section
612(a)(20) of the Act. It specifies that
States with laws that require a specific
level of funding to their LEAs cannot
use Federal Part B funds for this
purpose.
Changes:
None.
State Advisory Panel
State Advisory Panel (§ 300.167)
Comment:
One commenter stated that
§§ 300.167 through 300.169 are
unnecessary and do not add any
requirements beyond those in section
612(a)(21) of the Act. The commenter
recommended removing these
requirements and stated that they can be
adequately implemented through
guidance provided by the Department
and not through regulation.
Discussion:
The requirements of the
State advisory panel in §§ 300.167
through 300.169 reflect the specific
language in section 612(a)(21) of the
Act. We believe it is necessary to
include these statutory requirements in
the regulations to provide parents,
public agencies, and others with
information on the requirements
applicable to State advisory panels.
Changes:
None.
Comment:
Several commenters
recommended retaining the procedures
to govern State advisory panels in
current § 300.653 and strengthening the
requirements of notice and opportunity
for public comment at State advisory
panel meetings by mandating
publication of meeting dates, agendas,
and minutes on Web sites. A few
commenters stated that eliminating the
notice requirements and the opportunity
to participate in meetings in current
§ 300.653(d) and (e) will result in fewer
low income, hearing-impaired, and
foreign-language speaking parents
attending State advisory panel meetings.
One commenter expressed concern that
the removal of current § 300.653 will
result in less panel visibility, less public
participation, and that State advisory
panels will become ‘‘rubber-stamps’’ for
positions taken by State officials. One
commenter stated that the removal of
the requirements in current § 300.653
weakens the protection of children with
disabilities, and, therefore, violates
section 607(b) of the Act.
Discussion:
The requirements in
current § 300.653 were removed to
provide greater State flexibility in the
operation of advisory panels. We do not
believe the removal of current § 300.653
will mean that the States will not ensure
that State advisory panel meetings are
announced in advance and open to the
public because States generally have
adequate sunshine laws that ensure
public access to governmental agency
meetings. We do not believe it is
necessary to require that information
regarding State advisory panel meetings
be posted on State Web sites because
sunshine laws generally contain
provisions regarding meeting notices,
agendas, and the availability of minutes
of public meetings. However, it is
important that individuals consult the
laws governing their State and locality
on the issue of open meetings and
public access.
Section 607(b)(2) of the Act provides
that the Secretary may not implement,
or publish in final form, any regulation
pursuant to the Act that procedurally or
substantively lessens the protections
provided to children with disabilities as
embodied in regulations in effect on
July 20, 1983. We do not believe
removing from these regulations the
requirements in current § 300.653
procedurally or substantively lessens
the protections provided to children
with disabilities pursuant to section
607(b)(2) of the Act because we do not
view public notice of advisory
committee meetings to be a protection
provided to children with disabilities.
Changes:
None.
Membership (§ 300.168)
Comment:
We received numerous,
specific requests to revise § 300.168 to
add to the list of individuals who can
serve as members of the State advisory
panels. Some commenters
recommended requiring State advisory
panels to include representatives from
the Parent Training and Information
Centers and Community Parent
Resource Centers funded by the
Department under sections 671 and 672
of the Act because their representation
would ensure a diverse group of people
experienced with children with
different disabilities on the panels. One
commenter expressed concern that,
without representation from these
groups, panel members would make
recommendations based solely on their
individual circumstances and
backgrounds. A few commenters
requested including school
psychologists and other student support
staff on State advisory panels. One
commenter suggested including a
representative of a residential treatment
facility as a member on State advisory
panels because children in these
facilities are a growing population and
have specialized needs. A few
commenters requested adding
representatives from centers for
independent living because these
individuals are experienced in
advocating for people with disabilities.
One commenter suggested including
State coordinators for education of
homeless children and youth. A few
commenters suggested including
disabled high school and postsecondary
students on the list because the
intended beneficiaries of the Act are
often denied a voice. A few commenters
proposed requiring each State advisory
panel to be racially, culturally,
linguistically, and socio-economically
representative of the State. One
commenter expressed concern that the
new regulations could lead States to
abruptly replace current panel members
causing discontinuity and decreasing
expertise, and recommended phasing in
the new requirements and allowing
panel members to complete their terms
of office.
Discussion:
The membership of State
advisory panels is described in section
612(a)(21)(B) and (C) of the Act and the
Department does not agree that there is
a need to require additional
representatives or to change the panel
composition. However, nothing in the
Act or these regulations would prevent
the appointment of additional
representatives, if a State elected to add
these individuals. With respect to the
request to include State coordinators for
education of homeless children on the
panels, State and local officials who
carry out activities under the McKinney-
Vento Homeless Assistance Act are
already included in the list of
individuals identified to serve on the
State advisory panels in § 300.168(a)(5).
Section 612(a)(21)(B) of the Act, as
reflected in § 300.168, requires the State
advisory panel to be representative of
the State population and be composed
of individuals involved in, or concerned
with, the education of children with
disabilities. Also, the Act and these
regulations require a majority of the
panel members to be individuals with
disabilities or parents of children with
disabilities (ages birth through 26). We
also do not believe there is a need to
phase in the new requirements, as those
members that do not need to change
should provide sufficient continuity of
panel functions.
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Changes:
None.
Duties (§ 300.169)
Comment:
A few commenters
recommended requiring States to submit
any rules or regulations related to
children with disabilities to the State
advisory panel for consideration before
the rules are finalized. One commenter
requested requiring panel members to
take positions on State proposed rules
and regulations regarding the education
of children with disabilities and offer
their views to the appropriate State
agencies.
Discussion:
Section 612(a)(21)(D) of
the Act clearly specifies the duties of
the State advisory panel and these
duties are accurately reflected in
§ 300.169. Paragraph (b) of this section
clarifies that the advisory panel must
comment publicly on any State
proposed rules or regulations regarding
the education of children with
disabilities. We believe § 300.169(b) is
sufficient to ensure that the advisory
panel has the opportunity to consider
any State rules or regulations before
they are final and, accordingly, further
regulatory language is unnecessary.
Further, we believe it is inappropriate to
require that panel members ‘‘take
positions’’ on proposed rules and
regulations because to do so would be
overly controlling of the advisory panel
and may impact the panel’s ability to
effectively meet its statutory
responsibility of providing public
comment on State proposed rules and
regulations.
Changes:
None.
Comment:
Many commenters
suggested retaining current § 300.652(b),
which requires State advisory panels to
provide advice for educating students
with disabilities in adult correctional
facilities. A few of these commenters
noted that students in adult correctional
facilities are members of one of the most
vulnerable populations.
Discussion:
Given the breadth of the
State advisory panel’s statutory
responsibilities we removed from the
regulations all nonstatutory mandates
on the State advisory panel, including
the provision in current § 300.652(b),
regarding advising on the education of
eligible students with disabilities who
have been convicted as adults and have
been incarcerated in adult prisons. We
believe placing such nonstatutory
mandates on the State advisory panel
may hinder the advisory panel’s ability
to effectively provide policy guidance
with respect to special education and
related services for children with
disabilities in the State. There is
nothing, however, that would prevent a
State from assigning other
responsibilities to its State advisory
panel, as long as those other duties do
not prevent the advisory panel from
carrying out its responsibilities under
the Act.
Changes:
None.
Access to Instructional Materials
(§ 300.172)
Comment:
One commenter
recommended including the National
Instructional Materials Accessibility
Standard (NIMAS) in these regulations.
Discussion:
We agree with the
commenter. The final NIMAS was
published in the
Federal Register
on
July 19, 2006 (71 FR 41084) and will be
included as
Appendix C to Part 300—
National Instructional Materials
Accessibility Standard
of these
regulations. We will add language in
§ 300.172(a) to refer to this location and
to reference the publication date of the
NIMAS in the
Federal Register
.
Changes:
The final NIMAS has been
added as appendix C to part 300. We
have added language in § 300.172(a) to
refer to the location of the NIMAS in
these regulations and the publication
date of the NIMAS in the
Federal
Register
.
Comment:
Several commenters
expressed concern that the language
requiring States to adopt the NIMAS ‘‘in
a timely manner’’ is ambiguous and
could lead to delays in providing
instructional materials to children with
disabilities, inconsistencies across
States, and increased litigation. Several
commenters requested that the
regulations specify a timeline for States
to adopt the NIMAS. Some commenters
recommended requiring all States to
adopt the NIMAS by December 3, 2006.
However, one commenter stated that
States should not be given a deadline to
adopt the NIMAS.
A number of commenters requested
that the regulations define the meaning
of ‘‘adopt’’ in § 300.172(a) and specify
what States must do to adopt the
NIMAS. Several commenters
recommended defining ‘‘adopt’’ to mean
that the State, through regulatory or
legislative procedures, designates
NIMAS as the only required source
format for publishers to convert print
instructional materials into specialized
formats for children with disabilities.
One commenter urged the Department
to define ‘‘adopt’’ to mean that a State
must accept a NIMAS file as satisfying
the publisher’s legal obligation to
provide accessible instructional
materials. Other commenters
recommended that the regulations
clearly state that adoption of the NIMAS
means that SEAs and LEAs must accept
and use electronic copies of
instructional materials in the NIMAS
format that are provided by the
publishers.
Discussion:
Section 300.172(a),
consistent with section 612(a)(23)(A) of
the Act, requires States to adopt the
NIMAS in a timely manner after the
publication of the NIMAS in the
Federal
Register
for the purpose of providing
instructional materials to blind or other
persons with print disabilities. As noted
in the discussion to the previous
comment, the NIMAS is included as
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard
and was published in the
Federal Register
on July 19, 2006 (71 FR
41084). The Department believes that
States should make every effort to adopt
the NIMAS in a timely manner
following the publication of the NIMAS
in the
Federal Register
, recognizing that
the timelines and requirements for
adopting new rules, policies, or
procedures vary from State to State.
States choosing to coordinate with the
NIMAC must, consistent with section
612(a)(23)(C) of the Act and § 300.172(c)
of these regulations, not later than
December 3, 2006, as part of any print
instructional materials adoption
process, procurement contract, or other
practice or instrument used for purchase
of print instructional materials, enter
into a written contract with the
publisher of the print instructional
materials to: (1) Require the publisher to
prepare and, on or before delivery of the
print instructional materials, provide
the NIMAC with electronic files
containing the content of the print
instructional materials using the
NIMAS; or (2) purchase instructional
materials from the publisher that are
produced in, or may be rendered in,
specialized formats. Clearly, we would
expect that these States would have
adopted the NIMAS by December 3,
2006. We decline to require a specific
adoption date for all States, however,
given the lack of specificity in the Act.
We also decline to include a definition
of ‘‘adopt’’ in these regulations because
requirements for adopting new rules
and policies may vary from State to
State. The Department’s view is that it
is inherent in the adoption requirement
that, at a minimum, upon ‘‘adoption’’ of
the NIMAS, a State must accept and use
electronic copies of instructional
materials in the NIMAS format for the
purpose of providing instructional
materials to blind or other persons with
print disabilities. Under § 300.172(a),
adopting the NIMAS is a State
responsibility and does not impose any
legal obligations on publishers of
instructional materials.
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Changes:
We have made technical
changes in § 300.172(c). For clarity, we
have replaced the phrase ‘‘not later
than’’ with ‘‘as of.’’ We have removed
the phrase ‘‘two years after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004’’ because it is unnecessary.
Comment:
One commenter
recommended requiring States to
comply with the requirements for public
hearings and public comment in section
612(a)(19) of the Act before adopting
policies and procedures to implement
the requirements in § 300.172 related to
access to instructional materials. The
commenter stated that all interested
members of the public, including
parents of children with disabilities, are
entitled to participate in designing the
plan for implementing these policies
and procedures.
Discussion:
Section 300.165(a),
consistent with section 612(a)(19) of the
Act, requires States to hold public
hearings and receive public comment
before implementing any policies and
procedures needed to comply with Part
B of the Act. These public hearing and
public comment requirements apply to
the policies and procedures needed to
implement the requirements in
§ 300.172.
Changes:
None.
Comment:
One commenter requested
clarification on whether the NIMAS is
limited to print materials on the
medium of paper or also includes the
iconic representation of letters and
words.
Discussion:
The NIMAS is the
standard established by the Secretary to
be used in the preparation of electronic
files of print instructional materials so
they can be more easily converted to
accessible formats, such as Braille. In
addition to print materials, the NIMAS
provides standards for textbooks and
related core materials where icons
replace text. Materials with icons will
be available if they are in printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act.
Changes:
None.
Comment:
A few commenters
recommended clarifying that providing
materials in accessible formats includes
changes in the depth, breadth, and
complexity of materials. Some
commenters stated that § 300.172
should include language regarding
universal design of instructional
materials.
Discussion:
Section 300.172 is
consistent with section 612(a)(23) of the
Act and focuses specifically on
providing access to print instructional
materials using the NIMAS. The NIMAS
is designed to improve the quality and
consistency of print instructional
materials converted into accessible
formats for persons who are blind and
persons with print disabilities, not to
alter the content (e.g., the depth,
breadth, or complexity) of the print
instructional materials. While the
NIMAS is designed to make print
instructional materials more readily and
easily accessible to persons who are
blind and persons with print
disabilities, it is not intended to provide
materials that are universally designed.
Therefore, while the Department
acknowledges the importance of
universal design, it would be
inappropriate to reference universal
design in this section.
The NIMAS Development Center has
been charged with examining the need
for future changes in the NIMAS. This
Center, funded by the Department, is
looking at a variety of issues, including
the extent to which universal design
features should be incorporated into
future iterations of the NIMAS.
Information about the NIMAS
Development Center can be found at:
http://nimas.cast.org/.
Changes:
None.
Comment:
One commenter
recommended that books on tape be
made available in the same manner as
print materials.
Discussion:
The conversion of text to
speech for digital talking books is one of
the accessible formats that can be
generated from a NIMAS file. The
NIMAS makes it possible for such
talking books to be generated more
efficiently so that children who need
them will receive them more quickly
than in the past. Such audio formats
will be made available for printed
textbooks and related printed core
materials that are written and published
primarily for use in elementary school
and secondary school instruction and
are required by an SEA or LEA for use
by children in the classroom, consistent
with section 674(e)(3)(C) of the Act. The
NIMAS does not pertain to books on
tape that are produced in sound studios.
Changes:
None.
Comment:
Many commenters
requested that the regulations specify
that providing instructional materials to
children with disabilities in a timely
manner means providing these materials
at the same time they are provided to
children without disabilities. One
commenter recommended defining ‘‘in a
timely manner’’ as the start of the school
year or, for children who transfer
schools after the start of the school year,
within 30 days of the start of the school
year, regardless of whether a State
chooses to coordinate with the NIMAC.
Discussion:
The Department agrees
that States should make every effort to
provide children with disabilities
accessible instructional materials at the
same time as other children receive
their instructional materials. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 19, which states,
‘‘The committee feels strongly that
instructional materials should be
provided to blind and print disabled
students at the same time their fellow
students without print disabilities are
receiving the same materials.’’ This
position also is consistent with H. Rpt.
No. 108–77, pp. 97–98.
However, the Department recognizes
that this may not be possible in all
circumstances, for example, when a
child with a disability transfers to a new
school in the middle of a school year.
Additionally, there could be
circumstances beyond the control of the
public agency that could prevent
children with disabilities who need
instructional materials in accessible
formats from receiving them at the same
time as instructional materials are
provided to other children, such as if
the public agency’s contractor is unable
to produce the instructional materials in
an accessible format because of some
unforeseen circumstance. In situations
such as these, it is understandable that
the accessible format materials may not
be immediately available. Therefore, we
will add a provision to the regulations
to specify that in order to meet their
obligation to provide accessible format
instructional materials in a timely way,
public agencies must take all reasonable
steps to make those instructional
materials available at the same time as
instructional materials are provided to
other children. Reasonable steps, for
example, would include requiring
publishers or other contractors to
provide instructional materials in
accessible formats by the beginning of
the school year for children whom the
public agency has reason to believe will
be attending its schools. Reasonable
steps also might include having a means
of acquiring instructional materials in
accessible formats as quickly as possible
for children who might transfer into the
public agency in the middle of the year.
Reasonable steps would not include
withholding instructional materials
from other children until instructional
materials in accessible formats are
available. To clarify that the obligation
to make instructional materials available
in a timely manner applies even to
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States that coordinate with the NIMAC,
we are adding a new provision to that
effect. We also are clarifying that the
definitions in § 300.172(e) apply to each
State and LEA, whether or not the State
or LEA chooses to coordinate with the
NIMAC.
Changes:
We have amended
paragraph (b) in § 300.172 by adding a
new paragraph (b)(4) requiring the SEA
to ensure that all public agencies take
all reasonable steps to provide
instructional materials in accessible
formats to children with disabilities
who need those instructional materials
at the same time as other children
receive instructional materials. We have
reorganized paragraph (c) and added a
new paragraph (c)(2) requiring States
that coordinate with the NIMAC to
provide accessible materials in a timely
manner. We have also amended
paragraph (e) by adding a new
paragraph (e)(2) to clarify that the
definitions in § 300.172(e)(1) apply to
each SEA and LEA whether or not the
SEA or LEA chooses to coordinate with
the NIMAC. We have made technical
changes to § 300.172(e) and renumbered
§ 300.172(e) to be consistent with this
change.
Comment:
Many commenters
expressed concern that the regulations
fail to ensure timely access to
instructional materials for children with
other types of disabilities besides print
disabilities. One commenter
recommended clarifying that children
do not have to be blind or have print
disabilities to fit into the description of
children who need accessible materials.
However, another commenter stated that
§ 300.172(b)(3), which require SEAs to
be responsible for providing accessible
materials for children for whom
assistance is not available from the
NIMAC, should be removed because the
Act does not include these
requirements.
A few commenters requested adding a
regulation to clarify that the
requirements in § 300.172 do not apply
if an SEA is not responsible for
purchasing textbooks. The commenters
stated that if an SEA cannot purchase
textbooks, it has no legal relationship
with textbook publishers and cannot
comply with the requirements in
§ 300.172.
Discussion:
Timely access to
appropriate and accessible instructional
materials is an inherent component of a
public agency’s obligation under the Act
to ensure that FAPE is available for
children with disabilities and that
children with disabilities participate in
the general curriculum as specified in
their IEPs. Section 300.172(b)(3)
provides that nothing relieves an SEA of
its responsibility to ensure that children
with disabilities who need instructional
materials in accessible formats, but who
do not fall within the category of
children who are eligible to receive
materials produced from NIMAS files
obtained through the NIMAC, receive
those instructional materials in a timely
manner. Therefore, we do not believe
that any further clarification is
necessary. Even SEAs that are not
directly responsible for purchasing
textbooks have this responsibility. In
short, we believe these regulations are
necessary to fully implement the Act.
Changes:
None.
Comment:
One commenter stated that
all children with disabilities should
receive assistance from the NIMAC.
Discussion:
We disagree with the
commenter. Section 674(e) of the Act
limits the authority of the NIMAC to
provide assistance to SEAs and LEAs in
acquiring instructional materials for
children who are blind, have visual
disabilities, or are unable to read or use
standard print materials because of
physical limitations, and children who
have reading disabilities that result from
organic dysfunction, as provided for in
36 CFR 701.6. Clearly, SEAs and LEAs
that choose to use the services of the
NIMAC will be able to assist blind
persons or other persons with print
disabilities who need accessible
instructional materials through this
mechanism. However, SEAs and LEAs
still have an obligation to provide
accessible instructional materials in a
timely manner to other children with
disabilities who also may need
accessible materials even though their
SEA or LEA may not receive assistance
from the NIMAC, as provided in
§§ 300.172(b)(3) and 300.210(b).
Changes:
None.
Rights and Responsibilities of SEAs
(§ 300.172(b))
Comment:
Many commenters
expressed concern about allowing States
to choose not to coordinate with the
NIMAC. A few commenters stated that
coordination with the NIMAC should be
mandatory for all States. One
commenter recommended that the
Department strongly encourage States to
coordinate with the NIMAC, because it
may be difficult for States to provide the
assurances required in § 300.172(b)(2) if
they choose not to coordinate with the
NIMAC. A few commenters
recommended that States that cannot
demonstrate a past history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC.
Discussion:
It would be inconsistent
with section 612(a)(23)(B) of the Act to
make coordination with the NIMAC
mandatory for all States or to require
certain States to coordinate with the
NIMAC (e.g., States that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner), as suggested by the
commenters. Section 612(a)(23)(B) of
the Act provides that nothing in the Act
shall be construed to require any SEA to
coordinate with the NIMAC.
Changes:
None.
Comment:
Several commenters
requested that the regulations clearly
define the process for a State to choose
not to coordinate with the NIMAC. A
few commenters requested additional
details on what assurances States must
provide if they choose not to coordinate
with the NIMAC. Other commenters
requested that State assurances provide
the public with information to evaluate
the capacity of the State to provide
materials to children who are blind or
have print disabilities. Some
commenters stated that the assurances
provided by States that choose not to
coordinate with the NIMAC should be
done annually and in writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which States choose not to coordinate
with the NIMAC. A few commenters
requested that the Department publish
the assurances made by SEAs that
choose not to coordinate with the
NIMAC. Some commenters stated that
SEAs that choose to coordinate with the
NIMAC should be required to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC.
Discussion:
Section 300.172(b)(2),
consistent with section 612(a)(23)(B) of
the Act, requires SEAs that choose not
to coordinate with the NIMAC to
provide an assurance to the Secretary
that the agency will provide
instructional materials to blind persons
and other persons with print disabilities
in a timely manner. As part of a State’s
application for Part B funds, § 300.100
and section 612(a) of the Act require
States to provide assurances to the
Secretary that the State has in effect
policies and procedures to ensure that
the State meets the conditions of
eligibility. (The Part B Annual State
Application for 2006, OMB No. 1820–
0030, can be found at:
http://
www.ed.gov/fund/grant/apply/osep/
2006apps.html
.)
Therefore, the Department will
compile a list of the States that choose
to coordinate with the NIMAC and those
that do not, and will make this list
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available on OSEP’s monitoring Web
site at:
http://www.ed.gov/policy/
speced/guid/idea/monitor/index.html.
Section 612(a)(23)(B) of the Act does
not mandate that States coordinate with
the NIMAC or place conditions on
which States can choose to coordinate
with the NIMAC. Therefore, it is
unnecessary to require a State’s
assurance to include information on its
capacity to provide instructional
materials to children who are blind or
have print disabilities, as commenters
recommended.
We do not believe it is appropriate to
regulate to require States to provide
information to the Department on the
LEAs in the State that elect not to
coordinate with the NIMAC. Under
§ 300.149 and section 612(a)(11) of the
Act, States are responsible for ensuring
that LEAs in the State meet the
requirements of the Act, including
providing instructional materials to
blind persons or other persons with
print disabilities in a timely manner. As
stated in § 300.210 and section
613(a)(6)(B) of the Act, if an LEA
chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Changes:
None.
Comment:
Some commenters
proposed that the regulations require
States that choose not to coordinate
with the NIMAC to annually report to
the public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the State has
taken to ensure that materials will be
provided at the same time as materials
are provided to children without
disabilities. One commenter stated that,
if a State chooses not to coordinate with
the NIMAC, the State should be
required to submit data to the
Department on the number of children
with print disabilities served by the
State and when those children received
the accessible version of print
instructional materials compared with
when other children received their
materials. Other commenters
recommended that States choosing not
to coordinate with the NIMAC should
be required to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion:
It would be unfair to
impose additional data collection and
reporting requirements, such as those
requested by the commenters, only on
those States that choose not to
coordinate with the NIMAC. All States,
regardless of whether they choose to
coordinate with the NIMAC, must
ensure that children with disabilities
who need instructional materials in
accessible formats receive instructional
materials in a timely manner, consistent
with § 300.172(b)(3).
Furthermore, even States that choose
to coordinate with the NIMAC will need
to take steps to ensure that the
instructional materials for children
eligible to receive print instructional
materials derived from NIMAS files are
received in a timely manner. As
provided in section 674(e)(3)(A) of the
Act, the NIMAC is a distribution center
for NIMAS files obtained from
publishers, SEAs, and LEAs. Section
612(a)(23) of the Act requires SEAs that
choose to coordinate with the NIMAC to
enter into written contracts with
publishers to require the publishers to
provide electronic files using the
NIMAS to the NIMAC on, or before,
delivery of the print instructional
materials to the SEA.
The NIMAC is not responsible for
converting NIMAS files to the accessible
formats needed by the children eligible
to receive print instructional materials
derived from NIMAS files. All States
will need to arrange to have the NIMAS
files converted to student-ready versions
of instructional materials in the
accessible formats needed by these
children.
Changes:
None.
Comment:
One commenter requested
that the Department provide
information and training to States and
LEAs on the NIMAC so that they can
make an informed choice regarding
whether to coordinate with the NIMAC.
Another commenter recommended that
the Department provide written
guidance for States and LEAs regarding
the NIMAS and the NIMAC.
Discussion:
The Department
recognizes the need to provide
information to SEAs and LEAs regarding
the NIMAS and the NIMAC and will
provide technical assistance through the
NIMAS Technical Assistance Center
after the Department has approved the
NIMAC procedures.
Changes:
None.
Preparation and Delivery of Files
(§ 300.172(c))
Comment:
One commenter
recommended that the regulations
require instructional materials provided
to children with disabilities to be
complete and accurate. Another
commenter requested requiring
publishers to provide copies of the
original books to the NIMAC along with
the electronic files, because a copy of
the original book is necessary for
alignment of page numbers and
descriptions of pictures.
Discussion:
We understand and
appreciate the importance of having a
copy of the original material to ensure
accuracy of the files. However, the
NIMAC is not responsible for ensuring
the accuracy of materials, aligning page
numbers, or describing pictures. Rather,
the NIMAC is a distribution center for
NIMAS files obtained from publishers,
SEAs, and LEAs. Consistent with
section 674(e)(3)(A) of the Act, the
duties of the NIMAC are to receive and
maintain a catalog of print instructional
materials prepared in the NIMAS format
and made available to the NIMAC by the
textbook publishing industry, SEAs, and
LEAs. Accessible, student-ready
versions of instructional materials are
created from NIMAS source files by
national third-party conversion
organizations; regional or State
conversion sources; desktop
applications created by software
developers; or curriculum publishers
that produce accessible alternate format
versions for direct sale to SEAs and
LEAs. The Act does not authorize the
Department to impose obligations on
such entities to provide accurate
materials. States and LEAs that contract
with such entities, however, may wish
to require the accuracy of such
materials, including the alignment of
page numbers and descriptions of
pictures, as part of their agreements.
Changes:
None.
Comment:
One commenter suggested
that the regulations permit an SEA to
receive assistance from the NIMAC,
even if the SEA is not formally
coordinating with the NIMAC.
Discussion:
The Act does not require
the NIMAC to provide assistance to
SEAs if the SEA has chosen not to
coordinate with the NIMAC. However,
there is nothing in the Act that would
prevent the NIMAC from doing so. As
stated in section 674(e)(2)(B) of the Act,
the NIMAC must provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary and
secondary schools, in accordance with
such terms and procedures as the
NIMAC may prescribe. Providing this
access could include assisting an SEA,
even if the SEA has chosen not to
coordinate with the NIMAC.
Changes:
None.
Comment:
One commenter
recommended that the regulations
include an accountability mechanism so
that parents and schools know whether
the State or LEA is responsible for the
timely delivery of instructional
materials.
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Discussion:
Whether instructional
materials are purchased by the State or
LEA is a State matter. The Act does not
authorize the Department to impose
obligations on States or LEAs with
respect to the process for timely
delivery of instructional materials.
Changes:
None.
Comment:
One commenter
emphasized the need to track the
progress and monitor the advancement
of accessible materials on a national and
regional level. Another commenter
stated that there is a need to establish
SEA and LEA baseline data regarding
the timeliness, quality, and quantity of
alternate formats in schools. One
commenter stated that States should be
required to publicize information
regarding whether the State is meeting
its responsibilities to provide accessible
materials to persons who are blind or
other persons with print disabilities in
a timely manner.
Discussion:
We believe that it would
be overly burdensome to require States
to collect and report data on the
timeliness, quality, and quantity of
alternate formats provided to children
with disabilities in order to track the
availability of accessible materials for
children with disabilities on a regional
or national level. Under the State
complaint procedures, States are
responsible for resolving complaints
alleging violations of requirements
under the Act, including this one.
Changes:
None.
Comment:
One commenter requested
information on the scope of the
NIMAC’s responsibilities.
Discussion:
The duties of the NIMAC
are specified in section 674(e)(2) of the
Act and include: (a) receiving and
maintaining a catalog of print
instructional materials prepared in the
NIMAS format; (b) providing access to
print instructional materials in
accessible media, free of charge to blind
or other persons with print disabilities
in elementary schools and secondary
schools; and (c) developing, adopting,
and publishing procedures to protect
against copyright infringement, with
respect to print instructional materials
provided under sections 612(a)(23) and
613(a)(6) of the Act.
Section 674(c) of the Act provides that
NIMAC’s duties apply to print
instructional materials published after
July 19, 2006, the date on which the
final rule establishing the NIMAS is
published in the
Federal Register
(71
FR 41084). The Department interprets
‘‘publish’’ to have the plain meaning of
the word, which is to issue for sale or
distribution to the public. The NIMAC’s
duties, therefore, apply to print
instructional materials made available
to the public for sale after the NIMAS
is published in the
Federal Register
.
However, this does not relieve SEAs and
LEAs of their responsibility to provide
accessible instructional materials in a
timely manner, regardless of when the
instructional materials were
‘‘published.’’
Changes:
None.
Comment:
A few commenters
expressed concern that the regulations
do not specify the structure and
operation of the NIMAC. One
commenter requested that the
Department provide more information
about the operation of the NIMAC.
Another commenter recommended that
the NIMAC’s management board
include representatives of authorized
entities. One commenter requested
information on the legal protections that
the Department will provide to the
NIMAC. Another commenter requested
specific information on the process and
timing of the funding of the NIMAC.
One commenter recommended a
timeline with a series of activities (e.g.,
establishment of a cooperative
agreement, cost projections) to ensure
that the NIMAC is operational. Another
commenter recommended that the
Department develop a process to ensure
that the files included in the NIMAC are
NIMAS compliant, complete, and of the
highest quality. One commenter
expressed concern about how NIMAS
files will be bundled and delivered to
the NIMAC.
Discussion:
We do not believe that
regulations on the structure, operation,
or budget of the NIMAC are necessary.
Section 674(e) of the Act establishes the
NIMAC through the American Printing
House for the Blind (APH) and allows
the NIMAC to prescribe terms and
procedures to perform its duties under
the Act. The Department’s Office of
Special Education Programs (OSEP) will
oversee the administration of the
NIMAC through a cooperative
agreement with the APH and will work
with the NIMAC to establish its
structure, operating procedures, and
budget. The NIMAC procedures will be
available on the NIMAC Web site at:
http://www.nimac.us
.
Changes:
None.
Comment:
One commenter stated that
the duties of the NIMAC to receive and
maintain electronic files of instructional
materials provided by publishers should
not be misconstrued as imposing a duty
on the NIMAC itself to use the NIMAS
files to reproduce the instructional
materials in accessible formats for
children with print disabilities.
Discussion:
The Act clarifies that the
NIMAC is not responsible for producing
instructional materials in accessible
formats. As stated in section 674(e)(2) of
the Act, the NIMAC receives and
maintains a catalog of print
instructional materials prepared in the
NIMAS, and made available to the
NIMAC by the textbook publishing
industry, SEAs, and LEAs.
Changes:
None.
Comment:
One commenter expressed
concern about clear guidance regarding
electronic rights. Another commenter
recommended that the regulations
require the NIMAC to develop a user
agreement that any entity seeking access
to a NIMAS file must sign. The
commenters stated that the agreement
should detail the entities that are
eligible under Federal copyright law
and the Act to access the NIMAS files,
the alternate formats that may be
produced, and any other restrictions on
the dissemination and use of NIMAS
files.
One commenter stated that the
regulations should require that the
authorized entities have full, complete,
and immediate access to deposited files
and clarify that the authorized entities
are responsible for reproducing the
instructional materials in an accessible
format and therefore, the files housed by
the NIMAC should be free of charge.
Another commenter stated that the
Department should ensure that NIMAS
books are available to all authorized
entities and the appropriate State
organizations within five days after the
books are deposited in the NIMAC.
Discussion:
We do not believe it is
appropriate or necessary to regulate on
the authorized entities eligible to have
access to the NIMAS files. Under
section 674(e)(2)(C) of the Act, the
NIMAC is required to develop, adopt,
and publish procedures to protect
against copyright infringement, with
respect to the print instructional
materials produced using the NIMAS
and provided by SEAs and LEAs to
blind persons or other persons with
print disabilities. Such procedures will
address, for example, information
regarding the authorized entities that are
eligible to have access to NIMAS files,
responsibilities of such authorized
entities, and how and when access will
be provided. The NIMAC procedures
will be available on the NIMAC Web
site at:
http://www.nimac.us
.
Changes:
None.
Comment:
One commenter suggested
several changes in the process to make
Braille copies of instructional materials
including constructing directions for
choosing answers in universal terms,
such as ‘‘write the correct response,’’
rather than ‘‘circle’’ or ‘‘underline;’’
describing, in writing, visuals that
cannot be easily interpreted; using hard
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paper for Braille and raised drawings,
rather than thermoform; using hard-
bound bindings for text, rather than
plastic spiral binders; using audio
formats as supplemental materials; and
using simple graphics with easy access
to map keys on the same page.
Discussion:
Procedures for Braille
transcribers and for conversion entities
are the responsibility of SEAs and LEAs
and, as such, are beyond the scope of
these regulations.
Changes:
None.
Comment:
One commenter
recommended that software companies
routinely create desktop publishing
programs that contain text to speech
capabilities.
Discussion:
It is beyond the
Department’s authority to impose
requirements on software companies.
Changes:
None.
Comment:
One commenter
recommended that a NIMAS style guide
be developed that is textbook specific.
Discussion:
The NIMAS Technical
Assistance Center will develop a best
practices Web page with exemplars and
a style guide. This technical assistance
resource will be available at:
http://
nimas.cast.org
.
Changes:
None.
Assistive Technology (§ 300.172(d))
Comment:
A few commenters
requested that the regulations clarify
that the ‘‘assistive technology
programs,’’ referred to in § 300.172(d),
are the programs established in each
State pursuant to the Assistive
Technology Act of 1998, as amended.
Discussion:
Section 300.172(d) and
section 612(a)(23)(D) of the Act provide
that in carrying out the requirements in
§ 300.172, the SEA, to the maximum
extent possible, must work
collaboratively with the State agency
responsible for assistive technology
programs. Section 612(a)(23)(D) of the
Act does not refer to any particular
assistive technology program. Therefore,
we interpret broadly the phrase ‘‘State
agency responsible for assistive
technology programs’’ to mean the
agency determined by the State to be
responsible for assistive technology
programs, which may include programs
established under section 4 of the
Assistive Technology Act of 1998, as
amended.
Changes:
None.
Definitions (§ 300.172(e))
Comment:
Several commenters
requested that § 300.172(e) include the
full definition of terms, rather than the
citations to the definitions in the laws.
A number of commenters requested that
the regulations include a definition of
‘‘persons with print disabilities.’’
Discussion:
We have published the
NIMAS as
Appendix C to Part 300—
National Instructional Materials
Accessibility Standard
of these
regulations, which will include the
definition of NIMAS from section
674(e)(3)(B) of the Act.
The definition of the NIMAC in new
§ 300.172(e)(1)(ii) (proposed
§ 300.172(e)(2)) and section
612(a)(23)(E)(i) of the Act refers to the
center established pursuant to section
674(e) of the Act. Paragraph (e)(1) in
section 674 of the Act establishes the
center at the APH and paragraph (e)(2)
outlines the duties of the NIMAC. We
do not believe it is necessary to include
this information in the regulations in
order to implement the requirements of
the Act, but will include it here for the
convenience of the readers.
National Instructional Materials
Access Center or NIMAC
means the
center established pursuant to section
674(e) of the Act. Section 674(e) of the
Act provides, in part, that—
(1)
In general
. The Secretary shall
establish and support, through the
American Printing House for the Blind,
a center to be known as the ‘‘National
Instructional Materials Access Center’’
not later than one year after the date of
enactment of the Individuals with
Disabilities Education Improvement Act
of 2004.
(2)
Duties
. The duties of the NIMAC
are the following:
(A) To receive and maintain a catalog
of print instructional materials prepared
in the NIMAS, as established by the
Secretary, made available to such center
by the textbook publishing industry,
State educational agencies, and local
educational agencies.
(B) To provide access to print
instructional materials, including
textbooks, in accessible media, free of
charge, to blind or other persons with
print disabilities in elementary schools
and secondary schools, in accordance
with such terms and procedures as the
NIMAC may prescribe.
(C) To develop, adopt and publish
procedures to protect against copyright
infringement, with respect to the print
instructional materials provided under
sections 612(a)(23) and 613(a)(6).
The definitions of
blind persons or
other persons with print disabilities
and
specialized format
both refer to statutes
other than the Act. For the reasons set
forth earlier in this notice, we are
referencing the definitions of terms in
§ 300.172(e), rather than adding them to
these regulations. However, we will
include them here for the convenience
of the readers.
The Library of Congress regulations
(36 CFR 701.6(b)(1)) related to the Act
to Provide Books for the Adult Blind
(approved March 3, 1931, 2 U.S.C. 135a)
provide that
blind persons or other
persons with print disabilities
include:
(i) Blind persons whose visual acuity,
as determined by competent authority,
is 20/200 or less in the better eye with
correcting glasses, or whose widest
diameter if visual field subtends an
angular distance no greater than 20
degrees.
(ii) Persons whose visual disability,
with correction and regardless of optical
measurement, is certified by competent
authority as preventing the reading of
standard printed material.
(iii) Persons certified by competent
authority as unable to read or unable to
use standard printed material as a result
of physical limitations.
(iv) Persons certified by competent
authority as having a reading disability
resulting from organic dysfunction and
of sufficient severity to prevent their
reading printed material in a normal
manner.
Competent authority is defined in 36
CFR 701.6(b)(2) as follows:
(i) In cases of blindness, visual
disability, or physical limitations
‘‘competent authority’’ is defined to
include doctors of medicine, doctors of
osteopathy, ophthalmologists,
optometrists, registered nurses,
therapists, professional staff of
hospitals, institutions, and public or
welfare agencies (e.g., social workers,
case workers, counselors, rehabilitation
teachers, and superintendents).
(ii) In the case of a reading disability
from organic dysfunction, competent
authority is defined as doctors of
medicine who may consult with
colleagues in associated disciplines.
Specialized formats
has the meaning
given the term in section 121(d)(4) of
title 17, United States Code:
(A) Braille, audio, or digital text
which is exclusively for use by blind or
other persons with disabilities.
(B) With respect to print instructional
materials, includes large print formats
when such materials are distributed
exclusively for use by blind or other
persons with disabilities.
Changes:
As noted earlier, we have
amended paragraph (e) of § 300.172 by
adding a new paragraph (e)(2) to clarify
that the definitions in § 300.172(e)(1)
apply to each SEA and LEA whether or
not the SEA or LEA chooses to
coordinate with the NIMAC. We have
made technical changes to § 300.172(e)
and renumbered § 300.172(e) to be
consistent with this change.
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Prohibition on Mandatory Medication
(§ 300.174)
Comment:
A few commenters
expressed concern that the regulations
do not provide sufficient guidance on
what school personnel can
communicate to parents regarding
medication. The commenters stated that
in the absence of additional guidance,
the regulations have the unintended
effect of preventing school personnel
from speaking openly with parents
regarding classroom behavior, options
for addressing behavior problems, and
the impact of a child’s medication on
classroom behavior. Further, the
commenters requested that the
regulations do more to encourage school
personnel to recommend evaluations for
children with behavior problems and
communicate openly with parents about
the effectiveness of treatment, and
protect school personnel. Other
commenters recommended requiring
school personnel to inform parents if
they suspect that a child’s behavior may
be related to a disability.
Discussion:
We believe that § 300.174
provides sufficient guidance on what
school personnel can and cannot
communicate to parents regarding a
child’s medication. Paragraph (a)
clarifies that school personnel cannot
require parents to obtain a prescription
for medication for a child as a condition
of attending school, receiving an
evaluation to determine if a child is
eligible for special education services,
or receiving special education and
related services under the Act.
Paragraph (b) clearly permits classroom
personnel to speak with parents or
guardians regarding a child’s academic
and functional performance, behavior in
the classroom or school, or the need for
an evaluation to determine the need for
special education or related services.
We do not believe that further
regulations are needed to encourage
school personnel to recommend
evaluations for children with behavior
problems or to require school personnel
to inform parents if they suspect a
child’s behavior may be related to a
disability. The child find requirements
in § 300.111 clarify that States must
have in effect policies and procedures to
ensure that all children with disabilities
residing in a State and who are in need
of special education and related
services, are identified, located, and
evaluated.
Changes:
None.
States’ Sovereign Immunity (New
§ 300.177)
Comment:
None.
Discussion:
In developing the
proposed regulations, we incorporated
those provisions of subpart A that apply
to States. We inadvertently omitted the
provisions in section 604 of the Act,
regarding States’ sovereign immunity.
We have added these to the regulations
in new § 300.177. In paragraph (a), we
have clarified that the statutory
language means that a State must waive
immunity in order to receive Part B
funds. This is the longstanding
interpretation of the Department and is
consistent with Federal Circuit Courts’
decisions interpreting this statutory
language. (
See, e.g., Pace
v.
Bogalusa
City Sch. Bd.
, 403 F.3d 272 (5th Cir.
2005);
M.A. ex rel. E.S.
v.
State-
Operated Sch. Dist.
, 344 F.3d 335 (3rd
Cir. 2003);
Little Rock Sch. Dist.
v.
Mauney
, 183 F.3d 816 (8th Cir. 1999);
Marie O.
v.
Edgar
, 131 F.3d 610 (7th Cir.
1997).)
Changes:
We have added the
provisions in section 604 of the Act,
regarding States’ sovereign immunity, to
new § 300.177.
Department Procedures (§§ 300.178
Through 300.186)
Comment:
One commenter stated that
the requirements in §§ 300.179 through
300.183, regarding the notice and
hearing procedures before the Secretary
determines a State is not eligible to
receive a grant under Part B of the Act,
are unnecessary and go beyond what is
required in section 612(d) of the Act.
The commenter recommended removing
§§ 300.179 through 300.183 and
including additional language in
§ 300.178 clarifying that the Secretary
has the authority to develop specific
administrative procedures to determine
if States meet statutory requirements for
eligibility under Part B of the Act and
that such procedures must include
notification of eligibility or non-
eligibility, an opportunity for a hearing,
and an opportunity for appeal of the
hearing decision.
Discussion:
The Department does not
agree with the commenter that the
notification and hearing procedures
included in §§ 300.179 through 300.183
are unnecessary and go beyond what is
required in section 612(d) of the Act.
Section 612(d)(2) of the Act states that
the Secretary shall not make a final
determination that a State is not eligible
to receive a grant under this part until
after providing the State with reasonable
notice and an opportunity for a hearing.
When the Secretary proposes to deny a
State’s eligibility to receive a grant
under Part B of the Act, withhold funds,
or take other enforcement action, it is
important to all parties that the process
through which those issues will be
decided is clearly described, so that
time, money, and effort are not spent
resolving procedural questions instead
of the underlying issues. For these
reasons, we believe it is important to
retain §§ 300.179 through 300.183 in the
regulations.
Changes:
None.
Judicial Review (§ 300.184)
Comment:
One commenter requested
that we clarify in the regulations the
status of a State’s operation of a program
or eligibility to receive a grant under
Part B of the Act while a final judicial
decision is pending with respect to the
State’s eligibility under section 612 of
the Act.
Discussion:
Under section 612(a) of
the Act, States must meet certain
conditions in order to be eligible for a
grant under the Part B program. Under
section 612(d) of the Act, if the
Secretary, after notice and an
opportunity for a hearing, makes a final
determination that a State is not eligible
for a grant, the Secretary may not award
funds to the State. The procedures in
§§ 300.179 through 300.183 detail the
process through which the Secretary
notifies a State of a proposed
ineligibility determination, the hearing
available to the State to dispute this
proposal, and the process through
which the Secretary makes a final
determination. The Secretary’s final
determination may be appealed through
the judicial review procedure described
in section 616(e)(8) of the Act and
§ 300.184. We decline to address this
issue more specifically in the
regulations, however, as we think the
regulations already adequately convey
the idea that only States that the
Secretary determines to be eligible can
receive a grant.
Changes:
None.
By-Pass for Children in Private Schools
(§§ 300.190 through 300.198)
Comment:
One commenter stated that
§§ 300.190 through 300.198 are
unnecessary because the Act gives
sufficient authority for the Secretary to
implement a by-pass for children with
disabilities enrolled in private
elementary schools and secondary
schools.
Discussion:
Section 300.190 retains
the authority for a by-pass in current
§ 300.480 and includes additional
authority for a by-pass, consistent with
section 612(f)(1) of the Act, in cases
where the Secretary determines that an
SEA, LEA, or public agency has
substantially failed, or is unwilling, to
provide for equitable participation of
parentally-placed private school
children with disabilities. When the
Secretary authorizes a by-pass it is
important that all parties understand the
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46623
process by which the Secretary
determines the funds that will be
deducted from the State’s allocation
under Part B of the Act to provide
services, as well as the actions that are
required before the Secretary takes any
final action to implement a by-pass.
When such processes and procedures
are clearly described, time, money, and
effort are not spent resolving procedural
questions. The requirements in
§§ 300.190 through 300.198 provide this
information and we believe are
necessary to clarify and ensure effective
implementation of the by-pass
provisions in the Act. We are making
one change to § 300.191(d) to clarify that
the Secretary deducts amounts the
Secretary determines necessary to
implement a by-pass from the State’s
allocations under sections 611 and 619
of the Act.
Changes:
In § 300.191(d) we have
substituted a reference to sections 611
and 619 of the Act for a reference to Part
B of the Act.
Show Cause Hearing (§ 300.194)
Comment:
One commenter opposed
allowing a lawyer for the SEA or LEA
to present oral and written evidence and
arguments at a show cause hearing
because parents are often intimidated by
having to face a lawyer.
Discussion:
Section 300.194(a)(3)
provides an opportunity for an SEA,
LEA, or other public agency, and
representatives of private elementary
schools and secondary schools to be
represented by legal counsel and to
submit oral or written evidence or
arguments at a hearing to show cause
why a by-pass should not be
implemented. Parents are not parties to
this hearing and generally would not
appear before the show cause hearing
officer, and would, therefore, not be
intimidated by a participating lawyer.
We believe that it is only fair that the
party to the hearing (SEA, LEA, or other
public agency, and representatives of
private schools) be provided the option
to be represented by legal counsel
because legal counsel will generally
represent the Department, as a party to
the hearing.
Changes:
None.
State Administration (§ 300.199)
Comment:
One commenter indicated
that § 300.199 is improperly placed in
the regulations under the general
heading ‘‘By-pass for Children in Private
Schools.’’
Discussion:
We agree with the
commenter that § 300.199 does not
belong under the general heading ‘‘By-
Pass for Children in Private Schools.’’
Changes:
A new undesignated center
heading entitled ‘‘State Administration’’
will be added immediately preceding
§ 300.199 to separate that section from
the regulations related to
implementation of the by-pass
provisions of the Act.
Comment:
One commenter
recommended including in § 300.199 a
requirement that States may not
eliminate from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations.
Discussion:
Section 300.199
incorporates the requirement in section
608 of the Act that any rulemaking
related to the Act conducted by the
State conform to the purposes of the
Act. Consistent with section 608 of the
Act, § 300.199 makes clear that each
State that receives funds under Part B of
the Act must ensure that any State rules,
regulations, and policies relating to 34
CFR part 300 conform to the provisions
of 34 CFR part 300. We do not believe
it is necessary to add a provision in
§ 300.199 prohibiting States from
eliminating from their rules, regulations,
and policies any provisions required by
Part B of the Act and its implementing
regulations, as requested by the
commenter. If a State were to do so, the
State’s rules, regulations, and policies
would not conform to the provisions in
34 CFR part 300. Under this provision,
a State, and not the Secretary,
determines whether a particular rule,
regulation, or policy conforms to the
purposes of the Act.
Changes:
None.
Comment:
Some commenters
expressed concern that the mandate to
minimize State rules and regulations
might discourage States from
developing beneficial programs, and,
therefore, should not pertain to policies
that promote best practices, increased
parental involvement, educating
children in the least restrictive
environment, and improving access to
the general curriculum. One commenter
recommended including a statement in
the regulations that a State would not be
penalized for exceeding the minimum
requirements of the Act. A few
commenters stated that the services
provided by the Act were intended to be
a ‘‘floor,’’ rather than a ‘‘ceiling’’ and
recommended a pilot program to
encourage States to adopt rules that best
serve the needs of children with
disabilities.
Discussion:
We do not agree that the
regulations discourage States from
developing beneficial programs or
establishing rules that best serve the
needs of children with disabilities. In
fact, § 300.199(b), consistent with
section 608(b) of the Act, requires State
rules, regulations, and policies under
the Act to support and facilitate LEA
and school-level system improvement
designed to enable children with
disabilities to meet challenging State
student academic achievement
standards.
Section 300.199(a), consistent with
section 608(a) of the Act, is intended to
minimize the number of rules,
regulations, and policies to which LEAs
and schools are subject under the Act,
and to identify in writing any rule,
regulation, or policy that is State-
imposed and not required under the Act
and its implementing regulations. The
Department’s position is consistent with
S. Rpt. No. 108–185, p. 10, which states
‘‘Through section 608(a), the committee
is in no way attempting to reduce State
input or State practice in this area, but
intends to make clear what is a Federal
obligation and what is a State or local
educational agency requirement for the
Act.’’ We believe it is important for
parents, teachers, school administrators,
State lawmakers, and others to
understand what is required under the
Act, and, therefore, do not believe that
§ 300.199 should be changed.
Changes:
None.
Subpart C—Local Educational Agency
Eligibility
Consistency With State Policies
(§ 300.201)
Comment:
Some commenters
recommended requiring LEAs to seek
input from parents of children with
disabilities in the development of LEA
policies, procedures, and programs.
Discussion:
Section 300.201,
consistent with section 613(a)(1) of the
Act, requires each LEA to have in effect
policies, procedures, and programs that
are consistent with State policies and
procedures. It is up to each State and its
LEAs to determine the manner in which
LEAs develop their policies, procedures,
and programs, consistent with State law
and procedures. The Act does not
authorize the Department to impose
additional obligations on States or LEAs
with respect to the development of LEA
policies, procedures, and programs.
Changes:
None.
Maintenance of effort (§§ 300.202
through 300.205)
Comment:
A few commenters stated
that the maintenance of effort
requirements are complicated and
unnecessary and should be eliminated
or simplified.
Discussion:
Sections 300.202 through
300.205, regarding maintenance of effort
and the LEA’s use of funds received
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under Part B of the Act, reflect the
specific statutory requirements in
section 613(a)(2) of the Act, as well as
necessary information regarding the
implementation of these requirements.
Much of the additional information in
§§ 300.202 through 300.205 was
included in various sections throughout
the current regulations. We continue to
believe that this information is
necessary for the proper implementation
of the Act. Section 300.204(e), which
has been newly added to the
regulations, includes the assumption of
costs by the high cost fund as an
additional condition under which an
LEA may reduce its level of
expenditures. We believe this provision
is necessary because LEAs should not be
required to maintain a level of fiscal
effort based on costs that are assumed
by the SEA’s high cost fund.
In short, we have tried to present the
regulations relating to LEA maintenance
of effort in a clear manner, while being
consistent with the language of the Act
(which we do not have the authority to
change) and including only as much
additional information as is necessary to
ensure proper implementation of the
Act.
Changes:
None.
Comment:
One commenter stated that
LEAs should be permitted to use a
reasonable amount of their Part B funds
to meet the Act’s requirements relating
to student assessment, outcomes,
complaints, compliance monitoring,
mediation, and due process hearings.
Discussion:
With one exception,
nothing in the Act or these regulations
would prevent an LEA from using its
Part B allotment for the activities noted
by the commenter, so long as the
expenditures meet the other applicable
requirements under the Act and
regulations.
LEAs may not use their Part B funds
to support the mediation process
described in § 300.506. Consistent with
section 615(e)(2)(D) of the Act,
§ 300.506(b)(4) requires the State (not
the LEA) to bear the cost of that
mediation process. Although LEAs may
not use their Part B funds to support the
mediation process required under
§ 300.506(b)(4), they may use their Part
B funds to support alternative mediation
processes that they offer. Some LEAs
(and States) offer alternative mediation
processes, in addition to the mediation
process required under section 615 of
the Act. These alternative mediation
processes generally were established
prior to the Federal mandate for
mediation and some LEAs (and States)
continue to offer parents the option of
using these alternative mediation
processes to resolve disputes. Therefore,
if an LEA has an alternative mediation
process, it may use its Part B funds for
this process, so long as parents are
provided access to the required
mediation process under section 615 of
the Act and are not required to use an
alternative mediation process in order to
engage in the mediation process
provided under section 615 of the Act.
Changes:
None.
Comment:
Several commenters
requested clarifying that ‘‘per capita’’ in
§ 300.203(b) means the amount per
child with a disability in an LEA.
Discussion:
We do not believe it is
necessary to include a definition of ‘‘per
capita’’ in § 300.203(b) because we
believe that, in the context of the
regulations, it is clear that we are using
this term to refer to the amount per
child with a disability served by the
LEA.
Changes:
None.
Exception to Maintenance of Effort
(§ 300.204)
Comment:
One commenter
recommended expanding the exceptions
to the maintenance of effort
requirements in § 300.204(a) to include
negotiated reductions in staff salaries or
benefits so that LEAs are not penalized
for being proactive in reducing costs.
Another commenter recommended
revising § 300.204 to allow LEAs to
apply for a waiver of the maintenance
of effort requirements in cases of fiscal
emergencies.
Discussion:
Section 300.204(a)
through (d) reflects the language in
section 613(a)(2)(B) of the Act and
clarifies the conditions under which
LEAs may reduce the level of
expenditures below the level of
expenditures for the preceding year.
Nothing in the Act permits an exception
for negotiated reductions in staff salaries
or benefits or financial emergencies.
Accordingly, to expand the exceptions
to the maintenance of effort
requirements, as recommended by the
commenters, would be beyond the
authority of the Department.
Changes:
None.
Comment:
Some commenters
requested clarification as to whether the
exceptions to the maintenance of effort
requirements apply to an LEA that uses
funds from its SEA’s high cost fund
under § 300.704(c) during the preceding
year.
Discussion:
We do not believe further
clarification is necessary because
§ 300.204(e) clearly states that the
assumption of costs by a State-operated
high cost fund under § 300.704(c) would
be a permissible reason for reducing
local maintenance of effort. This
provision was included in the proposed
regulations in recognition that the new
statutory authority in section 611(e)(3)
of the Act that permits States to
establish a fund to pay for some high
costs associated with certain children
with disabilities could logically and
appropriately result in lower
expenditures for some LEAs.
Changes:
None.
Adjustments to Local Fiscal Efforts in
Certain Fiscal Years (§ 300.205)
Comment:
A few commenters stated
that the link between early intervening
services and reductions in maintenance
of effort in § 300.205(d) is not in the Act.
Some commenters expressed concern
that this requirement forces an LEA to
choose between providing early
intervening services and directing local
funds toward nondisabled children. One
commenter stated that linking the use of
funds for early intervening services to
reduction in maintenance of effort in
§ 300.205 is not logical and was not the
intent of Congress.
Discussion:
The link between
reductions in local maintenance of effort
(reflected in § 300.205(d)) and the
amount of Part B funds that LEAs may
use to provide early intervening services
(reflected in § 300.226) is established in
the Act. Section 300.205(d) tracks the
statutory language in section
613(a)(2)(C)(iv) of the Act and
§ 300.226(a) tracks the statutory
language in section 613(f)(1) of the Act.
Section 300.205(d) states that the
amount of funds expended by an LEA
for early intervening services under
§ 300.226 counts toward the maximum
amount of expenditures that an LEA
may reduce in its local maintenance of
effort. Section 300.226(a) clearly states
that the amount of Part B funds an LEA
may use to provide early intervening
services may not exceed 15 percent of
the funds the LEA receives under Part
B of the Act less any amount reduced
by the LEA under § 300.205.
As noted in the NPRM, the
Department believes it is important to
caution LEAs that seek to reduce their
local maintenance of effort in
accordance with § 300.205(d) and use
some of their Part B funds for early
intervening services under § 300.226
because the local maintenance of effort
reduction provision and the authority to
use Part B funds for early intervening
services are interconnected. The
decision that an LEA makes about the
amount of funds that it uses for one
purpose affects the amount that it may
use for the other.
Appendix D to Part
300—Maintenance of Effort and Early
Intervening Services
includes examples
that illustrate how §§ 300.205(d) and
300.226(a) affect one another.
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Changes:
We have added a reference
to Appendix D in § 300.226(a).
Schoolwide Programs Under Title I of
the ESEA (§ 300.206)
Comment:
A few commenters
recommended specifying in § 300.206(b)
that LEAs can use only funds provided
under section 611 of the Act (and not
section 619 of the Act) to carry out a
schoolwide program under section 1114
of the ESEA. The commenters stated
that this change is necessary so that the
per capita amount of Federal Part B
funds used to carry out a schoolwide
program is not artificially inflated by
including preschool grant funds that are
used to serve children ages three
through five who are not placed in a
title I school.
Discussion:
Section 613(a)(2)(D) of the
Act specifically provides that an LEA
may use any funds it receives under Part
B of the Act to carry out schoolwide
programs under title I of the ESEA. Part
B funds include any funds an LEA
receives under sections 611 and 619 of
the Act.
Changes:
None.
Personnel Development (§ 300.207)
Comment:
A few commenters
suggested requiring LEAs to train their
personnel through research-based
practices in order to ensure that
personnel are appropriately and
adequately prepared to implement Part
B of the Act.
Discussion:
We believe the regulations
already address the commenters’
concern and reflect the Department’s
position that high-quality professional
development, including the use of
scientifically based instructional
practices, is important to ensure that
personnel have the skills and
knowledge necessary to improve the
academic achievement and functional
performance of children with
disabilities. Section 300.207, consistent
with section 613(a)(3) of the Act,
requires each LEA to ensure that all
personnel necessary to carry out Part B
of the Act are appropriately prepared,
subject to the requirements in § 300.156
and section 2122 of the ESEA.
Section 300.156(a), consistent with
section 612(a)(14) of the Act, clearly
states that each State must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Further, section 2122(b)(1)(B) of the
ESEA requires an LEA’s application to
the State for title II funds (Preparing,
training, and recruiting high quality
teachers and principals) to address how
the LEA’s activities will be based on a
review of scientifically based research.
Changes:
None.
Purchase of Instructional Materials
(§ 300.210)
Comment:
One commenter
recommended requiring LEAs to hold
public hearings that meet the
requirements in section 612(a)(19) of the
Act before adopting its policies and
procedures to purchase instructional
materials. The commenter stated that all
interested members of the public,
including parents of children with
disabilities, are entitled to participate in
designing the plan to meet the
requirements in § 300.210.
Discussion:
The Act does not require
LEAs to hold public hearings before
implementing new policies and
procedures. This is a matter for each
State to determine, based on its rules
governing public hearings and public
comment. Therefore, we do not believe
it is appropriate for these regulations to
require LEAs to hold public hearings
and receive public comment on the
LEA’s purchase of instructional
materials, as requested by the
commenter.
Changes:
None.
Comment:
One commenter stated that
the requirements in § 300.210(b)(3) are
unnecessary and should be removed
because the Act does not require LEAs
to provide accessible materials for
children with disabilities for whom
assistance is not available from the
NIMAC.
Discussion:
We believe that
§ 300.210(b)(3) is necessary because
timely access to appropriate and
accessible instructional materials is an
inherent component of an LEA’s
obligation under the Act to ensure that
FAPE is available for all children with
disabilities and that children with
disabilities participate in the general
curriculum as specified in their IEPs.
Because the NIMAC is not required to
serve all children with disabilities who
need accessible materials, we believe it
is important that the regulations make
clear that LEAs are still responsible for
ensuring that children with disabilities
who need instructional materials in
accessible formats, but who do not fall
within the definition of children who
are eligible to receive materials
produced from NIMAS files obtained
through the NIMAC, receive them in a
timely manner. We, therefore, decline to
delete § 300.210(b)(3).
Changes:
None.
Comment:
A significant number of
commenters expressed concern about
allowing LEAs to choose not to
coordinate with the NIMAC. A few
commenters stated that coordination
with the NIMAC should be mandatory
for all LEAs. Other commenters
recommended that LEAs that cannot
demonstrate a history of providing
instructional materials to children with
disabilities in a timely manner should
be required to coordinate with the
NIMAC.
Discussion:
It would be inconsistent
with section 613(a)(6)(B) of the Act to
make coordination with the NIMAC
mandatory for all LEAs or to require
certain LEAs to coordinate with the
NIMAC (
e.g.
, LEAs that do not have a
history of providing instructional
materials to children with disabilities in
a timely manner). Section 613(a)(6)(B) of
the Act provides that nothing in the Act
shall be construed to require any LEA to
coordinate with the NIMAC.
Changes:
None.
Comment:
Several commenters
requested that the regulations clearly
define the process LEAs must go
through if they choose not to coordinate
with the NIMAC. A few commenters
requested additional details on what
assurances LEAs must provide if they
choose not to coordinate with the
NIMAC. A few commenters requested
that LEA assurances provide the public
with information to evaluate the
capacity of the LEA to provide materials
to children who are blind or have print
disabilities. Some commenters stated
that the assurances provided by LEAs
that choose not to coordinate with the
NIMAC should be done annually and in
writing.
Several commenters requested that
the regulations provide a means for the
public to obtain information about
which LEAs choose not to coordinate
with the NIMAC. A few commenters
recommended requiring LEAs to report
to the Department whether they choose
to coordinate with the NIMAC. Some
commenters requested that the
Department publish the assurances
made in accordance with § 300.210(b)
by LEAs that choose not to coordinate
with the NIMAC.
Discussion:
The process by which
LEAs choose not to coordinate with the
NIMAC and the assurances that LEAs
must provide if they choose not to
coordinate with the NIMAC are
determined by each State. Section
300.210(b)(2), consistent with section
613(a)(6)(B) of the Act, states that, if an
LEA chooses not to coordinate with the
NIMAC, the LEA must provide an
assurance to the SEA that the LEA will
provide instructional materials to blind
persons or other persons with print
disabilities in a timely manner.
Therefore, it would be unnecessary and
burdensome to require LEAs to provide
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assurances to the Department or to
require LEAs to report to the
Department whether they choose to
coordinate with the NIMAC. Each State
has its own mechanisms and processes
for obtaining assurances from its LEAs,
and we believe it would be
inappropriate for these regulations to
define the process by which LEAs
inform the SEA that they choose not to
coordinate with the NIMAC or to
specify the content of the assurances
that LEAs must provide to the SEA if
they choose not to coordinate with the
NIMAC. Similarly, it is up to each State
to determine whether and how the State
will provide information to the public
about LEAs in the State that choose not
to coordinate with the NIMAC.
Changes:
None.
Comment:
Some commenters
proposed that the regulations require
LEAs that choose not to coordinate with
the NIMAC to annually report to the
public on when children with
disabilities receive their materials, how
print materials are provided in a timely
manner, and the steps the LEA has
taken to ensure that materials are
provided at the same time as materials
are provided to children without
disabilities. Other commenters
recommended requiring LEAs that
choose not to coordinate with the
NIMAC to develop and publish their
policies and procedures that govern
how they maintain and distribute
NIMAS files.
Discussion:
We believe that imposing
additional data collection and reporting
requirements, such as those requested
by the commenters, on LEAs that choose
not to coordinate with the NIMAC is a
matter that is best left to the States.
States are responsible for ensuring that
accessible instructional materials are
provided in a timely manner to all
children with disabilities who need
them, and are, therefore, in the best
position to know what controls, if any,
are needed in their State to ensure that
LEAS comply with the requirements in
§ 300.210(b)(3). All LEAs, regardless of
whether they choose to coordinate with
the NIMAC, must ensure that children
with disabilities who need instructional
materials in accessible formats receive
them in a timely manner, consistent
with § 300.210(b)(3).
Changes:
None.
Comment:
A few commenters
requested that the Department provide
information to LEAs on the NIMAC and
the NIMAS so that LEAs can make an
informed choice regarding whether to
coordinate with the NIMAC.
Discussion:
The Department
recognizes the need to provide
information to LEAs regarding the
NIMAC and the NIMAS. The
Department has already provided
numerous informational sessions on the
NIMAC and NIMAS and more are
planned following the publication of the
regulations and approval of the NIMAC
procedures. Information about the
NIMAC Technical Assistance Center is
available at the following Web site:
http://www.aph.org/nimac/index.html.
Information on the NIMAS can be
obtained at:
http://nimas.cast.org.
Changes:
None.
Early Intervening Services (§ 300.226)
Comment:
One commenter
recommended clarifying that early
intervening services should not be used
to delay the evaluation of children
suspected of having a disability.
Discussion:
We believe that
§ 300.226(c), which states that nothing
in § 300.226 will be construed to delay
appropriate evaluation of a child
suspected of having a disability, makes
clear that early intervening services may
not delay an appropriate evaluation of a
child suspected of having a disability.
Changes:
None.
Comment:
One commenter expressed
concern that the requirements for early
intervening services do not adequately
protect the child’s right to FAPE and
recommended that the requirements
include provisions regarding notice,
consent, and withdrawal of consent, as
well as guidelines for referrals for
evaluation.
Discussion:
Children receiving early
intervening services do not have the
same rights and protections as children
identified as eligible for services under
sections 614 and 615 of the Act. Section
300.226(c), consistent with section
613(f)(3) of the Act, is clear that early
intervening services neither limit nor
create a right to FAPE.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
specify how long a child may receive
early intervening services before an
initial evaluation for special education
services under § 300.301 is conducted.
Discussion:
We do not believe it is
appropriate or necessary to specify how
long a child can receive early
intervening services before an initial
evaluation is conducted. If a child
receiving early intervening services is
suspected of having a disability, the
LEA must conduct a full and individual
evaluation in accordance with
§§ 300.301, 300.304 and 300.305 to
determine if the child is a child with a
disability and needs special education
and related services.
Changes:
None.
Comment:
A few commenters
suggested clarifying that Part B funds for
early intervening services should not be
used for any child previously identified
as being a child with a disability.
Discussion:
A child previously
identified as being a child with a
disability who currently does not need
special education or related services
would not be prevented from receiving
early intervening services. For example,
a child who received special education
services in kindergarten and had
services discontinued in grade 1
(because the public agency and the
parent agreed that the child was no
longer a child with a disability), could
receive early intervening services in
grade 2 if the child was found to be in
need of additional academic and
behavioral supports to succeed in the
general education environment. We
believe that language should be added
to § 300.226 to clarify that early
intervening services are for children
who are not currently identified as
needing special education or related
services.
Changes:
We have modified
§ 300.226(a) to clarify that early
intervening services are available to
children who currently are not
identified as needing special education
or related services.
Comment:
One commenter
recommended specifying that unless
LEAs have significant over-
identification and over-representation of
minority students in special education,
LEAs may not use Federal Part B funds
for early intervening services unless
they can demonstrate that all eligible
children are receiving FAPE. Another
commenter suggested prohibiting the
use of Part B funds for early intervening
services if an LEA is not providing
FAPE to all eligible children.
Discussion:
The Act does not restrict
the use of funds for early intervening
services only to LEAs that can
demonstrate that all eligible children
with disabilities are receiving FAPE.
Section 613(f)(1) of the Act generally
permits LEAs to use funds for early
intervening services for children in
kindergarten through grade 12 (with a
particular emphasis on children in
kindergarten through grade 3) who have
not been identified as needing special
education or related services, but who
need additional academic and
behavioral support to succeed in a
general education environment. No
other restrictions on this authority, such
as a requirement that the LEA first
demonstrate that it is providing FAPE to
all eligible children, are specified or
appropriate. The authority to use some
Part B funds for early intervening
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46627
services has the potential to benefit
special education, as well as the
education of other children, by reducing
academic and behavioral problems in
the regular educational environment
and reducing the number of referrals to
special education that could have been
avoided by relatively simple regular
education interventions. Therefore, we
believe the use of Part B funds for early
intervening services should be
encouraged, rather than restricted.
In one instance, however, the Act
requires the use of funds for early
intervening services. Under section
618(d)(2)(B) of the Act, LEAs that are
identified as having significant
disproportionality based on race and
ethnicity with respect to the
identification of children with
disabilities, the placement of children
with disabilities in particular
educational settings, and the incidence,
duration, and type of disciplinary
actions taken against children with
disabilities, including suspensions and
expulsions, are required to reserve the
maximum amount of funds under
section 613(f)(1) of the Act to provide
early intervening services to children in
the LEA, particularly to children in
those groups that were significantly
over-identified. This requirement is in
recognition of the fact that significant
disproportionality in special education
may be the result of inappropriate
regular education responses to academic
or behavioral issues.
Changes:
None.
Comment:
One commenter
recommended permitting LEAs to spend
funds for early intervening services on
literacy instruction programs that target
at-risk limited English proficient
students.
Discussion:
There is nothing in the
Act that would preclude LEAs from
using Part B funds for early intervening
services, including literacy instruction,
that target at-risk limited English
proficient students who have not been
identified as needing special education
or related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Changes:
None.
Comment:
One commenter requested
clarification as to whether ESAs or other
public institutions or agencies, in
addition to LEAs, have the authority to
provide early intervening services.
Discussion:
We do not believe any
clarification is necessary because
§ 300.226, consistent with section 613(f)
of the Act, states that LEAs may use Part
B funds to develop and implement
coordinated early intervening services.
As defined in § 300.28(b),
local
educational agency
or
LEA
includes
ESAs and any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public nonprofit charter school that is
established as an LEA under State law.
Changes:
None.
Comment:
Some commenters
suggested modifying the regulations to
permit children age 3 through 21 to
receive early intervening services. The
commenters stated that this change
would allow schools to provide early
academic and behavioral supports to
preschool children.
Discussion:
Early intervening services
may not be used for preschool children.
Section 300.226(a) tracks the statutory
language in section 613(f)(1) of the Act,
which states that early intervening
services are for children in kindergarten
through grade 12, with a particular
emphasis on children in kindergarten
through grade 3.
Changes:
None.
Comment:
One commenter
recommended clarifying in the
regulations that early intervening
services are not equivalent to early
intervention services.
Discussion:
We do not believe any
changes are necessary to the regulations
to clarify the difference between early
intervening services provided under
Part B of the Act and early intervention
services provided under Part C of the
Act. Following is a description of the
two types of services:
Early intervening services provided
under section 613(f) of the Act are
services for children in kindergarten
through grade 12 (with a particular
emphasis on children in kindergarten
through grade 3) who have not been
identified as needing special education
and related services, but who need
additional academic and behavioral
support to succeed in a general
education environment.
Early intervention services, on the
other hand, are services for children
birth through age two that are designed
to meet the developmental needs of
infants and toddlers with disabilities
under section 632 in Part C of the Act.
Section 632(5)(A) of the Act defines
infant or toddler with a disability
as a
child under the age of three years who
(a) is experiencing developmental
delays in one or more of the areas of
cognitive development, physical
development, communication
development, social or emotional
development, and adaptive
development, or (b) has a diagnosed
physical or mental condition that has a
high probability of resulting in
developmental delay. In addition, some
States also provide early intervention
services to infants and toddlers who are
at risk of having a developmental delay.
The Part C regulations will address, in
detail, the early intervention services
provided under section 632 of the Act.
Changes:
None.
Comment:
One commenter asked
whether the reference to scientifically
based academic and behavioral
interventions in § 300.226(b) means that
such interventions must be aligned with
recommended practices and peer-
reviewed research.
Discussion:
Section 300.226(b)
follows the specific language in section
613(f)(2) of the Act and requires that in
implementing coordinated, early
intervening services, an LEA may
provide, among other services,
professional development for teachers
and other personnel to enable such
personnel to deliver scientifically based
academic and behavioral interventions.
The use of the term scientifically based
in § 300.226(b) is intended to be
consistent with the definition of the
term
scientifically based research
in
section 9101(37) of the ESEA. Because
this definition of
scientifically based
research
is important to the
implementation of Part B of the Act, a
reference to section 9101(37) of the
ESEA has been added in new § 300.35,
and the full definition of the term has
been included in the discussion of new
§ 300.35. Under the definition,
scientifically based research must be
accepted by a peer-reviewed journal or
approved by a panel of independent
experts through a comparably rigorous,
objective, and scientific review. We
expect that the professional
development activities authorized under
§ 300.226(b)(1) will be derived from
scientifically based research. The statute
and regulations do not refer to
‘‘recommended practices,’’ which is a
term of art that, generally, refers to
practices that the field has adopted as
‘‘best practices,’’ and which may or may
not be based on evidence from
scientifically based research.
Changes:
None.
Comment:
Several commenters
requested including related services
personnel, including speech
pathologists and school psychologists,
in the development and delivery of
educational and behavioral evaluations,
services, and supports for teachers and
other school staff to enable them to
deliver coordinated, early intervening
services.
Discussion:
State and local officials
are in the best position to make
decisions regarding the provision of
early intervening services, including the
specific personnel to provide the
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services and the instructional materials
and approaches to be used. Nothing in
the Act or regulations prevents States
and LEAs from including related
services personnel in the development
and delivery of educational and
behavioral evaluations, services, and
supports for teachers and other school
staff to enable them to deliver
coordinated, early intervening services.
Changes:
None.
Comment:
Several commenters
recommended revising the regulations
to allow public agencies to use Part B
funds for early intervening services to
purchase supplemental instructional
materials to support the activities in
§ 300.226(b).
Discussion:
We agree that
supplemental instructional materials
may be used, where appropriate, to
support early intervening activities. The
Conf. Rpt. in note 269 provides that
[E]arly intervening services should make
use of supplemental instructional materials,
where appropriate, to support student
learning. Children targeted for early
intervening services under IDEA are the very
students who are most likely to need
additional reinforcement to the core
curriculum used in the regular classroom.
These are in fact the additional instructional
materials that have been developed to
supplement and therefore strengthen the
efficacy of comprehensive core curriculum.
We believe the terms ‘‘services’’ and
‘‘supports’’ in § 300.226(b)(2) are broad
enough to include the use of
supplemental instructional materials.
Accordingly, we believe that it is
unnecessary to add further clarification
regarding the use of supplemental
instructional materials in § 300.226. Of
course, use of funds for this purpose is
subject to other requirements that apply
to any use of funds, such as the
limitation on purchase of equipment in
section 605 of the Act and applicable
requirements in 34 CFR Parts 76 and 80.
Changes:
None.
Comment:
Several commenters
requested requiring LEAs to provide
parents with written notice regarding
their child’s participation in early
intervening services, the goals for such
services, and an opportunity to refuse
services. Some commenters requested
requiring LEAs to inform parents of
their child’s progress in early
intervening services at reasonable
intervals.
Discussion:
Section 300.226,
consistent with section 613(f) of the Act,
gives LEAs flexibility to develop and
implement coordinated, early
intervening services for children who
are not currently receiving special
education services, but who require
additional academic and behavioral
support to succeed in a regular
education environment. Early
intervening services will benefit both
the regular and special education
programs by reducing academic and
behavioral problems in the regular
education program and the number of
inappropriate referrals for special
education and related services. It would
be overly restrictive and beyond the
Department’s authority to modify the
regulations to include the additional
requirements suggested by the
commenters.
Changes:
None.
Comment:
One commenter stated that
data should be collected regarding the
effectiveness of early intervening
services. Several commenters requested
requiring LEAs to report to the SEA, and
make available to the public, the
number of children receiving early
intervening services, the length of time
the children received the services, the
impact of the services, and the amount
of Federal Part B funds used for early
intervening services.
Discussion:
Section 300.226(d),
consistent with section 613(f)(4) of the
Act, requires LEAs that develop and
maintain coordinated, early intervening
services to annually report to their SEA
on the number of children receiving
early intervening services and the
number of those children who
eventually are identified as children
with disabilities and receive special
education and related services during
the preceding two year period (i.e., the
two years after the child has received
early intervening services). We believe
that these data are sufficient to provide
LEAs and SEAs with the information
needed to determine the impact of early
intervening services on children and to
determine if these services reduce the
number of referrals for special education
and related services. Requiring LEAs to
collect and report data on the
implementation of early intervening
services beyond what is specifically
required in section 613(f)(4) of the Act
is unnecessary and would place
additional paperwork burdens on LEAs
and SEAs.
Changes:
None.
Comment:
Some commenters
requested that the meaning of the terms
‘‘subsequently’’ and ‘‘preceding two
year period’’ in § 300.226(d)(2) be
clarified.
Discussion:
Section 300.226(d)(2),
consistent with section 613(f)(4)(B) of
the Act, requires LEAs to report on the
number of children who are provided
early intervening services who
subsequently receive special education
and related services under Part B of the
Act during the preceding two years to
determine if the provision of these
services reduces the number of overall
referrals for special education and
related services. The Department
intends for LEAs to report on children
who began receiving special education
services no more than two years after
they received early intervening services.
For the preceding two year period, the
LEA would report on the number of
children who received both early
intervening services and special
education services during those two
years.
Changes:
None.
Direct Services by the SEA (§ 300.227)
Comment:
Some commenters
requested that the regulations specify
that SEAs providing direct services
must make placement decisions based
on the child’s individual needs and
must comply with all requirements for
providing FAPE in the LRE.
Discussion:
We do not believe any
changes to the regulations are necessary
because § 300.227(b), consistent with
section 613(g)(2) of the Act, clearly
states that SEAs providing direct special
education and related services must do
so in accordance with Part B of the Act.
Accordingly, the special education and
related services provided under
§ 300.227 would be subject to the
placement requirements in § 300.116
and the LRE requirements in § 300.114
and section 612(a)(5) of the Act.
Changes:
None.
Disciplinary Information (§ 300.229)
Comment:
One commenter
recommended clarifying that not all
student disciplinary records can be
transmitted by public agencies.
Discussion:
We believe that § 300.229
is clear that not all student disciplinary
records can be transmitted by public
agencies. Section 300.229(a) provides
that public agencies can transmit
disciplinary information on children
with disabilities only to the extent that
the disciplinary information is included
in, and transmitted with, the student
records of nondisabled children. Section
300.229(b) specifies the disciplinary
information that may be transmitted,
which includes a description of any
behavior engaged in by the child that
required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child.
Changes:
None.
Comment:
Some commenters
requested that the required transmission
of student records include both the
child’s current IEP and any statement of
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current or previous disciplinary action
related to weapons, drugs, or serious
bodily injury that has been taken against
the child.
Discussion:
It is important to clarify
that the Act does not require the
transmission of student disciplinary
information when the child transfers
from one school to another. Rather,
section 613(i) of the Act allows each
State to decide whether to require its
public agencies to include disciplinary
statements in student records and
transmit such statements with student
records when a child transfers from one
school to another. The State’s policy on
transmitting disciplinary information
must apply to both students with
disabilities and students without
disabilities.
Section 300.229(b) provides that if a
State requires its public agencies to
include disciplinary statements in
student records, these disciplinary
statements may include a description of
any behavior engaged in by the child
that required disciplinary action, a
description of the disciplinary action
taken, and any other information that is
relevant to the safety of the child and
other individuals involved with the
child; disciplinary actions taken against
a child related to weapons, drugs, or
serious bodily injury also could be
included in these descriptions. If a State
adopts such a policy, § 300.229(c)
requires that the transmission of any of
the child’s student records include the
child’s current IEP and any statement of
current or previous disciplinary action
that has been taken against the child.
Therefore, with regard to the
commenters’ request that the
transmission of student records include
any statement of current or previous
disciplinary action related to weapons,
drugs, or serious bodily injury that has
been taken against the child, this
information would be transmitted only
to the extent that disciplinary
statements are included in, and
transmitted with, the student records of
nondisabled children.
Changes:
None.
Comment:
One commenter
recommended requiring that the
transmission of a student’s records
include functional behavioral
assessments and behavior intervention
plans.
Discussion:
Any existing functional
behavioral assessments and behavioral
intervention plans would be part of the
materials that must be transmitted
under § 300.323(g). In addition, if a
State requires student records to include
disciplinary information and the child
transfers from one school to another,
§ 300.229(c) requires that the
transmission of any of the child’s
student records include the child’s
current IEP. Functional behavioral
assessments and behavior intervention
plans are not required components of
the IEP under § 300.320. However, if a
State considers functional behavioral
assessments and behavior intervention
plans to be part of a student’s IEP, this
information would be required to be
transmitted when the child transfers
from one school to another, consistent
with § 300.229(c).
Changes:
None.
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
Parental Consent (§ 300.300)
Comment:
A few commenters noted
that the terms, ‘‘consent,’’ ‘‘informed
consent,’’ ‘‘agree,’’ and ‘‘agree in
writing’’ are used throughout the
regulations and stated that differences
between the terms should be clarified.
One commenter recommended that the
regulations include the term ‘‘informed’’
every time the term ‘‘parental consent’’
is used.
Discussion:
The use of these terms
throughout the regulations is consistent
with their use in the Act. The definition
of
consent
in § 300.9 includes the
requirement that a parent be fully
informed of all information relevant to
the activity for which consent is sought.
The definition also requires that a
parent agree in writing to carrying out
the activity for which the parent’s
consent is sought. Therefore, whenever
the term ‘‘consent’’ is used in these
regulations, it means that the consent is
both ‘‘informed’’ and ‘‘written.’’
Similarly, the terms ‘‘consent,’’
‘‘informed consent,’’ ‘‘parental
consent,’’ and ‘‘written informed
consent,’’ as used in these regulations,
all are intended to have the same
meaning.
The meaning of the terms ‘‘agree’’ or
‘‘agreement’’ is not the same as
‘‘consent.’’ ‘‘Agree’’ or ‘‘agreement’’
refer to an understanding between the
parent and the LEA about a particular
question or issue. There is no
requirement that an agreement be in
writing unless specifically stated in the
Act and regulations.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify what the required safeguards are
if parents elect to receive notices
electronically or provide electronic or
digital signatures for consents, such as
consent for an initial evaluation.
Discussion:
Section 300.505,
consistent with section 615(n) of the
Act, permits parents to elect to receive
prior written notices, procedural
safeguards notices, and due process
complaint notices by an electronic mail
communication, if the public agency
makes that option available. The Act
does not specify documentation
requirements if the public agency makes
the electronic notice delivery option
available to parents, and we believe that
this is a matter that is best left to States
and LEAs that choose to use the
electronic communication option.
In addition, States that wish to utilize
electronic or digital signatures for
consent may do so if they choose.
Consent
under § 300.9(b) requires a
parent to understand and agree in
writing to the carrying out of the activity
for which the parent’s consent is sought.
Therefore, States that permit the use of
electronic or digital signatures for
parental consent would need to take the
necessary steps to ensure that there are
appropriate safeguards to protect the
integrity of the process.
Changes:
None.
Parental Consent for Initial Evaluation
(§ 300.300(a))
Comment:
One commenter
recommended that the regulations
require a public agency to conduct the
following activities to obtain parental
consent for an initial evaluation:
identify the child’s parents and their
address and phone number; contact
social service providers for children
who are wards of the State; provide
parents with copies of the Act; and
inform parents of the consequences of
withholding consent.
Discussion:
The regulations already
provide sufficient safeguards regarding
consent, and we believe that the
changes requested would be unduly
burdensome. As a matter of practice,
public agencies begin the process of
obtaining parental consent by
identifying the parent and contacting
the parent by phone or through written
correspondence, or speaking to the
parent in parent-teacher conferences.
We do not believe it is necessary to
regulate to require public agencies to
contact social service agencies to obtain
consent for children who are wards of
the State because it may not always be
necessary or appropriate, for example,
when a child who is a ward of the State
has a foster parent who can act as a
parent, consistent with § 300.30(a)(2).
Additionally, section 614(a)(1)(D)(iii)(I)
of the Act provides that the public
agency must make reasonable efforts to
obtain informed parental consent for
children who are wards of the State and
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not residing with the parent. Public
agencies are in the best position to
determine, on a case-by-case basis,
when it is necessary to contact social
service providers to assist in obtaining
parental consent for children who are
wards of the State.
We also do not believe that additional
regulations are necessary to require
public agencies to inform parents of the
consequences of withholding consent
for an initial evaluation or to provide
parents with copies of the Act. Section
300.503, consistent with section
615(c)(1) of the Act, already requires
that prior written notice be provided to
parents before an initial evaluation,
which will explain, among other things,
why the agency is proposing to conduct
the evaluation; a description of each
evaluation procedure, assessment,
record, or report the agency used as a
basis for proposing to conduct the
evaluation; and sources for the parent to
contact to obtain assistance in
understanding the provisions under the
Act. Additionally, § 300.504(a)(1),
consistent with section 615(d)(1)(A)(i) of
the Act, requires the public agency to
provide a copy of the procedural
safeguards to parents upon initial
referral for an evaluation, which
provides information about parents’
rights under the Act. Although we do
not believe the recommended
requirements should be added to the
regulations, we will add the cross-
references to the consent requirements
in § 300.9, and the requirements for
prior written notice and the procedural
safeguards notice in §§ 300.503 and
300.504, respectively, to § 300.300(a).
Changes:
We have added cross-
references to §§ 300.9, 300.503, and
300.504 in § 300.300(a).
Comment:
One commenter
recommended revising
§ 300.300(a)(1)(ii) and using the
statutory language in section
614(a)(1)(D)(i) of the Act to require that
parental consent for evaluation may not
be construed as consent for placement
for receipt of special education and
related services.
Discussion:
We believe it is
appropriate to use the phrase, ‘‘initial
provision of services’’ in
§ 300.300(a)(1)(ii), rather than the
statutory phrase ‘‘consent for placement
for receipt of special education and
related services,’’ in section
614(a)(1)(D)(i) of the Act to clarify that
consent does not need to be sought
every time a particular service is
provided to the child. In addition, the
distinction between consent for an
initial evaluation and consent for initial
services is more clearly conveyed in
§ 300.300(a)(1)(ii) than in the statutory
language, and is consistent with the
Department’s longstanding position that
‘‘placement’’ refers to the provision of
special education services, rather than a
specific place, such as a specific
classroom or specific school. We,
therefore, decline to change the
regulation, as requested by the
commenter.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify whether the reference to
‘‘parent’’ in § 300.300(a)(2) means
‘‘biological or adoptive parent’’ or
anyone who meets the definition of
parent
in § 300.30.
Discussion:
Section 300.300(a)(2)
applies to circumstances in which the
child is a ward of the State and is not
residing with the child’s parents, and
requires the public agency to make
reasonable efforts to obtain parental
consent from the parent for an initial
evaluation. The reference to ‘‘parent,’’ in
this context, refers to anyone who meets
the definition of
parent
in § 300.30,
consistent with section 614(a)(1)(D)(iii)
of the Act.
Changes:
None.
Comment:
One commenter requested
clarification on the interplay between
new § 300.300(a)(2) (proposed
§ 300.300(a)(2)(ii)), regarding
circumstances when the public agency
is not required to obtain informed
parental consent for an initial
evaluation of a child who is a ward of
the State, and the requirements in
§ 300.519(c), which require that a
surrogate parent be appointed for a
child who is a ward of the State.
Discussion:
New § 300.300(a)(2)
(proposed § 300.300(a)(2)(ii)), consistent
with section 614(a)(1)(D)(iii)(II) of the
Act, creates an exception to the parental
consent requirements for initial
evaluations for a child who is a ward of
the State who is not residing with the
child’s parent if the public agency has
made reasonable efforts to obtain the
parent’s consent, but is unable to
discover the whereabouts of the parent,
the rights of the parent of the child have
been terminated under State law, or the
rights of the parent to make educational
decisions have been subrogated by a
judge under State law and consent for
the initial evaluation has been given by
an individual appointed by the judge to
represent the child. New § 300.300(a)(2)
(proposed § 300.300(a)(2)(ii)) permits
the public agency to proceed with the
child’s initial evaluation without first
obtaining the requisite parental consent
only in the circumstances detailed in
§ 300.300(a)(2). Therefore, when one or
more of the circumstances in
§ 300.300(a)(2) are met and a surrogate
has not yet been appointed, the public
agency need not postpone the child’s
evaluation to await the appointment of
a surrogate. This is appropriate because
in situations involving requests for
initial evaluations, in most cases a
surrogate parent has not yet been
appointed and delaying an initial
evaluation until after a surrogate is
appointed and has given consent may
not be in the best interests of the child.
In contrast, in most situations involving
consent for reevaluation, a surrogate
parent should already have been
appointed under § 300.519 if no parent
can be identified, the public agency has
been unable to locate a parent, the child
is a ward of the State or the child is an
unaccompanied homeless youth.
Therefore, we do not think it is
appropriate to apply the provisions in
§ 300.300(a)(2) to reevaluation
situations.
Nothing in this section is intended to
relieve a public agency of its obligation
to ensure that the rights of a child who
is a ward of the State are protected
through the appointment of a surrogate
parent in accordance with the
procedures in § 300.519(b) through (h).
Once a surrogate parent is appointed in
accordance with the procedures in
§ 300.519(b) through (h), that person
assumes the responsibilities of a parent
under the Act, and the public agency
must seek consent from that individual.
Moreover, if a child has a foster
parent who can act as a
parent,
as
defined in § 300.30(a)(2), or a person
such as a grandparent or step-parent
who is legally responsible for the child’s
welfare, and that person’s whereabouts
are known or the person can be located
after reasonable efforts by the public
agency, parental consent would be
required for the initial evaluation.
We believe that the phrase ‘‘except as
provided in paragraph (a)(2) of this
section (regarding consent for wards of
the State)’’ in proposed § 300.300(a)(1)(i)
may incorrectly convey that a public
agency is not required to make
reasonable efforts to obtain informed
consent from the parent of a child who
is a ward of the State, or from a
surrogate parent, foster parent, or other
person meeting the definition of a
parent
in § 300.30(a). Therefore, we will
remove the phrase. To clarify that the
provisions in § 300.300(a)(2) apply only
to initial evaluations, and not
reevaluations, we will modify both
§§ 300.300(a)(2) and (c)(1).
Changes:
We have removed the
phrase ‘‘except as provided in paragraph
(a)(2) of this section (regarding consent
for wards of the State)’’ in
§ 300.300(a)(1)(i), for clarity. We have
also added introductory language to
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§ 300.300(a)(2) to specify that it applies
only to initial evaluations, and we have
changed the cross-reference in
§ 300.300(c)(1) to refer to
§ 300.300(a)(1).
Comment:
One commenter
recommended that the regulations
specify the minimum steps that public
agencies must take to obtain consent for
initial evaluations from parents of
children who are wards of the State.
Another commenter recommended that
the regulations define ‘‘reasonable
efforts,’’ as used in new
§ 300.300(a)(1)(iii) (proposed
§ 300.300(a)(2)(i)). One commenter
recommended requiring LEAs to
maintain documentation of their efforts
to obtain parental consent for initial
evaluations, including attempts to
obtain consent by telephone calls, visits
to the parent’s home, and
correspondence in the parent’s native
language. Several commenters requested
that the requirements in current
§ 300.345(d) be included in new
§ 300.300(a)(2)(i) (proposed
§ 300.300(a)(2)(ii)(A)). Current
§ 300.345(d) requires a public agency to
document the specific steps it has taken
to arrange a mutually convenient time
and place for an IEP Team meeting (
e.g.
,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment) and it is cross-
referenced in current § 300.505(c)(2) to
identify documentation of the
reasonable measures that an LEA took to
obtain consent for a reevaluation.
Discussion:
We believe it is important
to emphasize that a public agency must
make reasonable efforts to obtain
informed consent from the parent for an
initial evaluation to determine whether
the child is a child with a disability.
This includes the parent of a child who
is a ward of the State. Therefore, we will
add a new paragraph (a)(1)(iii) to
§ 300.300 to make clear that a public
agency must make reasonable efforts to
obtain informed parental consent
whenever a public agency seeks to
conduct an initial evaluation of a child
to determine whether the child is a
child with a disability. This requirement
applies to all children including
children who are wards of the State.
With the addition of this new
paragraph, the requirement for public
agencies to make reasonable efforts to
obtain informed consent from the parent
for an initial evaluation for children
who are wards of the State in
§ 300.300(a)(2)(i) is no longer necessary
and will be removed.
We also agree with the commenters
that a public agency should document
and make the same reasonable efforts to
obtain consent for an initial evaluation
from a parent, including a parent of a
child who is a ward of the State, that are
required when a public agency attempts
to arrange a mutually convenient time
and place for an IEP Team meeting (
e.g.
,
detailed records of telephone calls, any
correspondence sent to the parents,
visits made to the parent’s home or
place of employment), and will add a
new paragraph (d)(5) to make this clear.
We recognize that the statute uses both
‘‘reasonable measures’’ and ‘‘reasonable
efforts’’ when referring to a public
agency’s responsibility to obtain
parental consent for an evaluation,
initial services, and a reevaluation. We
believe these two phrases, when used in
this context, have the same meaning
and, therefore, have used ‘‘reasonable
efforts’’ throughout the regulations
related to parental consent for
consistency.
Changes:
We have added a new
paragraph (a)(1)(iii) to § 300.300 to
require a public agency to make
reasonable efforts to obtain informed
parental consent for an initial
evaluation. We will remove
§ 300.300(a)(2)(i) because it is redundant
with the new paragraph. Section
300.300(a)(2) has been reformatted
consistent with the removal of
paragraph (a)(2)(i). We also have added
a new paragraph (d)(5) to § 300.300 to
require a public agency to document its
attempts to obtain parental consent
using the procedures in § 300.322(d).
Comment:
A few commenters asked
whether a public agency must obtain
consent for an initial evaluation from
the biological or adoptive parent of the
child when there is another person who
meets the definition of
parent
in
§ 300.30. Another commenter
recommended the regulations clarify
whether a public agency must seek
informed consent for an initial
evaluation from a biological or adoptive
parent when a surrogate parent has
already been appointed.
Discussion:
Section 300.30(b)(1)
provides that, when more than one
party is qualified to act as a parent, the
biological or adoptive parent, when
attempting to act as the parent under the
Act, must be presumed to be the parent,
unless the biological or adoptive parent
does not have legal authority to make
educational decisions for the child.
If a surrogate parent already has been
appointed because the public agency,
after reasonable efforts, could not locate
a parent, the public agency would not
have to again attempt to contact other
individuals meeting the definition of
parent
in § 300.30 to seek consent.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify whether the qualifications of a
judge-appointed surrogate parent in
§ 300.519(c) would apply to new
§ 300.300(a)(2)(iii) (proposed
§ 300.300(a)(2)(ii)(C)), regarding consent
for an initial evaluation for a child who
is a ward of the State.
Discussion:
Section
614(a)(1)(D)(iii)(II)(cc) of the Act, which
is the basis for new § 300.300(a)(2)(iii)
(proposed § 300.300(a)(2)(ii)(C)),
provides that the public agency is not
required to obtain informed consent
from the parent for an initial evaluation
of a child who is a ward of the State and
is not living with the child’s parent if
the rights of the parent to make
educational decisions have been
subrogated by a judge in accordance
with State law and consent for an initial
evaluation has been given by an
individual appointed by the judge to
represent the child. This is a special
situation, limited only to children who
are wards of the State not living with a
parent and limited only to the situation
of seeking consent for an initial
evaluation. A person appointed under
this provision is not a surrogate parent
as that term is used in these regulations.
The requirements of § 300.519(c) do not
apply to persons authorized to provide
consent for initial evaluations under
this provision.
It is noteworthy that the provision in
new § 300.300(a)(2)(iii) (proposed
§ 300.300(a)(2)(ii)(C)) is only a limited
exception to the requirement to obtain
informed parental consent for an initial
evaluation. Most children will not have
a surrogate parent already appointed at
this stage of their involvement with
services under the Act. However, if a
child has a surrogate parent appointed
under § 300.519(c), and the rights of that
person to make educational decisions
for the child have not been subrogated
by a judge under State law, the public
agency would have to seek informed
parental consent from that person.
Changes:
None.
Comment:
One commenter
recommended revising § 300.300(a)(3) to
prohibit a public agency from pursuing
an initial evaluation without parental
consent. Another commenter
recommended requiring a public agency
to use the due process procedures to
conduct an initial evaluation if the
parent does not provide consent and the
public agency believes that the child
would not otherwise receive needed
services. A few commenters stated that
§ 300.300(a)(3) is inconsistent with
statutory language and opposed
language stating that the public agency
may, but is not required to, pursue the
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initial evaluation of a child whose
parents have refused to consent or failed
to respond to a request for consent.
Discussion:
Section 300.300(a)(3) is
consistent with section 614(a)(1)(D)(ii)
of the Act, which states that a public
agency
may
pursue the initial
evaluation of a child using the
procedural safeguards if a parent does
not provide consent or fails to respond
to a request to provide consent for an
initial evaluation. Consistent with the
Department’s position that public
agencies should use their consent
override procedures only in rare
circumstances, § 300.300(a)(3) clarifies
that a public agency is not required to
pursue an initial evaluation of a child
suspected of having a disability if the
parent does not provide consent for the
initial evaluation. State and local
educational agency authorities are in the
best position to determine whether, in a
particular case, an initial evaluation
should be pursued.
Changes:
None.
Comment:
A few commenters
recommended clarifying the parental
consent requirements for an initial
evaluation. Many commenters
recommended that LEAs maintain
documentation that the parent has been
fully informed and understands the
nature and scope of the evaluation. One
commenter recommended that the
regulations require that informed
parental consent for an initial
evaluation be documented in writing.
Discussion:
Section 300.300(a)(1)(i),
consistent with section 614(a)(1)(D)(i)(I)
of the Act, is clear that the public
agency proposing to conduct an initial
evaluation to determine if a child
qualifies as a child with a disability
under § 300.8 must obtain consent from
the parent of the child before
conducting the evaluation.
Consent,
as
defined in § 300.9, means that the
parent has been fully informed in his or
her native language, or other mode of
communication, and understands and
agrees
in writing
to the initial
evaluation. The methods by which a
public agency seeks to obtain parental
consent for an initial evaluation (beyond
the requirement that the public agency
use the parent’s native language or
mode of communication) and how a
public agency documents its efforts to
obtain the parent’s written consent are
appropriately left to the discretion of
SEAs and LEAs.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
include language clarifying that a public
agency is not in violation of the FAPE
requirements if the public agency does
not pursue an initial evaluation when
the parent refuses to consent or fails to
respond to a request for consent. One
commenter recommended adding
language to the regulations to clarify
that if a parent refuses to consent to an
initial evaluation, the child would not
be considered to be a child with a
disability.
Discussion:
While we agree that a
public agency would not be in violation
of the FAPE requirements for failing to
pursue an initial evaluation through due
process, we do not believe that a change
to the regulations is necessary. The
FAPE requirements in §§ 300.101
through 300.112, consistent with section
612(a) of the Act, apply only to a
child
with a disability
, as defined in § 300.8
and section 602(3) of the Act. A child
would not be considered a child with a
disability under the Act if the child has
not been evaluated in accordance with
§§ 300.301 through 300.311 and
determined to have one of the
disabilities in § 300.8(a), and because of
that disability, needs special education
and related services.
Further, § 300.534(c)(1), consistent
with section 615(k)(5)(C) of the Act,
provides that a public agency would not
be deemed to have knowledge that a
child is a child with a disability, for
disciplinary purposes, if a parent has
not allowed the child to be evaluated or
refuses services under the Act.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify that the public agency is not in
violation of the child find requirements
if the public agency does not pursue an
initial evaluation when the parent
refuses to consent or fails to respond to
a request for consent.
Discussion:
We agree that States and
LEAs should not be considered to be in
violation of their obligation to locate,
identify, and evaluate children
suspected of being children with
disabilities under § 300.111 and section
612(a)(3) of the Act if they decline to
pursue an evaluation (or reevaluation)
to which a parent has refused or failed
to consent. We will add language to the
regulations to make this clear.
Changes:
We have added language to
§ 300.300(a)(3) and (c)(1) to clarify that
a State or public agency does not violate
the requirements of § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue an evaluation or reevaluation
to which a parent has refused or failed
to consent.
Comment:
A few commenters
recommended that the regulations
define ‘‘fails to respond’’ as used in
§ 300.300(a)(3).
Discussion:
Section 300.300(a)(3),
consistent with section 614(a)(1)(D)(ii)(I)
of the Act, states that if a parent of a
child enrolled in public school, or
seeking to be enrolled in public school,
does not provide consent for an initial
evaluation, or the parent ‘‘fails to
respond’’ to a request to provide
consent, the public agency may, but is
not required to, pursue the initial
evaluation of the child by utilizing the
procedural safeguards, if appropriate,
except to the extent inconsistent with
State law relating to such parental
consent. The meaning of ‘‘fails to
respond,’’ in this context, is generally
understood to mean that, in spite of a
public agency’s efforts to obtain consent
for an initial evaluation, the parent has
not indicated whether the parent
consents or refuses consent to the
evaluation. We believe the meaning is
clear in the regulations and, therefore,
decline to define the phrase in these
regulations.
Changes:
None.
Comment:
One commenter
recommended that the regulations
include language to require a public
agency to provide the following
information (in the parent’s native
language) to a parent who refuses
consent or fails to respond to a request
for consent for an initial evaluation: The
reasons why the public agency believes
the child may be eligible for special
education; confirmation that the
requested evaluation and any
subsequent special education services
will be provided at no cost and
scheduled in cooperation with parents
with transportation provided; The
nature of the evaluations and
credentials of evaluators; the types of
special education services that the child
could receive if eligible; and the risks of
delaying an evaluation.
Discussion:
The prior written notice
requirements in § 300.503, consistent
with section 615(c)(1) of the Act,
address many of the concerns raised by
the commenter. Consistent with
§ 300.503(b) and (c), prior notice must
be given to the parents when a public
agency proposes to evaluate a child and
would explain why the public agency
believes the child needs an evaluation
to determine whether the child is a
child with a disability under the Act;
describe each evaluation procedure,
assessment, record, or report the agency
used as a basis for proposing that the
child needs an evaluation; explain that
the parents have protection under the
Act’s procedural safeguards; provide
sources for parents to contact to obtain
assistance in understanding the
provisions of the Act; and describe other
factors that are relevant to the agency’s
proposal to conduct the evaluation of
the child.
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In addition to the prior written notice,
§ 300.504(a)(1), consistent with section
615(d)(1)(A)(i) of the Act, requires that
a copy of the procedural safeguards
notice be given to parents upon an
initial referral or parental request for an
evaluation. Consistent with § 300.503(c)
and § 300.504(d), the prior written
notice and the procedural safeguards
notice, respectively, must be written in
language understandable to the general
public and be provided in the native
language of the parent or other mode of
communication used by the parent,
unless it is clearly not feasible to do so.
As a matter of practice, public
agencies provide parents with general
information about the special education
and related services that are available to
eligible children with disabilities and
inform the parent that the public
agency’s evaluation is provided at no
cost. We believe that this information,
along with the information provided in
the prior written notice and procedural
safeguards notice, will help a parent
determine whether there are any risks of
delaying an evaluation. Therefore, we
do not believe additional regulations are
necessary.
With regard to information regarding
an evaluator’s credentials, we do not
believe it is necessary to require public
agencies to provide this information to
parents because § 300.304(c)(1)(v) and
section 614(b)(3)(A)(iv) of the Act
require the public agency to ensure that
the evaluation is conducted by trained
and knowledgeable personnel.
If transportation to an evaluation
outside the school environment is
necessary, the public agency would
have to provide it, as a part of its
obligation to ensure that all eligible
children are located, identified, and
evaluated. However, we do not believe
that the parents need to be notified of
this fact because, in most cases, children
can be evaluated at school during the
school day and there is no requirement
that a parent be present during the
evaluation. Thus, requiring that all
parents be notified about transportation
to evaluations would be unnecessarily
burdensome.
Changes:
None.
Parental Consent for Services
(§ 300.300(b))
Comment:
A few commenters
requested that the Department address
situations in which a child is receiving
special education services and a parent
wants to withdraw consent or refuse
services because the parent believes the
child no longer needs special education
services. A few commenters stated that
public agencies should not be allowed
to use the procedural safeguards to
continue to provide special education
and related services to a child whose
parents withdraw consent for the
continued provision of special
education and related services.
Discussion:
We are considering the
question of whether parents who
previously consented to the initiation of
special education services should have
the right to subsequently remove their
child from special education services.
We anticipate publishing a notice of
proposed rulemaking in the near future
seeking public comment on this issue.
Changes:
None.
Comment:
One commenter
recommended changing the regulations
to allow the public agency to provide
services in anticipation of receiving
parental consent when the public
agency initiates a due process hearing to
obtain parental consent for initial
services.
Discussion:
To implement the change
requested by the commenter would be
inconsistent with the Act. Section
614(a)(1)(D)(i)(II) of the Act requires a
public agency to obtain informed
parental consent before providing initial
special education and related services to
a child. In addition, a public agency
may not initiate a due process hearing
to provide special education and related
services to a child when a parent refuses
to consent to initial services, consistent
with section 614(a)(1)(D)(ii)(II) of the
Act. A child whose parent has refused
consent for initial services would not be
provided special education and related
services and would continue to receive
general education services.
Changes:
None.
Comment:
A few commenters
requested that the regulations clarify the
meaning of ‘‘initial provision of
services’’ as used in § 300.300(b).
Discussion:
We believe § 300.300(b) is
clear that the ‘‘initial provision of
services’’ means the first time a parent
is offered special education and related
services after the child has been
evaluated in accordance with the
procedures in §§ 300.301 through
300.311, and has been determined to be
a child with a disability, as defined in
§ 300.8.
Changes:
None.
Comment:
One commenter requested
that the regulations permit mediation
when a parent of a child refuses to
consent to the provision of special
education and related services. A few
commenters recommended revising the
regulations to require a public agency to
use the due process procedures, or other
alternative dispute resolution
procedures, if a parent refuses to
consent to initial services.
Discussion:
Section 300.300(b)(2),
consistent with section
614(a)(1)(D)(ii)(II) of the Act, is clear
that if a parent fails to respond or
refuses to consent to initial services, the
public agency may not use the
mediation procedures in § 300.506 or
the due process procedures in
§§ 300.507 through 300.516 in order to
obtain agreement or a ruling that the
services may be provided to a child.
Changes:
None.
Comment:
One commenter stated that
additional documentation is necessary if
a parent does not provide consent for
initial services and suggested adding
language to the regulations to require
public agencies to document the steps
they have taken to obtain parental
consent for initial services and to
maintain them in the child’s permanent
file. Another commenter recommended
requiring that the parent’s refusal to
consent for initial services occur during
a properly convened IEP Team meeting.
The commenter also suggested requiring
that the documentation of a parent’s
refusal to provide consent include
evidence that all options waived by the
parent have been explained, that the
parent has refused services, and the
reasons for the parent’s refusal.
Discussion:
We believe that a public
agency must make reasonable efforts to
obtain informed consent from the parent
for the initial provision of special
education and related services to the
child and will make this clear in
§ 300.300(b). We noted in our
discussion regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation to determine whether the
child is a child with a disability, that we
added a new paragraph (d)(5) to
§ 300.300 that provides that to meet the
reasonable efforts requirement, a public
agency must document its attempts to
obtain consent using the procedures in
§ 300.322(d). We believe a public agency
should make these same reasonable
efforts to obtain parental consent for
initial services, and will include this in
new § 300.300(d)(5).
We do not believe it is necessary or
appropriate to require a public agency to
maintain additional documentation,
beyond that required in new
§ 300.300(d)(5), of a parent’s refusal to
provide consent for initial services or to
prescribe where this documentation
must be obtained or maintained. Public
agencies understand the importance of
properly documenting a parent’s refusal
to consent to the initial provision of
special education and related services
and are in the best position to determine
any additional documentation that is
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necessary and where to obtain and
maintain such documentation.
Changes:
We have added a new
paragraph (b)(2) to § 300.300 to clarify
that the public agency must make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services to the child. Subsequent
paragraphs have been renumbered
accordingly. We also have included a
reference to new § 300.300(b)(2) in new
§ 300.300(d)(5) that requires a public
agency to document its attempts to
obtain consent using the procedures in
§ 300.322(d).
Comment:
One commenter
recommended adding language to
clarify that if a parent does not consent
to initial services, the child would be
considered a part of the general
education enrollment and subject to the
same disciplinary provisions as
nondisabled children.
Discussion:
The language requested
by the commenter is not necessary
because section 615(k)(5)(C) of the Act
already provides for situations in which
a parent refuses consent for initial
services and the child subsequently
engages in behavior that violates a code
of student conduct. Section
300.534(c)(1), consistent with section
615(k)(5)(C) of the Act, provides that a
public agency would not be deemed to
have knowledge that a child is a child
with a disability if the parent of the
child has not allowed an evaluation of
the child pursuant to §§ 300.301
through 300.311, or has refused services
under this part. Therefore, such a child
would not be able to assert any of the
protections provided to children with
disabilities under the Act, and would be
subject to the same disciplinary
procedures as any other child.
Changes:
None.
Comment:
A few commenters
recommended requiring a public agency
to refer parents who do not provide
consent for initial services to the State’s
PTI center so that the parents can be
advised of the benefits of special
education and their rights and
responsibilities under the Act.
Discussion:
We do not believe it
would be appropriate to require a public
agency to refer parents to a particular
agency or program. Such matters are
best left to States and LEAs to decide
and should not be included in the
regulations.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require a public agency to report a
parent for suspected child abuse or
neglect to the appropriate agency if the
public agency believes that the parent’s
failure or refusal to consent to initial
services meets the definition of child
abuse or neglect under the State’s
mandatory reporting law.
Discussion:
It is not necessary to
include the requirement recommended
by the commenter in these regulations,
as the issue would already be addressed
by State law, if under State law a
parent’s failure to consent to initial
services under the Act was considered
child abuse or neglect.
Changes:
None.
Comment:
Numerous commenters
expressed concern about new
§ 300.300(b)(4)(ii) (proposed
§ 300.300(b)(3)(ii)), which provides that
if a parent fails to consent for initial
services or refuses to respond to a
request for consent, the public agency is
not required to convene an IEP Team
meeting or develop an IEP for the child.
A few commenters stated that this
should be permitted only when a parent
refuses services, but not when a parent
fails to respond to a request for consent
for initial services. A few commenters
stated that the regulations should be
revised to clarify that this applies only
to subsequent IEP Team meetings, not
the initial IEP Team meeting. One
commenter recommended revising the
regulations to require an IEP Team
meeting to be held and an IEP
developed to provide a basis for
informed consent.
Discussion:
New 300.300(b)(4)(ii)
(proposed § 300.300(b)(3)(ii)) follows
the specific language in section
614(a)(1)(D)(ii)(III)(bb) of the Act and
reflects the new provision in the Act
that relieves public agencies of any
potential liability for failure to convene
an IEP Team meeting or develop an IEP
for a child whose parents have refused
consent or failed to respond to a request
for consent to the initial provision of
special education and related services. It
does not, however, prevent a public
agency from convening an IEP Team
meeting and developing an IEP for a
child as a means of informing the parent
about the services that would be
provided with the parent’s consent.
Changes:
None.
Comment:
A few commenters
questioned how a parent could be
adequately informed of the services the
parent is refusing if the public agency is
not required to develop an IEP when the
parent refuses to consent to the initial
provision of special education and
related services.
Discussion:
We understand the
commenters’ concern that a parent of a
child with a disability who refuses to
consent to the provision of special
education and related services may not
fully understand the extent of the
special education and related services
their child would receive without the
development of an IEP for their child.
However, we do not view the consent
provisions of the Act as creating the
right of parents to consent to each
specific special education and related
service that their child receives. Instead,
we believe that parents have the right to
consent to the initial provision of
special education and related services.
‘‘Fully informed,’’ in this context,
means that a parent has been given an
explanation of what special education
and related services are and the types of
services that might be found to be
needed for their child, rather than the
exact program of services that would be
included in an IEP.
Changes:
None.
Comment:
One commenter stated that
the regulations should include sanctions
for parents who repeatedly fail to
respond to requests for consent from
public agencies, such as paying the
costs incurred by agencies attempting to
obtain consent.
Discussion:
The Act does not
authorize sanctions against parents who
fail to respond to requests for consent.
Changes:
None.
Parental Consent for Reevaluations
(§ 300.300(c))
Comment:
Several commenters
recommended allowing public agencies
to use the due process procedures to
override a parent’s refusal to consent to
a reevaluation.
Discussion:
Override of parental
refusal to consent to a reevaluation is
already addressed in the regulations.
Section 300.300(c) states that each
public agency must obtain informed
parental consent in accordance with
§ 300.300(a)(1) prior to conducting any
reevaluation of a child with a disability.
Section 300.300(a)(3) allows a public
agency to override parental refusal to
consent to an initial evaluation by
utilizing the mediation procedures
under § 300.506 or the due process
procedures under §§ 300.507 through
300.516. The cross-reference in
§ 300.300(c)(1)(i) to the provision in
§ 300.300(a)(1) provides the basis for
allowing a public agency to override the
parent’s refusal of consent to a
reevaluation. However, we believe it is
important to state this more directly and
will, therefore, add language to
§ 300.300(c)(1) to clarify that if a parent
refuses to consent to a reevaluation, the
public agency may, but is not required
to, pursue the reevaluation by using the
procedural safeguards in subpart E of
this part.
Changes:
We have restructured
§ 300.300(c)(1) and added a new
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§ 300.300(c)(1)(ii) to clarify that a public
agency may, but is not required to,
pursue a reevaluation using the
procedural safeguards.
Comment:
One commenter requested
that the regulations clarify a public
agency’s responsibilities for a
reevaluation if the agency has taken
reasonable measures to obtain consent
and the parent has failed to respond.
Discussion:
We do not believe that
further clarification in the regulations is
necessary. Section 300.300(c)(2),
consistent with section 614(c)(3) of the
Act, is clear that a public agency may
conduct a reevaluation of a child with
a disability, if the public agency can
demonstrate that it has made reasonable
efforts to obtain such consent and the
child’s parent has failed to respond to
a request for consent.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require a public agency to obtain
parental consent for any tests needed for
a reevaluation that were not used for the
initial evaluation or previous
reevaluations.
Discussion:
We do not agree that a
change should be made. Section
614(c)(3) of the Act, which is
incorporated in § 300.300(c), already
requires a public agency to obtain
parental consent before conducting any
tests needed for a reevaluation,
regardless of whether the tests differ
from tests used in previous evaluations
of the child.
Changes:
None.
Comment:
Many commenters
recommended retaining current
§ 300.505(c)(2), which requires a public
agency to document the specific
reasonable measures it has taken to
obtain parental consent for a
reevaluation, including detailed records
of telephone calls made or attempted
and the results of those calls; copies of
any correspondence sent to the parents
and any responses received; and
detailed records of visits made to the
parents’ home or place of employment
and the results of those visits. One
commenter suggested that if the
requirements in current § 300.505(c)(2)
were not retained, the regulations
should define reasonable measures as at
least three good-faith attempts to contact
a parent. Many commenters stated that
current § 300.505(c)(2) must be retained
because it is protected by section 607(b)
of the Act, which provides that the
Secretary may not publish final
regulations that would procedurally or
substantively lessen the protections
provided to children with disabilities in
the regulations that were in effect on
July 20, 1983.
Discussion:
We agree that the
requirements in current § 300.505(c)(2)
should be retained. We noted in our
discussions regarding the reasonable
efforts that a public agency must make
to obtain parental consent for an initial
evaluation and the initial provision of
services, that we added a new paragraph
(d)(5) to § 300.300 that provides that to
meet the reasonable efforts requirement,
a public agency must document its
attempts to obtain consent using the
procedures in § 300.322(d). These are
the same procedures in current
§ 300.505(c)(2). Therefore, we will
include a reference to § 300.300(c)(2)(i)
in new § 300.300(d)(5).
Changes:
We included a reference to
§ 300.300(c)(2)(i) in new § 300.300(d)(5).
Other Consent Requirements
(§ 300.300(d))
Comment:
Many commenters
recommended that the regulations
include language clarifying that a public
agency is not authorized to override the
lack of parental consent for an initial
evaluation for children who are home
schooled or placed in a private school
by the parents at their own expense.
One commenter recommended
removing the phrase ‘‘public school or
seeking to enroll in public school’’ in
§ 300.300(a)(3) to permit a public agency
to override lack of parental consent for
children who are home schooled or
placed in a private school by parents at
their own expense.
Discussion:
We agree with the
commenters who recommended that, for
children who are home schooled or
placed in a private school by their
parents at their own expense, consent
override should not be permitted. We
will add a new paragraph (4) to
§ 300.300(d) to make this clear.
There are compelling policy reasons
why the Act’s consent override
procedures should be limited to
children who are enrolled, or who are
seeking to enroll, in public school.
Because the school district has an
ongoing obligation to educate a public
school child it suspects has a disability,
it is reasonable for a school district to
provide the parents with as much
information as possible about their
child’s educational needs in order to
encourage them to agree to the provision
of special education services to meet
those needs, even though the parent is
free, ultimately, to reject those services.
The school district is accountable for
the educational achievement of all of its
children, regardless of whether parents
refuse the provision of educationally
appropriate services. In addition,
children who do not receive appropriate
educational services may develop
behavioral problems that have a
negative impact on the learning
environment for other children.
By contrast, once parents opt out of
the public school system, States and
school districts do not have the same
interest in requiring parents to agree to
the evaluation of their children. In such
cases, it would be overly intrusive for
the school district to insist on an
evaluation over a parent’s objection. The
Act gives school districts no regulatory
authority over private schools.
Moreover, the Act does not require
school districts to provide FAPE to
children who are home schooled or
enrolled in private schools by their
parents.
Public agencies do have an obligation
to actively seek parental consent to
evaluate children attending private
schools (including children who are
home schooled, if a home school is
considered a private school under State
law) who are suspected of being
children with disabilities under the Act,
in order to properly identify the number
of private school children with
disabilities and consider those children
as eligible for equitable services under
§§ 300.132 through 300.144. However,
this obligation does not extend to
overriding refusal of parental consent to
evaluate parentally-placed private
school children.
Section 300.300(a)(3) provides that a
public agency may override parental
consent for an initial evaluation only for
children who are enrolled in public
school or seeking to be enrolled in
public school, so we are not making the
suggested change in § 300.300(a)(3).
Changes:
We have added a new
paragraph (4) to § 300.300(d) to clarify
that consent override is not permitted
for children who are home schooled or
placed in private schools by their
parents.
Evaluations and Reevaluations
Initial Evaluations (§ 300.301)
Request for Initial Evaluation
(§ 300.301(b))
Comment:
Several commenters
recommended that teachers and related
services providers be included as
individuals who can refer a child for an
initial evaluation. A few commenters
requested clarification as to whether
States can authorize other individuals
who are acting on behalf of a public
agency (e.g., family court, probation
officers, staff from other public
agencies) to refer a child for an initial
evaluation, and whether individuals
responsible for protecting the welfare of
a child who are not acting on behalf of
an SEA or LEA, such as physicians and
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social workers, can refer a child for an
initial evaluation.
Discussion:
Section 614 (a)(1)(A) of
the Act provides that an SEA, other
State agency, or LEA shall conduct a full
and individual evaluation of a child
before the provision of special
education and related services. In
§ 300.301(a), we interpret this language
as requiring
public agencies,
as that
term is defined in § 300.33, to conduct
evaluations, because those are the only
agencies in the State responsible for
providing FAPE to eligible children.
The same language is used in section
614(a)(1)(B) of the Act to describe the
agencies that may initiate a request for
an initial evaluation to determine if a
child is a child with a disability. We
similarly interpret this language to be
referring to the entities that are public
agencies under § 300.33. Therefore,
§ 300.301(b) states that either a parent or
a public agency may initiate a request
for an initial evaluation. The language
does not include employees of SEAs or
LEAs (
e.g.
, teachers and related services
providers), unless they are acting for the
SEA or LEA, or of other State agencies
(
e.g.
, probation officers, social workers,
or staff from State agencies that are not
public agencies as defined in § 300.33).
The requirements in § 300.301(b)
pertain to the initiation of an evaluation
under §§ 300.301 through 300.305 and
should not be confused with the State’s
child find responsibilities in § 300.111
and section 612(a)(3) of the Act. The
child find requirements permit referrals
from any source that suspects a child
may be eligible for special education
and related services. Child find
activities typically involve some sort of
screening process to determine whether
the child should be referred for a full
evaluation to determine eligibility for
special education and related services.
Therefore, persons such as employees of
the SEA, LEA, or other public agencies
responsible for the education of the
child may identify children who might
need to be referred for an evaluation.
However, it is the parent of a child and
the public agency that have the
responsibility to initiate the evaluation
procedures in §§ 300.301 through
300.311 and section 614 of the Act.
Changes:
None.
Comment:
Several commenters stated
that the regulations should clarify that
the 60-day timeframe in § 300.301(c) to
complete an evaluation does not begin
if a parent requests an initial evaluation,
the LEA denies the request, and the
parent challenges the LEA’s decision in
a due process hearing.
Discussion:
We believe the regulations
already address the commenters’
concern. Section 300.301(b) provides
that a parent may initiate a request for
an initial evaluation to determine if the
child is a child with a disability. If the
public agency agrees to conduct the
evaluation, § 300.304(a) requires the
public agency to provide notice to the
parents, in accordance with § 300.503,
that describes any evaluation
procedures that the agency proposes to
conduct. The public agency must obtain
informed consent for the evaluation,
consistent with §§ 300.9 and 300.300,
prior to conducting the evaluation. The
60-day timeframe begins when the
public agency receives the consent for
evaluation.
If, however, the public agency does
not suspect that the child has a
disability and denies the request for an
initial evaluation, the public agency
must provide written notice to the
parents, consistent with § 300.503(b)
and section 615(c)(1) of the Act, which
explains, among other things, why the
public agency refuses to conduct an
initial evaluation and the information
that was used as the basis to make that
decision. The parent may challenge
such a refusal by requesting a due
process hearing, but the timeline for
conducting the evaluation does not
begin prior to parental consent for
evaluation. A parent would not be able
to give consent under this part without
knowing what specific evaluation
procedures the public agency is
proposing to conduct.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify whether a public agency has the
right to deny a parent’s request for an
initial evaluation.
Discussion:
The regulations are
sufficiently clear on this point. Section
300.503(a), consistent with section
615(b)(3) of the Act, provides that a
public agency may refuse to initiate or
change the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child, if the
public agency provides written notice.
This includes situations in which a
public agency wishes to deny a parent’s
request for an initial evaluation. The
written notice must meet the
requirements in § 300.503(b). Thus, for
situations in which a public agency
wishes to deny a parent’s request for an
initial evaluation, the written notice
would provide, among other things, an
explanation of why the public agency
refuses to conduct an initial evaluation
and the information that was used to
make that decision. A parent may
challenge the public agency’s refusal to
conduct an initial evaluation by
requesting a due process hearing.
Changes:
None.
Procedures for Initial Evaluation
(§ 300.301(c))
Comment:
Numerous commenters
requested that the regulations clarify
when the 60-day timeframe for a public
agency to conduct an initial evaluation
begins. One commenter requested that
the 60-day timeframe include
completing both the evaluation and
eligibility determination.
Several commenters recommended
reducing the timeframe for evaluations
from 60 days to 30 days. Some
commenters recommended that the 60-
day timeframe be 60 school days. A few
commenters stated that the timeframe
for evaluation should be longer if
additional time is required for specific
assessments, such as behavioral
assessments or other assessments based
on scientific practices.
Discussion:
It would be inconsistent
with the Act to reduce the timeframe
from 60 days to 30 days, require the 60-
day timeframe to be 60 school days,
extend the timeframe for particular
types of assessments, or require that the
60-day timeframe cover both the
evaluation and determination of
eligibility. Section 614(a)(1)(C)(i)(I) of
the Act requires an initial evaluation to
be conducted within 60 days of
receiving parental consent for the
evaluation or, if the State establishes a
timeframe within which the evaluation
must be conducted, within that
timeframe. The regulations in
§ 300.301(c) reflect this requirement.
Changes:
None.
Comment:
A few commenters asked
whether a State could establish a
timeframe of more than 60 days to
complete an initial evaluation. A
significant number of commenters
recommended that if a State establishes
its own timeframe within which an
evaluation must be conducted, that the
timeframe be less, but not more, than 60
days. Several commenters
recommended that if a State has its own
timeframe for evaluation, the timeframe
should be reasonable and ‘‘reasonable’’
should be defined. Some commenters
recommended that if a State’s timeframe
is greater than 60 days, the Department
should provide guidance to the State
and to parents in that State. One
commenter recommended that if a State
establishes its own timeframe, the State
must offer parents an adequate
opportunity to assert their procedural
rights.
Discussion:
Section 300.301(c),
consistent with section 614(a)(1)(C)(i)(I)
of the Act, requires an initial evaluation
to be completed within 60 days of
receiving parental consent for
evaluation or, if the State establishes a
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timeframe within which the evaluation
must be conducted, within such
timeframe. The Department declines to
require that a State-established
timeframe be less than 60 days or to
place additional requirements on States
with timeframes of greater than 60 days
because the Act gives States the
authority to establish different
timeframes and imposes no restrictions
on State exercise of that authority. We
believe this is evidence of an intent to
permit States to make reasoned
determinations of the appropriate
period of time in which evaluations
should be conducted based on
particular State circumstances.
Changes:
None.
Comment:
Numerous commenters
requested clarification regarding the
timeframe to complete an initial
evaluation and convene the IEP Team.
A few commenters stated that the
timeframe from referral to IEP
development could be as long as 120
calendar days (30 days from referral to
consent; 60 days from consent to the
eligibility determination; and 30 days
from the eligibility determination to
development of the IEP), and
recommended that this timeframe be 60
days.
One commenter recommended that
public agencies provide consent forms
to parents promptly after a referral for
evaluation has been made so that the
child’s evaluation is not delayed. A few
commenters asked how promptly an
LEA must seek parental consent
following a referral for evaluation, and
whether an LEA can wait until
September to obtain consent if a referral
is made in June or July.
Discussion:
We cannot change the
timeframe for an initial evaluation
specified in section 614(a)(1)(C) of the
Act. Section 614(a)(1)(C) of the Act
requires that an initial evaluation be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the timeframe established by the
State. Section 300.323(c) is a
longstanding requirement that a meeting
be held to develop the child’s IEP
within 30 days of determining that a
child needs special education and
related services. We decline, however,
to specify the timeframe from referral
for evaluation to parental consent, or the
timeframe from the completion of an
evaluation to the determination of
eligibility, as we are not in a position to
determine the maximum number of
days that should apply to these periods
in all circumstances.
However, it has been the
Department’s longstanding policy that
evaluations be conducted within a
reasonable period of time following the
agency’s receipt of parental consent, if
the public agency agrees that an initial
evaluation is needed to determine
whether a child is a child with a
disability. Likewise, the Department
believes that eligibility decisions should
be made within a reasonable period of
time following the completion of an
evaluation.
The child find requirements in
§ 300.111 and section 612(a)(3)(A) of the
Act require that all children with
disabilities in the State who are in need
of special education and related services
be identified, located, and evaluated.
Therefore, it would generally not be
acceptable for an LEA to wait several
months to conduct an evaluation or to
seek parental consent for an initial
evaluation if the public agency suspects
the child to be a child with a disability.
If it is determined through the
monitoring efforts of the Department or
a State that there is a pattern or practice
within a particular State or LEA of not
conducting evaluations and making
eligibility determinations in a timely
manner, this could raise questions as to
whether the State or LEA is in
compliance with the Act.
With regard to the total timeframe
from referral to IEP development, this
will vary based on a number of factors,
including the timing of parental consent
following referral for an evaluation and
whether a State establishes its own
timeframe to conduct an initial
evaluation. Given such factors, we do
not believe it is feasible to further
regulate on this timeframe.
Changes:
None.
Comment:
Numerous commenters
recommended that an initial evaluation
be conducted in an expedited timeframe
for children who are homeless or in the
custody of a child welfare agency. The
commenters stated that public agencies
should take into consideration the date
on which the child was first referred for
evaluation by any public agency.
Discussion
: Congress recognized the
unique problems homeless children face
and included several new provisions in
the Act to ensure that homeless children
and youth with disabilities have access
to the same services and supports as all
other children with disabilities. The
Department recognizes that the high
mobility rates of some homeless
children with disabilities (as well as
other children, including some children
who are in the custody of a State child
welfare agency) pose unique challenges
when a child is referred for an
evaluation, but moves to another district
or State before an evaluation can be
initiated or completed. In such cases,
the Department believes it is important
that the evaluations be completed as
expeditiously as possible, taking into
consideration the date on which the
child was first referred for evaluation in
any LEA. However, the high mobility
rate of these children and their potential
range of evaluation needs means that
any specific expedited timeframe could
be both too long to ensure that all
children are evaluated before they
move, and too short to be reasonable in
all circumstances. There is nothing,
however, in Part B of the Act or these
regulations that would prohibit a State
from establishing its own policies to
address the needs of homeless children,
including adopting a timeframe for
initial evaluations that is less than 60
days.
Changes:
None.
Exception (§ 300.301(d))
Comment:
Numerous commenters
requested clarification regarding
whether the 60-day timeframe for initial
evaluations could be extended by
mutual agreement between the parent
and the public agency. A few
commenters asked whether the 60-day
timeframe could be extended for reasons
other than the exceptions listed in
§ 300.301(d), and whether a State could
include other exceptions in its State
policies and procedures.
Discussion
: Congress was clear in
limiting the exceptions to the 60-day
timeframe to the situations in section
614(a)(1)(C)(ii) of the Act. Therefore, we
do not believe it is appropriate to
include in the regulations other
exceptions, such as permitting a parent
and a public agency to mutually agree
to extend the 60-day timeframe or to
include exceptions to the timeframe,
that would be in addition to those in the
Act and listed in § 300.301(d). However,
the Act gives States considerable
discretion with a State-adopted
timeframe. A State could adopt a
timeframe of 60 days or some other
number of days, with additional
exceptions.
Changes:
None.
Comment:
A number of comments
were received requesting clarification
on the provision in § 300.301(d)(1),
which allows an extension of the 60-day
or State-established timeframe to
complete an initial evaluation if the
parent of a child repeatedly fails or
refuses to produce the child for an
evaluation. A few commenters asked
whether the exception applies when a
child is not available because of
absences on the days the evaluation is
scheduled. Several commenters stated
that ‘‘produce’’ does not necessarily
mean the child’s physical presence in
school. Other commenters requested
that the regulations define ‘‘repeatedly
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fails’’ and ‘‘refuses to produce’’ so that
LEAs do not have to engage in
exhaustive efforts to obtain access to the
child to complete the evaluation.
One commenter recommended that
the regulations clarify that an LEA must
document that it has made several
attempts to address the parent’s
concerns and clarify any confusion the
parent may have about the evaluation,
as well as address issues that make it
difficult for the parent to bring the child
to a scheduled evaluation, such as lack
of transportation and childcare.
Discussion:
Section 300.301(d)
follows the specific language in section
614(a)(1)(C)(ii)(II) of the Act. We do not
believe it is appropriate or reasonable to
define ‘‘repeatedly fails’’ or ‘‘refuses to
produce’’ because the meaning of these
phrases will vary depending on the
specific circumstances in each case. For
example, situations in which a child is
absent on the days the evaluation is
scheduled because the child is ill would
be treated differently than if a parent
repeatedly fails to keep scheduled
appointments. Similarly, situations in
which a parent fails to keep scheduled
appointments when a public agency
repeatedly schedules the evaluation to
accommodate the parent’s schedule
would be treated differently than
situations in which a public agency
makes no attempt to accommodate a
parent’s schedule.
We do not believe it is necessary to
clarify that an LEA must document that
it has made several attempts to address
a parent’s concerns and issues about the
evaluation. As a matter of practice,
LEAs attempt to address parent’s
concerns and issues prior to scheduling
an evaluation because repeated
cancellations of appointments or
repeated failures to produce the child
for an evaluation are costly in terms of
staff time and effort.
Changes:
None.
Comment:
Numerous commenters
recommended that there be an
exception to the 60-day timeframe when
a child transfers to a new school before
an evaluation is completed.
Discussion:
The exception referred to
by the commenters is already in the
regulations. Section 300.301(d)(2),
consistent with section 614(a)(1)(C)(ii)(I)
of the Act, states that the 60-day or
State-established timeframe does not
apply when a child transfers to a new
school before an evaluation is
completed, if the new public agency is
making sufficient progress to ensure
prompt completion of the evaluation,
and the parent and new public agency
agree to a specific time when the
evaluation will be completed. While the
exception to the 60-day timeframe, as
stated in section 614(a)(1)(C)(ii)(I) of the
Act and paragraph (d)(2) of this section,
only applies when a child transfers to a
school located in another public agency,
we do not believe the language in
paragraph (d)(2), as proposed in the
NPRM, is necessarily clear on this
matter. We, therefore, have added
language in paragraph (d)(2) to provide
additional clarity. We believe it is
important that it is understood that the
60-day or State-established timeframe
does not apply when a child transfers
from one school to another school in the
same public agency. When a child
transfers from one school to another
school in the same public agency, we
expect that an initial evaluation will be
conducted within 60 days of receiving
parental consent for the evaluation, or
within the State-established timeframe.
Changes:
We have added language to
§ 300.301(d)(2) to clarify that the
exception to the 60-day or State-
established timeframe only applies
when a child transfers to a new school
located in another public agency.
Comment:
Several comments were
received on the provision in new
§ 300.301(e) (proposed
§ 300.301(d)(2)(ii)) that allows an
exception to the 60-day or State-
established timeframe, only if the new
public agency is making sufficient
progress to ensure a prompt completion
of the evaluation and the parent and
new public agency agree to a specific
time when the evaluation will be
completed. One commenter stated that
schools would be unable to meet the 60-
day timeframe for children who transfer
from another public agency if the new
public agency has not been notified of
the evaluation timeframe. Another
commenter recommended that
exceptions to the 60-day timeframe
should not be permitted because the
term ‘‘sufficient progress’’ is not
defined. A few commenters requested
that the regulations define ‘‘sufficient
progress.’’
One commenter stated that there
might be legitimate reasons for not
completing an evaluation within the 60-
day timeframe, such as differences in
the assessment instruments used in the
previous and new public agency, and
requested that the regulations provide
guidance on how a public agency
should determine if appropriate
progress is being made.
One commenter recommended that if
there is no date certain when an
evaluation must be completed when a
child transfers public agencies, the new
public agency should conduct an
evaluation within 60 days of the
enrollment date of the child; make
reasonable efforts to obtain evaluation
information from the previous public
agency; and consider any available
evaluation information from the
previous public agency.
One commenter recommended
requiring the new public agency to
contact the previous public agency
within five days to request a report of
any actions taken to transfer the child’s
records, copies of completed
evaluations, a copy of the child’s file,
and an estimate as to when the
information will be sent. The
commenter stated that public agencies
should be required to keep records of
such attempts to inform parents of all
actions through written communication.
The commenter stated that if the
information is not received within 15
days, the new public agency should be
required to begin a new evaluation and
complete it within the 60-day or State-
established timeframe.
Discussion:
The exceptions to the 60-
day or State-established timeframe must
be permitted because they are statutory.
Section 614(a)(1)(C)(ii)(I) of the Act,
which is incorporated in
§ 300.300(d)(2), provides that the 60-day
or State-established timeframe does not
apply if a child enrolls in a school
served by the public agency after the
relevant timeframe has begun, and prior
to a determination by the child’s
previous public agency as to whether
the child is a child with a disability.
The exception applies only if the
subsequent public agency is making
sufficient progress to ensure prompt
completion of the evaluation, and the
parent and subsequent public agency
agree to a specific time when the
evaluation will be completed.
We do not believe it is necessary to
define the phrase ‘‘sufficient progress’’
because the meaning will vary
depending on the specific
circumstances in each case. As one
commenter noted, there may be
legitimate reasons for not completing
the evaluation within the 60-day
timeframe, such as differences in
assessment instruments used in the
previous and new public agencies, and
the length of time between a child
leaving one school and enrolling in the
next school. Therefore, we believe that
whether a new public agency is making
sufficient progress to ensure prompt
completion of an evaluation is best left
to the discretion of State and local
officials and parents to determine.
It would be over-regulating to specify
the number of days within which a new
public agency must request a child’s
records from the previous public agency
or to require the new public agency to
document its attempts to obtain the
records and keep parents informed of all
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actions through written communication.
We note, however, that § 300.304(c)(5),
consistent with section 614(b)(3)(D) of
the Act, requires each public agency to
ensure that the evaluations of children
with disabilities who transfer from one
school district to another school district
in the same school year are coordinated
with the children’s prior and
subsequent schools, as necessary, and as
expeditiously as possible, to ensure
prompt completion of full evaluations.
Additionally, new § 300.323(g)
(proposed § 300.323(e)(2)), consistent
with section 614(d)(2)(C)(ii) of the Act,
requires the new school in which the
child enrolls to take reasonable steps to
promptly obtain the child’s records
(including the IEP and supporting
documents and any other records
relating to the provision of special
education or related services to the
child) from the previous public agency
in which the child was enrolled. The
previous public agency in which the
child was enrolled must also take
reasonable steps to promptly respond to
the request from the new public agency.
We believe that these requirements will
help to ensure that a child’s records are
promptly received by the new public
agency.
The Act does not require the
evaluation of a child who is transferring
to a new school to be completed within
60 days of the enrollment date of the
child, as recommended by one
commenter, and we do not believe that
such a requirement should be included
in the regulations. The completion of
evaluations for children who transfer to
another school are subject to multiple
factors and we decline to regulate on a
specific timeframe that would apply in
all circumstances.
Changes:
None.
Comment:
One commenter
recommended sanctions against a new
public agency that fails to make an effort
to complete an evaluation of a child
who transfers to another school that was
begun by a previous public agency. The
commenter stated that the previous
public agency should also be sanctioned
for failure to cooperate with a new
public agency or for otherwise impeding
the ability of the new public agency to
complete the evaluation promptly.
Discussion:
As part of its general
supervisory responsibilities in § 300.149
and section 612(a)(11) of the Act, each
SEA is responsible for ensuring that the
requirements of Part B of the Act are
followed, including the requirements for
children who transfer from one public
agency to another public agency within
the school year. Whether sanctions
against a particular LEA are appropriate
should be determined by the SEA in the
first instance, as they are in the best
position to determine what sanctions,
technical assistance, or combination of
the two are likely to lead to future
compliance. For that reason, we decline
to regulate with more specificity in this
area.
Changes:
None.
Screening for Instructional Purposes Is
Not Evaluation (§ 300.302)
Comment:
One commenter requested
clarification on the difference between
screening and evaluation and
recommended that the regulations
include specific examples of what
constitutes screening, including testing
instruments that are appropriate to be
used for screening to determine
appropriate instructional strategies.
Many commenters recommended
permitting States to determine the
screening process for identifying
appropriate instructional strategies.
One commenter stated that
‘‘screening’’ is too loosely defined and
may be confused with State regulations
that require screening for a child’s
entrance into school. The commenter
recommended that the regulations
address issues such as the need for
parental consent prior to screening and
a timeframe for screening subsequent to
a request.
Discussion:
An ‘‘evaluation,’’ as used
in the Act, refers to an individual
assessment to determine eligibility for
special education and related services,
consistent with the evaluation
procedures in §§ 300.301 through
300.311. ‘‘Screening,’’ as used in
§ 300.302 and section 614(a)(1)(E) of the
Act, refers to a process that a teacher or
specialist uses to determine appropriate
instructional strategies. Screening is
typically a relatively simple and quick
process that can be used with groups of
children. Because such screening is not
considered an evaluation under
§§ 300.301 through 300.311 to
determine eligibility for special
education services, parental consent is
not required.
Section 300.302 does not address
screening for a child’s entrance into
school under a State’s rules. Screening
required under a State’s rules for a
child’s entrance into school is the
responsibility of the State and is not
within the purview of the Act. We
believe that the provisions in §§ 300.301
through 300.311, regarding evaluations,
and § 300.302, regarding screening for
instructional purposes, are clear, and
therefore, we do not believe it is
necessary to add language to the
regulations.
We decline to provide specific
examples of testing instruments to
determine appropriate instructional
strategies because this will vary based
on the age of the child and the subject
matter, and is best left to State and local
officials to determine. Likewise, the
process for screening, including the
timeframe to complete the screening
process, is a decision that is best left to
State and local officials to determine,
based on the instructional needs of the
children.
Changes:
None.
Comment:
One commenter asked
whether the provisions in § 300.302,
regarding screening, apply to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. One commenter noted that
§ 300.302 refers to screening of a child
by a teacher or a specialist and asked
who would be considered a specialist.
Another commenter requested
clarification regarding the term
‘‘instructional strategies for curriculum
implementation,’’ as used in § 300.302.
Discussion:
Section 300.302,
consistent with section 614(a)(1)(E) of
the Act, states that the screening of a
child by a teacher or specialist to
determine appropriate instructional
strategies is not considered an
evaluation for purposes of determining
eligibility for special education and
related services. This applies to a child
with a disability, as well as a child who
has not been identified as a child with
a disability. Such screening, therefore,
could occur without obtaining informed
parental consent for screening.
We believe the determination of who
is considered a ‘‘specialist’’ should be
left to the discretion of the public
agency and should not be specified in
the regulations. The term, ‘‘instructional
strategies for curriculum
implementation’’ is generally used to
refer to strategies a teacher may use to
more effectively teach children.
Changes:
None.
Comment:
One commenter
recommended clarification regarding
whether States can develop and
implement policies that permit
screening of children to determine if
evaluations are necessary.
Discussion:
There is nothing in the
Act that requires a State to, or prohibits
a State from, developing and
implementing policies that permit
screening children to determine if
evaluations are necessary. However,
screening may not be used to delay an
evaluation for special education and
related services. If a child is referred for
an evaluation to determine eligibility for
special education and related services,
the public agency must implement the
requirements in §§ 300.301 through
300.311 and adhere to the 60-day or the
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State-established timeframe to complete
the evaluation.
Changes:
None.
Reevaluations (§ 300.303)
Comment:
A few commenters
recommended clarifying that a parent is
not required to provide a reason for
requesting a reevaluation. Several
commenters recommended that the
regulations require a public agency to
provide prior written notice if a parent
requests a reevaluation within a year
and the public agency refuses the
request.
Discussion:
Section 300.303(b),
consistent with section 614(a)(2)(A)(ii)
of the Act, states that a reevaluation may
occur if the child’s parent or teacher
requests a reevaluation. There is no
requirement that a reason for the
reevaluation be given and we agree that
a reevaluation cannot be conditioned on
the parent providing a reason for
requesting a reevaluation.
Section 300.303(b), consistent with
section 614(a)(2)(B) of the Act, provides
that a reevaluation may occur not more
than once a year and must occur at least
once every three years, unless the parent
and the public agency agree otherwise.
If a parent requests more than one
reevaluation in a year and the public
agency does not believe a reevaluation
is needed, we believe the regulations are
clear that the public agency must
provide the parents with written notice
of the agency’s refusal to conduct a
reevaluation, consistent with § 300.503
and section 615(c)(1) of the Act. We do
not believe additional regulations are
necessary to address this specific
instance of a public agency’s refusal to
initiate a reevaluation and the written
notice requirements in § 300.503.
Changes:
None.
Comment:
A few commenters
requested clarification regarding
whether an evaluation that assesses
skills that were not previously assessed
in the same related services area would
be considered an evaluation or
reevaluation. One commenter, asked, for
example, if a speech-language
evaluation was conducted to assess a
child’s speech impairment one year,
would an evaluation the following year
to assess the child’s language abilities be
considered an evaluation or
reevaluation?
Discussion:
An initial evaluation of a
child is the first complete assessment of
a child to determine if the child has a
disability under the Act, and the nature
and extent of special education and
related services required. Once a child
has been fully evaluated, a decision has
been rendered that a child is eligible for
services under the Act, and the required
services have been determined, any
subsequent evaluation of a child would
constitute a reevaluation. In the
example provided by the commenter,
the second evaluation would be
considered a reevaluation.
Changes:
None.
Comment:
One commenter
recommended that reevaluations be
required at least once every three years
because a child’s mental and physical
profile changes in three years, and thus,
so would the child’s educational needs.
Another commenter recommended
requiring LEAs to inform parents that
information from the most recent
evaluation, which could be three or
more years old if the parent agrees that
a reevaluation is unnecessary, will be
used in the development of a child’s
IEP.
A few commenters recommended an
accountability process for LEAs that do
not conduct reevaluations at least every
three years. The commenters
recommended requiring LEAs to report
to the State the number of children with
disabilities who qualified for, but were
not given a three-year reevaluation;
provide prior written notice to parents
if the LEA determines that a three-year
reevaluation is not necessary, including
the justification for such determination;
and inform the parent in writing in the
parent’s language that a three-year
reevaluation will be conducted if the
parent disagrees with the LEA’s
determination.
One commenter recommended
requiring an LEA that does not conduct
a reevaluation at least once every three
years to justify the reasons in writing,
especially if there is evidence that the
child is not meeting the State’s
academic achievement standards.
Discussion:
Section 300.303(b)(2),
consistent with section 614(a)(2)(B)(ii)
of the Act, requires a reevaluation to
occur at least once every three years,
unless the parent and the public agency
agree that a reevaluation is unnecessary.
It would be overly burdensome to
require an LEA to report to the State the
number of children with disabilities
who qualified for, but were not given a
three-year reevaluation. Similarly, it
would be overly burdensome to require
LEAs to inform parents that information
from the most recent evaluation will be
used to develop a child’s IEP or to
justify to the parent in writing the LEA’s
reasons for not conducting a
reevaluation every three years if the
parent and the agency have already
agreed that a reevaluation is
unnecessary.
If a parent requests a reevaluation and
the public agency disagrees that a
reevaluation is needed, the public
agency must provide prior written
notice to the parent, consistent with
§ 300.503, that explains, among other
things, why the agency refuses to
conduct the reevaluation and the
parent’s right to contest the agency’s
decision through mediation or a due
process hearing.
In situations where a public agency
believes a reevaluation is necessary, but
the parent disagrees and refuses consent
for a reevaluation, new
§ 300.300(c)(1)(ii) is clear that the public
agency may, but is not required to,
pursue the reevaluation by using the
consent override procedures described
in § 300.300(a)(3).
Changes:
None.
Comment:
One commenter
recommended the following
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed based on
alternate achievement standards: (a)
Prohibiting the public agency from
automatically determining that a three-
year reevaluation is not needed; (b)
requiring the public agency to consider
whether the child has been correctly
identified to be assessed against
alternate achievement standards; and (c)
requiring a review of evaluation data to
determine whether the child is, to the
extent possible, being educated in the
general curriculum and assessed with
instruments aligned with that
curriculum.
Discussion:
We do not believe
changes to the regulations are necessary
to address the commenter’s concerns.
The Act does not include any special
requirements for the reevaluation of a
child with the most significant cognitive
disabilities who is assessed against
alternate achievement standards. It
would be inconsistent with the
individualized evaluation and
reevaluation procedures in section
614(b) and (c) of the Act for a public
agency to automatically determine that
reevaluations are unnecessary for a
specific group of children. In
determining whether a reevaluation is
needed, the parent and the public
agency must consider the child’s
educational needs, which may include
whether the child is participating in the
general education curriculum and being
assessed appropriately.
Changes:
None.
Comment:
One commenter
recommended clarifying that parents
have the right to prevent the over-testing
of their child and that the requirements
for reevaluations do not diminish the
rights of parents to make decisions
regarding the reevaluation. Several
commenters recommended that the
regulations require States to establish
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additional procedural safeguards to
ensure that parents who agree that a
reevaluation is unnecessary are aware of
the implications of their decision.
Discussion:
There is nothing in the
Act to suggest that the requirements for
reevaluations in § 300.303 diminish the
rights of parents. As stated in § 300.303,
consistent with section 614(a)(2) of the
Act, a parent can request a reevaluation
at any time, and can agree with the
public agency to conduct a reevaluation
more frequently than once a year.
Likewise, a parent and a public agency
can agree that a reevaluation is not
necessary. We believe that in reaching
an agreement that a reevaluation is
unnecessary, as provided for in
§ 300.303(b), the parent and public
agency will discuss the advantages and
disadvantages of conducting a
reevaluation, as well as what effect a
reevaluation might have on the child’s
educational program. Therefore, we do
not agree with the commenter that
additional procedural safeguards are
necessary to ensure that parents who
agree that a reevaluation is unnecessary
are aware of the implications of their
decision.
Changes:
None.
Comment:
Many commenters
requested that the opportunity to waive
a reevaluation occur only after the IEP
Team has reviewed extant data to
determine whether additional data are
needed to determine the child’s
eligibility and the educational needs of
the child.
Discussion:
The review of existing
data is part of the reevaluation process.
Section 300.305(a), consistent with
section 614(c)(1) of the Act, is clear that,
as part of any reevaluation, the IEP
Team and other qualified professionals,
as appropriate, must review existing
evaluation data, and on the basis of that
review, and input from the child’s
parents, identify what additional data, if
any, are needed to determine whether
the child continues to have a disability,
and the educational needs of the child.
Therefore, the opportunity for a parent
and the public agency to agree that a
reevaluation is unnecessary occurs
before a reevaluation begins. It would be
inconsistent with the Act to implement
the commenters’ recommendation.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify that waiving a three-year
reevaluation must not be adopted as
routine agency policy or practice and
should only be used in exceptional
circumstances. Another commenter
recommended that the regulations
require the LEA to offer parents a
reevaluation at least annually when a
parent agrees that a three-year
reevaluation is not needed. Another
commenter recommended that the
regulations clarify that a reevaluation
may be warranted more than once a year
if the child’s condition changes or new
information becomes available that has
an impact on the child’s educational
situation.
Discussion:
It is not necessary to add
language clarifying that waiving three-
year reevaluations must not be a routine
agency policy or practice because the
regulations are clear that this is a
decision that is made individually for
each child by the parent of the child and
the public agency. Section
300.303(b)(2), consistent with section
614(a)(2)(B)(ii) of the Act, states that a
reevaluation must occur at least once
every three years, unless the parent and
the public agency agree that a
reevaluation is unnecessary. When a
parent and a public agency agree that a
three-year reevaluation is unnecessary,
there is no requirement that the public
agency offer the parent a reevaluation
each year. We do not believe that it is
necessary to have such a requirement
because if parents who have waived a
three year reevaluation later decide to
request an evaluation, they can do so.
Also, public agencies have a continuing
responsibility to request parental
consent for a reevaluation if they
determine that the child’s educational
or related services needs warrant a
reevaluation.
We do not believe additional
regulations are needed to clarify that a
reevaluation can occur more than once
a year. Section 300.303(b)(1), consistent
with section 614(a)(2)(B)(i) of the Act,
already provides that a reevaluation can
occur more than once a year if the
parent and the public agency agree that
a reevaluation is needed.
Changes:
None.
Comment:
One commenter asked
whether the agreement between the
parent and the public agency that a
reevaluation is unnecessary is the same
as parental consent in § 300.9.
Discussion:
An agreement between a
parent and a public agency is not the
same as parental consent in § 300.9.
Rather, an agreement refers to an
understanding between a parent and the
public agency and does not need to
meet the requirements for parental
consent in § 300.9.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify that when a parent obtains an
independent educational evaluation
(IEE) and provides new information to
the public agency, a reevaluation could
be conducted more than once a year so
that the public agency can verify the
results of the IEE.
Discussion:
The changes
recommended by the commenter are
unnecessary. Section 300.303(b)(1),
consistent with section 614(a)(2)(B)(i) of
the Act, is clear that a reevaluation can
be conducted more than once a year if
the parent and the public agency agree
that it is necessary. Therefore, in the
situation presented by the commenter, if
the results of an IEE provide new
information that the public agency and
the parent agree warrant a reevaluation,
the parent and the public agency could
agree to conduct a reevaluation.
Changes:
None.
Comment:
One commenter asked
whether an IEE is considered a
reevaluation and whether an IEE is
prohibited within less than a year of the
public agency’s most recent evaluation.
Discussion:
An IEE would be
considered as a potential source of
additional information that the public
agency and parent could consider in
determining whether the educational or
related services needs of the child
warrant a reevaluation, but it would not
be considered a reevaluation. There is
no restriction on when a parent can
request an IEE.
Changes:
None.
Evaluation Procedures (§ 300.304)
Notice (§ 300.304(a))
Comment:
Numerous commenters
recommended that the regulations
clarify that the requirement for prior
written notice to parents in § 300.304(a)
is satisfied if the public agency notifies
the parent of the type(s) of assessment(s)
that will be conducted. One commenter
stated that the prior written notice
requirements for evaluations should be
satisfied if the public agency notifies the
parent of the type(s) of assessment(s)
that will be conducted, the method(s) of
assessment, and the persons who will
conduct the assessment(s).
Discussion:
It would be inconsistent
with the Act for a public agency to limit
the contents of the prior written notice
in the manner requested by the
commenters. In addition to describing
the evaluation procedures the agency
proposes to use, as required in
§ 300.303(a), section 615(c)(1) of the Act
requires the prior written notice to
include an explanation of why the
agency proposes to evaluate the child; a
description of each evaluation
procedure, assessment, record, or report
the agency used as a basis for requesting
the evaluation; a statement that the
parents have protection under the
procedural safeguards of the Act, and if
this notice is not an initial referral for
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evaluation, the means by which a copy
of the procedural safeguards can be
obtained; sources for the parents to
contact to obtain assistance in
understanding the provisions of the Act;
a description of other options that were
considered and why these reasons were
rejected; and a description of other
factors that are relevant to the agency’s
proposal to request consent for an
evaluation.
Changes:
None.
Comment:
A few commenters stated
that the notice to parents regarding the
evaluation procedures the agency
proposes to use must be provided in the
native language of the parents, and
recommended that this requirement be
clarified in § 300.304.
Discussion:
Information regarding the
evaluation procedures the agency
proposes to use, as required in
§ 300.303(a), is included in the prior
written notice required in
§ 300.503(c)(1)(ii). Section
300.503(c)(1)(ii) requires, that the prior
written notice to parents be provided in
the native language of the parent or
other mode of communication used by
the parent, unless it is clearly not
feasible to do so. We see no need to
repeat these requirements in § 300.304
and believe that doing so could cause
confusion about the status of other
applicable requirements that would not
be repeated in this section.
Changes:
None.
Conduct of Evaluation (§ 300.304(b))
Comment:
One commenter asked
whether the ‘‘procedure’’ referred to in
§ 300.304(b)(2) is the same as the
‘‘measure or assessment’’ referred to in
section 614(b)(2)(B) of the Act. Another
commenter recommended changing
§ 300.304(b)(2) to follow the statutory
language.
Discussion:
Section 300.304(b)(2), as
proposed, states that the public agency
may not use any single ‘‘procedure’’ as
the sole criterion for determining
whether a child is a child with a
disability and for determining an
appropriate educational program for the
child. Section 614(b)(2)(B) of the Act
states that in conducting an evaluation,
the LEA must not use any single
‘‘measure or assessment’’ as the sole
criterion for determining whether a
child is a child with a disability or
determining an appropriate educational
program for the child. We agree that the
statutory language should be used in
§ 300.304(b)(2) because use of the term
‘‘procedure,’’ rather than ‘‘measurement
or assessment,’’ could be confusing.
Changes:
We have changed
‘‘procedure’’ to ‘‘measurement or
assessment’’ in § 300.304(b)(2),
consistent with the statutory language.
Comment:
One commenter
recommended adding the word
‘‘always’’ to § 300.304(b) to state that the
public agency must ‘‘always’’ conduct
an evaluation in accordance with the
requirements in § 300.304(b)(1) through
(b)(3).
Discussion:
Adding the word
‘‘always’’ to § 300.304(b) would not
change the requirements for conducting
an evaluation consistent with
§ 300.304(b). The regulation already
requires a public agency to conduct the
evaluation in accordance with
§ 300.304(b)(1) through (b)(3) and there
are no exceptions to that requirement.
Therefore, we decline to change
§ 300.304(b) in the manner
recommended by the commenter.
Changes:
None.
Comment:
One commenter
recommended that the regulations
define ‘‘technically sound instruments’’
and ‘‘relative contribution’’ in
§ 300.304(b)(3). Another commenter
recommended that the instruments used
in reevaluations to determine whether
the child continues to have a disability
should be based on scientific research
methods.
Discussion:
Section 300.304(b)(3)
follows the specific language in section
614(b)(2)(C) of the Act and requires that
the evaluation of a child use technically
sound instruments that may assess the
relative contribution of cognitive and
behavioral factors, in addition to
physical and developmental factors.
‘‘Technically sound instruments’’
generally refers to assessments that have
been shown through research to be valid
and reliable. Therefore, it would be
redundant to add language requiring
that instruments used in reevaluations
be based on scientific research methods,
as recommended by one commenter.
The phrase ‘‘relative contribution,’’ as
used in § 300.304(b)(3), generally means
that assessment instruments that allow
the examiner to determine the extent to
which a child’s behavior is a result of
cognitive, behavioral, physical, or
developmental factors may be used in
evaluating a child in accordance with
§ 300.304. Because the meaning of
‘‘relative contribution’’ is context
specific, we do not believe it should be
defined in these regulations.
Changes:
None.
Other Evaluation Procedures
(§ 300.304(c))
Comment:
One commenter
recommended clarifying that differences
in language and socialization practices
must be considered when determining
eligibility for special education and
related services, including biases related
to the assessment.
Discussion:
We do not believe that the
clarification requested by the
commenter is necessary. The Act and
these regulations recognize that some
assessments may be biased and
discriminatory for children with
differences in language and
socialization practices. Section
614(b)(3)(A)(i) of the Act requires that
assessments and other evaluation
materials used to assess a child under
the Act are selected and administered so
as not to be discriminatory on a racial
or cultural basis. Additionally, in
interpreting evaluation data for the
purpose of determining eligibility of a
child for special education and related
services, § 300.306(c) requires each
public agency to draw upon information
from a variety of sources, including
aptitude and achievement tests, parent
input, teacher recommendations, as well
as information regarding a child’s
physical condition, social or cultural
background, and adaptive behavior. We
believe that these provisions provide
adequate protection for the concerns
raised by the commenter.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify that a public
agency should not use the ‘‘not clearly
feasible’’ exception in § 300.304(c)(1)(ii)
to improperly limit a child’s right to be
evaluated in the child’s native language
or other mode of communication.
Discussion:
Section 300.304(c)(1)(ii),
consistent with section 614(b)(3)(A)(ii)
of the Act, requires that assessments and
other evaluation materials used to assess
a child be provided and administered in
the child’s native language or other
mode of communication and in the form
most likely to yield accurate
information on what the child knows
and can do, unless it is clearly not
feasible to so provide or administer. We
agree that this provision should not be
improperly used to limit evaluations in
a child’s native language, but we do not
believe that a change to the regulations
is necessary or that it would prevent
inappropriate application of the existing
rule.
Changes:
None.
Comment:
One commenter
recommended including ‘‘behavior’’ in
the list of areas to be evaluated in
§ 300.304(c)(4). Another commenter
recommended requiring a functional
behavioral assessment to be part of a
child’s evaluation whenever any
member of the IEP Team requests it or
raises concerns about the child’s
behavior. One commenter asked why
physical assessments were not included
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in the list of assessments that should be
conducted.
Discussion:
Section 300.304(c)(4)
requires the public agency to ensure that
the child is assessed in all areas related
to the suspected disability. This could
include, if appropriate, health, vision,
hearing, social and emotional status,
general intelligence, academic
performance, communicative status, and
motor abilities. This is not an
exhaustive list of areas that must be
assessed. Decisions regarding the areas
to be assessed are determined by the
suspected needs of the child. If a child’s
behavior or physical status is of
concern, evaluations addressing these
areas must be conducted. No further
clarification is necessary.
Changes:
None.
Comment:
Many commenters
recommended that the evaluation report
include a description of the extent to
which an assessment varied from
standard conditions because there are
few assessments that produce valid and
reliable information for English
language learners suspected of having a
disability. Several commenters stated
that it is standard practice for
professionals administering assessments
to include information in their reports
when assessments are conducted using
nonstandard conditions. One
commenter recommended that the
regulations require all evaluation
reports to clearly indicate the language
or other mode of communication used
in assessing a child and a determination
of whether using such language or other
mode of communication yielded
accurate information.
Discussion:
As stated by several
commenters, it is standard test
administration practice to include in the
evaluation report the extent to which an
assessment varied from standard
conditions, including the language or
other mode of communication that was
used in assessing a child. It is, therefore,
unnecessary to include this requirement
in the regulations.
Changes:
None.
Comment:
Many commenters
recommended that the regulations
require public agencies to provide
parents with evidence that the
assessments to be used are reliable and
valid for their particular use, as well as
assurances that the assessments will be
administered in the child’s primary
language or mode of communication.
The commenters also recommended that
public agencies be required to provide
parents with information regarding the
assumptions being made about the tests
and the inferences that can be drawn
from the test results.
Discussion:
Section 300.304(a),
consistent with section 614(b)(1) of the
Act, requires the public agency to
provide notice to the parents of a child
with a disability, in accordance with
§ 300.503, that describes the evaluation
procedures the agency proposes to
conduct. To require public agencies to
provide all parents with the specific
information recommended by the
commenters would be burdensome for
public agencies, and could be
overwhelming for some parents, and
therefore, we decline to add such a
requirement to the regulations. While
we understand that some parents will
want the detailed information
mentioned by the commenter, parents
can always request such additional
information before providing informed
written consent for the evaluation or
reevaluation.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
require comprehensive psychological
and educational evaluations to rule out
alternate causes of functional
impairments in academic achievement.
Discussion:
We believe the regulations
already address the commenters’
concerns and we do not believe any
further clarification is necessary.
Section 300.304(c)(6) requires that
evaluations are sufficiently
comprehensive to identify all of the
child’s special education and related
services needs, whether or not
commonly linked to the disability
category in which the child has been
identified. In addition, § 300.306(b),
consistent with section 614(b)(5) of the
Act, states that a child must not be
determined to be a child with a
disability if the determinant factor for
that determination is lack of appropriate
instruction in reading or math, or
limited English proficiency.
Changes:
None.
Comment:
Several commenters
recommended that the requirements in
new § 300.301(d)(2) and (e) (proposed
§ 300.301(d)(2)(i) and (ii)), regarding
children who transfer to another public
agency before an initial evaluation is
completed, should be cross-referenced
in § 300.304(c)(5).
Discussion:
We agree that a cross-
reference in § 300.304(c)(5) is
appropriate.
Changes:
We have added ‘‘consistent
with § 300.301(d)(2) and (e),’’ following
‘‘possible’’ in § 300.304(c)(5).
Comment:
None.
Discussion:
In reviewing
§ 300.304(c)(5), we determined that
§ 300.304(c)(5) should be amended to
refer to children with disabilities who
transfer to another public agency ‘‘in the
same school year’’ rather than ‘‘in the
same academic year’’ because that is the
term most commonly understood by
parents and school officials.
Changes:
We have changed ‘‘academic
year’’ to ‘‘school year’’ in
§ 300.304(c)(5).
Comment:
One commenter
recommended adding language
regarding scientifically based special
education and related services to
§ 300.304(c)(6).
Discussion:
Section 300.304(c)(6)
requires that the evaluation of a child
with a disability be sufficiently
comprehensive to identify all the child’s
special education and related services
needs, whether or not commonly linked
to the disability category in which the
child has been classified. We believe
that the focus on providing scientifically
based special education and related
services is clear in the Act and these
regulations and do not believe it is
necessary to refer to ‘‘scientifically
based’’ services each time we refer to
special education and related services.
Therefore, we decline to add this
language in § 300.304(c)(6), as requested
by the commenter.
Changes:
None.
Additional Requirements for
Evaluations and Reevaluations
(§ 300.305)
Review of Existing Evaluation Data
(§ 300.305(a))
Comment:
One commenter stated that
a comma should be added after ‘‘current
classroom-based’’ in § 300.305(a)(1)(ii)
to clarify that a review of existing
evaluation data for a child must include,
as appropriate, data from three types of
assessments: Current classroom-based,
local, or State assessments.
Discussion:
We agree with the
commenter and will revise the language
consistent with the commenter’s
suggestion and consistent with section
614(c)(1)(A)(ii) of the Act. The changes
will clarify that a review of existing
evaluation data on a child must include,
as appropriate, current classroom-based,
local, or State assessment data.
Changes:
We have inserted a comma
following ‘‘classroom based’’ and
‘‘local’’ in § 300.305(a)(1)(ii), consistent
with the statutory language.
Comment:
One commenter asked
whether a public agency must conduct
a reevaluation when a reevaluation is
requested to determine the child’s
educational and functional needs, but
the child’s eligibility for special
education and related services is not in
question.
Discussion:
Section 300.305(a)(2),
consistent with section 614(c)(1)(B) of
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the Act, states that one of the purposes
of a reevaluation is to determine the
educational needs of the child,
including whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the child’s IEP
goals and to participate in the general
education curriculum. Thus, if a
reevaluation is requested to determine
the child’s educational needs when the
child’s continued eligibility is not in
question, the public agency must either
conduct the reevaluation or provide
notice to the parents as to why the
public agency believes a reevaluation is
unnecessary.
Changes:
None.
Requirements if Additional Data Are
Not Needed (§ 300.305(d))
Comment:
One commenter requested
that the regulations define or remove the
phrase ‘‘qualified professionals, as
appropriate’’ in § 300.305(d)(1).
Discussion:
Section 300.305(d)(1)
follows the specific language in section
614(c)(1) of the Act and refers to the
decision made by the IEP Team and
‘‘other qualified professionals, as
appropriate’’ regarding whether
additional data are needed to determine
whether a child continues to be a child
with a disability and the child’s
educational needs. The phrase,
‘‘qualified professionals, as appropriate’’
is used to provide flexibility for public
agencies to include other professionals
who may not be a part of the child’s IEP
Team in the group that determines if
additional data are needed to make an
eligibility determination and determine
the child’s educational needs. We
believe that public agencies should have
flexibility in determining how to define
‘‘qualified professionals’’ and we do not
believe a definition should be included
in the regulations.
Changes:
None.
Evaluations Before Change in Eligibility
(Proposed Evaluations Before Change in
Placement) (§ 300.305(e))
Comment:
One commenter stated that
the heading for § 300.305(e),
‘‘Evaluations before change in
placement’’ should be changed because
the regulations that follow do not deal
with changes in placement. Another
commenter requested clarification
regarding the meaning of the term
‘‘placement.’’ The commenter stated
that § 300.305(e) uses the term to mean
that special education services are no
longer required, but that this is not the
meaning when used in the context of
alternative educational placements. The
commenter also asked whether moving
a child from a self-contained classroom
to a resource room is a change of
placement.
Discussion:
We agree that the heading
for § 300.305(e) should be changed to
more accurately reflect the requirements
in this subsection. We will, therefore,
change the heading to ‘‘Evaluations
before change in eligibility,’’ which is
consistent with the heading in section
614(c)(5) of the Act.
With regard to the commenter’s
question about whether moving a child
from a self-contained classroom to a
resource room would be a change of
placement, we believe that it would be,
as it would change the child’s level of
interaction with his or her nondisabled
peers. However, as noted previously, the
term ‘‘change of placement’’ should not
have been used in connection this
regulation.
In the example provided by the
commenter, generally, if a child is
moved from a self-contained classroom
to a resource room, it is likely that the
child’s current IEP cannot be
implemented in the resource room,
because the educational program in the
resource room is likely to be
substantially and materially different
than the educational program in the
self-contained classroom or the
educational program in the resource
room would change the level of
interaction with nondisabled peers.
Therefore, this situation would likely be
a change of placement under the Act.
Changes:
We have removed the
heading ‘‘Evaluations before change in
placement’’ in § 300.305(e) and replaced
it with ‘‘Evaluations before change in
eligibility’’ for clarity and consistency
with the heading in section 614(c)(5) of
the Act.
Comment:
Many commenters
recommended that evaluations for other
institutions (e.g., vocational
rehabilitation agencies, colleges and
universities) should be required before a
child graduates from secondary school
with a regular diploma or exceeds the
age limit for FAPE. However, a number
of commenters disagreed and stated that
public agencies should not be required
to conduct evaluations that will be used
to meet the entrance or eligibility
requirements of another institution or
agency. One commenter requested
clarification regarding whether schools
must provide updated evaluations for
college testing and admissions purposes
and recommended including language
in the regulations that explicitly states
that public agencies are not required to
conduct tests that are needed for
admission to postsecondary programs.
Another commenter recommended that
the regulations clarify that LEAs have
responsibility for providing the
postsecondary services that are included
in the summary of the child’s academic
achievement and functional
performance.
One commenter requested requiring a
reevaluation before a child exits the
school system. Another commenter
recommended clarifying that a
comprehensive evaluation is not
required for children aging out of
special education.
A number of commenters provided
recommendations on the information
that should be included in the summary
of a child’s academic and functional
performance required in § 300.305(e)(3).
Commenters suggested that the
summary report should include
information about the child’s disability;
the effect of the disability on the child’s
academic and functional performance
(sufficient to establish eligibility under
the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act, if
appropriate); any needed modifications
or adaptations essential to the child’s
success; the child’s most recent
evaluations by professionals, including
the child’s academic achievement and
functional performance levels; assistive
technology and other supports used by
the child; and any modifications and
supports that would facilitate the child’s
successful transition to postsecondary
education or employment.
Discussion:
We do not believe that the
regulations should require public
agencies to conduct evaluations for
children to meet the entrance or
eligibility requirements of another
institution or agency because to do so
would impose a significant cost on
public agencies that is not required by
the Act. While the requirements for
secondary transition are intended to
help parents and schools assist children
with disabilities transition beyond high
school, section 614(c)(5) in the Act does
not require a public agency to assess a
child with a disability to determine the
child’s eligibility to be considered a
child with a disability in another
agency, such as a vocational
rehabilitation program, or a college or
other postsecondary setting. The Act
also does not require LEAs to provide
the postsecondary services that may be
included in the summary of the child’s
academic achievement and functional
performance. We believe it would
impose costs on public agencies not
contemplated by the Act to include such
requirements in the regulations.
It would be inconsistent with the Act
to require public agencies to conduct
evaluations for children who are exiting
the school system because they exceed
the age for eligibility under State law.
Section 300.305(e)(2), consistent with
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section 614(c)(5)(B)(i) of the Act, is clear
that an evaluation in accordance with
§§ 300.304 through 300.311 is not
required before the termination of a
child’s eligibility under the Act due to
graduation from secondary school with
a regular diploma or due to exceeding
the age eligibility for FAPE under State
law.
Section 300.305(e)(3), consistent with
section 614(c)(5)(B)(ii) of the Act, states
that the summary required when a child
graduates with a regular diploma or
exceeds the age eligibility under State
law must include information about the
child’s academic achievement and
functional performance, as well as
recommendations on how to assist the
child in meeting the child’s
postsecondary goals. The Act does not
otherwise specify the information that
must be included in the summary and
we do not believe that the regulations
should include a list of required
information. Rather, we believe that
State and local officials should have the
flexibility to determine the appropriate
content in a child’s summary, based on
the child’s individual needs and
postsecondary goals.
Changes:
None.
Comment:
One commenter stated that
public agencies should not be required
to conduct an evaluation of a child who
graduates with a regular diploma
because a regular diploma means that
the child has met the same requirements
and achieved the same or similar level
of competency as the child’s
nondisabled classmates. The commenter
also requested that the regulations
define a regular diploma to mean that
the child has reached a comparable
level of achievement as the child’s
nondisabled classmates.
Discussion:
Section 300.305(e)(2)
specifically states that a public agency
does not need to evaluate a child with
a disability who graduates with a
regular diploma. In addition, as noted in
the
Analysis of Comments and Changes
section for subpart B, we have clarified
in § 300.101(a)(3)(iv) that a regular
diploma does not include alternate
degrees, such as a general educational
development (GED) credential. We do
not believe that any further clarification
with respect to the definition of ‘‘regular
diploma’’ is necessary.
Changes:
None.
Determination of Eligibility (§ 300.306)
Comment:
One commenter
recommended that the regulations
require public agencies to provide
parents with copies of all evaluations at
no cost. However, another commenter
stated that evaluations are often lengthy
and requested clarification as to
whether public agencies must provide
copies of evaluations to parents at no
cost.
Discussion:
Section 300.306(a)(2),
consistent with section 614(b)(4)(B) of
the Act, requires that a copy of the
evaluation report and the
documentation of determination of
eligibility be given to the parent. We
have added language to § 300.306(a)(2)
to clarify that the public agency must
provide these copies at no cost to the
parent.
With regard to providing parents with
copies of all evaluations, § 300.501(a),
consistent with section 615(b)(1) of the
Act, affords parents an opportunity to
inspect and review all education records
with respect to the identification,
evaluation, and educational placement
of the child, and the provision of a
FAPE to the child. Specific procedures
for access to records are contained in
the confidentiality provisions in
§§ 300.610 through 300.627.
Section 300.613 requires a public
agency to permit a parent to inspect and
review any education records relating to
their child that are collected,
maintained, or used by the agency
under the Act. The right to inspect and
review records includes the right to a
response from the agency to reasonable
requests for explanations and
interpretations of the records; the right
to request that the agency provide
copies of the records containing the
information if failure to provide those
copies would effectively prevent the
parent from exercising the right to
inspect and review the records; and the
right to have a representative of the
parent inspect and review the records.
To the extent that the commenters may
have been concerned about free copies
of evaluation documents that would not
be provided under the above
regulations, we decline to regulate
further, as we believe that the cited
provisions adequately balance the
interests of the parents for free copies
and the public agencies in controlling
costs.
Changes:
We have added language to
§ 300.306(a)(2) to clarify that the
evaluation report and the
documentation of determination of
eligibility must be provided at no cost
to the parent.
Comment:
One commenter
recommended that parents receive
evaluation reports prior to an IEP Team
meeting because the reports may have
information that parents need to
participate in making decisions about
the IEP. The commenter stated that, if
parents receive reports at meetings,
rather than before the meetings, they
cannot be active participants. Another
commenter stated that parents should be
provided with copies of documents
related to the determination of
eligibility at least five days prior to the
eligibility determination meeting.
Discussion:
The Act does not establish
a timeline for providing a copy of the
evaluation report or the documentation
of determination of eligibility to the
parents and we do not believe that a
specific timeline should be included in
the regulations because this is a matter
that is best left to State and local
discretion. It is, however, important to
ensure that parents have the information
they need to participate meaningfully in
IEP Team meetings, which may include
reviewing their child’s records. Section
300.613(a) requires a public agency to
comply with a parent request to inspect
and review existing education records,
including an evaluation report, without
unnecessary delay and before any
meeting regarding an IEP, and in no case
more than 45 days after the request has
been made. This includes the right to a
response from the public agency to
reasonable requests for explanations and
interpretations of records, consistent
with § 300.613(b)(1).
While it would be appropriate for
parents to review documents related to
the determination of eligibility prior to
the eligibility determination, there is no
requirement that eligibility be
determined at an IEP Team meeting and
it would not be appropriate for a public
agency to provide documentation of the
determination of eligibility prior to
discussing a child’s eligibility for
special education and related services
with the parent. Section 300.306(a)(1)
and section 614(b)(4)(A) of the Act
require that a group of qualified
professionals and the parent determine
whether the child is a child with a
disability. Therefore, providing
documentation of the eligibility
determination to a parent prior to a
discussion with the parent regarding the
child’s eligibility would indicate that
the public agency made its
determination without including the
parent and possibly, qualified
professionals, in the decision.
Changes:
None.
Special Rule for Eligibility
Determination (§ 300.306(b))
Comment:
A number of commenters
recommended other factors that should
be ruled out before a child is
determined to be a child with a
disability. Many commenters stated that
a child should not be determined to be
a child with a disability if the
determinant factor is lack of instruction
in English language development or lack
of access to State content standards. A
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few commenters expressed concern
regarding subjective judgments about
the definition of ‘‘appropriate
instruction.’’ One commenter stated that
determining the quality of reading
instruction that children received in the
past might be difficult, if not
impossible, especially when children
are referred for an evaluation after they
enter middle school or are highly
mobile.
Discussion:
We agree that a child
should not be determined to be a child
with a disability if the determinant
factor is lack of access to State content
standards, and we believe this is
implicit in section 614(b)(5) of the Act,
which states that a child must not be
determined to be a child with a
disability if the determinant factor is
lack of appropriate instruction in
reading (including the essential
components of reading instruction, as
defined in the ESEA) or lack of
instruction in math.
During the Department’s internal
review of these regulations, we noted
that, while § 300.306(b)(1)(i) refers to
lack of ‘‘appropriate’’ instruction in
reading, there is no similar qualifier for
math. We believe it is equally important
that a child not be determined to be a
child with a disability if the
determinant factor is the lack of
‘‘appropriate’’ instruction in math.
Therefore, we will revise
§ 300.306(b)(1)(ii) to make this clear.
We are unclear what the commenter
means by lack of instruction in English
language development. However, if a
child’s low achievement is a result of
limited English proficiency or lack of
access to instruction in reading, the
child must not be determined to be a
child with a disability, consistent with
section 614(b)(5) of the Act.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. While
information regarding the quality of
instruction a child received in the past
may be helpful in determining whether
a child is eligible for special education
services, it is not essential. Schools,
however, must ensure that the
determinant factor in deciding that a
child is a child with a disability is not
a lack of appropriate instruction in
reading and math.
Changes:
We have added
‘‘appropriate’’ in § 300.306(b)(1)(ii) to
refer to a ‘‘lack of appropriate
instruction in math.’’
Comment:
Some commenters
requested that we include in the
regulations the essential components of
reading instruction defined in the ESEA.
Discussion:
For reasons set forth
elsewhere in this preamble, we are not
adding definitions to these regulations
from statutes other than the Act.
However, the definition of the essential
components of reading instruction from
section 1208(3) of the ESEA is included
here for reference.
Essential Components of Reading
Instruction—
The term ‘‘essential
components of reading instruction’’
means explicit and systematic
instruction in—
(A) Phonemic awareness;
(B) Phonics;
(C) Vocabulary development;
(D) Reading fluency, including oral
reading skills; and
(E) Reading comprehension strategies.
Changes:
None.
Procedures for Determining Eligibility
and Educational Need (Proposed
Procedures for Determining Eligibility
and Placement) (§ 300.306(c))
Comment:
None.
Discussion:
During the review of these
regulations, we noted that section
614(b)(4) of the Act refers to procedures
for determining eligibility and
‘‘educational need,’’ rather than
procedures for determining eligibility
and ‘‘placement,’’ as in the heading for
proposed § 300.306(c). Therefore, we
will change the heading in § 300.306(c)
to be consistent with section 614(b)(4) of
the Act.
Changes:
We have replaced
‘‘placement’’ with ‘‘educational need’’
in the heading to § 300.306(c),
consistent with section 614(b)(4) of the
Act.
Additional Procedures for Identifying
Children With Specific Learning
Disabilities
Specific Learning Disabilities
(§ 300.307)
Comment:
Numerous commenters
supported proposed § 300.307(a)(1),
which allowed States to prohibit LEAs
from using a severe discrepancy
between IQ and achievement
(discrepancy models) to determine
eligibility under the specific learning
disability (SLD) category. However,
many commenters supported the use of
discrepancy models and requested that
the regulations allow discrepancy
models to continue to be used.
Numerous commenters stated that
§ 300.307(a)(1) exceeds statutory
authority and that LEAs should be
permitted to use discrepancy models.
Many commenters cited Conf. Rpt. 108–
779 and stated that Congress did not
intend to prohibit LEAs from using
discrepancy models.
Discussion:
The Department agrees
that proposed § 300.307(a)(1) should be
removed. We believe this will improve
the clarity of the regulations and make
it easier for parents and professionals to
understand. With respect to permitting
LEAs to use discrepancy models, even
with the removal of § 300.307(a)(1),
States are responsible for developing
criteria to determine whether a child is
a child with a disability, as defined in
§ 300.8 and section 602(3) of the Act,
including whether a particular child
meets the criteria for having an SLD.
Under section 614(b)(6) of the Act,
States are free to prohibit the use of a
discrepancy model. States, including
States that did not use a discrepancy
model prior to the Act, are not required
to develop criteria that permit the use of
a discrepancy model.
Changes:
We have removed
§ 300.307(a)(1) and redesignated the
subsequent provisions in § 300.307.
Comment:
Many commenters stated
that response to intervention (RTI)
should be considered one component of
the evaluation process and not the sole
component. Another commenter stated
that neither a discrepancy model nor an
RTI model alone can correctly identify
children with SLD and that other data
are needed, such as informal and formal
assessments, histories, and observations.
One commenter stated that all relevant
and available evaluation data, such as
the nature and type of evaluation,
evaluator qualifications, and outcome
data should be considered. One
commenter recommended that RTI be
tied to the general evaluation
procedures. Another commenter
recommended referencing the
evaluation procedures in § 300.309 to
clarify that RTI must be used as one
component of the evaluation process to
determine eligibility for special
education and related services. Several
commenters stated that relying solely on
an RTI model would result in larger
numbers of children being identified
with an SLD.
Discussion:
Consistent with
§ 300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for
special education and related services.
This requirement applies to all children
suspected of having a disability,
including those suspected of having an
SLD.
To simplify new § 300.307(a)(2)
(proposed § 300.307(a)(3)) and remove
unnecessary repetition, we will: (a)
Remove the phrase ‘‘as part of the
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1
Tilly III, W. D. (2002). School psychology as a
problem solving enterprise. In A. Thomas & J.
Grimes (Eds.),
Best Practices in School Psychology
IV.
Washington D.C.: National Association of
School Psychologists; VanDerHeyden, A.M, Witt,
J.C, & Gilbertson, D. (in press). Effect of a problem
solving intervention on the accurate identification
of children.
Journal of School Psychology;
Marston,
D., Muyskens, P., Lau, M., & Canter, A. (2003).
Problem-solving model for decision making with
high incidence disabilities: The Minneapolis
experience.
Learning Disabilities Research and
Practice,
18, 187–200; Gresham, F., VanDerHeyden,
A.M, & Witt, J.C. (in press). Response to
intervention in the identification of learning
disabilities: Empirical support and future
challenges.
School Psychology Review;
National
Association of State Directors of Special Education
(2005). Response to intervention: policy
considerations and implementations. Alexandria
VA: Author.
evaluation procedures described in
§ 300.304;’’ and (b) replace ‘‘process that
determines if the child responds to
scientific, research-based intervention’’
with ‘‘process based on the child’s
response to scientific, research-based
intervention.’’ Section 300.311(a)(7) will
also be revised, consistent with this
language.
Changes:
We have revised new
§ 300.307(a)(2) (proposed
§ 300.307(a)(3)) and § 300.311(a)(7) for
clarity.
Comment:
Several commenters
recommended changing new
§ 300.307(a)(2) (proposed
§ 300.307(a)(3)) to require that State
criteria ‘‘may’’ rather than ‘‘must’’
permit a process that determines if a
child responds to research-based
intervention in order to be consistent
with section 614(b)(6)(B) of the Act.
Discussion:
Making the requested
change to new § 300.307(a)(2) (proposed
§ 300.307(a)(3)) would be inconsistent
with the Act. Section 614(b)(6)(B) of the
Act gives LEAs the option of using a
process that determines if a child
responds to research-based
interventions.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
include a statement that discrepancy
models have been discredited and that
there is no evidence that they can be
applied in a valid and reliable manner.
Several commenters recommended that
the Department urge States, at least
through guidance, to eliminate
provisions under State laws that permit
the use of discrepancy models.
Discussion:
We do not believe it is
appropriate to add language in the
regulations discouraging the use of
discrepancy models to identify children
with SLD. We removed current
§ 300.541(a)(2), which required States to
use a discrepancy model to determine
whether a child has an SLD, because
section 614(b)(6) of the Act now
specifies that an LEA shall not be
required to consider a severe
discrepancy in determining whether a
child has an SLD. New § 300.307(a)(2)
(proposed § 300.307(a)(3)) requires
States to permit the use of a process that
examines whether the child responds to
scientific, research-based interventions
as part of the information reviewed to
determine whether a child has an SLD.
The regulations reflect the Department’s
position on the identification of
children with SLD and our support for
models that focus on assessments that
are related to instruction and promote
intervention for identified children.
Changes:
None.
Comment:
One commenter
recommended that any guidance the
Department issues on RTI models
should emphasize that RTI represents a
shift in how children are identified for
special education services and not just
an additional task that special education
teachers must do.
Discussion:
Consensus reports and
empirical syntheses indicate a need for
major changes in the approach to
identifying children with SLD. Models
that incorporate RTI represent a shift in
special education toward goals of better
achievement and improved behavioral
outcomes for children with SLD because
the children who are identified under
such models are most likely to require
special education and related services.
We will consider addressing this issue
in future guidance.
Changes:
None.
Comment:
Many commenters stated
that the elimination of discrepancy
models would result in an inability to
identify children with SLD who are
gifted. One commenter stated that a
scatter of scores should be used to
identify children with SLD who are
gifted.
Discussion:
Discrepancy models are
not essential for identifying children
with SLD who are gifted. However, the
regulations clearly allow discrepancies
in achievement domains, typical of
children with SLD who are gifted, to be
used to identify children with SLD.
Changes:
None.
Comment:
Many commenters opposed
the use of RTI models to determine
whether a child has an SLD, stating that
there is a lack of scientific evidence
demonstrating that RTI models correctly
identify children with SLD. One
commenter stated that RTI is a
subjective method of determining
whether treatment is effective and is not
a treatment itself. A few commenters
requested additional research
demonstrating the efficacy of the wide-
scale use of RTI models. Some
commenters stated that research on the
use of RTI models has been conducted
only in the area of reading in the
primary grades and pointed to the lack
of scientific data on achievement gains
or long-term success. One commenter
stated that there is no evidence that RTI
is effective for non-native speakers of
English and minority populations.
Another commenter stated that RTI
would fail to identify young children
with SLD. One commenter stated that
when a child fails to respond to an
intervention, it is unclear why the child
failed (
e.g.
, inappropriate intervention,
ineffective teaching, unreasonable
expectations). One commenter stated
that longitudinal data are needed to
determine if children who succeed in an
RTI process later become eligible under
the category of SLD based on reading
fluency and comprehension difficulties,
or difficulties in other academic areas,
such as mathematics problem-solving or
written expression.
Discussion:
The Act requires that
LEAs be permitted to use a process that
determines if a child responds to
research-based interventions. Further,
there is an evidence base to support the
use of RTI models to identify children
with SLD on a wide scale, including
young children and children from
minority backgrounds. These include
several large-scale implementations in
Iowa (the Heartland model; Tilly, 2002);
the Minneapolis public schools
(Marston, 2003); applications of the
Screening to Enhance Equitable
Placement (STEEP) model in
Mississippi, Louisiana, and Arizona
(VanDerHeyden, Witt, & Gilbertson, in
press); and other examples (NASDE,
2005).
1
While it is true that much of the
research on RTI models has been
conducted in the area of reading, 80 to
90 percent of children with SLD
experience reading problems. The
implementation of RTI in practice,
however, has included other domains.
RTI is only one component of the
process to identify children in need of
special education and related services.
Determining why a child has not
responded to research-based
interventions requires a comprehensive
evaluation.
Changes:
None.
Comment
: One commenter expressed
concern about how LEAs will conduct
evaluations for children suspected of
having an SLD who attend private
schools because requiring an RTI
process could become entangled with
the private school’s instructional
practices. The commenter
recommended clarifying that child find
does not require an LEA to use RTI to
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identify children with SLD who are
attending private schools.
Discussion:
An RTI process does not
replace the need for a comprehensive
evaluation. A public agency must use a
variety of data gathering tools and
strategies even if an RTI process is used.
The results of an RTI process may be
one component of the information
reviewed as part of the evaluation
procedures required under §§ 300.304
and 300.305. As required in
§ 300.304(b), consistent with section
614(b)(2) of the Act, an evaluation must
include a variety of assessment tools
and strategies and cannot rely on any
single procedure as the sole criterion for
determining eligibility for special
education and related services.
It is up to each State to develop
criteria to determine whether a child
has a disability, including whether a
particular child has an SLD. In
developing their criteria, States may
wish to consider how the criteria will be
implemented with a child for whom
systematic data on the child’s response
to appropriate instruction is not
available. However, many private
schools collect assessment data that
would permit a determination of how
well a child responds to appropriate
instruction. The group making the
eligibility determination for a private
school child for whom data on the
child’s response to appropriate
instruction are not available may need
to rely on other information to make
their determination, or identify what
additional data are needed to determine
whether the child is a child with a
disability. However, under § 300.306(b),
a public agency may not identify any
public or private school child as a child
with a disability if the determinant
factor is lack of appropriate instruction
in reading or math.
Changes:
None.
Comment:
One commenter stated that
adoption of new procedures for
evaluating children suspected of having
an SLD should not penalize or
declassify children who under prior
procedures were found to have an SLD.
The commenter recommended using the
requirements in § 300.305, rather than
data from a child’s response to a
scientific, research-based intervention
process, to consider whether a child
continues to have an SLD.
Discussion:
An RTI process does not
replace the need for a comprehensive
evaluation, and a child’s eligibility for
special education services cannot be
changed solely on the basis of data from
an RTI process. Consistent with
§ 300.303 and section 614(a)(2) of the
Act, a child with a disability must be
reevaluated if the public agency
determines that the educational or
related services needs of the child
warrant a reevaluation or if the child’s
parent or teacher requests a
reevaluation. A reevaluation must occur
no more than once a year, unless the
parent and the public agency agree
otherwise, and at least once every three
years, unless the parent and the public
agency agree that a reevaluation is
unnecessary, to determine whether the
child continues to have a disability and
to determine the educational needs of
the child. Reevaluations must be
conducted in accordance with
§§ 300.304 through 300.311. In addition,
as noted in § 300.305(e)(1), except for
children at the end of their secondary
school career, a reevaluation must be
done before determining that a child is
no longer a child with a disability. In
conducting a reevaluation, as noted in
§ 300.305, consistent with section 614(c)
of the Act, the IEP Team and other
qualified professionals must review
existing evaluation data on the child
including evaluations provided by the
parents of the child; current classroom-
based, local, or State assessments and
classroom-based observations; and
observations by teachers and related
services providers.
The results of an RTI process may be
one component of the information
reviewed as part of the reevaluation
process. It is up to each State to develop
criteria to determine whether a child
continues to have a disability, including
whether a particular child has an SLD.
States that change their eligibility
criteria for SLD may want to carefully
consider the reevaluation of children
found eligible for special education
services using prior procedures. States
should consider the effect of exiting a
child from special education who has
received special education and related
services for many years and how the
removal of such supports will affect the
child’s educational progress,
particularly for a child who is in the
final year(s) of high school. Obviously,
the group should consider whether the
child’s instruction and overall special
education program have been
appropriate as part of this process. If the
special education instruction has been
appropriate and the child has not been
able to exit special education, this
would be strong evidence that the
child’s eligibility needs to be
maintained.
Changes:
None.
Alternative Research-Based Procedures
(New § 300.307(a)(3)) (Proposed
§ 300.307(a)(4))
Comment:
Many commenters
expressed support for allowing the use
of alternative research-based procedures
to determine whether a child has an
SLD. However, a few commenters stated
that the use of alternative research-
based procedures should be removed
because there is no indication that these
procedures will assist in identifying a
child with an SLD and because the Act
does not use this term.
Discussion:
New § 300.307(a)(3)
(proposed § 300.307(a)(4)) recognizes
that there are alternative models to
identify children with SLD that are
based on sound scientific research and
gives States flexibility to use these
models. For example, a State could
choose to identify children based on
absolute low achievement and
consideration of exclusionary factors as
one criterion for eligibility. Other
alternatives might combine features of
different models for identification. We
believe the evaluation procedures in
section 614(b)(2) and (b)(3) of the Act
give the Department the flexibility to
allow States to use alternative, research-
based procedures for determining
whether a child has an SLD and is
eligible for special education and
related services.
Changes:
None.
Comment:
One commenter stated that
alternative research-based procedures
are not based on scientific research and
should therefore be removed.
Discussion:
The Department does not
support the use of identification
procedures that are not based on
scientific research. Models or
procedures that claim to assist in
identifying a child with an SLD, but
which are not based on sound scientific
research, are not appropriate and should
not be adopted by LEAs or States.
Changes:
None.
Comment:
A few commenters stated
that the meaning of alternative research-
based procedures is unclear and should
be defined. One commenter stated that
there would be inappropriate
interventions and procedures without
further clarification as to the meaning of
alternative research-based procedures.
Discussion:
As noted in the
Analysis
of Comments and Changes
section for
subpart A, we have added the definition
of
scientifically based research
from
section 9101(37) of the ESEA to the
definitions section of these regulations.
This definition is the most appropriate
definition to include in these
regulations, given the importance
Congress placed on aligning the Act
with the ESEA. The Department does
not intend to dictate how extensive the
research must be or who, within an LEA
or State, should determine that the
research is of high quality. We believe
that this is a matter best left to State and
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local officials because determining the
presence of an appropriate instructional
process is part of the State-adopted
criteria. This addition should provide
the clarity requested by the commenters.
Changes:
We have added a definition
of
scientifically based research
to
§ 300.35, giving the term the definition
in section 9101(37) of the ESEA.
Consistency With State Criteria
(§ 300.307(b))
Comment:
Several commenters
expressed concern about allowing States
to decide on the approach to
determining whether a child has an
SLD, and requested the Department
develop criteria to be used across the
nation. However, numerous commenters
supported the development of State
criteria and requiring public agencies to
use the State criteria to determine
whether a child has an SLD. Many
commenters stated that this requirement
is necessary to prevent inconsistent
eligibility requirements among LEAs in
a State. Other commenters stated that
the requirement exceeds statutory
authority and that LEAs should be
allowed to make decisions about the
criteria and methods to identify
children with SLD.
Discussion:
The Department believes
that eligibility criteria must be
consistent across a State to avoid
confusion among parents and school
district personnel. The Department also
believes that requiring LEAs to use State
criteria for identifying children with
disabilities is consistent with the State’s
responsibility under section 612(a)(3) of
the Act to locate, identify, and evaluate
all eligible children with disabilities in
the State. We believe this provides the
Department with the authority to
require a public agency to use State
criteria in determining whether a child
has an SLD, consistent with §§ 300.307
through 300.311.
Changes:
None.
Comment:
A few commenters
requested requiring States to adopt and
implement only one model to determine
whether a child has an SLD. However,
several commenters requested that
States and LEAs have the flexibility to
use more than one model. One
commenter noted that States need
flexibility to determine eligibility
criteria until there is greater
understanding of the effectiveness of
evidence-based protocols in identifying
children with SLD.
Discussion:
There is nothing in the
Act that would require a State to use
one model of identification to identify a
child with an SLD. We do not believe
the regulations should include such a
requirement, because section 614(b)(6)
of the Act indicates that some flexibility
in the selection of models of
identification by LEAs can be
appropriate, if permitted by the State.
Changes:
None.
Comment:
One commenter
recommended that the Department
require States to develop a plan to
implement Statewide eligibility criteria
that includes dissemination of research-
based models, collecting data on the use
of such models, providing professional
development on the State’s criteria, and
implementing appropriate services and
instruction.
Discussion:
We agree that it could be
helpful for States to develop a plan to
implement any new SLD criteria, as
recommended by the commenter.
However, we do not believe States
should be required to adopt such a plan,
as this is a matter that is best left to
individual States to decide.
Changes:
None.
Group Members (§ 300.308)
Comment:
Several commenters
requested an explanation of the use of
‘‘group members’’ rather than ‘‘team
members’’ to describe the group that
determines whether a child suspected of
having an SLD is a child with a
disability. One commenter stated that
the eligibility determination is an IEP
Team function and, therefore, using the
term ‘‘group members’’ is inappropriate.
One commenter stated that § 300.308 is
confusing because the group seems to be
the same as the IEP Team.
Discussion:
The change from ‘‘team
members’’ to ‘‘group members’’ was
made in the 1999 regulations to
distinguish this group from the IEP
Team, because the team of qualified
professionals and the parent in
§ 300.306(a)(1) that makes the eligibility
determination does not necessarily have
the same members as an IEP Team. In
some States, this group of professionals
may have the same individuals as the
IEP Team, but in other States, this is not
the case. We inadvertently referred to
‘‘team members’’ in 300.309(a)(2)(ii)
and, therefore, will change this to
‘‘group.’’
Changes:
We have changed ‘‘team
members’’ to ‘‘group’’ in
§ 300.309(a)(2)(ii) to be consistent with
§ 300.306(a)(1).
Comment:
Several commenters stated
that the requirements for the
qualifications of the group members in
proposed § 300.308(a) are unnecessary
and should be removed because they are
not included in the Act, are overly
prescriptive, and add another set of
procedural requirements. On the other
hand, a number of commenters
recommended additional or different
qualifications that should be required of
the group members in § 300.308. Several
commenters recommended that the
group members be qualified to conduct
assessments in the area of ‘‘cognition’’
rather than ‘‘intellectual development’’
to ensure that specific cognitive abilities
are assessed, rather than global
intellectual abilities.
Several commenters recommended
that proposed § 300.308(a)(2), requiring
group members to apply ‘‘critical
analysis’’ to the data, be changed to
require group members to apply
‘‘clinical’’ analysis to the data. One
commenter stated that clinical analysis
should be defined and suggested a
definition that includes professional
judgment informed by empirical
research, training, and experience, and
guided by interpretation of patterns in
evaluation findings from a number of
sources (
e.g.
, test scores; interviews;
work samples; observational data; and
information from parents, school
personnel, and other related services
providers).
A few commenters recommended
requiring evaluations to be completed
by certified speech-language
pathologists and school psychologists to
ensure that qualified professionals
conduct the assessments. One
commenter recommended that the
examples of the areas for diagnostic
assessments be preceded by ‘‘such as’’
to avoid a misinterpretation that a
speech-language pathologist, for
example, is mandated to participate in
every SLD determination.
Several commenters agreed with the
professional competencies for the group
members described in § 300.308(a).
However, one commenter stated that
‘‘collectively qualified’’ is too broad a
term and should be more narrowly
defined. Another commenter stated that
there is no way to ensure that the group
members possess the necessary
expertise unless there is a mechanism to
determine whether the group members
have the specified competencies in
proposed § 300.308(a).
One commenter stated that, although
professionals from more than one
discipline may be qualified to
administer certain assessments, they do
not bring the same expertise to the
process. One commenter asked if a
special education teacher, a regular
education teacher, and parent were all
that would be necessary if they
collectively met the competency
requirements.
Several commenters stated that the
list of professionals in proposed
§ 300.308(b) for the eligibility group
should be removed and decisions about
group members left to schools and
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2
Donovan, M.S., & Cross, C.T. (2002).
Minority
students in special and gifted education
.
Washington, DC: National Academy Press; Bradley,
L., Danielson, & Hallahan, D.P. (Eds.). Identification
of learning disabilities: Research to practice.
Mahway, NJ: Erlbaum; Hoskyn, M., & Swanson, H.L
(2000). Cognitive processing of low achievers and
children with reading disabilities: A selective meta-
analytic review of the published literature.
The
School Psychology Review, 29, 102–119;
Steubing,
K.K., Fletcher, J.M., LeDoux, J.M., Lyon, G.R.,
Shaywitz, S.E., & Shoywitz B.A. (2002). Validity of
IQ-discrepancy, classifications of reading
disabilities: A meta-analysis.
American Educational
Research Journal, 39, 469–518.
districts. Other commenters stated that
the requirements for the eligibility
group should be the same as those for
the group that determines the eligibility
of children suspected of all other
disabilities.
Many commenters recommended that
additional or different professionals
should be included in the group.
Numerous commenters recommended
including speech-language pathologists
in the group because of their expertise
in reading and conducting individual
diagnostic assessments in the areas of
speech and language.
A few commenters stated that a
school psychologist should be a
required member of the group, rather
than listed as ‘‘if appropriate.’’ One of
these commenters stated that, even if
school psychologists are no longer
required to administer assessments to
determine whether there is a
discrepancy between the child’s
achievement and ability, school
psychologists conduct assessments
related to cognitive functioning,
behavior, and other issues that may
affect a child’s learning.
Numerous commenters recommended
requiring the special education teacher
who is part of the eligibility group to
have expertise in the area of SLD.
However, one commenter stated that it
is unnecessary for a special education
teacher to be part of the group because
the teacher would not have any
instructional experience with the yet-to-
be identified child and nothing in the
Act requires special education teachers
to possess any diagnostic expertise in
the area of SLD.
One commenter recommended that
the group include a teacher with
experience in teaching children who are
failing or at-risk for failing, in addition
to a general education and special
education teacher. Several commenters
recommended adding a reading
specialist as a required member. A few
commenters recommended including a
social worker as a required member,
stating that it is important that one of
the members examine the child’s home
and community environment to rule out
environmental and economic factors as
a primary source of the child’s learning
difficulties. Another commenter
recommended adding a guidance
counselor as a required member. One
commenter recommended including a
school nurse and stated that a school
nurse can contribute information about
educationally relevant medical findings.
One commenter stated that a reading
teacher and an educational therapist
should always be included in the group.
A few commenters were not familiar
with the role of an educational therapist
and requested a definition or
elimination of the term from the list of
‘‘other professionals.’’ One commenter
stated that two of the three professionals
listed as ‘‘other professionals’’ (school
psychologist, reading teacher,
educational therapist) are not
credentialed and questioned why they
were included in the group.
Discussion:
The Department has
considered the diversity of comments
received and, given the lack of
consensus about which individuals
should be included in the group that
makes eligibility determinations for
children suspected of having an SLD,
believes that the requirements in current
§ 300.540 should be retained. Current
§ 300.540 states that the eligibility group
for children suspected of having SLD
must include the child’s parents and a
team of qualified professionals, which
must include the child’s regular teacher
(or if the child does not have a regular
teacher, a regular classroom teacher
qualified to teach a child of his or her
age) or for a child of less than school
age, an individual qualified by the SEA
to teach a child of his or her age; and
at least one person qualified to conduct
individual diagnostic examinations of
children, such as a school psychologist,
speech-language pathologist or remedial
reading teacher. We believe this allows
decisions about the specific
qualifications of the members to be
made at the local level, so that the
composition of the group may vary
depending on the nature of the child’s
suspected disability, the expertise of
local staff, and other relevant factors.
For example, for a child suspected of
having an SLD in the area of reading, it
might be important to include a reading
specialist as part of the eligibility group.
However, for a child suspected of
having an SLD in the area of listening
comprehension, it might be appropriate
for the group to include a speech-
language pathologist with expertise in
auditory processing disorders. Current
§ 300.540 provides flexibility for schools
and districts, and ensures that the group
includes individuals with the
knowledge and skills necessary to
interpret the evaluation data and make
an informed determination as to
whether the child is a child with an
SLD, and the educational needs of the
child.
Changes:
Section 300.308 has been
changed to include the requirements
from current § 300.540.
Determining the Existence of a Specific
Learning Disability (§ 300.309)
Comment:
One commenter stated that
there is no authority in the Act for the
SLD eligibility requirements outlined in
§ 300.309.
Discussion:
We agree that the
statutory language is broad and does not
include the specific requirements to
determine whether a child suspected of
having an SLD is a child with a
disability. The purpose of these
regulations, however, is to provide
details to assist States in the appropriate
implementation of the Act. We believe
the requirements in § 300.309 are
necessary to ensure that States have the
details necessary to implement the Act.
Changes:
None.
Comment:
One commenter stated that
RTI was Congress’ preference for
determining eligibility under SLD, and
therefore, the criteria for RTI should be
the first paragraph of § 300.309
(Determining the existence of a specific
learning disability).
Discussion:
The Department believes
that the criteria in § 300.309 are
presented in a logical order and are
consistent with the Act.
Changes:
None.
Comment:
One commenter stated that
a discrepancy between intellectual
ability and achievement can
differentiate between children with
disabilities and children with general
low achievement, and noted that the
problems with discrepancy models have
been in implementation, rather than in
the concept itself for identifying
children with SLD.
Discussion:
There is a substantial
research base summarized in several
recent consensus reports (Donovan &
Cross, 2002; Bradley et al., 2003) and
meta-analyses (Hoskyn & Swanson,
2000; Steubing et al., 2002) that does not
support the hypothesis that a
discrepancy model by itself can
differentiate children with disabilities
and children with general low
achievement.
2
Therefore, we disagree
with the comment because such a
differentiation is not possible with any
single criterion, including RTI.
Changes:
None.
Comment:
One commenter requested
retaining the language in current
§ 300.541, regarding the use of
discrepancy models.
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3
Bradley, R., Danielson, L., & Hallahan, D.P.
(Eds.). (2002).
Identification of learning disabilities:
Research to practice.
Mahwah, NJ: Erlbaum.
4
Bijou, S.W. (1942). The psychometric pattern
approach as an aid to clinical assessment—a
review.
American Journal of Mental Deficiency, 46
,
354–362.
5
Kavale, K. (2002). Discrepancy models in the
identification of learning disabilities. In R. Bradley,
L. Danielson, & D.P. Hallahan (Eds.). Identification
of learning disabilities: Research to practice (pp.
370–371). Mahwah, NJ: Erlbaum.
6
Cronbach, L.J. (1957). The two disciplines of
scientific psychology.
American Psychologist
,
12
,
671–684.
7
Fletcher, J.M., Denton, C., & Francis, D.J. (2005).
Validity of alternative approaches for the
identification of LD: Operationalizing unexpected
underachievement.
Journal of Learning Disabilities,
38
, 545–552; Reschly, D.J., & Tilly, W.D. (1999).
Reform trends and system design alternatives. In
D.J. Reschly, W.D. Tilly, III, and J.P. Grimes (Eds.).
Special education in transition: Functional
assessment and noncategorical programming.
Longmont, CO: Sopris West.
Discussion:
Section 614(b)(6) of the
Act prohibits States from requiring a
discrepancy approach to identify
children with SLD. Current § 300.541
requires a discrepancy determination
and is, therefore, inconsistent with the
Act.
Changes:
None.
Comment:
One commenter requested
that the eligibility group be allowed to
consider the results from standardized,
individualized testing (not just
criterion-based testing or functional
assessments) in the eligibility
determination.
Discussion:
Nothing in the Act or
these regulations would preclude the
eligibility group from considering
results from standardized tests when
making eligibility determinations.
Changes:
None.
Comment:
Many commenters
recommended adding the concept of
psychological processing disorders to
the eligibility criteria in § 300.309.
Several commenters noted that the
criteria in § 300.309 do not fully address
the definition of SLD in § 300.8(c)(10),
which includes a processing disorder in
one or more of the basic psychological
processes. Several commenters stated
that, without requiring documentation
of a basic psychological processing
disorder, the number of children
identified with SLD will significantly
increase and the use of assessment tools
that have the potential to significantly
guide instruction will decrease. Several
commenters stated that failure to
consider individual differences in
cognitive processing skills reverses
more than 20 years of progress in
cognitive psychology and
developmental neuroscience. One
commenter stated that identifying a
basic psychological processing disorder
would help ensure that children
identified with an SLD are not simply
victims of poor instruction. One
commenter stated that the shift away
from requiring diagnostic assessments
in the area of cognition would make it
conceptually impossible to document
that a child has a disorder in one or
more of the basic psychological
processes, as required in the definition
of SLD in § 300.8(c)(10).
Discussion:
The Department does not
believe that an assessment of
psychological or cognitive processing
should be required in determining
whether a child has an SLD. There is no
current evidence that such assessments
are necessary or sufficient for
identifying SLD. Further, in many cases,
these assessments have not been used to
make appropriate intervention
decisions. However, § 300.309(a)(2)(ii)
permits, but does not require,
consideration of a pattern of strengths or
weaknesses, or both, relative to
intellectual development, if the
evaluation group considers that
information relevant to an identification
of SLD. In many cases, though,
assessments of cognitive processes
simply add to the testing burden and do
not contribute to interventions. As
summarized in the research consensus
from the OSEP Learning Disability
Summit (Bradley, Danielson, and
Hallahan, 2002), ‘‘Although processing
deficits have been linked to some SLD
(e.g., phonological processing and
reading), direct links with other
processes have not been established.
Currently, available methods for
measuring many processing difficulties
are inadequate. Therefore,
systematically measuring processing
difficulties and their link to treatment is
not yet feasible * * *. Processing
deficits should be eliminated from the
criteria for classification * * *.’’ (p.
797).
3
Concerns about the absence of
evidence for relations of cognitive
discrepancy and SLD for identification
go back to Bijou (1942;
4
see Kavale,
2002)
5
. Cronbach (1957)
6
characterized
the search for aptitude by treatment
interactions as a ‘‘hall of mirrors,’’ a
situation that has not improved over the
past few years as different approaches to
assessment of cognitive processes have
emerged (Fletcher
et al.
, 2005; Reschly
& Tilly, 1999)
7
.
Changes:
None.
Comment:
Several commenters
requested that the regulations include a
definition of ‘‘intellectual
development.’’
Discussion:
We do not believe it is
necessary to define ‘‘intellectual
development’’ in these regulations.
Intellectual development is included in
§ 300.309(a)(2)(ii) as one of three
standards of comparison, along with age
and State-approved grade-level
standards. The reference to ‘‘intellectual
development’’ in this provision means
that the child exhibits a pattern on
strengths and weaknesses in
performance relative to a standard of
intellectual development such as
commonly measured by IQ tests. Use of
the term is consistent with the
discretion provided in the Act in
allowing the continued use of
discrepancy models.
Changes:
None.
Comment:
Several commenters stated
that intra-individual differences,
particularly in cognitive functions, are
essential to identifying a child with an
SLD and should be included in the
eligibility criteria in § 300.309.
Discussion:
As indicated above, an
assessment of intra-individual
differences in cognitive functions does
not contribute to identification and
intervention decisions for children
suspected of having an SLD. The
regulations, however, allow for the
assessment of intra-individual
differences in achievement as part of an
identification model for SLD. The
regulations also allow for the
assessment of discrepancies in
intellectual development and
achievement.
Changes:
None.
Comment:
One commenter requested
guidance on how to determine whether
a child was provided with learning
experiences appropriate for the child’s
age, as required in § 300.309(a)(1).
Discussion:
While such guidance
might be helpful, we believe SEAs and
LEAs are in the best position to provide
guidance on age-appropriate learning
experiences.
Changes:
None.
Comment:
Several commenters
expressed support for the requirements
in § 300.309(a)(1) and stated that the
first element of determining eligibility
for an SLD is a finding that the child
does not achieve commensurate with
the child’s age in one or more of the
eight areas when provided with learning
experiences appropriate to the child’s
age. However, several commenters
requested requiring that eligibility
determinations for an SLD include
evidence that the child’s achievement
level is not commensurate with the
child’s age
and
ability (emphasis
added). One commenter indicated that
knowledge of a child’s ability level is
important to ensure that a determination
is not based on deficits in areas not
related to cognitive processing (
e.g.
, lack
of opportunity to learn, social or
emotional disturbances), and to prevent
misdiagnosis of children with mental
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Burns, M., Appleton, J., Stehouwer, J. (2005).
Meta-analytic review of responsiveness-to-
intervention research: Examining field-based and
research-implemented models.
Journal of
Psychoeducational Assessment
, 23, 381–394.
retardation and SLD. One commenter
stated that § 300.309(a)(1) would allow
any child who failed to achieve
commensurate with his or her age to be
considered to have an SLD, and this will
increase the number of children referred
for special education and related
services.
Several commenters expressed
concern that the eligibility
determination for SLD is based on
whether the child achieves
commensurate with his or her age
because current practice uses normative
data that are based on grade level. These
commenters recommended clarifying
that grade level or classmate
performance should also be considered.
Discussion:
The first element in
identifying a child with SLD should be
a child’s mastery of grade-level content
appropriate for the child’s age or in
relation to State-approved grade-level
standards, not abilities. This emphasis
is consistent with the focus in the ESEA
on the attainment of State-approved
grade-level standards for all children.
State-approved standards are not
expressed as ‘‘norms’’ but represent
benchmarks for all children at each
grade level. The performance of
classmates and peers is not an
appropriate standard if most children in
a class or school are not meeting State-
approved standards. Furthermore, using
grade-based normative data to make this
determination is generally not
appropriate for children who have not
been permitted to progress to the next
academic grade or are otherwise older
than their peers. Such a practice may
give the illusion of average rates of
learning when the child’s rate of
learning has been below average,
resulting in retention. A focus on
expectations relative to abilities or
classmates simply dilutes expectations
for children with disabilities.
We will modify § 300.309(a)(1) to
clarify that, as a first element in
determining whether a child has an
SLD, the group must determine that the
child does not demonstrate achievement
that is adequate for the child’s age or the
attainment of State-approved grade-level
standards, when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards in one or more of
the areas listed in § 300.309(a)(1). The
reference to ‘‘State-approved grade-level
standards’’ is intended to emphasize the
alignment of the Act and the ESEA, as
well as to cover children who have been
retained in a grade, since age level
expectations may not be appropriate for
these children. The reference to
‘‘instruction’’ will be added to
emphasize that children may not be
identified as having SLD if there is no
documentation of appropriate
instruction, consistent with the Act and
the ESEA. Consistent with this change,
we will add a reference to ‘‘State-
approved grade-level standards’’ in
§§ 300.309(a)(2)(i) and (ii). We will also
combine proposed § 300.311(a)(5) and
(6) into § 300.311(a)(5) to ensure
consistency with the requirements in
§ 300.309(a).
Changes:
We have modified
§ 300.309(a)(1) and §§ 300.309(a)(2)(i)
and (ii), and combined proposed
§ 300.311(a)(5) and (6) into
§ 300.311(a)(5) to ensure consistency
with the requirements in § 300.309(a).
Comment:
Several commenters
expressed support for including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD. However, several
commenters recommended removing
reading fluency from the list in
§ 300.309(a)(1), stating that a weakness
in reading fluency, in isolation, does not
indicate a reading disability.
Discussion:
No assessment, in
isolation, is sufficient to indicate that a
child has an SLD. Including reading
fluency in the list of areas to be
considered when determining whether a
child has an SLD makes it more likely
that a child who is gifted and has an
SLD would be identified. Fluency
assessments are very brief and highly
relevant to instruction. We, therefore, do
not believe that reading fluency should
be removed from § 300.309(a)(1).
Changes:
None.
Comment:
Many commenters stated
that eligibility criteria based on RTI
models will result in dramatic increases
in referrals, special education
placements, and legal problems. One
commenter stated that the eligibility
criteria in § 300.309 do not provide
sufficient checks and balances to ensure
that only those children who truly
require special education are identified
as having SLD. A few commenters
stated that using an RTI model would
result in incorrectly identifying
underachieving children as having SLD.
Discussion:
We do not believe that
eligibility criteria based on RTI models
will result in dramatic increases in
referrals and special education
placements. Well-implemented RTI
models and models that identify
problems early and promote
intervention have reduced, not
increased, the number of children
identified as eligible for special
education services and have helped
raise achievement levels for all children
in a school.
8
We believe that the
regulations do provide sufficient checks
to ensure that only children who need
special education and related services
are identified as having SLD.
Changes:
None.
Comment:
Several commenters stated
that the language in § 300.309(a)(2)(ii) is
very confusing and should be rewritten.
Many commenters stated that the word
‘‘or’’ instead of ‘‘and’’ should be used
between § 300.309(a)(2)(i) and
§ 300.309(a)(2)(ii), because otherwise a
child could be identified with an SLD
because he or she failed to meet passing
criteria on a State assessment, and
failure to make sufficient progress on a
State-approved assessment alone is not
grounds for a determination that a child
has an SLD. Several commenters stated
that the phrase, ‘‘pattern of strengths
and weaknesses in performance,
achievement, or both’’ is a typographical
error because it is repeated twice.
Discussion:
We do not agree that
‘‘and’’ should be used instead of ‘‘or’’
between § 300.309(a)(2)(i) and (ii),
because this would subject the child to
two different identification models. We
agree that failing a State assessment
alone is not sufficient to determine
whether a child has an SLD. However,
failing a State assessment may be one
factor in an evaluation considered by
the eligibility group. As required in
§ 300.304(b)(1), consistent with section
614(b)(2)(A) of the Act, the evaluation
must use a variety of assessment tools
and strategies to gather relevant
information about the child. Further,
§ 300.304(b)(2), consistent with section
614(b)(2)(B) of the Act, is clear that
determining eligibility for special
education and related services cannot be
based on any single measure or
assessment as the sole criterion for
determining whether a child is a child
with a disability.
We agree that § 300.309(a)(2)(ii) could
be stated more clearly and will rewrite
it to state that the eligibility group can
determine that a child has an SLD if the
child meets the criteria in
§ 300.309(a)(1) and exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age and State-approved
grade-level standards, or intellectual
development, that is determined by the
group to be relevant to the identification
of an SLD.
Changes:
We have changed
§ 300.309(a)(2)(ii) for clarity.
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Comment:
Several commenters
requested a definition of ‘‘State-
approved results.’’ One commenter
stated that the language was extremely
confusing and that ‘‘State-approved
results’’ could be interpreted to mean
approved results that are equivalent to
proficiency on State assessments under
the ESEA, and this could lead to
eligibility determinations for a very
large group of older children with poor
reading performance for whom it would
be nearly impossible to make sufficient
progress to become proficient readers.
This commenter recommended
changing the language to refer to a
child’s failure to achieve a rate of
learning to make sufficient progress
based on ‘‘State-defined criteria.’’
Another commenter recommended
substituting ‘‘State achievement
standards’’ for ‘‘State approved results.’’
Discussion:
The intention is to refer to
State assessments approved under the
ESEA. We have changed ‘‘State-
approved results’’ to ‘‘State-approved
grade-level standards.’’ We believe this
change adequately addresses the
commenters concerns.
Changes:
We have removed ‘‘State-
approved results’’ and inserted in its
place ‘‘State-approved grade-level
standards’’ in § 300.309 and § 300.311.
Comment:
One commenter stated that
including ‘‘State-approved results’’ in
§ 300.309(a)(2)(i) means that there is no
Federal definition of SLD.
Discussion:
States must develop
criteria for determining whether a child
has an SLD that are consistent with the
Federal requirements in §§ 300.307
through 300.311 and the definition of
SLD in § 300.8(c)(10).
Changes:
None.
Comment:
A few commenters stated
that using the criteria in § 300.309(a)(2),
a child could meet State standards and
still be identified as a child with an
SLD.
Discussion:
We agree with the
commenters. Accelerated growth
toward, and mastery of, State-approved
grade-level standards are goals of
special education. Furthermore, as
stated in § 300.101, the fact that a child
is advancing from grade to grade does
not make a child with a disability
ineligible for special education and
related services. However, consistent
with § 300.8, the group making the
eligibility determination must conclude
both that the child has an SLD and, that,
because of that disability, the child
needs special education and related
services.
Changes:
None.
Comment:
Many commenters
requested more detail and specific
guidelines on RTI models, such as
information on who initiates the RTI
process and who should be involved in
the process; how one ensures there is a
strong leader for the RTI process; the
skills needed to implement RTI models;
the role of the general education
teacher; how to determine that a child
is not responsive to instruction,
particularly a child with cultural and
linguistic differences; the number of
different types of interventions to be
tried; the responsibility for monitoring
progress; the measurement of treatment
integrity; and ways to document
progress. One commenter stated that it
is imperative that the regulations allow
the flexibility necessary to
accommodate the array of RTI models
already in use.
Several commenters requested that
the Department define and set a
standard for responsiveness that calls
for demonstrated progress and
improvement in the rate of learning, to
indicate that a child can function in the
classroom. Several commenters stated
that there would be a dramatic increase
in the number of children identified
with an SLD without a clearly defined
system in place.
Discussion:
There are many RTI
models and the regulations are written
to accommodate the many different
models that are currently in use. The
Department does not mandate or
endorse any particular model. Rather,
the regulations provide States with the
flexibility to adopt criteria that best
meet local needs. Language that is more
specific or prescriptive would not be
appropriate. For example, while we
recognize that rate of learning is often a
key variable in assessing a child’s
response to intervention, it would not
be appropriate for the regulations to set
a standard for responsiveness or
improvement in the rate of learning. As
we discussed earlier in this section, we
do not believe these regulations will
result in significant increases in the
number of children identified with SLD.
Changes:
None.
Comment:
One commenter stated that,
without additional clarity, eligibility
criteria will vary substantially among
States and that States will have
definitions that are suited to their
individual preferences, rather than a
universal sense of what constitutes
eligibility under SLD based on the
research and national standards of
professional practice.
Discussion:
State eligibility criteria
must meet the requirements in
§§ 300.307 through 300.111 and LEAs
must use these State-adopted criteria.
We believe that, although these
provisions allow States some flexibility
in how children with SLD are
identified, the requirements in these
provisions will ensure that SLD criteria
do not vary substantially across States.
Changes:
None.
Comment:
One commenter stated that,
without more clarity in the
requirements for RTI models, there
would be an increase in the number of
eligibility disputes between parents and
school districts.
Discussion:
We do not believe more
clarity in the requirements for RTI
models is necessary. States can avoid
disputes over eligibility determinations
by developing clear criteria, consistent
with the regulatory parameters, and
providing staff with the necessary
guidance and support to implement the
criteria.
Changes:
None.
Comment:
One commenter urged the
Department to encourage States to
convene a group of education,
disability, and parent stakeholders to
discuss and design a model approach to
early identification of children with
SLD.
Discussion:
The Department agrees
that it is important to identify children
with SLD early and to provide the
necessary instruction and supports to
avoid referrals to special education. The
extent to which States involve other
interested parties (
e.g.
, disability groups,
parent groups) in the design or
development of such a system is a
decision that should be made by each
State.
Changes:
None.
Comment:
A few commenters stated
that professional development
requirements to implement RTI models
should be incorporated into the
regulations so RTI models are not
haphazardly implemented. One
commenter stated that before RTI can be
used systematically as part of the
special education identification process,
school districts must have
administrative support at all levels,
ongoing professional development for
all staff, and coordination with
institutions of higher education. Several
commenters recommended encouraging
States to develop efficient, collaborative
evaluation systems. One commenter
recommended requiring regular
education teachers to address the needs
of children with different learning
styles, identify early and appropriate
interventions for children with
behavioral challenges, and understand
and use data and assessments to
improve classroom practices and
learning.
Discussion:
We agree that
administrative support, professional
development, and coordination with
teacher training programs would be
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helpful in the effective implementation
of RTI models. We also agree that
efficient and collaborative evaluation
systems should be developed, and that
all teachers, including regular education
teachers, should be trained to address
the needs of children with different
learning styles, identify early and
appropriate interventions for children
with behavioral challenges, and
understand and use data and
assessments to improve classroom
practices and learning. However,
professional development requirements
are a State responsibility, consistent
with § 300.156 and section 612(a)(14) of
the Act, and it would be inappropriate
for the Department to include specific
professional development requirements
in these regulations.
Changes:
None.
Comment:
One commenter stated that
if a State prohibits the use of a
discrepancy model, there would not be
sufficient time or funds necessary to
effectively train staff. Several
commenters asked that there be a
transition period so that personnel can
be adequately trained in RTI or other
forms of assessment and observation.
Discussion:
It is not necessary for
these regulations to require a transition
period for implementing RTI models,
particularly because there are many
schools and districts currently
implementing RTI models. Under the
requirements in section 614(b)(6) of the
Act, which took effect July 1, 2005,
States should have developed
mechanisms to permit LEAs to use RTI
models. States may need to make
adjustments based on these final
regulations. Nothing in these regulations
requires an LEA to drop current
practices in favor of a new model with
no transition. Obviously, a plan would
need to be developed when changing to
an RTI model, including strategies for
implementation and professional
development.
Changes:
None.
Comment:
Many commenters stated
that the use of RTI models would be
costly, requiring massive staff training
and resources. Many commenters
recommended ways in which the
Department could support States in
improving identification and
interventions for children with SLD.
Commenters’ recommendations
included the following: long-term,
Statewide pilot studies on assessments
and interventions for children with
SLD; methods to increase the use of RTI;
guidance on establishing appropriate
timelines for instructional interventions;
and information on new scientifically
based approaches to identifying
children with SLD.
Discussion:
The Department
recognizes the need for technical
assistance and training to implement
RTI models and is directing technical
assistance funds under Part D of the Act,
administered by the Department’s Office
of Special Education Programs (OSEP),
toward this effort. OSEP plans to
develop and disseminate an RTI
resource kit and devote additional
resources to technical assistance
providers to assist States in
implementing RTI models. OSEP will
also continue to identify and develop
model RTI implementation sites and
evaluate SLD identification models in
math and reading. In addition, the
Comprehensive Center on Instruction,
jointly funded by OSEP and the Office
of Elementary and Secondary Education
(OESE), will provide technical
assistance to States on RTI
implementation.
Changes:
None.
Comment:
Many commenters
supported examining the pattern of
strengths and weaknesses in
determining whether a child is
considered to have an SLD. A number
of commenters stated that it is important
that groups use a process to determine
whether a child responds to scientific,
research-based interventions, as well as
consider relevant, empirically validated
patterns of strengths and weaknesses in
achievement, performance, or both,
relative to intellectual development.
One commenter stated that ‘‘pattern of
strengths and weaknesses in
performance’’ in § 300.309(a)(2)(ii) is
insufficiently defined and without a
clearer definition of ‘‘pattern,’’ schools
will continue the wait-to-fail model.
One commenter recommended
clarifying the meaning of ‘‘weakness,’’
stating that weakness does not mean
failure, and that there may be specific
actions that could address weaknesses
in performance that would result in
failure if left alone.
Discussion:
Patterns of strengths and
weaknesses commonly refer to the
examination of profiles across different
tests used historically in the
identification of children with SLD. We
believe that the meaning of ‘‘pattern of
strengths and weaknesses’’ is clear and
does not need to be clarified in these
regulations.
Changes:
None.
Comment:
Some commenters stated
that using a pattern of strengths and
weaknesses in a child’s performance to
identify a child with an SLD could be
misinterpreted to identify children,
other than children with disabilities,
who are underperforming due to
cultural factors, environmental or
economic disadvantage, or low effort.
Discussion:
Section 300.309(a)(3) is
clear that children should not be
identified with SLD if the
underachievement is primarily the
result of a visual, hearing, or motor
disability; mental retardation; emotional
disturbance; cultural factors; or
environmental or economic
disadvantage. The eligibility group
makes the determination after the
evaluation of the child is completed.
Therefore, we believe that there is
minimal risk that a child who is
underachieving due to these factors will
be identified as having an SLD.
Changes:
None.
Comment:
Some commenters
recommended using ‘‘cognitive ability’’
in place of ‘‘intellectual development’’
because ‘‘intellectual development’’
could be narrowly interpreted to mean
performance on an IQ test. One
commenter stated that the term
‘‘cognitive ability’’ is preferable because
it reflects the fundamental concepts
underlying SLD and can be assessed
with a variety of appropriate assessment
tools. A few commenters stated that the
reference to identifying a child’s pattern
of strengths and weaknesses that are not
related to intellectual development
should be removed because a cognitive
assessment is critical and should always
be used to make a determination under
the category of SLD.
Discussion:
We believe the term
‘‘intellectual development’’ is the
appropriate reference in this provision.
Section 300.309(a)(2)(ii) permits the
assessment of patterns of strengths and
weakness in performance, including
performance on assessments of
cognitive ability. As stated previously,
‘‘intellectual development’’ is included
as one of three methods of comparison,
along with age and State-approved
grade-level standards. The term
‘‘cognitive’’ is not the appropriate
reference to performance because
cognitive variation is not a reliable
marker of SLD, and is not related to
intervention.
Changes:
None.
Comment:
One commenter reviewed
the list of factors in § 300.309(a)(3) that
must be ruled out as primary reasons for
a child’s performance and asked
whether children with other health
impairments (OHI), traumatic brain
injury (TBI), or speech impairments
would overlap with the SLD definition.
Several commenters noted that many
children with hearing, visual, or motor
disabilities; mental retardation; or
emotional disturbances (ED) also have
concomitant learning disabilities that go
unidentified, and that these children
end up with lower academic and
functional achievement levels than they
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should because an important
contributing factor to their learning
problems has not been addressed.
Several commenters recommended
adding language to the regulations
stating that a child with a disability
other than an SLD may also be
identified with an SLD.
Discussion:
Children with one of the
disabilities in § 300.8 should be
identified as a child with a disability
using the category that is most
appropriate for the child. Some children
may be identified under other disability
categories, such as OHI, TBI, ED, or
speech impairment, and may also have
low achievement and even meet SLD
criteria. Services must meet the child’s
needs and cannot be determined by the
child’s eligibility category. We believe it
is unnecessary to add language
regarding SLD as a concomitant
disability.
Changes:
None.
Comment:
One commenter asked
what kind of assessment identifies
culture as a primary cause of academic
performance deficits and recommended
removing the requirement in
§ 300.309(a)(3)(iv) unless there are
objective methods to determine whether
a child’s low performance is a result of
cultural factors.
Discussion:
The identification of the
effect of cultural factors on a child’s
performance is a judgment made by the
eligibility group based on multiple
sources of information, including the
home environment, language
proficiency, and other contextual factors
gathered in the evaluation. The
Department believes that the
identification of children with SLD will
improve with models based on
systematic assessments of a child’s
response to appropriate instruction, the
results of which are one part of the
information reviewed during the
evaluation process to determine
eligibility for special education and
related services. States and public
agencies must follow the evaluation
procedures in §§ 300.304 and 300.305
and section 614(b) of the Act, including
using assessments and other evaluation
materials that do not discriminate on a
racial or cultural basis, consistent with
§ 300.304(c)(1)(i) and section
614(b)(3)(A)(i) of the Act.
Changes:
None.
Comment:
Many commenters
recommended that limited English
proficiency be among the factors that
the eligibility group must rule out as a
primary factor affecting a child’s
performance.
Discussion:
Section 300.306(b)(1)(iii),
consistent with section 614(b)(5)(C) of
the Act, is clear that a child must not
be identified as a child with a disability
if the determinant factor for that
determination is limited English
proficiency. However, we agree that it is
important to re-emphasize this
requirement in § 300.309 and will add
this to the list of factors that the
eligibility group must rule out as a
primary factor affecting a child’s
performance.
Changes:
We have added a new
paragraph (vi) to § 300.309(a)(3) to
include ‘‘limited English proficiency’’ in
the list of factors that must be ruled out
as a primary factor affecting a child’s
performance before determining that a
child is eligible for special education
services under the category of SLD.
Comment:
Numerous commenters
supported the requirement in
§ 300.309(b)(1) for data demonstrating
that a child suspected of having an SLD
has been provided with high-quality,
research-based instruction in regular
education settings delivered by
qualified personnel. Several
commenters stated that this requirement
should apply to all children and asked
why this requirement is confined to
only children suspected of having SLD.
One commenter stated that if schools
would use proven best practices, there
would be fewer children in need of
special education in the later grades.
However, one commenter stated that it
is incorrect to assume that any child
who is not responding to interventions
must have an SLD when there are a
myriad of reasons why children may not
be responding to instruction. One
commenter recommended adding ‘‘to
the extent practicable’’ to acknowledge
that scientific research-based
interventions are not available in many
areas, particularly in mathematics. One
commenter recommended decreasing
the emphasis on research-based
instruction.
Discussion:
Sections 300.306(b)(1)(i)
and (ii), consistent with section
614(b)(5)(A) and (B) of the Act,
specifically state that children should
not be identified for special education if
the achievement problem is due to lack
of appropriate instruction in reading or
mathematics. This issue is especially
relevant to SLD because lack of
appropriate instruction in these areas
most commonly leads to identifying a
child as having an SLD. All children
should be provided with appropriate
instruction provided by qualified
personnel. This is an important tenet of
the Act and the ESEA. Both the Act and
the ESEA focus on doing what works as
evidenced by scientific research and
providing children with appropriate
instruction delivered by qualified
teachers.
Changes:
None.
Comment:
We received a number of
comments concerning the requirement
for high-quality, research-based
instruction provided by qualified
personnel. One commenter stated that it
would be difficult for rural school
districts to meet this requirement
because of staffing requirements in the
regular education setting. Several
commenters stated that the requirement
for high-quality, research-based
instruction exceeds statutory authority
and should be removed, because it
provides a basis for challenging any
determination under the category of
SLD. One commenter asked for
clarification regarding the legal basis for
providing high-quality, research-based
instruction if the child is not
determined eligible for special
education. Another commenter stated
that attorneys will read § 300.309(b) as
providing a legal entitlement to ESEA,
research-based instruction and data-
based documentation for every child
considered for eligibility under the
category of SLD, and that when this
standard is not met, will bring the
matter to a due process hearing and
request compensatory education.
Numerous commenters requested a
definition of high-quality, research-
based instruction. One commenter
asked who validates that the research
meets the highest quality. Another
commenter asked that the regulations
specify how much research a program
must undergo before it is deemed to be
research-based. One commenter stated
that the Department must address how
States determine whether a child has
been provided with a high-quality,
research-based instructional program;
whether appropriate classroom
interventions were delivered; and
whether an intervention has been
successful. One commenter stated that
the absence of additional clarification
would result in great disparity in States’
policies and lead to inappropriate
interventions and procedures. One
commenter recommended that there be
evidence that the instruction is effective
for the child’s age and cultural
background.
A few commenters recommended that
children who are not progressing
because they have not received
research-based instruction by a qualified
teacher should immediately receive
intensive, high-quality, research-based
instruction by qualified personnel. One
commenter expressed concern that
§ 300.309(b) restricts referrals to only
those children who have received high-
quality, research-based instruction from
qualified teachers. One commenter
stated that a child’s eligibility to receive
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special education services under the
category of SLD appears to be
contingent on the LEA’s commitment to
providing effective regular education
services by qualified staff, and, as such,
a child with an SLD is held hostage by
a system that is not working. One
commenter asked whether the eligibility
group can make a determination that a
child has an SLD in the absence of a
child’s response to high-quality
research-based instruction.
Several commenters stated that the
lack of research-based instruction by a
qualified teacher should not limit a
child’s eligibility for services. Another
commenter recommended clarifying
that a child should not be found
ineligible under the category of SLD
because the child either did not respond
to a scientific, research-based
intervention during a truncated
evaluation, or because the child was not
provided an opportunity to respond to
such an intervention.
Discussion:
Watering down a focus on
appropriate instruction for any children,
including children with disabilities or
children living in rural areas would be
counter to both the Act and the ESEA.
However, we agree that the requirement
for high quality, research-based
instruction exceeds statutory authority.
The Act indicates that children should
not be eligible for special education if
the low achievement is due to lack of
appropriate instruction in reading or
math. Therefore, we will change the
regulations to require that the eligibility
group consider evidence that the child
was provided appropriate instruction
and clarify that this means evidence that
lack of appropriate instruction was the
source of underachievement.
The eligibility group should not
identify a child as eligible for special
education services if the child’s low
achievement is the result of lack of
appropriate instruction in reading or
math. Eligibility is contingent on the
ability of the LEA to provide
appropriate instruction. Determining the
basis of low achievement when a child
has been given appropriate instruction
is the responsibility of the eligibility
group.
Whether a child has received
‘‘appropriate instruction’’ is
appropriately left to State and local
officials to determine. Schools should
have current, data-based evidence to
indicate whether a child responds to
appropriate instruction before
determining that a child is a child with
a disability. Children should not be
identified as having a disability before
concluding that their performance
deficits are not the result of a lack of
appropriate instruction. Parents of
children with disabilities have due
process rights that allow them to file a
complaint on any matter that relates to
the identification, evaluation, and
educational placement of their child
with a disability, and the provision of
FAPE to their child.
Changes:
We have revised the
introductory material in § 300.309(b) to
emphasize that the purpose of the
review is to rule out a lack of
appropriate instruction in reading or
math as the reason for a child’s
underachievement. We have also
revised § 300.309(b)(1) to refer to
appropriate instruction rather than high-
quality, research-based instruction, and
removed the cross reference to the
ESEA.
Comment:
One commenter stated that
many reading programs claim to be
research-based, but lack credible
evidence of the program’s effectiveness.
Discussion:
Programs that claim to be
research-based, but which are not based
on sound scientific research, should not
be considered research-based
instruction by a State or LEA.
Changes:
None.
Comment:
One commenter asked
what criteria should be used to
determine that the child was provided
with appropriate high quality, research-
based instruction, especially when the
child has been home schooled or
attends a private school. One
commenter asked about children
referred for evaluation from charter
schools and expressed concern that
these children would not be eligible
under the category of SLD because they
did not have instruction delivered by
qualified personnel.
Discussion:
As part of the evaluation,
the eligibility group must consider
whether the child received appropriate
instruction from qualified personnel.
For children who attend private schools
or charter schools or who are home-
schooled, it may be necessary to obtain
information from parents and teachers
about the curricula used and the child’s
progress with various teaching
strategies. The eligibility group also may
need to use information from current
classroom-based assessments or
classroom observations. On the basis of
the available information, the eligibility
group may identify other information
that is needed to determine whether the
child’s low achievement is due to a
disability, and not primarily the result
of lack of appropriate instruction. The
requirements for special education
eligibility or the expectations for the
quality of teachers or instructional
programs are not affected, and do not
differ, by the location or venue of a
child’s instruction.
Changes:
None.
Comment:
Many commenters
requested a definition of ‘‘qualified
personnel.’’ One commenter stated that
teachers should be trained to deliver the
program of instruction and simply
saying they should be highly qualified
is not sufficient. One commenter
recommended removing the phrase
‘‘qualified personnel’’ in § 300.309(b)(1),
because it is likely to be interpreted to
mean that instruction must be delivered
by highly qualified teachers, as defined
in the ESEA.
Discussion:
Section 300.156 and
section 614(a)(14) of the Act are clear
that each State is responsible for
establishing and maintaining personnel
qualifications to ensure that personnel
are appropriately and adequately
prepared and trained, including that
those personnel have the content
knowledge and skills to serve children
with disabilities. Consistent with
§ 300.18 and section 602(10) of the Act,
a public school teacher, including a
special education teacher, who teaches
core academic subjects must meet the
highly qualified teacher standards under
the Act. The term that is used in
§ 300.309(b)(1), ‘‘qualified personnel,’’
does not, and should not be interpreted
to, require that private school teachers
be ‘‘highly qualified’’ to deliver the
instruction discussed in § 300.309(b)(1).
Changes:
None.
Comment:
One commenter asked
whether the regulations require an LEA
to provide high-quality, research-based
instruction in the regular education
setting prior to, or as part of, the referral
process before the group can determine
whether a child has an SLD. One
commenter recommended that research-
based interventions occur prior to a
referral to special education. Several
commenters stated that an evaluation to
assess all areas of suspected disability
should follow an assessment of a child’s
response to instruction.
Discussion:
What is important is that
the group making the eligibility decision
has the information that it needs to rule
out that the child’s underachievement is
a result of a lack of appropriate
instruction. That could include
evidence that the child was provided
appropriate instruction either before, or
as a part of, the referral process.
Evidence of appropriate instruction,
including instruction delivered in an
RTI model, is not a substitute for a
complete assessment of all of the areas
of suspected need. As discussed earlier
in this section, we have revised
§ 300.309(b) to make this clear.
Changes:
As discussed previously, we
have revised § 300.309(b).
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Comment:
One commenter
recommended that data be maintained
on the number of children identified
with SLD.
Discussion:
Data are maintained on
the number of children identified with
SLD. Section 618 of the Act requires
States to report annually to the
Department the number and percentage
of children with disabilities by
disability category, in addition to race,
ethnicity, limited English proficiency
status, and gender.
Changes:
None.
Comment:
Many commenters
recommended reinforcing the role of
parents in determining whether a child
has an SLD by adding language to
§ 300.309(b) stating that the child’s
parents and the group of qualified
professionals must consider whether the
child is a child with a disability.
Discussion:
Section 300.306(a)(1),
consistent with section 614(b)(4)(A) of
the Act, is clear that the parent of the
child is included in eligibility
determinations. Section 300.309(a)
cross-references the group in § 300.306,
which includes the parent. We believe
this adequately addresses the role of the
parent and that no changes are
necessary.
Changes:
None.
Comment:
One commenter requested
a definition of ‘‘data-based
documentation.’’
Discussion:
Data-based
documentation refers to an objective
and systematic process of documenting
a child’s progress. This type of
assessment is a feature of strong
instruction in reading and math and is
consistent with § 300.306(b)(1)(i) and
(ii) and section 614(b)(5)(A) and (B) of
the Act, that children cannot be
identified for special education if an
achievement problem is due to lack of
appropriate instruction in reading or
math.
Changes:
None.
Comment:
Numerous commenters
supported requiring data-based
documentation of repeated assessments
of achievement at reasonable intervals
to be provided to parents during the
time the child is receiving instruction.
One commenter emphasized the
importance of documenting that the
interventions used are data based and
implemented with fidelity. One
commenter stated that data-based
documentation should be provided to
all parents of children with disabilities,
not just children suspected of having
SLD. However, several commenters
stated that requiring data-based
documentation of repeated assessments
is an additional bureaucratic
requirement that is overly prescriptive
and costly, and will require additional
paperwork.
Discussion:
We believe that one of the
most important aspects of good teaching
is the ability to determine when a child
is learning and then to tailor instruction
to meet the child’s individual needs.
Effective teachers use data to make
informed decisions about the
effectiveness of a particular
instructional strategy or program. A
critical hallmark of appropriate
instruction is that data documenting a
child’s progress are systematically
collected and analyzed and that parents
are kept informed of the child’s
progress. Assessments of a child’s
progress are not bureaucratic, but an
essential component of good
instruction.
Changes:
None.
Comment:
Several commenters
requested definitions for ‘‘repeated
assessments’’ and ‘‘reasonable
intervals.’’
Discussion:
Instructional models vary
in terms of the frequency and number of
repeated assessments that are required
to determine a child’s progress. It would
be inappropriate for the Department to
stipulate requirements in Federal
regulations that would make it difficult
for districts and States to implement
instructional models they determine
appropriate to their specific
jurisdictions.
Changes:
None.
Comment:
One commenter
recommended removing the
requirement for data-based
documentation of repeated assessments
of achievement at reasonable intervals
because it would make it impossible to
determine eligibility if a child is new to
a school district and district personnel
do not have a child’s records with such
information.
Discussion:
We do not believe
removing the requirement is the
appropriate solution to the commenter’s
problem. States will need to adopt
criteria for determining how to provide
such data for children new to a district.
Children should not be identified as
having SLD if there is no evidence of
appropriate instruction.
Changes:
None.
Comment:
One commenter expressed
concern that § 300.309(b)(2), requiring
parents to be informed of their child’s
repeated failure to perform well on
assessments, could be interpreted to
refer to the assessments under the ESEA
and that this would mean that a child
must perform poorly over a period of
several school years to be considered for
eligibility under the category of SLD.
Discussion:
While the results of a
child’s performance on assessments
under the ESEA may be included as
data documenting a child’s progress,
relying exclusively on data from
Statewide assessments under the ESEA
would likely not meet the requirement
for repeated assessments at ‘‘reasonable
intervals,’’ as required by these
regulations. It is possible that a State
could develop other assessments tied to
the State approved test that would meet
these requirements.
Changes:
None.
Comment:
Numerous commenters
asked how long an intervention should
continue before determining a child has
not made adequate progress and a
referral for an evaluation to determine
eligibility for special education is made.
Several commenters recommended that
if a child is not making progress within
45 days, an evaluation should take
place. Other commenters recommended
a time limit of 90 days. One commenter
recommended the regulations include a
range of active intervention days, not
just a waiting period, within which the
IEP Team expects to notice a change,
and recommended between 45–75
school days. One commenter suggested
6–10 weeks as an appropriate period of
time.
A few commenters recommended
requiring States to establish reasonable
time limits for decision making. Several
commenters recommended requiring the
IEP Team and the parents to agree on an
appropriate period of time.
Several commenters stated that unless
a timeline is specified in the
regulations, there would be different
standards occurring throughout the
country. A few commenters expressed
concern that if time limits were not
clarified, school districts and parents
would interpret the timelines
differently, which would result in
contentious situations and litigation.
One commenter stated that a parent
could sue for compensatory services if,
after requesting an evaluation, the LEA
requires an assessment of how the child
responds to high quality research-based
instruction.
Several commenters stated that the
lack of a specific timeline means that an
evaluation could be indefinitely delayed
and children denied services. Several
commenters recommended adding
language to the regulations to ensure
that RTI models could not be used to
delay an evaluation of a child suspected
of having a disability, access to special
education and related services, or
protections under the Act.
In addition to requesting a definition
of an ‘‘appropriate period of time,’’ a
few commenters requested a definition
of ‘‘adequate progress’’ and
recommended adding language to
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require States to define ‘‘adequate
progress.’’ One commenter stated that a
child’s rate of learning needs to be
examined carefully. One commenter
offered a definition of a
‘‘developmentally appropriate rate’’ as
the time or the number of repetitions
required to have at least 85 percent of
children at the same age or grade level
acquire and retain the particular skill or
academic levels, as established by
research or by experience with the
delivery of that curriculum or program.
Discussion:
Instructional models vary
in terms of the length of time required
for the intervention to have the intended
effect on a child’s progress. It would not
be appropriate for the Department to
establish timelines or the other
requirements proposed by the
commenters in Federal regulations,
because doing so would make it difficult
for LEAs to implement models specific
to their local school districts. These
decisions are best left to State and local
professionals who have knowledge of
the instructional methods used in their
schools.
The Department believes that good
instruction depends on repeated
assessments of a child’s progress. This
allows teachers to make informed
decisions about the need to change their
instruction to meet the needs of the
child, and also provides parents with
information about their child’s progress
so that they can support instruction and
learning at home. Parents should be
informed if there are concerns about
their child’s progress and should be
aware of the strategies being used to
improve and monitor their child’s
progress.
We understand the commenters’
requests for more specific details on
timelines and measures of adequate
progress. However, as noted above,
these decisions are best left to
professionals who have knowledge
about the instructional models and
strategies used in their States and
districts.
We also understand the commenters’
concerns that the requirements in
§ 300.309(b) may result in untimely
evaluations or services and that parents
must be fully informed about the
school’s concerns about their child’s
progress and interventions provided by
the school. Therefore, we will combine
proposed § 300.309(c) and (d), and
revise the new § 300.309(c) to ensure
that the public agency promptly
requests parental consent to evaluate a
child suspected of having an SLD who
has not made adequate progress when
provided with appropriate instruction,
which could include instruction in an
RTI model, and whenever a child is
referred for an evaluation. We will also
add a new § 300.311(a)(7)(ii) to ensure
that the parents of a child suspected of
having an SLD who has participated in
a process that evaluates the child’s
response to scientific, research-based
intervention, are notified about the
State’s policies regarding collection of
child performance data and the general
education services that will be
provided; strategies to increase their
child’s rate of learning; and their right
to request an evaluation at any time. If
parents request an evaluation and
provide consent, the timeframe for
evaluation begins and the information
required in § 300.309(b) must be
collected (if it does not already exist)
before the end of that period.
Changes:
We have combined
proposed § 300.309(c) and (d), and
revised the new paragraph (c) in
§ 300.309 to require the public agency to
promptly request parental consent to
evaluate a child suspected of having an
SLD who has not made adequate
progress when provided appropriate
instruction, and whenever a child is
referred for an evaluation. We also have
added a new § 300.311(a)(7)(ii) to
require that the eligibility report include
evidence that when a child has
participated in an RTI process, the
parents were informed of State policies
regarding child performance data that
would be collected and the general
education services that would be
provided; strategies to support the
child’s rate of learning; and a parent’s
right to request an evaluation at any
time.
Comment:
Many commenters
recommended clarifying when parental
consent for evaluation should be
obtained and when the 60-day timeline
to complete an evaluation begins.
Several commenters recommended
ensuring that the 60-day timeline for
evaluation applies regardless of the
evaluation model used. One commenter
asked how scientific research-based
interventions could be completed
within a 60-day evaluation timeline.
One commenter stated that 60 days may
not be enough time to appropriately
determine whether a child responds to
instruction, particularly for children
who have not had exposure to such
interventions (e.g., children entering the
public school system for the first time).
One commenter asked if the intent of
the regulations is to allow a
determination that a child has an SLD
to take place outside the timeline for an
initial evaluation, and stated that
without clarification of the intersection
between an RTI process (that may, by
definition, require additional time
beyond that which is permitted for an
evaluation) and the required period of
time for an initial assessment, the
regulations would cause confusion and
result in improper evaluations and
eligibility determinations.
Several commenters recommended
that the regulations address the need for
an extension of the timeline and allow
States to set an alternative timeline
without a written agreement. Several
commenters requested adding a
provision for an extended timeline, with
parental consent, in exceptional
circumstances. Several commenters
stated that the language regarding an
extension of timelines is confusing.
Discussion:
Section 300.309(c), as
revised, clarifies that if a child has not
made adequate progress after an
appropriate period of time, a referral for
an evaluation must be made. As
required in § 300.301(c), the initial
evaluation must be conducted within 60
days of receiving consent for an
evaluation (or if the State establishes a
timeframe within which the evaluation
must be completed, within that
timeframe). Models based on RTI
typically evaluate the child’s response
to instruction prior to the onset of the
60-day period, and generally do not
require as long a time to complete an
evaluation because of the amount of
data already collected on the child’s
achievement, including observation
data. RTI models provide the data the
group must consider on the child’s
progress when provided with
appropriate instruction by qualified
professionals as part of the evaluation.
Section 300.309(b)(1) requires that the
eligibility group consider data on the
child’s progress when provided with
appropriate instruction by qualified
professionals as part of this evaluation.
These data, along with other relevant
information, will assist the eligibility
group in determining whether the
child’s low achievement is attributable
to a lack of appropriate instruction. As
required in § 300.306(b)(1)(i) and (ii),
consistent with section 614(b)(5)(A) and
(B) of the Act, a child cannot be
identified as a child with a disability if
the determinant factor for that
determination is lack of appropriate
instruction in reading or math.
Based on their review of the existing
data, and input from the child’s parents,
the eligibility group must decide, on a
case-by-case basis, depending on the
needs of the child and the information
available regarding the child, what
additional data, if any, are needed to
determine whether the child is a child
with a disability, and the educational
needs of the child. If the eligibility
group determines that additional data
are needed and that these data cannot be
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obtained within the 60-day timeframe
(or the timeframe established by the
State), new § 300.309(c) (proposed
§ 300.309(d)) allows the extension of the
timeframe with mutual written
agreement of the child’s parent and the
eligibility group.
Changes:
None.
Comment:
One commenter asked how
the 60-day timeframe would be followed
if the time extends over school breaks.
Discussion:
The 60-day timeframe
refers to 60 calendar days and would
include school breaks.
Changes:
None.
Comment:
Several commenters stated
that the regulations appear to set up a
separate process and procedure for the
evaluation and identification of children
with SLD, and then impose the
timeframe and procedures that apply to
the evaluation of all other disability
categories. One commenter stated that
the timeframe for evaluating children
with SLD is less stringent than for other
disability categories and is, therefore,
discriminatory.
Discussion:
Although there are
additional criteria and procedures for
evaluating and identifying children
suspected of having SLD, the group
must also comply with the procedures
and timelines that apply to all
evaluations, including evaluations for
SLD. Evaluation of children suspected
of having SLD must follow the same
procedures and timeframes required in
§§ 300.301 through 300.306, in addition
to those in §§ 300.307 through 300.311.
Changes:
None.
Comment:
One commenter stated that
‘‘appropriate period of time’’ should be
replaced with ‘‘reasonable period of
time’’ because courts are accustomed to
deciding what constitutes a reasonable
timeframe in various evaluation
contexts.
Discussion:
It is not necessary to
change ‘‘appropriate period of time’’ to
‘‘reasonable period of time,’’ because the
terms here have similar meanings and
are commonly understood to be
synonymous.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify who should
refer a child for an evaluation to
determine eligibility for special
education services.
Discussion:
Under § 300.301(b), and
consistent with the requirements in
§ 300.300 and section 614(a)(1)(D) of the
Act, either a parent of a child or a public
agency may initiate a request for an
evaluation at any time to determine if
the child is a child with a disability. We
do not believe that further clarification
is necessary.
Changes:
None.
Comment:
One commenter stated that
a school district should retain its
discretion not to evaluate a child subject
to the parent’s right to contest the
decision through due process
procedures.
Discussion:
The commenter’s concern
is already addressed in § 300.111, which
provides that an LEA must identify,
locate, and evaluate children who are in
need of special education and related
services. If an LEA refuses to evaluate a
child, the LEA must provide prior
written notice, consistent with § 300.503
and section 615(b)(3) of the Act. The
parent can challenge this decision
through a due process hearing.
Changes:
None.
Observation (§ 300.310)
Comment:
Many commenters
recommended removing the observation
requirements in § 300.310, stating that
they are costly and overly prescriptive
and have no statutory basis. One
commenter stated that the requirements
for determining eligibility under the
category of SLD are so specific that the
observation requirements are
unnecessary.
Discussion:
The observation
requirements for children suspected of
having SLD have been in the regulations
since before 1983. Important
information can be obtained about a
child through observation in the
classroom, or for a child less than
school age, in an environment
appropriate for a child of that age.
Objective observations are essential to
assessing a child’s performance and
should be a part of routine classroom
instruction and are not costly or overly
prescriptive. We believe the observation
requirements are an important matter to
regulate clearly. We will, therefore,
change § 300.310(a) through § 300.310(c)
to clearly state that the public agency
must ensure appropriate observation
and documentation of the child’s
academic performance and behavior in
the areas of difficulty to determine
whether a child has an SLD.
Changes:
We have changed
§ 300.310(a) through § 300.310(c) to
clearly state the observation
requirements in determining whether a
child has an SLD.
Comment:
Several commenters
supported requiring a member of the
group to be trained in observation.
Many commenters requested
clarification regarding what it means to
be trained in observation. One
commenter stated that there are no
established training protocols or
uniform professional standards for
conducting an observation.
Discussion:
We agree that the
requirement for an individual to be
trained in observation is unclear and
should be removed. States are
responsible for determining specific
personnel qualification requirements,
and, for the reasons stated under
§ 300.308, States and LEAs should
determine appropriate group
membership.
Changes:
We have removed the
phrase ‘‘trained in observation’’ from
§ 300.310(a).
Comment:
Several commenters stated
that the public agency should determine
the most appropriate individual to
conduct the observation. One
commenter recommended specifying a
reading specialist to conduct the
observation when the child’s learning
problems involve reading. Another
commenter stated that the observer
should not be limited to a member of
the eligibility group. One commenter
stated that it is not necessary to obtain
parental consent for the observation.
Discussion:
The person conducting
the observation should be a member of
the eligibility group because
information from the observation will be
used in making the eligibility
determination. If information is
available from an observation conducted
as part of routine classroom instruction
that is important for the eligibility group
to consider, the eligibility group should
include the person who conducted that
routine classroom. This will eliminate
redundant observations and save time
and resources. Parental consent is not
required for observations conducted as
part of routine classroom instruction
and monitoring of the child’s
performance before the child is referred
for an evaluation.
If an observation has not been
conducted, or additional observation
data are needed, the decision as to
which person should conduct the
observation is best left to members of
the eligibility group, based on the type
of information that is needed to make
the eligibility determination and
identify the child’s needs. Parental
consent is required for observations
conducted after the child is suspected of
having a disability and is referred for an
evaluation. We will revise § 300.310 to
clarify the different ways in which
observation data may be obtained and to
clarify that parental consent is required
for observations conducted after the
child is suspected of having a disability
and is referred for an evaluation.
Changes:
We have revised § 300.310
to specify in paragraph (a) that the
public agency must ensure that the
child is observed in the child’s learning
environment. A new § 300.310(b) has
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been added to require the eligibility
group to use the information obtained
from the routine classroom observation
or conduct a new observation and to
require parental consent for
observations conducted after the child is
suspected of having a disability and is
referred for an evaluation. Proposed
§ 300.310(b) has been redesignated as
new § 300.310(c).
Comment:
One commenter requested
clarification regarding the definition of
an ‘‘appropriate’’ environment in which
to conduct the observation of a child
who is less than school age, as well as
guidance in determining what such an
environment would be for children who
are out of school.
Discussion:
The eligibility group is in
the best position to determine the
environment appropriate for a child
who is less than school age or out of
school.
Changes:
None.
Comment:
One commenter requested
clear guidance about the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation.
Discussion:
We decline to provide
specific guidance on the working
relationship between the special
education teacher and the general
education teacher in conducting an
observation because this relationship
will necessarily vary depending on how
classrooms are structured and teacher
responsibilities assigned. Such
decisions are best made at the local
level. Generally, we would expect that
the child’s general education teacher
would have data from routine classroom
instruction and would work with the
other members of the eligibility group to
determine what additional data, if any,
are needed to determine whether a child
has an SLD. A special education teacher
who is experienced in working with
children with SLD, for example, might
have suggestions on ways to structure a
particular observation session to obtain
any additional information that is
needed, and may be able to assist the
general education teacher in gathering
the data.
Changes:
None.
Comment:
One commenter
recommended requiring an observation
for any child suspected of having a
disability, not just those suspected of
having an SLD.
Discussion:
Observation data will
generally be a part of the existing data
reviewed for any child suspected of
having a disability. Section
300.305(a)(1) requires the eligibility
group for any child suspected of having
a disability to review existing evaluation
data, including classroom-based
observations and observations by
teachers and related services providers.
We do not believe that requiring an
observation of children suspected of
other disabilities is necessary, however,
as identification of those other
disabilities is not always as dependent
on classroom performance and behavior
as is identification of children with
SLD.
Changes:
None.
Specific Documentation for the
Eligibility Determination (Proposed
Written Report) (§ 300.311)
Comment:
Several commenters
supported the requirements for the
written report, stating that they provide
a useful framework for practitioners.
However, several commenters stated
that the requirements for the written
report should be removed because they
go beyond the requirements of the Act
and impose additional procedural and
paperwork burdens for school
personnel. Several commenters stated
that the report is much more detailed
than the evaluation and eligibility report
for children with other disabilities, and
stated that this could discourage schools
from evaluating children suspected of
having SLD.
Discussion:
Section 614(b)(4)(B) of the
Act requires the public agency to
provide a copy of the evaluation report
and the documentation of determination
of eligibility to the parents for all
children evaluated under the Act.
Section 300.311 specifies the content for
the evaluation report for children
suspected of having SLD. States and
LEAs have more discretion over the
specific content of an evaluation report
for children suspected of having a
disability under the other disability
categories. Therefore, whether the SLD
evaluation report is more detailed or
burdensome than other evaluation
reports would depend on State and local
requirements. We believe that the
elements of the report specified in
§ 300.311 provide important checks to
prevent misidentification and ensure
that children who actually have SLD are
identified.
Changes:
None.
Comment:
Several commenters
recommended that the written report
include statements regarding the
existence of a psychological processing
disorder and the basis for making the
determination; whether the child
achieved commensurate with the child’s
age and ability; whether the child
achieved commensurate with the child’s
age and intellectual development;
whether the child achieved
commensurate with the child’s peers;
and whether there are strengths and
weaknesses in performance or cognitive
abilities in one or more of the areas in
§ 300.309(a) that require special
education and related services.
Discussion:
We decline to change the
content of the written report in the
manner recommended by the
commenters because the statements that
commenters recommended be included
in the written report are inconsistent
with the eligibility requirements for
children with SLD in § 300.309.
Changes:
None.
Comment:
One commenter
recommended including an assurance
that the eligibility determination was
made in accordance with
§ 300.306(c)(1), regarding procedures for
determining eligibility and placement,
and § 300.8(c)(10), regarding the
definition of
specific learning disability
.
Discussion:
Section 300.311(b)
requires each member of the eligibility
group to certify in writing whether the
report reflects the particular member’s
conclusion about whether the child has
an SLD, and if it does not reflect his or
her conclusion, submit a separate
statement presenting his or her
conclusions. There is no need for any
additional assurances.
Changes:
None.
Comment:
One commenter stated that
including ‘‘evaluation report’’ in the
description of the written report is
confusing because it is unclear whether
the evaluation report is something
additional to the written report.
Discussion:
The information required
in the written report in § 300.311 is a
part of the documentation of eligibility
required in § 300.306(a)(2). Section
300.306(b) and (c) lists the requirements
for eligibility determinations for all
children suspected of having a
disability, including children suspected
of having SLD. Section 300.311 provides
specific elements that must be
addressed in the report for children
suspected of having SLD. Two separate
reports are not necessary as long as the
information in § 300.311 is included in
the documentation of the eligibility
determination in § 300.306(a)(2). We
agree that this should be clarified.
Therefore, we will change the heading
for § 300.311 from ‘‘Written report’’ to
‘‘Specific documentation for the
eligibility determination’’ and will
modify the language in § 300.311(a)
accordingly.
Changes:
We have changed the
heading for § 300.311 and modified
§ 300.311(a) to clarify that the
requirements in § 300.311 are in
addition to the requirements for the
documentation of the eligibility
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determination required in
§ 300.306(a)(2).
Comment:
Several commenters
requested that the written report include
the determination of the group
concerning the effects of cultural
factors, limited English proficiency, and
environmental or economic
disadvantage to be consistent with all
the elements in § 300.309(a)(3).
Discussion:
We agree that it is
important to emphasize the importance
of considering such factors in
determining eligibility under SLD and
will add these factors in § 300.311(a).
Changes:
We have added a new
paragraph (6) to § 300.311(a) to require
the written report to include a statement
on the effects of cultural factors, limited
English proficiency, environmental, or
economic disadvantage.
Comment:
Several commenters
requested clarification of what happens
if a group member disagrees with the
report and agreement is never reached.
Other commenters asked whether
services are delayed pending a group
consensus; whether the submission of a
separate statement is synonymous with
a veto for eligibility; whether it matters
which group member submits a separate
report; and whether each group member
has equal standing.
Discussion:
The eligibility group
should work toward consensus, but
under § 300.306, the public agency has
the ultimate responsibility to determine
whether the child is a child with a
disability. Parents and school personnel
are encouraged to work together in
making the eligibility determination. If
the parent disagrees with the public
agency’s determination, under
§ 300.503, the public agency must
provide the parent with prior written
notice and the parent’s right to seek
resolution of any disagreement through
an impartial due process hearing,
consistent with the requirements in
§ 300.503 and section 615(b)(3) of the
Act.
Every effort should be made to resolve
differences between parents and school
staff through voluntary mediation or
some other informal dispute resolution
process. However, as stated in
§ 300.506(b)(1)(ii) and section
615(e)(2)(A)(ii) of the Act, mediation or
other informal procedures may not be
used to deny or delay a parent’s right to
a due process hearing, or to deny any
other rights afforded under Part B of the
Act.
Changes:
None.
Individualized Education Programs
Definition of Individualized Education
Program (§ 300.320)
General (§ 300.320(a))
We received numerous comments
requesting that we require the IEP to
include additional content that is not in
the Act. Under section 614(d)(1)(A)(ii)(I)
of the Act, the Department cannot
interpret section 614 of the Act to
require public agencies to include
additional information in a child’s IEP
that is not explicitly required under the
Act. Therefore, we generally have not
included these comments in our
analysis and discussion of § 300.320.
Comment:
One commenter requested
that § 300.320 refer to a ‘‘student with
a disability’’ instead of a ‘‘child with a
disability.’’
Discussion:
The words ‘‘child’’ and
‘‘student’’ are used interchangeably
throughout the Act. The regulations
follow the statutory language whenever
possible. In § 300.320, we used the term
‘‘child with a disability,’’ consistent
with section 614(d) of the Act.
Changes:
None.
Comment:
Many commenters
recommended that the regulations
include a definition of ‘‘functional’’ as
it is used, for example, in ‘‘functional
performance’’ in § 300.320(a)(1) and
‘‘functional goals’’ in § 300.320(a)(2).
Some commenters suggested defining
‘‘functional’’ as the acquisition of
essential and critical skills needed for
children with disabilities to learn
specific daily living, personal, social,
and employment skills, or the skills
needed to increase performance and
independence at work, in school, in the
home, in the community, for leisure
time, and for postsecondary and other
life long learning opportunities. One
commenter recommended that the
regulations include examples of
functional skills and how functional
skills should be measured.
Discussion:
It is not necessary to
include a definition of ‘‘functional’’ in
these regulations because we believe it
is a term that is generally understood to
refer to skills or activities that are not
considered academic or related to a
child’s academic achievement. Instead,
‘‘functional’’ is often used in the context
of routine activities of everyday living.
We do not believe it is necessary to
include examples of functional skills in
the regulations because the range of
functional skills is as varied as the
individual needs of children with
disabilities. We also decline to include
examples of how functional skills are
measured because this is a decision that
is best left to public agencies, based on
the needs of their children. However, it
should be noted that the evaluation
procedures used to measure a child’s
functional skills must meet the same
standards as all other evaluation
procedures, consistent with
§ 300.304(c)(1).
Changes:
None.
Comment:
One commenter
recommended revising § 300.320(a) to
state that ‘‘an IEP includes’’ rather than
‘‘an IEP must include’’ in order to reflect
the specific language in section 614(d)
of the Act. The commenter stated that
use of the word ‘‘must’’ limits the
contents of an IEP to the items listed in
§ 300.320(a).
Discussion:
The word ‘‘must’’ is used
in § 300.320(a) to clarify that an IEP is
required to include the items listed in
§ 300.320(a). We believe it is important
to retain this language in § 300.320(a).
Under section 614(d)(1)(A)(ii)(I) of the
Act, section 614 of the Act cannot be
interpreted to require content in the IEP
beyond that which is specified in the
Act.
Changes:
None.
Comment:
One commenter requested
clarifying the meaning of ‘‘appropriate’’
as used, for example, in
§ 300.320(a)(1)(ii) to refer to a child’s
participation in ‘‘appropriate’’ activities.
Discussion:
The word ‘‘appropriate’’
in these regulations does not have a
different meaning from its common
usage. Generally, the word
‘‘appropriate’’ is used to mean
‘‘suitable’’ or ‘‘fitting’’ for a particular
person, condition, occasion, or place.
Changes:
None.
Comment:
Some commenters
recommended requiring the IEP to
include a statement of the relevant
social and cultural background of a
child and how those factors affect the
appropriate participation, performance,
and placement of the child in special
education.
Discussion:
Section 614(d)(1)(A)(ii)(I)
of the Act precludes the Department
from interpreting section 614 of the Act
to require public agencies to include
information in a child’s IEP other than
what is explicitly required in the Act.
Therefore, we cannot require the IEP to
include the statement requested by the
commenters. However, a child’s social
or cultural background is one of many
factors that a public agency must
consider in interpreting evaluation data
to determine if a child is a child with
a disability under § 300.8 and the
educational needs of the child,
consistent with § 300.306(c)(1)(i).
Changes:
None.
Comment:
One commenter stated that
adapted physical education should be
part of a child’s IEP. Another
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commenter recommended that travel
training be required in the IEP.
Discussion:
The definition of
special
education
in new § 300.39 (proposed
§ 300.38) includes adapted physical
education and travel training. We do not
believe adapted physical education and
travel training should be mandated as
part of an IEP because, as with all
special education and related services,
each child’s IEP Team determines the
special education and related services
that are needed to meet each child’s
unique needs in order for the child to
receive FAPE. In addition, section
614(d)(1)(A)(ii)(I) of the Act prohibits
the Department from interpreting
section 614 of the Act to require public
agencies to include information in a
child’s IEP that is not explicitly required
under the Act.
Changes:
None.
Comment:
One commenter
recommended that IEPs include the
array of new tools used with
nondisabled children, so that children
with disabilities have access to the
materials they need to progress in the
general education curriculum.
Discussion:
There is nothing in the
Act that requires new tools or the same
tools and materials used by nondisabled
children to be used with children with
disabilities or be specified in children’s
IEPs. Therefore, we cannot make the
requested change because section
614(d)(1)(A)(ii)(I) of the Act prohibits
the Department from interpreting
section 614 of the Act to require public
agencies to include information in a
child’s IEP that is not explicitly required
under the Act. Each child’s IEP Team
determines the special education and
related services, as well as
supplementary aids, services, and
supports that are needed to meet the
child’s needs in order to provide FAPE
consistent with § 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act.
Changes:
None.
Present Levels of Academic
Achievement and Functional
Performance (§ 300.320(a)(1))
Comment:
A few commenters stated
that § 300.320(a)(1) requires an IEP to
include a statement of the child’s
present levels of academic achievement,
and recommended that the regulations
define ‘‘academic achievement.’’
Discussion:
‘‘Academic achievement’’
generally refers to a child’s performance
in academic areas (e.g., reading or
language arts, math, science, and
history). We believe the definition could
vary depending on a child’s
circumstance or situation, and therefore,
we do not believe a definition of
‘‘academic achievement’’ should be
included in these regulations.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
clarify that not every child requires a
functional performance statement or
functional annual goals. Some
commenters stated that requiring
functional assessments for all children
places an unnecessary burden on an
LEA, does not add value for every child,
and creates a potential for increased
litigation. One commenter
recommended that § 300.320(a)(1),
regarding the child’s present levels of
performance, and § 300.320(a)(2),
regarding measurable annual goals,
clarify that functional performance and
functional goals should be included in
a child’s IEP only if determined
appropriate by the child’s IEP Team.
Discussion:
We cannot make the
changes requested by the commenters.
Section 614(d)(1)(A)(i)(I) of the Act
requires an IEP to include a statement
of the child’s present levels of academic
achievement and functional
performance.
Changes:
None.
Comment:
One commenter requested
that the regulations require a child’s
present levels of performance to be
aligned with the child’s annual goals.
Another commenter stated that the
content of the IEP should be aligned
with the State’s core curriculum content
standards and the knowledge and skills
needed for children with disabilities to
become independent, productive, and
contributing members of their
communities and the larger society.
Discussion:
The IEP Team’s
determination of how the child’s
disability affects the child’s
involvement and progress in the general
education curriculum is a primary
consideration in the development of the
child’s annual IEP goals. Section
300.320(a)(1)(i), consistent with section
614(d)(1)(A)(i)(I)(aa) of the Act, requires
the statement of a child’s present levels
of performance in the IEP to include
how the child’s disability affects the
child’s involvement and progress in the
general education curriculum. This
directly corresponds with the provision
in § 300.320(a)(2)(i)(A) and section
614(d)(1)(A)(i)(II)(aa) of the Act, which
requires the IEP to include measurable
annual goals designed to meet the
child’s needs that result from the child’s
disability to enable the child to be
involved in and make progress in the
general education curriculum. We do
not believe further clarification is
needed regarding the alignment of a
child’s present levels of performance
with the child’s annual goals.
With regard to the alignment of the
IEP with the State’s content standards,
§ 300.320(a)(1)(i) clarifies that the
general education curriculum means the
same curriculum as all other children.
Therefore, an IEP that focuses on
ensuring that the child is involved in
the general education curriculum will
necessarily be aligned with the State’s
content standards. Congress
acknowledged, in section 601(c)(5)(A) of
the Act, that ensuring access to the
general education curriculum in the
regular classroom, to the maximum
extent possible, is also effective in
preparing children with disabilities to
lead productive and independent adult
lives. We do not believe further
clarification is necessary to address the
commenters’ concerns.
Changes:
None.
Measurable Annual Goals
(§ 300.320(a)(2))
Comment:
One commenter requested
clarification as to whether IEP goals
must be specific to a particular
discipline (e.g., physical therapy goals,
occupational therapy goals). One
commenter recommended that goals be
explicitly defined and objectively
measured. Another commenter
recommended requiring IEP goals to
have specific outcomes and measures on
an identified assessment tool. One
commenter recommended clarifying
that an IEP Team is permitted, under
certain circumstances, to write goals
that are intended to be achieved in less
than one year.
Discussion:
Section 300.320(a)(2)(i),
consistent with section
614(d)(1)(A)(i)(II) of the Act, requires
the IEP to include measurable annual
goals. Further, § 300.320(a)(3)(i),
consistent with section
614(d)(1)(A)(i)(III) of the Act, requires
the IEP to include a statement of how
the child’s progress toward meeting the
annual goals will be measured. The Act
does not require goals to be written for
each specific discipline or to have
outcomes and measures on a specific
assessment tool. Furthermore, to the
extent that the commenters are
requesting that we mandate that IEPs
include specific content not in section
614(d)(1)(A)(i) of the Act, under section
614(d)(1)(A)(ii)(I), we cannot interpret
section 614 to require that additional
content. IEPs may include more than the
minimum content, if the IEP Team
determines the additional content is
appropriate.
Changes:
None.
Comment:
Some commenters
recommended requiring related services
in every child’s IEP. The commenters
stated that related services are necessary
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to enhance the overall health and well-
being of the child to prevent secondary
conditions; ensure that the child
progresses towards independent
functioning and community integration;
increase the child’s ability to function
and learn in his or her educational
environment; develop social interaction
skills to enhance a child’s ability to
communicate, build relationships, and
reinforce other positive behavior skills;
and further advance the child’s ability
to complete his or her own educational
requirements and goals.
Discussion:
To require related services
for every child with a disability would
be inconsistent with the concept of
individualization that has been part of
the Act since its inception in 1975.
Related services are only required to the
extent that such services are necessary
to enable the child to benefit from
special education. Related services, as
with any other service in an IEP, are
determined on an individual basis by
the child’s IEP Team.
Changes:
None.
Comment:
Many commenters opposed
the removal of benchmarks and short-
term objectives as required components
of the IEP and recommended that States
and LEAs be permitted to require
benchmarks and short-term objectives
for all children with disabilities. Many
commenters recommended that the
regulations allow the IEP Team to
determine whether to include short-
term objectives in a child’s IEP to
measure progress in functional areas
that are not measurable through other
means.
Discussion:
Benchmarks and short-
term objectives were specifically
removed from section 614(d)(1)(A)(i)(II)
of the Act. However, because
benchmarks and short-term objectives
were originally intended to assist
parents in monitoring their child’s
progress toward meeting the child’s
annual goals, we believe a State could,
if it chose to do so, determine the extent
to which short-term objectives and
benchmarks would be used. However,
consistent with § 300.199(a)(2) and
sections 608(a)(2) and 614(d)(1)(A)(ii)(I)
of the Act, a State that chooses to
require benchmarks or short-term
objectives in IEPs in that State would
have to identify in writing to the LEAs
located in the State and to the Secretary
that such rule, regulation, or policy is a
State-imposed requirement, which is
not required by Part B of the Act or the
Federal regulations.
Changes:
None.
Comment:
A few commenters
supported the requirement in
§ 300.320(a)(2)(ii) for benchmarks or
short-term objectives to be developed
for children who take alternate
assessments aligned to alternate
achievement standards. However, a few
commenters stated that limiting short-
term objectives to children who take
alternate assessments is not acceptable
because the one percent limit on the
percentage of children who may take
alternate assessments is arbitrary.
Discussion:
The requirement to
develop short-term objectives or
benchmarks covers all children with
disabilities who are assessed using
alternate assessments aligned to
alternate achievement standards,
consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act. The one
percent cap referred to by the
commenter is not a limit on the number
of children who may take an alternate
assessment based on alternate
achievement standards. Rather, it is a
limit on the number of proficient and
advanced scores that may be included
in calculating adequate yearly progress
(AYP) under the ESEA, consistent with
34 CFR § 200.13(c)(1)(ii). As noted
previously, the requirement to include
benchmarks or short-term objectives for
all children with disabilities was
specifically removed from section
614(d)(1)(A)(i)(II) of the Act.
Changes:
None.
Comment:
One commenter stated that
the IEP should not include benchmarks
for alternate achievement standards
because this would be teaching to the
test and would lower expectations for
children.
Discussion:
Section 300.320(a)(2)(ii)
requires benchmarks or short-term
objectives only for children with
disabilities who take alternate
assessments aligned to alternate
achievement standards. By ‘‘teaching to
the test,’’ we assume that the commenter
believes that a benchmark or short-term
objective must be written for each
alternate achievement standard. There is
no such requirement in the Act or these
regulations.
Changes:
None.
Comment:
One commenter requested
clarification on how schools should
determine which children in
kindergarten through grade two must
have short-term objectives or
benchmarks in their IEPs. Another
commenter requested clarification on
how the requirements for benchmarks or
short-term objectives apply to
preschoolers.
Discussion:
Section 300.320(a)(2)(ii),
consistent with section
614(d)(1)(A)(i)(I)(cc) of the Act, requires
an IEP to include benchmarks or short-
term objectives for children with
disabilities who take an alternate
assessment aligned to alternate
achievement standards. This would
apply to preschool children and
children with disabilities in
kindergarten through grade two only if
these children are assessed in a State or
districtwide assessment program and
the State has opted to develop an
alternate assessment based on alternate
achievement standards. Under title I of
the ESEA, States are only required to
assess children in grades 3 through 8
and once in high school, so it is unlikely
that even States that choose to develop
alternate achievement standards will
include this age population in a
Statewide assessment program or
develop an alternate achievement
standard for these children.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require IEP Team members, including
the parents, to be involved in
developing short-term objectives.
Discussion:
Sections 300.320 through
300.324 and section 614(d) of the Act
are clear that the IEP Team, which
includes the parent, is responsible for
developing benchmarks or short-term
objectives for children who take
alternate assessments aligned to
alternate achievement standards.
Changes:
None.
Comment:
One commenter
recommended clarifying that goals and
objectives must be aligned with the
State’s alternate assessment.
Discussion:
Section 612(a)(16)(C)(ii) of
the Act requires alternate assessments to
be aligned with the State’s challenging
academic content standards and
academic achievement standards, and if
the State has adopted alternate
academic achievement standards
permitted under 34 CFR § 200.1(d), to
measure the achievement of children
with disabilities against those standards.
Section 614(d)(1)(A)(i)(II) of the Act
requires the IEP to include a statement
of measurable annual goals, including
academic and functional goals, designed
to meet the child’s needs that result
from the child’s disability to enable the
child to be involved in and make
progress in the general education
curriculum. However, there is nothing
in the Act that requires a child’s IEP
goals to be aligned with the State’s
alternate assessment based on alternate
achievement standards. Additionally,
for some children, goals may be needed
for activities that are not closely related
to a State’s academic content and
academic achievement standards.
Changes:
None.
Comment:
A few commenters stated
that the regulations should be more
specific about what must be included in
an IEP goal if benchmarks or short-term
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objectives are not required in every
child’s IEP.
Discussion:
The regulations are clear
on the requirements for IEP goals.
Section 300.320(a)(2)(i), consistent with
section 614(d)(1)(A)(i)(II) of the Act,
requires that annual IEP goals be
measurable and designed to meet the
child’s needs that result from the child’s
disability to enable the child to be
involved in and make progress in the
general education curriculum, and to
meet each of the child’s other
educational needs that result from the
child’s disability. We believe that these
requirements will ensure that progress
toward achieving a child’s annual goals
can be objectively monitored and
measured. We do not believe that
additional specificity is needed.
Changes:
None.
Comment:
One commenter suggested
requiring SEAs to ensure that LEAs
receive professional development in
writing measurable goals and effective
methods of measuring progress toward
achieving those goals.
Discussion:
We do not believe that the
requested requirement should be
included in the regulations. State and
local officials are in the best position to
determine the training and professional
development needs of their personnel.
Changes:
None.
Comment:
One commenter
recommended retaining current
§ 300.350, regarding the responsibilities
of the public agency to provide special
education and related services to a child
with a disability in accordance with the
child’s IEP and to make a good-faith
effort to assist the child to achieve the
goals and objectives or benchmarks in
the IEP.
Discussion:
The requirement in
current § 300.350(a)(1), regarding a
public agency’s responsibility to
provide special education and related
services to a child with a disability in
accordance with the child’s IEP, is
unnecessary, because entitlement to
FAPE under the Act includes the
provision of special education and
related services in accordance with an
IEP. Paragraphs (a)(2) and (b) in current
§ 300.350, regarding accountability for a
child achieving his or her goals, are
unnecessary because other Federal laws,
such as title I of the ESEA, already
provide sufficient motivation for agency
effort to assist children with disabilities
in making academic progress. Current
§ 300.350(c), regarding the rights of
parents to invoke due process
procedures if a parent feels that efforts
are not being made to achieve the IEP
goals, is unnecessary because it merely
provides explanatory information
regarding the due process procedures
for parents and children that are
available in §§ 300.500 through 520.
Changes:
None.
Periodic Progress Reports
(§ 300.320(a)(3)(ii))
Comment:
A few commenters
supported the language in
§ 300.320(a)(3)(ii), which requires the
IEP to include a description of when
periodic reports on the child’s progress
toward meeting the annual goals will be
provided. However, many commenters
recommended retaining current
§ 300.347(a)(7), which requires parents
of a child with a disability to be
informed about their child’s progress at
least as often as parents of nondisabled
children and for the report to include
information on the extent to which the
child’s progress is sufficient to enable
the child to achieve the goals by the end
of the year.
One commenter recommended
requiring progress reports to be
provided with enough time to allow
changes in the IEP if the goals will not
be met by the end of the year. A few
commenters recommended requiring the
reports to explain, in reasonable detail
and with specific progress measures, the
extent to which the child is making
progress on each of the annual goals in
the child’s IEP. Another commenter
recommended requiring LEAs to report
progress in measurable terms. The
commenter stated that many LEAs
convert a measurable objective or goal
into subjective and vague language,
such as ‘‘adequate progress,’’ which
does not provide objective
measurements of achievement. Another
commenter recommended requiring
progress reports to be specifically linked
to the measurable outcomes of a child’s
annual goals.
Numerous commenters requested that
progress reports be provided with
school report cards. However, one
commenter stated that not all school
districts have quarterly report cards,
and, therefore, the regulations should
require progress reports to be issued at
the same time as other report cards in
the district.
Discussion:
Section 300.320(a)(3)(ii)
follows the language in section
614(d)(1)(A)(i)(III) of the Act and
requires the IEP to include a description
of when periodic reports on the child’s
progress toward meeting the annual
goals will be provided. The Act does not
require report cards or quarterly report
cards. Report cards and quarterly report
cards are used as examples in
§ 300.320(a)(3)(ii) of when periodic
reports on the child’s progress toward
meeting the annual goals might be
provided. The specific times that
progress reports are provided to parents
and the specific manner and format in
which a child’s progress toward meeting
the annual goals is reported is best left
to State and local officials to determine.
In addition, under section
614(d)(1)(A)(ii)(I) of the Act we cannot
interpret section 614 of the Act to
require additional information in a
child’s IEP that is not specifically
required by the Act.
Changes:
None.
Statement of Special Education and
Related Services (§ 300.320(a)(4))
Comment:
One commenter
recommended requiring the regular
education teacher to offer modifications
for every assignment given to a child
with a disability.
Discussion:
It would be inconsistent
with the Act to implement the
commenter’s recommendation.
Consistent with § 300.320(a)(4) and
section 614(d)(1)(A)(i)(IV) of the Act, the
child’s IEP Team determines the special
education and related services, and
supplementary aids, services, and other
supports that are needed for the child to
advance appropriately toward meeting
the child’s annual goals.
Changes:
None.
Comment:
A significant number of
commenters recommended the
regulations include a definition of
‘‘peer-reviewed research,’’ as used in
§ 300.320(a)(4). One commenter
recommended that the definition of
peer-reviewed research be consistent
with the work of the National Research
Council.
Discussion:
‘‘Peer-reviewed research’’
generally refers to research that is
reviewed by qualified and independent
reviewers to ensure that the quality of
the information meets the standards of
the field before the research is
published. However, there is no single
definition of ‘‘peer reviewed research’’
because the review process varies
depending on the type of information to
be reviewed. We believe it is beyond the
scope of these regulations to include a
specific definition of ‘‘peer-reviewed
research’’ and the various processes
used for peer reviews.
Changes:
None.
Comment:
Some commenters
recommended revising § 300.320(a)(4) to
require special education and related
services, and supplementary aids and
services, to be based on ‘‘evidenced-
based practices’’ rather than ‘‘peer-
reviewed research.’’ A few commenters
recommended revising § 300.320(a)(4) to
require special education and related
services, and supplementary aids and
services to be based on peer-reviewed
research, evidenced-based practices,
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and emerging best practices. Many
commenters recommended clarifying
the meaning and intent of the phrase ‘‘to
the extent practicable.’’ One commenter
recommended requiring all IEP Team
meetings to include a focused
discussion on research-based methods
and to provide parents with prior
written notice when the IEP Team
refuses to provide documentation of
research-based methods.
Discussion:
Section 300.320(a)(4)
incorporates the language in section
614(d)(1)(A)(i)(IV) of the Act, which
requires that special education and
related services and supplementary aids
and services be based on peer-reviewed
research to the extent practicable. The
Act does not refer to ‘‘evidenced-based
practices’’ or ‘‘emerging best practices,’’
which are generally terms of art that
may or may not be based on peer-
reviewed research. Therefore, we
decline to change § 300.320(a)(4) in the
manner suggested by the commenters.
The phrase ‘‘to the extent practicable,’’
as used in this context, generally means
that services and supports should be
based on peer-reviewed research to the
extent that it is possible, given the
availability of peer-reviewed research.
We do not believe further clarification is
necessary.
We decline to require all IEP Team
meetings to include a focused
discussion on research-based methods
or require public agencies to provide
prior written notice when an IEP Team
refuses to provide documentation of
research-based methods, as we believe
such requirements are unnecessary and
would be overly burdensome.
Changes:
None.
Comment:
One commenter
recommended clear guidance on the
responsibilities of States, school
districts, and school personnel to
provide special education and related
services, and supplementary aids and
services that are based on peer-reviewed
research. One commenter requested
clarification that the requirement for
special education and related services,
and supplementary aids and services to
be based on peer-reviewed research
does not mean that the service with the
greatest body of research is the service
necessarily required for FAPE. Another
commenter requested that the
regulations clarify that the failure of a
public agency to provide special
education and related services, and
supplementary aids and services based
on peer-reviewed research, does not
result in a denial of FAPE, and that the
burden of proof is on the moving party
when the denial of FAPE is at issue.
Discussion:
Section 612(d)(1)(A)(i)(IV)
of the Act requires special education
and related services, and supplementary
aids and services, to be based on peer-
reviewed research to the extent
practicable. States, school districts, and
school personnel must, therefore, select
and use methods that research has
shown to be effective, to the extent that
methods based on peer-reviewed
research are available. This does not
mean that the service with the greatest
body of research is the service
necessarily required for a child to
receive FAPE. Likewise, there is nothing
in the Act to suggest that the failure of
a public agency to provide services
based on peer-reviewed research would
automatically result in a denial of FAPE.
The final decision about the special
education and related services, and
supplementary aids and services that
are to be provided to a child must be
made by the child’s IEP Team based on
the child’s individual needs.
With regard to the comment regarding
the burden of proof when the denial of
FAPE is at issue, we have addressed this
issue in the
Analysis of Comments and
Changes
section for subpart E.
Changes:
None.
Comment:
Several commenters
recommended including a construction
clause in the regulations to clarify that
no child should be denied special
education and related services, or
supplementary aids and services, based
on a lack of available peer-reviewed
research on a particular service to be
provided.
Discussion:
We do not believe that the
recommended construction clause is
necessary. Special education and related
services, and supplementary aids and
services based on peer-reviewed
research are only required ‘‘to the extent
practicable.’’ If no such research exists,
the service may still be provided, if the
IEP Team determines that such services
are appropriate. A child with a
disability is entitled to the services that
are in his or her IEP whether or not they
are based on peer-reviewed research.
The IEP Team, which includes the
child’s parent, determines the special
education and related services, and
supplementary aids and services that
are needed by the child to receive FAPE.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify that the reference to ‘‘peer-
reviewed research’’ does not require an
IEP to include instructional
methodologies. However, a few
commenters recommended that the
regulations require all elements of a
program provided to a child, including
program methodology, to be specified in
the child’s IEP.
Discussion:
There is nothing in the
Act that requires an IEP to include
specific instructional methodologies.
Therefore, consistent with section
614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to
require that all elements of a program
provided to a child be included in an
IEP. The Department’s longstanding
position on including instructional
methodologies in a child’s IEP is that it
is an IEP Team’s decision. Therefore, if
an IEP Team determines that specific
instructional methods are necessary for
the child to receive FAPE, the
instructional methods may be addressed
in the IEP.
Changes:
None.
Comment:
A few commenters
requested that the regulations require
programs provided to a child with a
disability to be research-based with
demonstrated effectiveness in
addressing the particular needs of a
child.
Discussion:
While the Act clearly
places an emphasis on practices that are
based on scientific research, there is
nothing in the Act that requires all
programs provided to children with
disabilities to be research-based with
demonstrated effectiveness in
addressing the particular needs of a
child where not practicable. We do not
believe the recommended change
should be made because, ultimately, it
is the child’s IEP Team that determines
the special education and related
services that are needed by the child in
order for the child to receive FAPE.
Changes:
None.
Comment:
A few commenters
recommended that § 300.320(a)(4)
specifically refer to assistive technology
devices as supplementary aids that must
be provided to the child.
Discussion:
It is not necessary to refer
to assistive technology devices in
§ 300.320(a)(4). Section 300.324(a)(2)(v),
consistent with section 614(d)(3)(B)(v)
of the Act, already requires the IEP
Team to consider whether the child
needs assistive technology devices and
services.
Changes:
None.
Participation With Nondisabled
Children (§ 300.320(a)(5))
Comment:
Many commenters
recommended that § 300.320(a)(5),
regarding the participation of children
with disabilities with nondisabled
children, follow the language in section
614(d)(1)(A)(i)(V) of the Act and use the
term ‘‘regular class’’ instead of ‘‘regular
educational environment.’’ One
commenter stated that parents, school
staff, and the community consider the
‘‘regular class’’ to be the place where a
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child’s nondisabled peers go to school,
while ‘‘regular educational
environment’’ is interpreted to be
anywhere in the school, such as down
the hallway, in a separate wing of the
school, or across the lunch room. One
commenter stated that the term ‘‘regular
education environment’’ could be
interpreted to mean only special classes
such as art, music, and gym. A few
commenters recommended defining
‘‘regular education environment’’ to
mean the participation of children with
disabilities with their nondisabled peers
in the regular classroom and other
educational settings, including
nonacademic settings.
Discussion:
We agree that use of the
term ‘‘regular educational environment’’
may be misinterpreted. Therefore, we
will revise § 300.320(a)(5) to require the
IEP to include an explanation of the
extent, if any, to which the child will
not participate with nondisabled
children in the regular class.
Changes:
We have changed
§ 300.320(a)(5) to refer to the ‘‘regular
class’’ instead of the ‘‘regular education
environment.’’
Comment:
One commenter
recommended adding language to
§ 300.320(a)(5) for preschool children
with disabilities and stated that ‘‘regular
education environment’’ should be
replaced with ‘‘settings with typically
developing peers.’’
Discussion:
Section 300.320(a)(5)
follows the language in section
614(d)(1)(A)(i)(V) of the Act and applies
to all children with disabilities covered
by Part B of the Act, which includes
preschool children under section 619 of
the Act. We do not believe it is
necessary to change the regulations in
the manner suggested by the commenter
because the ‘‘regular class’’ includes a
preschool setting with typically
developing peers.
Changes:
None.
Statewide and Districtwide Assessments
(§ 300.320(a)(6))
Comment:
A few commenters
recommended requiring parents to be
informed in writing of the consequences
of their child taking an alternate
assessment, including any effect on the
child’s eligibility for graduation with a
regular high school diploma. The
commenters stated that providing this
information to parents is particularly
important in States that require passing
a State exam in order to obtain a regular
high school diploma.
Discussion:
Section 612(a)(16) of the
Act requires that the State (or, in the
case of a districtwide assessment, the
LEA) develop and implement guidelines
for the participation of children with
disabilities in alternate assessments,
including alternate assessments aligned
to alternate achievement standards
permitted under 34 CFR 200.1(d).
Section 200.6(a)(2)(iii)(A)(2) of the
ESEA title I regulations requires States
to inform parents that their child’s
achievement will be measured against
alternate achievement standards.
We acknowledge that these
requirements do not specifically require
a public agency to inform parents of any
potential consequences of a child
participating in an alternate assessment.
The commenters’ recommendation will
be considered along with other
comments we have received in response
to the NPRM proposing changes to
§ 300.160, which was published in the
Federal Register
on December 15, 2005
(70 FR 74624). As noted elsewhere in
this preamble, the final regulations for
§ 300.160, regarding participation in
assessments, will be published in a
separate final rule.
Changes:
None.
Comment:
One commenter
recommended defining ‘‘appropriate
accommodations’’ and ‘‘individual
appropriate accommodations’’ as
accommodations that are needed to
meet the child’s unique needs that
maintain and preserve test validity,
reliability, and technical testing
standards.
Discussion:
Section
614(d)(1)(A)(i)(VI)(aa) of the Act
requires that the IEP include a statement
of any individual appropriate
accommodations that are necessary to
measure the academic and functional
performance of the child on State and
districtwide assessments. The
requirements in proposed § 300.160,
published in the
Federal Register
on
December 15, 2005, provide additional
information about accommodations and
the participation of children with
disabilities in State and districtwide
assessments. As noted elsewhere in this
preamble, the final § 300.160 will be
published in a separate final rule. We
will consider the commenter’s
recommendation along with other
comments received in response to the
NPRM proposing changes to § 300.160.
Changes:
None.
Comment:
One commenter
recommended changing the word
‘‘must’’ in § 300.320(a)(6)(ii) to state that
if an IEP Team determines that the child
will take an alternate assessment, the
IEP ‘‘will’’ include a statement of why
the child cannot participate in the
regular assessment. The commenter
stated that ‘‘will’’ is less coercive and
more in line with the consensus
decision-making model of IEP Team
meetings.
Discussion:
Generally, we have used
the word ‘‘must’’ for regulations that
describe what a public agency must do
and the word ‘‘will’’ when referring to
what the IEP Team has determined a
child will do. While we understand the
commenter’s concern, we believe it is
unnecessary to change
§ 300.320(a)(6)(ii).
Changes:
None.
Comment:
One commenter
recommended that § 300.320(a)(6)
clarify that a child with the most
significant cognitive disabilities, who
has been determined by the IEP Team to
be unable to make progress toward the
regular achievement standards even
with the best instruction, will be taught
and assessed based on alternate
achievement standards.
Discussion:
It would be inappropriate
to require a child with the most
significant cognitive disabilities to be
taught and assessed based on alternate
achievement standards. Consistent with
section 614(d)(1)(A)(i)(VI)(bb) of the
Act, the child’s IEP Team is responsible
for determining the particular
assessment that is appropriate for a
child. Under § 200.1(d) of the ESEA title
I regulations, a State is permitted, but
not required, to adopt alternate
achievement standards and develop an
alternate assessment based on those
standards for children with the most
significant cognitive disabilities. There
is no requirement under the Act or the
ESEA that a State develop an alternate
assessment based on alternate
achievement standards.
Changes:
None.
Comment:
One commenter stated that
§ 300.320(a)(6) should include
information about alternate assessments
because there will be children who will
not be successful with generic
accommodations.
Discussion:
Section 612(a)(16)(C) of
the Act provides information regarding
alternate assessments and the
requirements for alternate assessments
under the Act. As noted elsewhere in
this preamble, the final regulations for
§ 300.160, which will incorporate the
requirements in section 612(a)(16) of the
Act and provide further clarification
regarding the participation of children
with disabilities in assessments, will be
published in a separate document. We
will consider the commenter’s
recommendation along with other
comments received in response to the
NPRM proposing changes to § 300.160.
Changes:
None.
Comment:
One commenter suggested
revising § 300.320(a)(6)(i), which
requires the IEP to include a statement
of any individual appropriate
accommodations that are necessary to
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‘‘measure’’ the academic and functional
performance of the child on State and
districtwide assessments. The
commenter recommended revising the
statement to require the IEP to include
a statement of any individual
appropriate accommodations that are
necessary to allow the child to
‘‘participate’’ in assessments.
Discussion:
To change the regulation
in the manner suggested by the
commenter would be inconsistent with
the Act. Section 300.320(a)(6)(i) reflects
the language in section
614(d)(1)(A)(i)(VI)(aa) of the Act and
requires accommodations that are
necessary to measure a child’s
performance. Accommodations that
allow a child to ‘‘participate’’ in
assessments could include
accommodations that invalidate the
child’s test score, thereby resulting in an
assessment that does not ‘‘measure’’ a
child’s performance.
Changes:
None.
Initiation, Frequency, Location, and
Duration of Services (§ 300.320(a)(7))
Comment:
One commenter
recommended clarifying that the term
‘‘duration’’ in § 300.320(a)(7), regarding
services and modifications in the IEP,
refers to the length of a particular
service session and not the entire IEP.
Discussion:
The meaning of the term
‘‘duration’’ will vary, depending on
such things as the needs of the child,
the service being provided, the
particular format used in an IEP, and
how the child’s day and IEP are
structured. What is required is that the
IEP include information about the
amount of services that will be provided
to the child, so that the level of the
agency’s commitment of resources will
be clear to parents and other IEP Team
members. The amount of time to be
committed to each of the various
services to be provided must be
appropriate to the specific service, and
clearly stated in the IEP in a manner
that can be understood by all involved
in the development and implementation
of the IEP.
Changes:
None.
Comment:
One commenter requested
that the regulations require the IEP to
include information about the person(s)
providing the services, rather than just
a listing of the services.
Discussion:
The Act does not require
the IEP to include information about the
specific person(s) providing the
services. Section 614(d)(1)(A)(ii)(I) of
the Act precludes the Department from
interpreting section 614 of the Act to
require public agencies to include
information in the IEP beyond what is
specifically required by the Act.
Changes:
None.
Transition Services (§ 300.320(b))
Comment:
Many commenters
disagreed with changing the age at
which transition services must be
provided to a child with a disability
from 14 years to 16 years. One
commenter recommended that
transition services begin at age 13.
Another commenter recommended that
transition services begin before high
school, because if there is a choice of
high schools, transition goals may be a
determining factor in the selection
process. A few commenters requested
that the regulations clarify that States
may continue to begin transition
services with the first IEP after the child
turns age 14. Some commenters
recommended that transition begin two
to four full school years before the child
is expected to graduate because some
children may exit school at age 17.
Numerous commenters recommended
that the regulations clarify that States
have discretion to require transition
services to begin before age 16 for all
children in the State. However, a few
commenters recommended removing
the phrase ‘‘or younger if determined
appropriate by the IEP Team’’ in
§ 300.320(b) because the language is not
in the Act and promotes additional
special education services.
A few commenters recommended that
the regulations require transition
planning to begin earlier than age 16 if
necessary for the child to receive FAPE.
Other commenters recommended
clarifying that, in order for transition
services to begin by age 16, transition
assessments and other pre-planning
needs that would facilitate movement to
post-school life must be completed prior
to the child’s 16th birthday. One
commenter recommended requiring
transition planning to begin no later
than the child’s freshman year in high
school and that this planning include
selecting assessment instruments and
completing assessments that will lead to
the development of transition goals and
objectives in the child’s IEP.
Discussion:
Section
614(d)(1)(A)(i)(VIII) of the Act requires
that transition services begin no later
than the first IEP to be in effect when
the child turns 16. Because IEP Team
decisions must always be
individualized, we have included the
phrase ‘‘or younger if determined
appropriate by the IEP Team’’ in
§ 300.320(b).
The Act does not require transition
planning or transition assessments, as
recommended by some commenters.
Therefore, consistent with section
614(d)(1)(A)(ii)(I) of the Act, we cannot
interpret section 614 of the Act to
require that IEPs include this
information because it is beyond what is
specifically required in the Act.
The Department believes that a State
could require transition services, if it
chose to do so, to begin before age 16
for all children in the State. However,
consistent with § 300.199(a)(2) and
section 608(a)(2) of the Act, a State that
chooses to require transition services
before age 16 for all children would
have to identify in writing to its LEAs
and to the Secretary that such rule,
regulation, or policy is a State-imposed
requirement that is not required by Part
B of the Act and Federal regulations.
Changes:
None.
Comment:
A few commenters
recommended that § 300.320(b) clarify
that the child is a participating IEP
Team member and that the IEP Team is
required to consider the child’s
preferences in developing transition
goals and services.
Discussion:
The clarification
requested is not needed because
§ 300.321(b)(1) already requires the
public agency to invite a child with a
disability to attend the child’s IEP Team
meeting, if a purpose of the meeting is
to consider the child’s postsecondary
goals and the transition services needed
to assist the child to reach those goals.
In addition, § 300.321(b)(2) requires the
public agency to take steps to ensure
that the child’s preferences and interests
are considered, if the child does not
attend the IEP Team meeting. We
believe that this is sufficient
clarification that, for the purposes
mentioned by the commenter, the child
is a participating IEP Team member.
Changes:
None.
Comment:
A few commenters
requested that the regulations clarify
whether ‘‘transition assessments’’ are
formal evaluations or competency
assessments. One commenter stated that
transition assessments should be
different for a college-bound child with
a disability than for a child with severe
disabilities whose future is a group
home.
Discussion:
We do not believe the
requested clarification is necessary
because the specific transition
assessments used to determine
appropriate measurable postsecondary
goals will depend on the individual
needs of the child, and are, therefore,
best left to States and districts to
determine on an individual basis.
Changes:
None.
Comment:
One commenter requested
clarification of the term ‘‘postsecondary
goals.’’ Another commenter
recommended defining ‘‘postsecondary
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goals’’ in the definition section of these
regulations.
Discussion:
We do not believe it is
necessary to include a definition of
‘‘postsecondary goals’’ in the
regulations. The term is generally
understood to refer to those goals that a
child hopes to achieve after leaving
secondary school (i.e., high school).
Changes:
None.
Comment:
One commenter requested
clarification regarding whether
§ 300.320(b)(1) requires measurable
postsecondary goals in each of the areas
of training, education, employment,
and, independent living skills.
Discussion:
Beginning not later than
the first IEP to be in effect when the
child turns 16 years of age, section
614(d)(1)(A)(i)(VIII)(aa) of the Act
requires a child’s IEP to include
measurable postsecondary goals in the
areas of training, education, and
employment, and, where appropriate,
independent living skills. Therefore, the
only area in which postsecondary goals
are not required in the IEP is in the area
of independent living skills. Goals in
the area of independent living are
required only if appropriate. It is up to
the child’s IEP Team to determine
whether IEP goals related to the
development of independent living
skills are appropriate and necessary for
the child to receive FAPE.
Changes:
None.
Comment:
Some commenters
recommended that the regulations retain
the requirement in current
§ 300.347(b)(1) that requires IEPs to
include a statement of the transition
service needs of the child under
applicable components of the child’s
IEP that focus on the child’s courses of
study (such as participation in
advanced-placement courses or a
vocational education program).
Discussion:
The requirement referred
to by the commenter is already in the
regulations. Section 300.320(b)(2)
includes a reference to ‘‘courses of
study’’ as part of transition services,
consistent with section
614(d)(1)(A)(i)(VIII)(bb) of the Act. The
examples in current § 300.347(b)(2) (i.e.,
advanced placement course or a
vocational education program) are not
included in § 300.320(b)(2) because we
do not believe they are necessary to
understand and implement the
requirement.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
explicitly require transition services to
include vocational and career training
through work-study and documentation
of accommodations needed in the
workplace.
Discussion:
The Act does not require
IEPs to include vocational and career
training or documentation of workplace
accommodations. Consistent with
section 614(d)(1)(A)(ii)(I) of the Act, we
cannot interpret section 614 of the Act
to require IEPs to include information
beyond what is specifically required in
the Act. It is up to each child’s IEP Team
to determine the transition services that
are needed to meet the unique transition
needs of the child.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify that schools can use funds
provided under Part B of the Act to
support children in transitional
programs on college campuses and in
community-based settings.
Discussion:
We do not believe that the
clarification requested by the
commenters is necessary to add to the
regulations because, as with all special
education and related services, it is up
to each child’s IEP Team to determine
the special education and related
services that are needed to meet each
child’s unique needs in order for the
child to receive FAPE. Therefore, if a
child’s IEP Team determines that a
child’s needs can best be met through
participation in transitional programs
on college campuses or in community-
based settings, and includes such
services on the child’s IEP, funds
provided under Part B of the Act may
be used for this purpose.
Changes:
None.
Comment:
One commenter
recommended more accountability for
transition services.
Discussion:
The Act contains
significant changes to the monitoring
and enforcement requirements under
Part B of the Act. Section 300.600,
consistent with section 616(a) of the
Act, requires the primary focus of
monitoring to be on improving
educational results and functional
outcomes for children with disabilities.
The provisions in section 616(a) and
(b)(2)(C)(ii) of the Act set forth the
responsibility of States to monitor the
implementation of the Act, enforce the
Act, and annually report on
performance of the State and each LEA.
Section 300.600(c), consistent with
section 616(a)(3) of the Act, requires
States to measure performance in
monitoring priority areas using
quantifiable indicators and such
qualitative indicators as are needed to
adequately measure performance.
Section 300.601 reflects statutory
language in section 616(b) of the Act
and requires States to have a
performance plan that evaluates their
efforts to implement the requirement
and purposes of the Act. Transition
services are specifically being addressed
in State performance plans. We believe
that these changes to the monitoring and
enforcement requirements will ensure
that States and LEAs are held
accountable for the transition services
they provide.
Changes:
None.
Comment:
One commenter requested
that the regulations be revised to
include an affirmative statement that
transition services can be used to drive
the IEP for the child.
Discussion:
It would be inappropriate
to include such a requirement in these
regulations because, while section
614(d)(1)(A)(i)(VIII) of the Act includes
transition services in a child’s IEP, there
is no suggestion that it be the only
component or the component that
governs a child’s IEP.
Changes:
None.
Transfer of Rights at Age of Majority
(§ 300.320(c))
Comment:
One commenter
recommended that the regulations
specify how the child is to be informed
of the transfer of rights. The commenter
also recommended that the regulations
require public agencies to explain to the
child the rights that will transfer to the
child on reaching the age of majority.
Discussion:
The specific manner in
which a child is informed about his or
her rights is best left to States, districts,
and IEP Teams to decide, based on their
knowledge of the child and any unique
local or State requirements. Section
300.320(c), consistent with section
614(d)(1)(A)(i)(VIII)(cc) of the Act,
already requires the IEP to include a
statement that the child has been
informed of the child’s rights under Part
B of the Act, if any, that will transfer to
the child on reaching the age of
majority. We do not believe further
clarification is necessary.
Changes:
None.
Comment:
One commenter stated that
§ 300.320(c) is redundant with
§ 300.520.
Discussion:
Sections 300.320 and
300.520 are related, but not redundant.
Section 300.320(c) requires the IEP to
include a statement that the child has
been informed of the child’s rights
under Part B of the Act that will transfer
to the child on reaching the age of
majority. Section 300.520 provides
additional information about the
transfer of rights as part of the
procedural safeguards for parents and
children under the Act.
Changes:
None.
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Construction (§ 300.320(d))
Comment:
One commenter stated that
§ 300.320(d)(2) constrains States and
LEAs from adding elements to the IEP
and misses the opportunity to make
sense of the one percent and two
percent rules under the ESEA. One
commenter recommended that the
regulations explicitly state that nothing
limits a State from adding its own
mandatory components of the IEP,
especially given the purpose and intent
to align the Act with the ESEA.
Discussion:
There is nothing in the
Act that limits States and LEAs from
adding elements to the IEP, so long as
the elements are not inconsistent with
the Act or these regulations, and States
do not interpret the Act to require these
additional elements. Section 300.320(d),
consistent with section
614(d)(1)(A)(ii)(I) of the Act, does not
prohibit States or LEAs from requiring
IEPs to include information beyond that
which is explicitly required in section
614 of the Act. However, if a State
requires IEPs to include information
beyond that which is explicitly required
in section 614 of the Act, the State must
identify in writing to its LEAs and the
Secretary that it is a State-imposed
requirement and not one based on the
Act or these regulations, consistent with
§ 300.199(a)(2) and section 608(a)(2) of
the Act.
Changes:
None.
IEP Team (§ 300.321)
Comment:
One commenter
recommended that the regulations
clarify whether regular education
teachers are required at every IEP Team
meeting.
Discussion:
Consistent with
§ 300.321(a)(2) and section
614(d)(1)(B)(ii) of the Act, a regular
education teacher is a required member
of an IEP Team if the child is, or may
be, participating in the regular
education environment. In such cases,
the regular education teacher would be
expected to attend each IEP Team
meeting, unless the regular education
teacher has been excused from attending
a meeting, pursuant to § 300.321(e) and
section 614(d)(1)(C) of the Act. We do
not believe further clarification is
necessary.
Changes:
None.
Comment:
Many comments were
received recommending that the IEP
Team include additional members
beyond those required by § 300.321(a).
Several commenters stated that
occupational therapists should be part
of the IEP Team because of their unique
training in assisting children to learn in
changing environments. A few
commenters recommended that a
recreation therapist or specialist be
included on the IEP Team. Other
commenters stated that a practitioner
skilled in assistive technology should be
included. Several commenters
recommended that the IEP Team
include individuals with knowledge or
special expertise regarding the related
services needs of a child.
Some commenters stated that
individuals from the child welfare
system should be included as members
of the IEP Team and should be invited
to attend IEP Team meetings when the
purpose of the meeting is to consider
transition services for a child who is a
ward of the State or in the custody of
the child welfare agency. The
commenters recommended that the IEP
Team should specifically include any of
the following individuals: The child’s
attorney or guardian
ad litem
, court
appointed special advocate, caseworker,
foster parent, caretaker, or judge.
Discussion:
It would be inappropriate
to require that individuals with specific
professional knowledge or qualifications
attend all IEP Team meetings. These
decisions should be made on a case-by-
case basis in light of the needs of a
particular child. Section 300.321(a)(6),
consistent with section 614(d)(1)(B)(vi)
of the Act, already allows other
individuals who have knowledge or
special expertise regarding the child,
including related services personnel, as
appropriate, to be included as members
of a child’s IEP Team at the discretion
of the parent or the agency. Therefore,
we decline to make the changes
recommended by the commenters.
However, it should be noted that if a
public agency wishes to invite officials
from another agency, such as officials of
the child welfare agency that are not
representing the child, the public
agency must obtain parental consent for
the individual to participate in the IEP
Team meeting because confidential
information about the child from the
child’s education records would be
shared at the meeting.
Changes:
None.
Comment:
A few commenters
recommended that the IEP Team
include a representative of the private
school or facility when an IEP is
developed for a child in a private
school.
Discussion:
We believe the
commenters’ concerns are already
addressed in the regulations. Section
300.325(a) requires that, before a public
agency places a child with a disability
in, or refers a child to, a private school
or facility, the agency must initiate and
conduct a meeting to develop an IEP for
the child and must ensure that a
representative of the private school or
facility attends the meeting.
Changes:
None.
Comment:
A few commenters stated
that the IEP Team should include other
persons whose presence on the IEP
Team would be beneficial to the child,
regardless of their academic
qualifications. Other commenters
recommended that the IEP Team
include credentialed and licensed
personnel, even though it is important
to recognize that people who are not
credentialed have important roles to
play.
Discussion:
We believe the
commenters’ concerns are already
addressed. Section 614(d)(1)(B)(vi) of
the Act states that other individuals
who have knowledge or special
expertise regarding the child may be
included as members of a child’s IEP
Team at the discretion of the parent or
the agency. Consistent with
§ 300.321(c), the party (parents or public
agency) who invites the individual to be
a member of the IEP Team determines
the knowledge or special expertise of
such individual.
Changes:
None.
Comment:
Several commenters
recommended that the IEP Team
include an IEP manager who would
communicate with IEP members not in
attendance, ensure that the IEP
requirements are met, and assume
responsibility for implementing the IEP.
Discussion:
The Act does not require
an IEP Team manager as a part of the
IEP Team. While having one individual
manage the provision of services under
the IEP might be a good practice in
particular circumstances, we decline to
require IEP Team managers for all IEPs
because, in many cases, it would be
unnecessary. In addition, to ensure that
all IEP Team members are aware of their
responsibilities regarding the
implementation of a child’s IEP,
§ 300.323(d) requires that the child’s IEP
be accessible to each regular education
teacher, special education teacher,
related services provider, and any other
service provider who is responsible for
its implementation.
Changes:
None.
Comment:
A few commenters
recommended that the special education
teacher on a child’s IEP Team should be
required to have expertise in the area of
the child’s disability. The commenters
stated that this is especially important
for children with dyslexia and children
with other learning disabilities.
A few commenters recommended that
the child’s future teacher be required to
attend an end-of-the-year IEP Team
meeting.
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Discussion:
Section 612(d)(1)(B)(iii) of
the Act requires that not less than one
special education teacher of the child
(or where appropriate, not less than one
special education provider of the child)
be included on the IEP Team. Decisions
as to which particular teacher(s) or
special education provider(s) are
members of the IEP Team and whether
IEP Team meetings are held at the end
of the school year or some other time,
are best left to State and local officials
to determine, based on the needs of the
child.
Changes:
None.
Comment:
A few commenters
recommended defining ‘‘regular
education environment’’ in
§ 300.321(a)(2) to mean the regular
classroom and the non-academic
environment. A few commenters
requested that the regulations require
children to be in the regular classroom
and in nonacademic activities with their
nondisabled peers.
Discussion:
It is not necessary to
define ‘‘regular education environment’’
or to repeat that children with
disabilities should be included in the
regular classroom and in nonacademic
activities with their nondisabled peers.
The LRE requirements in §§ 300.114
through 300.120, consistent with section
612(a)(5) of the Act, are clear that each
public agency must ensure that, to the
maximum extent appropriate, children
with disabilities are educated with
children who are nondisabled. Section
300.117, consistent with section
612(a)(5) of the Act, is clear that this
includes nonacademic and
extracurricular services and activities.
Changes:
None.
Comment:
A few commenters stated
that a special education provider should
be allowed to substitute for a special
education teacher only when the child
does not have a special education
teacher because the role of a special
education teacher is different from the
role of a special education provider.
Discussion:
The recommended change
is not appropriate. Section 300.321(a)(2)
incorporates the language in section
614(d)(1)(B)(iii) of the Act and requires
the IEP Team to include not less than
one special education teacher, or where
appropriate, not less than one special
education provider. The special
education provider may substitute when
there is no special education teacher.
However, the Act leaves open the
possibility that there may be other
appropriate circumstances when a
special education provider could
substitute for a special education
teacher. These are decisions best left to
State and local officials.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
define ‘‘special education teacher’’ and
‘‘special education provider,’’ as used in
§ 300.321(a)(3).
Discussion:
Section 300.321(a)(3),
consistent with section 614(d)(1)(B)(iii)
of the Act, requires that the IEP Team
include not less than one special
education teacher, or where appropriate,
not less than one special education
provider of the child. This is not a new
requirement. The same requirement is
in current § 300.344(a)(3). As noted in
Attachment I of the March 12, 1999 final
regulations, the special education
teacher or provider who is a member of
the child’s IEP Team should be the
person who is, or will be, responsible
for implementing the IEP. For example,
if the child’s disability is a speech
impairment, the special education
teacher or special education provider
could be the speech language
pathologist. We do not believe that
further clarification is needed.
Changes:
None.
Comment:
Many commenters
recommended that the regulations
require the IEP Team to include a
representative of the public agency who
has the authority to commit resources.
One commenter stated that the failure of
this individual to attend an IEP Team
meeting lengthens the decision-making
process, delays services, and removes
parents from equal participation in an
IEP Team meeting.
Discussion:
Section 300.321(a)(4)
incorporates the language in section
614(d)(1)(B)(iv) of the Act and requires
the IEP Team to include a representative
of the public agency who is qualified to
provide or supervise the provision of
specially designed instruction to meet
the unique needs of children with
disabilities; is knowledgeable about the
general education curriculum; and is
knowledgeable about the availability of
LEA resources.
A public agency may determine
which specific staff member will serve
as the agency representative in a
particular IEP Team meeting, so long as
the individual meets these
requirements. It is important, however,
that the agency representative have the
authority to commit agency resources
and be able to ensure that whatever
services are described in the IEP will
actually be provided. However, we do
not need to regulate in the manner
suggested, as the public agency will be
bound by the IEP that is developed at an
IEP Team meeting.
Changes:
None.
Comment:
One commenter
recommended that the IEP Team
include an individual who is qualified
to conduct individual diagnostic
assessments.
Discussion:
Section 300.321(a)(5)
follows the language in section
614(d)(1)(B)(v) of the Act and requires
the IEP Team to include an individual
who can interpret the instructional
implications of evaluation results. An
individual who is qualified to conduct
a particular assessment does not
necessarily have the skills or knowledge
to assist the IEP Team in determining
the special education, related services,
and other supports that are necessary in
order for the child to receive FAPE.
Therefore, we do not believe that it is
necessary to require that the IEP Team
also include an individual who can
conduct diagnostic assessments.
Changes:
None.
Comment:
A few commenters
expressed concern that IEP Team
meetings are being used by parent
advocates to train parents of other
children, and by attorneys to train their
associates about the school’s IEP
process. In order to prevent this, these
commenters stated that the regulations
should identify the specific knowledge
and expertise that an individual must
have to be included on an IEP Team.
One commenter expressed concern
about confidentiality rights; the lack of
credentials for advocates; and the lack
of authority for a parent or school
district to prevent advocates from
participating in an IEP Team meeting.
Discussion:
Section 614(d)(1)(B)(vi) of
the Act allows other individuals who
have knowledge or special expertise
regarding the child to be included on a
child’s IEP Team. Section 300.321(c)
provides that the determination of the
knowledge or special expertise of these
individuals must be made by the party
(parents or public agency) who invited
the individual to be a member of the IEP
Team. We continue to believe that this
determination is best left to parents and
the public agency. We also believe that
it would be inappropriate to regulate on
the specific knowledge and expertise
that an individual must have to be
included on an IEP Team because it
would be burdensome for both parents
and public agencies.
Additionally, nothing in the Act
prevents parents from consenting to
have an observer who is not a member
of the IEP Team present at the meeting,
as the parent can consent to the sharing
of confidential information about the
child. With that exception, it should be
emphasized that a person who does not
have knowledge and special expertise
regarding the child and who is not
requested to be present at the IEP Team
meeting by the parent or public agency
would not be permitted to be a member
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of the IEP Team or be permitted to
attend the IEP Team meeting as an
observer.
Changes:
None.
Comment:
A few commenters
recommended changing § 300.321(a)(7)
to clarify that a parent has the right to
bring their child to any or all IEP Team
meetings at any age.
Discussion:
We do not believe that the
additional clarification requested by the
commenters is necessary. Section
614(d)(1)(B)(vii) of the Act clearly states
that the IEP Team includes the child
with a disability, whenever appropriate.
Generally, a child with a disability
should attend the IEP Team meeting if
the parent decides that it is appropriate
for the child to do so. If possible, the
agency and parent should discuss the
appropriateness of the child’s
participation before a decision is made,
in order to help the parent determine
whether or not the child’s attendance
would be helpful in developing the IEP
or directly beneficial to the child, or
both.
Until the child reaches the age of
majority under State law, unless the
rights of the parent to act for the child
are extinguished or otherwise limited,
only the parent has the authority to
make educational decisions for the child
under Part B of the Act, including
whether the child should attend an IEP
Team meeting.
Changes:
None.
Transition Services Participants
(§ 300.321(b))
Comment:
A few commenters
recommended requiring the public
agency to invite the child with a
disability to attend the child’s IEP Team
meeting no later than age 16 or at least
two years prior to the child’s expected
graduation, whichever comes first.
Discussion:
The commenters’
concerns are addressed in § 300.321(b),
which requires the public agency to
invite a child with a disability to attend
the child’s IEP Team meeting if a
purpose of the meeting will be the
consideration of the postsecondary goals
for the child and the transition services
needed to assist the child in reaching
the child’s postsecondary goals.
Furthermore, a child’s IEP must include
transition services beginning not later
than the first IEP to be in effect when
the child turns 16, or younger, if
determined appropriate by the IEP
Team, consistent with § 300.320(b).
Changes:
None.
Comment:
One commenter requested
that the regulations clarify that parents
and children are not required to use the
transition services offered by agencies
that the school invites to the IEP Team
meeting.
Discussion:
There is nothing in the
Act or these regulations that requires a
parent or child to participate in
transition services that are offered by
agencies that the public agency has
invited to participate in an IEP Team
meeting. However, if the IEP Team
determines that such services are
necessary to meet the needs of the child,
and the services are included on the
child’s IEP, and the parent (or a child
who has reached the age of majority)
disagrees with the services, the parent
(or the child who has reached the age of
majority) can request mediation, file a
due process complaint, or file a State
complaint to resolve the issue. We do
not believe further clarification in the
regulations is necessary.
Changes:
None.
Comment:
A few commenters
recommended requiring the public
agency to include all the notice
requirements in § 300.322(b) with the
invitation to a child to attend his or her
IEP Team meeting. The commenters
stated that children need to be fully
informed about the details and purpose
of the meeting in order for them to
adequately prepare and, therefore,
should have the same information that
is provided to other members of the IEP
Team.
Discussion:
We decline to make the
suggested change. We believe it would
be overly burdensome to require a
public agency to include all the notice
requirements in § 300.322(b) with an
invitation to a child to attend his or her
IEP Team meeting, particularly because
the information is provided to the
child’s parents who can easily share this
information with the child. However,
when a child with a disability reaches
the age of majority under State law, the
public agency must provide any notice
required by the Act to both the child
and the parents, consistent with
§ 300.520 and section 615(m)(1)(A) of
the Act.
Changes:
None.
Comment:
One commenter requested
clarification regarding the public
agency’s responsibility to invite a child
who has not reached the age of majority
to the child’s IEP Team meeting when
a parent does not want the child to
attend.
Discussion:
Section 300.321(b)(1)
requires the public agency to invite a
child with a disability to attend the
child’s IEP Team meeting if a purpose
of the meeting will be the consideration
of the postsecondary goals for the child
and the transition services needed to
assist the child in reaching those goals,
regardless of whether the child has
reached the age of majority. However,
until the child reaches the age of
majority under State law, unless the
rights of the parent to act for the child
are extinguished or otherwise limited,
only the parent has the authority to
make educational decisions for the child
under Part B of the Act, including
whether the child should attend an IEP
Team meeting.
Changes:
None.
Comment:
A few commenters
expressed concern that § 300.321(b)
does not require children to have
sufficient input as a member of the IEP
Team and recommended requiring the
IEP Team to more strongly consider the
child’s preferences and needs.
Discussion:
Section 300.321(a)(7)
includes the child as a member of the
IEP Team, when appropriate, and
§ 300.321(b)(1) requires the public
agency to invite the child to the child’s
IEP Team meeting when the purpose of
the meeting will be the consideration of
the postsecondary goals for the child
and the transition services needed to
assist the child in reaching those goals.
Further, if the child does not attend the
IEP Team meeting, § 300.321(b)(2)
requires the public agency to take other
steps to ensure that the child’s
preferences and interests are
considered. We believe this is sufficient
to ensure that the child’s preferences
and needs are considered and do not
believe that any changes to § 300.321(b)
are necessary.
Changes:
None.
Comment:
One commenter stated that
the requirements in § 300.321(b),
regarding transition services
participants, are not in the Act, are too
rigid, and should be modified to provide
more flexibility for individual children.
Discussion:
We believe that, although
not specified in the Act, the
requirements in § 300.321(b) are
necessary to assist children with
disabilities to successfully transition
from high school to employment,
training, and postsecondary education
opportunities. We believe it is critical
for children with disabilities to be
involved in determining their transition
goals, as well as the services that will be
used to reach those goals. Section
300.321(b), therefore, requires the
public agency to invite the child to
attend IEP Team meetings in which
transition goals and services will be
discussed. If the child does not attend
the IEP Team meeting, § 300.321(b)(2)
requires the public agency to take other
steps to ensure that the child’s
preferences and interests are
considered.
We also believe that, when it is likely
that a child will be involved with other
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agencies that provide or pay for
transition services or postsecondary
services, it is appropriate (provided that
the parent, or a child who has reached
the age of majority, consents) for
representatives from such agencies to be
invited to the child’s IEP Team meeting.
The involvement and collaboration with
other public agencies (e.g., vocational
rehabilitation agencies, the Social
Security Administration) can be helpful
in planning for transition and in
providing resources that will help
children when they leave high school.
We believe that children with
disabilities will benefit when transition
services under the Act are coordinated
with vocational rehabilitation services,
as well as other supports and programs
that serve all children moving from
school to adult life. Therefore, we
decline to change the requirements in
§ 300.321(b).
Changes:
None.
Comment:
One commenter stated that
§ 300.321(b)(1), which requires the
public agency to invite the child to an
IEP Team meeting when transition is to
be considered, duplicates
§ 300.321(a)(7), which requires a child
with a disability to be invited to his or
her IEP Team meeting, whenever
possible.
Discussion:
These two provisions are
not redundant. Section 300.321(a)(7)
requires the public agency to include
the child with a disability, when
appropriate (not ‘‘whenever possible,’’
as stated by the commenter), in the
child’s IEP Team meeting, and, thus,
provides discretion for the parent and
the public agency to determine when it
is appropriate to include the child in the
IEP Team meeting. Section 300.321(b),
on the other hand, requires a public
agency to invite a child to attend an IEP
Team meeting when the purpose of the
meeting will be to consider the
postsecondary goals for the child and
the transition services needed to assist
the child to reach those goals. The
Department believes it is important for
a child with a disability to participate in
determining the child’s postsecondary
goals and for the IEP Team to consider
the child’s preferences and interests in
determining those goals.
Changes:
None.
Comment:
Many commenters
recommended removing the
requirement in § 300.321(b)(3) for
parental consent (or consent of a child
who has reached the age of majority)
before inviting personnel from
participating agencies to attend an IEP
Team meeting because it is burdensome,
may reduce the number of agencies
participating in the IEP Team meeting,
and may limit the options for transition
services for the child. The commenters
stated that this consent is unnecessary
under FERPA, and inconsistent with
§ 300.321(a)(6), which allows the parent
or the agency to include other
individuals in the IEP Team who have
knowledge or special expertise
regarding the child.
Discussion:
Section 300.321(b)(3) was
included in the regulations specifically
to address issues related to the
confidentiality of information. Under
section 617(c) of the Act the Department
must ensure the protection of the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs
pursuant to Part B of the Act,
irrespective of the requirements under
FERPA. We continue to believe that a
public agency should be required to
obtain parental consent (or the consent
of a child who has reached the age of
majority) before inviting representatives
from other participating agencies to
attend an IEP Team meeting, consistent
with § 300.321(b)(3).
We do not believe that the
requirements in § 300.321(b)(3) are
inconsistent with § 300.321(a)(6).
Section 300.321(a)(6) permits other
individuals who have knowledge or
special expertise regarding the child to
attend the child’s IEP Team meeting at
the discretion of the parent or the public
agency. It is clear that in § 300.321(b)(3),
the individuals invited to the IEP Team
meeting are representatives from other
agencies who do not necessarily have
special knowledge or expertise
regarding the child. In these situations,
we believe that consent should be
required because representatives of
these agencies are invited to participate
in a child’s IEP Team meeting only
because they may be providing or
paying for transition services. We do not
believe that representatives of these
agencies should have access to all the
child’s records unless the parent (or the
child who has reached the age of
majority) gives consent for such a
disclosure. Therefore, we believe it is
important to include the requirement for
consent in § 300.321(b)(3).
Changes:
None.
Comment:
Some commenters
recommended removing the phrase, ‘‘to
the extent appropriate’’ in
§ 300.321(b)(3) and requiring public
agencies to invite a representative of any
participating agency that is likely to be
responsible for providing or paying for
transition services to the IEP Team
meeting.
Discussion:
We disagree with the
recommended change because the
decision as to whether to invite a
particular agency to participate in a
child’s IEP Team meeting is a decision
that should be left to the public agency
and the parent (or the child with a
disability who has reached the age of
majority).
Changes:
None.
Comment:
Numerous commenters
recommended retaining current
§ 300.344(b)(3)(ii), which requires the
public agency to take steps to ensure the
participation of invited agencies in the
planning of any transition services
when the agencies do not send a
representative to the IEP Team meeting.
These commenters stated that the
participation of other agencies is vital to
ensuring that the child receives the
necessary services. One commenter
requested that the regulations clarify
that, aside from inviting other agencies
to attend a child’s IEP Team meeting,
public agencies have no obligation to
obtain the participation of agencies
likely to provide transition services.
Discussion:
The Act has never given
public agencies the authority to compel
other agencies to participate in the
planning of transition services for a
child with a disability, including when
the requirements in § 300.344(b)(3)(ii)
were in effect. Without the authority to
compel other agencies to participate in
the planning of transition services,
public agencies have not been able to
meet the requirement in current
§ 300.344(b)(3)(ii) to ‘‘ensure’’ the
participation of other agencies in
transition planning. Therefore, while we
believe that public agencies should take
steps to obtain the participation of other
agencies in the planning of transition
services for a child, we believe it is
unhelpful to retain current
§ 300.344(b)(3)(ii).
Changes:
None.
Comment:
A few commenters
recommended that the regulations
require the public agency to put parents
in touch with agencies providing
transition services.
Discussion:
We do not believe it is
necessary to regulate to require public
agencies to put parents in touch with
agencies providing transition services.
As a matter of practice, public agencies
regularly provide information to
children and parents about transition
services during the course of planning
and developing transition goals and
determining the services that are
necessary to meet the child’s transition
goals.
Changes:
None.
Comment:
One commenter asked
whether a parent could exclude an
individual from the IEP Team.
Discussion:
A parent can refuse to
provide consent only for the public
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agency to invite other agencies that are
likely to be responsible for providing or
paying for transition services. A parent
may not exclude any of the required
members of the IEP Team.
Changes:
None.
IEP Team Attendance (§ 300.321(e))
Comment:
We received many
comments from individuals expressing
concern about allowing IEP Team
members to be excused from attending
an IEP Team meeting. A few
commenters recommended that the
regulations require all IEP Team
members to attend all IEP Team
meetings without exception. One
commenter stated that excusing
members from attending IEP Team
meetings interrupts the flow of the
meeting and takes away time from
discussing the child’s needs. Another
commenter expressed concern that the
integrity of the IEP Team meeting
process depends on a discussion to
determine the services that are
necessary to meet the child’s unique
needs, and that the richness of this
discussion may be diminished if IEP
Team members are allowed to be
excused too frequently and the IEP
Team must rely on written input.
Several commenters recommended
that the regulations acknowledge that,
in most circumstances, interactive
discussion in IEP Team meetings is
preferable to written input. Many
commenters requested that the
multidisciplinary scope of the IEP Team
meeting be maintained. One commenter
stated that written input from an
excused IEP Team member is not
sufficient and will be burdensome for
both the writer and the readers.
Discussion:
Section 614(d)(1)(C) of the
Act allows a parent of a child with a
disability and the LEA to agree that the
attendance of an IEP Team member at
an IEP Team meeting, in whole or in
part, is not necessary under certain
conditions. Allowing IEP Team
members to be excused from attending
an IEP Team meeting is intended to
provide additional flexibility to parents
in scheduling IEP Team meetings and to
avoid delays in holding an IEP Team
meeting when an IEP Team member
cannot attend due to a scheduling
conflict.
Changes:
None.
Comment:
Many commenters stated
that the excusal provisions in § 300.321
should be optional for States and that
States should be allowed to require that
all IEP Team members attend each IEP
Team meeting. Several commenters
recommended allowing States to
determine the circumstances or
conditions under which attendance at
the IEP Team meeting is not required. A
few commenters recommended
clarifying whether a State must have
policies and procedures to excuse IEP
Team members.
Discussion:
Under section
614(d)(1)(C) of the Act, a State must
allow a parent and an LEA to agree to
excuse a member of the IEP Team.
Section 300.321(e) reflects this
requirement and we do not have the
authority to make this optional for
States. We also do not have the
authority to allow a State to restrict, or
otherwise determine, when an IEP Team
member can be excused from attending
a meeting, or to prohibit the excusal of
an IEP Team member when the LEA and
parent agree to the excusal. Whether a
State must have policies and procedures
to excuse IEP Team members from
attending an IEP Team meeting will
depend on whether such policies and
procedures are required by a State to
implement this statutory requirement.
However, every State must allow a
parent and an LEA to agree to excuse an
IEP Team member from attending an IEP
Team meeting.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
clarify whether the excusal agreement
must meet the standard for informed
consent. Some commenters stated that
Congress intended excusal agreements
to mean informed written consent.
Other commenters stated that parents,
not the public agency, can provide
consent and therefore, only parents
should be allowed to provide consent
for excusing IEP Team members from
IEP Team meetings. A few commenters
recommended simplifying § 300.321(e)
by eliminating the different procedures
for different types of excusals.
Discussion:
Whether a parent must
provide consent to excuse a member of
the IEP Team from attending an IEP
Team meeting depends on whether the
member’s area of the curriculum or
related services is being modified or
discussed at the IEP Team meeting. We
cannot eliminate the different
procedures for different types of
excusals because section 614(d)(1)(C) of
the Act clearly differentiates between
circumstances in which parental
consent is required and when an
agreement is required to excuse an IEP
member from attending an IEP Team
meeting.
If the member’s area is not being
modified or discussed, § 300.321(e)(1),
consistent with section 614(d)(1)(C) of
the Act, provides that the member may
be excused from the meeting if the
parent and LEA agree in writing that the
member’s attendance is not necessary.
An agreement is not the same as
consent, but instead refers to an
understanding between the parent and
the LEA. Section 614(d)(1)(C) of the Act
specifically requires that the agreement
between a parent and an LEA to excuse
a member’s attendance at an IEP Team
meeting must be in writing. If, however,
the member’s area is being modified or
discussed, § 300.321(e)(2), consistent
with section 614(d)(1)(C)(ii) of the Act,
requires the LEA and the parent to
provide written informed consent.
Changes:
None.
Comment:
One commenter asked
whether parents must be provided any
information when asked to excuse IEP
Team members. A few commenters
recommended that the request for an
excusal include the reason for the
request to excuse a member of the IEP
Team, that it be written in the chosen
language of the parent, and
accompanied by written evaluations and
recommendations of the excused IEP
Team member.
A few commenters recommended that
no IEP Team member should be excused
from attending an IEP Team meeting
until the parent is informed about the
purpose of the meeting for which the
public agency proposes to excuse the
IEP Team member; the IEP Team
member’s name and position; the
reason(s) the public agency wants to
excuse the IEP Team member; the
parent’s right to have the IEP Team
member present; and the parent’s right
to discuss with the IEP Team member
any issues in advance of the meeting so
the parent is adequately informed. The
commenters stated that this notice
should be included in any statement of
parent’s rights that is distributed.
Numerous commenters recommended
that the regulations include specific
language to clarify that, before agreeing
to excuse an IEP Team member, serious
consideration must be given to
determining if written input will be
sufficient to thoroughly examine what
services are needed and whether
changes to the current IEP are necessary.
A few commenters recommended that
parents be informed of the roles and
responsibilities of the excused member
prior to giving consent for the excusal.
Some commenters stated that parents
must understand that they have the
right to disagree and not excuse a
member of the IEP Team who the
parents believe may be essential to
developing or revising an IEP. One
commenter recommended that the
written agreement be required to
include information that the parent was
informed of the parent’s right to have all
IEP Team members present.
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One commenter recommended
permitting States to establish additional
procedural safeguards that guarantee
that parents who consent to excuse an
IEP member from a meeting do so freely
and are aware of the implications of
their decisions. Some commenters
expressed concern that a parent could
be pressured to agree to excuse an IEP
Team member for what, in reality, are
economic or staffing reasons. One
commenter stated that parents should
have the right to consent to excusal only
after conferring with the individual to
be excused. Some commenters
recommended that parents be informed
that they have a legal right to require an
IEP Team member to participate in the
meeting.
A few commenters expressed concern
that the permission to excuse IEP Team
members from attending IEP Team
meetings will be abused, particularly
with language-minority parents who are
often misinformed or misled by school
districts. Some commenters stated that
parents do not understand the roles of
the various members and could easily
be pressured into excusing vital
members of the IEP Team.
A few commenters recommended that
the regulations include requirements to
guard against excessive excusals. Some
commenters stated that an LEA that
routinely prevents general or special
education teachers, or related services
providers, from attending IEP Team
meetings using the excusal provisions
should be subject to monitoring and
review.
Discussion:
When an IEP Team
member’s area is not being modified or
discussed, § 300.321(e)(1), consistent
with section 614(d)(1)(C) of the Act,
provides that the member may be
excused from the meeting if the parent
and LEA agree in writing that the
member’s attendance is not necessary.
We believe it is important to give public
agencies and parents wide latitude
about the content of the agreement and,
therefore, decline to regulate on the
specific information that an LEA must
provide in a written agreement to
excuse an IEP Team member from
attending the IEP Team meeting when
the member’s area of the curriculum or
related services is not being modified or
discussed.
When an IEP Team member’s area is
being modified or discussed,
§ 300.321(e)(2), consistent with section
614(d)(1)(C)(ii) of the Act, requires the
LEA and the parent to provide written
informed consent. Consistent with
§ 300.9,
consent
means that the parent
has been fully informed in his or her
native language, or other mode of
communication, and understands that
the granting of consent is voluntary and
may be revoked at any time. The LEA
must, therefore, provide the parent with
appropriate and sufficient information
to ensure that the parent fully
understands that the parent is
consenting to excuse an IEP Team
member from attending an IEP Team
meeting in which the member’s area of
the curriculum or related services is
being changed or discussed and that if
the parent does not consent the IEP
Team meeting must be held with that
IEP Team member in attendance.
We believe that these requirements
are sufficient to ensure that the parent
is fully informed before providing
consent to excuse an IEP Team member
from attending an IEP Team meeting in
which the member’s area of the
curriculum will be modified or
discussed, and do not believe that it is
necessary to include in the regulations
the more specific information that
commenters recommended be provided
to parents.
We also do not believe it is necessary
to add a regulation permitting States to
establish additional procedural
safeguards for parents who consent to
excuse an IEP Team member, as
recommended by one commenter,
because we believe the safeguard of
requiring consent will be sufficient to
prevent parents from feeling pressured
to excuse an IEP Team member.
Furthermore, parents who want to
confer with an excused team member
may ask to do so before agreeing or
consenting to excusing the member from
attending the IEP Team meeting, but it
would be inappropriate to add a
regulation that limited parent rights by
requiring a conference before the parent
could agree or consent to the excusal of
an IEP Team member.
With regard to the recommendation
that the notice state that the parent has
a legal right to require an IEP Team
member to participate in an IEP Team
meeting, it is important to emphasize
that it is the public agency that
determines the specific personnel to fill
the roles for the public agency’s
required participants at the IEP Team
meeting. A parent does not have a legal
right to require other members of the
IEP Team to attend an IEP Team
meeting. Therefore, if a parent invites
other public agency personnel who are
not designated by the LEA to be on the
IEP Team, they are not required to
attend.
An LEA may not routinely or
unilaterally excuse IEP Team members
from attending IEP Team meetings as
parent agreement or consent is required
in each instance. We encourage LEAs to
carefully consider, based on the
individual needs of the child and the
issues that need to be addressed at the
IEP Team meeting whether it makes
sense to offer to hold the IEP Team
meeting without a particular IEP Team
member in attendance or whether it
would be better to reschedule the
meeting so that person could attend and
participate in the discussion. However,
we do not believe that additional
regulations on this subject are
warranted.
An LEA that routinely excuses IEP
Team members from attending IEP
Team meetings would not be in
compliance with the requirements of the
Act, and, therefore, would be subject to
the State’s monitoring and enforcement
provisions.
Changes:
None.
Comment:
A few commenters
requested clarification on whether
excusals from IEP Team meetings apply
to only regular education teachers,
special education teachers, and related
services providers, or to all individuals
whose curriculum areas may be
discussed at an IEP Team meeting. One
commenter recommended clarifying
that all IEP Team members, as defined
in § 300.321, must be represented at the
IEP Team meeting unless excused by the
parents and the LEA.
One commenter stated that
§ 300.321(e) can be read to require that
each individual invited to the IEP Team
meeting by the parent or the public
agency (who has knowledge or special
expertise) must attend the meeting
unless the parent and the agency agree
in writing that they need not attend. The
commenter recommended that the
regulations clarify that the attendance of
the other individuals invited to attend
the IEP Team meeting by the parent and
public agency is discretionary and that
no waiver is needed to hold the IEP
Team meeting without them. The
commenter recommended revising
§ 300.321(e)(1) to refer to ‘‘mandatory’’
members of the IEP Team. Another
commenter expressed concern that it is
not possible to pre-determine the areas
of the curriculum that may be addressed
at an IEP Team meeting, and
recommended that excusals be
permitted only for the IEP Team
members identified by the public
agency in § 300.321(a).
One commenter recommended that
the regulations allow teachers with
classroom responsibilities to attend an
IEP Team meeting for 15 to 20 minutes
and leave the meeting when necessary.
Some commenters requested
clarification regarding situations in
which there is more than one regular
education teacher at an IEP Team
meeting and whether one or both
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teachers must have a written excusal to
leave before the end of an IEP Team
meeting.
One commenter stated that it is
unclear whether consent must be
obtained if a speech pathologist or
occupational therapist cannot attend a
meeting because speech pathologists
and occupational therapists are not
required members of an IEP Team.
Discussion:
We believe that the
excusals from IEP Team meetings apply
to the members of the IEP Team in
paragraphs (a)(2) through (5) in
§ 300.321, that is, to the regular
education teacher of the child (if the
child is, or may be participating in the
regular education environment); not less
than one special education teacher of
the child (or where appropriate, not less
than one special education provider of
the child); a representative of the public
agency who meets the requirements in
§ 300.321(a)(4); and an individual who
can interpret the instructional
implications of evaluation results. We
do not believe it is necessary to require
consent or a written agreement between
the parent and the public agency to
excuse individuals who are invited to
attend IEP Team meetings at the
discretion of the parent or the public
agency because such individuals are not
required members of an IEP Team. We
will add new language to § 300.321(e) to
clarify the IEP Team members for whom
the requirements regarding excusals
apply.
With regard to situations in which
there is more than one regular education
teacher, the IEP Team need not include
more than one regular education
teacher. The regular education teacher
who serves as a member of a child’s IEP
Team should be a teacher who is, or
may be, responsible for implementing a
portion of the IEP so that the teacher can
participate in discussions about how
best to instruct the child. If the child has
more than one regular education teacher
responsible for carrying out a portion of
the IEP, the LEA may designate which
teacher or teachers will serve as the IEP
member(s), taking into account the best
interest of the child. An LEA could also
agree that each teacher attend only the
part of the meeting that involves
modification to, or discussion of, the
teacher’s area of the curriculum.
Section 300.321(a)(3) requires the IEP
Team to include not less than one
special education teacher or where
appropriate, not less than one special
education provider of the child. As
explained earlier, a special education
provider is a person who is, or will be,
responsible for implementing the IEP.
Therefore, if a speech pathologist,
occupational therapist, or other special
education provider, other than the
child’s special education teacher is on
the IEP Team, written consent from the
parent would be required for the speech
pathologist, occupational therapist, or
other special education provider to be
excused from attending an IEP Team
meeting, in whole or in part, when the
IEP Team meeting involves a
modification to, or discussion of, the
IEP Team member’s related service or
area of the curriculum.
Changes:
We have added language in
§ 300.321(e)(1) to refer to paragraphs
(a)(2) through (a)(5), and a reference to
paragraph (e)(1) in § 300.321(e)(2) to
clarify the IEP Team members for whom
a parent and public agency must
consent or agree in writing to excuse
from an IEP Team meeting.
Comment:
A few commenters stated
that excusal of the regular education
teacher is already built into the
requirements and questioned the
circumstances under which a State
might exceed these requirements.
Discussion:
Section 300.321(a)(2) does
not require a regular education teacher
to be part of the IEP Team for a child
who is not participating in the regular
education environment or is not
anticipated to participate in the regular
education environment. The excusals
from IEP Team meetings in § 300.321(e)
apply to a regular education teacher
who is part of the IEP Team by virtue
of the fact that the child with a
disability is participating, or may be
participating, in the regular education
environment.
Changes:
None.
Comment:
Some commmenters
recommended setting a limit as to how
often teachers can be excused from IEP
Team meetings. A few commenters
recommended prohibiting the excusal of
IEP Team members for initial IEP Team
meetings. One commenter
recommended allowing an IEP Team
meeting to occur only if there is one
person who cannot attend the meeting.
Many commenters opposed the
excusal of teachers, therapists, speech
providers, and other experts who work
with a child on an ongoing basis. A few
commenters stated that regular
education teachers should not be
excused from IEP Team meetings
because they have the content expertise
that is critical to the IEP process. One
commenter stated that the excusal of an
LEA representative should not be
allowed.
A few commenters requested
guidance to make it more difficult for
IEP Team members to be excused from
IEP Team meetings. Some commenters
stated that excusing IEP Team members
should only be done in limited
circumstances and only when
absolutely necessary.
Some commenters recommended that
the regulations provide an opportunity
for the parents to challenge a public
agency’s attempt to exclude staff
members who believe their attendance
is necessary at an IEP Team meeting. A
few commenters suggested that the
regulations prohibit excusal of
personnel based on the cost of providing
coverage in the classroom for a teacher
to attend the IEP Team meeting,
disagreements over appropriate services
among staff, or scheduling problems.
One commenter recommended that the
regulations clearly state that teachers
cannot be barred from attending an IEP
Team meeting.
Discussion:
We decline to make the
changes requested by the commenters
because it would be inconsistent with
section 614(d)(1)(C) of the Act to set a
limit on the number of times an IEP
Team member could be excused;
prohibit excusals for initial IEP Team
meetings; restrict the number of
excusals per meeting; prohibit certain
IEP Team members from being excused
from attending an IEP Team meeting; or
otherwise restrict or limit parents and
LEAs from agreeing to excuse IEP Team
members from attending an IEP Team
meeting. Likewise, it would be
inconsistent with section 614(d)(1)(C) of
the Act for an LEA to unilaterally
excuse an IEP Team member from
attending an IEP Team meeting.
The public agency determines the
specific personnel to fill the roles for the
public agency’s required participants at
the IEP Team meeting. Whether other
teachers or service providers who are
not the public agency’s required
participants at the IEP Team meeting
can attend an IEP Team meeting is best
addressed by State and local officials.
Changes:
None.
Comment:
A few commenters asked
whether the regular teacher, the special
education teacher, principal, or the LEA
makes the decision with the parent to
excuse an IEP member. Some
commenters recommended that the
regulations require the excused IEP
Team member to agree to be excused
from an IEP Team meeting. Other
commenters stated that a teacher should
be included as one of the parties that
decide whether a teacher should be
excused from attending the IEP Team
meeting.
Numerous commenters recommended
that, before an IEP Team member is
excused from attending an IEP Team
meeting, sufficient notice must be given
so that other IEP Team members can
consider the request. Some commenters
requested that the regulations clarify
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whether the entire IEP Team must meet
and then agree on whether a member’s
attendance at the IEP Team meeting is
needed.
Discussion:
It would not be
appropriate to make the changes
recommended by the commenters.
There is no requirement that the
excused IEP Team member agree to be
excused from the IEP Team meeting,
that a teacher be included as one of the
parties that decides whether a teacher
should be excused from attending the
IEP Team meeting, or that other IEP
Team members agree to excuse a
member’s attendance. It is up to each
public agency to determine the
individual in the LEA with the authority
to make the agreement (or provide
consent) with the parent to excuse an
IEP Team member from attending an IEP
Team meeting. The designated
individual must have the authority to
bind the LEA to the agreement with the
parent or provide consent on behalf of
the LEA.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
specifically state that parents retain the
right to change their mind to excuse an
IEP Team member and have full IEP
Team member participation, if it
becomes apparent during the IEP Team
meeting that the absence of an excused
IEP Team member inhibits the
development of the IEP. One commenter
expressed concern that parents will be
informed of excusals at the beginning of
a meeting or be given a note, report, or
letter from the absent IEP Team
member.
Discussion:
The IEP Team is expected
to act in the best interest of the child.
As with any IEP Team meeting, if
additional information is needed to
finalize an appropriate IEP, there is
nothing in the Act that prevents an IEP
Team from reconvening after the needed
information is obtained, as long as the
IEP is developed in a timely manner,
consistent with the requirements of the
Act and these regulations. The parent
can request an additional IEP Team
meeting at any time and does not have
to agree to excuse an IEP Team member.
Likewise, if a parent learns at the IEP
Team meeting that a required
participant will not be at the meeting,
the parent can agree to continue with
the meeting and request an additional
meeting if more information is needed,
or request that the meeting be
rescheduled.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
specify the amount of time prior to an
IEP Team meeting by which notice must
be received by the parent about the
LEA’s desire to excuse an IEP Team
member from attending an IEP Team
meeting. A few commenters
recommended that an LEA’s request for
excusal of an IEP Team member be
provided to the parent 10 business days
prior to the date of the IEP Team
meeting and other commenters
recommended five business days before
an IEP Team meeting.
One commenter recommended that
the regulations specify when the
parent’s written consent to excuse IEP
Team members from the meeting must
be received by the agency. Many
commenters recommended that the
regulations include language requiring
that any agreement to excuse an IEP
Team member from attending the IEP
Team meeting be done in advance of the
meeting. Some commenters stated that
requiring an agreement in advance of an
IEP Team meeting would allow the
parent to review the IEP Team member’s
written input prior to the IEP Team
meeting and ensure that parental
consent is informed. A few commenters
recommended that the Act prohibit a
written agreement from being signed
before the meeting occurs.
Discussion:
The Act does not specify
how far in advance of an IEP Team
meeting a parent must be notified of an
agency’s request to excuse a member
from attending an IEP Team meeting or
when the parent and LEA must sign a
written agreement or provide consent to
excuse an IEP Team member. Ideally,
public agencies would provide parents
with as much notice as possible to
request that an IEP Team member be
excused from attending an IEP Team
meeting, and have agreements or
consents signed at a reasonable time
prior to the IEP Team meeting.
However, this might not always be
possible, for example, when a member
has an emergency or an unavoidable
scheduling conflict. To require public
agencies to request an excusal or obtain
a signed agreement or consent to excuse
a member a specific number of days
prior to an IEP Team meeting would
effectively prevent IEP Team members
from being excused from IEP Team
meetings in many situations and, thus,
be counter to the intent of providing
additional flexibility to parents in
scheduling IEP Team meetings.
Furthermore, if an LEA requests an
excusal at the last minute or a parent
needs additional time or information to
consider the request, the parent always
has the right not to agree or consent to
the excusal of the IEP Team member.
We, therefore, decline to regulate on
these matters.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify the
timeframe in which the written input
must be provided to the parent and the
IEP Team. Another commenter
expressed concern that without
knowing whether the information
submitted is sufficient to answer any of
the parent’s questions, the parent could
not agree, in any informed way, to
excuse an IEP Team member from
attending the IEP Team meeting.
Several commenters recommended
that written input be provided to
parents a reasonable amount of time
prior to the meeting and not at the
beginning of the meeting. One
commenter recommended requiring that
parents receive written evaluations and
recommendations from the excused
member at least 10 business days before
the IEP Team meeting. Another
commenter recommended that written
input be provided at least 10 school
days in advance of the meeting; another
commenter suggested no later than
seven days before the meeting; a few
commenters recommended at least five
days in advance of the meeting; and
some commenters recommended at least
three business days before the meeting.
A few commenters recommended
requiring public agencies to send
parents the written input of excused IEP
Team members as soon as they receive
it so that parents have sufficient time to
consider the input. One commenter
recommended that the regulations
require the written input to be provided
to IEP Team members and parents at the
same time.
Discussion:
Section 614(d)(1)(C)(ii)(II)
of the Act requires that input into the
development of the IEP by the IEP Team
member excused from the meeting be
provided prior to the IEP Team meeting
that involves a modification to, or
discussion of the member’s area of the
curriculum or related services. The Act
does not specify how far in advance of
the IEP Team meeting that the written
input must be provided to the parent
and IEP Team members. For the reasons
stated earlier, we do not believe it is
appropriate to impose a specific
timeframe for matters relating to the
excusal of IEP Team members. Parents
can always reschedule an IEP Team
meeting or request that an IEP Team
meeting be reconvened if additional
time is needed to consider the written
information.
Changes:
None.
Comment:
A few commenters
recommended language clarifying that
IEP Team members who submit input
prior to an IEP Team meeting may still
attend the meeting. Other commenters
requested that the regulations specify
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that failure to provide prior written
input, due to inadequate notice or
unreasonable workloads, does not
prohibit the excused member from
attending the meeting in person.
Discussion:
The Act does not address
circumstances in which an IEP Team
member is excused from an IEP Team
meeting, but desires to attend the
meeting. We believe such circumstances
are best addressed by local officials and
are not appropriate to include in these
regulations.
Changes:
None.
Comment:
A few commenters
recommended that the format of the
written input required in § 300.321(e) be
flexible and not unduly burdensome.
One commenter stated that no new form
should be created for the written input.
A few commenters recommended that
the regulations clarify that the written
input must be sufficient to allow the IEP
Team to thoroughly examine the
services needed and decide whether
changes to the current IEP are needed.
Other commenters recommended that
the written input provide information
about a child’s level of academic
achievement and functional
performance; recommendations for
services, supports, and accommodations
to improve academic and functional
performance; revisions to the current
annual goals; and other appropriate
guidance.
Other commenters recommended that
the written input include the IEP Team
member’s opinions regarding the child’s
eligibility and services needed; the basis
for the opinions, including any
evaluations or other documents that
formed the basis for the IEP Team
member’s opinion; and whether the
evaluations were conducted by the IEP
Team member or another person. These
commenters also recommended that the
regulations require the excused IEP
Team member to include a telephone
number where the IEP Team member
can be reached prior to the meeting if
the parent wants to contact the member,
and a telephone number where the
member can be reached during the
meeting in case immediate input during
the meeting is required.
A few commenters recommended
prohibiting public agencies from giving
the child the written input at school to
take home to his or her parents. One
commenter recommended that the
written input be provided with the
meeting notice required in § 300.322.
Another commenter recommended that
the regulations allow the written input
to be provided to parents and other IEP
Team members by electronic mail or
other less formal methods.
Discussion:
The Act does not specify
the format or content to be included in
the written input provided by an
excused member of the IEP Team.
Neither does the Act specify the
method(s) by which a public agency
provides parents and the IEP Team with
the excused IEP Team member’s written
input. We believe that such decisions
are best left to local officials to
determine based on the circumstances
and needs of the individual child,
parent, and other members of the IEP
Team, and therefore decline to regulate
in this area.
Changes:
None.
Comment:
One commenter
recommended requiring any IEP Team
member who is excused from an IEP
Team meeting to be trained in the
updated IEP within one calendar week
of the IEP Team meeting. A few
commenters recommended that the
excused IEP Team members be provided
a copy of the new or amended IEP after
the meeting. One commenter
recommended that one person be
designated to be responsible for sharing
the information from the meeting with
the excused IEP Team member and for
communicating between the parent and
the excused IEP Team member after the
meeting.
Discussion:
Section 300.323(d)
already requires each public agency to
ensure that the child’s IEP is accessible
to each regular education teacher,
special education teacher, related
services provider and other service
provider who is responsible for its
implementation, regardless of whether
the IEP Team member was present or
excused from an IEP Team meeting.
How and when the information is
shared with the IEP Team member who
was excused from the IEP Team meeting
is best left to State and local officials to
determine.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
require the LEA to inform a parent when
the absent IEP Team member will
address the parent’s questions and
concerns. Another commenter
recommended that the regulations
require the LEA to inform the parent of
procedures for obtaining the requested
information.
Discussion:
We do not believe it is
appropriate to regulate on these matters.
The manner in which the parent’s
questions and concerns are addressed,
and how the information is shared with
the parent, are best left for State and
local officials to determine.
Changes:
None.
Comment:
One commenter requested
clarification on how the provisions in
§ 300.321(e), which allow IEP Team
members to be excused from IEP Team
meetings, relate to revising an IEP
without convening an IEP Team
meeting.
Discussion:
The two provisions
referred to by the commenter are
independent provisions. Section
300.321(e), consistent with section
614(d)(1)(C) of the Act, describes the
circumstances under which an IEP
Team member may be excused from an
IEP Team meeting. Section
300.324(a)(4), consistent with section
614(d)(3)(D) of the Act, permits the
parent and the public agency to agree
not to convene an IEP Team meeting to
make changes to a child’s IEP after the
annual IEP Team meeting has been held.
Changes:
None.
Initial IEP Team Meeting for Child
Under Part C (§ 300.321(f))
Comment:
Several commenters
recommended that the regulations
require the public agency to inform
parents of their right to request that the
public agency invite their child’s Part C
service coordinator to the initial IEP
Team meeting. One commenter
recommended that the regulations
require parents to be informed of this
option in writing.
Discussion:
Section 300.321(f),
consistent with section 614(d)(1)(D) of
the Act, requires the public agency, at
the request of the parent, to send an
invitation to the Part C service
coordinator or other representatives of
the Part C system to attend the child’s
initial IEP Team meeting. We believe it
would be useful to add a cross-reference
to § 300.321(f) in § 300.322 to emphasize
this requirement.
Changes:
We have added a cross-
reference to § 300.321(f) in § 300.322.
Parent Participation (§ 300.322)
Public Agency Responsibility—General
(§ 300.322(a))
Comment:
A few commenters
recommended that the notice of the IEP
Team meeting include a statement that
the time and place of the meeting are
negotiable and must be mutually agreed
on by the parent and public agency.
Other commenters recommended that
the regulations emphasize the need for
flexibility in scheduling meetings so
that districts make every effort to secure
parent participation in meetings.
Many commenters requested that the
regulations specify how far in advance
a public agency must notify parents of
an IEP Team meeting. One commenter
recommended requiring that parents be
notified a minimum of five school days
before the date of the meeting.
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Discussion:
We do not agree with the
changes recommended by the
commenters. Section 300.322(a) already
requires each public agency to take
steps to ensure that one or both parents
are present at each meeting, including
notifying parents of the meeting early
enough to ensure that they have an
opportunity to attend, and scheduling
the meeting at a mutually agreed on
time and place. We believe that these
requirements are sufficient to ensure
that parents are provided the
opportunity to participate in meetings.
We also believe that State and local
officials are in the best position to
determine how far in advance parents
must be notified of a meeting, as this
will vary based on a number of factors,
including, for example, the distance
parents typically have to travel to the
meeting location and the availability of
childcare.
Changes:
None.
Information Provided to Parents
(§ 300.322(b))
Comment:
Several comments were
received requesting that additional
information be provided to parents
when the public agency notifies parents
about an IEP Team meeting. One
commenter recommended informing
parents that they can request an IEP
Team meeting at any time. Other
commenters recommended that the
notice include any agency requests to
excuse an IEP Team member from
attending the meeting, and any written
input from an IEP Team member who is
excused from the meeting. Another
commenter recommended that parents
receive all evaluation reports before an
IEP Team meeting. A few commenters
recommended that parents receive a
draft IEP so that they have time to
examine the child’s present levels of
performance; prepare measurable goals;
and consider appropriate programs,
services, and placements.
Discussion:
The purpose of the notice
requirement in § 300.322 is to inform
parents about the IEP Team meeting and
provide them with relevant information
(
e.g.
, the purpose, time, and place of the
meeting, and who will be in
attendance). This is not the same as the
procedural safeguards notice that
informs parents of their rights under the
Act.
If, at the time the IEP Team meeting
notice is sent, a public agency is aware
of the need to request that an IEP Team
member be excused from the IEP Team
meeting, the public agency could
include this request with the meeting
notice. We do not believe that it is
appropriate to require that the request to
excuse an IEP Team member from an
IEP Team meeting be included in the
meeting notice, because the public
agency may not be aware of the need to
request an excusal of a member at the
time the IEP Team meeting notice is
sent. For similar reasons, it is not
appropriate to require that the IEP Team
meeting notice include any written
input from an IEP Team member who
may be excused from the IEP Team
meeting.
As noted in § 300.306(a)(2), the public
agency must provide a copy of an
evaluation report and the
documentation of determination of
eligibility at no cost to the parent.
Whether parents receive all evaluation
reports before an IEP Team meeting,
however, is a decision that is best left
to State and local officials to determine.
With respect to a draft IEP, we
encourage public agency staff to come to
an IEP Team meeting prepared to
discuss evaluation findings and
preliminary recommendations.
Likewise, parents have the right to bring
questions, concerns, and preliminary
recommendations to the IEP Team
meeting as part of a full discussion of
the child’s needs and the services to be
provided to meet those needs. We do
not encourage public agencies to
prepare a draft IEP prior to the IEP Team
meeting, particularly if doing so would
inhibit a full discussion of the child’s
needs. However, if a public agency
develops a draft IEP prior to the IEP
Team meeting, the agency should make
it clear to the parents at the outset of the
meeting that the services proposed by
the agency are preliminary
recommendations for review and
discussion with the parents. The public
agency also should provide the parents
with a copy of its draft proposals, if the
agency has developed them, prior to the
IEP Team meeting so as to give the
parents an opportunity to review the
recommendations of the public agency
prior to the IEP Team meeting, and be
better able to engage in a full discussion
of the proposals for the IEP. It is not
permissible for an agency to have the
final IEP completed before an IEP Team
meeting begins.
Changes:
None.
Other Methods To Ensure Parent
Participation (§ 300.322(c))
Comment:
One commenter
recommended that the regulations
permit parents to provide input through
a written report in order to document
that the parents provided input into
their child’s education.
Discussion:
Parents are free to provide
input into their child’s IEP through a
written report if they so choose.
Therefore, we do not believe that a
change is needed.
Changes:
None.
Conducting an IEP Team Meeting
Without a Parent in Attendance
(§ 300.322(d))
Comment:
Many commenters
recommended that § 300.322(d) retain
paragraphs (d)(1) through (d)(3) in
current § 300.345, which provide
examples of the types of records a
public agency may keep to document its
attempts to arrange a mutually agreed
upon time and place for an IEP Team
meeting. These examples include
detailed records of telephone calls made
or attempted and the results of those
calls; copies of correspondence sent to
the parents and any responses received;
and detailed records of visits made to
the parent’s home or place of
employment and the results of those
visits. A few commenters stated that
removing these provisions violates
section 607(b) of the Act.
Discussion:
We agree that these
provisions are important to encourage
parent participation in the IEP process,
which is an important safeguard for
ensuring FAPE under the Act. We will,
therefore, add the requirements in
current § 300.345(d)(1) through (d)(3) to
§ 300.322(d).
Changes:
We have added the
requirements in current § 300.345(d)(1)
through (d)(3) to § 300.322(d).
Comment:
One commenter stated that
parents who do not participate in IEP
Team meetings when the school has
made good-faith efforts to include them
should be sanctioned.
Discussion:
There is nothing in the
Act that would permit sanctioning a
parent who does not participate in an
IEP Team meeting, nor do we believe
that it would be appropriate or helpful
to do so. Sanctioning a parent is
unlikely to engender the type of active
participation at IEP Team meetings that
would be desirable or helpful in
developing, reviewing, or revising a
child’s IEP.
Changes:
None.
Comment:
One commenter
recommended that the regulations make
explicit that the LEA can move forward
and hold an IEP Team meeting without
the parent, if notice has been provided
consistent with § 300.322(a)(1) and
(b)(1), and the parent does not
participate. The commenter
recommended that this requirement be
consistent with the parent participation
requirements for placement meetings in
§ 300.501(c)(3) and (c)(4).
Discussion:
Section 300.322(d)
explicitly allows a meeting to be
conducted without a parent if the public
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agency is unable to convince the parent
to attend. The requirements for parent
participation in IEP Team meetings in
§ 300.322, and placement meetings in
§ 300.501 are consistent. Section
300.322(d) states that an IEP Team
meeting may be conducted without a
parent in attendance if the public
agency is unable to convince a parent to
attend the IEP Team meeting. Similarly,
§ 300.501(c)(4) provides that a group,
without the involvement of the parent,
may make a placement decision if the
public agency is unable to obtain the
parent’s participation in the decision. In
both cases, the public agency must keep
a record of its attempts to obtain the
parent’s involvement.
Changes:
None.
Comment:
One commenter expressed
concern that allowing school districts to
hold IEP Team meetings without
parents could increase the over-
representation of African American
children placed in special education.
Discussion:
Section 300.322(a)
requires a public agency to take steps to
ensure that one or both parents are
afforded the opportunity to participate
in an IEP Team meeting, including
notifying parents of the meeting early
enough to ensure that they will have an
opportunity to attend, and scheduling
the meeting at a mutually agreed on
time and place. Section 300.322(c)
requires the public agency to use other
methods to ensure parent participation
if neither parent can attend an IEP Team
meeting, including individual or
conference telephone calls. Only when
a public agency is unable to convince a
parent to participate in an IEP Team
meeting may the meeting be conducted
without a parent. We disagree with the
implication in the comment that parents
of one race are less likely to participate
in IEP Team meetings.
Changes:
None.
Comment:
Many commenters
recommended retaining current
§ 300.345(e), which requires the public
agency to take whatever action is
necessary to ensure that the parent
understands the proceedings at an IEP
Team meeting, including arranging for
an interpreter for parents with deafness
or whose native language is other than
English. Some commenters stated that
current § 300.345(e) is protected by
section 607(b) of the Act and, therefore,
cannot be removed.
Many commenters acknowledged that
there are other Federal laws that require
public agencies to take appropriate
measures to ensure that parents
understand the proceedings at an IEP
Team meeting, but stated that not all
stakeholders are aware of the
applicability of those other protections
in IEP Team meetings. Several
commenters expressed concern with the
removal of current § 300.345(e) stating
that other Federal laws are not
enforceable at special education due
process hearings.
Discussion:
We agree that current
§ 300.345(e) is an important safeguard of
parent participation for parents with
deafness or whose native language is
other than English. We will, therefore,
add the requirements in current
§ 300.345(e) to the regulations.
Changes:
We have added the
requirements in current § 300.345(e) as
new § 300.322(e), and redesignated the
subsequent paragraph as § 300.322(f).
Parent Copy of Child’s IEP (New
§ 300.322(f)) (Proposed § 300.322(e))
Comment:
One commenter
recommended that the regulations
clarify that the public agency must
provide the parent a copy of any
amended IEPs, in addition to the
original IEP.
Discussion:
Section 300.324(a)(6),
consistent with section 614(d)(3)(F) of
the Act, requires the public agency to,
upon request of the parent, provide the
parent with a revised copy of the IEP
with the amendments incorporated. We
do not believe any further clarification
is necessary.
Changes:
None.
When IEPs Must Be in Effect (§ 300.323)
Comment:
Some commenters
recommended retaining current
§ 300.342(b)(1)(i) to ensure that an IEP is
in effect before special education
services are provided to a child.
Discussion:
We do not believe it is
necessary to retain current
§ 300.342(b)(1)(i) because we believe
this requirement is implicit in
§ 300.323(a), which requires each public
agency to have an IEP in effect for each
child with a disability in the public
agency’s jurisdiction at the beginning of
each school year.
Changes:
None.
IEP or IFSP for Children Aged Three
Through Five (§ 300.323(b))
Comment:
One commenter
recommended revising the regulations
to clarify when an IEP must be in place
for a child transitioning from an early
intervention program under Part C of
the Act to a preschool special education
program under Part B of the Act whose
third birthday occurs after the start of
the school year.
Discussion:
The commenter’s concern
is already addressed in the regulations.
Section 300.101(b), consistent with
section 612(a)(1)(A) of the Act, requires
an IEP to be in effect no later than the
child’s third birthday. However,
§ 300.323(b)(1), consistent with section
614(d)(2)(B) of the Act, provides that a
State, at its discretion, may provide
special education and related services to
two-year-old children with disabilities
who will turn three during the school
year. In such cases, the State must
ensure that an IEP is developed and in
effect at the start of the school year in
which the child turns three.
Changes:
None.
Comment:
One commenter stated that
an IFSP that was incorrectly developed
by the early intervention agency should
not be the school district’s
responsibility to correct.
Discussion:
The development of an
IFSP for children from birth through age
two is the responsibility of the
designated lead agency responsible for
early intervention programs under
section 635(a)(10) in Part C of the Act.
When a child turns age three, section
612(a)(9) of the Act requires each State
to ensure that an IEP has been
developed and implemented. However,
if a child turns age three and an LEA
and a parent agree to use an IFSP in lieu
of an IEP, as allowed under section
614(d)(2)(B) of the Act, the LEA is
responsible for ensuring that the
requirements in § 300.323(b) are met.
Therefore, if an IFSP was incorrectly
developed by the early intervention
agency and the public agency and the
parent agree to use the IFSP in lieu of
an IEP, the LEA is responsible for
modifying the IFSP so that it meets the
requirements in § 300.323(b).
Section 300.323(b), consistent with
section 614(d)(2)(B) of the Act, allows
an IFSP to serve as an IEP for a child
with a disability aged three through five
(or at the discretion of the SEA, a two-
year old child with a disability, who
will turn age three during the school
year), under the following conditions:
(a) using the IFSP as the IEP is
consistent with State policy and agreed
to by the agency and the child’s parents;
(b) the child’s parents are provided with
a detailed explanation of the differences
between an IFSP and an IEP; (c) written
informed consent is obtained from the
parent if the parent chooses an IFSP; (d)
the IFSP contains the IFSP content,
including the natural environments
statement; (e) the IFSP includes an
educational component that promotes
school readiness and incorporates pre-
literacy, language, and numeracy skills
for children with IFSPs who are at least
three years of age; and (f) the IFSP is
developed in accordance with the IEP
procedures under Part B of the Act.
Changes:
None.
Comment:
One commenter
recommended that the regulations
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require the IEP Team to explain the
changes in services and settings in the
initial IEP Team meeting for a child
transitioning from an early intervention
program under Part C of the Act to a
preschool program under Part B of the
Act.
Discussion:
We do not believe it is
necessary to change the regulations in
the manner recommended by the
commenter. Section 300.124, consistent
with section 612(a)(9) of the Act,
already requires States to have in effect
policies and procedures to ensure that
children transitioning from an early
intervention program under Part C of
the Act to a preschool program under
Part B of the Act experience a smooth
and effective transition to those
preschool programs. In addition, each
LEA is required to participate in
transition planning conferences with the
lead agency responsible for providing
early intervention services and to have
an IEP (or an IFSP, if consistent with
§ 300.323(b) and section 636(d) of the
Act) for the child developed and
implemented by the child’s third
birthday. We believe that in the course
of the transition planning conferences
and developing the child’s IEP, there
would be many opportunities for
discussions regarding the services
provided under Parts B and C of the Act.
Changes:
None.
Comment:
One commenter stated that
there is no statutory basis to require
detailed explanations of the differences
between an IEP and an IFSP or for
written informed parental consent when
an IFSP is used in lieu of an IEP.
Discussion:
We believe it is important
to retain these requirements in
§ 300.323(b)(2) because of the
importance of the IEP as the statutory
vehicle for ensuring FAPE to a child
with a disability. Although the Act does
not specifically require a public agency
to provide detailed explanations to the
parent of the differences between an IEP
and an IFSP, we believe parents need
this information to make an informed
choice regarding whether to continue to
use an IFSP in lieu of an IEP. Parents,
for example, should understand that it
is through the IEP that the child is
entitled to the special education and
related services that the child’s IEP
Team determines are necessary to
enable the child to be involved in and
make progress in the general education
curriculum and to receive FAPE. If a
parent decides to use an IFSP in lieu of
an IEP, the parent must understand that
the child will not necessarily receive the
same services and supports that are
afforded under an IEP. For a parent to
waive the right to an IEP, informed
parental consent is necessary.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
explicitly state that the IFSP does not
have to include all the elements of an
IEP when the IFSP is used in lieu of an
IEP.
Discussion:
Section 300.323(b)(1)
provides that, in order for the IFSP to
be used as the IEP, the IFSP must
contain the IFSP content (including the
natural environments statement) in
section 636(d) of the Act and be
developed in accordance with the IEP
procedures under Part B of the Act. For
children who are at least three years of
age, the IFSP must also include an
educational component that promotes
school readiness and incorporates pre-
literacy, language, and numeracy skills.
There is no requirement for the IFSP to
include all the required elements in an
IEP. We think this point is clear in the
regulations and that no further
clarification is necessary.
Changes:
None.
Comment:
Some commenters
recommended changing
§ 300.323(b)(2)(i) to require parental
consent before a preschool-aged child
receives an IFSP in States that have a
policy under section 635(c) of the Act.
Some commenters recommended that
the regulations clarify whether States
have flexibility to continue early
intervention services until the end of
the school year in which a child turns
three.
Discussion:
Section 300.323(b)
outlines the specific requirements that
apply when an IFSP is used in lieu of
an IEP for children aged three through
five, as a means of providing FAPE for
the child under Part B of the Act. This
is not the same as the policy in section
635(c) of the Act, which gives States the
flexibility to provide early intervention
services under Part C of the Act to three
year old children with disabilities until
they enter into, or are eligible under
State law to enter into, kindergarten.
Under § 300.323(b), when an IFSP is
used in lieu of an IEP, the child
continues to receive FAPE. This would
not be the case under section 635(c) of
the Act. Under section 635(c) of the Act,
parents of children with disabilities
who are eligible for preschool services
under section 619 of the Act and
previously received early intervention
services under Part C of the Act, may
choose to continue early intervention
services until the child enters, or is
eligible under State law to enter,
kindergarten. The option to continue
early intervention services is available
only in States where the lead agency
under Part C of the Act and the SEA
have developed and implemented a
State policy to provide this option. This
option will be detailed in the Part C
regulations, and not the Part B
regulations, as it permits a continuation
of eligibility and coverage under Part C
of the Act, rather than FAPE under Part
B of the Act.
Parental consent is required under
§ 300.323(b), when the IFSP is used in
lieu of an IEP, and under section 635(c)
of the Act, when a parent opts to
continue early intervention services.
Changes:
None.
Initial IEPs; Provision of Services
(§ 300.323(c))
Comment:
One commenter
recommended removing the
requirement for an IEP Team meeting to
be conducted within 30 days of
determining that the child needs special
education and related services. Another
commenter recommended extending the
time to 60 days. A few commenters
recommended that the regulations
require the meeting to be held no later
than 15 days after the eligibility
determination.
Discussion:
The requirement to
conduct a meeting to develop a child’s
IEP within 30 days of the determination
that a child needs special education and
related services is longstanding, and has
been included in the regulations since
they were first issued in final form in
1977. Experience has shown that many
public agencies choose to conduct the
meeting to develop the child’s IEP well
before the 30-day timeline. Reducing the
timeline to 15-days, as some
commenters suggest, would be
impractical, because there are situations
when both public agencies and parents
need additional time to ensure that
appropriate individuals can be present
at the meeting. Experience has
demonstrated that the 30-day timeline
for conducting a meeting to develop an
IEP is a reasonable time to provide both
public agencies and parents the
opportunity to ensure that required
participants can be present at the IEP
Team meeting. Therefore, we decline to
alter this longstanding regulatory
provision.
Changes:
None.
Accessibility of Child’s IEP to Teachers
and Others (§ 300.323(d))
Comment:
Many commenters
recommended retaining current
§ 300.342(b)(3)(i) and (b)(3)(ii), which
require teachers and providers to be
informed of their specific
responsibilities for implementing an
IEP, and the specific accommodations,
modifications, and supports that must
be provided to the child in accordance
with the child’s IEP. Several
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commenters stated that a child’s IEP
should be readily accessible and all
those involved in a child’s education
should be required to read and
understand it.
Discussion:
Section 300.323(d)
requires that the child’s IEP be
accessible to each regular education
teacher, special education teacher,
related services provider, and any other
service provider who is responsible for
its implementation. The purpose of this
requirement is to ensure that teachers
and providers understand their specific
responsibilities for implementing an
IEP, including any accommodations or
supports that may be needed. We agree
with the commenters’ recommendation
and believe retaining current
§ 300.342(b)(3)(i) and (b)(3)(ii) is
necessary to ensure proper
implementation of the child’s IEP and
the provision of FAPE to the child.
However, the mechanism that the public
agency uses to inform each teacher or
provider of his or her responsibilities is
best left to the discretion of the public
agency.
Changes:
We have restructured
§ 300.323(d) and added a new paragraph
(d)(2) to include the requirements in
current § 300.342(b)(3)(i) and (b)(3)(ii).
IEPs for Children Who Transfer Public
Agencies in the Same State
(§ 300.323(e), IEPs for Children Who
Transfer From Another State
§ 300.323(f), and Transmittal of Records
§ 300.323(g)) (Proposed Program for
Children Who Transfer Public Agencies
(§ 300.323(e))
Comment:
None.
Discussion:
Several technical changes
are needed in proposed § 300.323(e) for
clarity and improved readability. We
believe that readability will be
improved by reorganizing this provision
into three separate paragraphs—
paragraph (e), which will address
transfers within the same State,
paragraph (f), which will address
transfers from another State, and
paragraph (g), which will address the
transmittal of records.
In addition, clarity will be improved
by changing certain terms to align with
terms that are more commonly used in
this part. For example, while the Act
uses the term ‘‘Program’’ in the title of
this requirement (referring to an
‘‘individualized education program’’),
we believe it would be clearer to use
‘‘IEP’’ throughout this provision. In
addition, as noted in the discussion of
§ 300.304(c)(5), we believe that it is
important to include language stating
that the requirements in § 300.323 are
applicable to children with disabilities
who have an IEP in effect in a previous
public agency and who transfer to a new
school within the same ‘‘school year,’’
rather than the same ‘‘academic year,’’
because ‘‘school year’’ is the term most
commonly understood by parents and
school officials. Further, it is important
that the regulations clearly and
consistently differentiate between the
responsibilities of the ‘‘new’’ public
agency and the ‘‘previous’’ public
agency.
Changes:
We have restructured
proposed § 300.323(e) into three
separate paragraphs, and each paragraph
has been re-named to comport with the
three concepts in the statutory
requirement. Proposed § 300.323(e)(1)(i)
has been changed to new § 300.323(e),
‘‘IEPs for children who transfer public
agencies in the same State.’’ Proposed
§ 300.323(e)(1)(ii) has been changed to
new § 300.323(f), ‘‘IEPs for children who
transfer from another State.’’ Proposed
§ 300.323(e)(2) has been changed to new
§ 300.323(g), ‘‘Transmittal of records.’’
We have substituted ‘‘IEP’’ for
‘‘program’’ in new § 300.323(e)
(proposed § 300.323(e)(1)(i)), and have
made the following changes to new
§ 300.323(e) (proposed
§ 300.323(e)(1)(i)) and new § 300.323(f)
(proposed § 300.323(e)(1)(ii)): (1) added
language to clarify that the requirements
apply to a child with a disability who
has an IEP in effect in a previous public
agency and transfers to a new school
within the same school year; (2)
replaced the term ‘‘is consistent with
Federal and State law’’ with ‘‘meets the
applicable requirements in §§ 300.320
through 300.324;’’ and (3) clarified
when a requirement applies to the
‘‘new’’ public agency to which the child
transfers versus the ‘‘previous’’ public
agency.
Comment:
Several commenters
requested that the regulations clarify the
meaning of ‘‘comparable services.’’
Discussion:
We do not believe it is
necessary to define ‘‘comparable
services’’ in these regulations because
the Department interprets ‘‘comparable’’
to have the plain meaning of the word,
which is ‘‘similar’’ or ‘‘equivalent.’’
Therefore, when used with respect to a
child who transfers to a new public
agency from a previous public agency in
the same State (or from another State),
‘‘comparable’’ services means services
that are ‘‘similar’’ or ‘‘equivalent’’ to
those that were described in the child’s
IEP from the previous public agency, as
determined by the child’s newly-
designated IEP Team in the new public
agency.
Changes:
None.
IEPs for Children Who Transfer From
Another State (New § 300.323(f))
(Proposed § 300.323(e)(1)(ii))
Comment:
One commenter requested
clarification regarding the
responsibilities of LEAs who receive a
child transferring from out of State.
Discussion:
When a child transfers
from another State, new § 300.323(f)
(proposed § 300.323(e)(1)(ii)), consistent
with section 614(d)(2)(C)(i)(II) of the
Act, requires the LEA, in consultation
with the parents, to provide the child
with FAPE, including services
comparable to those in the IEP from the
previous public agency, until such time
as the new public agency conducts an
evaluation (if determined to be
necessary) and adopts a new IEP.
Changes:
None.
Comment:
Several commenters
requested that the regulations clarify
what happens when a child transfers to
a State with eligibility criteria that are
different from the previous public
agency’s criteria.
Discussion:
Under § 300.323(f)(1), if
the new public agency determines that
an evaluation of the child is necessary
to determine whether the child is a
child with a disability under the new
public agency’s criteria, the new public
agency must conduct the evaluation.
Until the evaluation is conducted,
§ 300.323(f) requires the new public
agency, in consultation with the parent,
to provide the child with FAPE,
including services comparable to those
described in the IEP from the previous
public agency. The specific manner in
which this is accomplished is best left
to State and local officials and the
parents to determine. We do not believe
that any further clarification is
necessary.
Changes:
None.
Comment:
One commenter requested
clarification about whether parental
consent must be obtained for the new
public agency to evaluate a child with
an IEP who transfers from another State.
Another commenter requested that the
regulations clarify that an evaluation of
a child who transfers from another State
is considered a reevaluation.
One commenter requested that the
regulations address circumstances in
which comparable services are
considered unreasonable in the State
receiving the child. Some commenters
stated that the stay-put provision should
be imposed by the new State if the
parent disagrees with the new public
agency about the comparability of
services.
Discussion:
New § 300.323(f)
(proposed § 300.323(e)(1)(ii)), consistent
with section 614(d)(2)(C)(i)(II) of the
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Act, states that, in the case of a child
with a disability who enrolls in a new
school in another State, the public
agency, in consultation with the
parents, must provide FAPE to the
child, until such time as the public
agency conducts an evaluation pursuant
to §§ 300.304 through 300.306, if
determined necessary by the public
agency, and develops a new IEP, if
appropriate, that is consistent with
Federal and State law. The evaluation
conducted by the new public agency
would be to determine if the child is a
child with a disability and to determine
the educational needs of the child.
Therefore, the evaluation would not be
a reevaluation, but would be an initial
evaluation by the new public agency,
which would require parental consent.
If there is a dispute between the parent
and the public agency regarding what
constitutes comparable services, the
dispute could be resolved through the
mediation procedures in § 300.506 or, as
appropriate, the due process hearing
procedures in §§ 300.507 through
300.517. We believe these options
adequately address circumstances in
which comparable services are
considered unreasonable.
With regard to the comment that the
stay-put provisions should be imposed
by the new State if the parent disagrees
with the new public agency about the
comparability of services, stay-put
would not apply, because the evaluation
is considered an initial evaluation and
not a reevaluation.
Changes:
None.
Comment:
A few commenters
requested clarification regarding the
responsibilities of the new public
agency for a child with a disability who
moves during the summer.
Discussion:
Section 614(d)(2)(a) is
clear that at the beginning of each
school year, each LEA, SEA, or other
State agency, as the case may be, must
have an IEP in effect for each child with
a disability in the agency’s jurisdiction.
Therefore, public agencies need to have
a means for determining whether
children who move into the State during
the summer are children with
disabilities and for ensuring that an IEP
is in effect at the beginning of the school
year.
Changes:
None.
Comment:
Some commenters
requested clarification regarding what a
new public agency should do when a
child’s IEP is developed (or revised) by
the child’s previous public agency at the
end of a school year (or during the
summer), for implementation during the
next school year, and the child moves
to the new public agency before the next
school year begins (e.g., during the
summer).
Discussion:
This is a matter to be
decided by each individual new public
agency. However, if a child’s IEP from
the previous public agency was
developed (or reviewed and revised) at
or after the end of a school year for
implementation during the next school
year, the new public agency could
decide to adopt and implement that IEP,
unless the new public agency
determines that an evaluation is needed.
Otherwise, the newly designated IEP
Team for the child in the new public
agency could develop, adopt, and
implement a new IEP for the child that
meets the applicable requirements in
§§ 300.320 through 300.324.
Changes:
None.
Transmittal of Records (New
§ 300.323(g)) (Proposed § 300.323(e)(2))
Comment:
Several commenters
recommended that the regulations
require the previous public agency to
transmit a child’s records to the new
public agency within 15 business days
after receiving the request. Other
commenters recommended that the
regulations require a specific timeframe
for the school to obtain and review the
previous educational placement and
services of the transfer child.
Discussion:
New § 300.323(g)
(proposed § 300.323(e)(2)) follows the
language in section 614(d)(2)(C)(ii) of
the Act, and requires the new public
agency to take reasonable steps to
promptly obtain the child’s records from
the previous public agency in which the
child was enrolled. New § 300.323(g)
(proposed § 300.323(e)(2)) also requires
the previous public agency to take
reasonable steps to promptly respond to
the request from the new public agency.
There is nothing in the Act that would
prevent a State from requiring its public
agencies to obtain a child’s records or
respond to requests for a child’s records
within a specific timeframe. This is an
issue appropriately left to States to
determine.
Changes:
None.
Development of IEP
Development, Review, and Revision of
IEP (§ 300.324)
Comment:
A few commenters
recommended requiring all IEP
members to sign the IEP.
Discussion:
There is nothing in the
Act that requires IEP members to sign
the IEP and we believe it would be
overly burdensome to impose such a
requirement.
Changes:
None.
Comment:
A few commenters
requested that the regulations require
the IEP Team to consider the social and
cultural background of the child in the
development, review, or revision of the
child’s IEP.
Discussion:
Under § 300.306(c)(1)(i), a
child’s social or cultural background is
one of many factors that a public agency
must consider in interpreting evaluation
data to determine if a child is a child
with a disability under § 300.8 and the
educational needs of the child. We do
not believe it is necessary to repeat this
requirement in § 300.324.
Changes:
None.
Comment:
A few commenters
recommended retaining current
§ 300.343(a), regarding the public
agency’s responsibility to initiate and
conduct meetings to develop, review,
and revise a child’s IEP.
Discussion:
It is not necessary to
retain § 300.343(a) because the
requirements for the public agency to
initiate and conduct meetings to
develop, review, and revise a child’s IEP
are covered in § 300.112 and § 300.201.
Section 300.112, consistent with section
614(a)(4) of the Act, requires the State
to ensure that an IEP (or an IFSP that
meets the requirements of section 636(d)
of the Act) is developed, reviewed, and
revised for each child with a disability.
Section 300.201, consistent with section
613(a)(1) of the Act, requires LEAs to
have in effect policies, procedures, and
programs that are consistent with the
State policies and procedures
established under §§ 300.101 through
300.163, and §§ 300.165 through
300.174, which include the
requirements related to developing,
reviewing, and revising an IEP for each
child with a disability.
Changes:
None.
Comment:
A few commenters
recommended retaining current
§ 300.346(a)(1)(iii), regarding the IEP
Team’s consideration of the results of
the child’s performance on any general
State or districtwide assessment
programs in developing the child’s IEP.
The commenter stated that it is
important to retain this requirement
because such testing informs the IEP
Team of the child’s success in the
general education curriculum.
Discussion:
The Department agrees
that State and districtwide assessments
provide important information
concerning the child’s academic
performance and success in the general
education curriculum. However, current
§ 300.346(a)(1)(iii) was removed,
consistent with section 614(d)(3)(A)(iv)
of the Act. Because the language from
current § 300.346(a)(1)(iii) was
specifically excluded from the Act, we
do not believe it is appropriate to retain
it in the regulations. We do not believe
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that an explicit regulation is needed,
however, because § 300.324(a)(1)(iv)
requires the IEP Team, in developing
each child’s IEP, to consider the
academic, developmental, and
functional needs of the child. A child’s
performance on State or districtwide
assessments logically would be
included in the IEP Team’s
consideration of the child’s academic
needs. In addition, as a part of an initial
evaluation or reevaluation, § 300.305(a)
requires the IEP Team to review existing
evaluation data, including data from
current classroom based, local, and
State assessments.
Changes:
None.
Consideration of Special Factors
(§ 300.324(a)(2))
Comment:
Many commenters
recommended changing
§ 300.324(a)(2)(i) to require that the
positive behavioral interventions and
supports for a child whose behavior
impedes the child’s learning or that of
others be based on a functional
behavioral assessment.
Discussion:
Section 300.324(a)(2)(i)
follows the specific language in section
614(d)(3)(B)(i) of the Act and focuses on
interventions and strategies, not
assessments, to address the needs of a
child whose behavior impedes the
child’s learning or that of others.
Therefore, while conducting a
functional behavioral assessment
typically precedes developing positive
behavioral intervention strategies, we do
not believe it is appropriate to include
this language in § 300.324(a)(2)(i).
Changes:
None.
Comment:
A few commenters
recommended that § 300.324(a)(2)(i)
refer specifically to children with
internalizing and externalizing
behaviors.
Discussion:
We do not believe it is
necessary to make the recommended
change because § 300.324(a)(2)(i) is
written broadly enough to include
children with internalizing and
externalizing behaviors.
Changes:
None.
Comment:
Many commenters
expressed concern that the
consideration of special factors in
§ 300.324(a)(2)(i) is not sufficient to
address the behavioral needs of children
with disabilities in the IEP process and
recommended strengthening the
regulations by encouraging school
districts to utilize research-based
positive behavioral supports and
systematic and individual research-
based interventions. One commenter
recommended training teachers
regarding the use of positive behavioral
interventions and supports.
Discussion:
We do not believe that the
changes recommended by the
commenters need to be made to
§ 300.324(a)(2)(i). Whether a child needs
positive behavioral interventions and
supports is an individual determination
that is made by each child’s IEP Team.
Section 300.321(a)(2)(i) requires the IEP
Team, in the case of a child whose
behavior impedes the child’s learning or
that of others, to consider the use of
positive behavioral supports, and other
strategies to address that behavior. We
believe that this requirement
emphasizes and encourages school
personnel to use positive behavioral
interventions and supports.
In addition, the regulations reflect the
Department’s position that high-quality
professional development, including the
use of scientifically based instructional
practices, is important to ensure that
personnel have the skills and
knowledge necessary to improve the
academic achievement and functional
performance of children with
disabilities. Section 300.207, consistent
with section 613(a)(3) of the Act,
requires each LEA to ensure that all
personnel necessary to carry out Part B
of the Act are appropriately and
adequately prepared, subject to the
requirements in § 300.156 and section
2122 of the ESEA.
Section 300.156(a), consistent with
section 612(a)(14) of the Act, clearly
states that each State must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained, and
have the content knowledge and skills
to serve children with disabilities.
Further, section 2122(b)(1)(B) of the
ESEA requires an LEA’s application to
the State for title II funds (Preparing,
training, and recruiting high quality
teachers and principals) to address how
the LEA’s activities will be based on a
review of scientifically based research.
In addition, the implementation of
early intervening services in § 300.226
specifically focuses on professional
development for teachers and other
school staff to enable such personnel to
deliver scientifically based academic
and behavioral interventions, and
providing educational and behavioral
evaluations, services, and supports. We
expect that the professional
development activities and the services
authorized under § 300.226(b)(1) will be
derived from scientifically based
research.
Finally, because the definition of
scientifically based research
is
important to the implementation of Part
B of the Act, a reference to section
9101(37) of the ESEA has been added in
new § 300.35, and the full definition of
the term has been included in the
discussion to the new § 300.35. Under
the definition, scientifically based
research must be accepted by a peer-
reviewed journal or approved by a panel
of independent experts through a
comparably rigorous, objective, and
scientific review. In short, we believe
that the Act and the regulations place a
strong emphasis on research based
supports and interventions, including
positive behavioral interventions and
supports.
Changes:
None.
Comment:
One commenter
recommended requiring positive
behavioral interventions and supports
for all children identified as having an
emotional disturbance.
Discussion:
Section 300.324(a)(2)(i),
consistent with section 614(d)(3)(B)(i) of
the Act, requires the IEP Team to
consider the use of positive behavioral
interventions and supports, and other
strategies to address the behavior of a
child whose behavior impedes the
child’s learning or that of others. We do
not believe there should be a
requirement that the IEP Team consider
such interventions, supports, and
strategies for a particular group of
children, or for all children with a
particular disability, because such
decisions should be made on an
individual basis by the child’s IEP
Team.
Changes:
None.
Comment:
A few commenters
expressed concern that the regulations
regarding special factors for the IEP
Team to consider in developing IEPs
imply that particular methods,
strategies, and techniques should be
used.
Discussion:
The requirements in
§ 300.324 are not intended to imply that
a particular method, strategy, or
technique should be used to develop a
child’s IEP. For example, while
§ 300.324(a)(2)(i) requires the IEP Team
to consider the use of positive
behavioral interventions and supports,
and other strategies, it does not specify
the particular interventions, supports, or
strategies that must be used.
Changes:
None.
Comment:
Some commenters
recommended that the special factors
for a child who is blind or visually
impaired include a requirement for a
clinical low vision evaluation to
determine whether the child has the
potential to utilize optical devices for
near and distance information before
providing instruction in Braille and the
use of Braille.
Discussion:
Section 614(d)(3)(B)(iii) of
the Act requires instruction in Braille to
be provided unless the IEP Team
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determines that instruction in Braille or
in the use of Braille is not appropriate
for the child. However, the Act does not
require a clinical low vision evaluation,
and we do not believe it would be
appropriate to include such a
requirement in the regulations. Whether
a clinical low vision evaluation is
conducted is a decision that should be
made by the child’s IEP Team.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
include language requiring that
instruction in Braille be considered at
all stages of IEP development, review,
and revision. These commenters also
stated that consideration should be
given to providing services and supports
to improve a child’s skills in the areas
of socialization, independent living,
orientation and mobility, and the use of
assistive technology devices.
Discussion:
The issues raised by the
commenters are already covered in the
regulations. Section 300.324(a)(2)(iii),
consistent with section 614(d)(3)(B)(iii)
of the Act, requires the IEP Team, in the
case of a child who is blind or visually
impaired, to provide for instruction in
Braille and the use of Braille, unless the
IEP Team determines (after an
evaluation of the child’s reading and
writing skills, needs, and appropriate
reading and writing media) that
instruction in Braille or the use of
Braille is not appropriate. As noted
earlier, a new paragraph (b)(2) has been
added to § 300.324 to require the IEP
Team to consider the special factors in
§ 300.324(a)(2) when the IEP is reviewed
and revised. This includes considering
instruction in Braille and the use of
Braille for a child who is blind or
visually impaired.
In addition, § 300.324(a)(1)(iv)
requires the IEP Team to consider, for
all children with disabilities, the
academic, developmental, and
functional needs of the child, which
could include, as appropriate, the
child’s need to develop skills in the
areas of socialization, independent
living, and orientation and mobility.
Consideration of a child’s needs for
assistive technology devices and
services is required by
§ 300.324(a)(2)(v).
Changes:
None.
Comment:
Several commenters
recommended that the regulations
require IEP Teams, for a child who is
deaf, to consider the child’s
communication abilities, ensure that the
child can access language and
communicate with peers and adults,
and ensure that the child has an
educational placement that will meet
the child’s communication needs. The
commenters also recommended that the
IEP Team be required to consider the
qualifications of the staff delivering the
child’s educational program.
Discussion:
The commenters’
concerns are already addressed in the
regulations. Section 300.324(a)(2)(iv),
consistent with section 614(d)(3)(B)(iv)
of the Act, requires the IEP Team to
consider the communication needs of
the child, and in the case of a child who
is deaf or hard of hearing, consider the
child’s language and communication
needs, opportunities for direct
communications 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.
With respect to the commenters’
recommendation regarding qualified
staff to deliver the child’s educational
program, § 300.156, consistent with
section 612(a)(14) of the Act, requires
the SEA to establish and maintain
qualifications to ensure that personnel
necessary to carry out the purposes of
the Act are appropriately and
adequately prepared and trained to
serve children with disabilities.
Changes:
None.
Comment:
Some commenters
suggested that § 300.324(a)(2)(iv)
explain that: (a) a primary language
assessment and assessment of
communication abilities may be
required to determine the child’s most
effective language; (b) program and
placement decisions must be based on
such assessments; (c) a child must be in
an educational placement where the
child may communicate with peers and
adults; and (d) a deaf child’s
educational placement must include a
sufficient number of peers and adults
who can communicate fluently in the
child’s primary language.
Discussion:
It is not necessary to
include in the regulations the additional
language recommended by the
commenters. Section 300.324(a)(1)(iii),
consistent with section 614(d)(3)(A)(iii)
of the Act, requires the IEP Team to
consider, among other things, the results
of the initial or most recent evaluation
of the child, which for a child who is
deaf, may include an assessment of a
child’s communication abilities.
Further, § 300.324(a)(2)(iv), consistent
with section 614(d)(3)(B)(iv) of the Act,
requires the IEP Team to consider
opportunities for direct communications
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. We believe this adequately
addresses the commenters’ concerns.
Changes:
None.
Comment:
One commenter requested
that emotional issues be considered an
additional special factor that can
impede learning. The commenter stated
that emotional issues can be addressed
through individual interventions
focused on the child’s needs and
systemic interventions to improve the
overall school climate.
Discussion:
Section 614(d)(3)(B) of the
Act does not include emotional issues
as a special factor to be considered by
the IEP Team. We decline to add it to
the regulations because there are already
many opportunities for the IEP Team to
consider the affect of emotional issues
on a child’s learning. For example,
§ 300.324(a)(1), consistent with section
614(d)(3)(A) of the Act, requires the IEP
Team to consider the strengths of the
child; the concerns of the parents for
enhancing the education of their child;
the results of the initial evaluation or
most recent evaluation of the child; and
the academic, developmental, and
functional needs of the child, all of
which could be affected by emotional
issues and would, therefore, need to be
considered by the IEP Team.
Changes:
None.
Comment:
A few commenters
requested that children with medical
conditions that are degenerative be
added to the list of special factors
considered by the IEP Team. The
commenters stated that the IEP Team
should consider the need for children
with degenerative conditions to
maintain their present levels of
functioning by including related
therapeutic services prior to the loss of
their abilities, such as occupational and
physical therapy, and other services to
address the child’s needs in the areas of
self-help, mobility, and communication.
Discussion:
Section 614(d)(3)(B) of the
Act does not include consideration of
children with degenerative conditions
as a special factor. We decline to add it
to the regulations because we believe
that the regulations already address the
commenters’ concerns. As with any
child with a disability, the child’s IEP
Team, which includes the parent,
determines the special education and
related services that are needed in order
for the child to receive FAPE. For
children with degenerative diseases,
this may include related services such
as physical and occupational therapy (or
other services to address the child’s
needs in the areas of self-help, mobility,
and communication) to help maintain
the child’s present levels of functioning
for as long as possible in order for the
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child to benefit from special education.
In addition, as part of an evaluation or
reevaluation, § 300.305 requires the IEP
Team and other qualified professionals,
as appropriate, to review existing
evaluation data on the child to
determine the child’s needs, which may
include evaluations and information
from parents, as well as medical
professionals who know the child and
the child’s specific medical condition.
S. Rpt. No. 108–185, p. 33, and H.
Rpt. No. 108–77, p. 112, recognized the
special situations of children with
medical conditions that are degenerative
(
i.e.
, diseases that result in negative
progression and cannot be fully
corrected or fully stabilized). For
children with degenerative diseases
who are eligible for services under the
Act, both reports state that special
education and related services can be
provided to help maintain the child’s
present levels of functioning for as long
as possible in order for the child to fully
benefit from special education services.
The reports also state, ‘‘The IEP Team
can include related services designed to
provide therapeutic services prior to
loss of original abilities to extend
current skills and throughout the child’s
enrollment in school. These services
may include occupational and physical
therapy, self-help, mobility, and
communication, as appropriate.’’
Changes:
None.
Comment:
Some commenters stated
that the IEP Team’s review of the special
factors in § 300.324(a)(2) is duplicative
and should be eliminated.
Discussion:
The requirements in
§ 300.324(a)(2) are directly from section
614(d)(3)(B) of the Act and cannot be
removed.
Changes:
None.
Comment:
Many commenters
recommended that the regulations retain
current § 300.346(b) and require the IEP
Team to consider the special factors in
§ 300.324(a)(2) when the IEP is reviewed
and revised. The commenters stated that
these special factors may affect a child’s
instructional needs and ability to obtain
FAPE beyond the period when an IEP is
initially developed.
Discussion:
The Department agrees
that the IEP Team should consider the
special factors in § 300.324(a)(2) when
an IEP is reviewed and revised. We will,
therefore, add this requirement to the
regulations.
Changes:
A new paragraph (b)(2) has
been added to § 300.324 to require the
IEP Team to consider the special factors
in § 300.324(a)(2) when the IEP is
reviewed and revised. Proposed
§ 300.324(b)(2) has been redesignated
accordingly.
Comment:
One commenter requested
changing § 300.324(a)(2)(v), regarding
the IEP Team’s consideration of a
child’s need for assistive technology
devices and services, to require assistive
technology devices and services that are
needed for a child to be included in the
child’s IEP.
Discussion:
Section 300.320(a)(4)
requires the IEP to include a statement
of the special education and related
services and supplementary aids and
services to be provided to the child, or
on behalf of the child. This would
include any assistive technology devices
and services determined by the IEP
Team to be needed by the child in order
for the child to receive FAPE. Therefore,
it is unnecessary to repeat this in
§ 300.324(a)(2)(v).
Changes:
None.
Agreement (§ 300.324(a)(4))
Comment:
Many commenters
expressed concern that permitting
changes to a child’s IEP without an IEP
Team meeting will be detrimental to the
child’s overall education. Several
commenters requested that
§ 300.324(a)(4) clarify whether such
changes to the IEP can only be made
between the annual IEP Team meetings
to review the IEP and not in place of an
annual IEP Team meeting. These
commenters also requested clarification
regarding the types of revisions that
could be made without an IEP Team
meeting. A few commenters
recommended limiting the
circumstances under which an IEP may
be revised without convening an IEP
Team meeting. One commenter
requested that the regulations include
safeguards to ensure that key elements
of a child’s IEP are not altered without
a discussion of the changes with the
parent.
Discussion:
Section 300.324(a)(4),
consistent with section 614(d)(3)(D) of
the Act, allows a parent and a public
agency to agree not to convene an IEP
Team meeting to make changes to the
child’s IEP, and instead, to develop a
written document to amend or modify
the child’s current IEP. The Act does not
place any restrictions on the types of
changes that may be made, so long as
the parent and the public agency agree.
Accordingly, we do not believe it would
be appropriate to include restrictions on
such changes in the regulations.
We do not believe that an amendment
to an IEP can take the place of an annual
IEP Team meeting. It is unnecessary to
regulate on this issue because section
614(d)(4)(A)(i) of the Act clearly
requires the IEP Team to review the
child’s IEP annually to determine
whether the annual goals for the child
are being achieved. We believe that the
procedural safeguards in §§ 300.500
through 520 are sufficient to ensure that
a child’s IEP is not changed without
prior notice by a public agency and an
opportunity to discuss any changes with
the public agency.
Changes:
None.
Comment:
Several commenters asked
whether the agreement to make changes
to a child’s IEP without an IEP Team
meeting must be in writing. Many
commenters recommended requiring
informed written consent to amend an
IEP without an IEP Team meeting.
Discussion:
Section 614(d)(3)(D) of the
Act does not require the agreement
between the parent and the public
agency to be in writing. In addition, the
parent is not required to provide
consent,
as defined in § 300.9, to amend
the IEP without an IEP Team meeting.
However, it would be prudent for the
public agency to document the terms of
the agreement in writing, in the event
that questions arise at a later time. Of
course, changes to the child’s IEP would
have to be in writing.
Changes:
None.
Comment:
One commenter requested
that the regulations include safeguards
to ensure that key elements of a child’s
prior IEP program are not altered
without discussion of the change with
parents, and that parents are provided
with information that will allow them to
fully consider the alternatives.
Discussion:
Section 300.324(a)(4),
consistent with section 614(d)(3)(D) of
the Act, permits the public agency and
the parent to agree to amend the child’s
IEP without an IEP Team meeting. If the
parent needs further information about
the proposed change or believes that a
discussion with the IEP Team is
necessary before deciding to change the
IEP, the parent does not have to agree
to the public agency’s request to amend
the IEP without an IEP Team meeting.
Changes:
None.
Comment:
A few commenters
recommended that when an IEP is
changed without an IEP Team meeting,
all personnel with responsibility for
implementing the revised IEP should be
informed of the changes with respect to
their particular responsibilities and
have access to the revised IEP. Some
commenters recommended that once the
parent has approved the IEP changes,
the IEP Team members should be
notified and trained on the amended IEP
within one calendar week of the
changes.
Discussion:
We agree that when the
parent and the public agency agree to
change the IEP without an IEP Team
meeting, it is important that the
personnel responsible for implementing
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the revised IEP be notified and informed
of the changes with respect to their
particular responsibilities. We will add
language to address this in
§ 300.324(a)(4). We do not believe that
it is necessary to regulate on the
timeframe within which a public agency
must make the IEP accessible to the
service providers responsible for
implementing the changes, or otherwise
notify them of the changes, as this will
vary depending on the circumstances
(e.g., whether the changes are minor or
major changes) and is, therefore, best
left to State and local public agency
officials to determine.
Changes:
We have restructured
§ 300.324(a)(4) and added a new
paragraph (a)(4)(ii) to require a public
agency to ensure that the child’s IEP
Team is informed of changes made to a
child’s IEP when changes to the IEP are
made without an IEP Team meeting.
Comment:
One commenter asked
whether States must allow parents and
school districts to agree to change the
IEP without an IEP Team meeting.
Discussion:
The provisions in section
614(d)(3)(D) of the Act are intended to
benefit parents by providing the
flexibility to amend an IEP without
convening an IEP Team meeting.
Therefore, a State must allow changes to
an IEP without an IEP Team meeting
when a parent and public agency agree
not to convene an IEP Team meeting,
and instead develop a written document
to amend or modify a child’s current
IEP, consistent with § 300.324(a)(4) and
section 614(d)(3)(D) of the Act.
Changes:
None.
Amendments (§ 300.324(a)(6))
Comment:
Many commenters
requested revising § 300.324(a)(6) to
require public agencies to provide a
copy of a revised IEP to the parent
without requiring the parent to request
the copy when amendments are made to
the IEP. The commenters stated that this
safeguard is needed to ensure that
negotiated amendments are actually
instituted. Some commenters
recommended that, at a minimum, the
parent should be provided with notice
that they have the right to receive a copy
of the revised IEP.
Discussion:
The requirement for a
public agency to provide a parent with
a revised copy of the IEP upon the
request of a parent is in section
614(d)(3)(F) of the Act. There is nothing
in the Act that would prevent a school
from providing a copy of a revised IEP
to a parent whenever amendments are
made. However, under the Act, the
school is not required to provide the
parent a copy of the revised IEP absent
the parent’s request for a copy. It would
be inconsistent with the Act to include
such a requirement in the regulations.
Changes:
None.
Comment:
Some commenters
recommended that changes to the IEP
should not take effect until a notice has
been sent to the parent explaining the
changes and written consent from the
parent has been obtained. One
commenter recommended that the
regulations require a core group of the
IEP Team to meet and address any
changes to the IEP.
Discussion:
To implement the
commenters’ recommendations would
be inconsistent with the Act. Section
614(d)(3)(F) of the Act cross-references
section 614(d)(3)(D) of the Act, which
provides that changes to the IEP may be
made either by the entire IEP Team,
which includes the parent, at an IEP
Team meeting, or amended without an
IEP Team meeting when the parent and
public agency agree. The phrase ‘‘at an
IEP Team meeting’’ following ‘‘by the
entire IEP Team’’ was inadvertently
omitted in § 300.324(a)(6). We will,
therefore, add the phrase to clarify that
changes to an IEP may be made by the
entire IEP Team at an IEP Team
meeting, or amended without an IEP
Team meeting when the parent and
public agency agree.
Changes:
We have added the phrase
‘‘at an IEP Team meeting’’ following ‘‘by
the entire IEP Team.’’
Failure To Meet Transition Objectives
(§ 300.324(c))
Comment:
One commenter
recommended that § 300.324(c)
emphasize collaboration between public
agencies providing education and
transportation in order to resolve
problems concerning a child’s
transportation IEP objectives related to
transition.
Discussion:
Section 300.321(b)(3)
requires the IEP Team to invite a
representative of any agency that is
likely to be responsible for providing or
paying for transition services, when
appropriate, and with the consent of the
parent (or a child who has reached the
age of majority). In addition,
§ 300.154(a), consistent with section
612(a)(12) of the Act, requires each State
to ensure that an interagency agreement
or other mechanism for interagency
coordination is in effect between each
non-educational public agency and the
SEA, in order to ensure that services
needed to ensure FAPE are provided.
Section 300.154(b) and section
612(a)(12)(B)(i) of the Act specifically
refer to interagency agreements or other
mechanisms for interagency
coordination with agencies assigned
responsibility under State policy to
provide special education or related
services relating to transition. This
would include a public agency that is
responsible for transportation under
State policy. We believe this is
sufficient to address the commenter’s
concern.
Changes:
None.
Comment:
A few commenters
requested that § 300.324(c)(1) clarify
that public agencies are under a legal
obligation to provide services related to
the transition objectives in a child’s IEP.
Discussion:
It is not necessary to
include additional language in
§ 300.324(c)(1). Section 300.101,
consistent with section 612(a)(1)(A) of
the Act, requires each SEA to ensure
that the special education and related
services that are necessary for the child
to receive FAPE are provided in
conformity with the child’s IEP. If an
agency, other than the public agency,
fails to provide the transition services
described in the IEP, the public agency
must reconvene the IEP Team to
develop alternative strategies to meet
the transition objectives for the child set
out in the child’s IEP, consistent with
section 614(d)(6) of the Act and
§ 300.324(c)(1).
Changes:
None.
Children With Disabilities in Adult
Prisons (§ 300.324(d))
Comment:
A few commenters stated
that guidance is needed regarding what
requirements apply when serving
incarcerated children with disabilities.
One commenter recommended requiring
that children with disabilities
incarcerated in local jails continue with
their established school schedules and
IEP services, which States may provide
directly or through an LEA.
Discussion:
No change to the
regulations is needed. Section
300.324(d)(1), consistent with section
614(d)(7) of the Act, specifies the
requirements of the Act that do not
apply to children with disabilities who
are convicted as adults under State law
and incarcerated in adult prisons. If a
child with a disability is incarcerated,
but is not convicted as an adult under
State law and is not incarcerated in an
adult prison, the requirements of the
Act apply. Whether the special
education and related services are
provided directly by the State or
through an LEA is a decision that is best
left to States and LEAs to determine.
Changes:
None.
Comment:
One commenter stated that
SEAs and LEAs should not be allowed
to restrict the types of services provided
to children with disabilities simply
because they are incarcerated.
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Discussion:
We disagree with the
commenter. The Act allows services to
be restricted for a child with a disability
who is convicted as an adult under State
law and incarcerated in an adult prison.
Section 614(d)(7)(B) of the Act states
that the IEP Team of a child with a
disability who is convicted as an adult
under State law and incarcerated in an
adult prison 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.
Further, the LRE requirements in
§ 300.114 and the requirements related
to transition services in § 300.320 do not
apply.
Changes:
None.
Private School Placements by Public
Agencies (§ 300.325)
Comment:
One commenter stated that
§ 300.325, regarding private school
placements by public agencies, is not in
the Act and should be removed.
Discussion:
We disagree with the
commenter. Section 612(a)(10)(B) of the
Act provides that children with
disabilities who are placed in private
schools and facilities are provided
special education and related services,
in accordance with an IEP, and have all
the rights the children would have if
served by a public agency. In order to
comply with this statutory requirement,
§ 300.325 explains the responsibilities
of the public agency that places a child
with a disability in a private school or
facility with respect to developing,
reviewing, and revising the child’s IEP.
Changes:
None.
Comment:
A few commenters
requested clarifying § 300.325(b)(1),
which allows the private school or
facility to initiate and conduct IEP Team
meetings to review and revise the
child’s IEP at the discretion of the
public agency. The commenters stated
that this should be changed to ‘‘only
with the consent of the public agency.’’
Discussion:
We do not believe the
suggested change is necessary. Section
300.325(c) is clear that for publicly-
placed children with disabilities, even if
a private school or facility implements
a child’s IEP, responsibility for
compliance with Part B of the Act
remains with the public agency and the
SEA. Therefore, it is up to the public
agency to determine whether the private
school or facility can initiate and
conduct an IEP Team meeting to review
and revise a child’s IEP.
Changes:
None.
Educational Placements (§ 300.327)
Comment:
A few commenters stated
that the terms ‘‘educational placement’’
and ‘‘placement’’ are used throughout
the regulations and recommended that
only one of the terms be used to avoid
confusion. A few commenters suggested
that the term ‘‘educational placement’’
be defined to include location, supports,
and services provided.
Discussion:
The terms ‘‘educational
placement’’ and ‘‘placement’’ are used
throughout the Act, and we have
followed the language of the Act
whenever possible. We do not believe it
is necessary to define ‘‘educational
placement.’’ Section 300.116, consistent
with section 612(a)(5) of the Act, states
that the determination of the
educational placement of a child with a
disability must be based on a child’s
IEP. The Department’s longstanding
position is that placement refers to the
provision of special education and
related services rather than a specific
place, such as a specific classroom or
specific school.
Changes:
None.
Alternative Means of Meeting
Participation (§ 300.328)
Comment:
One commenter requested
that electronic mail be used as an
alternative means of communication for
administrative matters if the parents and
the public agency agree.
Discussion:
There is nothing in the
Act or these regulations that prohibits
the use of electronic mail to carry out
administrative matters under section
615 of the Act, so long as the parent of
the child with a disability and the
public agency agree.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify that video conferences may be
used to allow general education teachers
to participate in IEP Team meetings.
Discussion:
The regulations already
address the use of video conferences.
Section 300.328, consistent with section
614(f) of the Act, allows the use of video
conferences and other alternative means
of meeting participation if the parent of
the child with a disability and the
public agency agree.
Changes:
None.
Comment:
One commenter
recommended that the regulations
specify that the cost of using alternative
means of meeting participation shall be
borne by the LEA and not the parent.
Discussion:
If a public agency uses an
alternative means of meeting
participation that results in additional
costs, the public agency is responsible
for paying the additional costs. We do
not believe it is necessary to include
this additional language in the
regulations. Section 300.101, consistent
with section 612(a)(1)(A) of the Act,
requires that the public education
provided to children with disabilities
must be free and appropriate. The
benefits of including parents in the IEP
process by providing alternative means
by which parents can participate is an
important part of ensuring that a child
receives FAPE and far outweighs any
additional costs for the alternative
means of participation that a public
agency may incur.
Changes:
None.
Comment:
A few commenters
recommended requiring the parent’s
agreement to use alternative means of
meeting participation to conform to the
consent requirements in § 300.9.
Discussion:
Section 614(f) of the Act
allows the parent and a public agency
to agree to use alternative means of
meeting participation.
Consent,
as
defined in § 300.9 is not required by the
Act. Therefore, we do not believe it
should be required by regulation.
Changes:
None.
Comment:
One commenter
recommended that there be additional
requirements when using alternative
means of meeting participation. The
commenter stated that parents should be
informed of their right to refuse a
telephone conference and should be
required to provide consent at least
seven days prior to the meeting.
Another commenter recommended
clarifying that alternative means of
meeting should only be used when
necessary.
Discussion:
Section 614(f) of the Act
allows a parent and a public agency to
agree to use alternative means of
meeting participation. The Act does not
specify any additional requirements or
restrictions. We view this provision as
providing flexibility for parents and
public agencies in arranging convenient
meetings and believe that additional
requirements would be inconsistent
with that purpose.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require LEAs to provide the parent with
an IEP in a timely manner (within five
business days) when alternative means
of meeting participation are used for an
IEP Team meeting. The commenter
stated this was necessary so that the
parent can verify the contents of the IEP.
Discussion:
New 300.322(f) (proposed
§ 300.322(e)) requires the public agency
to give the parent a copy of the child’s
IEP at no cost to the parent. We believe
the specific timeframe in which the
public agency provides a copy of the IEP
to the parent is best left to the public
agency to determine.
Changes:
None.
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Comment:
One commenter stated that
the requirements for alternative means
of meeting participation in § 300.328
should be placed in the regulations
following § 300.321, because the
requirements add flexibility to the
special education process.
Discussion:
The requirements in
§ 300.328, regarding alternative means
of meeting participation, apply to IEP
Team meetings as well as placement
meetings, and carrying out
administrative matters under section
615 of the Act. Therefore, it would not
be appropriate to move § 300.328 to the
location in the regulations suggested by
the commenter.
Changes:
None.
Subpart E—Procedural Safeguards
Due Process Procedures for Parents and
Children
Opportunity To Examine Records;
Parent Participation in Meetings
(§ 300.501)
Comment:
One commenter
recommended adding language in
§ 300.501(a) stating that parents have
the right to obtain a free copy of all
education records.
Discussion:
Section 300.501(a),
consistent with section 615(b)(1) of the
Act, affords parents an opportunity to
inspect and review all education records
with respect to the identification,
evaluation, and educational placement
of the child, and the provision of FAPE
to the child. Specific procedures for
access to records are contained in the
confidentiality provisions in §§ 300.613
through 300.621. A participating
agency, consistent with § 300.613(b)(2),
however, must provide copies of a
child’s education records to a parent, if
failure to do so would effectively
prevent a parent from exercising the
right to inspect and review the records,
such as if a parent lives outside of
commuting distance of the agency. This
provision is consistent with the access
rights afforded under FERPA in 34 CFR
99.10(d)(1).
We decline to make the change
requested by the commenter because
such a change would impose a
significant new burden on public
agencies that is not necessary. Public
agencies, however, are free to provide
copies whenever requested by the
parent, if they choose to do so. We have,
however, made a change to this section
to correct the cross-references to the
procedures for inspection and review of
records.
Changes:
We have corrected the cross-
references to the procedures for
inspection and review of records to
§§ 300.613 through 300.621.
Comment:
One commenter
recommended adding a provision to
§ 300.501 that would give parents the
opportunity to prepare their own reports
and provide information that would
become part of the child’s education
record.
Discussion:
The Act and these
regulations encourage parental input
and involvement in all aspects of a
child’s educational program, and
provide many opportunities for parents
to provide information that becomes
part of the child’s education record. For
example, § 300.304(a)(1), consistent
with section 614(b)(2)(A) of the Act,
requires any evaluation to include
information provided by the parent;
§ 300.305(a)(2), consistent with section
614(c)(1)(B) of the Act, requires the
review of existing data for evaluations
and reevaluations to include input from
the child’s parents; § 300.306(a)(1),
consistent with section 614(b)(4) of the
Act, requires the parent to be part of the
group that determines whether the child
is a child with a disability and the
educational needs of the child; and
§ 300.321(a)(1), consistent with section
614(d)(1)(B)(i) of the Act, requires the
IEP Team that is responsible for
developing, reviewing and revising the
child’s IEP to include the parent. In
addition, § 300.322(a) specifies the steps
a public agency must take to ensure that
one or both parents are present at the
IEP Team meeting and afforded the
opportunity to participate in the
meeting. Therefore, we do not believe
that it is necessary to regulate on this
issue. However, if a parent provides a
report for the child’s education record
and the public agency chooses to
maintain a copy of the written report,
that report becomes part of the child’s
education record and is subject to the
confidentiality of information
requirements in §§ 300.610 through
300.627, and FERPA and its
implementing regulations in 34 CFR
part 99.
Changes:
None.
Comment:
Many commenters
suggested adding language in
§ 300.501(b)(2) requiring the public
agency to take whatever action is
necessary to ensure that parents
understand the proceedings at any of
the meetings described in this section.
The commenters stated that this
requirement is not unnecessarily
duplicative and removing it gives the
impression that interpreters are no
longer required. Several commenters
recommended that if school staff
determines that a parent has difficulty
understanding the procedural
safeguards, the public agency must
explain the parent’s rights at any time
that a change in services is
contemplated.
Discussion:
It is not necessary to add
language to § 300.501(b)(2) to require a
public agency to take whatever action is
necessary to ensure that parents
understand the proceedings at any of
the meetings described in this section.
Public agencies are required by other
Federal statutes to take appropriate
actions to ensure that parents who
themselves have disabilities and limited
English proficient parents understand
proceedings at any of the meetings
described in this section. The other
Federal statutory provisions that apply
in this regard are Section 504 of the
Rehabilitation Act of 1973 and its
implementing regulations in 34 CFR
part 104 (prohibiting discrimination on
the basis of disability by recipients of
Federal financial assistance), title II of
the Americans With Disabilities Act and
its implementing regulations in 28 CFR
part 35 (prohibiting discrimination on
the basis of disability by public entities,
regardless of receipt of Federal funds),
and title VI of the Civil Rights Act of
1964 and its implementing regulations
in 34 CFR part 100 (prohibiting
discrimination on the basis of race,
color, or national origin by recipients of
Federal financial assistance).
As noted in the
Analysis of Comments
and Changes
section to subpart D, we
have retained the requirements in
current § 300.345(e), which require the
public agency to take whatever action is
necessary to ensure that the parent
understands the proceedings at an IEP
Team meeting, including arranging for
an interpreter for parents with deafness
or whose native language is other than
English. This requirement is in new
§ 300.322(e). We have also included a
cross reference to new § 300.322(e) in
§ 300.501(c)(2) to clarify that.
It is not necessary to include
regulations to require a public agency to
explain the procedural safeguards to
parents any time that a change in
services is contemplated. Section
300.503 already requires prior written
notice to be given to the parents of a
child with a disability a reasonable time
before the public agency proposes (or
refuses) to initiate or change the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child. As
required in § 300.503(b)(4), the prior
written notice must include a statement
that the parents have protections under
the procedural safeguards of this part.
Consistent with §§ 300.503(c) and
300.504(d), the prior written notice and
the procedural safeguards notice,
respectively, must be written in
language understandable to the general
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public and provided in the native
language or other mode of
communication of the parent, unless it
is clearly not feasible to do so. If the
native language or other mode of
communication of the parent is not a
written language, the public agency
must take steps to ensure that the notice
is translated orally or by other means to
the parent in his or her native language
or other mode of communication and
that the parent understands the content
of the notice.
Changes:
None.
Comment:
Several commenters stated
that § 300.501(b)(3) implies that
teaching methodologies and lesson
plans must be included in the IEP,
which exceeds the requirements of the
Act. The commenters recommended
removing ‘‘if those issues are not
addressed in the child’s IEP’’ from
§ 300.501(b)(3).
Discussion:
We agree that the phrase
referred to by the commenters is
confusing and open to misinterpretation
and are removing it from
§ 300.501(b)(3).
Changes:
We have removed the
phrase ‘‘if those issues are not addressed
in the child’s IEP’’ from § 300.501(b)(3)
for clarity.
Comment:
Many commenters
recommended requiring a public agency
to make several attempts to involve
parents in placement decisions and
requested that § 300.501 be changed to
require a public agency to maintain: (1)
Detailed records of telephone calls made
or attempted and the results of those
calls; (2) copies of correspondence sent
to parents and any responses received;
and (3) detailed records of visits made
to a parent’s home or place of
employment and the results of those
visits.
Discussion:
We do not believe the
additional language requested by the
commenters is necessary. Section
300.501(c)(4) requires a public agency to
maintain a record of its attempts to
contact parents prior to making a
placement decision without parent
participation. We believe this
requirement is sufficient to ensure that
a public agency holding a placement
meeting with neither parent in
attendance takes the necessary steps to
contact parents and maintain
appropriate documentation of its
attempts to ensure parent participation.
As a matter of practice, public agencies
use a variety of methods to contact
parents depending on the ways they
find to be most efficient and effective for
a particular situation. Public agencies
take seriously their obligation to include
parents in placement decisions and are
in the best position to determine the
records they need to demonstrate that
they have taken appropriate steps to
include parents in placement decisions
before holding a placement meeting
without a parent in attendance.
Changes:
None.
Comment:
A few commenters
recommended that placement meetings
not be held, or decisions made, without
a representative of the child. The
commenters recommended appointing a
surrogate parent when the biological or
adoptive parent refuses to attend, or is
unable to participate, in the placement
meeting.
Discussion:
There is no statutory
authority to permit the appointment of
a surrogate parent when a parent is
either unable or unwilling to attend a
meeting in which a decision is made
relating to a child’s educational
placement. In section 615(b)(2) of the
Act, a public agency does not have the
authority to appoint a surrogate parent
where a child’s parent is available or
can be identified and located after
reasonable efforts, but refuses, or is
unable, to attend a meeting or otherwise
represent the child.
Changes:
None.
Independent Educational Evaluation
(§ 300.502)
Comment:
One commenter suggested
adding language to § 300.502 requiring
evaluators who conduct independent
educational evaluations (IEEs) to be
licensed by the State.
Discussion:
We are not changing the
regulations in the manner requested by
the commenter because the regulations
already require that the standards be the
same for all evaluators, as long as the
agency’s criteria for evaluators do not
prohibit a parent from obtaining an IEE.
An IEE is defined in § 300.502(a)(3)(i) as
an evaluation conducted by a qualified
examiner who is not employed by the
public agency responsible for the
education of the child in question.
Section 300.502(e) provides that in
order for an IEE to be at public expense,
the criteria under which the evaluation
is obtained, including the location of the
evaluation and the qualifications of the
examiner, must be the same as the
criteria that the public agency uses
when it initiates an evaluation, to the
extent those criteria are consistent with
the parent’s right to an IEE. Except for
these criteria, § 300.502(e)(2) provides
that a public agency may not impose
conditions or timelines related to
obtaining an IEE at public expense.
Consistent with applicable agency
criteria, it would be appropriate for a
public agency to require an IEE
examiner to hold, or be eligible to hold,
a particular license when a public
agency requires the same licensure for
personnel who conduct the same types
of evaluations for the agency. In
contrast, it would be inconsistent with
a parent’s right to an IEE for a public
agency to require all evaluators to be
licensed, if only individuals employed
by a public agency may obtain a license.
Changes:
None.
Comment:
One commenter requested
clarification regarding parental rights to
an IEE when a public agency is using a
response to intervention process to
determine whether a child has SLD.
Discussion:
If a parent disagrees with
the results of a completed evaluation
that includes a review of the results of
a child’s response to intervention
process, the parent has a right to an IEE
at public expense, subject to the
conditions in § 300.502(b)(2) through
(b)(4). The parent, however, would not
have the right to obtain an IEE at public
expense before the public agency
completes its evaluation simply because
the parent disagrees with the public
agency’s decision to use data from a
child’s response to intervention as part
of its evaluation to determine if the
child is a child with a disability and the
educational needs of the child.
Changes:
None.
Comment:
One commenter requested
clarification regarding a public agency’s
right to limit the amount it pays for an
IEE and asked whether a public agency
can place limits on the frequency of an
IEE (e.g., a single IEE in an evaluation
cycle or in a child’s school career).
Discussion:
It is the Department’s
longstanding position that public
agencies should not be required to bear
the cost of unreasonably expensive IEEs.
This position is reflected in the
regulatory provisions. Section
300.502(a)(2) provides that if a parent
requests an IEE at public expense, the
public agency must provide the parent
with information about where an IEE
may be obtained and the agency criteria
applicable for IEEs. In order for an
evaluation to be at public expense,
§ 300.502(e)(1) requires that the criteria
under which an IEE is obtained,
including the location of the IEE and the
qualifications of the examiner, be the
same as the criteria that the public
agency uses when it initiates an
evaluation, to the extent that those
criteria are consistent with a parent’s
right to an IEE. In addition,
§ 300.502(e)(2) states that, except for the
criteria described above, a public agency
may not impose conditions or timelines
related to obtaining an IEE at public
expense.
Although it is appropriate for a public
agency to establish reasonable cost
containment criteria applicable to
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personnel used by the agency, as well as
to personnel used by parents, a public
agency would need to provide a parent
the opportunity to demonstrate that
unique circumstances justify selection
of an evaluator whose fees fall outside
the agency’s cost containment criteria.
Section 300.502(b)(2) provides that if
the parent requests an IEE at public
expense, the public agency either must
ensure that the IEE is provided at public
expense or file a due process complaint
notice to request a hearing to
demonstrate that the agency’s
evaluation is appropriate.
We do not, however, believe that the
parent should be limited to one IEE at
public expense in a child’s school
career. In the school career of a child,
there could be more than one point
when there is a legitimate disagreement
between a parent and the public agency
over evaluations of the child.
Nevertheless, we do believe that it is
important to clarify that a parent is not
entitled to more than one IEE at public
expense when the parent disagrees with
a specific evaluation or reevaluation
conducted or obtained by the public
agency. Therefore, we are adding a new
paragraph (b)(5) in § 300.502 to clarify
that a parent is entitled to only one IEE
each time the public agency conducts an
evaluation with which the parent
disagrees. This regulatory provision is
consistent with a parent’s statutory right
to an IEE at public expense, while
recognizing that public agencies should
not be required to bear the cost of more
than one IEE when a parent disagrees
with an evaluation conducted or
obtained by the public agency.
Changes:
We have added a new
paragraph (b)(5) in § 300.502 to clarify
that a parent is entitled to only one IEE
at public expense each time the public
agency conducts an evaluation with
which the parent disagrees.
Comment:
Some commenters
suggested adding language allowing an
evaluator conducting an IEE the
opportunity to review existing data,
receive input from the child’s parents,
determine what additional data are
needed to determine the scope of the
evaluation, and select the instruments
appropriate to evaluate the child. The
commenters also stated that the public
agency should not restrict the scope of
the evaluation.
Discussion:
We do not believe it is
necessary to add language to the
regulations regarding the review of
existing data, input from the child’s
parents, the scope of the evaluation, or
the instruments used to evaluate the
child, because an IEE must meet the
agency criteria that the public agency
uses when it initiates an evaluation,
consistent with § 300.502(e).
Section 300.305(a) provides that, as
part of an initial evaluation (if
appropriate) and as part of any
reevaluation under this part, the IEP
Team and other qualified professionals,
as appropriate, must review existing
evaluation data on the child, including
input from the child’s parents. Since the
review of existing evaluation data and
input from the child’s parents are part
of the public agency’s evaluation, they
would also be appropriate elements in
an IEE.
Similarly, § 300.304(b)(1) provides
that an evaluation conducted by a
public agency must use a variety of
assessment tools and strategies to gather
relevant functional, developmental, and
academic information about the child,
including information provided by the
parent, that may assist in determining
whether the child is a child with a
disability under § 300.8, and the content
of the child’s IEP, including information
related to enabling the child to be
involved in and progress in the general
education curriculum (or for a preschool
child to participate in appropriate
activities). These requirements also
apply to an IEE conducted by an
independent evaluator, since these
requirements will be a part of the
agency’s criteria.
Generally, the purpose of an
evaluation under the Act is to determine
whether the child is a child with a
disability, and in the case of a
reevaluation, whether the child
continues to have a disability, and the
educational needs of the child. It would
be inconsistent with the Act for a public
agency to limit the scope of an IEE in
a way that would prevent an
independent evaluator from fulfilling
these purposes.
Changes:
None.
Comment:
Some commenters
recommended adding language to the
regulations requiring a parent to provide
consent for release of education records
when a hearing officer orders an LEA to
provide an IEE at public expense.
Discussion:
Consistent with
§ 300.622(b), parental consent is not
required for a public agency to release
education records to a hearing officer
because a hearing officer is an official of
a participating agency, as defined in
§ 300.611(c). However, when a hearing
officer orders an IEE, parental consent
would be required under § 300.622(a)
for a public agency to release education
records to the independent evaluator
who will conduct the IEE, since in these
situations, the independent evaluator is
not an official of a participating agency.
If a parent refuses to consent to the
release of education records to an
independent evaluator, a hearing officer
could decide to dismiss the complaint.
Therefore, we are not changing the
regulations in the manner suggested by
the commenter.
Changes:
None.
Comment:
A few commenters
requested clarification regarding what
an LEA must do to satisfy the
requirement in § 300.502(c)(1) that a
public agency consider the results of an
evaluation obtained by a parent at
private expense. The commenters stated
that public agencies often ignore the
results of an IEE and recommended
requiring public agencies to explain
why an IEE was rejected.
Discussion:
Section 300.502(c)(1)
imposes an affirmative obligation on a
public agency to consider the results of
a parent-initiated evaluation at private
expense in any decision regarding the
provision of FAPE to the child, if that
evaluation meets agency criteria. The
requirement, however, does not mean
that the public agency is compelled to
consider the parent-initiated evaluation
at private expense in its decision
regarding the provision of FAPE, if it
does not meet agency criteria. If the
agency believes that the parent-initiated
evaluation does not meet agency
criteria, it would be appropriate for the
agency to explain to the parent why it
believes that the parent-initiated
evaluation does not meet agency
criteria.
Changes:
None.
Comment:
Several commenters
indicated that permitting any party to
use the results from a privately-funded
IEE as evidence at a due process hearing
may discourage parents from initiating
and paying for evaluations of their
child.
Discussion:
If a parent obtains an
evaluation at private expense, there is
nothing in the Act or these regulations
that requires a parent to share that
evaluation with the public agency. A
privately-funded evaluation that is not
shared with a public agency would not
be considered an IEE under this
regulation. If, however, the parent
chooses to share the evaluation with the
public agency, that evaluation may be
presented by any party as evidence in a
due process hearing, in accordance with
§ 300.502(c)(2). Similarly, if a public
agency reimburses a parent for an IEE,
and the parent disagrees with the results
of the IEE, there is nothing in the Act
or these regulations that would prevent
a public agency from introducing that
evaluation in a due process hearing over
the parent’s objection. We disagree with
the commenters to the extent that they
believe that parents should have an
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expectation of privacy regarding an
evaluation that is publicly-funded or for
which they seek public funding. We
believe it is necessary to change
§ 300.502(c)(2) to ensure that public
agencies have the opportunity to
introduce the results of publicly-funded
IEEs at due process hearings.
Changes:
We have added language in
§ 300.502(c) to permit any party to
present the results of a publicly-funded
IEE. We have also clarified that if a
parent shares a privately-funded IEE
with the public agency, the privately-
funded IEE may be used as evidence in
a due process hearing.
Comment:
One commenter
recommended that the regulations
prohibit the testimony of experts who
did not evaluate the child before the due
process hearing, unless the other party
has an equal opportunity to evaluate the
child at public expense, both parties
consent to such testimony, or the
hearing officer or judge orders the
evaluation.
Discussion:
It would be inappropriate
to regulate in the manner recommended
by the commenter. Such determinations
are made on a case-by-case basis in light
of the specific facts of each case at the
discretion of the hearing officer. We
believe that the hearing officer, as the
designated trier of fact under the Act, is
in the best position to determine
whether expert testimony should be
admitted and what weight, if any,
should be accorded that expert
testimony. We would expect that these
decisions will be governed by
commonly applied State evidentiary
standards, such as whether the
testimony is relevant, reliable, and
based on sufficient facts and data.
Changes:
None.
Prior Notice by the Public Agency;
Content of Notice (§ 300.503)
Comment:
One commenter stated that
the prior written notice be given to
parents as soon as possible, but no later
than 15 days before the public agency
proposes to initiate or refuse a change.
Another commenter recommended
requiring IEP Teams to carefully
consider all the data and options before
making a decision to change a child’s
placement or refuse the parent’s request
for services.
Discussion:
Section 300.503(a)
incorporates section 615(b)(3) of the Act
and requires a public agency to provide
parents with written notice that meets
the requirements in § 300.503(b) a
reasonable time before the public
agency proposes or refuses to initiate or
change the identification, evaluation, or
educational placement of the child, or
the provision of FAPE to the child. We
do not believe that it is necessary to
substitute a specific timeline to clarify
what is meant by the requirement that
the notice be provided within a
reasonable period of time, because we
are not aware of significant problems in
the timing of prior written notices. In
addition, prior written notice is
provided in a wide variety of
circumstances for which any one
timeline would be too rigid and, in
many cases, might prove unworkable.
We do not believe that it is necessary
to add a requirement that IEP Teams
carefully consider all the data and
options before making a decision to
change a child’s placement or refuse the
parent’s request for services. Section
300.306(c) already requires the group of
professionals and the parent of the child
to carefully consider information from a
variety of sources before determining a
child’s eligibility and placement.
Furthermore, the requirements for
developing, reviewing, and revising a
child’s IEP in § 300.324, ensure that IEP
Teams carefully consider all available
information in developing an IEP,
including information from the child’s
parents.
Changes:
None.
Comment:
One commenter suggested
permitting the prior written notice to be
the IEP itself, rather than requiring a
separate document.
Discussion:
There is nothing in the
Act or these regulations that would
prohibit a public agency from using the
IEP as part of the prior written notice so
long as the document(s) the parent
receives meet all the requirements in
§ 300.503.
Changes:
None.
Comment:
One commenter asked how
a parent would know that the public
agency is refusing to initiate or change
the identification, evaluation, or
placement of a child without an IEP
Team meeting. Another commenter
stated that prior written notice should
be provided in advance of an IEP Team
meeting, not at the IEP Team meeting,
so that parents could prepare for the
meeting. The commenter suggested
adding language to the regulations
requiring that the notice be given a
reasonable time before an IEP Team
meeting.
Discussion:
The commenter confuses
the Act’s prior written notice
requirements with the requirements
governing IEP Team meetings. Section
300.503(a), consistent with section
615(b)(3) of the Act, requires prior
written notice whenever a public agency
proposes to initiate or change (or refuses
to initiate or change) the identification,
evaluation, or educational placement of
a child, or the provision of FAPE to a
child. A public agency meets the
requirements in § 300.503 so long as the
prior written notice is provided a
reasonable time before the public
agency implements the proposal (or
refusal) described in the notice. A
public agency is not required to convene
an IEP Team meeting before it proposes
a change in the identification,
evaluation, or educational placement of
the child, or the provision of FAPE to
the child. The proposal, however,
triggers the obligation to convene an IEP
Team meeting. Providing prior written
notice in advance of meetings could
suggest, in some circumstances, that the
public agency’s proposal was
improperly arrived at before the meeting
and without parent input. Therefore, we
are not changing § 300.503 to require the
prior written notice to be provided prior
to an IEP Team meeting.
Changes:
None.
Comment:
A few commenters
recommended retaining current
§ 300.503(a)(2), which provides that if
the prior written notice relates to an
action that also requires parental
consent, the agency may give notice at
the same time it requests parental
consent.
Discussion:
It is not necessary to
explain in the regulations that prior
written notice can be provided at the
same time as parental consent is
requested, because parental consent
cannot be obtained without the requisite
prior written notice. The removal of this
regulatory provision, however, is not
intended to prohibit a public agency
from giving prior written notice at the
same time that parental consent is
sought, should the agency choose to do
so.
Changes:
None.
Comment:
One commenter asked that
the public agency be required to provide
a description of all the proposals made
by anyone on the IEP Team and the
reasons why one proposal was chosen
over another.
Discussion:
Section 300.503(b)(1) and
(b)(2) require the prior written notice to
include a description of the action
proposed or refused by the agency and
an explanation of why the agency
proposes or refuses to take the action.
We do not believe that the change
suggested by the commenter is needed
because § 300.503(b)(6) and (b)(7)
already require that the prior written
notice include a description of the other
options that the IEP Team considered,
the reasons why those options were
rejected, and a description of other
factors that are relevant to the agency’s
proposal or refusal.
Changes:
None.
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Comment:
One commenter suggested
requiring the SEA to provide a list of
resources for parents to obtain
assistance in understanding the
requirements of the Act, including
providing easy access to the information
on the State’s Web site.
Discussion:
Section 300.503(b)(5),
consistent with section 615(c)(1)(D) of
the Act, already requires the prior
written notice to include sources for
parents to contact to obtain assistance in
understanding the provisions of this
part. The Department believes that
parents should have easy access to
information regarding resources to
understand the provisions of the Act.
For many parents, this may include
accessing such information on the
State’s Web site. Each State is in the best
position to determine whether including
this information on its Web site would
be helpful for parents. Therefore, we
decline to add this requirement to the
regulations.
Changes:
None.
Comment:
One commenter
recommended removing § 300.503(c)(2),
regarding the public agency’s
responsibilities when the parent’s native
language or other mode of
communication is not a written
language. The commenter
recommended, instead, requiring a
public agency to use procedures that
involve little or no cost. One commenter
stated that § 300.503(c)(2) should be
removed because all but paragraph
(c)(2)(ii), regarding ensuring that the
parent understands the content of the
prior written notice, exceed statutory
requirements.
Discussion:
For parents whose mode
of communication is not a written
language, § 300.503(c)(2) requires the
public agency to ensure that the notice
is translated orally or by other means to
the parent and that the parent
understands the content of the notice.
We decline to remove § 300.503(c)
because we believe that these rights, as
well as the other rights enumerated in
§ 300.503(c), are essential to ensure that
public agencies provide all parents the
requisite prior written notice in a
meaningful and understandable manner.
Changes:
None.
Procedural Safeguards Notice
(§ 300.504)
Comment:
Many comments were
received regarding when the procedural
safeguards notice must be provided to
parents. One commenter stated that
these requirements add paperwork and
procedural burdens. Several
commenters expressed concern that
parents will have knowledge of their
procedural safeguards only when they
file a State complaint or request a due
process hearing. Some commenters
recommended deleting the requirement
in § 300.504(a)(2) for the public agency
to give parents the procedural
safeguards notice upon receipt of the
first State complaint or due process
hearing in the school year. Other
commenters suggested amending
§ 300.504(a)(2) to require that the
procedural safeguards notice be
provided to parents upon receipt of the
first due process complaint in that
school year. Some commenters asked
whether parents would receive a copy of
the procedural safeguards notice only
upon the first filing of a State complaint
or a due process complaint, but not
twice, if a parent submits a complaint
and also a request for a due process
hearing in the same school year.
One commenter was concerned that
the parents of a child with a disability
who transfers into a new school will not
be notified of their procedural rights in
a timely manner.
Discussion:
Section 300.504(a) reflects
the new statutory language in section
615(d)(1) of the Act, regarding the
timing of the procedural safeguards
notice. Section 300.504(a)(1) and (4),
consistent with section 615(d)(1)(A) of
the Act, states that a copy of the
procedural safeguards must be given to
parents one time a year, except that a
copy must also be given to parents upon
initial referral or parent request for
evaluation; upon receipt of the first
State complaint and due process
complaint in that school year; and upon
request by a parent. There is no longer
a requirement that the procedural
safeguards notice be given to parents
upon notification of each IEP Team
meeting, as in current § 300.504(a).
We disagree that § 300.504(a)(2)
should be removed. The Department
intends for parents to receive a copy of
the procedural safeguards notice upon
receipt of the first State complaint under
§§ 300.151 through 300.153 and upon
receipt of the first due process
complaint under § 300.507 in a school
year because we believe that parents
particularly need a clear understanding
of their rights when they embark on
these processes and might not have
available copies of the procedural
safeguards notice provided earlier in the
year, or the notice they previously
received may be outdated. We are
changing § 300.504(a)(2) to make this
clear. We also are changing § 300.504(a)
to specify that the statutory phrase ‘‘one
time a year’’ refers to ‘‘one time a school
year.’’
Regarding the concern that a parent
whose child transfers to a new school
district might not receive appropriate
notice of the Act’s procedural
safeguards, we do not believe that
additional clarification is necessary. We
believe that these regulatory provisions
are sufficient to ensure that the parent
of a child who changes school districts
receives the requisite notice in a timely
manner. When the child with a
disability transfers to a new school
district, that school district would have
an obligation to ensure that the child’s
parents are provided notice at least once
in that school year and at the other
times specified in § 300.504(a).
We believe that the requirements in
§ 300.504(a) are necessary to ensure that
parents have information about the due
process procedures when they are most
likely to need them and do not view
these requirements as unduly
burdensome.
Changes:
Section 300.504(a)(2) has
been changed to require public agencies
to provide parents with a copy of the
procedural safeguards notice upon
receipt of the first State complaint under
§§ 300.151 through 300.153 in a school
year and upon receipt of the first due
process complaint under § 300.507 in a
school year. We have also changed
paragraph (a) in § 300.504 to clarify that
the statutory phrase ‘‘one time a year’’
refers to a ‘‘school’’ year.
Comment:
Several commenters
recommended that the procedural
safeguards notice be given to parents
when a decision has been made to take
disciplinary action. Another commenter
recommended that the procedural
safeguards notice be given at the time a
manifestation determination is
reviewed.
Discussion:
Section 615(k)(1)(H) of the
Act requires public agencies to provide
parents with a copy of the procedural
safeguards notice not later than the date
on which the decision to take
disciplinary action is made. Therefore,
we are adding this requirement in
§ 300.504(a). We will not add a
requirement for public agencies to
provide parents with a copy of the
procedural safeguards notice following
the manifestation determination
conducted under § 300.530(e), because
it would be unnecessarily duplicative to
require a procedural safeguards notice
to be provided both prior to and after a
decision to take disciplinary action has
been made.
Changes:
A new paragraph (3) has
been added in § 300.504(a) to require
the procedural safeguards notice to be
provided to parents in accordance with
the discipline procedures in
§ 300.530(h). The subsequent paragraph
has been renumbered, consistent with
this change.
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Comment:
Some commenters
requested that public agencies inform
parents when the procedural safeguards
notice has been revised, so that parents
can request the updated version.
Discussion:
Section 300.504(c),
consistent with section 615(d) of the
Act, lists the required contents of the
procedural safeguards notice. If these
requirements change because of changes
made to the Act, public agencies would
be required to change their procedural
safeguards notice accordingly. Such
changes, along with any additional
changes to a State’s rules, would be
subject to the public participation
requirements in § 300.165 and section
612(a)(19) of the Act.
Changes:
None.
Comment:
One commenter
recommended requiring that the
procedural safeguards notice include a
parent’s right to request the credentials
of any teacher who supports the child
in the educational environment, as well
as documentation regarding the type of
supervision provided for any teacher
who is supervised by a highly qualified
teacher.
Discussion:
The content of the
procedural safeguards notice is based on
the items listed in section 615(d)(2) of
the Act, which do not include providing
information about teachers’ credentials
and personnel qualifications in a
procedural safeguards notice, as
requested by the commenter. Nor is
there any requirement elsewhere in the
Act for public agencies to provide
information about teachers’ credentials
and personnel qualifications.
Section 1111(h)(6) of the ESEA,
however, requires LEAs to inform
parents about the quality of a school’s
teachers in title I schools. Under the
ESEA, an LEA that accepts title I, part
A funding must notify parents of
students in title I schools that they can
request information regarding their
child’s teacher, including, at a
minimum: (1) whether the teacher has
met State requirements for licensure and
certification for the grade level(s) and
subject-matter(s) in which the teacher
provides instruction; (2) whether the
teacher is teaching under emergency or
other provisional status through which
State qualification or licensing criteria
has been waived; (3) the college major
and any other graduate certifications or
degrees held by the teacher, and the
field of discipline of the certifications or
degrees; and (4) whether the child is
provided services by paraprofessionals,
and if so, their qualifications. In
addition, each title I school must
provide each parent timely notice that
the parent’s child has been assigned, or
has been taught for four or more
consecutive weeks, by a teacher who is
not highly qualified. These
requirements also apply to special
education teachers who teach core
academic subjects in title I schools.
Changes:
None.
Comment:
Numerous commenters
expressed concern with allowing LEAs
to post the procedural safeguards notice
on the school’s Web site. Several
commenters asked whether directing a
parent to the Web site constitutes
distribution of the notice under the Act.
One commenter suggested adding
specific language to the regulations
stating that posting the notice on the
school Web site does not replace other
Part B requirements regarding
distribution of the notice.
Discussion:
Section 300.504(b),
incorporates section 615(d)(1)(B) of the
Act, and permits, but does not require,
a public agency to post a current copy
of the procedural safeguards notice on
its Web site, if one exists. The public
agency would not meet its obligation in
§ 300.504(a) by simply directing a
parent to the Web site. Rather, a public
agency must still offer parents a printed
copy of the procedural safeguards
notice. If, however, a parent declines the
offered printed copy of the notice and
indicates a clear preference to obtain the
notice electronically on their own from
the agency’s Web site, it would be
reasonable for the public agency to
document that it offered a printed copy
of the notice that the parent declined.
Posting the procedural safeguards notice
on a public agency’s Web site is clearly
optional and for the convenience of the
public and does not replace the
distribution requirements in the Act. We
do not believe it is necessary to add a
regulation to clarify this.
Changes:
None.
Comment:
None.
Discussion:
As noted in the
Analysis
of Comments and Changes
section for
subpart B, § 300.152(c)(1) has been
amended to require that States set aside
any part of a State complaint filed under
§§ 300.151 through 300.153 that is being
addressed in a due process hearing until
the conclusion of the hearing, and
resolve any issue that is not a part of the
due process hearing decision within the
60-day timeline for State complaints
(unless the timeline is extended,
consistent with § 300.152(b)). This
change was made to address those
limited occasions when a parent files
both a State complaint and a due
process hearing on the same or similar
issues. While the Department does not
encourage the dual filing of complaints,
we are aware that this occasionally
occurs and it is important for the
regulations to be clear as to how such
situations should be handled. In light of
this change, we are amending the
requirement in § 300.504(c)(5),
regarding the contents of the procedural
safeguards notice, to inform parents of
the opportunity to present and resolve
complaints through the due process
complaint and the State complaint
procedures.
Changes:
We have removed the ‘‘or’’
in § 300.504(c)(5) and replaced it with
‘‘and’’ to require that the procedural
safeguards notice include a full
explanation of the opportunity to
present and resolve complaints through
the due process complaint and the State
complaint procedures.
Comment:
None.
Discussion:
We are aware of the fact
that over the years there has been much
confusion about exactly what must be
included in the procedural safeguards
notice. To help clear up this confusion,
the Department is publishing a model
procedural safeguards notice on its Web
site today in accordance with section
617(e) of the Act. In addition to making
this model procedural safeguards notice
available on the Department’s Web site,
we also are amending the cross-
references in § 300.504(c) to identify the
specific regulatory provisions that
include procedural safeguards for which
an explanation must be provided in the
procedural safeguards notice.
Changes:
We have revised the cross-
references to specific regulatory sections
in the introductory paragraph of
§ 300.504(c), consistent with the content
listed in § 300.504(c)(1) through (13).
Comment:
A few commenters asked
that the regulations require a State to
develop its procedural safeguards notice
with the State’s PTIs and CPRCs to
ensure that it is appropriate for parents.
One commenter recommended
including contact information for PTIs
and CPRCs in the notice.
Discussion:
Section 300.165 and
section 612(a)(19) of the Act require
each State to ensure that there are
public hearings, adequate notice of the
hearings, and an opportunity for
comment available to the general public,
including individuals with disabilities
and parents of children with
disabilities, prior to adopting any
policies and procedures to comply with
Part B of the Act. There is nothing in the
Act or these regulations that would
prevent a public agency from consulting
representatives of PTIs, CPRCs, or other
advocacy organizations for assistance in
developing the procedural safeguards
notice so that it is appropriate for
parents and the general public.
It would be unnecessarily prescriptive
to require States to consult with
representatives from particular
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organizations in developing their
procedural safeguards notice or to
require that a State’s procedural
safeguards notice include contact
information for particular organizations.
We believe that such decisions are best
left to States.
Changes:
None.
Comment:
Several commenters
suggested requiring the procedural
safeguards notice to explain how a
resolution meeting works and the
responsibilities of parents who
participate in a resolution meeting.
Some commenters recommended
requiring public agencies to inform
parents in writing about the differences
between mediation and resolution
meetings including the differences in
confidentiality rules; whether attorneys’
fees may be reimbursed; the effect of
resolution and mediation sessions on
due process hearing timelines; and the
requirements governing the execution of
resolution and mediation agreements.
Discussion:
Section 300.504(c)(6),
consistent with section 615(d)(2)(E)(iii)
of the Act, requires the procedural
safeguards notice to include a full
explanation regarding the availability of
mediation to resolve complaints. In
addition, § 300.504(c)(5) requires the
procedural safeguards notice to provide
a full explanation of the opportunity for
parents to present and resolve
complaints through the due process
complaint and State complaint
procedures, including the time period in
which to file a complaint, the
opportunity for the agency to resolve the
complaint, and the differences between
the due process complaint and the State
complaint procedures, including the
jurisdiction of each procedure, what
issues may be raised, filing and
decisional timelines, and relevant
procedures. Because resolution
meetings are part of the due process
procedures, consistent with § 300.510
and section 615(f)(1)(B) of the Act, the
explanation of due process procedures
would necessarily include information
about how the resolution meeting works
and the responsibilities of the parties in
the resolution meeting.
We do not believe it is necessary to
require the procedural safeguards notice
to explain the differences between
mediation and resolution meetings
because the differences will be apparent
from the clear explanations of the
respective procedures that are already
required in the notice. However, there is
nothing in the Act or these regulations
that would prohibit a State from
describing the differences between
mediation and resolution meetings in its
procedural safeguards notice, if it chose
to do so.
Changes:
None.
Comment:
Several commenters
requested clarification regarding the
differences between the State complaint
and due process complaint procedures
that are required to be included in the
procedural safeguards notice. Some
commenters requested clarification
regarding the meaning of the phrases
‘‘jurisdiction of each procedure’’ and
‘‘what issues may be raised’’ in State
complaints versus due process
complaints.
Discussion:
It is important for public
agencies to include an explanation of
the State complaint procedures in
§§ 300.151 through 300.153 and the due
process complaint procedures in
§ 300.507 in the procedural safeguards
notice to assist parents in understanding
the differences between these
procedures. The reference to
‘‘jurisdictional issues’’ addresses the
scope of the State complaint and due
process complaint procedures. An
organization or individual may file a
State complaint under §§ 300.151
through 300.153 alleging that a public
agency has violated a requirement of the
Act for a violation that occurred not
more than one year prior to the date on
which the complaint is received, unless
one of the exceptions in § 300.153(c) is
applicable. The Department’s
longstanding position is that a State
must resolve any complaint, and may
not remove from the jurisdiction of its
State complaint procedures complaints
regarding the identification, evaluation,
or educational placement of the child,
or the provision of FAPE to the child
simply because those issues also could
be the subject of a due process
complaint. We view the State complaint
procedures as a very important tool in
a State’s exercise of its general
supervision responsibilities, consistent
with sections 612(a)(11) and 616(a) of
the Act, to monitor LEA implementation
of the requirements in Part B of the Act.
These responsibilities extend to both
systemic and child-specific issues.
A parent or a public agency may file
a due process complaint under
§ 300.507 on any matter relating to the
identification, evaluation, or
educational placement of the child, or
the provision of FAPE to such child for
an alleged violation that occurred not
more than two years (or, within the
timeframe established by the State)
before the date the parent or public
agency knew or should have known
about the alleged action that forms the
basis of the complaint.
Changes:
None.
Electronic Mail (§ 300.505)
Comment:
One commenter requested
that the regulations clarify that a parent
who elects to receive notices by
electronic mail must do so in writing.
Discussion:
Section 300.505, which
incorporates section 615(n) of the Act,
permits public agencies to make the
electronic mail option available for
notices required in section 615 of the
Act, including the prior written notice,
procedural safeguards notice, and due
process complaint notice. It would be an
unnecessary paperwork burden to
require a parent who elects to receive
notices by electronic mail to do so in
writing, particularly when there are
other methods available to document
such a request, for example, by the LEA
making a notation of the parent’s verbal
request. We believe public agencies
should have the flexibility to determine
whether and how to document that a
parent elects to receive these notices by
electronic mail.
Changes:
None.
Mediation (§ 300.506)
Comment:
Several commenters stated
that the S. Rpt. No. 108–185 expressed
Congressional intent for a hearing
officer to have the same plenary power
over a due process hearing as a Federal
or State judge. The commenters,
therefore, recommended permitting a
hearing officer to require mediation.
Discussion:
Section 300.506(a)
incorporates section 615(e)(1) of the Act
and requires public agencies to establish
and implement procedures to allow
parties to resolve disputes involving any
matter under Part B of the Act,
including matters arising prior to the
filing of a due process complaint, to
resolve disputes through a mediation
process. Section 615(e)(2)(A)(i) of the
Act requires the public agency to
ensure, among other things, that the
mediation process is voluntary on the
part of the parties. In light of these
explicit statutory requirements, we do
not believe that a hearing officer can
order that the parties to a due process
complaint engage in mediation.
Changes:
None.
Comment:
One commenter suggested
that the regulations include language to
ensure that the mediation process is not
used to deny or delay a parent’s right to
have a State complaint investigated.
Discussion:
We do not believe that
additional language is necessary to
address the commenter’s concern.
Section 300.506(a) requires each public
agency to ensure that procedures are
established and implemented to allow
parties to resolve disputes involving any
matter under Part B of the Act,
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including matters arising prior to the
filing of a due process complaint, to
resolve disputes through mediation. We
believe that parties could use mediation
prior to, or after, filing a State
complaint.
Section 300.506(b)(1)(ii), consistent
with section 615(e)(2)(A)(ii) of the Act,
is clear that mediation cannot be used
to deny or delay a parent’s right to a
hearing on the parent’s due process
complaint, or to deny other rights
afforded under Part B of the Act. ‘‘Other
rights under Part B of the Act’’ include
a parent’s right to file a State complaint
and to have that complaint resolved
within applicable timelines. If the
parties involved voluntarily wish to
engage in mediation once the complaint
is filed, and the mediation is not
successful in resolving the dispute, the
entity responsible for resolving the
complaint at the State level must ensure
that the complaint is resolved within
the applicable timelines in § 300.152.
Mediation is not an exceptional
circumstance that would justify
extension of the 60-day timeline for
issuing the final decision in a State
complaint, unless the parties agree
otherwise. However, as provided in
§ 300.152(b)(1)(ii), the parent and the
public agency involved can agree to
extend the time limit to engage in
mediation to resolve the complaint.
Changes:
None.
Comment:
One commenter
recommended allowing parties in a
dispute to engage in mediation and have
the mediator facilitate the IEP Team
meeting to incorporate the terms of the
mediation agreement into the child’s
IEP.
Discussion:
Although not required by
the Act, there is nothing in the Act that
would prohibit the parties in a dispute
to agree during mediation to have the
mediator facilitate an IEP Team meeting
and to incorporate the terms of the
mediation agreement into the child’s
IEP.
Changes:
None.
Comment:
Some commenters
suggested defining ‘‘effective mediation
techniques’’ as techniques recognized
by any State or national accreditation or
professional mediation association. The
commenters also recommended
requiring a formal training and
certification process for mediators,
which is created and paid for by the
SEA.
Discussion:
We decline to define
‘‘effective mediation techniques’’ in the
manner suggested by the commenters.
States have used a number of successful
techniques over the years to resolve
disputes between parents and public
agencies, and we do not want to restrict
a State’s discretion by providing a
particular definition. Whether formal
training and certification for mediators
is required is a decision best left to each
State, depending on State policy.
Changes:
None.
Comment:
A few commenters
recommended requiring mediators to be
unbiased and knowledgeable in laws,
regulations, and best practices related to
children with disabilities. Some
commenters recommended requiring the
list of mediators to include information
on the mediator’s qualifications. Other
commenters recommended that the list
of mediators and their qualifications be
provided to parents and the public.
Discussion:
We do not believe
additional regulations regarding the
qualifications of mediators are
necessary. Section 300.506(b)(3),
consistent with section 615(e)(2)(C) of
the Act, requires States to maintain a list
of individuals who are qualified
mediators and knowledgeable in the
laws and regulations relating to the
provision of special education and
related services. In addition,
§ 300.506(c)(1)(ii) requires impartial
mediators who do not have a personal
or professional interest that would
conflict with the person’s objectivity.
Parents do not select the mediator to
mediate a particular case. Rather,
§ 300.506(b)(3)(ii) requires that the
process for selecting mediators be
impartial. Therefore, we do not believe
that public agencies should be required
to provide the list of mediators and their
qualifications to parents and the public.
However, there is nothing in the Act
that would prohibit a State from making
this information available to parents and
the public, if it chooses to do so.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify whether the public agency is
required to offer parents who choose not
to use the mediation process an
opportunity to meet with a disinterested
party.
Discussion:
We believe the regulations
are clear. Section 300.506(b)(2),
consistent with section 615(e)(2)(B) of
the Act, states that a public agency may
establish procedures to offer parents and
schools that choose not to use
mediation, an opportunity to meet with
a disinterested party who would explain
the benefits of, and encourage the use
of, mediation. Therefore, States may
establish such procedures, but are not
required to do so. No further
clarification is necessary.
Changes:
None.
Comment:
One commenter objected to
the requirement in § 300.506(b)(3)(ii)
that States select mediators on a
random, rotational, or other impartial
basis, and requested retaining current
§ 300.506(b)(2)(ii), which permits the
parties to agree on a mediator when the
mediator is not selected on a random
basis.
Discussion:
Section 300.506(b)(3)(ii)
replaces current § 300.506(b)(2)(ii) and
requires the State to select mediators on
a random, rotational, or other impartial
basis. These provisions are sufficient to
ensure that the selection of the mediator
is not biased, while providing SEAs
additional flexibility in selecting
mediators. Selecting mediators on an
impartial basis would include
permitting the parties involved in a
dispute to agree on a mediator.
Changes:
None.
Comment:
One commenter requested
a definition of ‘‘timely manner’’ in
§ 300.506(b)(5), regarding the
scheduling of mediation sessions.
Discussion:
Section 300.506(b)(5)
incorporates section 615(e)(2)(E) of the
Act and requires that the scheduling of
each session in the mediation process be
completed in a timely manner. It is not
necessary to define ‘‘timely manner’’
because this requirement must be read
consistent with the State’s responsibility
to ensure that the mediation process
does not operate to deny or delay a
parent’s right to a hearing on a due
process complaint, or to deny other
rights afforded under Part B of the Act.
Changes:
None.
Comment:
Many commenters stated
that mediation discussions should
remain confidential and not be used in
any subsequent due process hearings or
proceedings. The commenters
recommended that the phrase ‘‘arising
from that dispute’’ in § 300.506(b)(6)(i)
and § 300.506(b)(8) be removed. The
commenters viewed these provisions as
permitting confidentiality to apply only
to the current issue in dispute, and not
in other subsequent actions. Some
commenters expressed concern that
mediation could be used as ‘‘discovery’’
for some future dispute between parties,
or for a simultaneous dispute between
the same public agency and some other
children, or disputes involving the same
lawyers but different parties.
Discussion:
We agree with the
commenters that the phrase ‘‘arising
from that dispute’’ should be removed
in § 300.506(b)(6)(i) or § 300.506(b)(8).
We believe that it is important to
preserve the integrity of the mediation
process to ensure that mediation
discussions remain confidential and not
be used in subsequent due process
hearings or civil proceedings. To ensure
that we do not interfere with the
evidentiary privilege laws of States that
might not participate in the Part B
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program (a possibility, but not a current
actuality), we are adding new language
that limits the confidentiality provision
to apply to due process hearings and
proceedings in any Federal court and
any State court of a State participating
in Part B of the Act.
Changes:
We have removed the
phrase ‘‘arising from that dispute’’ from
§ 300.506(b)(6)(i). We also have removed
the phrase ‘‘proceedings arising from
that dispute’’ and replaced it with
‘‘proceeding of any Federal court or
State court of a State receiving
assistance under this part’’ from
§ 300.506(b)(8).
Comment:
None.
Discussion:
Following the publication
of the NPRM, the Department
reconsidered the subject of
confidentiality pledges prior to the
commencement of mediation. Section
300.506(b)(9) was included in the
NPRM in light of note 208 of Conf. Rpt.
No. 108–779, p. 216, which indicates
the Conference committee’s intention
that parties could be required to sign
confidentiality pledges prior to the
commencement of mediation, without
regard to whether the mediation
ultimately resolves the dispute.
However, § 300.506(b)(8), already
requires that discussions that occur
during the mediation process be
confidential and not be used as
evidence in any subsequent due process
hearing or civil proceeding. Therefore,
we are removing § 300.506(b)(9).
Removing § 300.506(b)(9), however, is
not intended to prevent States from
allowing parties to sign a confidentiality
pledge to ensure that discussions during
the mediation process remain
confidential, irrespective of whether the
mediation results in a resolution.
Changes:
Paragraph (b)(9) in § 300.506
has been removed.
Comment:
A few commenters
expressed concern regarding the
requirement in § 300.506(c)(1)(ii) that
mediators must not have a personal or
professional interest that conflicts with
‘‘the person’s objectivity.’’ The
commenters stated that disputes will
arise and compromise the integrity of
the proceedings without a mechanism to
determine whether a conflict exists.
Discussion:
Section 300.506(c)(1)(ii)
incorporates section 615(e) of the Act,
and provides that mediators must not
have a personal or professional interest
that would conflict with the person’s
objectivity. SEAs have an interest in
ensuring that their mediators are seen as
impartial persons so that the parties to
disputes will be willing to use
mediation to resolve those disputes. We
do not believe that further regulation is
needed, as the SEAs’ interest in
ensuring that mediators are seen as
impartial should be sufficient to provide
for mechanisms to resolve conflicts to
the extent needed in that State.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify that a mediator cannot be
employed simultaneously as a hearing
officer.
Discussion:
Case-by-case
determinations would need to be made
as to whether there is a conflict of
interest in the situation that the
commenter describes. For example, we
believe that a conflict would arise if a
mediator was subsequently assigned as
a hearing officer for the same matter. We
believe that the requirements in
§ 300.506(c)(1)(ii), applicable to
mediators, and the corresponding
requirements in § 300.511(c)(1)(i)(B),
applicable to hearing officers, which
prohibit a mediator and a hearing officer
from having a personal or professional
interest that would conflict with the
person’s objectivity at the mediation or
the hearing, are sufficient to ensure that
mediators and hearing officers are fair
and unbiased.
Changes:
None.
Filing a Due Process Complaint
(§ 300.507)
Comment:
Some commenters
recommended changing the section
heading in § 300.507 from ‘‘Filing a due
process complaint’’ to ‘‘Requesting a
due process hearing’’ to avoid confusion
with the State complaint process. A few
commenters requested that the
regulations clarify that a request for due
process hearing may be made regarding
any matter pertaining to the
identification, evaluation, educational
placement, or provision of FAPE for a
child.
Discussion:
We do not believe that
changing the heading to this section is
necessary or that further clarification is
needed regarding the matters about
which a due process complaint can be
filed. Section 300.507(a) and section
615(b)(6)(A) of the Act are clear that a
parent or public agency may file a due
process complaint on any matter
relating to the identification, evaluation,
or educational placement of the child,
or the provision of FAPE to the child.
A party must file a due process
complaint in accordance with
§§ 300.507 through 300.508 prior to the
opportunity for a due process hearing
under this part. If the LEA does not
resolve the complaint to the satisfaction
of the parents during the resolution
process, the disputed issues that were
raised in the due process complaint
would be the subject of a due process
hearing.
Changes:
None.
Comment:
Several commenters
objected to the removal of current
§ 300.507(a)(2), which requires the
public agency to inform the parent
about the availability of mediation when
a hearing is initiated. The commenters
stated that the notice about the
availability of mediation should be
expanded, not eliminated.
Discussion:
Section 615(e)(1) of the
Act expands the availability of
mediation by requiring public agencies
to offer mediation to resolve disputes
about any matter under this part.
Current § 300.507(a)(2) was replaced by
§ 300.506(a), which incorporates section
615(e)(1) of the Act, and requires
mediation to be available to resolve
disputes involving any matter under
this part, including matters arising prior
to the filing of a due process complaint.
Section 300.506(a), therefore, expands
the availability of mediation beyond
that required in current § 300.507(a)(2).
Therefore, there is no need to add the
provision requested by the commenter.
Changes:
None.
Comment:
A few commenters stated
that the requirement in § 300.507(a)
places the burden on the parent to file
a due process complaint.
Discussion:
Section 300.507(a),
consistent with section 615(b)(6) of the
Act, permits either a parent or a public
agency to file a due process complaint.
Section 615(b)(7) of the Act is clear that
a parent or a public agency must file a
due process complaint notice before a
due process hearing may commence.
Changes:
None.
Comment:
Many commenters
supported the time limit for submitting
a due process complaint. Some
commenters stated that the regulations
should clarify that, while States may
adopt an explicit statute of limitations
that is shorter than two years, they may
not adopt a time period that is longer
than two years. Other commenters
recommended that the regulations
clarify that if a State has an explicit time
limit for requesting a due process
hearing the State time limit must be
reasonable. A few commenters
recommended requiring States to
conduct public hearings and provide an
opportunity for public comment before
the State establishes a reasonable time
limit for filing a due process complaint.
Still other commenters stated that the
regulations should include a statement
that common-law directives regarding
statutes of limitations should not
override the Act or State regulatory time
limits.
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Some commenters expressed concern
that reducing the statute of limitations
from three years to two years makes it
impossible to protect the rights of
children. The commenters stated that
parents and school districts will be
discouraged from participating in
alternative dispute resolution options
because of the short timeframe for filing
a due process complaint.
Discussion:
Section 300.507(a)(2) and
section 615(b)(6)(B) of the Act are clear
that a due process complaint must
allege a violation that occurred not more
than two years before the date the
parent or public agency knew, or should
have known, about the alleged action
that forms the basis of the due process
complaint, or if the State has an explicit
time limit for filing a due process
complaint, in the time allowed by that
State law.
There is nothing in the Act that would
preclude a State from having a time
limit for filing a complaint that is
shorter or longer than two years. We
believe that the Act leaves this decision
to the States. A State choosing to adopt
a time limit for requesting a hearing,
other than the two year time limit in the
Act, must comply with the public
participation requirements in § 300.165
and section 612(a)(19) of the Act, which
require that prior to the adoption of any
policies and procedures needed to
comply with Part B of the Act
(including any amendments to such
policies and procedures), the State must
ensure that there are public hearings,
adequate notice of the hearings, and an
opportunity for public comment.
However, if a State already has an
explicit time limit in statute or
regulation, and has met the
requirements in § 300.165 and section
612(a)(19) of the Act in establishing that
requirement, new public hearings and
public comment periods are not
required.
It is not necessary to clarify that
common-law directives regarding
statutes of limitations should not
override the Act or State regulatory
timelines, as the commenters
recommended, because the Act and
these regulations prescribe specific
limitation periods which supersede
common law directives in this regard.
Changes:
None.
Comment:
One commenter suggested
that the regulations allow extensions of
the statute of limitations when a
violation is continuing or the parent is
requesting compensatory services for a
violation that occurred not more than
three years prior to the date the due
process complaint is received.
Discussion:
Section 615(f)(3)(D) of the
Act provides explicit exceptions to the
timeline for requesting a due process
hearing. Section 300.511(f) incorporates
these provisions. These exceptions do
not include when a violation is
continuing or where a parent is
requesting compensatory services for a
violation that occurred not more than
three years from the date that the due
process complaint was filed. Therefore,
we do not believe that the regulations
should be changed.
Changes:
None.
Comment:
One commenter suggested
removing § 300.507(b), which requires a
public agency to inform parents of any
free or low-cost legal and other relevant
services in the area. The commenter
stated that schools should voluntarily
provide this information to parents. One
commenter requested clarification
regarding the meaning of ‘‘other relevant
services’’ about which the public agency
must inform parents. Another
commenter requested that public
agencies post information about free or
low-cost legal services on their Web
sites.
Discussion:
The provisions in
§ 300.507(b) are protected by section
607(b) of the Act and require the public
agency to inform parents about the
availability of free or low-cost legal and
other relevant services, if the parent
requests such information or the parent
or the agency requests a due process
hearing. Generally, ‘‘other relevant
services’’ refers to other sources that
parents could consult for information,
such as parent centers.
The Department believes that parents
should have easy access to information
about any free or low-cost legal and
other relevant services in the area.
Making the information available on the
State’s Web site may be a good way of
providing parents easily accessible
information, but it may not be effective
in all cases. Each State is in the best
position to determine whether including
this information on its Web site would
be helpful for parents. Therefore, we
decline to add this as a requirement in
these regulations, as recommended by
the commenter.
Changes:
None.
Comment:
None.
Discussion:
Upon internal review, we
determined that it would be clearer for
§ 300.507(b)(2) to state that the parents
or the agency files a due process
complaint, rather than request a hearing
under § 300.507.
Changes:
We have amended the
language of § 300.507(b)(2) to refer to
filing a due process complaint rather
than requesting a hearing.
Due Process Complaint (§ 300.508)
Comment:
A few commenters
expressed concern regarding the use of
similar terminology for due process
complaints and State complaints. Some
commenters stated that the State
complaint procedures may mistakenly
be considered a pre-requisite to
commencing a due process hearing. A
few commenters requested changing the
heading in § 300.508 from ‘‘Due process
complaint’’ to ‘‘Requesting a due
process hearing’’ to avoid unnecessary
confusion.
Discussion:
Section 615(b)(7)(B) of the
Act states that a party may not have a
hearing on a due process complaint or
engage in a resolution meeting until the
party, or the attorney representing the
party, files a due process complaint that
meets the requirements in § 300.508(b).
There is no requirement that a party file
a State complaint prior to filing a due
process hearing, and we believe that the
regulation is sufficiently clear about this
point. Renaming this section
‘‘Requesting a due process hearing’’
could incorrectly suggest that there is no
requirement to file a due process
complaint prior to a due process
hearing. Therefore, we decline to change
the name of the heading, as requested by
the commenters.
Changes:
None.
Comment:
A few commenters
requested clarification regarding when a
determination about the sufficiency of a
due process complaint must be made
and who makes the determination. One
commenter stated that any party who
alleges that a notice is insufficient
should be required to state in writing
the basis for that belief, including the
information that is missing or
inadequate.
Many commenters recommended
removing the phrase ‘‘or engage in a
resolution meeting’’ in § 300.508(c). The
commenters expressed concern that
requiring parties to engage in a
resolution meeting before a due process
hearing will delay the due process
hearing, particularly when the parties
must wait for a hearing officer to
determine the sufficiency of a due
process complaint before holding a
resolution meeting. One commenter
requested that the regulations state that
the public agency may not deny or delay
a parent’s right to a due process hearing.
A few commenters recommended that
the regulations clarify that a resolution
meeting cannot be held until the
complaint is deemed sufficient.
Some commenters questioned the
appropriateness of requiring a
substantive response to a due process
complaint during a resolution meeting
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before the complaint is determined to be
sufficient. Other commenters asked
whether the 10-day timeline for the
party receiving the complaint to
respond to the due process complaint
resets when a party deems a due process
complaint to be insufficient or when a
hearing officer rules that the complaint
is insufficient.
One commenter asked whether two
resolution meetings are required when
the sufficiency of the complaint is
challenged, and whether the 30-day
resolution period is reset by an
insufficient complaint. The same
commenter asked whether the
resolution meeting should be scheduled
within 50 days of receiving the parent’s
original due process complaint, if
insufficiency has been determined or is
pending.
Discussion:
Section 300.510(a),
consistent with section 615(f)(1)(B) of
the Act, requires the LEA, within 15
days of receiving notice of the parent’s
due process complaint, and prior to the
initiation of a hearing, to convene a
meeting with the parent and the
relevant members of the IEP Team to
discuss the parent’s due process
complaint so that the LEA has an
opportunity to resolve the dispute.
Section 300.508(d)(1), consistent with
section 615(c)(2)(A) and (D) of the Act,
provides that the due process complaint
must be deemed sufficient unless the
party receiving the due process
complaint notifies the hearing officer
and the other party in writing, within 15
days of receipt of the due process
complaint, that the due process
complaint does not meet the
requirements in § 300.508(b). If the
party receiving the due process
complaint notice believes the complaint
is insufficient, the hearing officer
determines the sufficiency of the
complaint. There is no requirement that
the party who alleges that a notice is
insufficient state in writing the basis for
the belief.
Section 300.508(d)(2), consistent with
section 615(c)(2)(D) of the Act, states
that the hearing officer must make a
determination within five days of
receiving notice that the party believes
the complaint is insufficient and
immediately notify the parties in
writing of that determination.
If the hearing officer determines that
the notice is not sufficient, the hearing
officer’s decision will identify how the
notice is insufficient, so that the filing
party can amend the notice, if
appropriate. We are not further
regulating on how the sufficiency claim
is raised, however, as we believe that
this matter is more appropriately
addressed by each State, in light of their
other hearing procedures.
Section 615(b)(7)(B) of the Act,
provides that a party may not have a
hearing on a due process complaint
until the party or the party’s attorney
files a due process complaint that meets
the content standards in section
615(b)(7)(A) of the Act, which are
reflected in § 300.508(b). If the
complaint is determined to be
insufficient and is not amended, the
complaint could be dismissed.
We agree with S. Rpt. No. 108–185, p.
38, which states that the resolution
meeting should not be postponed when
the LEA believes that a parent’s
complaint is insufficient. While the
period to file a sufficiency claim is the
same as the period for holding the
resolution meeting, parties receiving
due process complaint notices should
raise their sufficiency claims as early as
possible, so that the resolution period
will provide a meaningful opportunity
for the parties to resolve the dispute.
In order to resolve ambiguity on the
relationship of a sufficiency claim to the
resolution meeting, we are revising
§ 300.508(c) to remove the reference,
which is not statutory, to the resolution
meeting. There is no need to hold more
than one resolution meeting, impose
additional procedural rules, or
otherwise adjust the resolution timeline.
We do not believe it is necessary to
add language to the regulations stating
that a public agency may not deny or
delay a parent’s right to a due process
hearing. We believe that the timelines
and requirements for filing a due
process complaint, and the timelines for
hearing officer decisions regarding the
sufficiency of a complaint will
safeguard against due process hearings
being unfairly or unnecessarily delayed.
Changes:
We have removed the words
‘‘or engage in a resolution meeting’’ in
§ 300.508(c) for clarity.
Comment:
One commenter stated that
the timeline for filing a due process
hearing should begin when the due
process complaint is deemed sufficient.
However, some commenters stated that
the timeline should begin when a party
files a due process complaint notice.
Several commenters stated that a
hearing officer should be allowed to
determine whether an amended
complaint relates to the original
complaint for purposes of determining
the time limit for filing a due process
complaint.
Discussion:
We do not believe that a
separate filing of a due process
complaint notice and due process
complaint, with separate timelines, is
required by the Act, as those
distinctions would be unnecessarily
burdensome and cumbersome. Section
615(b)(7)(A)(i) of the Act describes the
due process complaint notice as being
filed ‘‘in the complaint,’’ and we have
organized our regulation consistent with
this provision.
Section 300.507(a)(2), consistent with
section 615(b)(6)(B) of the Act, states
that a due process complaint must
allege a violation that occurred not more
than two years (or the time allowed by
State law), before the date the parent or
public agency knew, or should have
known, about the alleged action that
forms the basis of the due process
complaint. Section 615(f)(3)(D) of the
Act provides exceptions to the timeline
if a parent was prevented from filing a
due process complaint, which are
reflected in § 300.511(f). It is up to
hearing officers to determine whether a
specific complaint is within the
allowable timeline, including whether
an amended complaint relates to a
previous complaint.
Changes:
None.
Comment:
Many commenters stated
that the process for amending a due
process complaint is complex and
unnecessarily complicated, and will
force parents to seek the services of an
attorney and make the relationship
between parties more adversarial. One
commenter recommended allowing a
hearing request to be amended up to
five days before the parties meet to set
a hearing schedule, rather than five days
before the hearing.
Discussion:
We do not agree that the
process for amending a due process
complaint is complex and unnecessarily
complicated. Section 300.508(d)(3) and
section 615(c)(2)(E) of the Act allow the
party filing the due process complaint
an opportunity to amend the complaint
to ensure that the complaint accurately
sets out their differences with the other
party. The complaint can be amended
only if the parties mutually agree in
writing to the amendment and are given
the opportunity for a resolution
meeting, or the hearing officer grants
permission to amend the complaint at
any time not later than five days before
the due process hearing begins. This
process ensures that the parties
involved understand and agree on the
nature of the complaint before the
hearing begins. We, therefore, decline to
change these regulations, and see no
reason to change the timeline for
amending a complaint in the manner
suggested by the commenter.
Section 300.508(d)(4) and section
615(c)(2)(E)(ii) of the Act provide that
when a due process complaint is
amended, the timelines for the
resolution meeting and the time period
for resolving the complaint begin again
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with the filing of the amended due
process complaint.
Changes:
None.
Comment:
Some commenters stated
that parents who are filing a due process
complaint without the assistance of an
attorney should have more flexibility
when the sufficiency of the complaint is
determined. The commenters stated that
parents should be able to receive
assistance from their State’s due process
office to complete the due process
complaint so that it meets the standard
for sufficiency.
Discussion:
To assist parents in filing
a due process complaint, § 300.509 and
section 615(b)(8) of the Act require each
State to develop a model due process
complaint form. While there is no
requirement that States assist parents in
completing the due process complaint
form, resolution of a complaint is more
likely when both parties to the
complaint have a clear understanding of
the nature of the complaint. Therefore,
the Department encourages States, to the
extent possible, to assist a parent in
completing the due process complaint
so that it meets the standards for
sufficiency. However, consistent with
section 615(c)(2)(D) of the Act, the final
decision regarding the sufficiency of a
due process complaint is left to the
discretion of the hearing officer.
Changes:
None.
Comment:
One commenter stated that
parents who file a due process
complaint without the assistance of an
attorney should be allowed to amend
their complaint without having to start
the process all over again, as long as
their statement provides the information
LEAs need to proceed toward
resolution. A few commenters stated
that a formal amendment should not be
required for minor insufficiencies, such
as leaving out the child’s address or
name of the child’s school, especially if
the LEA already has this information.
Many commenters recommended that
a hearing officer be allowed to permit a
party to amend the due process
complaint, unless doing so would
prejudice the opposing party. The
commenters stated that, at a minimum,
the regulations should state that hearing
officers must follow the standard that
permits them to freely grant
amendments, regardless of timelines,
when justice so requires.
Discussion:
Section 300.508(d)(3),
consistent with section 615(c)(2)(E) of
the Act, provides that a party may only
amend its complaint in two
circumstances: (1) if the other party
consents in writing to the amendment
and is given the opportunity to resolve
the complaint in a resolution meeting
convened under § 300.510, or (2) if the
hearing officer grants permission for the
amendment, but only at a time not later
than five days before the hearing begins.
Therefore, we do not believe further
clarification is necessary. With regard to
parents who file a due process
complaint without the assistance of an
attorney or for minor deficiencies or
omissions in complaints, we would
expect that hearing officers would
exercise appropriate discretion in
considering requests for amendments.
Changes:
None.
Comment:
One commenter suggested
adding language to the regulations
stating that an LEA may request and, as
a matter of right, be granted one 10-day
extension to respond to a parent’s due
process complaint.
Discussion:
Section 615(c)(2)(B)(ii) of
the Act provides that the receiving party
must provide the party that filed the
complaint a response to the complaint
within 10 days of receiving the
complaint. The Act makes no provision
for extending this time period, and we
do not believe it would be appropriate
to amend the regulations in this manner.
Allowing an LEA additional time to
respond to a parent’s due process
complaint could be used to unduly
delay the due process hearing, to the
detriment of the interests of the child.
Changes:
None.
Comment:
A few commenters
expressed concern that the regulations
appear to require parents to be
represented by an attorney in due
process proceedings and requested that
the regulations permit a party in a due
process hearing to be represented by a
non-attorney advocate. The commenters
stated that this would allow more
uniform access to assistance across all
socio-economic groups and decrease the
formality of hearings.
Discussion:
We are considering the
issue of non-attorney representation of
parties in a due process hearing under
the Act, in light of State rules
concerning the unauthorized practice of
law. We anticipate publishing a notice
of proposed rulemaking in the near
future seeking public comment on this
issue.
Changes:
None.
Comment:
One commenter requested
clarification regarding whether there is
legal significance or consequence to a
responding party who fails to file the
required response to a due process
complaint or to an LEA that fails to send
both the prior written notice and the
due process complaint notice.
Discussion:
The Act does not establish
consequences for parents who are the
receiving parties to complaints if they
fail to respond to a due process
complaint notice. However, either
party’s failure to respond to, or to file,
the requisite notices could increase the
likelihood that the resolution meeting
will not be successful in resolving the
dispute and that a more costly and time-
consuming due process hearing will
occur.
Changes:
None.
Comment:
One commenter
recommended that the regulations
specifically state that a party has a right
to seek immediate intervention from a
hearing officer to resolve pre-hearing
issues and disputes.
Discussion:
Section 300.508,
consistent with section 615(b) and (c) of
the Act, sets out the requirements and
timelines for filing a due process
complaint. We do not believe the further
clarification requested by the
commenter is necessary because the due
process complaint procedures are
intended to resolve pre-hearing issues
and disputes and allow parties to seek
immediate resolution by a hearing
officer, when necessary, regarding the
sufficiency of a due process complaint
and amendments to a complaint.
Changes:
None.
Comment:
One commenter requested
that the regulations require a hearing
officer to dismiss a complaint when the
hearing officer determines that all issues
and allegations are insufficient to go
forward.
Discussion:
We do not believe that
Federal regulations on this matter are
required, as we believe that States and
individual hearing officers are in a
better position to decide on the utility
of, or need for, dismissals.
Changes:
None.
Model Forms (§ 300.509)
Comment:
None.
Discussion:
In reviewing this section,
we realized that the language in
paragraph (a) might incorrectly be read
to suggest that parties other than parents
and public agencies could file due
process complaints.
Changes:
We have amended the
language of § 300.509(a) to clarify that
only parents and public agencies can
file due process complaints, while
parents, public agencies, and other
parties can file State complaints.
Comment:
One commenter suggested
including a statement in § 300.509
clarifying that parents can use a model
form, create their own form, or use a
form created by their attorney, as long
as it meets the requirements of the Act.
Discussion:
We agree that the use of
the model forms should not be required
by an SEA or LEA, and that parents (or
other parties filing a State complaint)
may use some other form of notice, so
long as their notice meets the content
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requirements of the Act. We are
clarifying this in § 300.509.
Changes:
We have restructured
§ 300.509 and clarified that SEAs or
LEAs cannot require the use of the
model forms. We have added a new
paragraph (b) to § 300.509 to provide
that parents and other parties may use
another form, so long as the form that
is used meets the content requirements
in § 300.508(b) for filing a due process
complaint, or the requirements in
§ 300.153(b) for filing a State complaint.
Comment:
A few commenters
requested language requiring the State
to work with the State PTI and CPRC to
develop the model forms so that they
are written in a manner that parents can
understand.
Discussion:
It would be over-
regulating to require a State to work
with a particular group or groups to
develop their model forms. We believe
that such decisions are best made by
each State and, therefore, decline to
require a State to work with the State
PTI and CPRC to develop the model
forms. However, States must comply
with the public participation
requirements in § 300.165 and section
612(a)(19) of the Act prior to adopting
a model form. To meet the public
participation requirements, the State
must ensure that there are public
hearings and an opportunity for
comment available to the general public,
including individuals with disabilities
and parents of children with
disabilities.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
clarify that a hearing officer may not
determine that a due process complaint
is insufficient in any State that has not
developed the model forms required in
§ 300.509.
Discussion:
It would be inappropriate
to prohibit a hearing officer from finding
that a complaint is insufficient if the
receiving party properly challenges the
sufficiency of the complaint in
accordance with § 300.508(d)(1) because
the State has failed to develop the
model forms in accordance with
§ 300.509 and section 615(b)(8) of the
Act. Development of the model forms is
a State responsibility and parties to a
due process hearing should not be
penalized because a State fails to meet
the requirements in section 615(b)(8) of
the Act. The Department is authorized
to impose sanctions on a State, in
accordance with section 616(d), (e), and
(g) of the Act, if it fails to develop the
model forms required in § 300.509.
Changes:
None.
Comment:
One commenter
recommended that model forms should
be developed to assist education
agencies in filing a due process
complaint.
Discussion:
We disagree with the
commenter. We believe that the due
process complaint requirements in
§ 300.508 provide sufficient information
for education agencies that wish to file
a due process complaint.
Changes:
None.
Resolution Process (§ 300.510)
Resolution Meeting (§ 300.510(a))
Comment:
One commenter expressed
concern that the resolution process
under the due process complaint
procedures could limit the State
complaint procedures as a means of
resolving disputes.
Discussion:
The due process
complaint procedures and the State
complaint procedures are separate and
distinct. The State complaint
procedures remain a viable alternative
to the due process procedures for
parents to resolve disputes with public
agencies in a less formal and more cost-
effective manner.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
require an LEA to notify the parent,
within five days of receiving a due
process complaint, whether the LEA
intends to convene a resolution meeting
or waive the session. The commenters
recommended that the notice include a
signature line for a parent to indicate an
agreement to waive the resolution
meeting.
Discussion:
Section 615(f)(1)(B) of the
Act requires an LEA to convene a
resolution meeting with the parent and
the relevant member(s) of the IEP Team
within 15 days of receiving notice of the
parent’s due process complaint. The
purpose of the meeting is for the parent
to discuss the due process complaint
and the facts that form the basis of the
due process complaint so that the LEA
has an opportunity to resolve the
dispute. We do not believe it is
necessary to require an LEA to notify
the parent within five days of receiving
a due process complaint about the
LEA’s intention to convene or waive the
resolution process. An LEA that wishes
to engage in a resolution meeting will
need to contact the parent to arrange the
meeting soon after the due process
complaint is received in order to ensure
that the resolution meeting is held
within 15 days.
Section 300.510(a)(3) provides that
the resolution meeting does not need to
be held if the parent and the LEA agree
in writing to waive the meeting, or if the
parent and LEA agree to use the
mediation process to resolve the
complaint. The manner in which the
LEA and parent come to an agreement
to waive the resolution meeting is left to
the discretion of States and LEAs. We
do not believe that there is a need to
regulate further in this area.
Changes:
None.
Comment:
Some commenters asked
whether the requirements for resolution
meetings apply when an LEA initiates a
due process hearing. A few commenters
recommended that the requirements for
resolution meetings should not apply
when an LEA initiates a due process
hearing.
Discussion:
Section 615(f)(1)(B)(i) of
the Act requires an LEA to convene a
resolution meeting when a parent files
a due process complaint. Consistent
with section 615(f)(1)(B)(i)(IV) of the
Act, the resolution meeting provides an
opportunity for the parents of the child
to discuss their complaint, and the facts
that form the basis of the complaint, so
that the LEA has an opportunity to
resolve the complaint. There is no
provision requiring a resolution meeting
when an LEA is the complaining party.
The Department’s experience has shown
that LEAs rarely initiate due process
proceedings.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
clarify that, in addition to their attorney,
parents may bring other participants to
the resolution meeting, such as an
advocate or family friend. Other
commenters recommended that neither
party should be permitted to bring an
attorney to the resolution meeting. Some
commenters recommended requiring
parents to notify the LEA at least one
day before the resolution meeting
whether their attorney will be
participating in the resolution meeting.
Other commenters, however, stated that
parents should not be required to notify
the LEA in advance of the meeting
whether the parent plans to bring
anyone to the meeting.
Discussion:
Section 615(f)(1)(B)(i) of
the Act states that an LEA must convene
a resolution meeting with the parents
and the relevant members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint that includes a representative
of the public agency who has decision-
making authority on behalf of that
agency, and may not include the LEA’s
attorney unless the parent is
accompanied by an attorney.
Section 300.510(a)(4) states that the
parent and the LEA determine the
relevant members of the IEP Team to
attend the resolution meeting. We do
not believe it is necessary to clarify that
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a parent may bring other participants,
such as an advocate or family friend, to
the resolution meeting because section
614(d)(1)(B)(vi) of the Act and
§ 300.321(a)(6) are clear that the IEP
Team may include, at the discretion of
the parent or the agency, other
individuals who have knowledge or
special expertise regarding the child.
Therefore, such individuals could
attend the resolution meeting if the LEA
or parent determined that such
individuals are relevant members of the
IEP Team.
We do not believe it is necessary to
regulate on whether a parent must
provide advance notice to the LEA that
the parent intends to bring an attorney
to the resolution meeting because we
expect that it would not be in the
interest of the parent to withhold such
information prior to a resolution
meeting so as to appear at the resolution
meeting with an attorney without
advance notice to the public agency. In
such cases, the public agency could
refuse to hold the resolution meeting
until it could arrange the attendance of
its attorney (within the 15-day period).
The parent would incur additional
expenses from having to bring their
attorney to two resolution meetings.
Changes:
None.
Comment:
Some commenters
requested clarification regarding
whether the parent and the LEA must
agree to the parties who will attend the
resolution meeting, or whether the
parent and the LEA can decide
independently who will attend the
meeting. The commenters
recommended that any disputes
regarding who should attend the
resolution meeting should be resolved
in a timely manner and the meeting
should proceed with all the disputed
participants when there is no agreement
within the 15-day period. Some
commenters stated that allowing parents
to determine which members of the IEP
Team should attend the resolution
meeting exceeds statutory authority.
Discussion:
Section 615(f)(1)(B)(i) of
the Act requires the LEA to convene a
resolution meeting with the parent and
the relevant member(s) of the IEP Team
who have specific knowledge of the
facts identified in the complaint.
Section 300.510(a)(4) requires the parent
and the LEA to determine the relevant
members of the IEP Team who will
attend the meeting. We urge LEAs and
parents to act cooperatively in
determining who will attend the
resolution meeting, as a resolution
meeting is unlikely to result in any
resolution of the dispute if the parties
cannot even agree on who should
attend. The parties should keep in mind
that the resolution process offers a
valuable chance to resolve disputes
before expending what can be
considerable time and money in due
process hearings. We decline to regulate
further on how to resolve disputes about
who should attend these meetings in the
absence of information about specific
problems in the process.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
provide information on how a
resolution meeting should proceed.
Several commenters expressed concern
that the regulations offer no guidance on
the protocol or structure of resolution
meetings, and do not specify whether an
impartial mediator or facilitator should
conduct the meeting.
Discussion:
Section 615(f)(1)(B)(i)(IV)
of the Act states that the purpose of a
resolution meeting is for parents to
discuss their due process complaint and
the facts that form the basis of the due
process complaint so that the LEA has
an opportunity to resolve the dispute.
We do not believe that it is necessary or
appropriate to regulate on the specific
structure or protocol for resolution
meetings as doing so could interfere
with the LEA and the parent in their
efforts to resolve the complaint in the
resolution meeting.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
address the need for families to receive
training in dispute resolution.
Discussion:
There is nothing in the
Act that would prevent a public agency
from offering training in dispute
resolution or referring parents to
organizations that provide training in
dispute resolution. Such matters are
best left to local and State officials to
determine, based on the training needs
of parents and families. Therefore, we
decline to regulate on this matter.
Changes:
None.
Comment:
One commenter
recommended allowing parents to
participate in resolution meetings
through alternative means (
e.g.
,
teleconferences) and alternative
procedures (
e.g.
, participation by a
child’s court-appointed advocate) when
parents are unavailable (
e.g.
, military
service, hospitalization).
Discussion:
We understand that
circumstances beyond a parent’s control
(
e.g.
, military service, hospitalization)
may prevent a parent from attending a
resolution meeting in person. If the LEA
notifies the parent of its intent to
schedule a resolution meeting within 15
days of receiving notice of the parent’s
due process complaint, and the parent
informs the LEA in advance of the
meeting that circumstances prevent the
parent from attending the meeting in
person, it would be appropriate for an
LEA to offer to use alternative means to
ensure parent participation, such as
those described in § 300.328, including
videoconferences or conference
telephone calls, subject to the parent’s
agreement.
There is no authority in the Act for an
LEA to permit a court-appointed
advocate to attend the resolution
meeting in place of a parent, unless the
public agency has appointed that
individual as a surrogate parent in
accordance with § 300.519, or the
agency determines that the person is a
person acting in the place of the
biological or adoptive parent of the
child in accordance with § 300.30(a)(4).
Changes:
None.
Resolution Period (§ 300.510(b))
Comment:
One commenter noted that
§ 300.510(b)(1) states that if an LEA has
not resolved a due process complaint
within 30 days of the receipt of the
complaint, the due process hearing
‘‘must’’ occur, which is inconsistent
with section 615(f)(1)(B)(ii) of the Act,
which states that the due process
hearing ‘‘may’’ occur. However, another
commenter recommended retaining the
language in § 300.510(b), in lieu of the
permissive statutory language.
Discussion:
We believe that
§ 300.510(b)(1) should be changed to be
consistent with section 615(f)(1)(B)(ii) of
the Act. A requirement that a due
process hearing must occur when the
resolution period is not successful in
resolving the underlying dispute could
prove unduly restrictive for the parties,
particularly in situations where the
parties agree to an extension of the
resolution period or reach a settlement
after the resolution period has expired.
Therefore, we are changing
§ 300.510(b)(1) to state that a due
process hearing ‘‘may’’ occur if the
parties have not resolved the dispute
that formed the basis for the due process
complaint by the end of the resolution
period.
Changes:
Section 300.510(b)(1) has
been changed by removing the word
‘‘must’’ and replacing it with ‘‘may’’
prior to the word ‘‘occur’’ to reflect the
language in section 615(f)(1)(B)(ii) of the
Act.
Comment:
Some commenters
recommended requiring LEAs to waive
the resolution period when a parent can
show that, prior to the filing of the
complaint, the LEA had specific
knowledge of the facts later identified in
the complaint and had a reasonable time
to resolve the issue, or did not notify the
parent within five days of the resolution
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meeting or inform the parent of their
options.
Discussion:
Section 615(f)(1)(B)(i) of
the Act provides two occasions when a
resolution meeting need not occur: (1)
when the parent and LEA agree in
writing to waive the meeting; and (2)
when the parent and LEA agree to use
the mediation process in § 300.506.
There are no provisions that allow a
parent or an LEA to unilaterally waive
the resolution meeting. In the
circumstances mentioned by the
commenter, the resolution meeting still
is a required vehicle for the parent and
the LEA to attempt to resolve their
differences prior to initiating a due
process hearing.
Changes:
None.
Comment:
We received numerous
comments expressing concern about the
resolution process and requesting
changes to the regulations to ensure that
the resolution process is used effectively
to resolve disputes and not to delay or
deny the right to a due process hearing.
Some commenters requested that
§ 300.510(b)(3) be removed because it
allows a public agency to delay the due
process hearing by scheduling
resolution meetings at times or places
that are inconvenient for the parent.
Many commenters recommended that if
an LEA fails to convene a resolution
meeting within the required 15 days,
bring the required personnel to a
resolution meeting, or participate in a
resolution meeting in good faith, the 45-
day timeline for a hearing decision
should begin on the date that the due
process complaint notice was filed.
Several commenters requested
clarification on what is considered
‘‘participation’’ or ‘‘good faith’’
participation in a resolution meeting
and who decides if participation has
occurred. A number of commenters
recommended that the regulations
permit a hearing officer to determine
whether a parent or LEA has
participated in the resolution meeting
and whether the due process hearing
can proceed. Another commenter
requested clarification on when the 45-
day timeline for a due process hearing
begins when a hearing officer
determines that a parent has
participated.
Several commenters asked how long a
due process complaint remains open if
the parent does not participate during
the 30-day resolution period. A number
of commenters requested clarification as
to whether and how an LEA can dismiss
a due process complaint when a parent
refuses to participate in a resolution
meeting. One commenter recommended
that the regulations clarify the
consequences of indefinitely delaying a
due process hearing.
Discussion:
We do not agree that
§ 300.510(b)(3) should be removed. This
provision is based on H. Rpt. No. 108–
77, p. 114, that provides:
[If] the parent and the LEA mutually agree
that the meeting does not need to occur, the
resolution meeting does not need to take
place. However, unless such an agreement is
reached, the failure of the party bringing the
complaints to participate in the meeting will
delay the timeline for convening a due
process hearing until the meeting is held.
We fully expect that only in very rare
situations will an LEA fail to meet its
obligation to convene a resolution
meeting within 15 days of receiving
notice of the parent’s due process
complaint, delay the due process
hearing by scheduling meetings at times
or places that are inconvenient for the
parent, or otherwise not participate in
good faith in the resolution process.
However, in instances of
noncompliance, we believe parents
should be able to request a hearing
officer to allow the due process hearing
to proceed.
In situations where an LEA convenes
a meeting with the parent and the
relevant member or members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint, and the parent fails to
participate in the resolution meeting,
the LEA would need to continue to
make diligent efforts throughout the
remainder of the 30-day resolution
period to convince the parent to
participate in the resolution meeting. If,
however, at the end of the 30-day
resolution period, the LEA is still
unable to convince the parent to
participate in the resolution meeting, we
believe that an LEA should be able to
seek intervention by a hearing officer to
dismiss the complaint.
Therefore, we are adding language to
the regulations to allow the parents to
seek a hearing officer’s intervention in
cases where an LEA fails to convene a
resolution meeting within 15 days of
receiving notice of a parent’s due
process complaint or fails to participate
in the resolution meeting. We also are
adding language to allow an LEA, at the
conclusion of the 30-day resolution
period, to request a hearing officer to
dismiss a complaint when the LEA is
unable to obtain the participation of a
parent in a resolution meeting despite
making reasonable efforts to do so
during the 30-day resolution period.
Changes:
We have added a new
paragraph (b)(4) in § 300.510 to allow an
LEA, at the conclusion of the 30-day
resolution period to seek the
intervention of a hearing officer to
dismiss the parent’s complaint, if the
LEA is unable to obtain the
participation of the parent in the
resolution meeting, after reasonable
efforts have been made.
We have also added a new paragraph
(b)(5) to allow a parent to seek the
intervention of a hearing officer to begin
the due process hearing, if the LEA fails
to hold the resolution meeting within 15
days of receiving notice of a parent’s
due process complaint or fails to
participate in the resolution meeting.
Comment:
Some commenters stated
that the 45-day timeline for a due
process hearing should begin when both
parties agree that the complaint will not
be resolved in a resolution meeting or
mediation session. Other commenters
suggested that when a resolution
meeting or mediation session is held
and it is clear before the end of the 30-
day resolution period that the LEA and
the parent cannot resolve the dispute,
the 45-day timeline should be allowed
to begin prior to the end of the 30-day
resolution period. A few commenters
requested further clarification regarding
how the timeline is counted once the
parent participates in a resolution
meeting. A few commenters
recommended that the 45-day timeline
for the hearing commence once both
parties agree that the issue will not be
resolved without a due process hearing.
One commenter recommended that the
regulations require the waiver to be in
writing so that hearing officers have a
specific point in time to know when
they should be counting the 45 days.
Discussion:
We agree that the due
process hearing should be allowed to
proceed if the LEA and parent agree in
writing to waive the resolution meeting.
We also believe that the due process
hearing should be allowed to proceed
when an LEA and the parent agree to
waive the remainder of the 30-day
resolution period when it becomes
apparent that the LEA and the parent
will be unable to reach agreement
through resolution or mediation. There
may also be situations in which both
parties agree to continue the mediation
session beyond the 30-day resolution
period. Therefore, we are adding
language to the regulations to clarify
these exceptions to the 30-day
resolution period.
The new language specifies that the
45-day timeline for the due process
hearing starts the day after one of the
following events: (a) both parties agree
in writing to waive the resolution
meeting; (b) after either the mediation or
resolution meeting starts, but before the
end of the 30-day resolution period,
both parties agree in writing that no
agreement is possible; and (c) if both
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parties agree in writing to continue the
mediation at the end of the 30-day
resolution period, but later the parent or
public agency withdraws from the
mediation process.
Changes:
We have added a new
paragraph (c) in § 300.510 that specifies
adjustments to the 30-day resolution
period. Subsequent paragraphs have
been renumbered accordingly.
Comment:
Some commenters
recommended that the regulations
require public agencies to document
their attempts to ensure parent
participation in resolution meetings,
and to do so in the same manner that
they are required to document their
attempts to involve parents in IEP Team
meetings.
Discussion:
We agree with the
commenters and will add language to
§ 300.510(b)(4) to make this clear.
Changes:
We have added language in
§ 300.510(b)(4) to require an LEA to use
the same procedures it uses in
§ 300.322(d) to document its efforts to
obtain the participation of a parent in a
resolution meeting. We also have
amended § 300.510(b)(4) to refer to ‘‘due
process complaints,’’ for clarity.
Written Settlement Agreement (New
§ 300.510(d)) (Proposed § 300.510(c))
Comment:
One commenter asked
whether decisions agreed to in
resolution meetings supersede previous
IEP decisions and whether the IEP Team
must reconvene to sanction the
decisions made in a resolution meeting.
One commenter recommended that if
the resolution agreement includes IEP-
related matters, the agreement must
state that the LEA will convene an IEP
Team meeting within a specific number
of days to revise the IEP accordingly or
develop an IEP addendum, as
appropriate.
Discussion:
Unless the agreement
specifically requires that the IEP Team
reconvene, there is nothing in the Act or
these regulations that requires the IEP
Team to reconvene following a
resolution agreement that includes IEP-
related matters. We do not believe that
it is necessary or appropriate to
anticipate the elements of a particular
settlement agreement, which may
supersede an existing IEP. The contents
of settlement agreements are left to the
parties who execute a settlement
agreement.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify whether the SEA, a hearing
officer, or an administrative law judge
has the authority to enforce a written
resolution agreement. A few
commenters recommended permitting a
parent to seek assistance from the SEA
to compel a school district to abide by
a resolution agreement. The commenters
stated that many families cannot afford
legal representation and, in jurisdictions
in which parents cannot represent
themselves at the Federal district court
level, this would, in essence, leave such
parents without meaningful redress,
except through the State court system.
One commenter recommended that
the regulations specify that a resolution
agreement is enforceable in court
without exhausting administrative
remedies. The commenter stated that
unless this is clearly stated, parents may
be forced to proceed through a two-tier
due process system, rather than proceed
directly to court, which would be
counter to the purpose of a resolution
agreement.
Several commenters suggested adding
language in § 300.506(b)(7) clarifying
that a written, signed mediation
agreement can be enforced through a
State’s administrative complaint
process, as well as in State and Federal
court. The commenters stated that such
a provision would be consistent with
Congressional intent to reduce litigation
and permit parties to resolve
disagreements in a more positive, less
costly manner. The commenters also
suggested permitting State- or circuit-
based variation in enforcement
mechanisms.
Discussion:
Section 615(f)(1)(B)(iii) of
the Act provides that if an agreement is
reached in a resolution meeting, the
parties must execute a legally binding
agreement that is signed by both the
parent and a representative of the
agency who has the authority to bind
the agency, and is enforceable in any
State court of competent jurisdiction or
in a district court of the United States.
These same requirements apply to
agreements reached through mediation
sessions, pursuant to section
615(e)(2)(F)(iii) of the Act. The Act is
clear that exhaustion of administrative
remedies is not required since the Act
provides that the agreement is
enforceable in a State court of
competent jurisdiction or in a district
court of the United States.
If a party to a resolution agreement or
a mediation agreement believes that the
agreement has been breached, we
believe that, in addition to enforcement
in a State court of competent
jurisdiction or district court of the
United States, States should be able to
offer the option of using other available
State mechanisms (e.g., State complaint
procedures) to enforce resolution
agreements and mediation agreements,
as long as those other enforcement
mechanisms are voluntary.
Therefore, we are adding a new
regulation on State enforcement
mechanisms to clarify that States have
the option of allowing resolution
agreements and mediation agreements
to be enforced through other
mechanisms, provided that the other
enforcement mechanisms do not operate
to deny or delay the right of any party
to the agreement to seek enforcement in
an appropriate State or Federal court.
Regarding the commenters’ suggestion
of allowing State and circuit variations
in enforcement mechanisms, we do not
believe the Department has the
authority to regulate in this area because
doing so would interfere with matters
reserved for State and Federal courts. In
general, a written resolution or
mediation agreement is a binding
contract between the parties, and
therefore, the validity and enforceability
of that agreement would be reviewed in
light of applicable State and Federal
laws, including State contract laws.
Changes:
We have added a new
§ 300.537 on State enforcement
mechanisms to clarify that,
notwithstanding §§ 300.506(b)(7) and
new § 300.510(d)(2) (proposed
§ 300.510(c)(2)), nothing in this part
prevents a State from providing parties
to a written agreement reached as a
result of a mediation or resolution
meeting other mechanisms to enforce
that agreement, provided that such
mechanisms are not mandatory and do
not deny or delay the right of the parties
to seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States. We have also added a
cross reference to new § 300.537 in new
§ 300.510(d) (proposed § 300.510(c)),
regarding written settlement
agreements.
Agreement Review Period (New
§ 300.510(e)) (Proposed § 300.510(d))
Comment:
Many commenters
recommended including language in the
regulations to ensure that parents are
informed orally and in writing that
either party to a resolution agreement
may reconsider and void the resolution
agreement within three business days.
One commenter expressed concern that
some parents lack the education or legal
expertise of school districts, and will
miss this important right unless
informed both orally and in writing. A
few commenters stated that this notice
must be provided to parents in their
native language or primary mode of
communication.
Discussion:
Section 300.504(a),
consistent with section 615(d)(1)(A) of
the Act, requires a public agency to
provide parents with a copy of the
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procedural safeguards notice at least one
time in a school year and under the
exceptional circumstances specified in
§ 300.504(a), which includes the first
occurrence of the filing of a due process
complaint in a school year. The
procedural safeguards notice, which
must be written in language
understandable to the general public
and in the native language of the parent,
unless clearly not feasible to do so, must
include a full explanation of the Act’s
procedural safeguards. If the native
language or other mode of
communication of the parent is not a
written language, § 300.503(c)(2)
requires the public agency to take steps
to ensure that the notice is translated
orally or by other means for the parent
in his or her native language or other
mode of communication and that the
parent understands the content of the
notice. Under § 300.504(c)(5)(ii), the
notice must inform parents about the
opportunity to present and resolve a due
process complaint in accordance with
the resolution process required in
§ 300.510 and section 615(f)(1)(B) of the
Act, including a party’s right to void the
resolution agreement within three
business days of execution. We believe
it would be overly burdensome to
require public agencies to provide the
procedural safeguards notice both orally
and in writing to an individual parent,
and, therefore, decline to change the
regulation.
Changes:
None.
Comment:
Several commenters
recommended that the regulations
clarify whether discussions during the
resolution meeting remain confidential.
Discussion:
We decline to regulate on
this matter because the Act is silent
regarding the confidentiality of
resolution discussions. However, there
is nothing in the Act or these
regulations that would prohibit the
parties from entering into a
confidentiality agreement as part of
their resolution agreement. A State
could not, however, require that the
participants in a resolution meeting
keep the discussions confidential or
make a confidentiality agreement a
condition of a parent’s participation in
the resolution meeting.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require each SEA to develop a model
settlement agreement form with
appropriate release language, a
withdrawal form to be filed with the
hearing officer, and a confidentiality
agreement.
Discussion:
The terms of settlement
agreements will necessarily vary based
on numerous factors, including the
nature of the dispute and the specific
resolution agreed to by the parties
involved. Therefore, we do not believe
it is practical or useful to require SEAs
to develop a model settlement
agreement form.
Changes:
None.
Comment:
A few commenters
recommended that the regulations
define ‘‘days’’ in this section to mean
‘‘business days.’’
Discussion:
Under § 300.11(a),
day
means calendar day, unless otherwise
indicated as a business day or school
day. All references to
day
in § 300.510
are calendar days, except for new
§ 300.510(e) (proposed § 300.510(d)),
which specifies that the parties may
void a resolution agreement within
three business days of the agreement’s
execution.
Changes:
None.
Impartial Due Process Hearing
(§ 300.511)
Comment:
One commenter stated that
section 615(f)(1)(A) of the Act refers to
when a due process complaint is
‘‘received’’ and recommended using this
language in § 300.511(a), which refers to
when a due process complaint is
‘‘filed.’’ The commenter stated that
LEAs are more likely to understand and
relate to when a due process complaint
is ‘‘received’’ versus when a due process
complaint is ‘‘filed.’’
Discussion:
We agree with the
commenter and are changing
§ 300.511(a) to be consistent with
section 615(f)(1)(A) of the Act, which
provides that a parent or the LEA must
have the opportunity for an impartial
due process hearing under this part
when a due process complaint is
received under section 615(b)(6) or (k)
of the Act.
Changes:
For consistency with
statutory language, we have changed the
first clause in the first sentence of
§ 300.511(a) by removing the words
‘‘filed under § 300.507’’ and adding in
their place the words ‘‘received under
§ 300.507 or § 300.532’’.
Comment:
Some commenters
recommended that the regulations
clarify that a party has a right to seek
immediate intervention from a hearing
officer to resolve pre-hearing issues and
disputes. One commenter recommended
that the regulations clarify that hearing
officers are empowered and obligated to
promptly hear and decide all pre-
hearing issues and disputes so that
decisions can be made about whether to
proceed to a hearing, as well as to focus
and streamline the evidentiary hearing
process. The commenter provided the
following examples of pre-hearing
issues that should be resolved prior to
a hearing: the sufficiency of the
complaint; the sufficiency of the
response and notice pursuant to
§ 300.508(e); the sufficiency of the
response pursuant to § 300.508(f);
motions for stay-put; the hearing
schedule; the order of witnesses; the
burden of proof; the burden of going
forward; witness testimony by
telephone or video conference;
production of records; exchange of
evidence; admissibility of evidence; and
issuance and enforcement of subpoenas
and subpoenas
duces tecum.
Discussion:
Section 615(c)(2)(D) and
(E) of the Act, respectively, address
situations where it is necessary for
hearing officers to make determinations
regarding the sufficiency of a complaint
and amendments to a complaint before
a due process hearing. We do not
believe it is necessary to regulate further
on the other pre-hearing issues and
decisions mentioned by the commenters
because we believe that States should
have considerable latitude in
determining appropriate procedural
rules for due process hearings as long as
they are not inconsistent with the basic
elements of due process hearings and
rights of the parties set out in the Act
and these regulations. The specific
application of those procedures to
particular cases generally should be left
to the discretion of hearing officers who
have the knowledge and ability to
conduct hearings in accordance with
standard legal practice. There is nothing
in the Act or these regulations that
would prohibit a hearing officer from
making determinations on procedural
matters not addressed in the Act so long
as such determinations are made in a
manner that is consistent with a parent’s
or a public agency’s right to a timely
due process hearing.
Changes:
None.
Comment:
One commenter stated that
the Act does not provide adequate
guidance on the specific set of legal
procedures that must be followed in
conducting a due process hearing and
recommended that the regulations
include guidance regarding the
following: Limiting the use of hearsay
testimony; requiring all testimony to be
subject to cross-examination; the order
of testimony; timelines; and the statute
of limitations. The commenter stated
that while timelines and the statute of
limitations are addressed in the Act,
there are no consequences for failure to
comply.
Discussion:
In addition to addressing
timelines, hearing rights, and statutes of
limitations, the Act and these
regulations also address a significant
due process right relating to the
impartiality and qualifications of
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hearing officers. Under Section 615(f)(3)
of the Act and § 300.511(c), a hearing
officer must possess the knowledge and
ability to conduct hearings in
accordance with appropriate, standard
legal practice. Hearing officers consider
failure to comply with timelines and
statutes of limitations on a case-by-case
basis, depending on the specific
circumstances in each case. We believe
that the requirements for hearing
officers are sufficient to ensure that
proper legal procedures are used and
that it is not appropriate to regulate on
every applicable legal procedure that a
hearing officer must follow, because
those are matters of State law.
Changes:
None.
Agency Responsible for Conducting the
Due Process Hearing (§ 300.511(b))
Comment:
One commenter noted that
§ 300.511(b) refers to the State or a
public agency holding a hearing,
whereas the Act refers to the State or an
LEA holding a hearing. The commenter
requested clarification regarding
whether any agency, other than an LEA,
is permitted to hold a hearing under the
Act.
Discussion:
The term ‘‘public agency’’
in these regulations is intended to
address situations where an entity might
satisfy the definition of
public agency
in
§ 300.33, but would not satisfy the
definition of
LEA
in § 300.28. As set
forth in § 300.33, a
public agency
may
be responsible for the education of a
child with a disability. In these
circumstances, the public agency would
hold the due process hearing.
Changes:
None.
Impartial Hearing Officer (§ 300.511(c))
Comment:
A few commenters
recommended revising
§ 300.511(c)(1)(i)(B) to state that a
hearing officer must not have a personal
or professional conflict of interest.
Discussion:
Section 300.511(c)(1)(i)(B)
incorporates the language in section
615(f)(3)(A)(i)(II) of the Act and
provides that a hearing officer must not
be a person having a personal or
professional interest that conflicts with
the person’s objectivity in the hearing.
The meaning of this requirement is clear
and we do not believe it is necessary to
change it to ensure continued
compliance with this longstanding
requirement.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require the conduct of impartial hearing
officers to be addressed by the State
judicial code of conduct.
Discussion:
Under section 615(f)(3) of
the Act and § 300.511(c), a hearing
officer must possess the knowledge and
ability to conduct hearings and to
render and write decisions in
accordance with appropriate, standard
legal practice. We believe that this
provides sufficient guidance. The
application of State judicial code of
conduct standards is a State matter.
Changes:
None.
Comment:
One commenter noted that
§ 300.511(c)(1)(iii) and (iv) require a
hearing officer to possess the knowledge
and ability to conduct hearings and
render and write decisions in
accordance with appropriate, standard
legal practice, and recommended that
the regulations outline standard legal
practice so that parents without attorney
representation will have this
information.
Discussion:
The requirements in
§ 300.511(c)(1)(iii) and (iv) incorporate
the requirements in section
615(f)(3)(A)(iii) and (iv) of the Act.
These requirements are general in
nature and appropriately reflect the fact
that standard legal practice will vary
depending on the State in which the
hearing is held. Accordingly, it would
not be feasible to outline standard legal
practice in these regulations, as
recommended by the commenter.
Changes:
None.
Comment:
Some commenters
recommended that the regulations
require hearing officers to receive
ongoing, periodic professional
development regarding new regulations
and court decisions so that their
decisions reflect the latest developments
and interpretations. A few commenters
recommended requiring SEAs to
provide training for hearing officers by
trainers who are experienced in
conducting hearings and writing
decisions in accordance with standard
legal practice. A few commenters
recommended that the regulations
require hearing officers to be informed
that they are bound by the decisions of
courts that govern their jurisdiction.
Discussion:
It is not necessary to
regulate in the manner recommended by
the commenters because this is a
responsibility of each State. The Act
prescribes minimum qualifications for
hearing officers, which are reflected in
§ 300.511(c). Pursuant to its general
supervisory responsibility, each State
must ensure that individuals selected to
conduct impartial due process hearings
meet the requirements in
§ 300.511(c)(1)(ii) through (iv). States
are in the best position to determine the
required training and the frequency of
the required training, consistent with
State rules and policies.
Changes:
None.
Comment:
One commenter noted that
the Act does not include the provision
in § 300.511(c)(2), which provides that a
person who otherwise qualifies to
conduct a hearing is not an employee of
the agency solely because he or she is
paid by the agency to serve as a hearing
officer. The commenter, therefore,
recommended removing § 300.511(c)(2).
Discussion:
We do not agree that the
provision should be removed. This
provision is longstanding. Although the
Act prohibits an individual who is
employed by a public agency involved
in the education or care of the child to
be a hearing officer, we believe that it
is important to continue to clarify that
a person’s payment for serving as a
hearing officer does not render that
individual a public agency employee
who is excluded from serving as a
hearing officer. In many instances,
public agencies retain hearing officers
under contract. The fact that an
individual is hired by a public agency
solely for the purpose of serving as a
hearing officer does not create an
excluded employee relationship. Public
agencies need to ensure that hearing
officers conduct due process hearings
and it is only reasonable that those
persons are paid for their work as
hearing officers.
Changes:
None.
Comment:
Some commenters
requested that the regulations require
SEAs to make the list of hearing officers
and their qualifications available to the
public.
Discussion:
Public agencies must
maintain a list of persons who serve as
hearing officers and a statement of their
qualifications. However, there is
nothing in the Act that requires a public
agency to make information regarding
the qualifications of hearing officers
available to the public. Parents do not
select the hearing officer to hear their
complaints. Therefore, we do not
believe that it is necessary to require
public agencies to provide information
regarding the qualifications of hearing
officers to the public, and we decline to
regulate in this regard. The commenter’s
recommendation would impose an
additional burden on public agencies
that is not required by the Act.
Changes:
None.
Subject Matter of Due Process Hearings
(§ 300.511(d))
Comment:
A few commenters
requested that the regulations clarify
that the party requesting the due process
hearing may raise issues that are
included in any amendments to the
complaint. One commenter requested
clarification regarding whether the party
that the complaint is against can raise
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other issues. A few commenters
recommended that the regulations
clarify that hearing officers may raise
and resolve issues concerning
noncompliance even if the party
requesting the hearing does not raise the
issues.
Discussion:
Section 300.508(d)(4) and
section 615(c)(2)(E)(ii) of the Act
provide that the applicable timeline for
a hearing shall begin at the time that a
party files an amended complaint, and
makes clear that after the party files an
amended complaint, timelines for the
resolution meeting and the opportunity
to resolve the complaint begin again.
The issues raised in the amended
complaint would be the subjects of the
resolution meeting, and these issues
also would be addressed in a due
process hearing, if the LEA does not
resolve the dispute to the satisfaction of
the parent through the resolution
process.
The Act does not address whether the
non-complaining party may raise other
issues at the hearing that were not
raised in the due process complaint, and
we believe that such matters should be
left to the discretion of hearing officers
in light of the particular facts and
circumstances of a case. The Act also
does not address whether hearing
officers may raise and resolve issues
concerning noncompliance even if the
party requesting the hearing does not
raise the issues. Such decisions are best
left to individual State’s procedures for
conducting due process hearings.
Changes:
None.
Comment:
One commenter
recommended that the Department
include in the regulations language that
allocates the burden of proof to the
moving party.
Discussion:
Although the Act does not
address allocation of the burden of proof
in due process hearings brought under
the Act, the U.S. Supreme Court
recently addressed the issue. In
Schaffer
v.
Weast,
546 U.S. —, 126 S. Ct. 528
(2005) (
Schaffer
), the Court first noted
that the term ‘‘burden of proof’’ is
commonly held to encompass both the
burden of persuasion (i.e., which party
loses if the evidence is closely balanced)
and the burden of production (i.e., the
party responsible for going forward at
different points in the proceeding). In
Schaffer,
only the burden of persuasion
was at issue. The Court held that the
burden of persuasion in a hearing
challenging the validity of an IEP is
placed on the party on which this
burden usually falls—on the party
seeking relief—whether that is the
parent of the child with a disability or
the school district. Since Supreme Court
precedent is binding legal authority,
further regulation in this area is
unnecessary. In addition, we are not
aware of significant questions regarding
the burden of production that would
require regulation.
Changes:
None.
Timeline for Requesting a Hearing
(§ 300.511(e)) and Exceptions to the
Timeline (§ 300.511(f))
Comment:
Some commenters stated
that exceptions to the timeline in
§ 300.511(f) should include situations in
which a parent is unable to file a due
process complaint because the parent is
not literate or cannot write in English.
One commenter recommended
considering the parent’s degree of
English fluency and other factors in
determining the parent’s ability to have
knowledge about the alleged action that
is the basis for the due process
complaint.
Discussion:
Section 300.511(f),
consistent with section 615(f)(3)(D) of
the Act, provides explicit exceptions to
the statute of limitations for filing a due
process complaint. These exceptions
include situations in which the parent
is prevented from filing a due process
complaint because the LEA withheld
from the parent information that is
required to be provided to parents under
these regulations, such as failing to
provide prior written notice or a
procedural safeguards notice that was
not in the parent’s native language, as
required by §§ 300.503(c) and
300.504(d), respectively. Additionally,
in States using the timeline in
§ 300.511(e) (i.e., ‘‘within two years of
the date the parent or agency knew or
should have known about the alleged
action that forms the basis of the
complaint’’), hearing officers will have
to make determinations, on a case-by-
case basis, of factors affecting whether
the parent ‘‘knew or should have
known’’ about the action that is the
basis of the complaint. Therefore, we
decline to add additional exceptions to
§ 300.511(f).
Changes:
None.
Comment:
Some commenters
requested that the regulations clarify
whether the statute of limitations in
section 615(b)(6)(B) of the Act is the
same statute of limitations in section
615(f)(3)(C) of the Act. The commenters
stated that the Act and regulations are
confusing because the statute of
limitations is mentioned twice and
implies that the timeline for filing a
complaint and filing a request for a due
process hearing are different.
Discussion:
The statute of limitations
in section 615(b)(6)(B) of the Act is the
same as the statute of limitations in
section 615(f)(3)(C) of the Act. Because
we are following the structure of the
Act, we have included this language in
§§ 300.507(a)(2) and 300.511(e).
Changes:
None.
Comment:
Some commenters
recommended that the regulations
clarify that ‘‘misrepresentations’’ by an
LEA in § 300.511(f)(1) include
misleading, as well as false, statements.
The commenters stated that misleading
statements create the same obstacle for
parents as false statements in terms of
when parents know about an alleged
violation. One commenter
recommended that
‘‘misrepresentations’’ include both
intentional and unintentional
misrepresentations.
Discussion:
We do not believe it is
appropriate to define or clarify the
meaning of ‘‘misrepresentations,’’ as
requested by the commenters. Such
matters are within the purview of the
hearing officer. If the complaining party
believes that the timeline in § 300.511(e)
should not apply, the complaining party
would need to ask the hearing officer to
determine whether an untimely due
process complaint can proceed to
hearing based on misrepresentations by
an LEA. The hearing officer would then
determine whether the party’s allegation
constitutes an exception to the
applicable timeline.
Changes:
None.
Additional Disclosure of Information
(§ 300.512(b))
Comment:
One commenter
recommended that the regulations
permit parties to mutually consent to
waive the five-day timeline and
exchange documents closer to the
hearing date.
Discussion:
There is nothing in the
Act or these regulations that would
prevent the parties from agreeing to
disclose relevant information to all
other parties less than five business
days prior to a due process hearing.
Changes:
None.
Hearing Decisions (§ 300.513)
Decision of Hearing Officer
(§ 300.513(a))
Comment:
Some commenters
requested that the regulations clarify
that LRE is a substantive, not a
procedural, issue and that a hearing
officer can base relief on the failure of
an LEA to provide FAPE in the LRE to
the maximum extent possible. A few
commenters recommended that the
regulations allow a hearing officer to
dismiss a complaint or to rule on
summary judgment if there is no claim
or controversy to be adjudicated. The
commenters stated that hearing officers
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should be allowed to dismiss cases
when the alleged violation does not
focus on a substantive issue.
Discussion:
Section 300.513(a)(1) and
section 615(f)(3)(E) of the Act provide
that, in general, a decision made by a
hearing officer must be made on
substantive grounds based on a
determination of whether the child
received FAPE. Furthermore,
§ 300.513(a)(3), consistent with section
615(f)(3)(E)(iii) of the Act, allows a
hearing officer to order an LEA to
comply with procedural requirements
under §§ 300.500 through 300.536.
Although the Act and these
regulations require that hearing officers
base determinations of whether a child
received FAPE on substantive grounds,
hearing officers also may find that a
child did not receive FAPE based on the
specific procedural inadequacies set out
in § 300.513(a)(2), consistent with
section 615(f)(3)(E)(ii) of the Act.
Hearing officers continue to have the
discretion to dismiss complaints and to
make rulings on matters in addition to
those concerning the provision of FAPE,
such as the other matters mentioned in
§ 300.507(a)(1). To clarify this point, we
are revising the heading of § 300.513(a)
to refer to decisions of hearing officers
about FAPE, and are revising
§ 300.513(a)(1). The requirements in
§§ 300.507 through 300.508 governing
the content of the due process
complaint, including requirements for
sufficiency and complaint amendment,
and requirements governing the
resolution process in § 300.510 should
help to ensure that due process
complaints that are the subject of a due
process hearing under this part contain
claims that are appropriate for a hearing
officer’s decision.
Changes:
We have reworded
§ 300.513(a)(1) and revised the heading
of § 300.513(a) to refer to decisions
regarding FAPE.
Construction Clause (§ 300.513(b))
Comment:
Some commenters
recommended that the construction
clause in § 300.513(b) include that
nothing in §§ 300.507 through 300.513
shall be construed to affect the right of
a parent to file a complaint with the
SEA under §§ 300.151 through 300.153
for a procedural violation that does not
meet the requirements in
§ 300.513(a)(2).
Discussion:
We decline to make the
change requested because we think that
these matters are already addressed in
the regulations. Section 300.507(a)
describes the matters on which a party
can request a due process hearing.
Section 300.151(a) provides that an
organization or individual may file a
signed written complaint alleging that a
public agency has violated a
requirement of Part B of the Act, which
would include procedural violations
that would not meet the standard in
§ 300.507(a)(1).
Changes:
None.
Finality of Hearing Decision; Appeal;
Impartial Review (§ 300.514)
Comment:
One commenter
recommended clarifying that
§ 300.514(b) applies only to States with
a two-tier due process system.
Discussion:
We believe that
§ 300.514(b)(1) is clear that a State-level
appeal of a due process decision is
available only in States that have a two-
tiered due process system. This is a
longstanding provision, which is
consistent with section 615(g) of the
Act. We do not believe further
clarification in the text of the
regulations is necessary.
Changes:
None.
Timelines and Convenience of Hearings
and Reviews (§ 300.515)
Comment:
One commenter
recommended that the regulations
clarify when the various timelines for
resolution meetings and due process
hearings start and stop. One commenter
disagreed with § 300.515(a), stating that
the 45-day timeline should begin when
the public agency receives a request for
a due process hearing.
Discussion:
We agree that clarification
is needed regarding the various
timelines for resolution meetings and
due process hearings. As stated earlier
in the
Analysis of Comments and
Changes
in § 300.510, we have added a
new paragraph (c) in § 300.510 to
specify adjustments to the 30-day
resolution period and when the 45-day
timeline for due process hearings begins
for these exceptions. In order to be
consistent with this change, we are
changing the introductory language in
§ 300.515(a).
Changes:
We have changed the
introductory language in § 300.515(a) to
reference the adjustments to the 30-day
timeline in new § 300.510(c).
Comment:
A few commenters
recommended that the hearings and
reviews be conducted at a time and
place that are ‘‘mutually convenient’’ to
the parent and child involved, rather
than ‘‘reasonably convenient,’’ as
required in § 300.515(d). Another
commenter recommended that the
hearings and reviews be conducted at a
time and place that is reasonably
convenient to ‘‘all parties involved.’’
Discussion:
The Department believes
that every effort should be made to
schedule hearings at times and locations
that are convenient for the parties
involved. However, given the multiple
individuals that may be involved in a
hearing, it is likely that hearings would
be delayed for long periods of time if the
times and locations must be ‘‘mutually
convenient’’ for all parties involved.
Therefore, we decline to change this
regulation.
Changes:
None.
Civil Action (§ 300.516)
Comment:
Several commenters
recommended that the regulations
clarify that the 90-day timeline for a
party aggrieved by the findings and
decision of a due process hearing to file
a civil action begins either from the date
of a hearing officer’s decision or from
the date of a State review officer’s
decision, if the State has a two-tiered
due process system. One commenter
stated that many cases would be
inappropriately dismissed if this
regulation is not clarified.
Discussion:
We agree with the
commenters and are clarifying that the
party bringing the action has 90 days
from the date of the decision of the
hearing officer or the decision of the
State review official to file a civil action,
or, if the State has an explicit time
limitation for bringing civil actions
under Part B of the Act, in the time
allowed by that State law. This change
is needed to ensure that the applicable
time limitation does not penalize parties
in States with two-tier due process
systems that require a party aggrieved
by the due process hearing officer’s
decision to file a State-level appeal prior
to bringing a civil action in State or
Federal court.
Changes:
We have added ‘‘or, if
applicable, the decision of the State
review official,’’ in § 300.516(b) to
clarify the timeline for bringing a civil
action in States that have a two-tiered
due process system.
Comment:
Some commenters
recommended that the regulations
clarify that the State time limit for
bringing a civil action under Part B of
the Act can only be used if it is longer
than 90 days. One commenter
recommended that the regulations
clarify whether State law may establish
a time limit of less than the 90 days for
filing a civil action.
Discussion:
Section 300.516(b) and
section 615(i)(2)(B) of the Act provide
that the party bringing the action shall
have 90 days from the date of the
decision of the hearing officer or the
decision of the State review official to
file a civil action or, if the State has an
explicit time limitation for bringing civil
actions under Part B of the Act, in the
time allowed by that State law. There is
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no requirement that would limit the
State’s authority to set a time limit
longer than or shorter than 90 days and
we believe that the regulations are clear
that a State may set a longer or shorter
time limit under State law.
Changes:
None.
Comment:
One commenter
recommended that the regulations
require an LEA, at the conclusion of a
due process hearing, to provide a parent
who is not represented by counsel, a
written notice regarding the time limit
for filing a civil action.
Discussion:
Parents involved in a due
process hearing would already have
received information about the
availability of a civil action and the
timeline for filing a civil action when
they received the procedural safeguards
notice, in accordance with § 300.504.
We decline to require an additional
notice at the conclusion of a due process
hearing, because this would impose an
additional paperwork burden on public
agencies.
Changes:
None.
Attorneys’ Fees (§ 300.517)
Comment:
We received a number of
comments seeking clarification of, or
modifications to, the statutory language
governing the award of attorneys’ fees.
Some commenters recommended that
the regulations require the SEA or LEA
to affirmatively prove that the parent’s
intent was improper in order to be
awarded attorneys’ fees under this
provision. A few commenters
recommended modifying the regulations
to expressly require a determination by
a court that the complaint or cause of
action was frivolous, unreasonable, or
without foundation, before an award of
attorneys’ fees can be considered.
One commenter requested that the
regulations clarify that section
615(i)(3)(B)(i) of the Act seeks to codify
the standards set forth in
Christiansburg
Garment Co.
v.
EEOC
, 434 U.S. 412
(1978), and that the principles set forth
in this action (that attorneys’ fees may
only be awarded to defendants in
actions where the plaintiffs’ claims are
frivolous, without foundation, or
brought in bad faith) should apply in
favor of school districts and parents,
since either party can bring complaints.
One commenter recommended that
§ 300.517(a)(1)(ii) and (iii) be revised to
refer to an attorney of a parent or a
parent because there are many parents
who are attorneys representing their
children in due process hearings.
Another commenter recommended
including language that the parent must
be the prevailing party on substantive
grounds in order to claim an award of
attorneys’ fees.
Discussion:
Section 300.517(a)
incorporates the language in section
615(i)(3)(B) of the Act. Further guidance
on the interpretation of this statutory
language is not appropriate since
judicial interpretations of statutory
provisions will necessarily vary based
upon case-by-case factual
determinations, consistent with the
requirement that the award of
reasonable attorneys’ fees is left to a
court’s discretion.
With regard to the recommendation
that we include language that the parent
must be the prevailing party on
substantive grounds, we decline to
regulate because we believe that the
statutory provisions regarding attorneys’
fees are appropriately described in
§ 300.517. Furthermore, section
615(f)(3)(E) of the Act, reflected in
§ 300.513, recognizes both that hearing
officer determinations that a child did
not receive FAPE, in some
circumstances, may be based on
procedural violations, and that hearing
officers may order LEAs to comply with
procedural requirements. Either of these
circumstances, in appropriate cases,
might result in a parent being
determined to be a prevailing party for
purposes of claiming attorneys’ fees.
We decline to add language to
§ 300.517(a)(1)(ii) to refer to a parent
who is an attorney, because the
reference to ‘‘an attorney of a parent’’
would include anyone serving as an
attorney.
Changes:
None.
Comment:
One commenter
recommended that § 300.517(a)(1)(iii),
regarding attorneys’ fees, be changed to
include non-attorney advocates who are
acting on behalf of parents and provide
that these individuals be held to the
same standard as attorneys. Another
commenter expressed concern regarding
circuit court rulings that require SEAs to
pay for expert witnesses for parents who
cannot afford them. The commenter
recommended that the regulations
permit SEAs to establish a list of private
experts who are willing to testify at due
process hearings and to use funds
provided under Part B of the Act to pay
such experts when either party uses
them.
Discussion:
Section 615(i)(3)(B) of the
Act allows a court to award reasonable
attorneys’ fees as a part of the costs to
a parent who is the prevailing party.
Although the Act also provides parents
with the right to be accompanied and
advised by individuals with special
knowledge or training with respect to
the problems of children with
disabilities at a due process hearing, it
does not provide for awarding attorneys’
fees to these other individuals. Lay
advocates are, by definition, not
attorneys and are not entitled to
compensation as if they were attorneys.
In addition, consistent with the
Supreme Court’s recent decision in
Arlington Central Sch. Dist. Bd. of Educ.
v.
Murphy
, No. 05–18, U.S., 2006 U.S.
LEXIS 5162 (June 26, 2006), if Congress
wishes to allow recovery of experts’ fees
by prevailing parents, it must include
explicit language authorizing that
recovery, which was not done in the
Act. This would apply whether the
expert was seeking payment for
testifying or advocating.
Changes:
None.
Comment:
One commenter stated that
attorneys’ fees should be available for
resolution meetings because parents are
required to attend these meetings before
a due process hearing can begin.
Another commenter recommended that
the regulations clarify that the
prohibition on attorneys’ fees for
resolution activities applies to the
resolution meeting, as well as any
resolution agreement. One commenter
requested that the regulations clarify
that attorneys’ fees for resolution
meetings will not be paid until a
compromise is reached, and will be
based on the resolution meeting itself
and not the work that the attorney puts
into preparing for the resolution
meeting.
Discussion:
Section 300.517(c)(2)(iii)
of the regulations, consistent with
section 615(i)(3)(D)(iii) of the Act,
specifies that the resolution meeting is
not considered to be a meeting
convened as a result of an
administrative hearing or judicial action
or an administrative hearing or judicial
action for purposes of the attorneys’ fees
provision. Accordingly, such fees may
not be awarded for resolution meetings.
While it is clear that attorneys’ fees
may not be awarded for resolution
meetings, the Act is silent as to whether
attorneys’ fees are available for activities
that occur outside the resolution
meeting conducted pursuant to section
615(f)(1)(B)(i) of the Act and
§ 300.510(a). We decline to regulate on
this issue because we believe these
determinations will be fact-specific and
should be left to the discretion of the
court.
Changes:
None.
Comment:
A few commenters asked
whether attorneys’ fees can be awarded
for attending an IEP Team meeting that
is convened as a result of a mediation
session conducted prior to the filing of
a due process complaint or for attending
an IEP Team meeting that is convened
as a result of a mediation session
conducted at any time.
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Discussion:
Section 615(i)(3)(D)(ii) of
the Act permits States to determine
whether attorneys’ fees may be awarded
for an IEP Team meeting that results
from a mediation session described in
§ 300.506. Section 300.517(c)(2)(ii), as
proposed, inadvertently, limited States
to considering awarding attorneys’ fees
for an IEP Team meeting conducted as
the result of a mediation arising prior to
the filing of a due process request. This
was an error and has been corrected to
allow States the discretion to award
attorneys’ fees for a meeting of the IEP
Team conducted as a result of any
mediation described in § 300.506.
Changes:
In order to be consistent
with section 615(i)(3)(D)(ii) of the Act,
we have revised § 300.517(c)(2)(ii) by
placing a period after the reference to
§ 300.506 and removing the rest of the
sentence.
Comment:
One commenter
recommended that attorneys’ fees
should also apply to due process
complaints brought by private schools
or agencies, not just families.
Discussion:
Section 300.507(a)(1)
permits a parent or a public agency to
file a due process complaint under the
Act. Private schools or agencies are not
permitted to file a due process
complaint under the Act. Under section
615(f)(1)(A) of the Act, only the parents
and public agency are authorized to
request a due process hearing.
Changes:
None.
Comment:
One commenter requested
that the regulations clarify in
§ 300.517(c)(3) what standard will be
used to determine whether a parent was
substantially justified in rejecting a
settlement offer.
Discussion:
It would be inappropriate
to include a standard for determining
whether a parent is substantially
justified in rejecting a settlement offer
because such matters will depend on
the specific facts and circumstances in
each case. The hearing officer, as the
designated trier of fact under the Act, is
in the best position to determine
whether a parent was substantially
justified in rejecting a settlement offer.
We would expect that a hearing officer’s
decision will be governed by commonly
applied State evidentiary standards,
such as whether the testimony is
relevant, reliable, and based on
sufficient facts and data.
Changes:
None.
Child’s Status During Proceedings
(§ 300.518)
Comment:
A few commenters
requested clarification regarding
whether the current educational
placement is the last agreed-upon
placement. One commenter requested
clarification as to whether the pendent
placement is the regular education class
or a class or program selected by the
child’s IEP Team.
Discussion:
We believe that there is
no need for further regulations in this
area. The current educational placement
during the pendency of any
administrative or judicial proceeding
described in § 300.518 and section
615(j) of the Act, refers to the setting in
which the IEP is currently being
implemented. The child’s current
placement is generally not considered to
be location-specific.
Changes:
None.
Comment:
One commenter
recommended clarifying that an IFSP is
not a child’s pendent placement as the
child transitions from a Part C early
intervention program to a Part B
preschool program.
Discussion:
The programs under Parts
B and C of the Act differ in their scope,
eligibility, and the services available.
Services under Part B of the Act are
generally provided in a school setting.
By contrast, services under Part C of the
Act are provided, to the maximum
extent appropriate, in the natural
environment, which is often the infant
or toddler’s home or other community
program designed for typically
developing infants or toddlers. The
Department has long interpreted the
current educational placement language
in the stay-put provisions in section
615(j) of the Act and § 300.518(a) as
referring only to the child’s placement
under Part B of the Act and not to the
early intervention services received by
the child under Part C of the Act. We
believe that a child who previously
received services under Part C of the
Act, but has turned three and is no
longer eligible under Part C of the Act,
and is applying for initial services under
Part B of the Act, does not have a
‘‘current educational placement.’’
We are adding language to clarify that
if the complaint involves an application
for initial services under Part B of the
Act from a child who has turned three
and is no longer eligible under Part C of
the Act, the public agency is not
required to continue providing the early
intervention services on the child’s
IFSP. The provision clarifies that a
public agency must obtain parental
consent prior to the initial provision of
special education and related services,
consistent with § 300.300(b), and if a
child is eligible under Part B of the Act
and the parent provides consent under
§ 300.300(b), the public agency must
provide those special education and
related services that are not in dispute
between the parent and the public
agency.
Changes:
We have added a new
paragraph (c) in § 300.518 to clarify the
Department’s longstanding policy that if
a complaint involves an application for
initial services under Part B of the Act
from a child who has turned three and
is no longer eligible under Part C of the
Act, the public agency is not required to
continue providing the early
intervention services on the child’s
IFSP. Proposed § 300.518(c) has been
redesignated as new § 300.518(d).
Comment:
One commenter
recommended revising § 300.518 to
clearly state that during the pendency of
any administrative or judicial
proceeding, LEAs are not absolved of
their obligation to fully comply with all
substantive and procedural
requirements in Part B of the Act, with
the exception of requirements that are
impossible to fulfill because of the stay
put order or because of a parent’s
refusal.
Discussion:
We do not agree that the
change requested by the commenter is
necessary. Section 615(j) of the Act and
§ 300.518 provide that during the
pendency of any administrative or
judicial proceeding regarding a due
process complaint under § 300.507,
except as provided in § 300.533, unless
the parent and the SEA or LEA agree to
a proposed change in the educational
placement of the child, the child
remains in the current educational
placement. Implicit in maintaining a
child’s current educational placement is
the requirement that the public agency
must ensure that FAPE continues to be
made available to the child.
Changes:
None.
Comment:
A few commenters
recommended that stay put not apply to
a child if the child’s parent fails to
participate in a resolution meeting.
Another commenter expressed concern
about the applicability of the stay put
provision when resolution meetings are
delayed.
Discussion:
The Act now makes the
resolution process a prerequisite to an
impartial due process hearing. Under
section 615(j) of the Act, a child must
be maintained in the current
educational placement while
proceedings under the Act are pending,
and paragraph (a) of § 300.518 clarifies
that unless the parent and the public
agency agree otherwise, the child
involved in the complaint must remain
in his or her current educational
placement during the pendency of any
administrative or judicial proceeding
regarding a due process complaint
under § 300.507. Thus, the Act is clear
that the public agency must maintain
the child’s current educational
placement during the pendency of the
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30-day resolution process, which is
triggered once the parent files a due
process complaint under this part,
regardless of whether the due process
complaint is resolved prior to a due
process hearing. We believe it is
important for this to be clear in the
procedural safeguards notice. Therefore,
we are changing § 300.504(c)(7) to
clarify that the notice must inform
parents about the child’s placement
during the pendency of any due process
complaint.
Since a party must file a due process
complaint as the first step in the hearing
process, we also are making a change in
§ 300.518(a) to refer to a due process
complaint, rather than a request for a
due process hearing. This change is
needed to clarify that a child’s right to
remain in the current educational
placement attaches when a due process
complaint is filed, regardless of whether
the due process complaint results in a
request for a due process hearing.
Changes:
We have removed the
reference in § 300.504(c)(7) to due
process ‘‘hearings’’ and added ‘‘any due
process complaint’’ to clarify that the
procedural safeguards notice must
include information regarding the
child’s placement during the pendency
of any due process complaint. We also
have changed § 300.518 by removing the
words ‘‘request for a due process
hearing’’ prior to the reference to
§ 300.507 and adding, in their place, the
words ‘‘due process complaint.’’
Comment:
One commenter
recommended including language to
invalidate the stay put agreement if the
original decision is reversed at the
second tier hearing or in a judicial
appeal. One commenter recommended
providing interim financial relief for
parents if an LEA appeals the decision
of a due process hearing officer to
maintain a child with a disability in a
private school setting.
Discussion:
We are maintaining the
provisions in proposed § 300.518(c),
(new § 300.518(d)), but with one
modification. The basis for this
regulation is the longstanding judicial
interpretation of the Act’s pendency
provision that when a hearing officer’s
decision is in agreement with the parent
that a change in placement is
appropriate, that decision constitutes an
agreement by the State agency and the
parent 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, 372 (1985);
Susquenita School
District
v.
Raelee S.,
96 F.3d 78, 84 (3rd
Cir. 1996);
Clovis Unified Sch. Dist.
v.
Cal. Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990). To
clarify that new § 300.518(d) (proposed
§ 300.518(c)) does not apply to a first-
tier due process hearing decision in a
State that has two tiers of administrative
review, but only to a State-level hearing
officer’s decision in a one-tier system or
State review official’s decision in a two-
tier system that is in favor of a parent’s
proposed placement, we are removing
the reference to ‘‘local agency’’ in new
§ 300.518(d). This change is made to
align the regulation more closely with
case law.
With regard to the concern about
providing financial relief for prevailing
parents when an LEA appeals the
decision of a due process hearing to
maintain a child with a disability in a
private school setting, we decline to
regulate on this issue because such
decisions are matters best left to State
law, hearing officers, and courts.
Changes:
We have removed ‘‘or local
agency’’ in new § 300.518(d) (proposed
§ 300.518(c)) because a decision by a
hearing officer or a State review official
in favor of a parent’s proposed
placement is an agreement between the
parent and the State, not the local
agency.
Comment:
One commenter
recommended clarifying that any
agreement by a parent to waive the stay
put protection must comply with the
requirements for consent in § 300.9.
Discussion:
Consent is required when
a pending complaint involves an
application for initial admission to
public school. In this case, parental
consent is required for the child to be
placed in the public school until the
completion of all proceedings,
consistent with § 300.518(b) and section
615(j) of the Act. Other waivers of the
stay put protections while an
administrative or judicial proceeding is
pending, need only be by agreement
between the parent and the public
agency.
Changes:
None.
Surrogate Parents (§ 300.519)
Comment:
A few commenters asked
whether a student in the penal system
has a right to a surrogate parent.
Discussion:
Students with disabilities
in State correctional facilities do not
have an automatic right to a surrogate
parent solely by reason of their
confinement at a correctional facility.
Public agencies must make case-by-case
determinations in accordance with the
requirements in § 300.519, regarding
whether a student with a disability in a
State correctional facility needs a
surrogate parent. Whether a student
with a disability confined in a State
correctional facility is considered a
ward of the State,
as defined in new
§ 300.45 (proposed § 300.44) whose
rights must be protected through the
appointment of a surrogate parent, is a
matter that must be determined under
State law.
Changes:
None.
Comment:
One commenter
recommended defining the term
‘‘locate’’ as used in § 300.519.
Discussion:
‘‘Locate,’’ as used in
§ 300.519(a)(2), regarding a public
agency’s efforts to locate a child’s
parent, means that a public agency
makes reasonable efforts to discover the
whereabouts of a parent, as defined in
§ 300.30, before assigning a surrogate
parent. We do not believe that it is
necessary to define ‘‘locate’’ in these
regulations because it has the same
meaning as the common meaning of the
term.
Changes:
None.
Duties of Public Agency (§ 300.519(b))
Comment:
A number of comments
were received regarding the procedures
for assigning surrogate parents. One
commenter recommended requiring
LEAs to appoint a surrogate parent
unless the juvenile court has already
appointed one. The commenter stated
that this would avoid situations in
which the LEA and juvenile court each
believe that the other is assuming this
responsibility and a surrogate parent is
never appointed.
A few commenters recommended that
the process for assigning surrogate
parents within the 30-day timeframe be
developed in collaboration with judges
and other child advocates. Some
commenters recommended that the
regulations require the involvement of
child welfare agencies, homeless
liaisons, and any other party who has
knowledge about the needs of homeless
children or children in foster care in
determining whether a surrogate parent
is needed.
Discussion:
It is not necessary to
amend the regulations in the manner
recommended by the commenters. To
ensure that the rights of children with
disabilities are protected, § 300.519(b)
requires public agencies to have a
method for determining whether a child
needs a surrogate parent and for
assigning a surrogate parent to a child.
Such methods would include
determining whether a court has already
appointed a surrogate parent, as
provided under § 300.519(c). Therefore,
it is unnecessary to add language
requiring LEAs to appoint a surrogate
parent unless the juvenile court has
already appointed one, as requested by
a commenter. Section 300.519(d)(1)
allows a public agency to select a
surrogate parent in any way permitted
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under State law, and § 300.519(h)
requires the SEA to make reasonable
efforts to ensure the assignment of a
surrogate parent not more than 30 days
after a public agency determines that the
child needs a surrogate parent.
We believe that the determination of
whether public agencies collaborate
with other parties, such as child welfare
agencies or homeless liaisons, in
appointing surrogate parents is best left
to State discretion. There is nothing in
the Act that would prohibit a public
agency from collaborating with judges
and child advocates in establishing a
process for assigning surrogate parents,
as recommended by the commenter.
However, in situations where a public
agency involves other parties in
determining whether a surrogate parent
is needed, the public agency must
ensure that the confidentiality of
personally identifiable data,
information, and records collected or
maintained by SEAs and LEAs is
protected in accordance with §§ 300.610
through 300.627, and that the privacy of
education records is protected under
FERPA and its implementing
regulations in 34 CFR part 99.
Changes:
None.
Comment:
One commenter
recommended retaining current
§ 300.370(b)(2), which specifically
mentions the recruitment and training
of surrogate parents as a State-level
activity for which funds provided under
Part B of the Act may be used. One
commenter requested clarification as to
who should provide training for
surrogate parents. A few commenters
recommended that PTIs in each State be
responsible for training surrogate
parents.
Discussion:
It is not necessary to
retain current § 300.370(b)(2) in order to
permit the continued use of funds
provided under Part B of the Act for the
recruitment and training of surrogate
parents. Section 300.704(b) and section
611(e)(2)(C)(i) of the Act provide that
funds reserved for other State-level
activities may be used for support and
direct services, including technical
assistance, personnel preparation, and
professional development and training.
This would include the recruitment and
training of surrogate parents.
Determinations regarding who should
conduct the training for surrogate
parents are best left to the discretion of
State and local officials. There is
nothing in the Act or these regulations
that requires or prohibits surrogate
parent training to be conducted by PTIs.
Changes:
None.
Comment
: A few commenters
recommended that a child have the
same surrogate parent for each IEP Team
meeting, eligibility meeting, and other
meetings in which a parent’s presence is
requested by the public agency.
Discussion:
The Act and these
regulations do not address the length of
time that a surrogate parent must serve.
Nor do we believe that it would be
appropriate to impose a uniform rule in
light of the wide variety of
circumstances that might arise related to
a child’s need for a surrogate parent.
Even so, to minimize disruption for the
child, public agencies should take steps
to ensure that the individual appointed
as a surrogate parent can serve in that
capacity over the period of time that the
child needs a surrogate.
Changes:
None.
Wards of the State (§ 300.519(c))
Comment
: Many commenters stated
that the requirements for a surrogate
parent for public wards of the State
(when a judge overseeing a case
appoints a surrogate parent) are less
stringent than the requirements for
surrogate parents for other children. The
commenters stated that the
requirements that surrogate parents
have no personal or professional interest
that conflicts with the interest of the
child, and have knowledge and skills
that ensure adequate representation of
the child, as required in
§ 300.519(d)(2)(ii) and (iii), respectively,
should be required for surrogate parents
for children who are wards of the State.
One commenter recommended that
court-appointed surrogate parents
should have to meet Federal
requirements for surrogate parents, not
the requirements promulgated by LEAs.
The commenter stated that courts may
have jurisdiction over cases from more
than one school district and should not
have to apply different standards
depending on which school district is
involved.
Discussion:
The criteria for selecting
surrogate parents in § 300.519(d)(2)(ii)
and (iii), which apply to surrogate
parents appointed by a public agency
for children with disabilities under Part
B of the Act, do not apply to the
selection of surrogate parents for
children who are wards of the State
under the laws of the State. Section
615(b)(2)(A)(i) of the Act provides that,
in the case of a child who is a ward of
the State, a surrogate parent may
alternatively be appointed by the judge
overseeing the child’s care, provided
that the surrogate parent is not an
employee of the SEA, the LEA, or any
other agency that is involved in the
education or care of the child. We
decline to impose additional
requirements for surrogate parents for
children who are wards of the State
beyond what is required in the Act, so
as to interfere as little as possible with
State practice in appointing individuals
to act for the child. However, we would
expect that in most situations, the court-
appointed individuals will not have
personal or professional interests that
conflict with the interests of the child
and will have the knowledge and skills
to adequately represent the interests of
the child.
Changes:
None.
Comment:
One commenter
recommended that the regulations
clarify that if a parent under § 300.30 is
known and the child is a ward of the
State, the public agency must appoint a
surrogate parent only if the public
agency determines that a surrogate
parent is needed to protect the
educational interests of the child. The
commenter stated that the public agency
should not appoint a surrogate parent
without approval of a court of
competent jurisdiction if the parent is
the biological or adoptive parent whose
rights to make educational decisions for
the child have not been terminated,
suspended, or limited.
Discussion:
The commenters’ concern
is already addressed in the regulations.
Section 300.30(b)(1) provides that when
there is more than one party attempting
to act as a parent, the biological or
adoptive parent must be presumed to be
the parent, unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child.
Changes:
None.
Comment:
Some commenters noted
that the regulations do not protect a
child who is a ward of the tribe in the
same manner as a child who is a ward
of the State. The commenters stated that
this means that American Indian
children have less protection than
children of other ethnicities and
recommended that the regulations
clarify that wards of the State include
children who are wards of a tribe of
competent jurisdiction.
Discussion:
The definition of
State
in
new § 300.40 (proposed § 300.39) is
based on section 602(31) of the Act,
which does not include an Indian tribe
or tribal governing body. Therefore, the
Department does not have the authority
to interpret ward of the State to include
children who are wards of a tribe of
competent jurisdiction. However this
does not relieve States or the BIA of
their responsibility to ensure that the
rights of a child who is a ward of a tribe
are protected through the appointment
of a surrogate parent under § 300.519
when no parent can be identified; when
the agency cannot, after reasonable
efforts, locate a parent; or when the
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child is an unaccompanied homeless
youth.
Changes:
None.
Criteria for Selection of Surrogates
(§ 300.519(d))
Comment:
Many commenters
recommended that the regulations
require public agencies to develop
procedures to terminate the
appointment of a surrogate parent if the
person does not perform the duties of a
surrogate parent. The commenters stated
that such procedures should be
developed in collaboration with the
child welfare agency, as well as any
other party knowledgeable about a
child’s need for surrogate assignments,
including homeless liaisons, court-
appointed special advocates, guardians
ad litem
, attorneys, or judges.
Discussion:
If a public agency learns
that an individual appointed as a
surrogate parent is not carrying out the
responsibilities of a surrogate parent in
§ 300.519(g), the public agency,
consistent with its obligation to protect
the rights of children with disabilities
under the circumstances set out in
§ 300.519(a), would need to take steps to
terminate the appointment of a
surrogate parent. It is up to each State
to determine whether procedures to
terminate surrogate parents are needed
and whether to collaborate with other
agencies as part of any procedures they
may choose to develop.
Changes:
None.
Comment:
A few commenters stated
that the regulations should specify that
an LEA cannot replace a surrogate
parent simply because the surrogate
parent disagrees with an LEA.
Discussion:
As noted in the response
to the prior comment, public agencies
have a responsibility to ensure that a
surrogate parent is carrying out their
responsibilities, so there are some
circumstances when removal may be
appropriate. A mere disagreement with
the decisions of a surrogate parent about
appropriate services or placements for
the child, however, generally would not
be sufficient to give rise to a removal,
as the role of the surrogate parent is to
represent the interests of the child,
which may not be the same as the
interests of the public agency. We do
not think a regulation is necessary,
however, as we believe that the rights of
the child with a disability are
adequately protected under Section 504
of the Rehabilitation Act (Section 504)
and Title II of the Americans with
Disabilities Act (Title II), which prohibit
retaliation or coercion against any
individual who exercises their rights
under Federal law for the purpose of
assisting children with disabilities by
protecting rights protected under those
statutes. See, 34 CFR 104.61, referencing
34 CFR 100.7(e); 28 CFR 35.134. These
statutes generally prohibit
discrimination against individuals on
the basis of disability by recipients of
Federal financial assistance (Section
504) and prohibit discrimination against
individuals on the basis of disability by
State and local governments (Title II).
Changes:
None.
Non-Employee Requirement;
Compensation (§ 300.519(e))
Comment:
A few commenters
recommended that the regulations state
that a foster parent is not prohibited
from serving as a surrogate parent for a
child solely because the foster parent is
an employee of the SEA, LEA, or other
agency that is involved in the education
or care of the child.
Discussion:
A child with a foster
parent who is considered a parent, as
defined in § 300.30(a), does not need a
surrogate parent unless State law,
regulations, or contractual obligations
with a State or local entity prohibit a
foster parent from acting as a parent,
consistent with § 300.30(a)(2).
Therefore, there is no need to change
the regulations in the manner suggested
by the commenters.
Changes:
None.
Unaccompanied Homeless Youth
(§ 300.519(f))
Comment:
A few commenters
requested clarification on how long the
appointment should be for a temporary
surrogate for an unaccompanied
homeless youth. A few commenters also
requested clarification on how the
conflict of interest, and knowledge and
skills requirements for surrogate parents
apply to temporary surrogate parents for
unaccompanied homeless youth.
Discussion:
Section 300.519(f) allows
LEAs to appoint a temporary surrogate
parent for a child who is an
unaccompanied homeless youth,
without regard to the requirement in
§ 300.519(d)(2)(i) that a surrogate parent
not be an employee of any agency
involved in the education or care of the
child. Thus, a temporary surrogate
parent for an unaccompanied homeless
youth may include State, LEA, or
agency staff that is involved in the
education or care of the child.
The Act does not specify how long a
temporary surrogate parent can
represent the child. Nor do we believe
it is necessary or appropriate to specify
a time limit for a temporary surrogate
parent, as the need for a temporary
surrogate parent will vary depending on
the specific circumstances and unique
problems faced by each unaccompanied
homeless youth.
Section 300.519(f) specifically allows
the appointment of a temporary
surrogate parent without regard to the
non-employee requirements in
§ 300.519(d)(2)(i). There are no similar
exceptions for the requirements in
§ 300.519(d)(2)(ii) and (iii). Therefore,
temporary surrogate parents for
unaccompanied homeless youth must
not have a personal or professional
interest that conflicts with the interest
of the child the surrogate parent
represents, and must have the
knowledge and skills that ensure
adequate representation of the child,
consistent with § 300.519(d)(2)(ii) and
(iii), respectively.
Changes:
None.
Surrogate Parent Responsibilities
(§ 300.519(g))
Comment:
A few commenters
requested a definition of ‘‘surrogate
parent.’’ Some commenters stated that
§ 300.519(g) provides only general
parameters regarding the
responsibilities of surrogate parents and
does not provide guidance on specific
duties or responsibilities of surrogate
parents. The commenters stated that, at
a minimum, the regulations should
require that States develop duties and
responsibilities for surrogate parents,
such as meeting with the child,
participating in meetings, and reviewing
the child’s education record.
Discussion:
We do not believe that it
is necessary to define ‘‘surrogate parent’’
because § 300.519(g), consistent with
section 615(b)(2) of the Act, clarifies
that a surrogate parent is an individual
who represents the child in all matters
related to the identification, evaluation,
and educational placement of the child,
and the provision of FAPE to the child.
This is a longstanding provision and is
intended to describe the areas in which
a surrogate parent may represent the
child.
We believe that the provisions in
§ 300.519 are sufficient to ensure that
public agencies fulfill their obligation to
ensure that the rights of children are
protected in the circumstances in
§ 300.519(a). Therefore, we believe it is
unnecessary, and would be over
regulating, to specify in these
regulations requirements for surrogate
parents to meet and get to know the
child prior to meetings, as
recommended by one commenter.
Likewise, we do not believe that it is
necessary to require public agencies to
develop specific duties and
responsibilities for surrogate parents
because public agencies already must
ensure that a surrogate parent has the
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knowledge and skills that ensure
adequate representation of the child,
consistent with § 300.519(d). However,
if a public agency determined there was
a need to specify the duties and
responsibilities for surrogate parents,
there is nothing in the Act or these
regulations that would prohibit them
from doing so.
Changes:
None.
SEA Responsibility (§ 300.519(h))
Comment:
Some commenters
recommended requiring LEAs to report
to the SEA when a child needs a
surrogate parent so that the SEA can
fulfill its obligation to ensure that
surrogate parents are assigned within
the 30-day timeframe required in
§ 300.519(h). Some commenters
requested clarification regarding what it
means for the SEA to make ‘‘reasonable
efforts’’ to appoint surrogate parents
within the 30-day timeframe. The
commenters recommended that SEAs
track whether LEAs or courts appoint
surrogate parents in a timely manner
and provide technical assistance to
LEAs and courts that fail to meet the 30-
day timeframe.
Some commenters stated that LEAs
spend too much time determining that
a surrogate parent is needed and
prolong the decision that a surrogate
parent is needed until the LEA is ready
to appoint the surrogate parent. One
commenter stated that children in
residential care facilities often have an
immediate need for a surrogate parent
and waiting 30 days to appoint a
surrogate parent could cause lasting
damage to a child.
Discussion:
It would be over-
regulating to specify the specific
‘‘reasonable efforts’’ that a State must
take to ensure that a surrogate parent is
appointed within the 30-day timeframe
required in § 300.519(h), because what
is considered a ‘‘reasonable effort’’ will
vary on a case-by-case basis. We do not
believe we should require LEAs to
report to the State when a child in their
district needs a surrogate parent or to
require SEAs to track how long it takes
LEAs and courts to appoint surrogate
parents because to do so would be
unnecessarily burdensome. States have
the discretion to determine how best to
monitor the timely appointment of
surrogate parents by their LEAs. States
also have discretion to use funds
reserved for other State-level activities
to provide technical assistance to LEAs
and courts that fail to meet the 30-day
timeframe, as requested by the
commenters.
Under their general supervisory
authority, States have responsibility for
ensuring that LEAs appoint surrogate
parents for children who need them,
consistent with the requirements in
§ 300.519 and section 615(b)(2) of the
Act. Therefore, if an LEA consistently
fails to meet the 30-day timeframe or
unnecessarily delays the appointment of
a surrogate parent, the State is
responsible for ensuring that measures
are taken to remedy the situation.
Changes:
None.
Transfer of Rights at Age of Majority
(§ 300.520)
Comment:
A few commenters
recommended clarifying § 300.520(a)(2)
to mean that all rights transfer to
children who have reached the age of
majority under State law.
Discussion:
To change the regulation
in the manner suggested by the
commenters would be inconsistent with
the Act. Section 615(m)(1)(D) of the Act
allows, but does not require, a State to
transfer all rights accorded to parents
under Part B of the Act to children who
are incarcerated in an adult or juvenile,
State or local correctional institution
when a child with a disability reaches
the age of majority under State law.
Changes:
None.
Comment:
A few commenters stated
that families are often unaware of the
transfer of rights at the age of majority
and recommended requiring schools to
inform parents and students in writing
of the transfer of rights one year prior
to the day the student reaches the age
of majority.
Discussion:
The commenters’
concerns are addressed elsewhere in the
regulations. Section 300.320(c),
consistent with section
614(d)(1)(A)(VIII)(cc) of the Act,
requires that, beginning not later than
one year before the child reaches the age
of majority under State law, the IEP
must include a statement that the child
has been informed of the child’s rights
under Part B of the Act, if any, that will
transfer to the child on reaching the age
of majority. Section 300.322(f)
(proposed § 300.322(e)) requires the
public agency to give a copy of the
child’s IEP to the parent, and, therefore,
parents are informed as well.
Changes:
None.
Comment:
One commenter
recommended that the regulations allow
parents to continue to serve as the
decision-maker and to retain the rights
under the Act even in situations where
the child is not determined to be
incompetent under State law, if the
student and parent agree in writing that
the parent retains such rights. The
commenter stated that a State may not
have a mechanism to determine that the
child does not have the ability to
provide informed consent, as required
in § 300.520(b), and if a State does have
such a mechanism, it may be costly and
time consuming for a parent to go to
court to retain such rights. The
commenter stated that an agreement
between the parent and student should
be a simple process whereby the student
and parent both sign a form stating their
agreement.
Discussion:
Section 300.520(b)
recognizes that some States have
mechanisms to determine that a child
with a disability who has reached the
age of majority under State law does not
have the ability to provide informed
consent with respect to his or her
educational program, even though the
child has not been determined
incompetent under State law. In such
States, the State must establish
procedures for appointing the parent
(or, if the parent is not available,
another appropriate individual) to
represent the educational interests of
the child throughout the remainder of
the child’s eligibility under Part B of the
Act. Whether parents may retain the
ability to make educational decisions for
a child who has reached the age of
majority and who can provide informed
consent is a matter of State laws
regarding competency. That is, the child
may be able to grant the parent a power
of attorney or similar grant of authority
to act on the child’s behalf under
applicable State law. We believe that the
rights accorded individuals at the age of
majority, beyond those addressed in the
regulation, are properly matters for
States to control.
To ensure that this provision is clear,
we are making minor changes to the
language. These changes are not
intended to change the meaning of
§ 300.520(b) from the meaning in
current § 300.517(b).
Changes:
We have changed
§ 300.520(b) for clarity.
Discipline Procedures (§§ 300.530
through 300.536)
Authority of School Personnel
(§ 300.530)
Case-by-Case Determination
(§ 300.530(a))
Comment:
Many commenters
requested clarifying the phrase
‘‘consider any unique circumstances on
a case-by-case basis’’ in § 300.530(a) and
what, if any, unique circumstances
should be considered. A few of these
commenters requested that the
regulations include specific criteria to
be used when making a case-by-case
determination. Other commenters
suggested clarifying that the purpose of
a case-by-case determination is to not
allow school personnel to remove a
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child to an interim alternative
educational setting for violating a code
of student conduct when to do so would
seem unjust under the circumstances.
Some commenters suggested clarifying
that the purpose of a case-by-case
determination is to limit, not expand,
disciplinary actions for a child with a
disability. One commenter expressed
concern that permitting school
personnel to consider any unique
circumstances on a case-by-case basis
when determining a change in
placement may result in schools
applying this provision to cases for
which it was not intended, potentially
resulting in a denial of FAPE. Other
commenters requested clarifying that a
child’s disciplinary history, ability to
understand consequences, and
expression of remorse should be factors
considered when making a case-by-case
determination. A few commenters
requested school personnel document
any supports provided to a child with
a disability prior to the child’s violation
of a code of student behavior when
making a case-by-case determination.
Discussion:
We believe that the
regulations do not need to be amended
to clarify ‘‘consider any unique
circumstances on a case-by-case basis’’
because what constitutes ‘‘unique
circumstances’’ is best determined at the
local level by school personnel who
know the individual child and all the
facts and circumstances regarding a
child’s behavior. We believe it would
impede efforts of school personnel
responsible for making a determination
as to whether a change in placement for
disciplinary purposes is appropriate for
a child if the Department attempted to
restrict or limit the interpretation of
‘‘consider any unique circumstances on
a case-by-case-basis.’’ Factors such as a
child’s disciplinary history, ability to
understand consequences, expression of
remorse, and supports provided to a
child with a disability prior to the
violation of a school code could be
unique circumstances considered by
school personnel when determining
whether a disciplinary change in
placement is appropriate for a child
with a disability. We believe providing
school personnel the flexibility to
consider whether a change in placement
is appropriate for a child with a
disability on a case-by-case basis and to
determine what unique circumstances
should be considered regarding a child
who violates a code of conduct, as
provided for under section 615(k)(1)(A)
of the Act, will limit the inappropriate
removal of a child with a disability from
his or her current placement to an
interim alternative educational setting,
another setting, or suspension. We also
decline the commenters’ suggestion to
regulate further about the case-by-case
determination in light of the discretion
granted under the Act to school
personnel in making this determination.
Changes:
None.
Comment:
Several commenters
expressed concern that § 300.530(a)
could be used to justify ignoring a
manifestation determination when
determining whether a change in
placement is appropriate for a child.
These commenters stated that the
authority of school personnel to
consider any unique circumstances on a
case-by-case basis could be used to
usurp the authority of the group making
the manifestation determination and the
IEP Team. Some commenters
recommended removing the phrase
‘‘consistent with the requirements of
this section’’ in § 300.530(a) because it
is not included in the Act and limits the
individualized disciplinary options that
might arise under this authority.
Discussion:
Section 300.530(a),
consistent with section 615(k)(1)(A) of
the Act, clarifies that, on a case-by-case
basis, school personnel may consider
whether a change in placement, that is
otherwise permitted under the
disciplinary procedures, is appropriate
and should occur. It does not
independently authorize school
personnel, on a case-by-case basis, to
institute a change in placement that
would be inconsistent with § 300.530(b)
through (i), including the requirement
in paragraph (e) of this section regarding
manifestation determinations. We are
revising § 300.530(a) to clarify that any
consideration regarding a change in
placement under paragraph (a) of this
section must be consistent with all other
requirements in § 300.530.
Changes:
We have revised
§ 300.530(a) to refer to the other
requirements of § 300.530.
Comment:
One commenter
recommended changing § 300.530(a) to
include the role of the IEP Team when
determining whether a change in
placement is appropriate for a child
with a disability who violates a code of
student conduct.
Discussion:
We believe § 300.530(a),
which follows the language in section
615(k)(1)(A) of the Act, appropriately
gives school personnel the authority to
determine, on a case-by-case basis,
whether a change in placement that is
consistent with the other requirements
of § 300.530, would be appropriate for a
child with a disability who violates a
code of student conduct and, therefore,
we do not believe it is appropriate to
define a role for the IEP Team in this
paragraph. There is nothing, however,
in the Act or these regulations that
would preclude school personnel from
involving parents or the IEP Team in
making this determination.
Changes:
None.
Comment:
Some commenters
requested clarifying who constitute
‘‘school personnel’’ as used in
§ 300.530(a).
Discussion:
We do not believe it is
necessary or appropriate to clarify in
these regulations the ‘‘school
personnel’’ that may consider whether a
change in placement for disciplinary
reasons is appropriate for a child
because such decisions are best made at
the local school or district level and
based on the circumstances of each
disciplinary case.
Changes:
None.
Comment:
Several commenters
requested that the regulations clarify the
meaning of ‘‘violates a code of student
conduct.’’ The commenters expressed
concern that school personnel could use
any minor infraction to remove a child.
Discussion:
Local school personnel
have the necessary authority to protect
the safety and well-being of all children
in their school and, therefore, are in the
best position to determine a code of
student conduct that is uniform and fair
for all children in their school. We,
therefore, do not believe it is necessary
or appropriate to clarify in § 300.530(a)
the meaning of ‘‘violates a code of
student conduct.’’
Changes:
None.
General (§ 300.530(b))
Comment:
Several commenters
requested removing ‘‘consecutive’’ from
§§ 300.530 and 300.536 because there is
no reference to consecutive school days
in the Act.
Discussion:
We are not removing
‘‘consecutive’’ from §§ 300.530 through
300.536, as recommended by the
commenters, because the Department
has long interpreted the Act to permit
children with disabilities who violate a
code of student conduct to be removed
from their current educational
placement for not more than 10
consecutive school days at a time, and
that additional removals of 10
consecutive school days or less in the
same school year would be possible, as
long as any removal does not constitute
a change in placement. We do not
believe the changes to section 615(k) of
the Act justify any change in this
position. Further, the Department’s
position is consistent with S. Rpt. No.
108–185, p. 43, which states that ‘‘a
school may order a change in placement
for a child who violates a code of
student conduct to an appropriate
interim educational setting, another
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setting, or suspension, for 10
consecutive school days or less, to the
same extent that it would apply such a
discipline measure to a child without a
disability.’’
Changes:
None.
Comment:
One commenter
recommended replacing ‘‘school days’’
with ‘‘calendar days’’ in § 300.530
because using ‘‘school days’’ in the
regulations might create a disincentive
for school personnel to find solutions
and develop an appropriate IEP in a
timely manner.
Discussion:
Section 615(k)(1)(B) of the
Act clearly states that school personnel
may remove a child with a disability
who violates a code of student conduct
from their current placement to an
appropriate alternative education
setting, other setting, or suspension, for
not more than 10 ‘‘school days;’’
therefore, it would be inconsistent with
section 615(k)(1)(B) of the Act to change
‘‘school days’’ to ‘‘calendar days’’ as
suggested by the commenter.
Changes:
None.
Comment:
One commenter requested
that § 300.530 and all sections that
pertain to discipline stipulate that
children with disabilities must not be
disciplined more severely than non-
disabled children and disciplinary
measures applied to them must not be
longer in duration than those applied to
non-disabled students.
Discussion:
We do not believe that it
is necessary to change the regulations to
state that children with disabilities must
not be disciplined more severely than
non-disabled children because
§ 300.530(b)(1), consistent with section
615(k)(1)(B) of the Act, is sufficiently
clear that disciplinary measures are to
be applied to children with disabilities
to the extent they are applied to
children without disabilities. Further,
the manifestation determination
provision in paragraph (e) of this
section, and the right of a parent to
request an expedited due process
hearing in § 300.532, regarding the
disciplinary placement or manifestation
determination, are sufficient to ensure
that schools implement disciplinary
policies that provide for a uniform and
fair way of disciplining children with
disabilities in line with the discipline
expectations for non-disabled students.
A primary intent of Congress in revising
section 615(k) of the Act was to provide
for a uniform and fair way of
disciplining all children—both for those
children with disabilities and those
children without disabilities. (S. Rpt.
No. 108–185, p. 43; H. Rpt. No. 108–77,
pp. 116–119).
Changes:
None.
Comment:
A few commenters
requested clarifying the Department’s
basis for the general authority of school
personnel to remove a child with a
disability for up to 10 consecutive
school days, so as not to preclude
subsequent short-term removals in the
same school year. Many commenters
expressed concern that permitting
subsequent removals of up to 10
consecutive school days in the same
school year could be misapplied and
result in a denial of services. Several
commenters stated that § 300.530 is not
clear as to whether students who are
removed for more than 10 school days
in a school year must continue to
receive services.
Discussion:
The Department has long
interpreted the Act to permit schools to
remove a child with a disability who
violates a code of student conduct from
his or her current placement for not
more than 10 consecutive school days,
and that additional removals of 10
consecutive school days or less in the
same school year would be possible, as
long as those removals do not constitute
a change in placement. The
requirements in § 300.530(b) do not
permit using repeated disciplinary
removals of 10 school days or less as a
means of avoiding the change in
placement options in § 300.536. We
believe it is important for purposes of
school safety and order to preserve the
authority that school personnel have to
be able to remove a child for a
discipline infraction for a short period
of time, even though the child already
may have been removed for more than
10 school days in that school year, as
long as the pattern of removals does not
itself constitute a change in placement
of the child.
On the other hand, discipline must
not be used as a means of disconnecting
a child with a disability from education.
Section 300.530(d) clarifies, in general,
that the child must continue to receive
educational services so that the child
can continue to participate in the
general curriculum (although in another
setting), and progress toward meeting
the goals in the child’s IEP.
Changes:
None.
Comment:
Several commenters
recommended retaining the
Department’s long term policy that an
in-school suspension would not be
considered a part of the days of
suspension as long as the child is
afforded the opportunity to continue to
appropriately progress in the general
curriculum, continue to receive services
specified on the child’s IEP, and
continue to participate with
nondisabled children to the extent they
would have in their current placement.
Other commenters recommended
including in the regulations the
commentary from the March 12, 1999
Federal Register
(64 FR 12619)
regarding whether an in-school
suspension or a bus suspension
constitutes a day of removal.
Discussion:
It has been the
Department’s long term policy that an
in-school suspension would not be
considered a part of the days of
suspension addressed in § 300.530 as
long as the child is afforded the
opportunity to continue to appropriately
participate in the general curriculum,
continue to receive the services
specified on the child’s IEP, and
continue to participate with
nondisabled children to the extent they
would have in their current placement.
This continues to be our policy.
Portions of a school day that a child had
been suspended may be considered as a
removal in regard to determining
whether there is a pattern of removals
as defined in § 300.536.
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 were a part
of the child’s IEP, a bus suspension
would be treated as a suspension under
§ 300.530 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 services will be
delivered. If the bus transportation is
not a part of the child’s IEP, a bus
suspension is not a suspension under
§ 300.530. In those cases, the child and
the child’s parent have the same
obligations to get the child to and from
school as a nondisabled child who has
been suspended from the bus. However,
public agencies should consider
whether the behavior on the bus is
similar to behavior in a classroom that
is addressed in an IEP and whether the
child’s behavior on the bus should be
addressed in the IEP or a behavioral
intervention plan for the child.
Because the determination as to
whether an in-school suspension or bus
suspension counts as a day of
suspension under § 300.530 depends on
the unique circumstances of each case,
we do not believe that we should
include these policies in our
regulations.
Changes:
None.
Services (§ 300.530(d))
Comment:
Many commenters
expressed concern that the change from
‘‘continue to progress in the general
curriculum’’ in current § 300.522(b)(1)
to ‘‘continue to participate in the
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general education curriculum’’ in
§ 300.530(d)(1)(i) is a lower standard.
They requested that we use the language
from current § 300.522(b)(1).
Discussion:
Section 615(k)(1)(D)(i) of
the Act and § 300.530(d)(1) provide that
a child must continue to receive
educational services so as to enable the
child ‘‘to continue to participate in the
general educational curriculum,
although in another setting, and to
progress toward meeting the goals set
out in the child’s IEP.’’ We believe that
using the statutory language in the
regulation is appropriate because the
Act specifically uses different language
to describe a child’s relationship to the
general education curriculum in periods
of removal for disciplinary reasons than
for services under the child’s regular IEP
in section 614(d)(1)(A)(i)(IV) of the Act.
Based on this difference, we decline to
make the change requested.
We caution that we do not interpret
‘‘participate’’ to mean that a school or
district must replicate every aspect of
the services that a child would receive
if in his or her normal classroom. For
example, it would not generally be
feasible for a child removed for
disciplinary reasons to receive every
aspect of the services that a child would
receive if in his or her chemistry or auto
mechanics classroom as these classes
generally are taught using a hands-on
component or specialized equipment or
facilities.
Changes:
None.
Comment:
Many commenters
recommended § 300.530(d) clarify that
children with disabilities who violate a
code of student conduct and are
removed from their current placement
to an interim alternative educational
setting or another setting, or are
suspended, are entitled to FAPE in
accordance with section 612(a)(1) of the
Act. Several commenters recommended
revising § 300.530(d)(1)(i) to explicitly
state that the educational services
provided to a child removed for
disciplinary reasons must include all
the special education services, related
services, supplementary aids and
services, and accommodations required
by the child’s IEP to ensure the child
receives FAPE. Many commenters
requested that the regulations clarify
that LEAs must continue to implement
a child’s IEP as written, including
related services, while the child is in an
interim alternative educational setting.
Discussion:
Section 612(a)(1)(A) of the
Act provides that FAPE must be made
available to all children with disabilities
ages 3 through 21, inclusive, including
children with disabilities who have
been suspended or expelled from
school. Further, section 615(k)(1)(D)(i)
of the Act provides that if school
personnel seek to order a change in
placement of a child with a disability
who violates a code of student conduct,
the child must continue to receive
education services (as provided in
section 612(a)(1) of the Act) so as to
enable him or her to continue to
participate in the general curriculum,
although in another setting (which
includes an interim alternative
education setting), and to progress
toward meeting the goals set out in the
child’s IEP. In other words, while
children with disabilities removed for
more than 10 school days in a school
year for disciplinary reasons must
continue to receive FAPE, we believe
the Act modifies the concept of FAPE in
these circumstances to encompass those
services necessary to enable the child to
continue to participate in the general
curriculum, and to progress toward
meeting the goals set out in the child’s
IEP. An LEA is not required to provide
children suspended for more than 10
school days in a school year for
disciplinary reasons, exactly the same
services in exactly the same settings as
they were receiving prior to the
imposition of discipline. However, the
special education and related services
the child does receive must enable the
child to continue to participate in the
general curriculum, and to progress
toward meeting the goals set out in the
child’s IEP.
Section 300.530(d) clarifies that
decisions regarding the extent to which
services would need to be provided and
the amount of services that would be
necessary to enable a child with a
disability to appropriately participate in
the general curriculum and progress
toward achieving the goals on the
child’s IEP may be different if the child
is removed from his or her regular
placement for a short period of time. For
example, a child who is removed for a
short period of time and who is
performing at grade level may not need
the same kind and amount of services to
meet this standard as a child who is
removed from his or her regular
placement for 45 days under
§ 300.530(g) or § 300.532 and not
performing at grade level.
We believe it is reasonable for school
personnel (if the child is to be removed
for more than 10 school days in the
same school year and not considered a
change in placement) and the IEP Team
(if the child’s removal is a change in
placement under § 300.536 and not a
manifestation of the child’s disability or
a removal pursuant to § 300.530(g)) to
make informed educational decisions
about the extent to which services must
be provided for a child with a disability
placed in an interim alternative
educational setting, another setting, or
suspension to enable the child to
participate in the general education
curriculum and make progress toward
the goals of the child’s IEP.
As stated above, we read the Act as
modifying the concept of FAPE in
circumstances where a child is removed
from his or her current placement for
disciplinary reasons. Specifically, we
interpret section 615(k)(1)(D)(i) of the
Act to require that the special education
and related services that are necessary
to enable the child to continue to
participate in the general education
curriculum and to progress toward
meeting the goals set out in the child’s
IEP, must be provided at public
expense, under public supervision and
direction, and, to the extent appropriate
to the circumstances, be provided in
conformity with the child’s IEP. We,
therefore, believe § 300.530(d)(1) should
be amended to be consistent with the
Act by adding the reference to the FAPE
requirements in § 300.101(a), and to
ensure it is understood that the
educational services provided to a child
removed for disciplinary reasons are
consistent with the FAPE requirements
in section 612(a)(1) of the Act.
We are making additional technical
changes to paragraph (d)(1) to eliminate
cross-references, where appropriate, and
to provide greater clarity that children
with disabilities removed for
disciplinary reasons pursuant to
paragraphs (c) and (g) of this section
must continue to receive services and
receive, as appropriate, a functional
behavior assessment and behavior
intervention services and modifications.
We are, therefore, removing from
paragraph (d)(1) of this section the
phrase ‘‘except as provided in
paragraphs (d)(3) and (d)(4)’’ and
removing the reference to paragraph (b)
of this section, which references the
general authority for removing a child
who violates a code of student conduct,
as it is unnecessary.
Changes:
Section 300.530(d)(1)(i) has
been amended to be consistent with
section 615(k)(1)(D)(i) of the Act by
cross-referencing the FAPE requirement
in § 300.101(a). We have also revised
paragraph (d)(1) by removing the
reference to the exceptions for
paragraph (d)(3) and (d)(4) of this
section and removing the reference to
paragraph (b) of this section.
Comment:
None.
Discussion:
In light of the changes
made to proposed paragraph (d)(1) of
this section by removing the phrase
regarding the exceptions for paragraph
(d)(3) and (d)(4) of this section, it is
necessary to revise § 300.530(d)(2) to
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accurately reflect when services may be
provided in an interim alternative
educational setting.
Changes:
We have modified
§ 300.530(d)(2) to clarify that services
required by paragraph (d)(1), (d)3),
(d)(4), and (d)(5) of this section may be
provided in an interim alternative
educational setting.
Comment:
Several commenters stated
that § 300.530(d)(3) is not clear and
requested clarification as to whether
children who are removed for more than
10 school days in the same school year
must continue to receive services. One
commenter expressed concern that
§ 300.530(d)(3), which clarifies that a
public agency is only required to
provide services to a child with a
disability who is removed from his or
her current placement for 10 school
days or less in that school year if it
provides services to a child without
disabilities who is similarly removed, is
unsupported by the Act and
substantially undermines the rights
afforded to children with disabilities
removed from their current placement
for disciplinary reasons. The commenter
wanted this provision removed from the
regulations. Other commenters
requested clarifying the authority of
school personnel with respect to the
procedures in § 300.530(d)(3).
Discussion:
The Act and the
regulations recognize that school
officials need some reasonable degree of
flexibility when disciplining children
with disabilities who violate a code of
student conduct. Interrupting a child’s
participation in education for up to 10
school days over the course of a school
year, when necessary and appropriate to
the circumstances, does not impose an
unreasonable limitation on a child with
a disability’s right to FAPE. Section
300.530(d)(3) is consistent with section
612(a)(1)(A) of the Act and current
§ 300.121(d) and reflects the
Department’s longstanding position that
public agencies need not provide
services to a child with a disability
removed for 10 school days or less in a
school year, as long as the public agency
does not provide educational services to
nondisabled children removed for the
same amount of time. This position was
affirmed by the Supreme Court in Honig
v. Doe, 484 U.S. 305 (1988). We are
amending § 300.530(d)(3) to replace
‘‘need not’’ with ‘‘is only required to’’
for greater clarity. We also are amending
paragraph (d)(3) of this section to write
it in active voice and in the positive and
removed the cross-reference to the
general provision in paragraph (b) of
this section, as it is not necessary.
Changes:
Technical changes have
been made to § 300.530(d)(3) to remove
the cross-reference to paragraph (b) of
this section. We also amended this
paragraph as stated above to provide
greater clarity.
Comment:
Many commenters wanted
us to remove the words ‘‘if any’’ from
§ 300.530(d)(4). Several commenters
thought that § 300.530(d)(4), which
allows school personnel to determine
the extent to which services are needed,
‘‘if any,’’ gives public agencies the
authority to deny special education
services to students who have been
suspended or expelled for more than 10
school days in a school year. Other
commenters also thought that including
the phrase ‘‘if any’’ implies that special
education services are not mandatory
for a child who has been removed for 10
or more non-consecutive days and do
not constitute a change in placement.
Discussion:
We believe
§ 300.530(d)(4) ensures that children
with disabilities removed for brief
periods of time receive appropriate
services, while preserving the flexibility
of school personnel to move quickly to
remove a child when needed and
determine how best to address the
child’s needs. Paragraph (d)(4) of this
section is not intended to imply that a
public agency may deny educational
services to children with disabilities
who have been suspended or expelled
for more than 10 school days in a school
year, nor is § 300.530(d)(4) intended to
always require the provision of services
when a child is removed from school for
just a few days in a school year. We
believe the extent to which educational
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 disability who
is removed for only a few days and is
performing near grade level would not
likely need the same level of
educational services as a child with a
disability who has significant learning
difficulties and is performing well
below grade level. The Act is clear that
the public agency must provide services
to the extent necessary to enable the
child to appropriately participate in the
general curriculum and appropriately
advance toward achieving the goals in
the child’s IEP.
We recognize the concern of the
commenters that the phrase ‘‘if any’’
could imply that school personnel need
not provide educational services to
these children. Therefore, we are
removing the phrase ‘‘if any’’ from
paragraph (d)(4). For clarity, we are
replacing the cross-reference to
§ 300.530(d)(1) with the language from
§ 300.530(d)(1)(i) and restructure the
paragraph.
Changes:
The phrase ‘‘if any’’ has
been removed from § 300.530(d)(4). For
clarity, we have removed a cross
reference in § 300.530(d)(4) and
replaced it with the language from
§ 300.530(d)(1)(i) and made technical
edits to restructure the paragraph.
Comment:
One commenter questioned
whether the ability of school personnel
to remove a child from his or her
current placement for disciplinary
reasons means, if a child’s current
placement is a special education
classroom setting, school personnel may
remove the child from special education
services.
Discussion:
If the child’s current
placement is a special education setting,
the child could be removed from the
special education setting to another
setting for disciplinary reasons.
Similarly, if the child with a disability
who violated a school code of conduct
receives services in a regular classroom,
the child could be removed to an
appropriate interim alternative
educational setting, another setting, or
suspension. Section 300.530(b),
consistent with section 615(k)(1)(B) of
the Act, provides that school personnel
may remove a child with a disability
who violates a code of student conduct
from his or her current placement to an
appropriate interim alternative
educational setting, another setting, or
suspension. However, § 300.530(d) is
clear that the child who is removed for
more than 10 school days in the same
school year must continue to receive
educational services, to enable the child
to continue to participate in the general
education curriculum, although in
another setting, and to progress toward
meeting the goals set out in his or her
IEP.
Changes:
None.
Comment:
One commenter requested
clarifying how many days a child with
a disability may be placed in an interim
alternative educational setting before
the public agency must provide
services.
Discussion:
School personnel may
remove a child with a disability from
his or her current placement to an
interim alternative educational setting,
another setting, or suspension for up to
10 school days in the same school year
without providing educational services.
Beginning, however, on the eleventh
cumulative day in a school year that a
child with a disability is removed from
the child’s current placement, and for
any subsequent removals, educational
services must be provided to the extent
required in § 300.530(d), while the
removal continues.
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Changes:
None.
Comment:
Numerous commenters
recommended revising § 300.530(d)(4)
to require that the parent be included in
the consultation school personnel must
have with at least one of the child’s
teachers to determine the extent to
which services are needed for a child
with a disability who has been removed
from his or her current placement for
more than 10 school days (if the current
removal is for not more than 10
consecutive school days and is not a
change in placement under § 300.536).
Discussion:
The provisions in
§ 300.530(d)(4) only address the
provision of services in those situations
where a removal of a child with a
disability from the child’s current
placement is for a short period of time
and the removal does not constitute a
change in placement. In many instances,
these short-term removals are for one or
two days. We believe that, in these
instances, it is reasonable for
appropriate school personnel, in
consultation with at least one of the
teachers of a child, to determine how
best to address the child’s needs during
these relatively brief periods of removal.
We believe it would place an
unreasonable burden on school
personnel to require that the parent be
involved in making the determination of
the extent to which services are needed
for a child removed for such a short
period of time. We do not believe
requiring school personnel to make
these decisions under these
circumstances imposes an unreasonable
limitation on a child with a disability’s
right to FAPE. For these reasons, we do
not believe § 300.530(d)(4) should be
revised to require that the parent be
included in the consultation. However,
there is nothing in these regulations that
would prohibit school personnel, if they
choose to do so, from including parents
in the consultation.
Changes:
None.
Comment:
One commenter requested
that § 300.530(d)(4) be modified to
include the requirement in current
§ 300.121(d)(3)(i) that school personnel
consult with the child’s special
education teacher as opposed to any of
the child’s teachers. The commenter
stated that it makes sense that the
special education teacher be considered
the first choice for this role given that
the special education teacher generally
has the most knowledge of the child and
the student’s educational needs.
Discussion:
The determination of
which teacher school personnel should
consult should be based on the facts and
circumstances of each case, the needs of
the child and the expertise of the child’s
teachers. We agree that, in many cases,
the special education teacher may be the
most appropriate teacher with whom
school personnel should consult. This,
however, is not always the case. In light
of the short-term nature of the removals
under paragraph (d)(4) of the section
and the need for school personnel to
make quick decisions regarding
services, we believe local school
personnel need broad flexibility in
making such decisions and are in the
best position to determine the
appropriate teacher with whom to
consult. For these reasons, we are not
amending § 300.530(d)(4) to require
consultation with the child’s special
education teacher as in current
§ 300.121(d)(3)(i). There is nothing,
however, in the Act or these regulations
that would prohibit school personnel
from consulting with one of the child’s
special education teachers.
Changes:
None.
Comment:
Several commenters
recommended the regulations clarify
that a child placed in an appropriate
interim alternative educational setting
will participate in all State and
districtwide assessments.
Discussion:
It is not necessary to
include the language recommended by
the commenters as section 612(a)(16)(A)
of the Act is clear that the State must
ensure that all children with disabilities
are included in all general State and
districtwide assessment programs,
including assessments described in
section 1111 of the ESEA, 20 U.S.C.
6311, with appropriate accommodations
and alternate assessments, if necessary,
and as indicated in each child’s
respective IEP. This requirement applies
to children with disabilities who have
been placed in an appropriate interim
alternative education setting or another
setting, or who are suspended.
Changes:
None.
Comment:
One commenter requested
specifying in § 300.530(d) that LEAs
must include children with disabilities
placed in interim alternative
educational settings in their
determination of AYP. The writer
expressed concern that LEAs may try to
avoid accountability by placing children
with disabilities in interim alternative
educational settings.
Discussion:
The Act does not address
the issue of AYP. However, title 1 of the
ESEA is clear that children who are
enrolled within a district for a full
academic year must be included in the
AYP reports of an LEA. (20 U.S.C. 7325)
Title 1 of the ESEA does not provide an
exception for children with disabilities
placed in interim alternative
educational settings. In addition, State
agencies, LEAs, and schools must assess
all children, regardless of whether a
child is to be included for reporting or
accountability purposes and regardless
of the amount of time the child has been
enrolled in the State agency, LEA, or
school. The only public school children
with disabilities enrolled in public
settings who are exempted from
participation in State and districtwide
assessment programs under the Act are
children with disabilities convicted as
adults under State law and incarcerated
in adult prisons (§ 300.324(d)(1)(i)). As
AYP is addressed under title 1 of the
ESEA, we do not need to regulate on
this matter.
Changes:
None.
Comment:
A few commenters stated
that § 300.530(d)(5) is inconsistent with
section 615(k)(1)(E) of the Act, which
requires that within 10 school days of
any decision to change a child’s
placement because of a violation of a
code of conduct, the LEA, parent, and
relevant members of the IEP Team (as
determined by the parent and the LEA)
shall consider whether the conduct was
caused by or had a direct and
substantial relationship to the disability
or whether the conduct was caused by
the failure of the LEA to implement the
IEP. These commenters stated that
§ 300.530(d)(5) gives the IEP Team
control over determinations regarding
services and placement, regardless of
manifestation, and does not give control
to the LEA, parent and relevant
members of the IEP Team as provided
in the Act.
Discussion:
We disagree with the
commenters that § 300.530(d)(5) is
inconsistent with section 615(k)(1)(E) of
the Act because paragraph (d)(5) of this
section describes who is responsible for
determining the appropriate services for
a child with a disability whose
disciplinary removal is a change in
placement under § 300.536, while
section 615(k)(1)(E) of the Act describes
who is responsible for making a
manifestation determination. These are
very different and distinct provisions.
Further, section 615(k) of the Act does
not specifically address who is
responsible for determining the
educational services to be provided a
child with a disability whose
disciplinary removal is a change in
placement. Section 615(k)(1)(E) of the
Act, consistent with § 300.530(e),
provides that, within 10 school days of
any decision to change the placement of
a child with a disability because of a
violation of a code of student conduct,
the LEA, the parent, and relevant
members of the IEP Team (as
determined by the parent and the LEA)
shall determine whether the child’s
conduct was a manifestation of the
child’s disability. We believe that in
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instances where a child’s disciplinary
removal constitutes a change in
placement, and given the length of time
of such removals, the IEP Team is the
appropriate entity to determine the
educational services necessary to enable
the child to continue to participate in
the general education curriculum,
although in another setting, and to
progress toward meeting the goals set
out in the child’s IEP. Section
300.530(d)(5) is clear that whenever a
removal constitutes a change in
placement under § 300.536, the child’s
IEP Team determines the services the
child will be provided.
Changes:
None.
Comment:
One commenter stated that
the phrase ‘‘location in which services
will be provided’’ as used in
§ 300.530(d)(5) is not included in the
Act. The commenter pointed out that
section 615(k)(2) of the Act refers to the
IEP Team’s ‘‘determination of setting.’’
The commenter stated that using the
statutory language will make it less
likely the IEP Team will interpret the
regulations to require the IEP Team to
determine the specific location of the
services to be provided to a child
removed from his or her current
placement to an interim alternative
educational setting. Several other
commenters stated that the use of the
phrase ‘‘location in which services will
be provided’’ in paragraph (d)(5) of this
section is confusing and recommended
limiting the IEP Team responsibility to
determining the setting (as required
under section 615(k)(2) of the Act) and
the services and not the specific
location.
Discussion:
Section 615(k)(2) of the
Act provides that the IEP Team is
responsible for determining the interim
alternative educational setting for a
child with a disability for certain
removals that are a change of placement.
In § 300.531, for reasons described
elsewhere in this preamble, we interpret
this obligation to apply to all removals
that constitute a change of placement for
disciplinary reasons, as defined in
§ 300.536. We interpret ‘‘setting’’ in this
context to be the environment in which
the child will receive services, such as
an alternative school, alternative
classroom, or home setting. In many
instances, the location and the setting or
environment in which the child will
receive services are the same. It is
possible, however, that a school may
have available more than one location
that meets the criteria of the setting
chosen by the IEP Team. For example,
an LEA may have available two
alternative schools that meet the criteria
of the interim alternative educational
setting chosen by the IEP Team. In those
cases school personnel would be able to
assign the child to either of these
locations, if the IEP Team has not
specified a particular one.
We are persuaded by the commenters
and, therefore, are removing the
reference to ‘‘location in which services
will be provided’’ in paragraphs (d)(4)
and (d)(5) of this section. We are also
removing the phrase ‘‘is for more than
10 consecutive school days or’’ from
paragraphs (d)(5) of this section because
it is unnecessary since such a removal
is a change in placement under
§ 300.536.
Changes:
We have amended
paragraphs (d)(4) and (d)(5) of this
section by removing the phrase
‘‘location in which services will be
provided.’’ We also have amended
paragraph (d)(5) of this section by
removing the phrase ‘‘is for more than
10 consecutive school days or.’’
Manifestation Determination
(§ 300.530(e))
Comment:
Several commenters
requested including in § 300.530(e) the
following measures when determining
the relationship between a behavior and
a disability: (1) whether the child’s
disability impaired the ability of the
child to control the behavior; (2)
whether the child understood the
impact and consequences of the
behavior; (3) whether the placement was
appropriate; or (4) whether the IEP, the
identified services, and their
implementation were appropriate.
Another commenter recommended
clarifying that when a determination is
made that a child’s behavior is not a
manifestation of his or her disability, if
the group does not consider whether the
IEP and placement were appropriate,
the parents have the right to file a
complaint.
Discussion:
The language requested
by the commenters was included in
section 615(k)(4) of the Individuals with
Disabilities Education Act Amendments
of 1997, Public Law 105–17. Congress
later removed the requirements
mentioned by the commenters for
conducting a review to determine
whether a child’s behavior was a
manifestation of the child’s disability
and it would be beyond the authority of
the Department to include the language
in these regulations. Section 615(k)(1)(E)
of the Act now requires the LEA, the
parent, and relevant members of the IEP
Team (as determined by the parent and
the LEA), to determine whether a child’s
behavior was a manifestation of the
child’s disability based on two
inquiries: (1) was the conduct caused
by, or did it have a direct and
substantial relationship to the child’s
disability; or (2) was the conduct the
direct result of the LEA’s failure to
implement the child’s IEP?
It is not necessary to clarify that a
parent has the right to file a complaint,
as the commenters suggest. Section
300.532, consistent with section
615(k)(3) of the Act, provides that a
parent of a child with a disability who
disagrees with any decision regarding
placement under §§ 300.530 and
300.531, or the manifestation
determination under § 300.530(e), may
request an expedited due process
hearing, which must occur within 20
school days of the date the complaint
requesting the hearing is filed, and the
determination by the hearing officer
must be rendered within 10 school days
after the hearing.
Changes:
None.
Comment:
Several commenters
recommended that the observations
used for the manifestation
determination review be from both
teachers and related service personnel.
Some commenters requested
§ 300.530(e) clarify that the phrase ‘‘all
relevant information in the child’s file’’
includes a review of the child’s IEP,
placement appropriateness, special
education services, supplementary aids
and services, and if the behavior
intervention strategies were appropriate
and consistent with the IEP. One
commenter recommended documents
and discussions at IEP Team meetings
referencing the child’s behavior should
be maintained and considered at a
manifestation determination.
Discussion:
Section 300.530(e)(1),
which tracks section 615(k)(1)(E) of the
Act, requires a review of all relevant
information in the child’s file, including
the child’s IEP, any teacher
observations, and any relevant
information provided by the parents.
We believe this clearly conveys that the
list of relevant information in paragraph
(e)(1) of the section is not exhaustive
and may include other relevant
information in the child’s file, such as
the information mentioned by the
commenters. It would be impractical to
list all the possible relevant information
that may be in a child’s file and,
therefore, it is not necessary to further
regulate on this matter.
Changes:
None.
Comment:
Several commenters
requested clarifying that a manifestation
determination under § 300.530(e) would
not need to be conducted for removals
of not more than 10 consecutive days or
for removals that otherwise do not
constitute a change in placement.
Discussion:
By including an
introductory phrase to proposed
§ 300.530(e)(1) we intended to clarify
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that a manifestation determination need
not be conducted for removals that will
be for not more than 10 consecutive
school days and will not constitute a
change in placement under § 300.536. In
other words, manifestation
determinations are limited to removals
that constitute a change in placement
under § 300.536. Upon further
consideration, we believe the phrase
‘‘except for removals that will be for not
more than 10 consecutive school days
and will not constitute a change in
placement under § 300.536’’ is
unnecessary and confusing. We believe
limiting § 300.530(e)(1) to the statutory
language in section 615(k)(1)(E)(i) of the
Act makes it sufficiently clear that
within 10 school days of any decision
to change the placement of a child with
a disability because of a violation of a
code of student conduct a manifestation
determination must be conducted and,
therefore, we are removing the
introductory phrase as it is unnecessary.
Changes:
We have revised
§ 300.530(e) by removing the
introductory phrase ‘‘except for
removals that will be for not more than
10 consecutive school days and will not
constitute a change in placement under
§ 300.536.’’
Comment:
A few commenters
expressed concern that the
manifestation determination is too
narrow and does not account for the
spectrum of inter-related and individual
challenges associated with many
disabilities.
Discussion:
We believe the criteria in
§ 300.530(e)(1) that the LEA, parent, and
relevant members of the IEP Team must
determine whether a child’s conduct is
a manifestation of the child’s disability
is broad and flexible, and would include
such factors as the inter-related and
individual challenges associated with
many disabilities. The revised
manifestation provisions in section 615
of the Act provide a simplified, common
sense manifestation determination
process that could be used by school
personnel. The basis for this change is
provided in note 237–245 of the Conf.
Rpt., pp. 224–225, which states, ‘‘the
Conferees intend to assure that the
manifestation determination is done
carefully and thoroughly with
consideration of any rare or
extraordinary circumstances presented.’’
The Conferees further intended that ‘‘if
a change in placement is proposed, the
manifestation determination will
analyze the child’s behavior as
demonstrated across settings and across
time when determining whether the
conduct in question is a direct result of
the disability.’’ No further clarification
is necessary.
Changes:
None.
Comment:
A few commenters
recommended that the manifestation
determination in § 300.530(e) include a
case-by-case analysis of the disability of
the child involved compared with the
child’s conduct as many children with
disabilities display behaviors that can
be disruptive to a classroom, but these
behaviors should not be considered a
current disciplinary issue when the
behaviors are characteristic of the
disability.
Discussion:
We believe that it is not
necessary to modify the regulations to
include a requirement that a
manifestation determination include a
case-by-case analysis of the disability of
the child because section 615(k)(1)(E) of
the Act and § 300.530(e) are sufficiently
clear that decisions regarding the
manifestation determination must be
made on a case-by-case basis. We
believe the Act recognizes that a child
with a disability may display disruptive
behaviors characteristic of the child’s
disability and the child should not be
punished for behaviors that are a result
of the child’s disability. The intent of
Congress in developing section
615(k)(1)(E) was that, in determining
that a child’s conduct was a
manifestation of his or her disability, it
must be determined that ‘‘the conduct
in question was caused by, or had a
direct and substantial relationship to,
the child’s disability, and was not an
attenuated association, such as low self-
esteem, to the child’s disability.’’ (Note
237–245 of the Conf. Rpt., p. 225). The
regulation, which follows the statutory
language, thus accurately reflects the
manner in which the Act describes the
behavior of the child is to be considered
in the manifestation determination.
Further, section 615(k)(1)(F) of the
Act and § 300.530(f) provide that if the
LEA, the parent, and relevant members
of the IEP Team make the determination
that the behavior resulting in the
removal was a manifestation of the
child’s disability, the following actions
must be implemented: (1) the IEP Team
must conduct a functional behavioral
assessment, unless the LEA had
conducted a functional behavioral
assessment before the behavior that
resulted in the change in placement
occurred, and implement a behavioral
intervention plan for the child; (2) or if
a behavioral intervention plan already
has been developed, review the
behavioral intervention plan, and
modify it, as necessary, to address the
behavior; and (3) return the child to the
placement from which the child was
removed (other than a 45-day placement
under § 300.530(g)), unless the parent
and the LEA agree to a change in
placement as part of the modification of
the behavioral intervention plan.
Changes:
None.
Comment:
One commenter
recommended clarifying that when a
determination is made that a child’s
behavior is not a manifestation of his or
her disability, if the group does not
consider whether the placement was
appropriate, the parents have the right
to file a complaint.
Discussion:
The Act no longer
requires that the appropriateness of the
child’s IEP and placement be considered
when making a manifestation
determination. The Act now requires
that the LEA, the parent, and relevant
members of the IEP Team must, when
making a manifestation determination,
determine whether (1) the conduct in
question was caused by, or had a direct
and substantial relationship to, the
child’s disability; or (2) the conduct in
question was the direct result of the
LEA’s failure to implement the IEP.
However, § 300.532, consistent with
section 615(k)(3) of the Act, does
provide that a parent of a child with a
disability who disagrees with any
decision regarding placement under
§§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), may request an expedited
due process hearing, which must occur
within 20 school days of the date the
hearing is requested and must result in
a determination within 10 school days
after the hearing.
Changes:
None.
Comment:
Several commenters
requested clarification on the potential
range of consequences when a
disciplinary change in placement has
occurred for a child with a disability
and the child’s behavior is determined
to be a manifestation of his or her
disability.
Discussion:
Under section 615(k)(1)(F)
of the Act and section 504 of the
Rehabilitation Act of 1973, if the
behavior that resulted in the change of
placement is determined to be a
manifestation of a child’s disability, the
child must be returned to the placement
from which the child was removed
(other than a 45-day placement under
§§ 300.530(g), 300.532(b)(2), and
300.533), unless the public agency and
the parents otherwise agree to a change
of placement.
When 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,
supports, and other strategies to address
that behavior, consistent with
§ 300.324(a)(2)(i) and (a)(3)(i). When the
behavior is determined to be a
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manifestation of a child’s disability but
has not previously been addressed in
the child’s IEP, the IEP Team must
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 disciplinary
consequences, is appropriate under the
Act and section 504, even if the
behavior is a manifestation of the child’s
disability. 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
(§ 300.503), mediation (§ 300.506), due
process (§§ 300.507 through 300.517)
and pendency (§ 300.518).
Changes:
None.
Comment:
Many commenters
requested modifying § 300.530(e) to
require that, if it is determined that the
child’s behavior was a direct result of
the LEA’s failure to implement the
child’s IEP, it must take immediate steps
to remedy those deficiencies.
Discussion:
If the LEA, the parent, and
the relevant members of the IEP Team
determine that the child’s conduct is a
manifestation of the child’s disability
because the child’s behavior was the
direct result of the LEA’s failure to
implement the IEP, the LEA has an
affirmative obligation to take immediate
steps to ensure that all services set forth
in the child’s IEP are provided,
consistent with the child’s needs as
identified in the IEP. We agree with the
commenters that these regulations
should require that, if it is determined
that the child’s behavior was a direct
result of the LEA’s failure to implement
the child’s IEP, the LEA must take
immediate steps to remedy those
deficiencies. Therefore, we are adding a
new paragraph (e)(3) to this section,
consistent with this obligation.
Changes:
We have added a new
paragraph (3) to § 300.532(e) which
provides that, if the LEA, the parent,
and relevant members of the child’s IEP
Team determine that the child’s
behavior was a direct result of the LEA’s
failure to implement the child’s IEP, the
LEA must take immediate steps to
remedy those deficiencies.
Comment:
A few commenters
expressed concern that the absence of
short-term objectives in the IEP hampers
the ability to determine if the child’s
conduct was the direct result of the
LEA’s failure to implement the IEP.
Discussion:
We disagree with the
commenters that the absence of short-
term objectives in the IEP will hinder
the ability of the LEA, the parent, and
relevant members of the IEP Team to
determine whether a child’s conduct is
the direct result of the LEA’s failure to
implement the child’s IEP. The group
members making the manifestation
determination are required to review not
only the IEP of the child, but all relevant
information in the child’s folder, any
teacher observations of the child, and
any relevant information provided by
the parents. We believe the information
available to the group making the
manifestation determination, when
reviewed in its totality, is sufficient to
make a manifestation determination.
Changes:
None.
Determination That Behavior Was a
Manifestation (§ 300.530(f))
Comment:
Some commenters
recommended requiring that, even if a
child’s conduct is determined not to be
a manifestation of the child’s disability
pursuant to § 300.530(e), the IEP Team,
in determining how the child will be
provided services, must, at a minimum,
consider whether to conduct a
functional behavioral assessment and
implement a behavior plan. One
commenter requested that the
requirement in § 300.530(f) for
conducting a functional behavioral
assessment be removed from this
section and added to §§ 300.320 through
300.324, regarding IEPs.
Discussion:
Section 300.530(f),
consistent with section 615(k)(1)(F) of
the Act, requires that a child with a
disability receive, as appropriate, a
functional behavioral assessment, and
behavioral intervention plan and
modifications, that are designed to
address the child’s behavior if the
child’s behavior that gave rise to the
removal is a manifestation of the child’s
disability. As provided in § 300.530(e),
a manifestation determination is only
required for disciplinary removals that
constitute a change of placement under
§ 300.536. However, we must recognize
that Congress specifically removed from
the Act a requirement to conduct a
functional behavioral assessment or
review and modify an existing
behavioral intervention plan for all
children within 10 days of a
disciplinary removal, regardless of
whether the behavior was a
manifestation or not.
We also recognize, though, that as a
matter of practice, 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, the Act 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, ‘‘the use of positive behavioral
interventions, and other strategies to
address the behavior.’’ (See section
614(d)(3)(B)(i) of the Act). This
provision should ensure that children
who need behavior intervention plans to
succeed in school receive them. For
these reasons, we decline to make the
changes suggested.
Changes:
None.
Comment:
Many commenters
requested requiring that a functional
behavioral assessment older than one
year be considered invalid in a
manifestation determination review.
One commenter suggested that the
regulations include language that
requires the agency to conduct a new
functional behavioral assessment when
the child’s most recent functional
assessment is not current.
Discussion:
We believe it would be
inappropriate to specify through
regulation what constitutes a ‘‘current’’
or ‘‘valid’’ functional behavioral
assessment as such decisions are best
left to the LEA, the parent, and relevant
members of the IEP Team (as
determined by the LEA and the parent)
who, pursuant to section 615(k)(1)(E) of
the Act, are responsible for making the
manifestation determination. As a
policy matter, a previously conducted
functional behavioral assessment that is
valid and relevant should be included
in the information reviewed by the LEA,
the parent, and relevant members of the
IEP Team when making a manifestation
determination.
Changes:
None.
Special Circumstances (§ 300.530(g))
Comment:
Some commenters
recommended requiring that an
appropriate permanent placement be in
effect at the beginning of the next school
year to ensure that a child is not held
in the 45-school day interim alternative
educational setting for a period that
extends into the new academic year.
Discussion:
Interim alternative
educational settings under section
615(k)(1)(G) of the Act and § 300.530(g)
are limited to not more than 45 school
days, unless extended by the hearing
officer under § 300.532(b)(3) because
returning the child to his or her original
placement would be substantially likely
to cause injury to him or herself or to
others. The 45-school day placement in
an interim alternative educational
setting, unless extended by
§ 300.532(b)(3), is a maximum time limit
for a change in placement to an
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appropriate interim alternative
educational setting. We decline to
change the regulations as suggested by
the commenters based on the school
year ending before a child completes the
ordered school day placement in an
interim alternative educational setting
(in this example 45 school days). There
is nothing in the Act or these
regulations that precludes the public
agency from requiring the child to fulfill
the remainder of the placement when a
new school year begins as agency
personnel have this flexibility under
section 615(k)(1)(G) of the Act.
Changes:
None.
Comment:
Some commenters
requested that the regulations clarify
that a child’s home is not a suitable
placement setting for an interim
alternative educational setting for a
child with a disability removed
pursuant to § 300.530 for disciplinary
reasons.
Discussion:
While the Act does not
specify the alternative setting in which
educational services must be provided,
the Act is clear that the determination
of an appropriate alternative
educational setting must be selected ‘‘so
as to enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP.’’ (See
section 615(k)(1)(D)(i) of the Act).
Further, section 615(k)(2) of the Act
provides that the interim alternative
educational setting must be determined
by the IEP Team. What constitutes an
appropriate interim alternative
educational setting will depend on the
circumstances of each individual case.
Whether a child’s home would be an
appropriate interim alternative
educational setting under § 300.530
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 his or her regular
placement, and the child’s individual
needs and educational goals. In general,
though, because removals under
§§ 300.530(g) and 300.532 will be for
periods of time up to 45 days, care must
be taken to ensure that if home
instruction is provided for a child
removed under § 300.530, the services
that are provided will satisfy the
requirements for services for a removal
under § 300.530(d) and section
615(k)(1)(D) of the Act. We do not
believe, however, that it is appropriate
to include in the regulations that a
child’s home is not a suitable placement
setting for an interim alternative
educational setting as suggested by the
commenter. As stated above, the Act
gives the IEP Team the responsibility of
determining the alternative setting and
we believe the IEP Team must have the
flexibility to make the setting
determination based on the
circumstances and the child’s
individual needs.
Changes:
None.
Comment:
One commenter expressed
concern that the high standard of
‘‘serious bodily injury’’ is unreasonable.
The commenter states that school
personnel should be given discretion to
remove children for a 45 school-day
period who have committed assault or
otherwise acted dangerously. The
commenter stated that the standard for
having inflicted ‘‘serious bodily injury’’
would seldom be met without a child
being incarcerated. Another commenter
stated that the statutory definition of
serious bodily injury
is too narrow to
have much practical value for school
purposes since most injuries on school
grounds are not related to the use of
dangerous weapons. This commenter
recommended expanding the definition
to include more typical injuries that
occur on school property, and not
limiting the definition by the language
in section 1365(3)(h) of title 18, United
States Code.
Discussion:
Section 300.530(g)(3)
incorporates the new provision in
section 615(k)(1)(G)(iii) of the Act that
permits school personnel to remove a
child to an interim alternative
educational setting for not more than 45
school days without regard to whether
the behavior is a manifestation of the
child’s disability if the child has
inflicted serious bodily injury upon
another person while at school, on
school premises, or at a school function.
Section 615(k)(7)(D) of the Act is clear
that the term
serious bodily injury
has
the meaning given the term in section
1365(3)(h) of title 18, United States
Code. That provision defines
serious
bodily injury
as bodily injury, which
involves substantial risk of death;
extreme physical pain; protracted and
obvious disfigurement; or protracted
loss or impairment of the function of a
bodily member, organ, or mental
faculty. Nothing in the Act permits the
Department to expand the definition of
serious bodily injury
, as used in
§ 300.530(g), to include a bodily injury
beyond that included in 18 U.S.C.
1365(3)(h). Therefore, we are not
amending § 300.530(g)(3).
Changes:
None.
Comment:
One commenter
recommended clarifying the distinction
between the removal of a child to an
interim alternative educational setting
by school personnel for inflicting
‘‘serious bodily injury upon another
person’’ (§ 300.530(g)(3)) and the
removal of the child by a hearing officer
because maintaining the child’s current
placement is ‘‘substantially likely to
result in injury to the child or others’’
(§ 300.532(b)(2)(ii)).
Discussion:
The provision in
§ 300.530(g)(3), consistent with section
615(k)(1)(G)(iii) of the Act, indicates
that school personnel have the
discretion to remove a child with a
disability who inflicts ‘‘serious bodily
injury upon another person’’ from his or
her current placement to an interim
alternative educational setting for up to
45 school days (defined in 18 U.S.C.
1365(3)(h) as bodily injury), which
involve substantial risk of death;
extreme physical pain; protracted and
obvious disfigurement; or protracted
loss or impairment of the function of a
bodily member, organ, or mental
faculty. Section 300.530(g)(3) applies to
school personnel’s unilateral removal of
a child from the current educational
placement. School officials must seek
permission from the hearing officer
under § 300.532 to order a change of
placement of the child to an appropriate
interim alternative educational setting.
Hearing officers have the authority
under § 300.532 to exercise their
judgments after considering all factors
and the body of evidence presented in
an individual case when determining
whether a child’s behavior is
substantially likely to result in injury to
the child or others. Given that the
phrase ‘‘serious bodily injury,’’ as used
in § 300.530(g), has a definitive meaning
and the meaning of ‘‘substantially likely
to result in injury to the child or others’’
is left to the judgment of the hearing
officer, we do not believe further
clarification is needed.
Changes:
None.
Notification (§ 300.530(h))
Comment:
Some commenters
recommended clarifying that parental
notification in § 300.530(h) must take
place following disciplinary action
proposing a removal of a child for more
than 10 consecutive days or when there
is a disciplinary change in placement.
One commenter suggested that, to be
consistent with the Act, the parental
notification requirement should only
pertain to disciplinary decisions made
pursuant to § 300.530(g).
Discussion:
We agree with the
commenters that the meaning of the
term ‘‘disciplinary action’’ in section
615(k)(1)(H) of the Act, regarding
parental notification, is unclear. We
believe that, on the one hand, it would
be unreasonably burdensome to read the
term as applying to every imposition of
discipline, including those that might
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46723
not result in the child being removed
from the regular educational
environment at all. On the other hand,
we think the suggestion that the term be
applied only to removals under
§ 300.530(g) would inappropriately
narrow the application of the
notification provision and result in
parents not being notified for removals
that could reasonably have a significant
impact on a child’s education, such as
a removal for 10 school days or more.
Therefore, we agree with those
commenters who suggested that
paragraph (h) of this section should be
amended to clarify that the requirement
for parental notification applies to a
removal that constitutes a change in
placement of a child with a disability
for a violation of a code of student
conduct.
Changes:
Section 300.530(h) has been
amended to clarify that on the date on
which the decision is made to make a
removal that constitutes a change in the
placement of a child with a disability
because of a violation of a code of
student conduct, the LEA must notify
the parents of that decision, and provide
the parents the procedural safeguards
notice described in § 300.504.
Comment:
One commenter stated that
the requirement in § 300.530(h), which
requires the LEA to provide the parents
the procedural safeguards notice
described in § 300.504 whenever the
decision to take disciplinary action is
made, is inconsistent with the Act and
recommended revising § 300.530(h) to
be consistent with section 615(k)(1)(H)
of the Act. The commenter stated that
section 615(k)(1)(H) of the Act requires
the LEA to ‘‘notify’’ the parents of the
decision to take disciplinary action and
of all the procedural safeguards. The
commenter stated that the statutory
language implies that the LEA simply
needs to remind (notify) the parent of
the procedural safeguards given to them
for the school year as required in section
615(d)(1)(A)(i) through (iii) of the Act,
not to ‘‘provide’’ the parents with the
procedural safeguards notice as required
in § 300.530(h).
Discussion:
The commenter is correct
that section 615(k)(1)(H) of the Act does
not specifically state that the LEA must
‘‘provide a copy’’ of the procedural
safeguards notice but, that the LEA must
‘‘notify’’ the parent of the LEA’s
decision to take disciplinary action and
of all procedural safeguards accorded
under section 615 of the Act. We
believe, however, that implicit in the
Act is a much higher standard for
‘‘notify’’ than ‘‘remind’’ parents as
suggested by the commenter. Further, in
other places where ‘‘notify’’ is used in
the Act, it is clear the meaning of the
term is ‘‘to provide notice ‘‘ (for
example, section 615(c)(2)(A) and (D) of
the Act). We believe § 300.530(h), which
requires the LEA to notify the parents of
its decision to change the placement of
their child with a disability because of
a violation of a code of student conduct
and provide the parents the procedural
safeguards notice described in
§ 300.504, is reasonable and consistent
with the Act.
Changes:
None.
Definitions (§ 300.530(i))
Comment:
Many commenters stated
that the definitions for
serious bodily
injury
,
controlled substance
, and
weapon
are not readily available to
school personnel and parents and
requested that the full definitions be
included in § 300.530(i) and not only
referenced.
Discussion:
As we stated in the
Analysis of Comments and Changes
discussion for subpart A of this part,
including the actual definitions of terms
that are defined in statutes other than
the Act is problematic because these
definitions may change over time and
the Department would need to amend
the regulations each time an included
definition that is defined in another
statute changes. However, we are
including the definitions of
serious
bodily injury
from section 1365(h)(3) of
title 18, United States Code, and
dangerous weapon
from section
930(g)(2) of title 18, United States Code,
here for reference. We are not including
the definition of
controlled substance
from section 202(c) of the Controlled
Substances Act because the definition is
lengthy and frequently changes.
The term
serious bodily injury
means
bodily injury that involves—
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious
disfigurement; or
4. Protracted loss or impairment of the
function of a bodily member, organ, or
mental faculty.
The term
dangerous weapon means
a
weapon, device, instrument, material, or
substance, animate or inanimate, that is
used for, or is readily capable of,
causing death or serious bodily injury,
except that such term does not include
a pocket knife with a blade of less than
2
1
∕2 inches in length.
Changes:
None.
Determination of Setting (§ 300.531)
Comment:
None.
Discussion:
In light of the
restructuring of § 300.530 and the
elimination of cross-references in that
section, we are revising § 300.531 to
include a cross-reference to paragraph
(d)(5) of § 300.530 to make clear that, for
a removal that is a change of placement
under § 300.536, the child’s IEP Team
must determine the appropriate interim
alternative educational setting for the
child.
Changes:
We have revised § 300.531
to include a cross-reference to paragraph
(d)(5) of § 300.530.
Appeal (§ 300.532)
Comment:
Numerous commenters
requested clarifying in the regulations
that the public agency has the burden to
prove to a hearing officer that removing
the child is necessary because
maintaining the current placement is
substantially likely to result in injury to
self or others.
Discussion:
Although the Act does not
address allocation of the burden of proof
in due process hearings brought under
the Act, the U.S. Supreme Court
recently addressed the issue. In
Schaffer
, the Court first noted that the
term ‘‘burden of proof’’ is commonly
held to encompass both the burden of
persuasion (i.e., which party loses if the
evidence is closely balanced) and the
burden of production (i.e., the party
responsible for going forward at
different points in the proceeding). In
Schaffer
, only the burden of persuasion
was at issue. The Court held that the
burden of persuasion in a hearing
challenging the validity of an IEP is
placed on the party on which this
burden usually falls—on the party
seeking relief—whether that is the
parent of the child with a disability or
the LEA. Where the public agency has
requested that a hearing officer remove
a child to an interim alternative
educational setting, the burden of
persuasion is on the public agency.
Since Supreme Court precedent is
binding legal authority, further
regulation in this area is unnecessary.
Changes:
None.
Comment:
Many commenters
requested that the regulations clarify
that the LEA has the burden of proof in
determining whether the child’s
behavior was or was not a manifestation
of the child’s disability and that the IEP
was appropriate and properly
implemented. Other commenters
expressed concern that the regulations,
as written, put the burden on the parent
to prove either that the conduct was
caused by or had a direct and
substantial relationship to the child’s
disability or that the IEP was not being
implemented.
Discussion:
The concept of burden of
proof is not applicable to the
manifestation determination, which
does not occur in a hearing under the
Act. Under § 300.530(e), the LEA, the
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parent, and relevant members of the IEP
Team (as determined by the parent and
the LEA) are responsible for
determining whether the child’s
behavior is a manifestation of the child’s
disability, by conducting a fair inquiry
into the issues posed by
§ 300.530(e)(1)(i) and (ii). If the parent
disagrees with the manifestation
determination, they have the right to
appeal that decision by requesting a due
process hearing under § 300.532. At the
point a due process hearing is
requested, the concept of burden of
proof would be applicable. As stated
above, the Supreme Court determined in
Schaffer
that the burden of proof
ultimately is allocated to the moving
party.
Changes:
None.
Comment:
A few commenters
recommended requiring that the hearing
officer must consider the
appropriateness of the child’s current
placement; consider whether the public
agency has made reasonable efforts to
minimize the risk of harm in the child’s
current placement, including the use of
supplementary aids and services; and
determine that the interim alternative
educational setting meets specified
requirements.
Discussion:
We are not making
changes to the regulations, regarding a
hearing officer’s decision-making, to
require a hearing officer to consider
such factors as those suggested by the
commenters because a hearing officer
must have the ability to conduct
hearings and render and write decisions
in accordance with appropriate,
standard legal practice and exercise his
or her judgment in the context of all the
factors involved in an individual case.
Changes:
None.
Comment:
Some commenters
recommended clarifying the reference to
a ‘‘hearing’’ in § 300.532(a) and an
‘‘expedited hearing’’ in § 300.532(c).
Some of these commenters stated that
there seems to be a conflict between the
two hearings. Other commenters
questioned whether the hearing
referenced in paragraphs (a) and (c) of
this section must be conducted
consistent with all the impartial due
process hearing requirements. Another
commenter suggested that a hearing
requested pursuant to § 300.532 may be
contrary to section 615(h) of the Act,
which provides for the right to counsel,
to cross-examine witnesses, and to
present evidence and receive the record
of due process hearings.
Discussion:
The hearing referenced in
§ 300.532(a) and (c) is the same hearing
and not separate hearings. Paragraph (a)
in this section states that a parent of a
child with a disability who disagrees
with any decision regarding a
placement, or the manifestation
determination, or an LEA that believes
that maintaining the current placement
of the child is substantially likely to
result in injury to the child or to others,
may request a hearing. Paragraph (c) of
this section clarifies that a hearing
requested under paragraph (a) of this
section is an impartial due process
hearing consistent with the due process
hearing requirements of §§ 300.510
through 300.514 (including hearing
rights, such as a right to counsel,
presenting evidence and cross-
examining witnesses, and obtaining a
written decision), except that the
timelines for the hearing are expedited
and a State may establish different
procedural rules for expedited due
process hearings as long as the rules
ensure the requirements in §§ 300.510
through 300.514 are met. We believe
these regulations 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.
Further, we believe it is important that
all the due process protections in
§§ 300.510 through 300.514 are
maintained because of the importance of
the rights at issue in these hearings.
Changes:
None.
Comment:
One commenter
recommended the regulations clarify
that a placement determination made by
a hearing officer pursuant to his or her
authority under § 300.532(b), regarding
an appeal requested by a parent who
disagrees with the placement of a child,
is final and cannot be augmented by the
SEA or LEA.
Discussion:
Section 300.514,
consistent with section 615(i)(1)(A) of
the Act, is clear that a hearing officer’s
decision made in a hearing conducted
pursuant to §§ 300.530 through 300.534
is final, except that a party may appeal
the decision under the provisions in
§ 300.514(b). Absent a decision upon
appeal, the SEA or the LEA may not
augment or alter the hearing officer’s
decision. We do not believe that the
regulations need to be clarified.
Changes:
None.
Comment:
One commenter
recommended clarifying whether there
is a difference between ‘‘likely to result
in injury to child or others’’ as used in
§ 300.532(b)(2)(ii) and ‘‘child would be
dangerous’’ as used in § 300.530(b)(3).
The commenter suggested that
§ 300.532(b)(3), which permits the LEA
to return to the hearing officer to request
continuation of an interim alternative
education placement if the LEA believes
the child would be dangerous if
returned to the original placement, is a
lesser standard than that required of the
hearing officer in § 300.532(b)(2)(ii),
which permits a hearing officer to order
a change in placement to an appropriate
interim alternative education setting if
the hearing officer determines that
maintaining the current placement of
the child is substantially likely to result
in injury to the child or to others.
Discussion:
There is no intended
difference between the phrase ‘‘likely to
result in injury to the child or others’’
as used in § 300.532(b)(2)(ii) and ‘‘child
would be dangerous’’ as used in
§ 300.532(b)(3). Section 300.532(b)(2)(ii)
clarifies that the hearing officer can
order a change in placement of a child
with a disability to an interim
alternative educational setting for not
more than 45 school days if the hearing
officer determines that maintaining the
current placement of the child is
substantially likely to result in injury to
the child or others. To avoid confusion,
the term ‘‘dangerous’’ is replaced with
‘‘substantially likely to result in injury
to the child or to others.’’
Changes:
We have replaced the term
‘‘dangerous’’ in § 300.532(b)(3) with
‘‘substantially likely to result in injury
to the child or to others.’’
Comment:
A few commenters
questioned whether the change from the
heading ‘‘expedited due process
hearings’’ in current § 300.528 to
‘‘expedited hearing’’ in § 300.532(c)
represents a change in the hearings that
are available under § 300.532.
Discussion:
The removal of ‘‘due
process’’ from the heading in current
300.528 does not represent a substantive
change. The change was made to track
the statutory requirements in the Act.
However, we believe it is important to
clarify that an expedited hearing under
§ 300.532(c) is a due process hearing
and the heading to paragraph (c) has
been amended to retain the heading in
current § 300.528. We also have made
additional technical and clarifying
changes to paragraphs (c)(2) and (c)(3) of
§ 300.532. In paragraph (c)(2) of this
section, we are clarifying that an
expedited hearing must occur within 20
school days of the date the complaint
requesting the hearing is filed and
restructuring the paragraph for clarity.
In paragraph (c)(3) of this section, we
are clarifying that the meeting
referenced in this paragraph is a
resolution meeting.
Changes:
The heading in § 300.532(c)
has been revised to clarify that a hearing
under paragraph (c) of this section is an
‘‘expedited due process hearing.’’ We
have also made technical and clarifying
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changes to paragraphs (c)(2) and (c)(3) of
this section.
Comment:
Many commenters
requested clarifying whether the
requirements in § 300.508(d), regarding
sufficiency of the complaint, apply to
the expedited hearing requested under
§ 300.532(c), pertaining to
disagreements with a decision regarding
disciplinary placements.
Discussion:
In light of the shortened
timelines for conducting an expedited
due process hearing under § 300.532(c),
it is not practical to apply to the
expedited due process hearing the
sufficiency provision in § 300.508(d),
which requires that the due process
complaint must be deemed sufficient
unless the party receiving the due
process complaint notifies the hearing
officer and the other party in writing,
within 15 days of receipt of the due
process complaint, that the receiving
party believes the due process
complaint does not include all the
necessary content of a complaint as
required in § 300.508(b).
To identify the provisions that do
apply when a parent requests a hearing
under § 300.532(a), we have changed
§ 300.532(a) to clarify that parents and
the LEA may request a hearing under
§ 300.532(a) by filing a complaint
pursuant to §§ 300.507 and 300.508(a)
and (b).
Changes:
We have changed
§ 300.532(a) to provide that the parent
and the LEA may request a hearing
under this section by filing a complaint
pursuant to §§ 300.507 and 300.508(a)
and (b).
Comment:
Several commenters stated
that section 615(k) of the Act does not
require a resolution meeting as part of
an expedited hearing and recommended
removing the requirement in
§ 300.532(c)(3)(i) that a resolution
meeting must occur within seven days
of the date an expedited hearing is
requested under § 300.532(a). One
commenter stated that, given the
expedited timelines for the hearing and
the decision, Congress did not intend
for the resolution meeting to apply to an
expedited hearing under section
615(k)(4) of the Act.
Discussion:
We are not removing the
requirement in § 300.532(c) requiring a
resolution meeting because an
expedited hearing under section
615(k)(3) of the Act is a due process
hearing subject to the provisions in
section 615(f) of the Act, including the
requirement that the LEA convene a
resolution meeting when the parent files
a due process complaint. Recognizing
the need to promptly resolve a
disagreement regarding a disciplinary
decision, we believe the resolution
meeting provides an opportunity for an
LEA and parents to resolve a
disagreement regarding a disciplinary
placement or manifestation
determination before the timeframe for
conducting a due process hearing
begins. In light of the requirement in
section 615(k)(4)(B) of the Act that an
expedited hearing must occur within 20
school days of the date the complaint
requesting the hearing is filed and a
determination must be made within 10
school days after the hearing, which is
a much shorter time frame than the one
for a due process complaint filed
pursuant to 615(f) of the Act, we
shortened the resolution meeting
timeline to fit into the expedited hearing
timeline. Recognizing the need to
ensure that the resolution meeting does
not delay the expedited hearing if an
agreement is not reached,
§ 300.532(c)(3) provides that the
resolution meeting must occur within
seven days of receiving notice of the
parent’s due process complaint
regarding a disciplinary placement
under §§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), and the hearing may
proceed unless the matter is resolved
within 15 days of the receipt of the
parent’s due process complaint
requesting the expedited due process
hearing, and all the applicable timelines
for an expedited due process hearing
under paragraph (c) of this section
commence. However, the parties may
agree to waive the resolution meeting or
agree to use the mediation process.
Changes:
None.
Comment:
Several commenters noted
that § 300.532(c)(3)(i) states that a
resolution meeting must occur within
seven days of the date the ‘‘hearing is
requested,’’ while § 300.510(a)(1),
consistent with section 615(f)(1)(B)(i)(I)
of the Act, states that the resolution
meeting must occur within 15 days of
‘‘receiving notice of the due process
complaint.’’ The commenters
recommended that the Department
amend § 300.532(c)(3)(i) to be consistent
with § 300.510(a)(1).
Discussion:
We agree with the
commenters that the language in
§ 300.532(c)(3)(i) should be consistent
with § 300.510(a)(1) and are amending
§ 300.532(c)(3)(i) to state that a
resolution meeting must occur within
seven days of ‘‘receiving notice of the
parent’s due process complaint’’ to be
consistent with § 300.510(a)(1). In
addition, for consistency, we are
amending § 300.532(c)(3)(ii) to state that
the due process hearing may proceed
unless the matter has been resolved to
the satisfaction of both parties within 15
days of ‘‘the receipt of the parent’s due
process complaint.’’
Changes:
Paragraphs (c)(3)(i) and (ii)
of § 300.532 have been amended as
stated above. Paragraph (c)(3) of this
section has also been amended to
remove the cross-reference to
§ 300.510(a)(3) and specific explanatory
language has been inserted.
Comment:
One commenter asked
whether the intent of § 300.532(c)(3)(ii)
is to allow the expedited hearing to go
forward if the parent fails to participate
in the resolution meeting within 15 days
of receipt of a hearing request or
whether the resolution meeting and
hearing would be indefinitely delayed
in the context of the expedited hearing
for the failure of a parent to participate
in the resolution meeting.
Discussion:
Section 300.532(c)(3)(i)
clearly states that the resolution meeting
must occur within seven days of a
public agency’s receiving notice of the
parent’s due process complaint. It is not
expected that parties will necessarily
reach agreement during the resolution
meeting; the parties often need time to
consider the resolution options offered
at the meeting. The intent of
§ 300.532(c)(3)(ii) is to allow parties
sufficient time to consider the
resolution options discussed in the
resolution meeting. However, if the
parties do not reach agreement within
15 days of receipt of the parent’s due
process complaint, the expedited
hearing may proceed and all the
applicable timelines for an expedited
due process hearing under paragraph (c)
commence. Lack of parent participation
in the resolution meeting would be
addressed the same way it is in a regular
due process hearing under § 300.510(b),
except that the timeframes will differ.
For these reasons, we believe it is
unnecessary to clarify the regulations.
Changes:
None.
Comment:
Several commenters
recommended removing proposed
§ 300.532(c)(4), which allows a State to
shorten the time periods for the
disclosure of evidence, evaluations, and
recommendations for expedited due
process hearings to two business days,
because it will not give a parent
adequate time to prepare for hearings,
especially when a parent doesn’t have a
lawyer. One commenter stated that
because LEAs have possession and
control of education records, a
reduction to two days for disclosure is
unfair and creates a hardship on a
parent in preparing for the hearing.
Other commenters stated that this
provision is inconsistent with section
615(f)(2) of the Act, which requires that
not less than five business days prior to
a hearing, parties must disclose all
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evaluations and recommendations that
parties intend to use at a hearing. A few
commenters stated that proposed
§ 300.532(c)(4) diminishes the
protections for children with disabilities
and their parents found in the July 20,
1983 regulations, and, therefore, violates
section 607(b)(1) and (b)(2) of the Act.
Discussion:
We are persuaded by the
commenters that limiting the disclosure
time to two days would significantly
impair the ability of the parties to
prepare for the hearing, since one
purpose of the expedited hearing is to
provide protection to the child. We are
removing proposed § 300.532(c)(4),
which provides an exception to the
normal five day disclosure requirement.
Changes:
We have removed proposed
§ 300.532(c)(4) for the reason stated
above. In addition, proposed paragraphs
(c)(5) and (c)(6) of this section have been
redesignated as paragraphs (c)(4) and
(c)(5), respectively. A technical edit has
been made to paragraph (c)(1) of this
section to ensure the reference to
proposed paragraphs (c)(2) through (5)
of this section now reference paragraphs
(c)(2) through (4) consistent with these
changes.
Comment:
Numerous commenters
expressed concern that proposed
§ 300.532(c)(5) (new § 300.532(c)(4)),
which permits States to establish a
different set of procedural rules for
expedited due process hearings, could
permit States to re-write rules regarding
basic procedural safeguards. One
commenter expressed concern that
proposed § 300.532(c)(5) may lead to
abuse if the rules from §§ 300.511
through 300.514 regarding complaints,
sufficiency, raising new issues, losing
on procedural grounds, and appeals are
not part of the expedited due process
hearing requirements.
Discussion:
We agree with the
commenters that proposed
§ 300.532(c)(5), as written, could be
interpreted to give States authority to
change due process rules provided for
in the Act. Therefore, we are amending
new § 300.532(c)(4) (proposed
§ 300.532(c)(5)) to clarify that while a
State may establish different State-
imposed procedural rules for expedited
due process hearings conducted under
this section than it has established for
other due process hearings, the State
must ensure that the requirements in
§§ 300.510 through 300.514 are met.
This will ensure that the basic
protections regarding expedited
hearings under the Act are met, while
enabling States, in light of the expedited
nature of these hearings, to adjust other
procedural rules they have established
for due process hearings.
Changes:
New § 300.532(c)(4)
(proposed § 300.532(c)(5)) has been
amended to clarify that a State may
establish different State imposed rules
for expedited due process hearings
under § 300.532(c) than it has
established for other due process
hearings but, except for the timelines
modified as in paragraph (c)(3) of
§ 300.532, the State must ensure that the
requirements in §§ 300.510 through
300.514 are met.
Placement During Appeals (§ 300.533)
Comment:
One commenter
recommended retaining the ‘‘stay-put’’
requirement in current § 300.526(b).
This section provides that if a child is
placed in an interim alternative
education setting and school personnel
propose to change the child’s placement
after expiration of the interim
alternative educational placement,
during the pendency of any proceeding
to challenge the proposed change in
placement, the child must remain in the
child’s placement prior to the interim
alternative educational setting. One
commenter requested clarification as to
whether the removal of current
§ 300.526(b) represents a substantive
change in the Department’s policy.
Other commenters requested clarifying
what the child’s placement would be
after the 45-day interim alternative
educational setting if the LEA requests
another hearing under § 300.532(b)(3).
Discussion:
The Act changed the stay-
put provision applying to disciplinary
actions. The provisions regarding stay-
put in current § 300.527(b) are not
included in these regulations because
the provisions upon which § 300.527(b)
were based, were removed by Congress
from section 615(k)(4) of the Act. We,
therefore, are not revising the
regulations in light of Congress’ clear
intent that, when there is an appeal
under section 615(k)(3) of the Act by the
parent or the public agency, the child
shall remain in the interim alternative
educational setting chosen by the IEP
Team pending the hearing officer’s
decision or until the time period for the
disciplinary action expires, whichever
occurs first, unless the parent and the
public agency agree otherwise.
Section 300.533 reflects the statutory
requirements in section 615(k)(4)(A) of
the Act. For example, consistent with
§ 300.533, if a child’s parents oppose a
proposed change in placement at the
end of a 45-day interim alternative
educational placement, during the
pendency of the proceeding to challenge
the change in placement, the child
remains in the interim alternative
educational setting pending the decision
of the hearing officer or until the
expiration of the time period for the
disciplinary action, whichever occurs
first, unless the parent and the public
agency agree otherwise.
Changes:
None.
Comment:
One commenter
recommended that LEAs and SEAs not
be allowed to have a policy prohibiting
the IEP Team from deciding where the
child would ‘‘stay-put’’ during an
appeal under § 300.532. The commenter
stated that the IEP Team should have
the authority to maintain a child in his
or her current placement when
appropriate.
Discussion:
Section 300.531,
consistent with section 615(k)(2) of the
Act, provides that the IEP Team
determines the interim alternative
educational setting for removals that
constitute a change in placement under
§ 300.536. Additionally, section
615(k)(4)(A) of the Act is clear that,
during an appeal under section
615(k)(3) of the Act, the child must
remain in the interim alternative
education setting pending the decision
of the hearing officer or until the
expiration of the time period for the
disciplinary action expires, whichever
comes first, unless the parent and the
LEA agree otherwise. Thus, under the
Act, whenever a hearing is requested
under section 615(k)(3) of the Act by the
parent or the LEA, it is the parties
involved in the hearing (i.e., the parent
and the LEA), not the IEP Team, that
may agree to change the time period of
the removal or the interim setting for the
child. We, therefore, do not believe it is
necessary or appropriate to regulate as
suggested by the commenter. There is
nothing in the Act or these regulations,
however, which would prohibit the
parents and the LEA from agreeing to
involve the IEP Team in any decision to
change the time period of the removal
or interim alternative educational
setting.
Changes:
None.
Protections of Children Not Determined
Eligible for Special Education and
Related Services (§ 300.534)
Comment:
A few commenters
requested including in § 300.534(b)(1)
language allowing the parent of the
child to express concerns about his or
her child orally to supervisory or
administrative personnel, rather than
requiring written notification. Other
commenters requested clarifying what it
means for parents to ‘‘express concern’’
to school personnel.
Discussion:
Section 615(k)(5)(B)(i) of
the Act clearly states that parents must
express concern ‘‘in writing’’ to
supervisory or administrative personnel,
or a teacher of the child, that their child
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is in need of special education and
related services. To include the
language recommended by the
commenters in § 300.534(b)(1) to allow
the parent of the child to orally express
their concerns (as opposed to doing so
in writing) is inconsistent with and
would impermissibly broaden the
requirements in the Act. We do not
believe it is necessary to clarify the
phrase ‘‘express concern’’ in
§ 300.534(b) because we believe that, in
the context of this section, it is
understood to mean that a parent is
concerned that his or her child is in
need of special education and related
services and expresses that concern in
writing to the child’s teacher or
administrative personnel.
Changes:
None.
Comment:
One commenter
recommended adding to the basis of
knowledge criteria in § 300.534(b) that if
the child were currently receiving early
intervening services under § 300.226 the
LEA would be deemed to have
knowledge that a child is a child with
a disability.
Discussion:
A public agency will not
be considered to have a basis of
knowledge under § 300.534(b) merely
because a child receives services under
the coordinated, early intervening
services in section 613(f) of the Act and
§ 300.226 of these regulations. The basis
of knowledge criteria is clearly stated in
section 615(k)(5)(B) of the Act and
§ 300.534. We do not believe that
expanding the basis of knowledge
provision, as recommended by the
commenter, would be appropriate given
the specific requirements in the Act.
However, if a parent or a teacher of a
child receiving early intervening
services expresses a concern, in writing,
to appropriate agency personnel, that
the child may need special education
and related services, the public agency
would be deemed to have knowledge
that the child is a child with a disability
under this part.
Changes:
None.
Comment:
A few commenters
recommended removing the
requirement in § 300.534(b)(3) that the
teacher of the child must express
specific concerns regarding a child’s
pattern of behavior directly to the
director of special education of the LEA
or to other supervisory personnel of the
LEA ‘‘in accordance with the agency’s
established child find or special
education referral system.’’ One of the
commenters stated that this language is
confusing and is not required by the
Act. One commenter requested
clarifying whether the LEA would be
deemed to have knowledge if the
information was relayed by a child’s
teacher in a written manner not
consistent with the LEA’s referral
system.
Discussion:
Since not all child find
and referral processes in States and
LEAs would necessarily meet the
requirement in section 615(k)(5)(B)(iii)
of the Act that the teacher of the child,
or other personnel of the LEA, must
express specific concerns about a
pattern of behavior demonstrated by the
child ‘‘directly to the director of special
education of such agency or to other
supervisory personnel of the agency,’’
we are removing from § 300.534(b)(3)
the requirement that concerns be
expressed in accordance with the
agency’s established child find or
special education referral system.
We continue to believe the child find
and special education referral system is
an important function of schools, LEAs,
and States. School personnel should
refer children for evaluation through the
agency’s child or special education
referral system when the child’s
behavior or performance indicates that
they may have a disability covered
under the Act. Having the teacher of a
child (or other personnel) express his or
her concerns regarding a child in
accordance with the agency’s
established child find or referral system
helps ensure that the concerns
expressed are specific, rather than
casual comments, regarding the
behaviors demonstrated by the child
and indicate that the child may be a
child with a disability under the Act.
For these reasons, we would encourage
those States and LEAs whose child find
or referral processes do not permit
teachers to express specific concerns
directly to the director of special
education of such agency or to other
supervisory personnel of the agency, to
change these processes to meet this
requirement.
Changes:
In light of some State child
find procedures, we have removed from
§ 300.534(b)(3) the requirement that the
teacher or other LEA personnel must
express concerns regarding a child’s
pattern of behavior in accordance with
the agency’s established child find or
special education referral system.
Comment:
Several commenters
recommended clarifying that a child
who was evaluated and determined
ineligible for special education and
related services years ago would not be
an exception under § 300.534(c) to the
basis of knowledge requirement in
paragraph (b) of this section. Many
commenters recommended that an
evaluation and eligibility determination
that is more than three years old not
prevent deeming an LEA to have a basis
of knowledge. One of these commenters
specifically recommended revising
§ 300.534(c)(1)(i) to clarify that a public
agency would not be deemed to have
knowledge that a child is a child with
a disability if the parent of the child has
not allowed an evaluation of the child
pursuant to §§ 300.300 through 300.311
‘‘within three years prior to the
incident.’’
Discussion:
The exceptions included
in § 300.534(c) track the statutory
requirements in section 615(k)(5)(C) of
the Act. The intent of Congress in
revising section 615(k)(5) of the Act was
to ‘‘ensure that schools can
appropriately discipline students, while
maintaining protections for students
whom the school had valid reason to
know had a disability’’ and that the
provisions in the Act should not have
the ‘‘unintended consequence of
providing a shield against the ability of
a school district to be able to
appropriately discipline a student.’’ (S.
Rpt. No. 108–185, p. 46). We are not
including time restrictions, as suggested
by the commenters, to the exceptions in
paragraph (c) of this section because we
believe such restrictions are
unnecessary and could have the
unintended consequence of hindering
the school’s ability to appropriately
discipline a child. We believe the basis
of knowledge provision in § 300.534(b)
is sufficient to ensure that a school had
valid reason to know that a child may
need special education and related
services.
Changes:
None.
Comment:
A few commenters
recommended removing
§ 300.534(c)(1)(i), which states that a
public agency would not be deemed to
have knowledge that a child is a child
with a disability if the parent has not
allowed an evaluation of the child
pursuant to §§ 300.300 through 300.311.
The commenters stated that this would
deny children with disabilities FAPE
and the procedural protections granted
children with disabilities removed from
their educational placement for
disciplinary reasons.
Discussion:
The requirement in
§ 300.534(c)(1)(i), regarding the
exception to the basis of knowledge if a
parent refuses to consent to an
evaluation, is statutory. Further,
§ 300.300(a)(3), consistent with section
614(a)(1)(D)(ii)(I) of the Act, clearly
states that the public agency may, but is
not required to, pursue an initial
evaluation of a child if the parents
refuse to provide consent, or fail to
respond to a request to provide consent,
for the initial evaluation, by utilizing
the Act’s due process procedures. If a
public agency chooses not to utilize the
Act’s due process procedures, the LEA
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is not considered in violation of the
requirement to provide FAPE.
Changes:
None.
Comment:
A few commenters
recommended retaining in
§ 300.534(c)(2) the language in current
§ 300.527(c)(1)(i) to clarify that the
evaluation used to determine whether a
child is a child with a disability under
this part must be conducted pursuant to
§§ 300.300 through 300.311.
Discussion:
It is accurate that the
evaluation referenced in § 300.534(c)(2)
must be conducted consistent with the
evaluation requirements in §§ 300.300
through 300.311. We agree with the
commenters that paragraph (c)(2) of this
section should be amended to make
clear that the evaluation conducted
under this paragraph must be conducted
consistent with the evaluation
requirements in §§ 300.300 through
300.311.
Changes:
We have amended
paragraph (c)(2) to make clear that the
evaluation under this provision must be
conducted in accordance with
§§ 300.300 through 300.311.
Comment:
A few commenters
recommended amending § 300.534(d)(2)
to require that if a request is made for
an evaluation of a child during the time
period in which the child is subjected
to a disciplinary removal under
§ 300.530, the evaluation must be
completed within ten days of the
parent’s request and that an eligibility
determination be made within five days
of the completion of the evaluation.
Discussion:
We do not believe a
specific timeline for an expedited
evaluation or an eligibility
determination should be included in
these regulations. What may be required
to conduct 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, § 300.534(d)(2)(i), consistent
with section 615(k)(5)(D)(ii) of the Act,
specifies that the evaluation in these
instances be ‘‘expedited’’, which means
that an evaluation should be conducted
in a shorter period of time than a typical
evaluation conducted pursuant to
section 614 of the Act, which must be
conducted within 60 days of receiving
parental consent for the evaluation. (See
section 614(a)(1)(C)(i)(I) of the Act).
Further, we believe it would be
inappropriate to specify the timeframe
from the completion of an evaluation to
the determination of eligibility when
there is no specific statutory basis to do
so. The Department has long held that
eligibility decisions should be made
within a reasonable period of time
following the completion of an
evaluation.
Changes:
None.
Comment:
A few commenters stated
that § 300.534(d)(2) seems to imply that
when a request is made for an expedited
evaluation of a child subjected to a
disciplinary removal, the child would
receive an educational placement and
services pending the results of the
evaluation.
Discussion:
We believe that
§ 300.534(d) is clear. Section 300.534(d)
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 of
knowledge that the child was a child
with a disability. An educational
placement under § 300.534(d)(2)(ii) may
include a suspension or expulsion
without services, if those measures are
comparable to disciplinary measures
applied to children without disabilities
who engage in comparable behavior. Of
course, States and LEAs are free to
choose to provide services to children
under § 300.534(d).
Changes:
None.
Referral to and Action by Law
Enforcement and Judicial Authorities
(§ 300.535)
Comment:
One commenter stated that
the requirement in § 300.535(b)(2),
which requires a public agency
reporting a crime to transmit copies of
the child’s special education and
disciplinary records only to the extent
that the transmission is permitted by the
Family Educational Rights and Privacy
Act (FERPA), is beyond the scope of the
Act and should be removed.
Discussion:
We do not believe that
§ 300.535(b)(2) goes beyond the scope of
the Act as sections 612(a)(8) and 617(c)
of the Act direct the Secretary 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. We therefore are not
removing this provision. We maintain
that the provisions in section
615(k)(6)(B) of the Act, as reflected in
§ 300.535(b)(2), must be read consistent
with the disclosures permitted under
FERPA for the education records of all
children. Under FERPA, personally
identifiable information (such as the
child’s status as a special education
child) can only be released with
parental consent, except in certain very
limited circumstances. Therefore, the
transmission of a child’s special
education and disciplinary records
under paragraph (b)(2) of this section
without parental consent is permissible
only to the extent that such
transmission is permitted under FERPA.
Changes:
None.
Change of Placement Because of
Disciplinary Removals (§ 300.536)
Comment:
A few commenters
expressed concern that the requirements
in § 300.536 do not account for schools
with zero tolerance policies.
Discussion:
We believe the provisions
in §§ 300.530 through 300.536 do
account for zero tolerance policies by
providing public agencies the flexibility
to implement discipline policies as they
deem necessary to create safe
classrooms and schools for teachers and
children as long as those policies are
fair and equitable for all children and
protect the rights of children with
disabilities. If a child with a disability
is removed from his or her current
placement and placed in an interim
alternative educational setting, another
setting, or suspended or expelled under
the public agency’s zero tolerance
policy, the disciplinary requirements in
§§ 300.530 through 300.536 apply.
Therefore, we do not believe it is
necessary to include language in
§ 300.536 regarding a public agency’s
zero tolerance policy as such policies
are irrelevant to what constitutes a
change in placement for disciplinary
removals under the Act.
Changes:
None.
Comment:
Many commenters
recommended removing proposed
§ 300.536(b) (new § 300.536(a)(2))
regarding a series of removals that
constitute a change in placement stating
it has no statutory basis.
Discussion:
We believe section
615(k)(1)(B) 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, provides the
statutory basis for proposed § 300.536(b)
(new § 300.536(a)(2)). This section of the
Act does not permit using repeated
disciplinary removals of 10 school days
or less as a means of avoiding the
normal change in placement protections
under Part B of the Act.
Changes:
None.
Comment:
Numerous commenters
recommended removing the reference to
manifestation determination in
proposed § 300.536(b)(2) (new
§ 300.536(a)(2)(ii)). Several of these
commenters stated that it is unnecessary
since the manifestation determination is
reserved for removals longer than 10
school days. Some commenters stated if
the language in proposed paragraph
(b)(1) of this section (new paragraph
(a)(2)(i) of this section) that a series of
removals constitutes a pattern because
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the series of removals total more than 10
school days in a school year is going to
be retained, proposed paragraph (b)(2)
of this section (new paragraph (a)(2)(ii)
of this section) should be eliminated
because it is excessive and has no basis
in the Act. Other commenters found the
manifestation determination
requirement in proposed paragraph
(b)(2) of this section ‘‘circular’’ because
requiring a child’s behavior to be a
manifestation of his or her disability
before determining that a change in
placement has occurred under proposed
paragraph (b)(2) of this section (new
paragraph (a)(2)(ii) of this section) and
then requiring that a manifestation
determination be conducted under
§ 300.530(e), whenever a child’s
removal constitutes a change in
placement, is redundant and confusing.
Discussion:
We agree with the
commenters that requiring that a child’s
behavior must be a manifestation of the
child’s disability before determining
that a series of removals constitutes a
change in placement under proposed
paragraph (b) of this section (new
paragraph (a)(2) of this section) should
be removed. We believe it is sufficient
for the public agency to conclude that
a change in placement has occurred if
a child has been subjected to a series of
removals that total more than 10 school
days in a school year, the behaviors are
substantially similar in nature, and such
additional factors as the length of each
removal, the total amount of time the
child has been removed, and the
proximity of the removals to one
another support the premise that the
series of removals constitute a pattern.
However, our removal of the
manifestation determination under
proposed paragraph (b)(2) of this section
(new paragraph (a)(2) of this section)
does not eliminate the obligation to
conduct a manifestation determination
under § 300.530(e) if the public agency’s
determination is that the series of
removals constitutes a change in
placement. Section 300.530(e) requires
that a manifestation determination be
conducted within 10 school days of any
decision to change the placement of a
child with a disability because of a
violation of a code of student conduct.
Changes:
We have restructured
proposed § 300.536(b) as follows:
Proposed paragraph (b)(1) of this section
is redesignated as new paragraph
(a)(2)(i); proposed paragraph (b)(2) of
this section is redesignated as new
paragraph (a)(2)(ii); proposed paragraph
(b)(3) of this section is redesignated as
paragraph (a)(2)(iii). We also removed
from new paragraph (a)(2)(ii) of this
section (proposed paragraph (b)(2) of
this section) the requirement that a
child’s behavior must have been a
manifestation of the child’s disability
before determining that a series of
removals constitutes a change in
placement under § 300.536.
Comment:
One commenter
recommended revising proposed
§ 300.536(b)(2) (new § 300.536(a)(2)(ii))
to clarify that the child’s behavior must
be substantially similar to the child’s
behavior in ‘‘previous’’ incidents that
resulted in the series of removals.
Discussion:
Our intent in including
new § 300.536(a)(2)(ii) (proposed
§ 300.536(b)(2)) to these regulations is to
assist in the appropriate application of
the change in placement provisions in
paragraph (a)(2) of this section. We
concur with the commenter and believe
adding the reference to ‘‘previous’’
incidents provides clarity to the
provision that, when determining
whether a child has been subjected to a
series of removals that constitute a
pattern under § 300.536(a)(2), school
personnel should determine whether
the child’s behavior that resulted in the
removal is substantially similar to the
previous incidents that resulted in the
series of removals.
Changes:
New § 300.536(a)(2)(ii)
(proposed § 300.536(b)(2)) has been
amended to reference the child’s
behavior in ‘‘previous’’ incidents that
resulted in the series of removals.
Comment:
Many commenters
requested the regulations define
‘‘substantially similar behavior.’’ Many
commenters expressed concern that
there is no precedent or statutory
support for the use of ‘‘substantially
similar behavior’’ and requested
explaining the statutory basis for
including the provision. One
commenter suggested including a
provision in proposed § 300.536(b)(2)
that substantially similar behaviors
must have been recognized by the IEP
Team or be included in the IEP as
related to the child’s disability. One
commenter stated that what constitutes
‘‘substantially similar behavior’’ is
highly subjective, prone to overuse, and
likely to lead to litigation.
Discussion:
We are not changing the
regulations because, in light of the
Department’s longstanding position that
a change in placement has occurred if
a child has been subjected to a series of
disciplinary removals that constitute a
pattern, we believe requiring the public
agency to carefully review the child’s
previous behaviors to determine
whether the behaviors, taken
cumulatively, are substantially similar
is an important step in determining
whether a series of removals of a child
constitutes a change in placement, and
is necessary to ensure that public
agencies appropriately apply the change
in placement provisions. Whether the
behavior in the incidents that resulted
in the series of removals is
‘‘substantially similar’’ should be made
on a case-by-case basis and include
consideration of any relevant
information regarding the child’s
behaviors, including, where
appropriate, any information in the
child’s IEP. However, we do not believe
it is appropriate to require in these
regulations that the ‘‘substantially
similar behaviors’’ be recognized by the
IEP Team or included in the child’s IEP
as recommended by the commenter. The
commenter is correct that what
constitutes ‘‘substantially similar
behavior’’ is a subjective determination.
However, we believe that when the
child’s behaviors, taken cumulatively,
are objectively reviewed in the context
of all the criteria in paragraph (a)(2) of
this section for determining whether the
series of behaviors constitutes a change
in placement, the public agency will be
able to make a reasonable determination
as to whether a change in placement has
occurred. Of course, if the parent
disagrees with the determination by the
public agency, the parent may request a
due process hearing pursuant to
§ 300.532.
Changes:
None.
Comment:
One commenter requested
an explanation of what recourse parents
have if they disagree with the public
agency’s change in placement decision
for a child who violates a code of
student conduct.
Discussion:
If a parent of a child with
a disability disagrees with any decision
regarding a disciplinary change in
placement of a child under §§ 300.530
and 300.531, or the manifestation
determination under § 300.530(e), the
parent may request a due process
hearing pursuant to § 300.532.
Changes:
None.
Comment:
Several commenters
requested clarifying who determines
whether a series of removals under
proposed § 300.536(b) (new paragraph
(a)(2) of this section) constitutes a
change in placement. One commenter
recommended adding in proposed
paragraph (b) language from the
Analysis of Comments and Changes
to
current § 300.520 clarifying that any
decision regarding whether a pattern of
removals constitutes a change in
placement must be made on a case-by-
case basis by the public agency. (March
12, 1999 (64 FR 12618)).
Discussion:
Whether a pattern of
removals constitutes a ‘‘change in
placement’’ under new paragraph (a)(2)
of this section (proposed § 300.536(b))
must be determined on a case-by-case
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basis by the public agency. We agree it
is important to clarify this position in
these regulations and is necessary to
ensure proper implementation of this
section. We are including the language
from the
Federal Register
of March 12,
1999 (64 FR 12618), (as suggested by the
commenter.
Changes:
A new paragraph (b) has
been added to § 300.536 to clarify that
the public agency (subject to review
through the due process and judicial
proceedings) makes the determination,
on a case-by-case basis, whether a
pattern of removals constitutes a change
in placement.
State Enforcement Mechanisms
(§ 300.537)
Comment:
None.
Discussion:
New § 300.537 is
addressed under the
Analysis of
Comments and Changes
section for this
subpart in response to comments on
§ 300.510(d).
Changes:
We have added a new
§ 300.537 on State enforcement
mechanisms to clarify that,
notwithstanding §§ 300.506(b)(7) and
new 300.510(d)(2)(proposed
§ 300.510(c)(2)), nothing in this part
prevents a State from providing parties
to a written agreement reached as a
result of a mediation or resolution
process other mechanisms to enforce
that agreement, provided that such
mechanisms are not mandatory and do
not deny or delay the right of the parties
to seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States. We have also added a
cross reference to new § 300.573 in new
§ 300.510(d) (proposed § 300.510(c)),
regarding written settlement
agreements.
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
State Monitoring and Enforcement
(§ 300.600)
Comment:
Several commenters
recommended modifying § 300.600 to
include language from section 616(a)(1)
and (a)(3) of the Act to clarify that the
Department, like the States, has the
authority and obligation to monitor and
enforce Part B of the Act. The
commenters recommended that the
requirements in section 616(a)(1) of the
Act be included in the regulations
because improving accountability is one
of the most important goals of this
reauthorization and the Act mandates
the Secretary to monitor and enforce the
Act.
Discussion:
We take the responsibility
to monitor and enforce compliance with
the Act seriously, but that responsibility
comes from the Act, and from the
Department’s inherent authority to
ensure that the laws it is charged with
implementing are carried out, and not
from these regulations. In general, we do
not believe that it is necessary to
include language on the responsibility
of the Secretary in the regulations, as,
under § 300.2, the regulations apply to
States that receive payments under Part
B of the Act and public agencies of
those States, but not to the Department.
Information on our monitoring and
enforcement activities is available on
the Department’s Web site at:
http://
www.ed.gov/policy/speced/guid/idea/
monitor/index.html.
Changes:
None.
Comment:
Several commenters stated
that the monitoring priority areas in
section 616(a)(3) of the Act should be
included in § 300.600.
Discussion:
We agree that the
monitoring priority areas in section
616(a)(3) of the Act related to State
responsibilities should be included in
the regulations because these provisions
require each State to monitor its LEAs
in each of the monitoring priority areas
specified in the Act. Accordingly, we
will add further clarification regarding
the monitoring priority areas from
section 616(a)(3) of the Act in § 300.600.
Changes:
A new paragraph (d) has
been added to § 300.600 to include the
State monitoring priority areas in
section 616(a)(3) of the Act.
Comment:
One commenter expressed
concern that there will be no
accountability on the part of States and
the Department for complying with the
requirements in section 616(a)(1) and
(a)(3) of the Act because the regulations
do not reflect these requirements.
Discussion:
The requirements in
section 616(a)(1) of the Act, relating to
a State’s monitoring responsibilities, are
included in the regulations in
§ 300.600(a). Further, as indicated in the
response to the previous comment, a
provision regarding the State’s
responsibility to monitor LEAs located
in the State using the indicators in the
monitoring priority areas in section
616(a)(3) of the Act has been added in
new § 300.600(d). Regarding the
Secretary’s monitoring responsibility,
section 616(a)(1) of the Act is clear that
the Secretary must monitor
implementation of Part B of the Act
through the oversight of States’ exercise
of general supervision and through the
State performance plans. Sections
616(a)(3) and 616(b) further describe the
Secretary’s responsibilities to monitor
States’ implementation of Part B of the
Act. In addition, note 253–258 of the
Conf. Rpt. No. 108–779, p. 232, provides
that the Secretary must request such
information from States and
stakeholders as is necessary to
implement the purposes of the Act,
including the use of on-site monitoring
visits and file reviews to enforce the
requirements of the Act. We continue to
believe it is unnecessary to include the
Secretary’s obligations in the
regulations. We also do not believe
further clarification regarding State
accountability is necessary in § 300.600.
Changes:
None.
Comment:
One commenter noted that
§ 300.600(c) requires States to use
quantifiable indicators and such
qualitative indicators as are needed to
adequately measure performance in the
monitoring priority areas identified in
section 616(a)(3) of the Act. The
commenter expressed concern that this
requirement expands the data collection
burden on States and focuses on inputs,
processes, and whether certain
procedural rights are met, rather than
focusing on educational results and
outcomes for children with disabilities.
Discussion:
Section 300.600 reflects
the requirements in the Act and
Congress’ determination that collection
of this data is necessary to fulfill the
purposes of the Act. Specifically,
section 616(b)(2) of the Act requires
each State to develop a State
performance plan that includes
measurable and rigorous targets for the
indicators established under the
monitoring priority areas. As directed
by section 616(a)(3) of the Act, the
Secretary also has established
quantifiable indicators in each of the
monitoring priority areas listed in the
Act and these regulations. These
indicators focus on improving
educational results and functional
outcomes for children with disabilities,
and include issues such as the provision
of services in the LRE, participation and
performance on Statewide assessments,
and graduation and dropout rates. In
addition, important systemic indicators,
such as monitoring, mediation, and
child find, are included. More
information about State performance
plans, the indicators, and the
Department’s review of the State
performance plans is available on the
Department’s Web site at:
http://
www.ed.gov/policy/speced/guid/idea/
bapr/index.html.
Changes:
None.
Comment:
One commenter
recommended changing § 300.600 to
require States to develop policies and
procedures to analyze the performance
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of each public agency; develop written
policies and procedures to guide
monitoring activities; and develop and
maintain a stakeholder group, which
would include public school
administrators, advocates, family
members, and others, to guide
monitoring and enforcement activities.
Discussion:
Section 300.149(b),
consistent with section 612(a)(11) of the
Act, already requires States to have
policies and procedures in effect to
ensure compliance with the monitoring
and enforcement requirements in
§§ 300.600 through 300.602 and
§§ 300.606 through 300.608. Sections
300.167 through 300.169, consistent
with section 612(a)(21) of the Act,
require States to establish and maintain
an advisory panel with broad and
diverse representation to advise States
on, among other things, developing
evaluations and corrective action plans
to address findings identified in Federal
monitoring reports. Accordingly, we do
not believe any modification of
§ 300.600, regarding State monitoring
procedures, is necessary.
Changes:
None.
Comment:
Several commenters
recommended modifying § 300.600 to
require States to establish a committee,
which includes advocates to oversee
monitoring and enforcement activities.
A number of commenters suggested that
this group, at a minimum, include
representatives of PTIs; protection and
advocacy groups; and parent, disability
advocacy, and education organizations.
Several commenters also
recommended requiring the advisory
committee to provide advice on the
development of the State’s performance
goals and indicators required in
§ 300.157, the State’s performance plan,
including measurable and rigorous
targets required in § 300.601(a)(1) and
(a)(3), the State’s report to the public
required in § 300.602(b)(2), the State’s
corrective action or improvement plan
under § 300.604(b)(2)(i), and other State
monitoring, improvement, and
enforcement activities.
Discussion:
The State advisory panel,
required in §§ 300.167 through 300.169,
consistent with section 612(a)(21)(A) of
the Act, addresses many of the
commenters’ suggestions. The purpose
of the State advisory panel, as stated in
§ 300.167 and section 612(a)(21)(A) of
the Act, is to provide policy guidance to
the SEA with respect to special
education and related services for
children with disabilities. Pursuant to
§ 300.168 and section 612(a)(21)(B) of
the Act, a broad membership is
required. The duties of the panel are,
among other things, to advise the SEA
on unmet needs, evaluations, and
corrective action plans to address
findings identified in Federal
monitoring reports, consistent with
§ 300.169 and section 612(a)(21)(D) of
the Act. However, although we believe
that broad stakeholder involvement in
the development of the State
performance plans and annual
performance reports is very important,
we decline to regulate that a specific
group be involved in their development.
We have, however, provided guidance
in OSEP’s August 9, 2005 memorandum
to States,
Submission of Part B State
Performance Plans and Annual
Performance Reports,
(OSEP Memo 05–
12), located at
http://www.ed.gov/
policy/speced/guid/idea/bapr/
index.html,
which directs States to
provide information in their State
performance plans on how they
obtained broad input from stakeholders
on the State performance plan.
Accordingly, we find it unnecessary to
add any further clarification in
§ 300.600.
Changes:
None.
Comment:
Some commenters
recommended modifying § 300.600(b)(2)
to clarify that monitoring and
enforcement activities also apply to
programs under Part C of the Act. A few
commenters suggested clarifying that
Part C of the Act should be monitored
to evaluate how well it serves infants
and toddlers with disabilities and their
families.
Discussion:
Section 300.600 applies
only to Part B of the Act. However, the
commenters are correct that the
monitoring and enforcement activities
in section 616 of the Act also apply to
Part C of the Act, as provided in section
642 of the Act. The Department will
address this recommendation in the
promulgation of regulations
implementing Part C of the Act.
Changes:
None.
Comment:
A few commenters
recommended clarifying that the
monitoring priority in section
616(a)(3)(A) of the Act, relating to the
provision of FAPE in the LRE, should be
based on the unique needs of the
individual child. One commenter stated
that the regulations should stress
individualization when determining
LRE. This commenter recommended
including language from note 89 of the
Conf. Rpt. No. 108–779, p. 186, which
highlights Congress’ intent that each
public agency ensure that a ‘‘continuum
of alternative placements (instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and institutions)
is available to meet the needs of
children with disabilities for special
education and related services.’’
Discussion:
Section 300.115,
consistent with section 612(a)(5) of the
Act, requires each public agency to
ensure that a continuum of alternative
placements (including instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and institutions)
is available to meet the needs of
children with disabilities for special
education and related services. The LRE
provisions are intended to ensure that a
child with a disability is served in a
setting where the child can be educated
successfully and that placement
decisions are individually determined
based on each child’s abilities and
needs. We do not believe that the
change recommended by the commenter
is needed.
Changes:
None.
Comment:
One commenter
recommended changing § 300.600 to
specify that the Department’s
monitoring of States for compliance
with the LRE requirements in
§§ 300.114 through 300.117 include a
review of IEPs to determine if: (1)
Placements were based on the
individual unique needs of each child;
(2) placements were requested by
parents; (3) IEP Teams followed the IEP
requirements in §§ 300.320 through
300.328; (4) children received the
services required to participate and
progress in the general curriculum; (5)
children are in appropriate
environments; and (6) the educational
and emotional advancements of
children were considered. The
commenter recommended adding
language to direct individuals who
monitor the implementation of the Act
to look further than ‘‘numbers’’ when
monitoring the LRE requirements.
Discussion:
As noted in section
616(a)(1) of the Act, the Secretary
monitors implementation of the Act
through oversight of States’ exercise of
general supervision and States’
performance plans. Section 616(a)(1) of
the Act further states that the Secretary
requires States to monitor and enforce
the implementation of the Act by LEAs.
The activities listed by the commenter
are not the type of monitoring activities
the Act requires the Secretary to
undertake. The commenter’s listed
activities are more appropriately the
responsibilities of States as they monitor
the implementation of the Act in their
LEAs.
Changes:
None.
Comment:
One commenter
recommended avoiding references to the
Act in §§ 300.600 through 300.609 when
references to the regulations could
accomplish the same result.
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Discussion:
We agree with the
commenter and will revise §§ 300.600
through 300.609 accordingly.
Changes:
We have revised §§ 300.600
through 300.609 by replacing statutory
citations with relevant regulatory
citations, where appropriate.
Comment:
One commenter
recommended clarifying that racial
disproportionality in educational
placements falls within the monitoring
priority areas for monitoring and
enforcement.
Discussion:
New § 300.600(d),
consistent with section 616(a)(3) of the
Act, includes disproportionate
representation of racial and ethnic
groups in special education and related
services (to the extent the representation
is the result of inappropriate
identification) as a monitoring priority.
Because the monitoring priority area
clearly refers to disproportionate
representation to the extent the
representation is a result of
inappropriate identification of children
with disabilities, and not placement, we
do not believe we can include
disproportionate representation
resulting from educational placement
within the scope of this monitoring
priority area.
Changes:
None.
Comment:
One commenter
recommended including a requirement
in § 300.600(c) that States develop
corrective action plans for each LEA
monitored to improve performance in
the monitoring priority areas. The
commenter also suggested requiring that
corrective action plans be completed by
the State within one year of the
monitoring report.
Discussion:
Section 300.600(a),
consistent with section 616(a)(1)(C) of
the Act, requires States to monitor
implementation and enforcement of the
Act. As discussed elsewhere in this
section in response to comments
regarding § 300.604 (Enforcement), we
have revised § 300.600(a) to identify the
specific enforcement actions included
in § 300.604 that are appropriate for
States to use with LEAs. The new
§ 300.600(a) identifies specific methods
that must be used to ensure correction
when an LEA has been determined to
need assistance for two consecutive
years or to need intervention for three
or more consecutive years. For example,
§ 300.600(a) refers to § 300.604(b)(2)(i),
which discusses the preparation of a
corrective action or improvement plan.
In addition, new § 300.608(b) clarifies
that States can use other authority
available to them to monitor and enforce
the Act. States need the flexibility to
select the most appropriate mechanism
to ensure correction in a timely manner.
Requiring that corrective action plans be
developed in every instance is overly
prescriptive when there are multiple
methods that can be used. Accordingly,
we do not think it is necessary to make
the change suggested by the commenter.
Changes:
None.
State Performance Plans and Data
Collection (§ 300.601)
Comment:
One commenter expressed
concern that § 300.601(a)(3) and (b)(1)
over-regulate by requiring measurable
and rigorous targets beyond those
established in the Act. The commenter
expressed concern that this would result
in additional data collection and
analyses and require substantial
administrative staff time and additional
costs at the State and local levels. The
commenter stated that, while the
Department may monitor any area and
review any data, it is unnecessary to
establish additional non-statutory
indicators and targets.
Discussion:
Section 300.601(a)(3),
consistent with section 616(a)(3) of the
Act, requires the Secretary to establish
indicators to adequately measure
performance in the monitoring priority
areas. Under section 616(b)(2)(A) of the
Act, States are required to establish
measurable and rigorous targets for the
indicators established under the
monitoring priority areas described in
section 616(a)(3). The Department
established indicators only in the three
monitoring priority areas listed in new
§ 300.600(d), consistent with section
616(a)(3) of the Act. Given that States
are required to establish targets for
indicators established under the
monitoring priority areas and indicators
were established only under the three
statutory monitoring priority areas, the
Secretary is not requiring measurable
and rigorous targets in areas beyond
those established in the Act. We
disagree with the commenter and do not
believe the Department has over-
regulated in this area.
Changes:
None.
Comment:
A few commenters
recommended changing § 300.601 to
specify that States must provide an
opportunity for public comment in
developing the State performance plan.
Discussion:
We agree that the public
should be represented in developing
State performance plans. In note 253–
258 of the Conf. Rpt. No. 108–779, p.
232, Congress stated its expectation that
State performance plans, indicators, and
targets be developed with broad
stakeholder input and public
dissemination. OSEP Memo 05–12
requires States to provide information in
the overview section of the State
performance plan, clarifying how the
State obtained broad input from
stakeholders on the State performance
plan. Furthermore, §§ 300.167 through
300.169 clarify the State’s responsibility
to establish and maintain an advisory
panel, whose membership consists of
broad and diverse representation, to
advise States on many issues, including
developing evaluations and reporting on
data to the Secretary. Accordingly, we
believe that no additional clarification is
needed.
Changes:
None.
Comment:
One commenter expressed
concern that the requirement in
§ 300.601(a)(3) reflects a ‘‘one-size-fits-
all’’ approach that is not in the Act
because it requires the Secretary to
establish indicators for the State
performance plan and annual
performance reports and requires States
to collect data on each of the indicators.
Discussion:
Section 616(a)(3) of the
Act requires the Secretary to establish
quantifiable indicators in each of the
monitoring priority areas, and
qualitative indicators, as needed, to
adequately measure performance.
Section 300.601(a) reflects this
requirement. The requirement that each
State establish measurable and rigorous
targets for the indicators established by
the Secretary and collect relevant data is
set forth in section 616(b)(2)(B) of the
Act. We do not agree that this presents
a one-size-fits-all approach because
States set their own targets for
indicators such as graduation, dropout,
and performance on assessments, and
identify improvement strategies specific
to the unique circumstances of their
State. In addition, OSEP Memo 05–12
includes the indicators established by
the Secretary and also indicates that
States have the flexibility to establish
their own indicators, in addition to the
indicators established by the Secretary.
Changes:
None.
Comment:
One commenter
recommended amending § 300.601 to
specify that, as part of the State’s
performance plan, measurable and
rigorous targets are only required for the
indicators established by the Secretary
and are not required for any additional
indicators established by the State.
Discussion:
Pursuant to the guidance
in OSEP Memo 05–12, the Secretary has
established indicators under the three
monitoring priority areas in new
§ 300.600(d), consistent with section
616(a)(3) of the Act. States may choose
to add additional indicators if there are
other areas the State wishes to improve.
If the State adds indicators to the State
Performance Plan, the State must
include measurable and rigorous targets
for each additional indicator because
the purpose of the State performance
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plan is to evaluate the State’s efforts to
implement the statutory requirements
and describe how the State will
improve. States are free to have
additional indicators that are not
included in the State performance plan
and these indicators would not need to
have measurable and rigorous targets.
Changes:
None.
State Use of Targets and Reporting
(§ 300.602)
Comment:
A few commenters
recommended modifying
§ 300.602(b)(1)(A) to require each LEA
to work with an LEA monitoring
stakeholder advisory committee that
would advise the LEA on analyzing and
reporting its performance on the targets
in the State performance plan and on
developing LEA plans. The commenters
stated that, at a minimum, the advisory
committee should include
representatives of parents, disability
advocacy groups, and other
organizations.
Discussion:
There is nothing in
section 616 of the Act that requires
LEAs to establish local stakeholder
groups. Given the wide variation in the
size of LEAs across the country and the
wide variety of issues facing those
LEAs, we do not believe that a Federal
requirement is appropriate. States have
the discretion to establish (or have their
LEAs establish) local advisory groups to
advise the LEAs, if they so choose.
Changes:
None.
Comment:
One commenter
recommended modifying § 300.602 to
require each State to include LEA
corrective action plans (including
indicators, targets, findings, and
timelines for LEAs to correct any
findings) in the State’s report to the
public on the performance of each LEA
in the State on the targets in the State’s
performance plan.
Discussion:
Section 300.602,
consistent with section 616(b)(2)(C) of
the Act, requires States to report
annually on the performance of each
LEA against targets in the State
performance plan. We believe requiring
States to include LEAs’ corrective action
plans in the States’ public reports would
create additional burden for States that
is not required by the Act.
Changes:
None.
Comment:
Several commenters
recommended revising § 300.602 to
specify that the State performance plan
and the public report on LEAs’
performance must be in language that is
accessible to, and understandable by, all
interested parties.
Discussion:
The Department expects
the information that a State reports in its
annual performance reports and in the
public reports on LEA performance will
be made available in an understandable
and uniform format across the State,
including alternative formats upon
request, and, to the extent practicable,
in a language that parents understand.
We do not believe it is necessary to add
a specific requirement to the regulations
because other Federal laws and policies
already require that information to
parents be available in alternative
formats and to parents who are limited
English proficient. Specifically, Title VI
of the Civil Rights Act of 1964 requires
SEAs and LEAs to communicate to
parents with limited English proficiency
what is communicated to parents who
are not limited English proficient.
Under Title VI, SEAs and LEAs have
flexibility in determining what mix of
oral and written translation services
may be necessary and reasonable for
communicating this information.
Similarly, Executive Order 13166
requires that recipients of Federal
financial assistance take reasonable
steps to ensure meaningful access by
individuals with limited English
proficiency. For individuals with
disabilities, title II of the Americans
with Disabilities Act requires that State
and local governments, and Section 504
of the Rehabilitation Act of 1973
requires that recipients of Federal
financial assistance, ensure that their
communications with individuals with
disabilities are as effective as their
communications with others, and that
appropriate auxiliary aids and services
are available when necessary to ensure
effective communication.
Changes:
None.
Comment:
One commenter suggested
that the annual performance report
include cross-references or links to the
State report card and local report cards
on the academic performance of
children with disabilities under the
ESEA.
Discussion:
States may choose, but are
not required, to include in the annual
performance report the cross-references
or links suggested by the commenter.
States also may choose, but are not
required, to use their ESEA report cards
for reporting annually on the
performance of LEAs on the indicators
in the State performance plan. We do
not believe it is appropriate to require
States to cross-reference or link to ESEA
report cards because it is overly
burdensome and may create confusion
because the indicators and timeframe
for reporting may not be the same
between the two reporting systems.
Changes:
None.
Comment:
One commenter
recommended requiring States to post
their monitoring reports of LEAs on the
States’ Web site and make reports on
monitoring activities for each LEA
available to the public in written format
and to the media.
Discussion:
States have the discretion
to decide how these reports are made
available to the public. There is nothing
in the Act that requires States to post
monitoring reports of LEAs on the
States’ Web site or through other means.
However, States may, if they wish, make
such postings.
Changes:
None.
Comment:
One commenter suggested
removing § 300.602(b)(1)(ii), which
requires a State to include in its report
to the public on the performance of each
LEA, the most recent performance data
on each individual LEA and the date the
data were obtained, if the State collects
these data through monitoring or
sampling.
Discussion:
We believe that the data
we are requiring the States to provide
under § 300.602(b)(1)(ii) are necessary
for the proper implementation of the
Act. Providing the most recent LEA
performance data and the date the data
were obtained will reduce data burden
while maintaining the States’
accountability for results, specifically
related to indicator data that are more
difficult to collect because those data
are not collected through State-reported
data collection systems under section
618 of the Act. However, the proposed
regulations were not as clear as they
should have been about the conditions
under which States may use monitoring
and sampling data. Therefore, we are
revising § 300.601(b) by adding a new
provision that specifies that if the
Secretary permits States to collect data
on specific indicators through State
monitoring or sampling, and a State
chooses to collect data on those
indicators through State monitoring or
sampling, the State must collect data on
those indicators on each LEA at least
once during the period of the State
performance plan. This will require that
States collect data to assess each LEA’s
performance on indicators for which
State monitoring or sampling data are
permitted during the period of the State
performance plan, so that the public
will receive specific information about
each LEA. We also are revising
§ 300.602(b)(1)(ii) to make clear that the
required information about specific
LEAs would only have to be included in
the reports to the public on LEA
performance required by
§ 300.602(b)(1)(i)(A), which should
prevent this provision from being
interpreted to require LEA-specific
reporting to the Secretary.
Changes:
We have renumbered
§ 300.601(b)(2) as § 300.601(b)(3) and
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added a new § 300.601(b)(2) to specify
that, if permitted by the Secretary, if a
State collects data on an indicator
through State monitoring or sampling,
the State must collect data on the
indicator at least once during the period
of the State performance plan. We also
have revised § 300.602(b)(1)(ii) to
provide a more specific reference to the
public report required under
§ 300.602(b)(1)(i)(A).
Comment:
One commenter
recommended that § 300.602 specify
that data on disproportionality be
reported to the public, pursuant to
sections 616(b)(2)(C) and 618 of the Act.
Discussion:
The provisions in
§ 300.602 already include the
requirement suggested by the
commenter. Section 300.602, consistent
with section 616(b)(2)(C) of the Act,
requires each State to use the targets
established in its State performance
plan and the monitoring priority areas
described in § 300.600(d), to analyze the
performance of each LEA in the State,
and to report annually to the public on
such performance. As described in new
§ 300.600(d), the monitoring priority
areas on which the State will report
include the disproportionate
representation of racial and ethnic
groups in special education and related
services, to the extent the
disproportionate representation is the
result of inappropriate identification.
Accordingly, States are required to
report this information to the public.
States must establish targets on each of
the indicators set by the Secretary.
We also note that § 300.642(a),
consistent with section 618(b) of the
Act, requires that data collected
pursuant to section 618 of the Act be
reported publicly. These data will
include State-level data on the number
and percentage of children with
disabilities by race and ethnicity on a
number of measures, including
identification as children with
disabilities, placement, graduation and
drop-out, and discipline. Accordingly,
we do not believe any further changes
to the regulations are necessary.
Changes:
None.
Secretary’s Review and Determination
Regarding State Performance (§ 300.603)
Comment:
One commenter expressed
concern that the tone and substance of
the monitoring and enforcement
provisions in §§ 300.603 through
300.609, related to approval or
disapproval by the Secretary of the
State’s performance plan and
interventions against the SEA, are
overly prescriptive and negative. The
commenter stated that enforcement
provisions applicable to all elementary
school and secondary school programs
already exist in GEPA.
Discussion:
We do not agree that the
enforcement provisions are overly
prescriptive. These enforcement
provisions simply reflect the statutory
requirements in section 616(d) and (e) of
the Act. These provisions are more
specific than the provisions in GEPA.
Changes:
None.
Comment:
A few commenters
recommended including in the
regulations the provisions in section
616(c) of the Act, regarding the process
the Secretary must follow if the
Secretary finds that a State performance
plan does not meet the requirements in
section 616 of the Act.
Discussion:
We believe that the
review process spelled out in section
616(c) of the Act is sufficiently clear and
that regulations are not necessary.
Further, under the statutory framework,
the State performance plans were due to
the Department by December 3, 2005,
and the Department’s review of the State
performance plans for the six-year
period of federal fiscal years 2005
through 2011 has already been
completed. Accordingly, we believe it is
unnecessary to add further clarification
regarding the Secretary’s responsibilities
in § 300.603.
Changes:
None.
Comment:
One commenter
recommended that the Department’s
process for approval of targets in State
performance plans be rational,
consistent, and transparent. For
example, the commenter suggested that
as the Department responds to and
negotiates with a State regarding the
State’s targets, the process should be
open so that States can learn from the
Department’s discussions with other
States.
Discussion
: We agree with the
commenter. Accordingly, the
Department has posted its analyses of
each State’s performance plan on the
Department’s Web site at:
http://
www.ed.gov/fund/data/report/idea/
partbspap/index.html
. In so doing, the
Department’s analyses are transparent
and provide States with the opportunity
to review the Department’s responses to
other States’ performance plans.
Changes:
None.
Enforcement (§ 300.604)
Comment:
A few commenters
recommended changing the
enforcement requirements in § 300.604
to clarify the actions a State must take
relating to enforcement. The
commenters stated that it is essential
that States understand their explicit
authority under the Act to take certain
enforcement actions against LEAs if the
State is identified as a State that needs
assistance, needs intervention, or needs
substantial intervention. The
commenters stated that some of the
enforcement mechanisms available to
the Secretary in section 616(e) of the
Act, such as requiring entry into a GEPA
compliance agreement or referral to the
Office of the Inspector General, may
have no direct counterpart under State
law and therefore, would not be
available to States.
Discussion:
The Department agrees
that it is important to clarify the specific
enforcement actions that States must
use against an LEA if the LEA is
determined to need assistance,
intervention, or substantial intervention.
We are revising § 300.600(a) to identify
the specific enforcement actions
identified in § 300.604 that are
appropriate for a State, as opposed to
the Federal government, to use if it
determines that an LEA needs assistance
or intervention in implementing the
requirements of Part B of the Act.
Changes:
We have revised
§ 300.600(a) to require States to enforce
Part B of the Act in accordance with the
enforcement mechanisms identified in
§ 300.604(a)(1) and (a)(3), (b)(2)(i) and
(b)(2)(v), and (c)(2).
Comment:
One commenter
recommended including in §§ 300.600
through 300.609 a method for
individuals or organizations to inform
the Department about compliance issues
in their district or State.
Discussion:
The Department is
committed to obtaining input from
individuals and organizations as part of
its monitoring process, and has a system
for receiving and responding to citizen
complaints about LEA and State
compliance. However, detailed
operational procedures for monitoring
State activities are not typically
included in regulations. Accordingly,
we believe it is unnecessary to provide
further clarification regarding specific
monitoring procedures in §§ 300.600
through 300.609.
Changes:
None.
Comment:
One commenter
recommended clarifying in § 300.604
that withholding State administrative
funds would only occur following the
Secretary’s determination that, for three
or more consecutive years, the State
needs intervention in implementing the
requirements of Part B of the Act.
Discussion:
Section 300.604(b)(2)(iii),
consistent with section 616(e)(2)(iii) of
the Act, clearly delineates that
consideration of withholding State
administrative funds occurs following a
‘‘needs intervention’’ determination by
the Secretary for three or more
consecutive years. Therefore, we do not
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believe it is necessary to add further
clarification regarding the withholding
of State administrative funds.
Changes:
None.
State Enforcement and Rule of
Construction (§§ 300.608 and 300.609)
Comment:
One commenter
recommended including in § 300.608 a
provision that would allow an SEA to
use any means authorized by law to
effect compliance when it is determined
that an LEA is not meeting the
requirements of Part B of the Act,
including the targets in the State’s
performance plan.
Discussion:
The enforcement scheme
outlined in §§ 300.600(a), 300.604, and
300.608 represents the minimum steps
that a State must take to enforce
compliance with the Act. (The
minimum enforcement steps the
Department must take are specified in
§ 300.604.) However, we believe that the
regulations should be clear that States
have the flexibility to use other
mechanisms to bring about compliance,
just as section 616(g) of the Act and
§ 300.609 recognize that the Department
needs the flexibility to use the authority
in GEPA to monitor and enforce the Act,
in addition to the enforcement program
laid out in section 616(e) of the Act.
Therefore, we will add to § 300.608 a
new provision noting that States are not
restricted from using any other authority
available to them to monitor and enforce
the Act. Taking steps under any such
authority, however, does not relieve a
State from complying with the
requirements of §§ 300.600(a), 300.604,
and 300.608(a).
Changes:
We have designated
proposed § 300.608 as § 300.608(a) and
added a new paragraph (b) to specify
that States are not restricted from
utilizing any other authority available to
them to monitor and enforce the Act.
We also have clarified in § 300.609 that
the reference to ‘‘authority under
GEPA’’ includes the provisions of 34
CFR parts 76, 77, 80, and 81, including
the imposition of special conditions
under 34 CFR 80.12.
Confidentiality of Information
Confidentiality (§ 300.610) and
Definitions (§ 300.611)
Comment:
None.
Discussion:
Both §§ 300.610 and
300.611 contained incorrect references
to § 300.628, which does not exist. We
have revised those references.
Changes:
We have removed the
incorrect references to § 300.628 in
§§ 300.610 and 300.611 and replaced
them with references to § 300.627 and
§ 300.625, respectively.
Notice to Parents (§ 300.612)
Comment:
One commenter stated that
§ 300.612 exceeds the authority under
sections 612(a)(8) and 617(c) of the Act.
Discussion:
Proposed § 300.612
incorrectly referenced the requirements
in § 300.121. The correct reference is
§ 300.123, which requires each State to
have policies and procedures to ensure
that public agencies in the State protect
the confidentiality of personally
identifiable information. We will make
this correction in § 300.612. With this
correction, § 300.612 requires the SEA
to give notice to parents that fully
informs them about the requirements
regarding the confidentiality of
personally identifiable information.
We do not agree that § 300.612
exceeds the authority under sections
612(a)(8) and 617(c) of the Act. Section
612(a)(8) of the Act requires agencies in
the State to comply with section 617(c)
of the Act, and section 617(c) of the Act
gives the Secretary the authority to take
appropriate measures to protect the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs. This
is a longstanding requirement in the
regulations that we do not believe
should be changed.
Changes:
We have changed
§ 300.612(a) by removing the incorrect
reference to § 300.121 and replacing it
with a reference to § 300.123.
Comment:
One commenter expressed
concern that summaries of the policies
and procedures that participating
agencies must follow regarding storage,
disclosure to third parties, retention,
and destruction of personally
identifiable information would not be
adequate to fully inform parents.
Discussion:
Section 300.612(a)(3) is a
longstanding requirement that has been
in the Part B regulations since they were
published in 1977. The Department’s
experience in administering this
program indicates that the requirement
to include a summary of policies that
participating agencies must follow
regarding storage, disclosure to third
parties, retention, and destruction of
personally identifiable information is an
effective way for parents to be informed
about these requirements. Parents who
desire additional information regarding
their rights, consistent with these
policies, can request the additional
information from the SEA. SEAs are
encouraged to comply with such
requests without undue delay.
Changes:
None.
Comment:
One commenter
recommended requiring the SEA to post
its confidentiality of personally
identifiable information notice for
parents on the State’s Web site.
Discussion:
We believe that it is up to
each State to determine whether posting
this notice on the State’s Web site will
serve the needs of parents and public
agencies in the State. We, therefore,
decline to regulate on this matter.
Changes:
None.
Amendment of Records at Parent’s
Request (§ 300.618) and Opportunity for
a Hearing (§ 300.619)
Comment:
A few commenters
requested clarification regarding how
parents can register their disagreement
with information in their child’s record
and request that their child’s record be
changed.
Discussion:
Sections 300.618,
300.619, and 300.621 all address the
process that parents must use to seek
changes in their child’s records if they
believe the record is inaccurate,
misleading, or otherwise in violation of
the privacy or other rights of the child.
When a parent requests that a change be
made in the child’s record, under
§ 300.618, agencies must amend the
information within a reasonable time or
inform parents of the agency’s refusal to
amend the information and the parent’s
right to a hearing to challenge the public
agency’s determination. If parents want
to challenge the accuracy of information
in the child’s education records, they
may do so by requesting a hearing under
§ 300.619 (by contacting the LEA staff
member assigned that responsibility).
Section 300.621 specifically provides
that a hearing held under § 300.619
must be conducted according to the
procedures in 34 CFR 99.22. 34 CFR
99.22, in turn, requires a hearing to meet
the following minimum requirements:
(a) The educational agency or
institution shall hold the hearing within
a reasonable time after it has received
the request for the hearing from the
parent or eligible student.
(b) The educational agency or
institution shall give the parent or
eligible student notice of the date, time,
and place, reasonably in advance of the
hearing.
(c) The hearing may be conducted by
any individual, including an official of
the educational agency or institution,
who does not have a direct interest in
the outcome of the hearing.
(d) The educational agency or
institution shall give the parent or
eligible student a full and fair
opportunity to present evidence
relevant to the issues raised under
§ 99.21. The parent or eligible student
may, at their own expense, be assisted
or represented by one or more
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individuals of his or her own choice,
including an attorney.
(e) The educational agency or
institution shall make its decision in
writing within a reasonable period of
time after the hearing.
(f) The decision must be based solely
on the evidence presented at the
hearing, and must include a summary of
the evidence and the reasons for the
decision.
The parent is not required, under the
Act and these regulations, to follow the
procedures that are applicable to filing
a due process complaint under
§§ 300.507 through 300.510. This is
because the hearing authorized under
§ 300.619 is for the explicit purpose of
giving a parent the opportunity to
challenge the information in education
records when a parent believes the
information is inaccurate, misleading, or
otherwise in violation of the privacy or
other rights of the child. We do not
believe further clarification regarding
the specific procedures in §§ 300.618
and 300.619 is necessary. The
procedures used for these hearings vary
from State to State, and we believe it is
best to give States the flexibility to
develop their own procedures for such
hearings, as long as they meet the
requirements in § 300.621.
Changes:
None.
Consent (§ 300.622)
Comment:
One commenter suggested
requiring schools to obtain parental
consent before disclosing personally
identifiable information to any party,
unless authorized by 34 CFR part 99.
Another commenter requested
clarification regarding the requirements
in § 300.622.
Discussion:
We agree that § 300.622
should be revised to more accurately
reflect the Department’s policies
regarding when parental consent is or is
not required for disclosures of
personally identifiable information to
officials of participating agencies, and
other individuals and entities. In some
instances, current § 300.571 (proposed
§ 300.622) has been construed to
prohibit disclosures without parental
consent under this part that would be
permitted without parental consent
under FERPA. Accordingly, when final
regulations for this program were issued
in 1999, we amended current
§ 300.571(a) (proposed § 300.622(a)) to
clarify that the release of disciplinary
records to law enforcement authorities
could occur without parental consent, to
the extent that such disclosure was
permitted under FERPA. In order to
more clearly state the Department’s
longstanding position that consent is
required for disclosures of personally
identifiable information to parties, other
than officials of participating agencies
collecting or using the information
under this part, unless the information
is contained in education records and
the disclosure is allowed without
parental consent under 34 CFR part 99,
we are reorganizing § 300.622(a).
Under FERPA and § 300.622(a),
schools, generally, must have written
permission from the parent (or child
who has reached the age of majority) in
order to release information from a
child’s education records. However,
there are exceptions to this general rule
under FERPA that also apply to the
records of children with disabilities and
permit the release of information from
education records without parental
consent. Under 34 CFR 99.31(a), schools
can disclose education records without
consent under the circumstances
specified in § 99.31 including if the
disclosure meets one or more of the
following conditions:
School officials with legitimate
educational interests, as determined by
the educational agency or institution;
Other schools where the student seeks
or intends to enroll, subject to the
requirements of § 99.34;
Specified authorized representatives,
subject to the requirements of § 99.35, in
connection with an audit or evaluation
of Federal or State-supported education
programs, or compliance with or
enforcement of Federal legal
requirements which relate to those
programs;
Appropriate parties in connection
with financial aid to a student for which
the student has applied or which the
student has received, if necessary for
specified purposes;
Organizations conducting certain
studies for or on behalf of the school;
Accrediting organizations;
To comply with a judicial order or
lawfully issued subpoena;
Appropriate officials in cases of
health and safety emergencies; and
State and local authorities, within a
juvenile justice system, pursuant to
specific State law.
We believe that the changes to
§ 300.622(a) state more clearly that
under § 300.622, disclosures of
personally identifiable information from
education records of children with
disabilities can be made without
parental consent if the disclosure
without parental consent would be
permissible under FERPA. For example,
in a situation involving a health
emergency, information from a child
with a disability’s education records
could be released to a hospital without
parental consent in order to ensure that
the child received appropriate
emergency health services.
Under proposed § 300.622(b), parental
consent is not required for disclosures
of personally identifiable information to
officials of participating agencies for
purposes of carrying out a requirement
of this part. This is not a new
requirement; proposed § 300.622(b) is
the same as current § 300.571(b).
However, we believe the requirement
should be stated more clearly, and
therefore, are changing the language in
paragraph (b). We believe that this
provision is particularly important to
ensure that participating agencies have
the information they need to carry out
the requirements of this part in an
effective manner. For example, if
another State agency provides school
health services under the Act, consent
would not be required for a school nurse
to have access to personally identifiable
information in a child’s education
records in order to provide the school
health services that are included on the
child’s IEP.
However, despite the recognition that
officials of participating agencies need
access to records of children with
disabilities to carry out the requirements
of this part, there are important privacy
concerns that we feel need to be
protected in certain specified situations.
We believe that parental consent should
be required before personally
identifiable information can be released
to representatives of participating
agencies who are likely to provide or
pay for transition services in accordance
with § 300.321(b)(3). Representatives of
these agencies, generally, are invited to
participate in a child’s IEP meeting
because they may be providing or
paying for transition services. We do not
believe that the representatives of these
agencies should have access to all the
child’s records unless the parent (or the
child who has reached the age of
majority) gives consent for the
disclosure. We are, therefore, adding a
new paragraph (b)(2) in § 300.622 to
make this clear.
We also believe it is important to be
clear about the confidentiality
requirements for children who are
placed in private schools by their
parents, given the significant change in
the child find requirements for these
children. Under section
612(a)(10)(A)(i)(II) of the Act, child find
for these children now is the
responsibility of the LEA in which the
private school is located and not the
child’s LEA of residence. We can
anticipate situations in which there may
be requests for information to be
exchanged between the two LEAs, such
as when a child is evaluated and
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identified as a child with a disability by
the LEA in which the private school is
located and the child subsequently
returns to public school in the LEA of
residence. We believe under such
circumstances parental consent should
be required before personally
identifiable information is released
between officials of the LEA where a
private school is located and the LEA of
the parent’s residence. We believe that
consent is important in these situations
to protect the privacy of the child and
the child’s family. Therefore, we are
adding a new paragraph (b)(3) to
§ 300.622 to make this clear.
We are removing the requirement in
proposed § 300.622(c) (current
§ 300.571(c)), which requires the SEA to
provide policies and procedures that are
used in the event that a parent refuses
to provide consent under this section.
This is already included in
§ 300.504(c)(3), which requires the
procedural safeguards notice to include,
among other things, a full explanation of
the parental consent requirements and
the opportunity to present and resolve
complaints through the due process or
State complaint procedures.
Changes:
We have reorganized
§ 300.622 to more accurately reflect the
Department’s policy regarding when
parental consent is and is not required
for disclosures of personally identifiable
information to officials of participating
agencies, and other individuals and
entities. We made changes to
§ 300.622(a) and added a new paragraph
(b)(1) to clarify the Department’s
longstanding policy that consent is
required for disclosures of personally
identifiable information to parties,
unless the interested parties are officials
of participating agencies, collecting or
using the information under this part, or
the information is contained in
education records and the disclosure is
allowed without parental consent under
FERPA. We added a new paragraph
(b)(2) to clarify that parental consent is
required for the disclosure of
information to participating agencies
that likely may provide or pay for
transition services. We also added a new
paragraph (b)(3) to require parental
consent for the disclosure of records of
parentally placed private school
children between LEAs. Finally, we
removed the requirement in proposed
§ 300.622(c) (current § 300.571(c)),
because the information is included in
§ 300.504(c)(3).
Safeguards (§ 300.623)
Comment:
None.
Discussion:
We have corrected the
incorrect reference to § 300.121 in the
text of this regulation, which should
have referred to the State eligibility
requirement concerning confidentiality,
and not the State eligibility requirement
regarding procedural safeguards.
Changes:
We have removed the
incorrect reference to § 300.121 and
replaced it with a reference to § 300.123.
Children’s Rights (§ 300.625)
Comment:
One commenter requested
clarifying the requirement in
§ 300.625(a) that children receive
privacy rights similar to those received
by parents.
Discussion:
Section 300.625 is the
same as current § 300.574 and has been
in the regulations since 1977. It
provides that States must have policies
and procedures concerning the extent to
which children are afforded rights of
privacy similar to those of parents,
taking into consideration the age of the
child and type or severity of disability.
It does not require States to grant
particular privacy rights to a child in
addition to those that apply when the
child reaches the age of majority, as
specified in paragraphs (b) and (c) of
§ 300.625. We do not believe further
clarification is necessary.
Changes:
None.
Comment:
A few commenters stated
that the notice to transfer parental rights
to a child at the age of majority should
be provided to the child and parents one
year before the child reaches the age of
majority.
Discussion:
We do not believe this
change is necessary because the
regulations in § 300.320(c) already
address the notification requirement.
Specifically, § 300.320(c) requires that,
beginning no later than one year before
the child reaches the age of majority
under State law, the IEP must include
a statement that the child has been
informed of the child’s rights under Part
B of the Act, if any, that will transfer to
the child on reaching the age of majority
under § 300.520. Because the
regulations already contain the notice
requirement, we do not believe it is
necessary to add further clarification of
this requirement to § 300.625.
Changes:
None.
Enforcement (§ 300.626)
Comment:
None.
Discussion:
This provision,
concerning State enforcement, should
not refer to § 300.610, which is a
requirement that applies to the
Secretary.
Changes:
We have removed the
incorrect reference to § 300.610 and
replaced it with a reference to § 300.611.
Annual report of children served—
information required in the report
(§ 300.641)
Comment:
A few commenters stated
that § 300.641 is inconsistent with the
requirement in § 300.111(d), which
states that the Act does not require the
classification of children by their
disability. The commenter noted that it
is difficult to comply with the
requirements for data collection and
analysis without classifying children by
their disability.
Discussion:
We do not believe there is
any inconsistency between the
requirements in § 300.641(c) and
§ 300.111, as suggested by the
commenter. Section 300.641(c)
addresses counting children who have
already been identified as having a
disability and is consistent with the
requirements in section 618 of the Act.
Section 300.111 addresses child find
and the determination of a child’s
eligibility for special education and
related services. The Act does not
require children to be identified with a
particular disability category for
purposes of the delivery of special
education and related services. In other
words, while the Act requires that the
Department collect aggregate data on
children’s disabilities, it does not
require that particular children be
labeled with particular disabilities for
purposes of service delivery, since a
child’s entitlement under the Act is to
FAPE and not to a particular disability
label.
Changes:
None.
Comment:
A few commenters
recommended removing § 300.641(c)
because States have reporting policies in
place that might not be consistent with
these new requirements. Numerous
commenters stated that LEAs often
report children with vision and hearing
loss who have an additional disability
in the category of multiple disabilities,
which has resulted in under-reporting of
children who are deaf-blind. The
commenters stated that an accurate
count of children with deaf-blindness is
necessary to ensure that these children
receive the specialized communication
services they need, and to ensure that a
sufficient number of specialists are
trained to meet the specialized needs of
these children. One commenter stated
that a child’s secondary disability
should not affect the reporting of the
child’s primary disability. Another
commenter suggested referring to deaf-
blindness as the primary disability, if a
child has multiple disabilities.
Discussion:
The reporting
requirements in § 300.641(c) are not
new. Section 300.641(c) is the same as
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current § 300.751(e); State reporting
policies therefore should already be
consistent with these regulations.
Section 300.641(d) addresses how States
must report a child with a disability
who has more than one disability for
purposes of the annual report of
children served under the Act.
Paragraph (d)(1) states that if a child has
only two disabilities and those
disabilities are deafness and blindness,
and the child is not reported as having
a developmental delay, that child must
be reported under the category of deaf-
blindness. Paragraph (d)(2) states that if
a child has more than one disability and
is not reported as having deaf-blindness
or as having a developmental delay, the
child must be reported under the
category of multiple disabilities. We
believe that § 300.641(d) is clear that
children with deaf-blindness who have
an additional disability must be
included in the category of multiple
disabilities. To designate deaf-blindness
as the primary disability and include
children with deaf-blindness who have
an additional disability in the category
of deaf-blindness would be inconsistent
with the requirements in § 300.641(d).
Although we do not believe that any
changes to the requirements in
§ 300.641(d) are necessary, we will
review the instructions we provide to
States regarding the reporting of
children with deaf-blindness who have
an additional disability and make any
needed clarifications.
Changes:
None.
Disproportionality (§ 300.646)
Comment:
One commenter requested
clarification as to whether the
determination of disproportionality is
based solely on a numerical formula or
on district policies, procedures, and
practices. One commenter
recommended amending the regulations
to clarify that the determination of
disproportionality is based on a review
of LEA policies and procedures, and not
just a numerical determination. Another
commenter requested a definition of
significant disproportionality. Several
commenters requested that the
regulations clarify that States need only
address statistically significant
disproportionality based on the use of
reliable data.
Discussion:
Section 618(d)(1) of the
Act is clear that the determination of
significant disproportionality by race or
ethnicity is based on a collection and
examination of data and not on a
district’s policies, procedures, or
practices. This requirement is clearly
reflected in § 300.646. We do not believe
it is appropriate to change § 300.646
because the commenter’s suggestion is
inconsistent with the provisions in
section 618(d) of the Act.
With respect to the definition of
significant disproportionality, each
State has the discretion to define the
term for the LEAs and for the State in
general. Therefore, in identifying
significant disproportionality, a State
may determine statistically significant
levels. The State’s review of its
constituent LEAs’ policies, practices,
and procedures for identifying and
placing children with disabilities would
occur in LEAs with significant
disproportionality in identification,
placement, or discipline, based on the
examination of the data. The purpose of
this review is to determine if the
policies, practices, and procedures are
consistent with the Act. Establishing a
national standard for significant
disproportionality is not appropriate
because there are multiple factors at the
State level to consider in making such
determinations. For example, States
need to consider the population size,
the size of individual LEAs, and
composition of State population. States
are in the best position to evaluate those
factors. The Department has provided
guidance to States on methods for
assessing disproportionality. This
guidance can be found at:
http://
www.ideadata.org/docs/
Disproportionality%20
Technical%20Assistance%20Guide.pdf.
Changes:
None.
Comment:
A few commenters
suggested adding gender to the analysis
of disproportionality. The commenters
expressed concern that males are over-
identified as children with disabilities.
Discussion:
Although States will be
collecting data on the gender of children
with disabilities for other purposes, the
Act does not require an analysis for
disproportionality on the basis of
gender. We are concerned about
increasing the burden on States. Given
that there is no statement of
congressional intent indicating the need
to do this analysis, we do not believe it
should be included in the regulations.
Changes:
None.
Comment:
One commenter expressed
concern that the regulations are not
consistent with the statutory
requirements for data collection on
suspension, expulsion, identification,
and placement.
Discussion:
We disagree with the
commenter. The regulations in
§ 300.646 reflect the requirements in
section 618(d) of the Act.
Changes:
None.
Comment:
Several commenters raised
concerns and made recommendations
regarding § 300.646(b)(2), which
requires the State to require any LEA
identified with significant
disproportionality to reserve the
maximum amount under section 613(f)
of the Act for comprehensive,
coordinated early intervening services
to serve children in the LEA,
particularly, but not exclusively
children in those groups that were
significantly overidentified. A few
commenters recommended that LEAs
not be required to reserve the maximum
amount under section 613(f) of the Act.
Several commenters recommended
adding language in § 300.646(b)(2) to
require LEAs to monitor the effect of
early intervening services on
disproportionate representation.
Discussion:
The requirements in
§ 300.646(b)(2) follow the specific
language in section 616(d) of the Act. To
allow LEAs to reserve less than the
maximum amount required in section
613(f) of the Act when significant
disproportionality is identified would
be inconsistent with the Act. Therefore,
we do not believe a change in this
requirement is appropriate.
As part of the requirements in
§§ 300.600 through 300.604, States must
report annually on indicators in three
monitoring priority areas. One of the
monitoring priority areas is
disproportionality, for which there are
two indicators. In addition to annually
reviewing State performance on each
indicator in each monitoring priority
area, the State must review each LEA
against indicators established for each
monitoring priority area, so the State
will be examining data annually to
identify any disproportionality. If
disproportionality is identified in LEAs,
the policies, procedures, and practices
of the LEAs will be examined to
determine if they are leading to
inappropriate identification, and,
pursuant to section 618(d)(2)(C) of the
Act and § 300.646(b)(3), the LEA will be
required to report publicly on the
revision of policies, practices, and
procedures used in identification or
placement. It is, therefore, unnecessary
to add a requirement that LEAs monitor
the effect of early intervening services
on disproportionality because the LEAS
will have to continue to publicly report
on their revision of policies, practices
and procedures until the significant
disproportionality in the LEA is
eliminated. We believe that the intent of
the suggestion will be accomplished
through this other requirement.
Changes:
None.
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Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Outlying Areas, Freely Associated
States, and the Secretary of the Interior
(§ 300.701)
Comment:
None.
Discussion:
The requirements of Part
B of the Act that were listed in the
NPRM under § 300.701(a)(1)(ii)(A)(1)
through (5) did not include all of the
requirements that apply to freely
associated States. To ensure that freely
associated States do not interpret these
regulations as including all of the
requirements in Part B of the Act that
apply to them, we are removing these
provisions. Section 300.701(a)(1)(ii) and
(2) clarifies that, consistent with section
611(b)(1)(A)(ii) of the Act, freely
associated States must meet the
applicable requirements that apply to
States under Part B of the Act.
Changes:
We have removed
paragraphs (1) through (5) in
§ 300.701(a)(1)(ii)(A).
Technical Assistance (§ 300.702)
Comment:
One commenter requested
that the regulations clarify whether the
technical assistance funds referred to in
§ 300.702 are available to both SEAs and
lead agencies under Part C of the Act.
Discussion:
Section 300.702,
consistent with section 611(c) of the
Act, allows the Secretary to reserve
funds under Part B of the Act to support
technical assistance activities
authorized in section 616(i) of the Act.
Under section 642 of the Act, section
616 applies to the early intervention
programs for infants and toddlers with
disabilities under Part C of the Act.
Section 616(i) of the Act requires the
Secretary to review the data collection
and analysis capacity of States to ensure
that data and information necessary for
monitoring the implementation of Parts
B and C of the Act are collected,
analyzed, and accurately reported to the
Secretary, and to provide technical
assistance, as needed. Therefore the
technical assistance referred to in
§ 300.702 can be provided to both SEAs
and lead agencies under Part C of the
Act.
Changes:
None.
Allocations to States (§ 300.703)
Comment:
A few commenters noted
that States need additional funding to
comply with these regulations.
Discussion:
The Department does not
have the authority to allocate more
funds than Congress appropriates.
Section 300.703, consistent with section
611(d) of the Act, describes how the
appropriated funds must be distributed
to States.
Changes:
None.
State-Level Activities (§ 300.704)
Comment:
One commenter suggested
adding language in the regulations
requiring public agencies to provide
technical assistance to personnel in
residential treatment facilities. The
commenter stated that this assistance
would help residential treatment
facilities meet the requirements of FAPE
for the children they serve.
Discussion:
Section 300.704(a)(1),
consistent with section 611(e)(1) of the
Act, allows, but does not require, States
to use funds reserved for State
administration to provide technical
assistance to other programs that
provide services to children with
disabilities, which could include
residential treatment facilities providing
services to children with disabilities
under the Act. Section 300.704(b)(4)(i),
consistent with section 611(e)(2)(C)(i) of
the Act, allows, but does not require,
States to use funds reserved for other
State-level activities to provide support
and direct services, including technical
assistance, personnel preparation, and
professional development and training,
which could include technical
assistance to staff who provide services
to children with disabilities at
residential treatment centers and other
such facilities. Because the Act gives
States the discretion to determine how
to use these funds, so long as they are
used in accordance with the
requirements in Part B of the Act, the
Department does not believe it would be
appropriate to remove this discretion by
regulation and require States to use
these funds to provide technical
assistance to particular types of
facilities, as suggested by the
commenter.
Changes:
None.
Comment:
We received a number of
comments requesting that the
regulations require States to use funds
reserved for State-level activities for
specific purposes. Some commenters
stated that these funds should be used
to find and train surrogate parents.
Other commenters requested that these
funds be used to support parent centers.
One commenter requested that these
funds be used for programs that employ
well-researched best practices. Another
commenter suggested that the funds be
used for family involvement activities.
One commenter requested that the
regulations clarify that these funds may
be used to purchase supplemental
educational materials.
Discussion:
The Act does not require
States to use their funds reserved for
other State-level activities for the
purposes requested by the commenters.
The Act also does not prohibit the use
of funds for these purposes. Instead,
States have discretion in determining
how these funds are used, so long as
they are used to carry out the activities
in § 300.704(b)(3) and (4). Therefore, we
do not believe it would be appropriate
to regulate as suggested by the
commenters.
Changes:
None.
Comment:
One commenter stated that
the term ‘‘maximize’’ in
§ 300.704(b)(4)(v), regarding the use of
funds to support the use of technology
to maximize accessibility to the general
education curriculum, was an
‘‘affirmative duty’’ and, thus, required
more detailed instruction. This
commenter also stated that the term
‘‘improve’’ in § 300.704(b)(4)(xi),
regarding the use of funds to provide
professional development to teachers
who teach children with disabilities in
order to improve academic
achievement, was an ‘‘affirmative duty’’
and, thus, required more detailed
instruction.
Discussion:
The language referred to
by the commenter is from the Act. The
activities noted by the commenter are
authorized under the Act but are not
required. The Department has reviewed
§ 300.704(b)(4)(v) and (b)(4)(xi) and does
not believe that additional detail is
necessary, because States need the
flexibility that the Act provides to
appropriately meet the needs within the
State.
Changes:
None.
Comment:
One commenter agreed
with the provision in § 300.704(b)(4)(v)
that allows States to use funds to
support the use of technology to
maximize access to the general
education curriculum for children with
disabilities. The commenter stated,
however, that SEAs and LEAs would be
unwilling to research and employ new
technologies and asked who would be
responsible for conducting this activity.
Discussion:
Supporting the use of
technology to maximize accessibility to
the general education curriculum is a
State-level activity that States are
permitted, but not required, to fund.
States have considerable flexibility in
determining what State-level activities
will be funded, provided the
requirements of Part B of the Act are
met. How a State implements a
particular activity or program is a matter
best left to each State to decide.
Changes:
None.
Comment:
One commenter stated that
§ 300.704(b)(4)(v), regarding the use of
technology to maximize accessibility to
the general education curriculum for
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children with disabilities, lacked
specificity and asked for definitions of
the terms ‘‘universal design principles,’’
‘‘maximize accessibility to the general
curriculum,’’ and ‘‘maximum extent.’’
Discussion:
The definition of
universal design
, as used in the
Assistive Technology Act of 1998, as
amended, is included in the
Analysis of
Comments and Changes
section for
subpart A. We believe this will clarify
the meaning of ‘‘universal design
principles,’’ as used in
§ 300.704(b)(4)(v). The term ‘‘maximize
accessibility to the general education
curriculum’’ is sufficiently specific in
the context used and does not need
further definition. The term ‘‘maximum
extent’’ is not used in § 300.704(b)(4)(v).
Changes:
None.
Local Educational Agency High Cost
Fund (§ 300.704(c))
Comment:
One commenter expressed
concern that the regulations for the high
cost fund, particularly the reference to
the cost of room and board for a
residential placement, would discourage
educational placements in the LRE. The
commenter stated that many children
with disabilities are sent out of their
school districts for special education
and related services and asked that the
regulations ensure that this practice
does not increase.
Discussion:
The language regarding
room and board in § 300.704(c)(4)(ii)
was included to clarify that the cost of
room and board for a necessary
residential placement could be
supported by the high cost fund. Section
§ 300.704(c)(4)(ii) clarifies that the cost
of room and board for a residential
placement must be determined
necessary and be consistent with the
LRE requirements in § 300.114. We
believe this is adequate to ensure that
educational placements in the LRE are
not discouraged.
Changes:
None.
Comment:
One commenter stated that
reimbursements from a high cost fund
would be difficult to compute and
requested a template to assist LEAs in
their calculations. Another commenter
requested a list of specific procedures
that would be excluded from coverage
by a high cost fund.
Discussion:
How States implement the
high cost fund is a matter left to the
discretion of each State, so long as the
State meets the requirements of Part B
of the Act. Accordingly, the Department
does not believe it would be appropriate
to develop a template, prepared at the
Federal level, or a list of specific
procedures that would be excluded from
coverage. Whether a particular
expenditure is appropriate will vary
with the specific facts and
circumstances of the situation.
Changes:
None.
Comment:
One commenter asked
whether high cost funds could be used
for court-ordered placements.
Discussion:
Nothing in the Act or the
regulations prohibits payment for
providing special education and related
services to high need children with
disabilities in court-ordered placements,
if a State wishes to fund such
placements and the other provisions of
Part B of the Act are met.
Changes:
None.
Comment:
A few commenters
requested that the regulations include
plans for continuing programs funded
by high cost funds should these funds
become unavailable.
Discussion:
The availability of Federal
support for a high cost fund, as
described in § 300.704(c) and section
611(e)(3) of the Act, is based on a
number of factors, including continued
Federal appropriations for the Grants to
States program and the continued
authorization for such a fund under the
Act. Funding of a high cost fund in a
particular State is dependent on a
State’s decision to use a portion of its
State-level set-aside for a high cost fund.
This is a matter of State discretion and
is not appropriate for regulation at the
Federal level.
Changes:
None.
Comment:
A few commenters
requested an opportunity for public
comment before a State implements a
high cost fund.
Discussion:
Section 300.704(c)(3)(i),
consistent with section 611(e)(3)(C)(ii)
of the Act, requires an SEA to develop,
annually review, and amend, as
necessary, a State plan for a high cost
fund. Under § 300.704(c)(3)(i)(A), the
State plan must, among other
components, establish, in consultation
and coordination with representatives
from LEAs, a definition of a high need
child with a disability that meets certain
criteria. This plan must be developed no
later than 90 days after the State
reserves funds for a high cost fund.
Section 300.704(c)(3)(ii), consistent with
section 611(e)(3)(C)(iii) of the Act,
requires a State to make its final State
plan for the high cost fund available to
the public not less than 30 days before
the beginning of the school year,
including dissemination of such
information on the State’s Web site.
Although there is nothing in the Act
that requires that the public be given the
opportunity to comment on the State’s
plan, there also is nothing in the Act
that would prohibit a State from
providing an opportunity for public
comment prior to finalizing the State’s
plan for the high cost fund. We believe
the decision to provide opportunity for
public comment is best left to each
State.
Changes:
None.
Comment:
A few commenters asked if
LEAs are obligated to participate in the
State Medicaid program and whether
States could limit the types of
reimbursement to LEAs from Medicaid.
Discussion:
LEAs are not obligated
under the Act to participate in a State
Medicaid program. Title XIX of the
Social Security Act of 1965, as
amended, controls Medicaid
reimbursement for medical assistance
for eligible individuals and families
with low incomes and resources.
Therefore, it would not be appropriate
to address in these regulations whether
States, under the Act, could limit the
type of Medicaid reimbursement to
LEAs.
Changes:
None.
Comment:
One commenter asked if
there was any intent to develop criteria
for the development of innovative cost
sharing consortia, as stated in
§ 300.704(c)(1)(i)(B). The commenter
stated that there are no regulations for
submitting a State plan for innovative
cost-sharing consortia, similar or
parallel to the requirements associated
with the high cost fund.
Discussion:
The commenter is correct
that the proposed regulations would not
require the development of a State plan
for the high cost fund that includes
information or criteria about the
development of innovative cost-sharing
consortia. It is important that, if a State
elects to reserve funds for supporting
innovative and effective ways of cost
sharing under § 300.704(c)(1)(i)(B), the
State, in its State plan under
§ 300.704(c)(3)(i), include a description
of how those funds will be used.
Therefore, a change will be made to
make this clear.
Changes:
A new paragraph (F) has
been added to § 300.704(c)(3)(i) to
clarify that, if a State elects to reserve
funds for supporting innovative and
effective ways of cost sharing, it must
describe in its State plan how these
funds will be used.
Comment:
One commenter asked
whether State administrative funds
could be used for administering the high
cost fund.
Discussion:
Section 300.704(c)(2) is
clear that a State cannot use any of the
funds the State reserves for the high cost
fund for costs associated with
establishing, supporting, and otherwise
administering the fund. However, a
State may use funds reserved for State
administration under § 300.704(a) for
administering the high cost fund.
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Changes:
None.
Comment:
One commenter requested
that the regulations require an SEA to
describe in its State plan for the high
cost fund the ways in which the SEA
will work with State child welfare
programs.
Discussion:
Section 300.704(c)(3)
incorporates the language in section
611(e)(3)(C) of the Act, regarding a State
plan for the high cost fund. The Act
does not require that the State plan
include the ways in which the SEA will
work with State child welfare agencies.
However, there is nothing in the Act or
these regulations that would prohibit a
State from including such information
in its plan if it chooses to do so. We
believe that the decision whether to
include this information in the State
plan for the high cost fund is a matter
best left to the State.
Changes:
None.
Comment:
A few commenters stated
that parents, representatives of the State
Advisory Panel, and other stakeholders
should participate in developing the
definition of a high need child for the
purposes of the high cost fund.
Discussion:
Section
300.704(c)(3)(i)(A), consistent with
section 611(e)(3)(C)(i) of the Act,
requires the SEA to establish a State
definition of a high need child with a
disability in consultation with LEAs.
The Act does not require the
involvement of parents, representatives
of the State Advisory panel, or other
stakeholders. However, there is nothing
in the Act or these regulations that
would prohibit a State from consulting
with these or other groups, if the State
chooses to do so. The Department
believes that it would be inappropriate
to require SEAs to consult with specific
groups, because the appropriate groups
for consultation will vary from State to
State.
Changes:
None.
Flexibility in Using Funds for Part C
(§ 300.704(f))
Comment:
A few commenters
requested that § 300.704(f) require States
that offer early intervention services to
children with disabilities who are
eligible for services under section 619 of
the Act to notify families of the details
of this program and a parent’s right to
change immediately to special
education services should the parent
desire. Another commenter
recommended that § 300.704(f) require
LEAs to obtain parental consent before
providing early intervention services to
children eligible for services under
section 619 of the Act.
Discussion:
Section 300.704(f) adopts
the requirements of, and is consistent
with, section 611(e)(7) of the Act. Under
section 611(e)(7) of the Act, funds that
are available under §§ 300.704(a)(1),
300.705(c), and 300.814(e) may be used
to develop and implement a State policy
to provide services under Part C of the
Act to children beyond the age of three.
The provisions that authorize such
programs are reflected in Part C of the
Act, predominantly in section 635(c) of
the Act, which contains specific notice
and consent requirements. The notice of
proposed rulemaking for Part C of the
Act will address the notice, consent,
and other requirements that apply to
State lead agencies that elect to offer
services to children with disabilities
and their families beyond the age of
three under section 635(c) of the Act.
The public will have a separate
opportunity to comment on the
proposed regulations for Part C of the
Act when they are published in the
Federal Register
. Accordingly, it would
not be appropriate to include the
requested information in these
regulations implementing Part B of the
Act.
Changes:
None.
Allocation for State in Which By-Pass Is
Implemented for Parentally-Placed
Private School Children With
Disabilities (§ 300.706)
Comment:
None.
Discussion:
We have determined that
§ 300.706 is no longer applicable. Under
section 611(d) of the Act, distribution of
funds under Part B of the Act to States
is not based on child count. Section
300.191 details the amount of funds
under Part B of the Act that the
Secretary deducts from a State’s
allocation if a by-pass is implemented.
Changes:
We have removed § 300.706,
because it is no longer applicable.
Use of amounts by Secretary of the
Interior (§ 300.707)
Definitions (§ 300.707(a))
Comment:
A few commenters
requested that the Department add a
new definition of LEA and SEA for the
purposes of regulations related to
schools operated or funded by the
Secretary of the Interior. One
commenter stated that the regulations
would be clearer if these terms were
defined for BIA-funded schools, because
the definition of
state educational
agency
makes no mention of the BIA.
Another commenter recommended
defining LEAs as BIA-funded schools
and defining SEA as the Secretary of the
Interior for the purposes of regulations
related to schools operated or funded by
the Secretary of the Interior.
Discussion:
We believe the definition
of
local educational agency
in § 300.28,
with a specific reference to BIA-funded
schools in § 300.28(c), and the
definition of
State educational agency
in § 300.41, along with the requirements
in §§ 300.707 through 300.716, provide
sufficient clarity on the Secretary of the
Interior’s responsibilities to implement
the requirements of the Act. However,
we understand that the definitions of
local educational agency
and
State
educational agency
by themselves may
not be directly applicable to the
regulations related to schools operated
or funded by the Secretary of the
Interior. Therefore, the Department will
consider taking action to clarify the
definitions of
local educational agency
and
State educational agency
for the
purpose of this regulation in the future.
Changes:
None.
Comment:
One commenter stated that
the definition of
tribal governing body of
a school
is similar to the definition of
‘‘tribal governing body’’ in the principal
statute governing BIA-funded schools
(section 1141 of the Education
Amendments of 1978, 25 U.S.C.
2021(19)) and suggested using that
definition if the intent was to define
‘‘tribal governing body.’’ The
commenter also noted that tribal
governing body of a school is not used
anywhere in the regulations.
Discussion:
The Department agrees
that the definition of ‘‘tribal governing
body’’ in 25 U.S.C. 2021(19) is a better
definition than the definition of
tribal
governing body of a school.
The
definition is more accurate and defines
a term used in these regulations. We are
replacing the definition of
tribal
governing body of a school
with the
definition of
tribal governing body
, as
defined in 25 U.S.C. 2021(19):
Tribal
governing body
means, with respect to
any school, the tribal governing body, or
tribal governing bodies, that represent at
least 90 percent of the children served
by such school.
Changes:
The definition of
tribal
governing body of a school
in
§ 300.707(a)(2) has been replaced with
the definition of
tribal governing body
from 25 U.S.C. 2021(19).
Provision of Amounts for Assistance
(§ 300.707(b))
Comment:
One commenter suggested
adding specific language to the
regulations to require the Secretaries of
the Interior and Education to meet the
statutory deadlines for providing and
distributing funds under Part B of the
Act.
Discussion:
Section 300.707(b),
consistent with section 611(h)(1)(A) of
the Act, sets specific dates for the
Secretary of the Interior to allocate
funds provided to the Secretary of the
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Interior under the Act to elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior. The
Secretary of the Interior must allocate 80
percent of these funds by July 1 of each
fiscal year, and the remaining 20
percent by September 30 of each fiscal
year. The Act does not require the
Secretary of Education to meet any
deadline for providing and distributing
funds to the Secretary of the Interior.
Provision of funds under Part B of the
Act to the Department of the Interior
(DOI) will always depend on whether
the DOI has properly established and
maintained its eligibility. Therefore, we
do not believe it would be appropriate
to establish such a deadline.
Changes:
None.
Comment:
One commenter stated that
BIA-funded schools do not require State
accreditation and asked how a program
affiliated with a BIA-funded school
could be mandated by the State to be
accredited.
Discussion:
The commenter appears
to be referring to current § 300.715(c),
regarding counting children aged three
through five who are enrolled in
programs affiliated with BIA-funded
schools that are State accredited.
Current § 300.715(c) was removed
because a State can no longer require a
BIA-funded school to attain or maintain
State accreditation.
Changes:
None.
Comment:
A few commenters
recommended revising § 300.707(c) to
clarify that, for children living on
reservations who do not attend BIA-
funded schools, the SEA in which the
reservation is located is responsible for
ensuring that the requirements of Part B
of the Act are implemented, and if the
reservation is in more than one State,
the SEA in which the child resides is
responsible.
Discussion:
The Department agrees
that there is a need to clarify that States
are responsible for serving Indian
children on reservations located in their
State who are not attending BIA-funded
schools. We will revise § 300.707(c) to
clarify that, for children on reservations
who do not attend BIA-funded schools,
the State in which the reservation is
located must ensure that all the
requirements of Part B of the Act are
implemented.
The Act does not address who is
responsible if a reservation is located in
more than one State. Under section
612(a)(1)(A) of the Act, a State must
make FAPE available to all children
with disabilities residing in the State.
Therefore, as a general matter, if a
reservation is located in more than one
State, the State in which the child
resides would be responsible for
ensuring that the requirements of Part B
of the Act are met for that child.
Changes:
Section 300.707(c) has been
revised to clarify that, for children on
reservations who do not attend BIA-
funded schools, the State in which the
reservation is located must ensure that
all the requirements of Part B of the Act
are met.
Use of Funds Under Part B of the Act
(§ 300.710(a))
Comment:
One commenter stated that
the Secretary of the Interior has no
statutory authority to reserve funds for
administration under section
611(h)(1)(A) of the Act, and therefore,
§ 300.710 should be removed from the
regulations.
Discussion:
The Secretary of the
Interior may reserve funds for
administration under § 300.710. Section
300.707(b), consistent with section
611(h)(1)(A) of the Act, requires the
Secretary of Education to provide
amounts to the Secretary of the Interior
to meet the need for assistance for the
education of children with disabilities
on reservations aged 5 to 21, inclusive,
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. The amount of such
payment for any fiscal year must be
equal to 80 percent of the amount
allotted for the Secretary of the Interior
under section 611(b)(2) of the Act for
that fiscal year.
Since the enactment of regulations
implementing Pub. L. 94–142 in 1977,
the regulations have permitted the
Secretary of the Interior to use five
percent of the funds under Part B of the
Act allocated for the education of
children with disabilities enrolled in
BIA-funded schools for administration.
The Act added the requirement in
section 611(h)(1)(A) for 80 percent of
the funds to be allocated to BIA-funded
schools by July 1 of each fiscal year, and
20 percent of the funds allocated by
September 30 of each fiscal year.
Congress’ intent in adding this
requirement was to ensure that the
Secretary of the Interior distributes
funds under Part B of the Act quickly
and efficiently to BIA-funded schools to
ensure that they have the resources they
need to provide services to children
with disabilities. (See H. Rpt. 108–77, p.
92.) There is no indication that Congress
intended to eliminate the Department’s
longstanding regulatory provision
permitting the Secretary of the Interior
to reserve funds for administration,
which assist the Office of Indian
Education Programs in carrying out its
monitoring activities. Section
611(h)(4)(F) of the Act specifically
prohibits the Secretary of the Interior
from using any of the 20 percent of the
funds under Part B of the Act allocated
for coordinating services for preschool
children with disabilities for
administrative purposes. However, there
is no provision that prohibits the
Secretary of the Interior from using any
of the 80 percent of funds under Part B
of the Act allocated to provide special
education and related services in BIA-
funded schools for administrative
purposes.
Changes:
None.
Early Intervening Services (§ 300.711)
Comment:
One commenter supported
permitting BIA-funded schools to use
funds under Part B of the Act for early
intervening services, but stated that not
all BIA-funded schools receive funds
under Part B of the Act, because the BIA
will not provide any such funds until a
school uses 15 percent of its Indian
School Equalization Program funds
(ISEP). The commenter requested that
the regulations specify that BIA-funded
schools are permitted and encouraged to
use their ISEP funds to provide early
intervening services and that schools,
upon doing so, would be eligible for
funds under Part B of the Act.
Discussion:
While the Act requires
that the Secretary of the Interior allocate
funds under Part B of the Act to BIA-
funded schools to meet the educational
needs of children with disabilities, the
Act does not establish requirements for
how those funds must be distributed to
BIA-funded schools. The Secretary of
the Interior requires that BIA-funded
schools use 15 percent of ISEP formula
funds for special education services
before receiving funds under Part B of
the Act. While the Department
understands the concern that not every
BIA-funded school will have special
education needs sufficient to meet the
15 percent threshold and, therefore, may
not receive any funds under Part B of
the Act, the Department does not have
the authority to permit or encourage
BIA-funded schools to use their 15
percent ISEP threshold funds to provide
early intervening services or to require
the Secretary of the Interior to provide
Part B funds to those schools once they
have spent 15 percent of their ISEP
funds on early intervening services.
Changes:
None.
Plan for Coordination of Services
(§ 300.713)
Comment:
One commenter stated that
the requirements in § 303.713 go beyond
the legal authority of the Secretary of
the Interior. The commenter stated that
the Secretary of the Interior provides
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services only in BIA-funded schools,
and the Office of Indian Education
Programs does not have jurisdiction
over a State to ensure that the State is
providing services to Indian children
under Part B of the Act. In addition, the
commenter stated that the term ‘‘all
Indian children’’ was too broad, because
the Secretary of the Interior is
authorized to provide funding only for
programs for children who are at least
one-fourth Indian blood of a federally
recognized tribe; residing on or near a
reservation; and enrolled in a BIA-
funded school.
Discussion:
Section 300.713(a) and
section 611(h)(5) of the Act do not
require the Secretary of the Interior to
provide services or funding to Indian
children who are not at least one-fourth
Indian blood of a federally recognized
tribe, residing on or near a reservation,
and enrolled in a BIA-funded school.
These sections require the Secretary of
the Interior to develop and implement a
plan for the coordination of services for
all Indian children with disabilities
residing on reservations covered under
Part B of the Act. In order to clarify the
Secretary of the Interior’s responsibility
under this provision, we are revising
§ 300.713(a) to clarify that reservations
covered under Part B of the Act means
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior.
Section 300.713(a) and section
611(h)(5) of the Act require that the plan
address the coordination of services for
all Indian children residing on those
reservations. This includes Indian
children residing on those reservations
that are enrolled in public schools in the
local school district, as well as Indian
children that are enrolled in BIA-funded
schools. This also includes Indian
students incarcerated in State, local, and
tribal juvenile and adult correctional
facilities. We are revising § 300.713(b) to
ensure that the plan provides for
coordination of services benefiting all
Indian children with disabilities,
including services provided by SEAs
and State, local, and tribal juvenile and
adult correctional facilities.
Changes:
Section 300.713(a) has been
revised to require the Secretary of the
Interior to develop and implement a
plan for the coordination of services for
all Indian children with disabilities
residing on reservations served by
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the Interior.
Section 300.713(b) has been revised to
require the plan to provide for the
coordination of services benefiting these
children from whatever source,
including SEAs, and State, local, and
tribal juvenile and adult correctional
facilities.
Establishment of Advisory Board
(§ 300.714)
Comment:
One commenter requested
definitions of ‘‘collaboration’’ and
‘‘collaborated teachers.’’
Discussion:
We do not believe it is
necessary to define ‘‘collaboration’’ in
these regulations, because it is a
commonly used term, which means
working jointly with others, especially
in an intellectual endeavor. Although
the Act does not prohibit the
Department from regulating on this
issue, we do not believe it is necessary.
The term ‘‘collaborated teachers’’ is not
used in the Act or these regulations and,
thus, is not appropriate for inclusion in
the definitions in these regulations.
Changes:
None.
Subpart H—Preschool Grants for
Children with Disabilities
Allocation for State in Which By-Pass Is
Implemented for Parentally-Placed
Private School Children With
Disabilities (§ 300.811)
Comment:
None.
Discussion:
We have determined that
§ 300.811, regarding allocation for a
State in which by-pass is implemented
for parentally-placed private school
children with disabilities, is no longer
applicable. Under section 619(c) of the
Act, distribution of Part B funds to
States is not based on child count.
Section 300.191 details the amount of
Part B funds the Secretary deducts from
a State’s allocation if a by-pass is
implemented.
Changes:
We are removing § 300.811
from the final regulations.
Subgrants to LEAs (§ 300.815)
Comment:
One commenter asked
whether the base year that applies to
section 611 of the Act also applies to
section 619 of the Act.
Discussion:
The base year that applies
to section 611 of the Act is not the same
as the base year that applies to section
619 of the Act. The formula for
allocating funds to LEAs under sections
611 and 619 of the Act is based on the
amount of program funds received in a
prior year (the base year), the relative
numbers of children enrolled in public
and private elementary schools and
secondary schools within the LEA’s
jurisdiction, and the relative numbers of
children living in poverty. Under
section 619(g)(1)(A) of the Act, the base
year for allocating section 619 funds to
LEAs under the Preschool Grant
program is Federal fiscal year (FFY)
1997. Under section 611(f)(2)(A) of the
Act, the base year for allocating section
611 funds to LEAs under the Grants to
States for the Education of Children
with Disabilities Program is FFY 1999.
Changes:
None.
Executive Order 12866
Costs and Benefits
Under Executive Order 12866, we
have assessed the costs and benefits of
this regulatory action.
Summary of Public Comments
The Department received four
comments on the role of school
psychologists in administering IQ tests
as described in the proposed analysis of
the costs and benefits of this regulatory
action. The first commenter stated that
it is inaccurate to conclude that fewer
school psychologists will be needed,
and asserted that school psychologists
typically do more than administer IQ
tests to students. The second commenter
stated that public agencies could realize
savings under the proposed regulation
by reducing the amount of time school
psychologists spend conducting
cognitive assessments to document IQ
discrepancies. The third commenter
requested that the Department remove
all language suggesting that potential
savings may result from the need for
fewer school psychologists to
administer IQ tests. The fourth
commenter stated that time saved on
formal assessments as a result of the
need to conduct fewer IQ tests could be
used by school psychologists to train
school staff in research-validated
instructional and behavioral
interventions, and to engage in other
pro-active pre-referral policies.
All of these comments were
considered in conducting the analysis of
the costs and benefits of the final
regulations. All of the Department’s
estimates and assumptions on which
they are based are described below.
Summary of Costs and Benefits
Costs and Benefits of Statutory Changes
For the information of readers, the
following is an analysis of the costs and
benefits of the most significant statutory
changes made by the Act that are
incorporated into the final regulations
governing the Assistance to States for
the Education of Children with
Disabilities program under Part B of the
Act. In conducting this analysis, the
Department examined the extent to
which the regulations add to or reduce
the costs for public agencies and others
in relation to the costs of implementing
the program regulations prior to the
enactment of the new statute. Based on
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this analysis, the Secretary has
concluded that the statutory changes
reflected in these final regulations will
not impose significant net costs in any
one year, and may result in savings to
SEAs and LEAs. An analysis of specific
provisions follows:
Requirement for State Certification for
Highly Qualified Special Education
Teachers
Section 300.156(c) requires that each
person employed as a public school
special education teacher who teaches
in an elementary, middle, or secondary
school be highly qualified, as defined in
§ 300.18, by the deadline established in
section 1119(a)(2) of the ESEA, no later
than the end of the 2005–2006 school
year. Section 300.18(b)(1) requires that
every public elementary and secondary
school special education teacher obtain
full State certification as a special
education teacher or pass the State
special education teacher licensing
examination, and hold a license to teach
in the State as a special education
teacher as one of the conditions of being
considered highly qualified to teach as
a special education teacher. Previously,
special education teachers were not
required by Federal law to be certified
as special education teachers in their
States. The regulations preclude
teachers for whom the special education
certification or licensure requirements
have been waived on an emergency,
temporary, or provisional basis from
meeting the definition of a highly
qualified special education teacher.
Teachers employed by a public charter
school are exempt from these
requirements and are subject to the
requirements for highly qualified
teachers in their State’s public charter
school law.
The impact of the requirement in the
final regulations that all special
education teachers have full special
education certification depends on
whether States and districts comply
with the requirement by helping
existing teachers who lack certification
acquire it, or by hiring new fully-
certified teachers, or some combination
of the two.
According to State-reported data
collected by the Department’s Office of
Special Education Programs,
certification or licensure requirements
have been waived for eight percent of
special education teachers, or
approximately 30,000 teachers. If States
and districts respond to the statutory
change reflected in the final regulations
by hiring certified teachers to fill these
positions, it could cost well over $1
billion to cover the salaries for a single
year. (Occupational Employment and
Wages Survey, November 2004,
indicates a median national salary of
$44,330 for elementary school teachers
and $46,300 for secondary school
teachers.) However, given that the
Study
of Personnel Needs in Special Education
(SPENSE) found that in 1999–2000,
12,241 positions for special education
teachers were left vacant or filled by
substitute teachers because suitable
candidates could not be found, it is
unlikely that States and districts can
meet this requirement through hiring.
The SPENSE study also found that 12
percent of special education teachers
who lack full certification in their main
teaching assignment field are fully
certified in their main teaching
assignment field in another State. This
means that States should be able to
certify an estimated 3,600 additional
special education teachers at relatively
little expense through reciprocal
certification agreements with other
States.
Responses to the 1999–2000
Schools
and Staffing Survey
indicate that nearly
10 percent (approximately 3,000
teachers) of special education teachers
who lacked full certification, including
those teaching under provisional,
temporary, or emergency certification,
were enrolled in a program to obtain
State certification. If teachers already
participating in a certification program
are presumed to be within 10 semester
hours of meeting their coursework
requirements and the estimated cost of
a semester hour in a university or
college program is $200, then it would
cost $6 million to help these teachers
obtain full State certification. If teachers
require more than 10 semester hours to
complete their certification programs, it
is unlikely they will be able to obtain
certification through coursework in a
timely manner.
States and districts are unlikely to be
able to meet these requirements entirely
through reciprocity agreements and
college and university programs. The
above estimates involve fewer than
7,000 of the approximately 30,000
teachers who lack full certification.
Other options States and districts might
use to certify the more than 23,000
remaining teachers include assessments
of academic skill and subject matter
knowledge and professional
development. Assessment requirements
for special education teachers vary
across States and teaching assignment
fields, but most States require at least
two subject matter tests, a general test
on core content knowledge, and a
disability-specific test, for special
education teacher certification. The
average cost of each test is $75. The
SPENSE study found that one-fourth of
beginning special education teachers
who took a certification test reported
having to take it more than once before
passing. If States and districts certified
the remaining 23,000 teachers through
existing assessments and 25 percent of
the teachers took the tests twice, the
cost would be approximately $4.3
million.
Some subset of special education
teachers currently teaching through
waivers will require additional training
to obtain special education certification.
The cost of certifying these teachers
depends on State special education
certification requirements and the types
of professional development needed to
help these teachers meet the
requirements. Most studies in the year
2000 found that district expenditures for
professional development range from
one to four percent of a district’s total
budget or $2,062 per teacher. If 18,000
teachers need additional training,
costing an average expenditure of
$2,000 per teacher for professional
development, the cost of certifying these
teachers through training would be $36
million.
Because there is little information
available on what is required to
implement these statutory changes and
the cost of doing so, the Secretary
concludes that the cost may be
significant given the number of special
education teachers who lack
certification. The Secretary further
concludes that the benefits of State
certification may not necessarily
outweigh the costs.
The Secretary believes that teacher
certification can be a valuable tool in
ensuring that teachers have the
knowledge and skills they need to help
students meet high academic standards.
Because the highly qualified teacher
requirements in the ESEA, which focus
on content knowledge, already applied
to special education teachers providing
instruction in core academic subjects,
the benefits of requiring special
education teachers to also meet State
certification requirements for special
education teachers will largely depend
on the extent to which these
requirements reflect pedagogical
knowledge and other teacher
characteristics that are likely to have a
positive effect on achievement of
students with disabilities. As of now,
there is minimal research showing the
relationship between special education
certification and academic achievement
for students with disabilities.
Special Education Teachers Teaching to
Alternate Achievement Standards
Section 9101 of the ESEA requires
that teachers of a core academic subject
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have full State teacher certification,
hold at least a bachelor’s degree, and be
able to demonstrate knowledge of the
subject matter they teach. Elementary-
level teachers may demonstrate subject
matter expertise by passing a rigorous
State test of their subject knowledge and
teaching skills in reading, writing,
mathematics, and other areas of the
basic elementary school curriculum, but
middle or secondary school teachers
must demonstrate a high level of
competence in each of the academic
subjects that they teach.
Section 300.18(c) permits special
education teachers who teach core
academic subjects exclusively to
children who are assessed against the
alternate achievement standards,
established under 34 CFR 200.1(d), to
fulfill the highly qualified teacher
requirements in section 9101(23)(B) or
(C) of the ESEA as applied to an
elementary school teacher, or, in the
case of instruction above the elementary
level, to meet the requirements in
section 9101(23)(B) or (C) for an
elementary school teacher and have
subject matter knowledge appropriate to
the level of instruction being provided,
as determined by the State, needed to
effectively teach to those standards.
The cost of demonstrating subject area
competence depends on the number of
special education teachers who teach
core academic subjects exclusively to
children assessed against alternate
achievement standards, the number of
these teachers who already would be
considered highly qualified under
section 9101(23) of the ESEA and the
number who would not, and the cost of
helping special education teachers who
are not highly qualified meet the highly
qualified teacher requirements for
teaching core academic subjects at the
middle and high school levels (or
replacing them with highly qualified
teachers). The final regulations will
generate savings for public agencies to
the extent that the cost of helping
teachers demonstrate subject area
competence at the elementary level and
obtain the knowledge appropriate to the
level of instruction needed to teach to
alternate achievement standards is
lower than the cost of demonstrating
subject matter competence at the level
(middle or high school) at which they
are teaching.
Under 34 CFR 200.1(d), States are
permitted to assess up to one percent of
students against alternate achievement
standards. Based on estimated 2005–
2006 school enrollment data compiled
by the National Center for Education
Statistics (NCES), States could assess up
to 257,650 students in the middle and
secondary levels (grades 6–12) against
alternate achievement standards. Based
on a typical ratio of one teacher for
every six students for instruction based
on alternate achievement standards, as
many as 43,000 special education
teachers would be eligible to
demonstrate that they fulfill the
requirements for highly qualified
teachers in section 9101 of the ESEA by
demonstrating subject matter knowledge
appropriate to the level of instruction
being provided instead of the student’s
grade level. The number of affected
teachers would depend on the extent to
which these special education teachers
are teaching exclusively children
assessed against alternate achievement
standards.
Although it is difficult to estimate the
savings from these final regulations, the
Secretary expects some savings to be
produced because affected special
education teachers are not required to
demonstrate the same level of content
knowledge as other middle and high
school teachers of core academic
subjects, thereby reducing the amount of
additional coursework or professional
development that is needed to meet
State standards. The savings depend on
the gap between what State standards
require in terms of content knowledge
for middle and high school teachers in
various academic areas and what the
affected teachers are able to demonstrate
in the academic subjects they are
teaching. Any savings will be offset in
part by the cost of developing a means
for the affected teachers to demonstrate
subject matter knowledge appropriate to
the level of instruction being provided.
However, this cost is not expected to be
significant. On balance, the Secretary
concludes that the final regulations
could produce significant savings
without adversely affecting the quality
of instruction provided to children
assessed against alternate achievement
standards.
Special Education Teachers Teaching
Multiple Subjects
Section 300.18(d) permits special
education teachers who are not new to
the profession and teach two or more
core academic subjects exclusively to
children with disabilities to
demonstrate competence in all the core
academic subjects that the teacher
teaches in the same manner as other
elementary, middle, and secondary
school teachers who are new to the
profession under 34 CFR 200.56(c),
including through a High Objective
Uniform State Standards of Evaluation
(HOUSSE) covering multiple subjects.
The final regulations allow more time
(two years after the date of employment)
for new special education teachers who
teach multiple subjects and who have
met the highly qualified requirements
for mathematics, language arts, or
science to demonstrate competence in
other core academic subjects that they
teach, as required by 34 CFR 200.56(c).
The final regulations also clarify in
§ 300.18(e) that States have the option of
developing separate HOUSSE standards
for special education teachers, including
a single HOUSSE for special education
teachers of multiple subjects. States may
not establish lesser standards for
content knowledge for special education
teachers, however.
We are unable to estimate the number
of new teachers who teach two or more
core academic subjects exclusively to
children with disabilities who might be
affected by the additional time afforded
by the regulation. However, the extent
of savings relates to the number of
subjects taught by teachers of multiple
subjects and the benefits of enabling the
affected teachers to take whatever
coursework they need to demonstrate
competence in those additional areas
over a longer period of time. Under
prior law, public agencies might have
needed to employ additional teachers
(or redeploy some existing teachers) in
those subject areas in which their newly
hired teachers could not immediately
demonstrate competence. The Secretary
concludes that the benefits of being able
to hire teachers who are qualified in at
least one subject area outweigh any
costs to students being taught by
teachers who currently do not meet the
requirements in other areas but are
working to demonstrate their knowledge
in other areas in which they teach.
Since States are not permitted to
establish a lesser standard for the
content knowledge requirements for
special education teachers, they are not
likely to realize additional savings due
to reduced expenses for coursework or
professional development for special
education teachers who have not
demonstrated content area knowledge.
States may realize administrative
savings, however, by being able to use
separate HOUSSE standards that are
both aligned with their licensing or
certification standards for special
education teachers and that cover
multiple subjects. The Secretary
concludes that the final regulations
could produce administrative savings
for States without adversely affecting
the quality of instruction provided to
children taught by special education
teachers assessed through a separate
mechanism that upholds the same
standards for content knowledge.
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Limitation on Number of Reevaluations
in a Single Year
Section 300.303(b)(1) prohibits
conducting more than one reevaluation
in a single year without the agreement
of the school district and the parent.
The previous regulations required
reevaluations when conditions
warranted one or at the request of either
the child’s parent or teacher.
Multiple evaluations in a single year
are rare and are conducted when
parents are not satisfied with the
evaluation findings or methodology,
children have a degenerative condition
that affects the special education and
related services needed, or very young
children (ages three through four) are
experiencing rapid development that
may affect the need for services. The
final regulations will not significantly
affect the number of evaluations in the
latter two instances because public
agencies and parents are likely to agree
that multiple evaluations are warranted.
These cases, however, account for a very
small number of the cases in which
multiple evaluations are conducted each
year.
Because evaluation findings may be
used to support requests for due process
hearings, we can use data on the
number of requests for due process
hearings to estimate the number of cases
in which more than one evaluation in a
single year would have been conducted
because parents were not satisfied with
the evaluation findings or methodology.
Based on data from the recent
Government Accountability Office
(GAO) report, ‘‘Special Education:
Numbers of Formal Disputes Are
Generally Low and States Are Using
Mediation and Other Strategies to
Resolve Conflicts’’ (GAO–03–897), in
which States reported receiving 11,068
requests for due process hearings during
1999–2000, we estimate that States
would receive 20 requests for every
10,000 students with disabilities during
the 2006–2007 school year. Based on the
prevalence of complaints by parents, we
estimate that, of the 1.7 million children
estimated to be eligible for reevaluation
in 2006–2007, multiple evaluations
would have been requested by parents
for an estimated 3,400 children. If we
assume that these additional evaluations
would cost about $1,000 each, public
agencies could save $3.4 million under
the final regulations by not agreeing to
more than one evaluation of children in
these instances.
Triennial Evaluations
The previous regulations required a
school district to conduct an evaluation
of each child served under the Act every
three years to determine, among other
things, whether the child was still
eligible for special education. The
previous regulations also permitted the
evaluation team to dispense with
additional tests to determine the child’s
continued eligibility if the team
concluded that this information was not
needed and the parents provided
consent. Section 300.303(b)(2) permits
districts to dispense with the triennial
evaluation when the child’s parents and
the public agency agree that a
reevaluation is unnecessary. The impact
of this change depends on the following
factors: the number of children eligible
for a reevaluation, the cost of the
evaluation, and the extent to which
districts and parents agree to waive
reevaluations.
Published estimates of the cost of
multidisciplinary evaluations range
from $500 to $2,500, but these estimates
may overestimate potential savings
because testing is a significant factor in
the cost of evaluations, and districts are
already permitted to dispense with
additional testing when extant data are
sufficient for reevaluation. The extent to
which States and districts eliminated
unnecessary testing during triennial
evaluations under the previous
regulations is unclear, but program
officers estimate that additional testing
or observation by a school psychologist
is not needed for as many as half of the
approximately 1.7 million children
eligible for triennial evaluations each
year. In the estimated 850,000 cases in
which additional testing is not needed,
review of the extant data may still be
warranted to determine if a child still
needs special education and related
services under the Act or to assess
whether any additions or modifications
to the special education and related
services being provided are needed to
help the child meet the child’s IEP
goals. Even if additions or modifications
to special education and related services
are not likely, parents may not want to
dispense with the triennial evaluation if
they believe further information could
be gained from the extant data or they
want to compare their child’s progress
against his or her previous assessments.
If parents and the district agree that a
reevaluation is not needed in 15
percent, or 127,500, of these cases and
a reevaluation using only extant data
would have cost $150, the final
regulations could save $19.125 million.
These savings will be partially offset
by increased administrative costs
associated with obtaining consent from
parents to dispense with reevaluation.
To estimate the cost of obtaining
parental consent, the Department
assumes that schools could use a
standard pre-printed document that
would take approximately 15 minutes of
administrative personnel time to fill out
and send to parents. In addition, we
estimate that an average of 2.5
additional written notices or telephone
calls would be needed to obtain
consent, requiring 15 minutes of
administrative personnel time per
additional contact. At an average hourly
compensation of $25, the cost to public
agencies of obtaining parental consent
would be $2.8 million, resulting in
estimated net savings to public agencies
from the final regulations of $16.3
million.
IEP Team Attendance
Section 300.321(e)(1) permits certain
members of the IEP Team to be excused
from attending an IEP Team meeting, in
whole or in part, if the parent of the
child with a disability and the public
agency agree in writing that the
member’s attendance is not necessary
because the member’s area of the
curriculum or related services is not
being modified or discussed. The
previous regulations required that all
IEP Team meetings include the parents
of the child, at least one regular
education teacher (if the child is, or may
be, participating in the regular
education environment), at least one
special education teacher, a
representative of the public agency, and
someone who could interpret the
instructional implications of the
evaluation results (who may be one of
the other required IEP Team members).
The extent to which public agencies
will realize savings from the final
regulations depends on which team
members are excused from how much of
the meeting. If the average IEP Team
meeting lasts 1.5 hours and requires a
half an hour of teacher preparation, then
we estimate that the opportunity costs
for a teacher of attending a meeting
(based on average compensation per
hour of $48) would be $96. If we assume
an average of 1.2 IEP Team meetings are
held for each of the 6.947 million
children with disabilities, then 8.34
million IEP Team meetings will be held
in 2006–2007. If one teacher could be
excused from five percent of these
meetings, the final regulation could
result in savings of $40 million.
These savings will be partially offset
by increased administrative costs
associated with obtaining written
consent from parents and public agency
staff. Based on the above estimate of the
cost of obtaining consent from parents
under § 300.303(b)(2), the Department
estimates that the cost to public
agencies of obtaining written consent
from these parents would be $9.1
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million, resulting in net savings to
public agencies from the final
regulations of $30.9 million.
Section 300.321(e)(2) permits certain
members of an IEP Team to be excused
from attending an IEP Team meeting
that involves a modification to or
discussion of the member’s area of the
curriculum or related service if the
parent and the public agency consent in
writing to the excusal and the member
submits written input to the parent and
the other members of the IEP Team prior
to the meeting. The change is unlikely
to generate notable savings because
reduced time spent in meetings is likely
to be offset by the time required to draft
written input, send it to the parents and
other IEP Team members, and secure
the consent of parents and public
agency to the excusal. In cases in which
IEP Team meetings take longer than the
average time of 1.5 hours, there are
likely to be controversial issues or
significant modifications to the IEP
under discussion. Parents are
presumably less likely to consent to the
excusal of team members in these
instances.
Definition of Individualized Education
Program (IEP)
Section 300.320(a)(2)(i) requires that
each IEP include a statement of
measurable annual goals, including
academic and functional goals, for the
child. The previous regulations required
that each IEP contain benchmarks or
short-term objectives for each of the
annual goals. By eliminating the need to
develop benchmarks or short-term
objectives, the final regulations could
result in teachers spending less time on
each IEP. Under § 300.320(a)(2)(ii),
however, IEPs for the estimated 486,000
children with disabilities who take
alternate assessments aligned to
alternate achievement standards would
still be required to include a statement
of benchmarks or short-term objectives.
Based on average compensation for
teachers of $48 per hour, a reduction in
time as modest as 15 minutes could save
approximately $12 per IEP or $77.5
million total in opportunity costs for
teachers related to the development of
IEPs during the 2006–2007 school year
for the 6.461 million children with
disabilities who do not take alternate
assessments aligned to alternate
achievement standards.
Amendments to an IEP
When changes to a child’s IEP are
needed after the annual IEP Team
meeting for the school year has been
held, § 300.324(a)(4) allows the parent
of a child with a disability and the
public agency to agree to forego a
meeting and develop a written
document to amend or modify the
child’s current IEP. Under the previous
regulations, the IEP Team was required
to reconvene in order to make
amendments to an IEP. Based on our
estimate of an average of 1.2 IEP Team
meetings per child per year,
approximately 1.4 million IEP Team
meetings beyond the required annual
IEP Team meeting would be held during
the 2006–2007 school year. If half of
these meetings concerned amendments
or modifications to an IEP and parents
and agency representatives agreed to
forego a meeting and develop a written
document in half of these cases, then
350,000 IEP Team meetings would not
be needed. The combined opportunity
costs for personnel participating in a
typical IEP Team meeting are estimated
at $307. If drafting a written document
to amend or modify an IEP is assumed
to cost half as much as a meeting, then
this change could result in savings of
$53.7 million.
Procedural Safeguards Notice
Section 300.504(a), which
incorporates changes in section
615(d)(1) of the Act, requires that a copy
of the procedural safeguards notice be
given to parents of children with
disabilities only once a school year,
except that a copy must also be given
when an initial evaluation or parent
request for an evaluation occurs; the
first time a due process hearing is
requested during a school year; when
the decision to take disciplinary action
is made; and when a parent requests the
notice. The prior law required that a
copy of the procedural safeguards notice
be given to the parents upon initial
referral for an evaluation, each
notification of an IEP Team meeting,
each reevaluation of the child, and the
registration of each request for a due
process hearing. Under the final
regulations, a copy of the procedural
safeguards notice no longer has to be
given to parents with each notice for an
IEP Team meeting or every time a
request for a due process hearing is
received. Instead, the document only
has to be given to parents once a year,
and the first time a due process hearing
is requested in a year, when the
decision to take disciplinary action is
made, when a copy of the document is
specifically requested by a parent, or
when an initial evaluation or request for
a reevaluation occurs.
To determine the impact of this
change, it is necessary to estimate the
savings created by providing fewer
notices to parents who are notified
about more than one IEP Team meeting
during the year or who file more than
one request for a due process hearing.
Given the small number of hearing
requests in a year (about 20 per 10,000
children with disabilities), our analysis
will focus on the number of parents
involved in more than one IEP Team
meeting. Although we lack detailed data
on the number of IEP Team meetings
conducted each year, we estimate that
approximately 6.947 million children
with disabilities will be served in school
year 2006–2007. For the vast majority of
these children, we believe there will be
only one IEP Team meeting during the
year. For purposes of estimating an
upper limit on savings, if we assume an
average of 1.2 meetings per year per
child, 1.39 million children will have
two IEP Team meetings each year and
the change reflected in § 300.504(a) will
result in 1.39 million fewer procedural
notices provided to parents. While some
people may believe this change
represents a significant reduction in
paperwork for schools, the actual
savings are likely to be minimal given
the low cost of producing a notice of
this size (about 10 pages) and the small
amount of administrative staff time
involved in providing this notice to
parents (about 10 minutes). Taking all of
this into consideration, total savings are
unlikely to exceed $5 million.
Due Process Request Notices
Section 300.511(d) prohibits the party
who requested the due process hearing
from raising issues not raised in the due
process request notice, unless the other
party agrees. Under previous
regulations, there was no prohibition on
raising issues at due process hearings
that were not raised in the due process
notice.
By encouraging the party requesting
the hearing to clearly identify and
articulate issues sooner, the final
regulations could generate actual
savings by facilitating early resolution of
disagreements through less costly
means, such as mediation or resolution
meetings. But early identification of
issues could come at the cost of more
extensive involvement of attorneys
earlier in the process. At the same time,
prohibiting the party requesting the
hearing from raising new issues at the
time of the hearing could result in
additional complaints or protracted
conflict and litigation. On balance, net
costs or savings are not likely to be
significant.
Using data from recent State data
collections conducted by the
Consortium for Appropriate Dispute
Resolution in Special Education
(CADRE), in which States reported
receiving 12,914 requests for due
process hearings during 2000–2001, we
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estimate that there will be
approximately 14,059 requests in 2006–
2007. Because some parties already hire
attorneys or consult other resources
such as advocates or parent training
centers to develop the request for due
process, the Department assumes that
only a portion of the requests would be
affected by this new requirement.
Although we have no reliable data on
average attorneys’ fees in due process
cases, for purposes of this analysis, the
Department assumes an hourly rate of
$300 as an upper limit. The Department
further assumes that each instance in
which a party chooses to hire an
attorney sooner as a result of this change
will involve no more than three
additional hours of work. Even if we
assume that parties requesting the
hearing will incur this additional cost in
the case of 8,000 of the expected
requests for due process, the total costs
would not be significant (less than $8
million), and could be outweighed by
the benefits of early identification and
resolution of issues. Although such
benefits are largely unquantifiable, early
identification and resolution of disputes
would likely benefit all parties involved
in disputes.
Resolution Meetings
Section 300.510 requires the parents,
relevant members of the IEP Team, and
a representative of the public agency to
participate in a resolution meeting, prior
to the initiation of a due process
hearing, unless the parents and LEA
agree to use mediation or agree to waive
the requirement for a resolution
meeting. The impact of these final
regulations will depend on the
following factors: the number of
requests for due process hearings, the
extent to which disagreements are
already resolved without formal
hearings, the likelihood that parties will
agree to participate in mandatory
resolution meetings instead of other
potentially more expensive alternatives
to due process hearings (
e.g.
,
mediation), and the likelihood that
parties will avoid due process hearings
by reaching agreement as a result of
mandatory resolution meetings.
Available data suggest that overall
savings are not likely to be significant
because of the small number of due
process requests and the extent to which
disagreements are already being
successfully resolved through
mediation.
Based on data reported in a recent
CADRE State data collection in which
States reported receiving 12,914
requests for due process hearings during
2000–2001, we estimate that there will
be approximately 14,059 requests for
due process hearings in school year
2006–2007. Based on data from the
same study, we also estimate that the
large majority of these disagreements
will be successfully resolved through
mediation or dropped. Out of the 12,914
requests for school year 2000–2001,
approximately 5,536 went to mediation
and only 3,659 ended up in formal
hearings. Assuming no change in the
use and efficacy of mediation, we
predict that 6,028 requests would go to
mediation in school year 2006–2007.
We further predict that another 4,047
complaints will be dropped, leaving no
more than 3,985 requests for due
process hearings that would require
resolution meetings.
Because of the high cost of due
process hearings and the low expected
cost of conducting a resolution meeting,
there would likely be some savings for
all parties involved if resolution
meetings were relatively successful in
resolving disagreements. For example,
California reports an average cost of
$18,600 for a due process hearing, while
Texas reports having spent an average of
$9,000 for a hearing officer’s services.
Anticipating that attorneys will
participate in approximately 40 percent
of the predicted 3,985 resolution
meetings (including drafting legally
binding agreements when parties reach
agreement), we expect resolution
meetings to cost just over twice the
average cost of IEP Team meetings, or
approximately $700 per meeting. Even
with a very low success rate (eight
percent), given the expected costs of
these meetings compared to the high
cost of conducting a hearing, all parties
involved would likely realize some
modest savings. However, because
disputes that result in formal hearings
tend to be the most difficult to resolve,
we do not expect that mandatory
resolution meetings will be highly
successful in resolving such cases. By
definition, these are cases in which the
parties are not amenable to using
existing alternatives to formal hearings
such as mediation. Moreover, assuming
an average cost of between $10,000 and
$20,000 per due process hearing, even if
as many as 20 percent of the 3,985
complaints were successfully resolved
through resolution meetings, net savings
still would not exceed $10 million.
(Note that it is unclear to what extent
data on average mediation and due
process hearing costs account for LEA
opportunity costs (e.g., cost per teacher
and/or administrator participating). To
the extent that these data do not reflect
the opportunity costs of participating
LEA officials and staff, we have
overestimated the potential savings from
resolution meetings).
Beyond those savings to all parties
resulting from reductions in the total
number of formal hearings, we also
expect some additional savings to result
from parties agreeing to participate in
resolution meetings instead of
mediation, particularly if the resolution
meetings are as effective as mediation in
resolving disagreements. However,
unlike due process hearings, the
expected cost of conducting a resolution
meeting ($700 per meeting) is only
somewhat less than the cost of a
mediation session (between $600 and
$1,800 per session). Because the cost
differential between resolution meetings
and mediations is relatively small
(compared to the difference in cost
between resolution meetings and due
process hearings) the potential for
savings generated by parties agreeing to
resolution meetings instead of
mediation is minimal.
The Secretary concludes that
requiring parties to participate in
resolution meetings prior to due process
hearings could generate modest savings
for all parties to disputes, insofar as
mandatory resolution meetings could
result in fewer due process hearings and
may be used as a less expensive
alternative to mediation.
Manifestation Determination Review
Procedures
Section 300.530(e) and (f) incorporate
the change in the statutory standard for
conducting manifestation determination
reviews. Under the prior law, the IEP
Team could conclude that the behavior
of a child with a disability was not a
manifestation of the child’s disability
only after considering a list of factors,
determining that the child’s IEP and
placement were appropriate, and that
FAPE, supplemental services, and
behavioral intervention strategies were
being provided in a manner consistent
with the child’s IEP. Previous law also
required the IEP Team to consider
whether a child’s disability impaired
the child’s ability to understand the
impact and consequences of the
behavior in question, and to control
such behavior. The Act eliminated or
substantially revised these
requirements. The final regulations
simply require an IEP Team to review
all relevant information in the child’s
file to determine if the conduct in
question was caused by, or had a direct
and substantial relationship to, the
child’s disability, or if the conduct in
question was the direct result of the
LEA’s failure to implement the IEP. The
purpose of the change in the law is to
simplify the discipline process and
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make it easier for school officials to
discipline children with disabilities
when discipline is appropriate and
justified.
Because fewer factors need to be
considered during each manifestation
determination review, the time required
to conduct such reviews will likely be
reduced, and some minimal savings
may be realized. However, the more
significant impact relates to secondary
effects. Because it will be less
burdensome for school personnel to
conduct manifestation determinations,
it is reasonable to expect an overall
increase in the number of these reviews
as school personnel take advantage of
the streamlined process to pursue
disciplinary actions against those
children with disabilities who commit
serious violations of student codes of
conduct. This prediction is consistent
with a recent GAO report (‘‘Student
Discipline: Individuals with Disabilities
Education Act’’ (GAO–01–210)), which
found that a ‘‘sizable minority of
principals’’ voiced concern that
discipline policies under previous law
impeded proper disciplinary action for
students with disabilities, and that some
of these comments ‘‘may have stemmed
from the additional time and resources
that principals reportedly use to
discipline special education students
compared with regular education
students.’’ Even more importantly, the
changes in the law will make it easier
for review team members to conclude
that the behavior in question is not a
manifestation of a child’s disability,
enabling school personnel to apply
disciplinary sanctions in more cases
involving children with disabilities.
We have minimal data on the number
of manifestation determination reviews
being conducted. However, State-
reported data for the 2002–2003 school
year suggest that schools are conducting
a relatively small number of
manifestation reviews. According to
these data, for every 1,000 children with
disabilities, approximately 11 will be
suspended or expelled for longer than
10 days during the school year (either
through a single suspension or as a
result of multiple short-term
suspensions)—the disciplinary action
triggering a manifestation review.
(Please note that we have no way of
accurately estimating what portion of
short-term suspensions that add up to
10 days would be determined by school
personnel to constitute a change in
placement. Therefore, we assume, for
purposes of this analysis, that 100
percent of these instances would require
a manifestation review because they
would be deemed a change in
placement). Based on a recent GAO
study (‘‘Student Discipline: Individuals
with Disabilities Education Act’’ (GAO–
01–210)), we assume that under
previous law at least 85 percent of
manifestation reviews resulted in
disciplinary actions (e.g., long-term
suspensions or expulsion). In other
words, approximately 15 percent of all
manifestation reviews did not result in
disciplinary action because the behavior
in question was determined to be a
manifestation of the child’s disability.
Without taking into consideration
increases in the frequency of
manifestation reviews, using suspension
and expulsion data from previous years,
we estimate that the total number of
manifestation reviews in 2006–2007
will be approximately 87,880. If we
assume that the streamlining reflected
in the regulations will produce a 20
percent increase in the total number of
manifestation reviews, we predict that
17,576 additional meetings will occur,
for a total of 105,456 meetings.
Under the final regulations, the
Secretary also expects an increase in the
total number of manifestation reviews
resulting in disciplinary actions, but it
is not likely to be a significant increase.
GAO’s finding that there is little
practical difference in how school
personnel disciplined regular and
special education students under
previous law suggests that manifestation
reviews are already highly likely to
result in disciplinary actions.
The Secretary concludes that the final
regulations will generate some minimal
savings from the reduction in time
required to conduct the manifestation
reviews. Schools would also realize
some qualitative benefits related to the
increased likelihood that the outcome of
the review will result in disciplinary
action, thereby fostering a school
environment that is safer, more orderly,
and more conducive to learning. The
Secretary acknowledges that the final
regulations could create additional costs
for parents of children who, but for this
change, would not have been subject to
disciplinary removals, to the extent that
such parents disagree with the
manifestation determination and choose
to appeal it. On balance, the Secretary
believes that the benefits likely to result
from this change relating to school
safety and order outweigh the costs to
families.
Authority To Remove Students With
Disabilities to Interim Alternative
Educational Settings
Sections 300.530(g) through 300.532
incorporate two significant statutory
changes relating to the authority of
school personnel to remove children
with disabilities to interim alternative
educational settings. First, the Act now
gives school personnel the authority to
remove to interim alternative
educational settings children who have
inflicted serious bodily injury to
themselves, or others. Under previous
law, school personnel were authorized
to remove children to alternative
settings only for misconduct involving:
(1) The use and possession of weapons;
and (2) the knowing possession, sale, or
use of illegal drugs or controlled
substances. The Act added the
commission of serious bodily injury to
this list. In cases involving serious
bodily injury, school personnel would
be able to unilaterally remove children
with disabilities to interim alternative
educational settings for up to 45 school
days without having to request that a
hearing officer review the facts to
determine whether or not the child is
substantially likely to harm him or
herself or others. Second, the 45-day
rule has changed. Under previous law,
students could not be removed to
interim alternative educational settings
for more than 45 days. Now, under the
Act, the comparable time limitation is
45 school days.
Although the addition of serious
bodily injury significantly simplifies the
process for removing a child who has
engaged in such misconduct, the data
suggest that the savings from the final
regulations will be minimal. Recent
Department of Justice data show that
‘‘fighting without a weapon’’ is by far
the most common type of serious
misconduct engaged in by all students.
However, State-reported data suggest
that, of the 20,000 instances in 2002–
2003 in which children with disabilities
were suspended or expelled for longer
than 10 days, only 1,200 involved
serious bodily injury or removal ‘‘by a
hearing officer for likely injury.’’ We
estimate that approximately 6.947
million children with disabilities will
be served during the 2006–2007 school
year. Using these data, we project that
there would have been approximately
1,283 instances in 2006–2007 in which
a school district might have requested
approval from a hearing officer to
remove a child for inflicting serious
bodily injury, if the law had not been
changed. Taking into account the time
that would have been spent by both
relevant school administrators and the
hearing officers and their estimated
hourly wages (about $125 per hour for
hearing officers and $50 per hour for
school administrators), we conclude
that the unilateral authority afforded
school officials under the final
regulations produce only minimal
savings (less than $1 million).
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A much more significant benefit
relates to the enhanced ability of school
officials to provide for a safe and orderly
environment for all students in the
1,283 cases in which school officials
would have been expected to seek and
secure hearing officer approval for
removing a child with a disability to an
alternative setting and the other cases in
which they might not have taken such
action, but where removal of a child
with a disability who has caused injury
is justified and produces overall benefits
for the school.
The change in how days are to be
counted (
e.g.,
from ‘‘calendar days’’
under previous law to ‘‘school days’’
under the final regulations) allows
school officials to extend placements in
alternative settings for approximately
two additional weeks. This generates
some savings to the extent that it
obviates the need for school officials to
seek hearing officer approval to extend
a child’s placement in an alternative
setting.
While school personnel are not
required to use the new authority to
remove children who have inflicted
serious bodily injury or to remove
children for the total amount of time
that is authorized, we acknowledge that
it would create additional costs for
schools that choose to take full
advantage of this authority because of
the added costs of providing services in
interim alternative educational settings.
Using data from a recent GAO study
(‘‘Student Discipline: Individuals with
Disabilities Education Act’’ (GAO–01–
210)), we estimate that approximately
3,007 children will be removed to an
interim alternative educational setting
in 2006–2007 for misconduct involving
drugs or weapons and at least another
1,283 for misconduct involving serious
bodily injury. Although we do not have
data on the costs of educating these
children in an alternative setting for 45
school days, the Secretary concludes
that the costs of doing so will be
outweighed by the qualitative benefits
to schools associated with ensuring
children a safe and orderly environment
that is conducive to learning.
Costs and Benefits of Non-Statutory
Final Regulatory Provisions
The following is an analysis of the
costs and benefits of the non-statutory
final regulatory provisions that includes
consideration of the special effects these
changes may have on small entities.
The final regulations primarily affect
SEAs and LEAs, which are responsible
for carrying out the requirements of Part
B of the Act as a condition of receiving
Federal financial assistance under the
Act. Some of the changes also affect
children attending private schools and
consequently indirectly affect private
schools.
For purposes of this analysis as it
relates to small entities, the Secretary
has focused on LEAs because these
regulations most directly affect local
public agencies. The analysis uses a
definition of small school district
developed by the NCES for purposes of
its recent publication,
Characteristics of
Small and Rural School Districts.
In that
publication, NCES defines a small
school district as ‘‘one having fewer
students in membership than the sum of
(a) 25 students per grade in the
elementary grades it offers (usually K–
8) and (b) 100 students per grade in the
secondary grades it offers (usually 9–
12)’’. Using this definition,
approximately 38 percent of the
Nation’s public agencies in the 2002–
2003
Common Core of Data
were
considered small and served three
percent of the Nation’s students.
Approximately 17 percent of children in
small districts had IEPs.
Both small and large districts will be
affected economically by the final
regulations, but no data are available to
analyze the effect on small districts
separately. For this reason, this analysis
assumes that the effect of the final
regulations on small entities will be
roughly proportional to the number of
children with disabilities served by
those districts.
For school year 2006–2007, we project
that approximately 48.6 million
children will be enrolled in public
elementary and secondary schools.
Using the NCES definition and
assuming that all districts grew at the
same rate between school years 2002–
2003 and 2005–2006, we estimate that
in the 2006–2007 school year,
approximately 1.46 million children
will be enrolled in small districts. Based
on the percentage of students in small
districts with IEPs in 2002–2003, we
estimate that in the 2006–2007 school
year, these districts will serve
approximately 248,000 children with
disabilities of the 6.947 million children
with disabilities served nationwide.
There are many provisions in the final
regulations that will result in economic
impacts, both positive and negative. The
following analysis estimates the impact
of the final regulations that were not
required by the Act:
Procedures for Evaluating Children
With Specific Learning Disabilities
Section 300.307(a) requires that States
adopt criteria for determining whether a
child has a specific learning disability.
Under the final regulations, States may
not require that LEAs use criteria based
on a severe discrepancy between
intellectual ability and achievement for
determining whether a child has a
specific learning disability. The final
regulations also require that criteria
adopted by States permit the use of a
process that determines if the child
responds to scientific, research-based
intervention. States are also permitted to
use other alternative procedures to
determine if a child has a specific
learning disability.
Before determining that a child has a
specific learning disability, § 300.309(b)
requires that the evaluation team
consider data that demonstrate that
prior to, or as part of the referral
process, the child received appropriate
instruction in regular education settings
and that data-based documentation of
repeated assessments of achievement
during instruction was provided to the
child’s parents. If the child has not
made adequate progress under these
conditions after an appropriate period of
time, the final regulations further
require that the public agency refer the
child for an evaluation to determine if
special education and related services
are needed. Under the final regulations,
the child’s parents and the team of
qualified professionals, described in
§ 300.306(a)(1), are permitted to extend
the evaluation timelines described in
§§ 300.301 through 300.303 by mutual
written agreement.
If the estimated number of initial
evaluations each year is 1.7 million and
the percentage of evaluations involving
children with specific learning
disabilities is equivalent to the
percentage of all children served under
Part B of the Act with specific learning
disabilities, then the final regulations
will affect approximately 816,000
evaluations each year. Depending on the
criteria adopted by their States pursuant
to § 300.307(a), public agencies could
realize savings under the final
regulations by reducing the amount of a
school psychologist’s time involved in
conducting cognitive assessments that
would have been needed to document
an IQ discrepancy. However, these
savings could be offset by increased
costs associated with documenting
student achievement through regular
formal assessments of their progress, as
required under § 300.309(b).
Although the cost of evaluating
children suspected of having specific
learning disabilities might be affected by
the final regulations, the Department
expects that the most significant
benefits of the changes will be achieved
through improved identification of
children suspected of having specific
learning disabilities. By requiring that
States permit alternatives to an IQ-
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discrepancy criterion, the final
regulations facilitate more appropriate
and timely identification of children
with specific learning disabilities, so
that they can benefit from research-
based interventions that have been
shown to produce better achievement
and behavioral outcomes.
The final regulations may impose
additional costs on small public
agencies that currently lack capacity to
conduct repeated assessments of
achievement during instruction and
provide parents with documentation of
the formal assessments of their child’s
progress. These costs are likely to be
offset by reduced need for psychologists
to administer intellectual assessments.
To the extent that small districts may
not employ school psychologists, the
revised criteria may alleviate testing
burdens felt disproportionately by small
districts under an IQ discrepancy
evaluation model.
Transition Requirements
Section 300.321(b) modifies previous
regulations regarding transition services
planning for children with disabilities
who are 16 through 21 years old. Public
agencies are still required to invite other
agencies that are likely to be responsible
for providing or paying for transition
services to the child’s IEP Team
meeting. If the invited agency does not
send a representative, public agencies
are no longer required to take additional
steps to obtain the participation of those
agencies in the planning of transition, as
required under former
§ 300.344(b)(3)(ii).
Public agencies will realize savings
from the change to the extent that they
will not have to continue to contact
agencies that declined to participate in
IEP Team meetings on transition
planning. In school year 2006–2007, we
project that public agencies will
conduct 1.193 million meetings for
children with disabilities who are 16
through 21 years old. We used data from
the
National Longitudinal Transition
Study 2
(NLTS2) on school contacts of
outside agency personnel to project the
number of instances in which outside
agencies would be invited to IEP Team
meetings during the 2006–2007 school
year. Based on these data, we project
that schools will invite 1.492 million
personnel from other agencies to IEP
Team meetings for these students during
the 2006–2007 school year. The NLTS2
also collected data on the percentage of
children with a transition plan for
whom outside agency staff were actively
involved in transition planning. Based
on these data, we project that 432,800
(29 percent) of the contacts will result
in the active participation of outside
agency personnel in transition planning
for children with disabilities who are
age 16 through 21.
We base our estimate of the savings
from the change on the projected
1,059,200 (71 percent) instances in
which outside agencies will not
participate in transition planning
despite school contacts that, under the
previous regulations, would have
included both an invitation to
participate in the child’s IEP Team
meeting and additional follow-up
attempts. If public agencies made only
one additional attempt to contact the
outside agency and each attempt
required 15 minutes of administrative
personnel time, then the change will
save $6.6 million (based on an average
hourly compensation for office and
administrative support staff of $25).
Studies of best practices conducted by
the National Center on Secondary
Education and Transition indicate that
effective transition planning requires
structured interagency collaboration.
Successful approaches cited in the
studies included memoranda of
understanding between relevant
agencies and interagency teams or
coordinators to ensure that educators,
State agency personnel and other
community service providers share
information with parents and children
with disabilities. The previous
regulations focused on administrative
contact instead of active strategic
partnerships between agencies that
facilitate seamless transitions for
children with disabilities between
school and adult settings. For this
reason, the Department believes that the
elimination of the non-statutory
requirement that public agencies make
additional attempts to contact other
agencies will reduce administrative
burden and allow public agencies to
focus their efforts on interagency
collaborative transition planning for
children with disabilities.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collections of
information in these final regulations at
the end of the affected sections of the
regulations.
These final regulations include 9
information collection requirements
associated with the following
provisions: §§ 300.100 through 300.176,
§ 300.182, § 300.199, §§ 300.201 through
300.213, § 300.224, § 300.226,
§§ 300.506 through 300.507, § 300.511,
§§ 300.601 through 300.602, § 300.640,
§ 300.704, and § 300.804. A description
of these provisions is given below with
an estimate of the annual recordkeeping
burden. Included in the estimate is the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
each collection of information.
Collection of Information: Annual
State Application under Part B of the
Act. §§ 300.100 through 300.176,
§ 300.182, and § 300.804. Each State is
eligible for assistance under Part B of
the Act for a fiscal year if the State
submits a plan that provides assurances
to the Secretary that the State has in
effect policies and procedures to ensure
that the State meets the eligibility
criteria under Part B of the Act and
these final regulations. Under the Act,
States are no longer required to have on
file with the Secretary policies and
procedures to demonstrate to the
satisfaction of the Secretary that the
State meets specific conditions for
assistance under Part B of the Act.
Information collection 1820–0030 has
been revised to reflect this change in the
Act and these regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average twelve hours for
each response for 60 respondents,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0030 is estimated to be
720 hours.
Collection of Information: Part B State
Performance Plan (SPP) and Annual
Performance Report (APR). §§ 300.600
through 300.602. Each State must have
in place, not later than one year after the
date of enactment of the Act, a
performance plan that evaluates the
State’s efforts to implement the
requirements and purposes of Part B of
the Act and these final regulations and
describe how the State will improve
such implementation. Each State shall
report annually to the public on the
performance of each LEA located in the
State on the targets in the State’s
performance plan. The State must report
annually to the Secretary on the
performance of the State under the
State’s performance plan.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 325 hours for
each response for 60 respondents,
including the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
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data needed, and completing and
reviewing the collection of information.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0624 is estimated to be
19,500 hours.
Collection of Information: Report of
Children with Disabilities Receiving
Special Education under Part B of the
Individuals with Disabilities Education
Act. §§ 300.640 through 300.645. Each
State that receives assistance under Part
B of the Act shall provide data each year
to the Secretary and the public on
children with disabilities by race/
ethnicity, disability, gender, and limited
English proficiency status receiving
special education and related services in
each State.
Annual reporting and recordkeeping
burden for this collection is estimated to
average 9 hours for each of 60 State
agencies and 2 hours for LEAs in each
State. Thus, the total annual reporting
and recordkeeping burden for collection
1820–0043 is 33,276 hours.
Collection of Information: Report of
Children with Disabilities Subject to
Disciplinary Removal. § 300.640. Each
State must provide data to the Secretary
and the public by race, ethnicity,
limited English proficiency status,
gender, and disability category on
children with disabilities who are
removed to an interim alternative
educational setting and the acts or items
precipitating those removals. Data must
also be reported by race, ethnicity,
limited English proficiency status,
gender, and disability category on the
number of children with disabilities
who are subject to long-term
suspensions or expulsions. In addition,
data must be reported on the number
and percentage of children with
disabilities who are removed to
alternative educational settings or
expelled as compared to children
without disabilities, and on the
incidence and duration of disciplinary
actions, including suspensions of one
day or more. Information collection
1820–0621 has been revised to reflect
the new statutory requirements and the
final regulations.
Annual reporting and record keeping
burden for this collection of information
is estimated to average 17.5 hours for
each of an average of 260 LEAs per State
to collect, review, and report the data
and 74 hours per State agency (60) to
collect, maintain, and report these data.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0621 for all States (60)
is estimated to be 277,440 hours.
Collection of Information: Personnel
(in Full-Time Equivalency of
Assignments) Employed to Provide
Special Education and Related Services
for Children with Disabilities. § 300.640,
§ 300.642, and § 300.645. Each LEA
must ensure that all personnel are
appropriately and adequately prepared
and each SEA must establish and
maintain qualifications to ensure that
personnel are appropriately and
adequately prepared and trained,
including that those personnel have the
content knowledge and skills to serve
children with disabilities. To help
ensure that these requirements are met,
the Secretary must collect data that can
be used to monitor these requirements.
Information collection 1820–0518 has
been revised to reflect the new statutory
requirements and the final regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 0.5 hours for
each of an average of 260 LEAs per State
and 2.5 hours for each of 60 State
agencies. Thus, the total annual
reporting and recordkeeping burden for
information collection 1820–0518 for all
States is 7,950 hours.
Collection of Information: Report of
Children with Disabilities Exiting
Special Education. § 300.640. Each State
must report to the Secretary children by
race, ethnicity, limited English
proficiency status, gender, and
disability category, the number of
children with disabilities aged 14
through 21 who stopped receiving
special education and related services
because of program completion
(including graduation with a regular
secondary school diploma), or other
reasons, and the reasons why those
children stopped receiving special
education and related services.
Information collection 1820–0521 has
been revised to reflect the new statutory
requirements and the final regulations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 6 hours for each
of an average of 260 LEAs per State and
11 hours for each of 60 State agencies.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0521 for all States is
94,260 hours.
Collection of Information: Part B,
Individuals with Disabilities Education
Act Implementation of FAPE
Requirements. § 300.640. Each State
must provide to the Secretary and the
public data on children with disabilities
by race, ethnicity, limited English
proficiency status, gender, and
disability category who are receiving a
free appropriate public education,
participating in regular education, in
separate classes, separate schools or
facilities, or public or private residential
facilities. Information collection 1820–
0517 has been revised to reflect the new
statutory requirement.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 27 hours for each
of an average of 260 LEAs per State and
28 hours for each of 60 State agencies.
Thus, the total annual reporting and
recordkeeping burden for information
collection 1820–0517 for all States is
422,880 hours.
Collection of Information: Report of
Dispute Resolution Under Part B of the
Individuals with Disabilities Education
Act: Complaints, Mediations, and Due
Process Hearings. § 300.640. Each State
must report to the Secretary and the
public, the number of due process
complaints filed under section 615 of
the Act and the number of hearings
conducted; the number of hearings
requested under section 615(k) of the
Act and the number of changes in
placement ordered as a result of those
hearings; and the number of mediations
held and the number of settlement
agreements reached through those
mediations.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to average 70 hours for each
of 60 State agencies. Thus, the total
annual reporting and recordkeeping
burden for information collection 1820–
0677 is estimated to be 4,200 hours.
Collection of Information: State and
LEA Record Keeping and Reporting
Requirements under Part B. § 300.132,
§§ 300.134 through 300.136, §§ 300.151
through 300.153, §§ 300.201 through
300.213, § 300.224, § 300.226, § 300.504,
§ 300.506, § 300.507, § 300.511, and
§ 300.704. The Act requires States and
LEAs to gather, maintain, and report
various information and data, but the
Act does not require this information
and data to be submitted to the
Department. In the NPRM, these
requirements were reflected in separate
information collections. For the purpose
of clarity and efficiency we have
combined these separate collections of
information into one collection that
reflects all the record keeping and
reporting that must be completed at the
State or LEA level, which do not require
reporting to the Department. The
following collections of information
referenced in the NPRM are combined
into information collection 1820–0600:
LEA Application under Part B of the
Act; List of Hearing Officers and
Mediators, Complaint Procedures; LEA
Consultation with Private School
Representatives; Private School
Complaint of Noncompliance with
Consultation Requirements;
Identification of State-Imposed Rules,
Regulations, or Policies; Number of
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Children with Disabilities Enrolled in
Private Schools by Their Parents; State
Plan for High Cost Fund; Free and Low-
Cost Legal Services; and Confidentiality
Pledge Prior to the Commencement of
Mediation.
Annual reporting and recordkeeping
burden for this collection of information
is estimated to approximately 6 hours
for 79,194 respondents (LEAs and State
agencies). The total annual reporting
and recordkeeping burden for
information collection 1820–0600 for all
States and LEAs is 472,651 hours.
Intergovernmental Review
This program is subject to the
requirements of Executive Order 12372
and the regulations in 34 CFR part 79.
The objective of the Executive order is
to foster an intergovernmental
partnership and a strengthened
federalism by relying on processes
developed by State and local
governments for coordination and
review of proposed Federal financial
assistance.
In accordance with this order, we
intend this document to provide early
notification of the Department’s specific
plans and actions for this program.
Assessment of Educational Impact
In the NPRM published in the
Federal
Register
on June 21, 2005, we requested
comments on whether the proposed
regulations would require transmission
of information that any other agency or
authority of the United States gathers or
makes available.
Based on the response to the NPRM
and on our own review, we have
determined that these final regulations
do not require transmission of
information that any other agency or
authority of the United States gathers or
makes available.
Electronic Access to this Document
You may view this document, as well
as all other Department of Education
documents published in the
Federal
Register
, in text or portable document
format (PDF) at the following site:
http://www.ed.gov/news/fedregister
.
To use PDF you must have Adobe
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Note:
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. Free Internet access to the official
edition of the
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and the Code
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index.html
.
List of Subjects
34 CFR Part 300
Administrative practice and
procedure, Education of individuals
with disabilities, Elementary and
secondary education, Equal educational
opportunity, Grant programs’education,
Privacy, Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 301
Education of individuals with
disabilities, Elementary and secondary
education, Equal educational
opportunity, Grant programs—
education, Infants and children,
Reporting and recordkeeping
requirements.
Dated: July 31, 2006.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in this
preamble, and under the authority of 20
U.S.C. 1221(e)(3) and 1406, the
Secretary amends title 34 of the Code of
Federal Regulations as follows:
■
1. Part 300 is revised to read as
follows:
PART 300—ASSISTANCE TO STATES
FOR THE EDUCATION OF CHILDREN
WITH DISABILITIES
Subpart A—General
Purposes and Applicability
Sec.
300.1 Purposes.
300.2 Applicability of this part to State and
local agencies.
Definitions Used in This Part
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education
teachers.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program
team.
300.24 Individualized family service plan.
300.25 Infant or toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information
center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Scientifically based research.
300.36 Secondary school.
300.37 Services plan.
300.38 Secretary.
300.39 Special education.
300.40 State.
300.41 State educational agency.
300.42 Supplementary aids and services.
300.43 Transition services.
300.44 Universal design.
300.45 Ward of the State.
Subpart B—State Eligibility
General
300.100 Eligibility for assistance.
FAPE Requirements
300.101 Free appropriate public education
(FAPE).
300.102 Limitation—exception to FAPE for
certain ages.
Other FAPE Requirements
300.103 FAPE—methods and payments.
300.104 Residential placement.
300.105 Assistive technology.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal
(FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs
(IEP).
300.113 Routine checking of hearing aids
and external components of surgically
implanted medical devices.
Least Restrictive Environment (LRE)
300.114 LRE requirements.
300.115 Continuum of alternative
placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private
institutions.
300.119 Technical assistance and training
activities.
300.120 Monitoring activities.
Additional Eligibility Requirements
300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally
identifiable information.
300.124 Transition of children from the Part
C program to preschool programs.
300.125–300.128 [Reserved]
Children in Private Schools
300.129 State responsibility regarding
children in private schools.
Children With Disabilities Enrolled by Their
Parents in Private Schools
300.130 Definition of parentally-placed
private school children with disabilities.
300.131 Child find for parentally-placed
private school children with disabilities.
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300.132 Provision of services for parentally-
placed private school children with
disabilities—basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and
transportation.
300.140 Due process complaints and State
complaints.
300.141 Requirement that funds not benefit
a private school.
300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.
Children With Disabilities in Private Schools
Placed or Referred by Public Agencies
300.145 Applicability of §§ 300.146 through
300.147.
300.146 Responsibility of SEA.
300.147 Implementation by SEA.
Children With Disabilities Enrolled by Their
Parents in Private Schools When FAPE is at
Issue
300.148 Placement of children by parents
when FAPE is at issue.
SEA Responsibility for General Supervision
and Implementation of Procedural
Safeguards
300.149 SEA responsibility for general
supervision.
300.150 SEA implementation of procedural
safeguards.
State Complaint Procedures
300.151 Adoption of State complaint
procedures.
300.152 Minimum State complaint
procedures.
300.153 Filing a complaint.
Methods of Ensuring Services
300.154 Methods of ensuring services.
Additional Eligibility Requirements
300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.158–300.161 [Reserved]
300.162 Supplementation of State, local,
and other Federal funds.
300.163 Maintenance of State financial
support.
300.164 Waiver of requirement regarding
supplementing and not supplanting with
Part B funds.
300.165 Public participation.
300.166 Rule of construction.
State Advisory Panel
300.167 State advisory panel.
300.168 Membership.
300.169 Duties.
Other Provisions Required for State
Eligibility
300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B
funds.
300.172 Access to instructional materials.
300.173 Overidentification and
disproportionality.
300.174 Prohibition on mandatory
medication.
300.175 SEA as provider of FAPE or direct
services.
300.176 Exception for prior State plans.
300.177 States’ sovereign immunity.
Department Procedures
300.178 Determination by the Secretary that
a State is eligible to receive a grant.
300.179 Notice and hearing before
determining that a State is not eligible to
receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal
programs.
By-pass for Children in Private Schools
300.190 By-pass—general.
300.191 Provisions for services under a by-
pass.
300.192 Notice of intent to implement a by-
pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
State Administration
300.199 State administration.
Subpart C—Local Educational Agency
Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in
certain fiscal years.
300.206 Schoolwide programs under title I
of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and
their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory
children with disabilities.
300.214–300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency
in case of ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing
eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D—Evaluations, Eligibility
Determinations, Individualized Education
Programs, and Educational Placements
Parental Consent
300.300 Parental consent.
Evaluations and Reevaluations
300.301 Initial evaluations.
300.302 Screening for instructional
purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for
evaluations and reevaluations.
300.306 Determination of eligibility.
Additional Procedures for Identifying
Children With Specific Learning Disabilities
300.307 Specific learning disabilities.
300.308 Additional group members.
300.309 Determining the existence of a
specific learning disability.
300.310 Observation.
300.311 Specific documentation for the
eligibility determination.
Individualized Education Programs
300.320 Definition of individualized
education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.
Development of IEP
300.324 Development, review, and revision
of IEP.
300.325 Private school placements by
public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting
participation.
Subpart E—Procedural Safeguards
Due Process Procedures for Parents and
Children
300.500 Responsibility of SEA and other
public agencies.
300.501 Opportunity to examine records;
parent participation in meetings.
300.502 Independent educational
evaluation.
300.503 Prior notice by the public agency;
content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal;
impartial review.
300.515 Timelines and convenience of
hearings and reviews.
300.516 Civil action.
300.517 Attorneys’ fees.
300.518 Child’s status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of
majority.
300.521–300.529 [Reserved]
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Discipline Procedures
300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not
determined eligible for special education
and related services.
300.535 Referral to and action by law
enforcement and judicial authorities.
300.536 Change of placement because of
disciplinary removals.
300.537 State enforcement mechanisms.
300.538–300.599 [Reserved]
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program Information
Monitoring, Technical Assistance, and
Enforcement
300.600 State monitoring and enforcement.
300.601 State performance plans and data
collection.
300.602 State use of targets and reporting.
300.603 Secretary’s review and
determination regarding State
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency
responsibility.
300.608 State enforcement.
300.609 Rule of construction.
Confidentiality of Information
300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of
information.
300.617 Fees.
300.618 Amendment of records at parent’s
request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children’s rights.
300.626 Enforcement.
300.627 Department use of personally
identifiable information.
Reports—Program Information
300.640 Annual report of children served—
report requirement.
300.641 Annual report of children served—
information required in the report.
300.642 Data reporting.
300.643 Annual report of children served—
certification.
300.644 Annual report of children served—
criteria for counting children.
300.645 Annual report of children served—
other responsibilities of the SEA.
300.646 Disproportionality.
Subpart G—Authorization, Allotment, Use
of Funds, Authorization of Appropriations
Allotments, Grants, and Use of Funds
300.700 Grants to States.
300.701 Outlying areas, freely associated
States, and the Secretary of the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to LEAs.
300.706 [Reserved]
Secretary of the Interior
300.707 Use of amounts by Secretary of the
Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of funds under Part B of the
Act.
300.711 Early intervening services.
300.712 Payments for education and
services for Indian children with
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
Definitions That Apply to This Subpart
300.717 Definitions applicable to
allotments, grants, and use of funds.
Acquisition of Equipment and Construction
or Alteration of Facilities
300.718 Acquisition of equipment and
construction or alteration of facilities.
Subpart H—Preschool Grants for Children
With Disabilities
300.800 In general.
300.801–300.802 [Reserved]
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 [Reserved]
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to LEAs.
300.816 Allocations to LEAs.
300.817 Reallocation of LEA funds.
300.818 Part C of the Act inapplicable.
Appendix A to Part 300—Excess Costs
Calculation
Appendix B to Part 300—Proportionate Share
Calculation
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard (NIMAS)
Appendix D to Part 300—Maintenance of
Effort and Early Intervening Services
Appendix E to Part 300—Index for IDEA—
Part B Regulations (34 CFR Part 300)
Authority:
20 U.S.C. 1221e–3, 1406, 1411–
1419, unless otherwise noted.
Subpart A—General
Purposes and Applicability
§ 300.1 Purposes.
The purposes of this part are—
(a) To ensure that all children with
disabilities have available to them a free
appropriate public education that
emphasizes special education and
related services designed to meet their
unique needs and prepare them for
further education, employment, and
independent living;
(b) To ensure that the rights of
children with disabilities and their
parents are protected;
(c) To assist States, localities,
educational service agencies, and
Federal agencies to provide for the
education of all children with
disabilities; and
(d) To assess and ensure the
effectiveness of efforts to educate
children with disabilities.
(Authority: 20 U.S.C. 1400(d))
§ 300.2 Applicability of this part to State
and local agencies.
(a)
States.
This part applies to each
State that receives payments under Part
B of the Act, as defined in § 300.4.
(b)
Public agencies within the State.
The provisions of this part—
(1) Apply to all political subdivisions
of the State that are involved in the
education of children with disabilities,
including:
(i) The State educational agency
(SEA).
(ii) Local educational agencies (LEAs),
educational service agencies (ESAs),
and public charter schools that are not
otherwise included as LEAs or ESAs
and are not a school of an LEA or ESA.
(iii) Other State agencies and schools
(such as Departments of Mental Health
and Welfare and State schools for
children with deafness or children with
blindness).
(iv) State and local juvenile and adult
correctional facilities; and
(2) Are binding on each public agency
in the State that provides special
education and related services to
children with disabilities, regardless of
whether that agency is receiving funds
under Part B of the Act.
(c)
Private schools and facilities.
Each
public agency in the State is responsible
for ensuring that the rights and
protections under Part B of the Act are
given to children with disabilities—
(1) Referred to or placed in private
schools and facilities by that public
agency; or
(2) Placed in private schools by their
parents under the provisions of
§ 300.148.
(Authority: 20 U.S.C. 1412)
Definitions Used in This Part
§ 300.4 Act.
Act
means the Individuals with
Disabilities Education Act, as amended.
(Authority: 20 U.S.C. 1400(a))
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§ 300.5 Assistive technology device.
Assistive technology device
means
any item, piece of equipment, or
product system, whether acquired
commercially off the shelf, modified, or
customized, that is used to increase,
maintain, or improve the functional
capabilities of a child with a disability.
The term does not include a medical
device that is surgically implanted, or
the replacement of such device.
(Authority: 20 U.S.C. 1401(1))
§ 300.6 Assistive technology service.
Assistive technology service
means
any service that directly assists a child
with a disability in the selection,
acquisition, or use of an assistive
technology device. The term includes—
(a) The evaluation of the needs of a
child with a disability, including a
functional evaluation of the child in the
child’s customary environment;
(b) Purchasing, leasing, or otherwise
providing for the acquisition of assistive
technology devices by children with
disabilities;
(c) Selecting, designing, fitting,
customizing, adapting, applying,
maintaining, repairing, or replacing
assistive technology devices;
(d) Coordinating and using other
therapies, interventions, or services
with assistive technology devices, such
as those associated with existing
education and rehabilitation plans and
programs;
(e) Training or technical assistance for
a child with a disability or, if
appropriate, that child’s family; and
(f) Training or technical assistance for
professionals (including individuals
providing education or rehabilitation
services), employers, or other
individuals who provide services to,
employ, or are otherwise substantially
involved in the major life functions of
that child.
(Authority: 20 U.S.C. 1401(2))
§ 300.7 Charter school.
Charter school
has the meaning given
the term in section 5210(1) of the
Elementary and Secondary Education
Act of 1965, as amended, 20 U.S.C. 6301
et seq.
(ESEA).
(Authority: 20 U.S.C. 7221i(1))
§ 300.8 Child with a disability.
(a)
General.
(1)
Child with a disability
means a child evaluated in accordance
with §§ 300.304 through 300.311 as
having mental retardation, a hearing
impairment (including deafness), a
speech or language impairment, a visual
impairment (including blindness), a
serious emotional disturbance (referred
to in this part as ‘‘emotional
disturbance’’), an orthopedic
impairment, autism, traumatic brain
injury, an other health impairment, a
specific learning disability, deaf-
blindness, or multiple disabilities, and
who, by reason thereof, needs special
education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of
this section, if it is determined, through
an appropriate evaluation under
§§ 300.304 through 300.311, that a child
has one of the disabilities identified in
paragraph (a)(1) of this section, but only
needs a related service and not special
education, the child is not a child with
a disability under this part.
(ii) If, consistent with § 300.39(a)(2),
the related service required by the child
is considered special education rather
than a related service under State
standards, the child would be
determined to be a child with a
disability under paragraph (a)(1) of this
section.
(b)
Children aged three through nine
experiencing developmental delays.
Child with a disability
for children aged
three through nine (or any subset of that
age range, including ages three through
five), may, subject to the conditions
described in § 300.111(b), include a
child—
(1) Who is experiencing
developmental delays, as defined by the
State and as measured by appropriate
diagnostic instruments and procedures,
in one or more of the following areas:
Physical development, cognitive
development, communication
development, social or emotional
development, or adaptive development;
and
(2) Who, by reason thereof, needs
special education and related services.
(c)
Definitions of disability terms.
The
terms used in this definition of a child
with a disability are defined as follows:
(1)(i)
Autism
means a developmental
disability significantly affecting verbal
and nonverbal communication and
social interaction, generally evident
before age three, that adversely affects a
child’s educational performance. Other
characteristics often associated with
autism are engagement in repetitive
activities and stereotyped movements,
resistance to environmental change or
change in daily routines, and unusual
responses to sensory experiences.
(ii) Autism does not apply if a child’s
educational performance is adversely
affected primarily because the child has
an emotional disturbance, as defined in
paragraph (c)(4) of this section.
(iii) A child who manifests the
characteristics of autism after age three
could be identified as having autism if
the criteria in paragraph (c)(1)(i) of this
section are satisfied.
(2)
Deaf-blindness
means concomitant
hearing and visual impairments, the
combination of which causes such
severe communication and other
developmental and educational needs
that they cannot be accommodated in
special education programs solely for
children with deafness or children with
blindness.
(3)
Deafness
means a hearing
impairment that is so severe that the
child is impaired in processing
linguistic information through hearing,
with or without amplification that
adversely affects a child’s educational
performance.
(4)(i)
Emotional disturbance
means a
condition exhibiting one or more of the
following characteristics over a long
period of time and to a marked degree
that adversely affects a child’s
educational performance:
(A) An inability to learn that cannot
be explained by intellectual, sensory, or
health factors.
(B) An inability to build or maintain
satisfactory interpersonal relationships
with peers and teachers.
(C) Inappropriate types of behavior or
feelings under normal circumstances.
(D) A general pervasive mood of
unhappiness or depression.
(E) A tendency to develop physical
symptoms or fears associated with
personal or school problems.
(ii) Emotional disturbance includes
schizophrenia. The term does not apply
to children who are socially
maladjusted, unless it is determined
that they have an emotional disturbance
under paragraph (c)(4)(i) of this section.
(5)
Hearing impairment
means an
impairment in hearing, whether
permanent or fluctuating, that adversely
affects a child’s educational
performance but that is not included
under the definition of deafness in this
section.
(6)
Mental retardation
means
significantly subaverage general
intellectual functioning, existing
concurrently with deficits in adaptive
behavior and manifested during the
developmental period, that adversely
affects a child’s educational
performance.
(7)
Multiple disabilities
means
concomitant impairments (such as
mental retardation-blindness or mental
retardation-orthopedic impairment), the
combination of which causes such
severe educational needs that they
cannot be accommodated in special
education programs solely for one of the
impairments. Multiple disabilities does
not include deaf-blindness.
(8)
Orthopedic impairment
means a
severe orthopedic impairment that
adversely affects a child’s educational
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performance. The term includes
impairments caused by a congenital
anomaly, impairments caused by
disease (e.g., poliomyelitis, bone
tuberculosis), and impairments from
other causes (e.g., cerebral palsy,
amputations, and fractures or burns that
cause contractures).
(9)
Other health impairment
means
having limited strength, vitality, or
alertness, including a heightened
alertness to environmental stimuli, that
results in limited alertness with respect
to the educational environment, that—
(i) Is due to chronic or acute health
problems such as asthma, attention
deficit disorder or attention deficit
hyperactivity disorder, diabetes,
epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis,
rheumatic fever, sickle cell anemia, and
Tourette syndrome; and
(ii) Adversely affects a child’s
educational performance.
(10)
Specific learning disability
—(i)
General.
Specific learning disability
means a disorder in one or more of the
basic psychological processes involved
in understanding or in using language,
spoken or written, that may manifest
itself in the imperfect ability to listen,
think, speak, read, write, spell, or to do
mathematical calculations, including
conditions such as perceptual
disabilities, brain injury, minimal brain
dysfunction, dyslexia, and
developmental aphasia.
(ii)
Disorders not included.
Specific
learning disability does not include
learning problems that are primarily the
result of visual, hearing, or motor
disabilities, of mental retardation, of
emotional disturbance, or of
environmental, cultural, or economic
disadvantage.
(11)
Speech or language impairment
means a communication disorder, such
as stuttering, impaired articulation, a
language impairment, or a voice
impairment, that adversely affects a
child’s educational performance.
(12)
Traumatic brain injury
means an
acquired injury to the brain caused by
an external physical force, resulting in
total or partial functional disability or
psychosocial impairment, or both, that
adversely affects a child’s educational
performance. Traumatic brain injury
applies to open or closed head injuries
resulting in impairments in one or more
areas, such as cognition; language;
memory; attention; reasoning; abstract
thinking; judgment; problem-solving;
sensory, perceptual, and motor abilities;
psychosocial behavior; physical
functions; information processing; and
speech. Traumatic brain injury does not
apply to brain injuries that are
congenital or degenerative, or to brain
injuries induced by birth trauma.
(13)
Visual impairment including
blindness
means an impairment in
vision that, even with correction,
adversely affects a child’s educational
performance. The term includes both
partial sight and blindness.
(Authority: 20 U.S.C. 1401(3); 1401(30))
§ 300.9 Consent.
Consent
means that—
(a) The parent has been fully informed
of all information relevant to the activity
for which consent is sought, in his or
her native language, or other mode of
communication;
(b) The parent understands and agrees
in writing to the carrying out of the
activity for which his or her consent is
sought, and the consent describes that
activity and lists the records (if any) that
will be released and to whom; and
(c)(1) The parent understands that the
granting of consent is voluntary on the
part of the parent and may be revoked
at anytime.
(2) If a parent revokes consent, that
revocation is not retroactive (i.e., it does
not negate an action that has occurred
after the consent was given and before
the consent was revoked).
(Authority: 20 U.S.C. 1414(a)(1)(D))
§ 300.10 Core academic subjects.
Core academic subjects means
English, reading or language arts,
mathematics, science, foreign languages,
civics and government, economics, arts,
history, and geography.
(Authority: 20 U.S.C. 1401(4))
§ 300.11 Day; business day; school day.
(a)
Day
means calendar day unless
otherwise indicated as business day or
school day.
(b)
Business day
means Monday
through Friday, except for Federal and
State holidays (unless holidays are
specifically included in the designation
of business day, as in
§ 300.148(d)(1)(ii)).
(c)(1)
School day
means any day,
including a partial day that children are
in attendance at school for instructional
purposes.
(2)
School day
has the same meaning
for all children in school, including
children with and without disabilities.
(Authority: 20 U.S.C. 1221e–3)
§ 300.12 Educational service agency.
Educational service agency
means—
(a) A regional public multiservice
agency—
(1) Authorized by State law to
develop, manage, and provide services
or programs to LEAs;
(2) Recognized as an administrative
agency for purposes of the provision of
special education and related services
provided within public elementary
schools and secondary schools of the
State;
(b) Includes any other public
institution or agency having
administrative control and direction
over a public elementary school or
secondary school; and
(c) Includes entities that meet the
definition of intermediate educational
unit in section 602(23) of the Act as in
effect prior to June 4, 1997.
(Authority: 20 U.S.C. 1401(5))
§ 300.13 Elementary school.
Elementary school
means a nonprofit
institutional day or residential school,
including a public elementary charter
school, that provides elementary
education, as determined under State
law.
(Authority: 20 U.S.C. 1401(6))
§ 300.14 Equipment.
Equipment
means—
(a) Machinery, utilities, and built-in
equipment, and any necessary
enclosures or structures to house the
machinery, utilities, or equipment; and
(b) All other items necessary for the
functioning of a particular facility as a
facility for the provision of educational
services, including items such as
instructional equipment and necessary
furniture; printed, published and audio-
visual instructional materials;
telecommunications, sensory, and other
technological aids and devices; and
books, periodicals, documents, and
other related materials.
(Authority: 20 U.S.C. 1401(7))
§ 300.15 Evaluation.
Evaluation
means procedures used in
accordance with §§ 300.304 through
300.311 to determine whether a child
has a disability and the nature and
extent of the special education and
related services that the child needs.
(Authority: 20 U.S.C. 1414(a) (c))
§ 300.16 Excess costs.
Excess costs
means those costs that
are in excess of the average annual per-
student expenditure in an LEA during
the preceding school year for an
elementary school or secondary school
student, as may be appropriate, and that
must be computed after deducting—
(a) Amounts received—
(1) Under Part B of the Act;
(2) Under Part A of title I of the ESEA;
and
(3) Under Parts A and B of title III of
the ESEA and;
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(b) Any State or local funds expended
for programs that would qualify for
assistance under any of the parts
described in paragraph (a) of this
section, but excluding any amounts for
capital outlay or debt service. (See
Appendix A to part 300 for an example
of how excess costs must be calculated.)
(Authority: 20 U.S.C. 1401(8))
§ 300.17 Free appropriate public
education.
Free appropriate public education
or
FAPE
means special education and
related services that—
(a) Are provided at public expense,
under public supervision and direction,
and without charge;
(b) Meet the standards of the SEA,
including the requirements of this part;
(c) Include an appropriate preschool,
elementary school, or secondary school
education in the State involved; and
(d) Are provided in conformity with
an individualized education program
(IEP) that meets the requirements of
§§ 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(9))
§ 300.18 Highly qualified special education
teachers.
(a)
Requirements for special
education teachers teaching core
academic subjects.
For any public
elementary or secondary school special
education teacher teaching core
academic subjects, the term
highly
qualified
has the meaning given the
term in section 9101 of the ESEA and 34
CFR 200.56, except that the
requirements for highly qualified also—
(1) Include the requirements
described in paragraph (b) of this
section; and
(2) Include the option for teachers to
meet the requirements of section 9101 of
the ESEA by meeting the requirements
of paragraphs (c) and (d) of this section.
(b)
Requirements for special
education teachers in general.
(1) When
used with respect to any public
elementary school or secondary school
special education teacher teaching in a
State, highly qualified requires that—
(i) The teacher has obtained full State
certification as a special education
teacher (including certification obtained
through alternative routes to
certification), or passed the State special
education teacher licensing
examination, and holds a license to
teach in the State as a special education
teacher, except that when used with
respect to any teacher teaching in a
public charter school, highly qualified
means that the teacher meets the
certification or licensing requirements,
if any, set forth in the State’s public
charter school law;
(ii) The teacher has not had special
education certification or licensure
requirements waived on an emergency,
temporary, or provisional basis; and
(iii) The teacher holds at least a
bachelor’s degree.
(2) A teacher will be considered to
meet the standard in paragraph (b)(1)(i)
of this section if that teacher is
participating in an alternative route to
special education certification program
under which—
(i) The teacher—
(A) Receives high-quality professional
development that is sustained,
intensive, and classroom-focused in
order to have a positive and lasting
impact on classroom instruction, before
and while teaching;
(B) Participates in a program of
intensive supervision that consists of
structured guidance and regular ongoing
support for teachers or a teacher
mentoring program;
(C) Assumes functions as a teacher
only for a specified period of time not
to exceed three years; and
(D) Demonstrates satisfactory progress
toward full certification as prescribed by
the State; and
(ii) The State ensures, through its
certification and licensure process, that
the provisions in paragraph (b)(2)(i) of
this section are met.
(3) Any public elementary school or
secondary school special education
teacher teaching in a State, who is not
teaching a core academic subject, is
highly qualified if the teacher meets the
requirements in paragraph (b)(1) or the
requirements in (b)(1)(iii) and (b)(2) of
this section.
(c)
Requirements for special
education teachers teaching to alternate
achievement standards.
When used
with respect to a special education
teacher who teaches core academic
subjects exclusively to children who are
assessed against alternate achievement
standards established under 34 CFR
200.1(d), highly qualified means the
teacher, whether new or not new to the
profession, may either—
(1) Meet the applicable requirements
of section 9101 of the ESEA and 34 CFR
200.56 for any elementary, middle, or
secondary school teacher who is new or
not new to the profession; or
(2) Meet the requirements of
paragraph (B) or (C) of section 9101(23)
of the ESEA as applied to an elementary
school teacher, or, in the case of
instruction above the elementary level,
meet the requirements of paragraph (B)
or (C) of section 9101(23) of the ESEA
as applied to an elementary school
teacher and have subject matter
knowledge appropriate to the level of
instruction being provided and needed
to effectively teach to those standards,
as determined by the State.
(d)
Requirements for special
education teachers teaching multiple
subjects.
Subject to paragraph (e) of this
section, when used with respect to a
special education teacher who teaches
two or more core academic subjects
exclusively to children with disabilities,
highly qualified means that the teacher
may either—
(1) Meet the applicable requirements
of section 9101 of the ESEA and 34 CFR
200.56(b) or (c);
(2) In the case of a teacher who is not
new to the profession, demonstrate
competence in all the core academic
subjects in which the teacher teaches in
the same manner as is required for an
elementary, middle, or secondary school
teacher who is not new to the profession
under 34 CFR 200.56(c) which may
include a single, high objective uniform
State standard of evaluation (HOUSSE)
covering multiple subjects; or
(3) In the case of a new special
education teacher who teaches multiple
subjects and who is highly qualified in
mathematics, language arts, or science,
demonstrate, not later than two years
after the date of employment,
competence in the other core academic
subjects in which the teacher teaches in
the same manner as is required for an
elementary, middle, or secondary school
teacher under 34 CFR 200.56(c), which
may include a single HOUSSE covering
multiple subjects.
(e)
Separate HOUSSE standards for
special education teachers.
Provided
that any adaptations of the State’s
HOUSSE would not establish a lower
standard for the content knowledge
requirements for special education
teachers and meets all the requirements
for a HOUSSE for regular education
teachers—
(1) A State may develop a separate
HOUSSE for special education teachers;
and
(2) The standards described in
paragraph (e)(1) of this section may
include single HOUSSE evaluations that
cover multiple subjects.
(f)
Rule of construction.
Notwithstanding any other individual
right of action that a parent or student
may maintain under this part, nothing
in this part shall be construed to create
a right of action on behalf of an
individual student or class of students
for the failure of a particular SEA or
LEA employee to be highly qualified, or
to prevent a parent from filing a
complaint under §§ 300.151 through
300.153 about staff qualifications with
the SEA as provided for under this part.
(g)
Applicability of definition to
ESEA; and clarification of new special
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education teacher.
(1) A teacher who is
highly qualified under this section is
considered highly qualified for purposes
of the ESEA.
(2) For purposes of § 300.18(d)(3), a
fully certified regular education teacher
who subsequently becomes fully
certified or licensed as a special
education teacher is a new special
education teacher when first hired as a
special education teacher.
(h)
Private school teachers not
covered.
The requirements in this
section do not apply to teachers hired
by private elementary schools and
secondary schools including private
school teachers hired or contracted by
LEAs to provide equitable services to
parentally-placed private school
children with disabilities under
§ 300.138.
(Authority: 20 U.S.C. 1401(10))
§ 300.19 Homeless children.
Homeless children
has the meaning
given the term
homeless children and
youths
in section 725 (42 U.S.C. 11434a)
of the McKinney-Vento Homeless
Assistance Act, as amended, 42 U.S.C.
11431
et seq.
(Authority: 20 U.S.C. 1401(11))
§ 300.20 Include.
Include
means that the items named
are not all of the possible items that are
covered, whether like or unlike the ones
named.
(Authority: 20 U.S.C. 1221e–3)
§ 300.21 Indian and Indian tribe.
(a)
Indian
means an individual who is
a member of an Indian tribe.
(b)
Indian tribe
means any Federal or
State Indian tribe, band, rancheria,
pueblo, colony, or community,
including any Alaska Native village or
regional village corporation (as defined
in or established under the Alaska
Native Claims Settlement Act, 43 U.S.C.
1601
et seq.
).
(c) Nothing in this definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
tribe that is not listed in the
Federal
Register
list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
(Authority: 20 U.S.C. 1401(12) and (13))
§ 300.22 Individualized education program.
Individualized education program
or
IEP means a written statement for a
child with a disability that is developed,
reviewed, and revised in accordance
with §§ 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(14))
§ 300.23 Individualized education program
team.
Individualized education program
team
or
IEP Team
means a group of
individuals described in § 300.321 that
is responsible for developing, reviewing,
or revising an IEP for a child with a
disability.
(Authority: 20 U.S.C. 1414(d)(1)(B))
§ 300.24 Individualized family service plan.
Individualized family service plan
or
IFSP
has the meaning given the term in
section 636 of the Act.
(Authority: 20 U.S.C. 1401(15))
§ 300.25 Infant or toddler with a disability.
Infant or toddler with a disability
—
(a) Means an individual under three
years of age who needs early
intervention services because the
individual—
(1) Is experiencing developmental
delays, as measured by appropriate
diagnostic instruments and procedures
in one or more of the areas of cognitive
development, physical development,
communication development, social or
emotional development, and adaptive
development; or
(2) Has a diagnosed physical or
mental condition that has a high
probability of resulting in
developmental delay; and
(b) May also include, at a State’s
discretion—
(1) At-risk infants and toddlers; and
(2) Children with disabilities who are
eligible for services under section 619
and who previously received services
under Part C of the Act until such
children enter, or are eligible under
State law to enter, kindergarten or
elementary school, as appropriate,
provided that any programs under Part
C of the Act serving such children shall
include—
(i) An educational component that
promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills; and
(ii) A written notification to parents of
their rights and responsibilities in
determining whether their child will
continue to receive services under Part
C of the Act or participate in preschool
programs under section 619.
(Authority: 20 U.S.C. 1401(16) and 1432(5))
§ 300.26 Institution of higher education.
Institution of higher education
—
(a) Has the meaning given the term in
section 101 of the Higher Education Act
of 1965, as amended, 20 U.S.C. 1021
et
seq.
(HEA); and
(b) Also includes any community
college receiving funds from the
Secretary of the Interior under the
Tribally Controlled Community College
or University Assistance Act of 1978, 25
U.S.C. 1801,
et seq.
(Authority: 20 U.S.C. 1401(17))
§ 300.27 Limited English proficient.
Limited English proficient
has the
meaning given the term in section
9101(25) of the ESEA.
(Authority: 20 U.S.C. 1401(18))
§ 300.28 Local educational agency.
(a)
General. Local educational agency
or
LEA
means a public board of
education or other public authority
legally constituted within a State for
either administrative control or
direction of, or to perform a service
function for, public elementary or
secondary schools in a city, county,
township, school district, or other
political subdivision of a State, or for a
combination of school districts or
counties as are recognized in a State as
an administrative agency for its public
elementary schools or secondary
schools.
(b)
Educational service agencies and
other public institutions or agencies.
The term includes—
(1) An educational service agency, as
defined in § 300.12; and
(2) Any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public nonprofit charter school that is
established as an LEA under State law.
(c)
BIA funded schools.
The term
includes an elementary school or
secondary school funded by the Bureau
of Indian Affairs, and not subject to the
jurisdiction of any SEA other than the
Bureau of Indian Affairs, but only to the
extent that the inclusion makes the
school eligible for programs for which
specific eligibility is not provided to the
school in another provision of law and
the school does not have a student
population that is smaller than the
student population of the LEA receiving
assistance under the Act with the
smallest student population.
(Authority: 20 U.S.C. 1401(19))
§ 300.29 Native language.
(a)
Native language
, when used with
respect to an individual who is limited
English proficient, means the following:
(1) The language normally used by
that individual, or, in the case of a
child, the language normally used by
the parents of the child, except as
provided in paragraph (a)(2) of this
section.
(2) In all direct contact with a child
(including evaluation of the child), the
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language normally used by the child in
the home or learning environment.
(b) For an individual with deafness or
blindness, or for an individual with no
written language, the mode of
communication is that normally used by
the individual (such as sign language,
Braille, or oral communication).
(Authority: 20 U.S.C. 1401(20))
§ 300.30 Parent.
(a)
Parent
means—
(1) A biological or adoptive parent of
a child;
(2) A foster parent, unless State law,
regulations, or contractual obligations
with a State or local entity prohibit a
foster parent from acting as a parent;
(3) A guardian generally authorized to
act as the child’s parent, or authorized
to make educational decisions for the
child (but not the State if the child is a
ward of the State);
(4) An individual acting in the place
of a biological or adoptive parent
(including a grandparent, stepparent, or
other relative) with whom the child
lives, or an individual who is legally
responsible for the child’s welfare; or
(5) A surrogate parent who has been
appointed in accordance with § 300.519
or section 639(a)(5) of the Act.
(b) (1) Except as provided in
paragraph (b)(2) of this section, the
biological or adoptive parent, when
attempting to act as the parent under
this part and when more than one party
is qualified under paragraph (a) of this
section to act as a parent, must be
presumed to be the parent for purposes
of this section unless the biological or
adoptive parent does not have legal
authority to make educational decisions
for the child.
(2) If a judicial decree or order
identifies a specific person or persons
under paragraphs (a)(1) through (4) of
this section to act as the ‘‘parent’’ of a
child or to make educational decisions
on behalf of a child, then such person
or persons shall be determined to be the
‘‘parent’’ for purposes of this section.
(Authority: 20 U.S.C. 1401(23))
§ 300.31 Parent training and information
center.
Parent training and information
center
means a center assisted under
sections 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
§ 300.32 Personally identifiable.
Personally identifiable
means
information that contains—
(a) The name of the child, the child’s
parent, or other family member;
(b) The address of the child;
(c) A personal identifier, such as the
child’s social security number or
student number; or
(d) A list of personal characteristics or
other information that would make it
possible to identify the child with
reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
§ 300.33 Public agency.
Public agency
includes the SEA,
LEAs, ESAs, nonprofit public charter
schools that are not otherwise included
as LEAs or ESAs and are not a school
of an LEA or ESA, and any other
political subdivisions of the State that
are responsible for providing education
to children with disabilities.
(Authority: 20 U.S.C. 1412(a)(11))
§ 300.34 Related services.
(a)
General. Related services
means
transportation and such developmental,
corrective, and other supportive services
as are required to assist a child with a
disability to benefit from special
education, and includes speech-
language pathology and audiology
services, interpreting services,
psychological services, physical and
occupational therapy, recreation,
including therapeutic recreation, early
identification and assessment of
disabilities in children, counseling
services, including rehabilitation
counseling, orientation and mobility
services, and medical services for
diagnostic or evaluation purposes.
Related services also include school
health services and school nurse
services, social work services in schools,
and parent counseling and training.
(b)
Exception; services that apply to
children with surgically implanted
devices, including cochlear implants.
(1) Related services do not include a
medical device that is surgically
implanted, the optimization of that
device’s functioning (e.g., mapping),
maintenance of that device, or the
replacement of that device.
(2) Nothing in paragraph (b)(1) of this
section—
(i) Limits the right of a child with a
surgically implanted device (e.g.,
cochlear implant) to receive related
services (as listed in paragraph (a) of
this section) that are determined by the
IEP Team to be necessary for the child
to receive FAPE.
(ii) Limits the responsibility of a
public agency to appropriately monitor
and maintain medical devices that are
needed to maintain the health and
safety of the child, including breathing,
nutrition, or operation of other bodily
functions, while the child is transported
to and from school or is at school; or
(iii) Prevents the routine checking of
an external component of a surgically
implanted device to make sure it is
functioning properly, as required in
§ 300.113(b).
(c)
Individual related services terms
defined.
The terms used in this
definition are defined as follows:
(1)
Audiology
includes—
(i) Identification of children with
hearing loss;
(ii) Determination of the range, nature,
and degree of hearing loss, including
referral for medical or other professional
attention for the habilitation of hearing;
(iii) Provision of habilitative
activities, such as language habilitation,
auditory training, speech reading (lip-
reading), hearing evaluation, and speech
conservation;
(iv) Creation and administration of
programs for prevention of hearing loss;
(v) Counseling and guidance of
children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children’s needs
for group and individual amplification,
selecting and fitting an appropriate aid,
and evaluating the effectiveness of
amplification.
(2)
Counseling services
means services
provided by qualified social workers,
psychologists, guidance counselors, or
other qualified personnel.
(3)
Early identification and
assessment of disabilities in children
means the implementation of a formal
plan for identifying a disability as early
as possible in a child’s life.
(4)
Interpreting services
includes—
(i) The following, when used with
respect to children who are deaf or hard
of hearing: Oral transliteration services,
cued language transliteration services,
sign language transliteration and
interpreting services, and transcription
services, such as communication access
real-time translation (CART), C-Print,
and TypeWell; and
(ii) Special interpreting services for
children who are deaf-blind.
(5)
Medical services
means services
provided by a licensed physician to
determine a child’s medically related
disability that results in the child’s need
for special education and related
services.
(6)
Occupational therapy
—
(i) Means services provided by a
qualified occupational therapist; and
(ii) Includes—
(A) Improving, developing, or
restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks
for independent functioning if functions
are impaired or lost; and
(C) Preventing, through early
intervention, initial or further
impairment or loss of function.
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(7)
Orientation and mobility
services
—
(i) Means services provided to blind
or visually impaired children by
qualified personnel to enable those
students to attain systematic orientation
to and safe movement within their
environments in school, home, and
community; and
(ii) Includes teaching children the
following, as appropriate:
(A) Spatial and environmental
concepts and use of information
received by the senses (such as sound,
temperature and vibrations) to establish,
maintain, or regain orientation and line
of travel (e.g., using sound at a traffic
light to cross the street);
(B) To use the long cane or a service
animal to supplement visual travel
skills or as a tool for safely negotiating
the environment for children with no
available travel vision;
(C) To understand and use remaining
vision and distance low vision aids; and
(D) Other concepts, techniques, and
tools.
(8)(i)
Parent counseling and training
means assisting parents in
understanding the special needs of their
child;
(ii) Providing parents with
information about child development;
and
(iii) Helping parents to acquire the
necessary skills that will allow them to
support the implementation of their
child’s IEP or IFSP.
(9)
Physical therapy
means services
provided by a qualified physical
therapist.
(10)
Psychological services
includes—
(i) Administering psychological and
educational tests, and other assessment
procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and
interpreting information about child
behavior and conditions relating to
learning;
(iv) Consulting with other staff
members in planning school programs
to meet the special educational needs of
children as indicated by psychological
tests, interviews, direct observation, and
behavioral evaluations;
(v) Planning and managing a program
of psychological services, including
psychological counseling for children
and parents; and
(vi) Assisting in developing positive
behavioral intervention strategies.
(11)
Recreation
includes—
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools
and community agencies; and
(iv) Leisure education.
(12)
Rehabilitation counseling
services
means services provided by
qualified personnel in individual or
group sessions that focus specifically on
career development, employment
preparation, achieving independence,
and integration in the workplace and
community of a student with a
disability. The term also includes
vocational rehabilitation services
provided to a student with a disability
by vocational rehabilitation programs
funded under the Rehabilitation Act of
1973, as amended, 29 U.S.C. 701
et seq.
(13)
School health services and school
nurse services
means health services
that are designed to enable a child with
a disability to receive FAPE as described
in the child’s IEP. School nurse services
are services provided by a qualified
school nurse. School health services are
services that may be provided by either
a qualified school nurse or other
qualified person.
(14)
Social work services in schools
includes—
(i) Preparing a social or
developmental history on a child with
a disability;
(ii) Group and individual counseling
with the child and family;
(iii) Working in partnership with
parents and others on those problems in
a child’s living situation (home, school,
and community) that affect the child’s
adjustment in school;
(iv) Mobilizing school and community
resources to enable the child to learn as
effectively as possible in his or her
educational program; and
(v) Assisting in developing positive
behavioral intervention strategies.
(15)
Speech-language pathology
services
includes—
(i) Identification of children with
speech or language impairments;
(ii) Diagnosis and appraisal of specific
speech or language impairments;
(iii) Referral for medical or other
professional attention necessary for the
habilitation of speech or language
impairments;
(iv) Provision of speech and language
services for the habilitation or
prevention of communicative
impairments; and
(v) Counseling and guidance of
parents, children, and teachers
regarding speech and language
impairments.
(16)
Transportation
includes—
(i) Travel to and from school and
between schools;
(ii) Travel in and around school
buildings; and
(iii) Specialized equipment (such as
special or adapted buses, lifts, and
ramps), if required to provide special
transportation for a child with a
disability.
(Authority: 20 U.S.C. 1401(26))
§ 300.35 Scientifically based research.
Scientifically based research
has the
meaning given the term in section
9101(37) of the ESEA.
(Authority: 20 U.S.C. 1411(e)(2)(C)(xi))
§ 300.36 Secondary school.
Secondary school
means a nonprofit
institutional day or residential school,
including a public secondary charter
school that provides secondary
education, as determined under State
law, except that it does not include any
education beyond grade 12.
(Authority: 20 U.S.C. 1401(27))
§ 300.37 Services plan.
Services plan
means a written
statement that describes the special
education and related services the LEA
will provide to a parentally-placed child
with a disability enrolled in a private
school who has been designated to
receive services, including the location
of the services and any transportation
necessary, consistent with § 300.132,
and is developed and implemented in
accordance with §§ 300.137 through
300.139.
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.38 Secretary.
Secretary
means the Secretary of
Education.
(Authority: 20 U.S.C. 1401(28))
§ 300.39 Special education.
(a)
General.
(1)
Special education
means specially designed instruction, at
no cost to the parents, to meet the
unique needs of a child with a
disability, including—
(i) Instruction conducted in the
classroom, in the home, in hospitals and
institutions, and in other settings; and
(ii) Instruction in physical education.
(2)
Special education
includes each of
the following, if the services otherwise
meet the requirements of paragraph
(a)(1) of this section—
(i) Speech-language pathology
services, or any other related service, if
the service is considered special
education rather than a related service
under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b)
Individual special education terms
defined.
The terms in this definition are
defined as follows:
(1)
At no cost
means that all specially-
designed instruction is provided
without charge, but does not preclude
incidental fees that are normally
charged to nondisabled students or their
parents as a part of the regular
education program.
(2)
Physical education
means—
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(i) The development of—
(A) Physical and motor fitness;
(B) Fundamental motor skills and
patterns; and
(C) Skills in aquatics, dance, and
individual and group games and sports
(including intramural and lifetime
sports); and
(ii) Includes special physical
education, adapted physical education,
movement education, and motor
development.
(3)
Specially designed instruction
means adapting, as appropriate to the
needs of an eligible child under this
part, the content, methodology, or
delivery of instruction—
(i) To address the unique needs of the
child that result from the child’s
disability; and
(ii) To ensure access of the child to
the general curriculum, so that the child
can meet the educational standards
within the jurisdiction of the public
agency that apply to all children.
(4)
Travel training
means providing
instruction, as appropriate, to children
with significant cognitive disabilities,
and any other children with disabilities
who require this instruction, to enable
them to—
(i) Develop an awareness of the
environment in which they live; and
(ii) Learn the skills necessary to move
effectively and safely from place to
place within that environment (e.g., in
school, in the home, at work, and in the
community).
(5)
Vocational education
means
organized educational programs that are
directly related to the preparation of
individuals for paid or unpaid
employment, or for additional
preparation for a career not requiring a
baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(29))
§ 300.40 State.
State
means each of the 50 States, the
District of Columbia, the
Commonwealth of Puerto Rico, and
each of the outlying areas.
(Authority: 20 U.S.C. 1401(31))
§ 300.41 State educational agency.
State educational agency
or
SEA
means the State board of education or
other agency or officer primarily
responsible for the State supervision of
public elementary schools and
secondary schools, or, if there is no such
officer or agency, an officer or agency
designated by the Governor or by State
law.
(Authority: 20 U.S.C. 1401(32))
§ 300.42 Supplementary aids and services.
Supplementary aids and services
means aids, services, and other supports
that are provided in regular education
classes, other education-related settings,
and in extracurricular and nonacademic
settings, to enable children with
disabilities to be educated with
nondisabled children to the maximum
extent appropriate in accordance with
§§ 300.114 through 300.116.
(Authority: 20 U.S.C. 1401(33))
§ 300.43 Transition services.
(a)
Transition services
means a
coordinated set of activities for a child
with a disability that—
(1) Is designed to be within a results-
oriented process, that is focused on
improving the academic and functional
achievement of the child with a
disability to facilitate the child’s
movement from school to post-school
activities, including postsecondary
education, vocational education,
integrated employment (including
supported employment), continuing and
adult education, adult services,
independent living, or community
participation;
(2) Is based on the individual child’s
needs, taking into account the child’s
strengths, preferences, and interests;
and includes—
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment
and other post-school adult living
objectives; and
(v) If appropriate, acquisition of daily
living skills and provision of a
functional vocational evaluation.
(b)
Transition services
for children
with disabilities may be special
education, if provided as specially
designed instruction, or a related
service, if required to assist a child with
a disability to benefit from special
education.
(Authority: 20 U.S.C. 1401(34))
§ 300.44 Universal design.
Universal design
has the meaning
given the term in section 3 of the
Assistive Technology Act of 1998, as
amended, 29 U.S.C. 3002.
(Authority: 20 U.S.C. 1401(35))
§ 300.45 Ward of the State.
(a)
General.
Subject to paragraph (b)
of this section,
ward of the State
means
a child who, as determined by the State
where the child resides, is—
(1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child
welfare agency.
(b)
Exception.
Ward of the State does
not include a foster child who has a
foster parent who meets the definition
of a
parent
in § 300.30.
(Authority: 20 U.S.C. 1401(36))
Subpart B—State Eligibility
General
§ 300.100 Eligibility for assistance.
A State is eligible for assistance under
Part B of the Act for a fiscal year if the
State submits a plan that provides
assurances to the Secretary that the
State has in effect policies and
procedures to ensure that the State
meets the conditions in §§ 300.101
through 300.176.
(Approved by the Office of Management
and Budget under control number 1820–
0030)
(Authority: 20 U.S.C. 1412(a))
FAPE Requirements
§ 300.101 Free appropriate public
education (FAPE).
(a)
General.
A free appropriate public
education must be available to all
children residing in the State between
the ages of 3 and 21, inclusive,
including children with disabilities who
have been suspended or expelled from
school, as provided for in § 300.530(d).
(b)
FAPE for children beginning at age
3.
(1) Each State must ensure that—
(i) The obligation to make FAPE
available to each eligible child residing
in the State begins no later than the
child’s third birthday; and
(ii) An IEP or an IFSP is in effect for
the child by that date, in accordance
with § 300.323(b).
(2) If a child’s third birthday occurs
during the summer, the child’s IEP
Team shall determine the date when
services under the IEP or IFSP will
begin.
(c)
Children advancing from grade to
grade.
(1) Each State must ensure that
FAPE is available to any individual
child with a disability who needs
special education and related services,
even though the child has not failed or
been retained in a course or grade, and
is advancing from grade to grade.
(2) The determination that a child
described in paragraph (a) of this
section is eligible under this part, must
be made on an individual basis by the
group responsible within the child’s
LEA for making eligibility
determinations.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1)(A))
§ 300.102 Limitation—exception to FAPE
for certain ages.
(a)
General.
The obligation to make
FAPE available to all children with
disabilities does not apply with respect
to the following:
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(1) Children aged 3, 4, 5, 18, 19, 20,
or 21 in a State to the extent that its
application to those children would be
inconsistent with State law or practice,
or the order of any court, respecting the
provision of public education to
children of those ages.
(2)(i) Children aged 18 through 21 to
the extent that State law does not
require that special education and
related services under Part B of the Act
be provided to students with disabilities
who, in the last educational placement
prior to their incarceration in an adult
correctional facility—
(A) Were not actually identified as
being a child with a disability under
§ 300.8; and
(B) Did not have an IEP under Part B
of the Act.
(ii) The exception in paragraph
(a)(2)(i) of this section does not apply to
children with disabilities, aged 18
through 21, who—
(A) Had been identified as a child
with a disability under § 300.8 and had
received services in accordance with an
IEP, but who left school prior to their
incarceration; or
(B) Did not have an IEP in their last
educational setting, but who had
actually been identified as a child with
a disability under § 300.8.
(3)(i) Children with disabilities who
have graduated from high school with a
regular high school diploma.
(ii) The exception in paragraph
(a)(3)(i) of this section does not apply to
children who have graduated from high
school but have not been awarded a
regular high school diploma.
(iii) Graduation from high school with
a regular high school diploma
constitutes a change in placement,
requiring written prior notice in
accordance with § 300.503.
(iv) As used in paragraphs (a)(3)(i)
through (a)(3)(iii) of this section, the
term
regular high school diploma
does
not include an alternative degree that is
not fully aligned with the State’s
academic standards, such as a certificate
or a general educational development
credential (GED).
(4) Children with disabilities who are
eligible under subpart H of this part, but
who receive early intervention services
under Part C of the Act.
(b)
Documents relating to exceptions.
The State must assure that the
information it has provided to the
Secretary regarding the exceptions in
paragraph (a) of this section, as required
by § 300.700 (for purposes of making
grants to States under this part), is
current and accurate.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1)(B)–(C))
Other FAPE Requirements
§ 300.103 FAPE—methods and payments.
(a) Each State may use whatever State,
local, Federal, and private sources of
support are available in the State to
meet the requirements of this part. For
example, if it is necessary to place a
child with a disability in a residential
facility, a State could use joint
agreements between the agencies
involved for sharing the cost of that
placement.
(b) Nothing in this part relieves an
insurer or similar third party from an
otherwise valid obligation to provide or
to pay for services provided to a child
with a disability.
(c) Consistent with § 300.323(c), the
State must ensure that there is no delay
in implementing a child’s IEP, including
any case in which the payment source
for providing or paying for special
education and related services to the
child is being determined.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(8), 1412(a)(1)).
§ 300.104 Residential placement
If placement in a public or private
residential program is necessary to
provide special education and related
services to a child with a disability, the
program, including non-medical care
and room and board, must be at no cost
to the parents of the child.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(10)(B))
§ 300.105 Assistive technology.
(a) Each public agency must ensure
that assistive technology devices or
assistive technology services, or both, as
those terms are defined in §§ 300.5 and
300.6, respectively, are made available
to a child with a disability if required
as a part of the child’s—
(1) Special education under § 300.36;
(2) Related services under § 300.34; or
(3) Supplementary aids and services
under §§ 300.38 and 300.114(a)(2)(ii).
(b) On a case-by-case basis, the use of
school-purchased assistive technology
devices in a child’s home or in other
settings is required if the child’s IEP
Team determines that the child needs
access to those devices in order to
receive FAPE.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(12)(B)(i))
§ 300.106 Extended school year services.
(a)
General.
(1) Each public agency
must ensure that extended school year
services are available as necessary to
provide FAPE, consistent with
paragraph (a)(2) of this section.
(2) Extended school year services
must be provided only if a child’s IEP
Team determines, on an individual
basis, in accordance with §§ 300.320
through 300.324, that the services are
necessary for the provision of FAPE to
the child.
(3) In implementing the requirements
of this section, a public agency may
not—
(i) Limit extended school year
services to particular categories of
disability; or
(ii) Unilaterally limit the type,
amount, or duration of those services.
(b)
Definition.
As used in this section,
the term extended school year services
means special education and related
services that—
(1) Are provided to a child with a
disability—
(i) Beyond the normal school year of
the public agency;
(ii) In accordance with the child’s IEP;
and
(iii) At no cost to the parents of the
child; and
(2) Meet the standards of the SEA.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1))
§ 300.107 Nonacademic services.
The State must ensure the following:
(a) Each public agency must take
steps, including the provision of
supplementary aids and services
determined appropriate and necessary
by the child’s IEP Team, to provide
nonacademic and extracurricular
services and activities in the manner
necessary to afford children with
disabilities an equal opportunity for
participation in those services and
activities.
(b) Nonacademic and extracurricular
services and activities may include
counseling services, athletics,
transportation, health services,
recreational activities, special interest
groups or clubs sponsored by the public
agency, referrals to agencies that
provide assistance to individuals with
disabilities, and employment of
students, including both employment by
the public agency and assistance in
making outside employment available.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(1))
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§ 300.108 Physical education.
The State must ensure that public
agencies in the State comply with the
following:
(a)
General.
Physical education
services, specially designed if necessary,
must be made available to every child
with a disability receiving FAPE, unless
the public agency enrolls children
without disabilities and does not
provide physical education to children
without disabilities in the same grades.
(b)
Regular physical education.
Each
child with a disability must be afforded
the opportunity to participate in the
regular physical education program
available to nondisabled children
unless—
(1) The child is enrolled full time in
a separate facility; or
(2) The child needs specially designed
physical education, as prescribed in the
child’s IEP.
(c)
Special physical education.
If
specially designed physical education is
prescribed in a child’s IEP, the public
agency responsible for the education of
that child must provide the services
directly or make arrangements for those
services to be provided through other
public or private programs.
(d)
Education in separate facilities.
The public agency responsible for the
education of a child with a disability
who is enrolled in a separate facility
must ensure that the child receives
appropriate physical education services
in compliance with this section.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5)(A))
§ 300.109 Full educational opportunity
goal (FEOG).
The State must have in effect policies
and procedures to demonstrate that the
State has established a goal of providing
full educational opportunity to all
children with disabilities, aged birth
through 21, and a detailed timetable for
accomplishing that goal.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(2))
§ 300.110 Program options.
The State must ensure that each
public agency takes steps to ensure that
its children with disabilities have
available to them the variety of
educational programs and services
available to nondisabled children in the
area served by the agency, including art,
music, industrial arts, consumer and
homemaking education, and vocational
education.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
§ 300.111 Child find.
(a)
General.
(1) The State must have
in effect policies and procedures to
ensure that—
(i) All children with disabilities
residing in the State, including children
with disabilities who are homeless
children or are wards of the State, and
children with disabilities attending
private schools, regardless of the
severity of their disability, and who are
in need of special education and related
services, are identified, located, and
evaluated; and
(ii) A practical method is developed
and implemented to determine which
children are currently receiving needed
special education and related services.
(b)
Use of term developmental delay.
The following provisions apply with
respect to implementing the child find
requirements of this section:
(1) A State that adopts a definition of
developmental delay
under § 300.8(b)
determines whether the term applies to
children aged three through nine, or to
a subset of that age range (
e.g.
, ages
three through five).
(2) A State may not require an LEA to
adopt and use the term
developmental
delay
for any children within its
jurisdiction.
(3) If an LEA uses the term
developmental delay
for children
described in § 300.8(b), the LEA must
conform to both the State’s definition of
that term and to the age range that has
been adopted by the State.
(4) If a State does not adopt the term
developmental delay
, an LEA may not
independently use that term as a basis
for establishing a child’s eligibility
under this part.
(c)
Other children in child find.
Child
find also must include—
(1) Children who are suspected of
being a child with a disability under
§ 300.8 and in need of special
education, even though they are
advancing from grade to grade; and
(2) Highly mobile children, including
migrant children.
(d)
Construction.
Nothing in the Act
requires that children be classified by
their disability so long as each child
who has a disability that is listed in
§ 300.8 and who, by reason of that
disability, needs special education and
related services is regarded as a child
with a disability under Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))
§ 300.112 Individualized education
programs (IEP).
The State must ensure that an IEP, or
an IFSP that meets the requirements of
section 636(d) of the Act, is developed,
reviewed, and revised for each child
with a disability in accordance with
§§ 300.320 through 300.324, except as
provided in § 300.300(b)(3)(ii).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(4))
§ 300.113 Routine checking of hearing
aids and external components of surgically
implanted medical devices.
(a)
Hearing aids.
Each public agency
must ensure that hearing aids worn in
school by children with hearing
impairments, including deafness, are
functioning properly.
(b)
External components of surgically
implanted medical devices.
(1) Subject
to paragraph (b)(2) of this section, each
public agency must ensure that the
external components of surgically
implanted medical devices are
functioning properly.
(2) For a child with a surgically
implanted medical device who is
receiving special education and related
services under this part, a public agency
is not responsible for the post-surgical
maintenance, programming, or
replacement of the medical device that
has been surgically implanted (or of an
external component of the surgically
implanted medical device).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1401(1), 1401(26)(B))
Least Restrictive Environment (LRE)
§ 300.114 LRE requirements.
(a)
General.
(1) Except as provided in
§ 300.324(d)(2) (regarding children with
disabilities in adult prisons), the State
must have in effect policies and
procedures to ensure that public
agencies in the State meet the LRE
requirements of this section and
§§ 300.115 through 300.120.
(2) Each public agency must ensure
that—
(i) To the maximum extent
appropriate, children with disabilities,
including children in public or private
institutions or other care facilities, are
educated with children who are
nondisabled; and
(ii) Special classes, separate
schooling, or other removal of children
with disabilities from the regular
educational environment occurs only if
the nature or severity of the disability is
such that education in regular classes
with the use of supplementary aids and
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services cannot be achieved
satisfactorily.
(b)
Additional requirement—State
funding mechanism
—(1)
General.
(i) A
State funding mechanism must not
result in placements that violate the
requirements of paragraph (a) of this
section; and
(ii) A State must not use a funding
mechanism by which the State
distributes funds on the basis of the type
of setting in which a child is served that
will result in the failure to provide a
child with a disability FAPE according
to the unique needs of the child, as
described in the child’s IEP.
(2)
Assurance.
If the State does not
have policies and procedures to ensure
compliance with paragraph (b)(1) of this
section, the State must provide the
Secretary an assurance that the State
will revise the funding mechanism as
soon as feasible to ensure that the
mechanism does not result in
placements that violate that paragraph.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.115 Continuum of alternative
placements.
(a) Each public agency must ensure
that a continuum of alternative
placements is available to meet the
needs of children with disabilities for
special education and related services.
(b) The continuum required in
paragraph (a) of this section must—
(1) Include the alternative placements
listed in the definition of special
education under § 300.38 (instruction in
regular classes, special classes, special
schools, home instruction, and
instruction in hospitals and
institutions); and
(2) Make provision for supplementary
services (such as resource room or
itinerant instruction) to be provided in
conjunction with regular class
placement.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.116 Placements.
In determining the educational
placement of a child with a disability,
including a preschool child with a
disability, each public agency must
ensure that—
(a) The placement decision—
(1) Is made by a group of persons,
including the parents, and other persons
knowledgeable about the child, the
meaning of the evaluation data, and the
placement options; and
(2) Is made in conformity with the
LRE provisions of this subpart,
including §§ 300.114 through 300.118;
(b) The child’s placement—
(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s
home;
(c) Unless the IEP of a child with a
disability requires some other
arrangement, the child is educated in
the school that he or she would attend
if nondisabled;
(d) In selecting the LRE, consideration
is given to any potential harmful effect
on the child or on the quality of services
that he or she needs; and
(e) A child with a disability is not
removed from education in age-
appropriate regular classrooms solely
because of needed modifications in the
general education curriculum.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.117 Nonacademic settings.
In providing or arranging for the
provision of nonacademic and
extracurricular services and activities,
including meals, recess periods, and the
services and activities set forth in
§ 300.107, each public agency must
ensure that each child with a disability
participates with nondisabled children
in the extracurricular services and
activities to the maximum extent
appropriate to the needs of that child.
The public agency must ensure that
each child with a disability has the
supplementary aids and services
determined by the child’s IEP Team to
be appropriate and necessary for the
child to participate in nonacademic
settings.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.118 Children in public or private
institutions.
Except as provided in § 300.149(d)
(regarding agency responsibility for
general supervision for some
individuals in adult prisons), an SEA
must ensure that § 300.114 is effectively
implemented, including, if necessary,
making arrangements with public and
private institutions (such as a
memorandum of agreement or special
implementation procedures).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.119 Technical assistance and
training activities.
Each SEA must carry out activities to
ensure that teachers and administrators
in all public agencies—
(a) Are fully informed about their
responsibilities for implementing
§ 300.114; and
(b) Are provided with technical
assistance and training necessary to
assist them in this effort.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
§ 300.120 Monitoring activities.
(a) The SEA must carry out activities
to ensure that § 300.114 is implemented
by each public agency.
(b) If there is evidence that a public
agency makes placements that are
inconsistent with § 300.114, the SEA
must—
(1) Review the public agency’s
justification for its actions; and
(2) Assist in planning and
implementing any necessary corrective
action.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(5))
Additional Eligibility Requirements
§ 300.121 Procedural safeguards.
(a)
General.
The State must have
procedural safeguards in effect to ensure
that each public agency in the State
meets the requirements of §§ 300.500
through 300.536.
(b)
Procedural safeguards identified.
Children with disabilities and their
parents must be afforded the procedural
safeguards identified in paragraph (a) of
this section.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(6)(A))
§ 300.122 Evaluation.
Children with disabilities must be
evaluated in accordance with §§ 300.300
through 300.311 of subpart D of this
part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(7))
§ 300.123 Confidentiality of personally
identifiable information.
The State must have policies and
procedures in effect to ensure that
public agencies in the State comply
with §§ 300.610 through 300.626 related
to protecting the confidentiality of any
personally identifiable information
collected, used, or maintained under
Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
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§ 300.124 Transition of children from the
Part C program to preschool programs.
The State must have in effect policies
and procedures to ensure that—
(a) Children participating in early
intervention programs assisted under
Part C of the Act, and who will
participate in preschool programs
assisted under Part B of the Act,
experience a smooth and effective
transition to those preschool programs
in a manner consistent with section
637(a)(9) of the Act;
(b) By the third birthday of a child
described in paragraph (a) of this
section, an IEP or, if consistent with
§ 300.323(b) and section 636(d) of the
Act, an IFSP, has been developed and is
being implemented for the child
consistent with § 300.101(b); and
(c) Each affected LEA will participate
in transition planning conferences
arranged by the designated lead agency
under section 635(a)(10) of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(9))
§§ 300.125–300.128 [Reserved]
Children in Private Schools
§ 300.129 State responsibility regarding
children in private schools.
The State must have in effect policies
and procedures that ensure that LEAs,
and, if applicable, the SEA, meet the
private school requirements in
§§ 300.130 through 300.148.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10))
Children With Disabilities Enrolled by
Their Parents in Private Schools
§ 300.130 Definition of parentally-placed
private school children with disabilities.
Parentally-placed private school
children with disabilities
means
children with disabilities enrolled by
their parents in private, including
religious, schools or facilities that meet
the definition of elementary school in
§ 300.13 or secondary school in
§ 300.36, other than children with
disabilities covered under §§ 300.145
through 300.147.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.131 Child find for parentally-placed
private school children with disabilities.
(a)
General.
Each LEA must locate,
identify, and evaluate all children with
disabilities who are enrolled by their
parents in private, including religious,
elementary schools and secondary
schools located in the school district
served by the LEA, in accordance with
paragraphs (b) through (e) of this
section, and §§ 300.111 and 300.201.
(b)
Child find design.
The child find
process must be designed to ensure—
(1) The equitable participation of
parentally-placed private school
children; and
(2) An accurate count of those
children.
(c)
Activities.
In carrying out the
requirements of this section, the LEA,
or, if applicable, the SEA, must
undertake activities similar to the
activities undertaken for the agency’s
public school children.
(d)
Cost.
The cost of carrying out the
child find requirements in this section,
including individual evaluations, may
not be considered in determining if an
LEA has met its obligation under
§ 300.133.
(e)
Completion period.
The child find
process must be completed in a time
period comparable to that for students
attending public schools in the LEA
consistent with § 300.301.
(f)
Out-of-State children.
Each LEA in
which private, including religious,
elementary schools and secondary
schools are located must, in carrying out
the child find requirements in this
section, include parentally-placed
private school children who reside in a
State other than the State in which the
private schools that they attend are
located.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
§ 300.132 Provision of services for
parentally-placed private school children
with disabilities—basic requirement.
(a)
General.
To the extent consistent
with the number and location of
children with disabilities who are
enrolled by their parents in private,
including religious, elementary schools
and secondary schools located in the
school district served by the LEA,
provision is made for the participation
of those children in the program
assisted or carried out under Part B of
the Act by providing them with special
education and related services,
including direct services determined in
accordance with § 300.137, unless the
Secretary has arranged for services to
those children under the by-pass
provisions in §§ 300.190 through
300.198.
(b)
Services plan for parentally-placed
private school children with disabilities.
In accordance with paragraph (a) of this
section and §§ 300.137 through 300.139,
a services plan must be developed and
implemented for each private school
child with a disability who has been
designated by the LEA in which the
private school is located to receive
special education and related services
under this part.
(c)
Record keeping.
Each LEA must
maintain in its records, and provide to
the SEA, the following information
related to parentally-placed private
school children covered under
§§ 300.130 through 300.144:
(1) The number of children evaluated;
(2) The number of children
determined to be children with
disabilities; and
(3) The number of children served.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
§ 300.133 Expenditures.
(a)
Formula.
To meet the requirement
of § 300.132(a), each LEA must spend
the following on providing special
education and related services
(including direct services) to parentally-
placed private school children with
disabilities:
(1) For children aged 3 through 21, an
amount that is the same proportion of
the LEA’s total subgrant under section
611(f) of the Act as the number of
private school children with disabilities
aged 3 through 21 who are enrolled by
their parents in private, including
religious, elementary schools and
secondary schools located in the school
district served by the LEA, is to the total
number of children with disabilities in
its jurisdiction aged 3 through 21.
(2)(i) For children aged three through
five, an amount that is the same
proportion of the LEA’s total subgrant
under section 619(g) of the Act as the
number of parentally-placed private
school children with disabilities aged
three through five who are enrolled by
their parents in a private, including
religious, elementary school located in
the school district served by the LEA, is
to the total number of children with
disabilities in its jurisdiction aged three
through five.
(ii) As described in paragraph (a)(2)(i)
of this section, children aged three
through five are considered to be
parentally-placed private school
children with disabilities enrolled by
their parents in private, including
religious, elementary schools, if they are
enrolled in a private school that meets
the definition of elementary school in
§ 300.13.
(3) If an LEA has not expended for
equitable services all of the funds
described in paragraphs (a)(1) and (a)(2)
of this section by the end of the fiscal
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year for which Congress appropriated
the funds, the LEA must obligate the
remaining funds for special education
and related services (including direct
services) to parentally-placed private
school children with disabilities during
a carry-over period of one additional
year.
(b)
Calculating proportionate amount.
In calculating the proportionate amount
of Federal funds to be provided for
parentally-placed private school
children with disabilities, the LEA, after
timely and meaningful consultation
with representatives of private schools
under § 300.134, must conduct a
thorough and complete child find
process to determine the number of
parentally-placed children with
disabilities attending private schools
located in the LEA. (See Appendix B for
an example of how proportionate share
is calculated).
(c)
Annual count of the number of
parentally-placed private school
children with disabilities.
(1) Each LEA
must—
(i) After timely and meaningful
consultation with representatives of
parentally-placed private school
children with disabilities (consistent
with § 300.134), determine the number
of parentally-placed private school
children with disabilities attending
private schools located in the LEA; and
(ii) Ensure that the count is conducted
on any date between October 1 and
December 1, inclusive, of each year.
(2) The count must be used to
determine the amount that the LEA
must spend on providing special
education and related services to
parentally-placed private school
children with disabilities in the next
subsequent fiscal year.
(d)
Supplement, not supplant.
State
and local funds may supplement and in
no case supplant the proportionate
amount of Federal funds required to be
expended for parentally-placed private
school children with disabilities under
this part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.134 Consultation.
To ensure timely and meaningful
consultation, an LEA, or, if appropriate,
an SEA, must consult with private
school representatives and
representatives of parents of parentally-
placed private school children with
disabilities during the design and
development of special education and
related services for the children
regarding the following:
(a) Child find. The child find process,
including—
(1) How parentally-placed private
school children suspected of having a
disability can participate equitably; and
(2) How parents, teachers, and private
school officials will be informed of the
process.
(b)
Proportionate share of funds.
The
determination of the proportionate share
of Federal funds available to serve
parentally-placed private school
children with disabilities under
§ 300.133(b), including the
determination of how the proportionate
share of those funds was calculated.
(c)
Consultation process.
The
consultation process among the LEA,
private school officials, and
representatives of parents of parentally-
placed private school children with
disabilities, including how the process
will operate throughout the school year
to ensure that parentally-placed
children with disabilities identified
through the child find process can
meaningfully participate in special
education and related services.
(d)
Provision of special education and
related services.
How, where, and by
whom special education and related
services will be provided for parentally-
placed private school children with
disabilities, including a discussion of—
(1) The types of services, including
direct services and alternate service
delivery mechanisms; and
(2) How special education and related
services will be apportioned if funds are
insufficient to serve all parentally-
placed private school children; and
(3) How and when those decisions
will be made;
(e)
Written explanation by LEA
regarding services.
How, if the LEA
disagrees with the views of the private
school officials on the provision of
services or the types of services
(whether provided directly or through a
contract), the LEA will provide to the
private school officials a written
explanation of the reasons why the LEA
chose not to provide services directly or
through a contract.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iii))
§ 300.135 Written affirmation.
(a) When timely and meaningful
consultation, as required by § 300.134,
has occurred, the LEA must obtain a
written affirmation signed by the
representatives of participating private
schools.
(b) If the representatives do not
provide the affirmation within a
reasonable period of time, the LEA must
forward the documentation of the
consultation process to the SEA.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iv))
§ 300.136 Compliance.
(a)
General.
A private school official
has the right to submit a complaint to
the SEA that the LEA—
(1) Did not engage in consultation that
was meaningful and timely; or
(2) Did not give due consideration to
the views of the private school official.
(b)
Procedure.
(1) If the private school
official wishes to submit a complaint,
the official must provide to the SEA the
basis of the noncompliance by the LEA
with the applicable private school
provisions in this part; and
(2) The LEA must forward the
appropriate documentation to the SEA.
(3)(i) If the private school official is
dissatisfied with the decision of the
SEA, the official may submit a
complaint to the Secretary by providing
the information on noncompliance
described in paragraph (b)(1) of this
section; and
(ii) The SEA must forward the
appropriate documentation to the
Secretary.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(v))
§ 300.137 Equitable services determined.
(a)
No individual right to special
education and related services.
No
parentally-placed private school child
with a disability has an individual right
to receive some or all of the special
education and related services that the
child would receive if enrolled in a
public school.
(b)
Decisions.
(1) Decisions about the
services that will be provided to
parentally-placed private school
children with disabilities under
§§ 300.130 through 300.144 must be
made in accordance with paragraph (c)
of this section and § 300.134(c).
(2) The LEA must make the final
decisions with respect to the services to
be provided to eligible parentally-placed
private school children with disabilities.
(c)
Services plan for each child served
under §§ 300.130 through 300.144.
If a
child with a disability is enrolled in a
religious or other private school by the
child’s parents and will receive special
education or related services from an
LEA, the LEA must—
(1) Initiate and conduct meetings to
develop, review, and revise a services
plan for the child, in accordance with
§ 300.138(b); and
(2) Ensure that a representative of the
religious or other private school attends
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each meeting. If the representative
cannot attend, the LEA shall use other
methods to ensure participation by the
religious or other private school,
including individual or conference
telephone calls.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.138 Equitable services provided.
(a)
General.
(1) The services provided
to parentally-placed private school
children with disabilities must be
provided by personnel meeting the same
standards as personnel providing
services in the public schools, except
that private elementary school and
secondary school teachers who are
providing equitable services to
parentally-placed private school
children with disabilities do not have to
meet the highly qualified special
education teacher requirements of
§ 300.18.
(2) Parentally-placed private school
children with disabilities may receive a
different amount of services than
children with disabilities in public
schools.
(b)
Services provided in accordance
with a services plan.
(1) Each parentally-
placed private school child with a
disability who has been designated to
receive services under § 300.132 must
have a services plan that describes the
specific special education and related
services that the LEA will provide to the
child in light of the services that the
LEA has determined, through the
process described in §§ 300.134 and
300.137, it will make available to
parentally-placed private school
children with disabilities.
(2) The services plan must, to the
extent appropriate—
(i) Meet the requirements of § 300.320,
or for a child ages three through five,
meet the requirements of § 300.323(b)
with respect to the services provided;
and
(ii) Be developed, reviewed, and
revised consistent with §§ 300.321
through 300.324.
(c)
Provision of equitable services.
(1)
The provision of services pursuant to
this section and §§ 300.139 through
300.143 must be provided:
(i) By employees of a public agency;
or
(ii) Through contract by the public
agency with an individual, association,
agency, organization, or other entity.
(2) Special education and related
services provided to parentally-placed
private school children with disabilities,
including materials and equipment,
must be secular, neutral, and
nonideological.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vi))
§ 300.139 Location of services and
transportation.
(a)
Services on private school
premises.
Services to parentally-placed
private school children with disabilities
may be provided on the premises of
private, including religious, schools, to
the extent consistent with law.
(b)
Transportation
—(1)
General.
(i) If
necessary for the child to benefit from
or participate in the services provided
under this part, a parentally-placed
private school child with a disability
must be provided transportation—
(A) From the child’s school or the
child’s home to a site other than the
private school; and
(B) From the service site to the private
school, or to the child’s home,
depending on the timing of the services.
(ii) LEAs are not required to provide
transportation from the child’s home to
the private school.
(2)
Cost of transportation.
The cost of
the transportation described in
paragraph (b)(1)(i) of this section may be
included in calculating whether the
LEA has met the requirement of
§ 300.133.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.140 Due process complaints and
State complaints.
(a)
Due process not applicable, except
for child find.
(1) Except as provided in
paragraph (b) of this section, the
procedures in §§ 300.504 through
300.519 do not apply to complaints that
an LEA has failed to meet the
requirements of §§ 300.132 through
300.139, including the provision of
services indicated on the child’s
services plan.
(b)
Child find complaints—to be filed
with the LEA in which the private school
is located.
(1) The procedures in
§§ 300.504 through 300.519 apply to
complaints that an LEA has failed to
meet the child find requirements in
§ 300.131, including the requirements in
§§ 300.300 through 300.311.
(2) Any due process complaint
regarding the child find requirements
(as described in paragraph (b)(1) of this
section) must be filed with the LEA in
which the private school is located and
a copy must be forwarded to the SEA.
(c)
State complaints.
(1) Any
complaint that an SEA or LEA has failed
to meet the requirements in §§ 300.132
through 300.135 and 300.137 through
300.144 must be filed in accordance
with the procedures described in
§§ 300.151 through 300.153.
(2) A complaint filed by a private
school official under § 300.136(a) must
be filed with the SEA in accordance
with the procedures in § 300.136(b).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.141 Requirement that funds not
benefit a private school.
(a) An LEA may not use funds
provided under section 611 or 619 of
the Act to finance the existing level of
instruction in a private school or to
otherwise benefit the private school.
(b) The LEA must use funds provided
under Part B of the Act to meet the
special education and related services
needs of parentally-placed private
school children with disabilities, but
not for meeting—
(1) The needs of a private school; or
(2) The general needs of the students
enrolled in the private school.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.142 Use of personnel.
(a)
Use of public school personnel.
An
LEA may use funds available under
sections 611 and 619 of the Act to make
public school personnel available in
other than public facilities—
(1) To the extent necessary to provide
services under §§ 300.130 through
300.144 for parentally-placed private
school children with disabilities; and
(2) If those services are not normally
provided by the private school.
(b)
Use of private school personnel.
An LEA may use funds available under
sections 611 and 619 of the Act to pay
for the services of an employee of a
private school to provide services under
§§ 300.130 through 300.144 if—
(1) The employee performs the
services outside of his or her regular
hours of duty; and
(2) The employee performs the
services under public supervision and
control.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.143 Separate classes prohibited.
An LEA may not use funds available
under section 611 or 619 of the Act for
classes that are organized separately on
the basis of school enrollment or
religion of the children if—’
(a) The classes are at the same site;
and
(b) The classes include children
enrolled in public schools and children
enrolled in private schools.
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(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
§ 300.144 Property, equipment, and
supplies.
(a) A public agency must control and
administer the funds used to provide
special education and related services
under §§ 300.137 through 300.139, and
hold title to and administer materials,
equipment, and property purchased
with those funds for the uses and
purposes provided in the Act.
(b) The public agency may place
equipment and supplies in a private
school for the period of time needed for
the Part B program.
(c) The public agency must ensure
that the equipment and supplies placed
in a private school—
(1) Are used only for Part B purposes;
and
(2) Can be removed from the private
school without remodeling the private
school facility.
(d) The public agency must remove
equipment and supplies from a private
school if—
(1) The equipment and supplies are
no longer needed for Part B purposes; or
(2) Removal is necessary to avoid
unauthorized use of the equipment and
supplies for other than Part B purposes.
(e) No funds under Part B of the Act
may be used for repairs, minor
remodeling, or construction of private
school facilities.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vii))
Children With Disabilities in Private
Schools Placed or Referred by Public
Agencies
§ 300.145 Applicability of §§ 300.146
through 300.147.
Sections 300.146 through 300.147
apply only to children with disabilities
who are or have been placed in or
referred to a private school or facility by
a public agency as a means of providing
special education and related services.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.146 Responsibility of SEA.
Each SEA must ensure that a child
with a disability who is placed in or
referred to a private school or facility by
a public agency—
(a) Is provided special education and
related services—
(1) In conformance with an IEP that
meets the requirements of §§ 300.320
through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that
meets the standards that apply to
education provided by the SEA and
LEAs including the requirements of this
part, except for § 300.18 and
§ 300.156(c); and
(c) Has all of the rights of a child with
a disability who is served by a public
agency.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.147 Implementation by SEA.
In implementing § 300.146, the SEA
must—
(a) Monitor compliance through
procedures such as written reports, on-
site visits, and parent questionnaires;
(b) Disseminate copies of applicable
standards to each private school and
facility to which a public agency has
referred or placed a child with a
disability; and
(c) Provide an opportunity for those
private schools and facilities to
participate in the development and
revision of State standards that apply to
them.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by
Their Parents in Private Schools When
FAPE Is at Issue
§ 300.148 Placement of children by
parents when FAPE is at issue.
(a)
General.
This part does not require
an LEA to pay for the cost of education,
including special education and related
services, of a child with a disability at
a private school or facility if that agency
made FAPE available to the child and
the parents elected to place the child in
a private school or facility. However, the
public agency must include that child in
the population whose needs are
addressed consistent with §§ 300.131
through 300.144.
(b)
Disagreements about FAPE.
Disagreements between the parents and
a public agency regarding the
availability of a program appropriate for
the child, and the question of financial
reimbursement, are subject to the due
process procedures in §§ 300.504
through 300.520.
(c)
Reimbursement for private school
placement.
If the parents of a child with
a disability, who previously received
special education and related services
under the authority of a public agency,
enroll the child in a private preschool,
elementary school, or secondary school
without the consent of or referral by the
public agency, a court or a hearing
officer may require the agency to
reimburse the parents for the cost of that
enrollment if the court or hearing officer
finds that the agency had not made
FAPE available to the child in a timely
manner prior to that enrollment and that
the private placement is appropriate. A
parental placement may be found to be
appropriate by a hearing officer or a
court even if it does not meet the State
standards that apply to education
provided by the SEA and LEAs.
(d)
Limitation on reimbursement.
The
cost of reimbursement described in
paragraph (c) of this section may be
reduced or denied—
(1) If—
(i) At the most recent IEP Team
meeting that the parents attended prior
to removal of the child from the public
school, the parents did not inform the
IEP Team that they were rejecting the
placement proposed by the public
agency to provide FAPE to their child,
including stating their concerns and
their intent to enroll their child in a
private school at public expense; or
(ii) At least ten (10) business days
(including any holidays that occur on a
business day) prior to the removal of the
child from the public school, the
parents did not give written notice to
the public agency of the information
described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents’ removal of
the child from the public school, the
public agency informed the parents,
through the notice requirements
described in § 300.503(a)(1), of its intent
to evaluate the child (including a
statement of the purpose of the
evaluation that was appropriate and
reasonable), but the parents did not
make the child available for the
evaluation; or
(3) Upon a judicial finding of
unreasonableness with respect to
actions taken by the parents.
(e)
Exception.
Notwithstanding the
notice requirement in paragraph (d)(1)
of this section, the cost of
reimbursement—
(1) Must not be reduced or denied for
failure to provide the notice if—
(i) The school prevented the parents
from providing the notice;
(ii) The parents had not received
notice, pursuant to § 300.504, of the
notice requirement in paragraph (d)(1)
of this section; or
(iii) Compliance with paragraph (d)(1)
of this section would likely result in
physical harm to the child; and
(2) May, in the discretion of the court
or a hearing officer, not be reduced or
denied for failure to provide this notice
if—
(i) The parents are not literate or
cannot write in English; or
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(ii) Compliance with paragraph (d)(1)
of this section would likely result in
serious emotional harm to the child.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(10)(C))
SEA Responsibility for General
Supervision and Implementation of
Procedural Safeguards
§ 300.149 SEA responsibility for general
supervision.
(a) The SEA is responsible for
ensuring—
(1) That the requirements of this part
are carried out; and
(2) That each educational program for
children with disabilities administered
within the State, including each
program administered by any other
State or local agency (but not including
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the
Interior)—
(i) Is under the general supervision of
the persons responsible for educational
programs for children with disabilities
in the SEA; and
(ii) Meets the educational standards of
the SEA (including the requirements of
this part).
(3) In carrying out this part with
respect to homeless children, the
requirements of subtitle B of title VII of
the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11431
et seq.
)
are met.
(b) The State must have in effect
policies and procedures to ensure that it
complies with the monitoring and
enforcement requirements in §§ 300.600
through 300.602 and §§ 300.606 through
300.608.
(c) Part B of the Act does not limit the
responsibility of agencies other than
educational agencies for providing or
paying some or all of the costs of FAPE
to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of
this section, the Governor (or another
individual pursuant to State law) may
assign to any public agency in the State
the responsibility of ensuring that the
requirements of Part B of the Act are
met with respect to students with
disabilities who are convicted as adults
under State law and incarcerated in
adult prisons.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(11); 1416)
§ 300.150 SEA implementation of
procedural safeguards.
The SEA (and any agency assigned
responsibility pursuant to § 300.149(d))
must have in effect procedures to inform
each public agency of its responsibility
for ensuring effective implementation of
procedural safeguards for the children
with disabilities served by that public
agency.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
State Complaint Procedures
§ 300.151 Adoption of State complaint
procedures.
(a)
General.
Each SEA must adopt
written procedures for—
(1) Resolving any complaint,
including a complaint filed by an
organization or individual from another
State, that meets the requirements of
§ 300.153 by—
(i) Providing for the filing of a
complaint with the SEA; and
(ii) At the SEA’s discretion, providing
for the filing of a complaint with a
public agency and the right to have the
SEA review the public agency’s decision
on the complaint; and
(2) Widely disseminating to parents
and other interested individuals,
including parent training and
information centers, protection and
advocacy agencies, independent living
centers, and other appropriate entities,
the State procedures under §§ 300.151
through 300.153.
(b)
Remedies for denial of appropriate
services.
In resolving a complaint in
which the SEA has found a failure to
provide appropriate services, an SEA,
pursuant to its general supervisory
authority under Part B of the Act, must
address—
(1) The failure to provide appropriate
services, including corrective action
appropriate to address the needs of the
child (such as compensatory services or
monetary reimbursement); and
(2) Appropriate future provision of
services for all children with
disabilities.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
§ 300.152 Minimum State complaint
procedures.
(a)
Time limit; minimum procedures.
Each SEA must include in its complaint
procedures a time limit of 60 days after
a complaint is filed under § 300.153 to—
(1) Carry out an independent on-site
investigation, if the SEA determines that
an investigation is necessary;
(2) Give the complainant the
opportunity to submit additional
information, either orally or in writing,
about the allegations in the complaint;
(3) Provide the public agency with the
opportunity to respond to the
complaint, including, at a minimum—
(i) At the discretion of the public
agency, a proposal to resolve the
complaint; and
(ii) An opportunity for a parent who
has filed a complaint and the public
agency to voluntarily engage in
mediation consistent with § 300.506;
(4) Review all relevant information
and make an independent
determination as to whether the public
agency is violating a requirement of Part
B of the Act or of this part; and
(5) Issue a written decision to the
complainant that addresses each
allegation in the complaint and
contains—
(i) Findings of fact and conclusions;
and
(ii) The reasons for the SEA’s final
decision.
(b)
Time extension; final decision;
implementation.
The SEA’s procedures
described in paragraph (a) of this
section also must—
(1) Permit an extension of the time
limit under paragraph (a) of this section
only if—
(i) Exceptional circumstances exist
with respect to a particular complaint;
or
(ii) The parent (or individual or
organization, if mediation or other
alternative means of dispute resolution
is available to the individual or
organization under State procedures)
and the public agency involved agree to
extend the time to engage in mediation
pursuant to paragraph (a)(3)(ii) of this
section, or to engage in other alternative
means of dispute resolution, if available
in the State; and
(2) Include procedures for effective
implementation of the SEA’s final
decision, if needed, including—
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve
compliance.
(c)
Complaints filed under this section
and due process hearings under
§ 300.507 and §§ 300.530 through
300.532.
(1) If a written complaint is
received that is also the subject of a due
process hearing under § 300.507 or
§§ 300.530 through 300.532, or contains
multiple issues of which one or more
are part of that hearing, the State must
set aside any part of the complaint that
is being addressed in the due process
hearing until the conclusion of the
hearing. However, any issue in the
complaint that is not a part of the due
process action must be resolved using
the time limit and procedures described
in paragraphs (a) and (b) of this section.
(2) If an issue raised in a complaint
filed under this section has previously
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been decided in a due process hearing
involving the same parties—
(i) The due process hearing decision
is binding on that issue; and
(ii) The SEA must inform the
complainant to that effect.
(3) A complaint alleging a public
agency’s failure to implement a due
process hearing decision must be
resolved by the SEA.
Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
§ 300.153 Filing a complaint.
(a) An organization or individual may
file a signed written complaint under
the procedures described in §§ 300.151
through 300.152.
(b) The complaint must include—
(1) A statement that a public agency
has violated a requirement of Part B of
the Act or of this part;
(2) The facts on which the statement
is based;
(3) The signature and contact
information for the complainant; and
(4) If alleging violations with respect
to a specific child—
(i) The name and address of the
residence of the child;
(ii) The name of the school the child
is attending;
(iii) In the case of a homeless child or
youth (within the meaning of section
725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)),
available contact information for the
child, and the name of the school the
child is attending;
(iv) A description of the nature of the
problem of the child, including facts
relating to the problem; and
(v) A proposed resolution of the
problem to the extent known and
available to the party at the time the
complaint is filed.
(c) The complaint must allege a
violation that occurred not more than
one year prior to the date that the
complaint is received in accordance
with § 300.151.
(d) The party filing the complaint
must forward a copy of the complaint to
the LEA or public agency serving the
child at the same time the party files the
complaint with the SEA.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0600)
(Authority: 20 U.S.C. 1221e–3)
Methods of Ensuring Services
§ 300.154 Methods of ensuring services.
(a)
Establishing responsibility for
services.
The Chief Executive Officer of
a State or designee of that officer must
ensure that an interagency agreement or
other mechanism for interagency
coordination is in effect between each
noneducational public agency described
in paragraph (b) of this section and the
SEA, in order to ensure that all services
described in paragraph (b)(1) of this
section that are needed to ensure FAPE
are provided, including the provision of
these services during the pendency of
any dispute under paragraph (a)(3) of
this section. The agreement or
mechanism must include the following:
(1) An identification of, or a method
for defining, the financial responsibility
of each agency for providing services
described in paragraph (b)(1) of this
section to ensure FAPE to children with
disabilities. The financial responsibility
of each noneducational public agency
described in paragraph (b) of this
section, including the State Medicaid
agency and other public insurers of
children with disabilities, must precede
the financial responsibility of the LEA
(or the State agency responsible for
developing the child’s IEP).
(2) The conditions, terms, and
procedures under which an LEA must
be reimbursed by other agencies.
(3) Procedures for resolving
interagency disputes (including
procedures under which LEAs may
initiate proceedings) under the
agreement or other mechanism to secure
reimbursement from other agencies or
otherwise implement the provisions of
the agreement or mechanism.
(4) Policies and procedures for
agencies to determine and identify the
interagency coordination
responsibilities of each agency to
promote the coordination and timely
and appropriate delivery of services
described in paragraph (b)(1) of this
section.
(b)
Obligation of noneducational
public agencies.
(1)(i) If any public
agency other than an educational agency
is otherwise obligated under Federal or
State law, or assigned responsibility
under State policy or pursuant to
paragraph (a) of this section, to provide
or pay for any services that are also
considered special education or related
services (such as, but not limited to,
services described in § 300.5 relating to
assistive technology devices, § 300.6
relating to assistive technology services,
§ 300.34 relating to related services,
§ 300.41 relating to supplementary aids
and services, and § 300.42 relating to
transition services) that are necessary
for ensuring FAPE to children with
disabilities within the State, the public
agency must fulfill that obligation or
responsibility, either directly or through
contract or other arrangement pursuant
to paragraph (a) of this section or an
agreement pursuant to paragraph (c) of
this section.
(ii) A noneducational public agency
described in paragraph (b)(1)(i) of this
section may not disqualify an eligible
service for Medicaid reimbursement
because that service is provided in a
school context.
(2) If a public agency other than an
educational agency fails to provide or
pay for the special education and
related services described in paragraph
(b)(1) of this section, the LEA (or State
agency responsible for developing the
child’s IEP) must provide or pay for
these services to the child in a timely
manner. The LEA or State agency is
authorized to claim reimbursement for
the services from the noneducational
public agency that failed to provide or
pay for these services and that agency
must reimburse the LEA or State agency
in accordance with the terms of the
interagency agreement or other
mechanism described in paragraph (a)
of this section.
(c)
Special rule.
The requirements of
paragraph (a) of this section may be met
through—
(1) State statute or regulation;
(2) Signed agreements between
respective agency officials that clearly
identify the responsibilities of each
agency relating to the provision of
services; or
(3) Other appropriate written methods
as determined by the Chief Executive
Officer of the State or designee of that
officer and approved by the Secretary.
(d)
Children with disabilities who are
covered by public benefits or insurance.
(1) A public agency may use the
Medicaid or other public benefits or
insurance programs in which a child
participates to provide or pay for
services required under this part, as
permitted under the public benefits or
insurance program, except as provided
in paragraph (d)(2) of this section.
(2) With regard to services required to
provide FAPE to an eligible child under
this part, the public agency—
(i) May not require parents to sign up
for or enroll in public benefits or
insurance programs in order for their
child to receive FAPE under Part B of
the Act;
(ii) May not require parents to incur
an out-of-pocket expense such as the
payment of a deductible or co-pay
amount incurred in filing a claim for
services provided pursuant to this part,
but pursuant to paragraph (g)(2) of this
section, may pay the cost that the
parents otherwise would be required to
pay;
(iii) May not use a child’s benefits
under a public benefits or insurance
program if that use would—
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(A) Decrease available lifetime
coverage or any other insured benefit;
(B) Result in the family paying for
services that would otherwise be
covered by the public benefits or
insurance program and that are required
for the child outside of the time the
child is in school;
(C) Increase premiums or lead to the
discontinuation of benefits or insurance;
or
(D) Risk loss of eligibility for home
and community-based waivers, based on
aggregate health-related expenditures;
and
(iv)(A) Must obtain parental consent,
consistent with § 300.9, each time that
access to public benefits or insurance is
sought; and
(B) Notify parents that the parents’
refusal to allow access to their public
benefits or insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents.
(e)
Children with disabilities who are
covered by private insurance.
(1) With
regard to services required to provide
FAPE to an eligible child under this
part, a public agency may access the
parents’ private insurance proceeds only
if the parents provide consent consistent
with § 300.9.
(2) Each time the public agency
proposes to access the parents’ private
insurance proceeds, the agency must—
(i) Obtain parental consent in
accordance with paragraph (e)(1) of this
section; and
(ii) Inform the parents that their
refusal to permit the public agency to
access their private insurance does not
relieve the public agency of its
responsibility to ensure that all required
services are provided at no cost to the
parents.
(f)
Use of Part B funds.
(1) If a public
agency is unable to obtain parental
consent to use the parents’ private
insurance, or public benefits or
insurance when the parents would incur
a cost for a specified service required
under this part, to ensure FAPE the
public agency may use its Part B funds
to pay for the service.
(2) To avoid financial cost to parents
who otherwise would consent to use
private insurance, or public benefits or
insurance if the parents would incur a
cost, the public agency may use its Part
B funds to pay the cost that the parents
otherwise would have to pay to use the
parents’ benefits or insurance (e.g., the
deductible or co-pay amounts).
(g)
Proceeds from public benefits or
insurance or private insurance.
(1)
Proceeds from public benefits or
insurance or private insurance will not
be treated as program income for
purposes of 34 CFR 80.25.
(2) If a public agency spends
reimbursements from Federal funds
(e.g., Medicaid) for services under this
part, those funds will not be considered
‘‘State or local’’ funds for purposes of
the maintenance of effort provisions in
§§ 300.163 and 300.203.
(h)
Construction.
Nothing in this part
should be construed to alter the
requirements imposed on a State
Medicaid agency, or any other agency
administering a public benefits or
insurance program by Federal statute,
regulations or policy under title XIX, or
title XXI of the Social Security Act, 42
U.S.C. 1396 through 1396v and 42
U.S.C. 1397aa through 1397jj, or any
other public benefits or insurance
program.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(12) and (e))
Additional Eligibility Requirements
§ 300.155 Hearings relating to LEA
eligibility.
The SEA must not make any final
determination that an LEA is not
eligible for assistance under Part B of
the Act without first giving the LEA
reasonable notice and an opportunity
for a hearing under 34 CFR 76.401(d).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(13))
§ 300.156 Personnel qualifications.
(a)
General.
The SEA must establish
and maintain qualifications to ensure
that personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained,
including that those personnel have the
content knowledge and skills to serve
children with disabilities.
(b)
Related services personnel and
paraprofessionals.
The qualifications
under paragraph (a) of this section must
include qualifications for related
services personnel and
paraprofessionals that—
(1) Are consistent with any State-
approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the professional discipline in
which those personnel are providing
special education or related services;
and
(2) Ensure that related services
personnel who deliver services in their
discipline or profession—
(i) Meet the requirements of paragraph
(b)(1) of this section; and
(ii) Have not had certification or
licensure requirements waived on an
emergency, temporary, or provisional
basis; and
(iii) Allow paraprofessionals and
assistants who are appropriately trained
and supervised, in accordance with
State law, regulation, or written policy,
in meeting the requirements of this part
to be used to assist in the provision of
special education and related services
under this part to children with
disabilities.
(c)
Qualifications for special
education teachers.
The qualifications
described in paragraph (a) of this
section must ensure that each person
employed as a public school special
education teacher in the State who
teaches in an elementary school, middle
school, or secondary school is highly
qualified as a special education teacher
by the deadline established in section
1119(a)(2) of the ESEA.
(d)
Policy.
In implementing this
section, a State must adopt a policy that
includes a requirement that LEAs in the
State take measurable steps to recruit,
hire, train, and retain highly qualified
personnel to provide special education
and related services under this part to
children with disabilities.
(e)
Rule of construction.
Notwithstanding any other individual
right of action that a parent or student
may maintain under this part, nothing
in this part shall be construed to create
a right of action on behalf of an
individual student or a class of students
for the failure of a particular SEA or
LEA employee to be highly qualified, or
to prevent a parent from filing a
complaint about staff qualifications with
the SEA as provided for under this part.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(14))
§ 300.157 Performance goals and
indicators.
The State must—
(a) Have in effect established goals for
the performance of children with
disabilities in the State that—
(1) Promote the purposes of this part,
as stated in § 300.1;
(2) Are the same as the State’s
objectives for progress by children in its
definition of adequate yearly progress,
including the State’s objectives for
progress by children with disabilities,
under section 1111(b)(2)(C) of the ESEA,
20 U.S.C. 6311;
(3) Address graduation rates and
dropout rates, as well as such other
factors as the State may determine; and
(4) Are consistent, to the extent
appropriate, with any other goals and
academic standards for children
established by the State;
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(b) Have in effect established
performance indicators the State will
use to assess progress toward achieving
the goals described in paragraph (a) of
this section, including measurable
annual objectives for progress by
children with disabilities under section
1111(b)(2)(C)(v)(II)(cc) of the ESEA, 20
U.S.C. 6311; and
(c) Annually report to the Secretary
and the public on the progress of the
State, and of children with disabilities
in the State, toward meeting the goals
established under paragraph (a) of this
section, which may include elements of
the reports required under section
1111(h) of the ESEA.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(15))
§§ 300.158–300.161 [Reserved]
§ 300.162 Supplementation of State, local,
and other Federal funds.
(a)
Expenditures.
Funds paid to a
State under this part must be expended
in accordance with all the provisions of
this part.
(b)
Prohibition against commingling.
(1) Funds paid to a State under this part
must not be commingled with State
funds.
(2) The requirement in paragraph
(b)(1) of this section is satisfied by the
use of a separate accounting system that
includes an audit trail of the
expenditure of funds paid to a State
under this part. Separate bank accounts
are not required. (See 34 CFR 76.702
(Fiscal control and fund accounting
procedures).)
(c)
State-level nonsupplanting.
(1)
Except as provided in § 300.202, funds
paid to a State under Part B of the Act
must be used to supplement the level of
Federal, State, and local funds
(including funds that are not under the
direct control of the SEA or LEAs)
expended for special education and
related services provided to children
with disabilities under Part B of the Act,
and in no case to supplant those
Federal, State, and local funds.
(2) If the State provides clear and
convincing evidence that all children
with disabilities have available to them
FAPE, the Secretary may waive, in
whole or in part, the requirements of
paragraph (c)(1) of this section if the
Secretary concurs with the evidence
provided by the State under § 300.164.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(17))
§ 300.163 Maintenance of State financial
support.
(a)
General.
A State must not reduce
the amount of State financial support for
special education and related services
for children with disabilities, or
otherwise made available because of the
excess costs of educating those children,
below the amount of that support for the
preceding fiscal year.
(b)
Reduction of funds for failure to
maintain support.
The Secretary
reduces the allocation of funds under
section 611 of the Act for any fiscal year
following the fiscal year in which the
State fails to comply with the
requirement of paragraph (a) of this
section by the same amount by which
the State fails to meet the requirement.
(c)
Waivers for exceptional or
uncontrollable circumstances.
The
Secretary may waive the requirement of
paragraph (a) of this section for a State,
for one fiscal year at a time, if the
Secretary determines that—
(1) Granting a waiver would be
equitable due to exceptional or
uncontrollable circumstances such as a
natural disaster or a precipitous and
unforeseen decline in the financial
resources of the State; or
(2) The State meets the standard in
§ 300.164 for a waiver of the
requirement to supplement, and not to
supplant, funds received under Part B of
the Act.
(d)
Subsequent years.
If, for any fiscal
year, a State fails to meet the
requirement of paragraph (a) of this
section, including any year for which
the State is granted a waiver under
paragraph (c) of this section, the
financial support required of the State
in future years under paragraph (a) of
this section shall be the amount that
would have been required in the
absence of that failure and not the
reduced level of the State’s support.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(18))
§ 300.164 Waiver of requirement regarding
supplementing and not supplanting with
Part B funds.
(a) Except as provided under
§§ 300.202 through 300.205, funds paid
to a State under Part B of the Act must
be used to supplement and increase the
level of Federal, State, and local funds
(including funds that are not under the
direct control of SEAs or LEAs)
expended for special education and
related services provided to children
with disabilities under Part B of the Act
and in no case to supplant those
Federal, State, and local funds. A State
may use funds it retains under
§ 300.704(a) and (b) without regard to
the prohibition on supplanting other
funds.
(b) If a State provides clear and
convincing evidence that all eligible
children with disabilities throughout
the State have FAPE available to them,
the Secretary may waive for a period of
one year in whole or in part the
requirement under § 300.162 (regarding
State-level nonsupplanting) if the
Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a
waiver under this section, it must
submit to the Secretary a written request
that includes—
(1) An assurance that FAPE is
currently available, and will remain
available throughout the period that a
waiver would be in effect, to all eligible
children with disabilities throughout
the State, regardless of the public
agency that is responsible for providing
FAPE to them. The assurance must be
signed by an official who has the
authority to provide that assurance as it
applies to all eligible children with
disabilities in the State;
(2) All evidence that the State wishes
the Secretary to consider in determining
whether all eligible children with
disabilities have FAPE available to
them, setting forth in detail—
(i) The basis on which the State has
concluded that FAPE is available to all
eligible children in the State; and
(ii) The procedures that the State will
implement to ensure that FAPE remains
available to all eligible children in the
State, which must include—
(A) The State’s procedures under
§ 300.111 for ensuring that all eligible
children are identified, located and
evaluated;
(B) The State’s procedures for
monitoring public agencies to ensure
that they comply with all requirements
of this part;
(C) The State’s complaint procedures
under §§ 300.151 through 300.153; and
(D) The State’s hearing procedures
under §§ 300.511 through 300.516 and
§§ 300.530 through 300.536;
(3) A summary of all State and
Federal monitoring reports, and State
complaint decisions (see §§ 300.151
through 300.153) and hearing decisions
(see §§ 300.511 through 300.516 and
§§ 300.530 through 300.536), issued
within three years prior to the date of
the State’s request for a waiver under
this section, that includes any finding
that FAPE has not been available to one
or more eligible children, and evidence
that FAPE is now available to all
children addressed in those reports or
decisions; and
(4) Evidence that the State, in
determining that FAPE is currently
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available to all eligible children with
disabilities in the State, has consulted
with the State advisory panel under
§ 300.167.
(d) If the Secretary determines that the
request and supporting evidence
submitted by the State makes a prima
facie showing that FAPE is, and will
remain, available to all eligible children
with disabilities in the State, the
Secretary, after notice to the public
throughout the State, conducts a public
hearing at which all interested persons
and organizations may present evidence
regarding the following issues:
(1) Whether FAPE is currently
available to all eligible children with
disabilities in the State.
(2) Whether the State will be able to
ensure that FAPE remains available to
all eligible children with disabilities in
the State if the Secretary provides the
requested waiver.
(e) Following the hearing, the
Secretary, based on all submitted
evidence, will provide a waiver, in
whole or in part, for a period of one year
if the Secretary finds that the State has
provided clear and convincing evidence
that FAPE is currently available to all
eligible children with disabilities in the
State, and the State will be able to
ensure that FAPE remains available to
all eligible children with disabilities in
the State if the Secretary provides the
requested waiver.
(f) A State may receive a waiver of the
requirement of section 612(a)(18)(A) of
the Act and § 300.164 if it satisfies the
requirements of paragraphs (b) through
(e) of this section.
(g) The Secretary may grant
subsequent waivers for a period of one
year each, if the Secretary determines
that the State has provided clear and
convincing evidence that all eligible
children with disabilities throughout
the State have, and will continue to
have throughout the one-year period of
the waiver, FAPE available to them.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(17)(C),
(18)(C)(ii))
§ 300.165 Public participation.
(a) Prior to the adoption of any
policies and procedures needed to
comply with Part B of the Act
(including any amendments to those
policies and procedures), the State must
ensure that there are public hearings,
adequate notice of the hearings, and an
opportunity for comment available to
the general public, including
individuals with disabilities and parents
of children with disabilities.
(b) Before submitting a State plan
under this part, a State must comply
with the public participation
requirements in paragraph (a) of this
section and those in 20 U.S.C.
1232d(b)(7).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C.
1232d(b)(7))
§ 300.166 Rule of construction.
In complying with §§ 300.162 and
300.163, a State may not use funds paid
to it under this part to satisfy State-law
mandated funding obligations to LEAs,
including funding based on student
attendance or enrollment, or inflation.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(20))
State Advisory Panel
§ 300.167 State advisory panel.
The State must establish and maintain
an advisory panel for the purpose of
providing policy guidance with respect
to special education and related services
for children with disabilities in the
State.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(A))
§ 300.168 Membership.
(a)
General.
The advisory panel must
consist of members appointed by the
Governor, or any other official
authorized under State law to make
such appointments, be representative of
the State population and be composed
of individuals involved in, or concerned
with the education of children with
disabilities, including—
(1) Parents of children with
disabilities (ages birth through 26);
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of
higher education that prepare special
education and related services
personnel;
(5) State and local education officials,
including officials who carry out
activities under subtitle B of title VII of
the McKinney-Vento Homeless
Assistance Act, (42 U.S.C. 11431
et
seq.
);
(6) Administrators of programs for
children with disabilities;
(7) Representatives of other State
agencies involved in the financing or
delivery of related services to children
with disabilities;
(8) Representatives of private schools
and public charter schools;
(9) Not less than one representative of
a vocational, community, or business
organization concerned with the
provision of transition services to
children with disabilities;
(10) A representative from the State
child welfare agency responsible for
foster care; and
(11) Representatives from the State
juvenile and adult corrections agencies.
(b)
Special rule.
A majority of the
members of the panel must be
individuals with disabilities or parents
of children with disabilities (ages birth
through 26).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
§ 300.169 Duties.
The advisory panel must—
(a) Advise the SEA of unmet needs
within the State in the education of
children with disabilities;
(b) Comment publicly on any rules or
regulations proposed by the State
regarding the education of children with
disabilities;
(c) Advise the SEA in developing
evaluations and reporting on data to the
Secretary under section 618 of the Act;
(d) Advise the SEA in developing
corrective action plans to address
findings identified in Federal
monitoring reports under Part B of the
Act; and
(e) Advise the SEA in developing and
implementing policies relating to the
coordination of services for children
with disabilities.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(21)(D))
Other Provisions Required for State
Eligibility
§ 300.170 Suspension and expulsion rates.
(a)
General.
The SEA must examine
data, including data disaggregated by
race and ethnicity, to determine if
significant discrepancies are occurring
in the rate of long-term suspensions and
expulsions of children with
disabilities—
(1) Among LEAs in the State; or
(2) Compared to the rates for
nondisabled children within those
agencies.
(b)
Review and revision of policies.
If
the discrepancies described in
paragraph (a) of this section are
occurring, the SEA must review and, if
appropriate, revise (or require the
affected State agency or LEA to revise)
its policies, procedures, and practices
relating to the development and
implementation of IEPs, the use of
positive behavioral interventions and
supports, and procedural safeguards, to
ensure that these policies, procedures,
and practices comply with the Act.
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(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(22))
§ 300.171 Annual description of use of
Part B funds.
(a) In order to receive a grant in any
fiscal year a State must annually
describe—
(1) How amounts retained for State
administration and State-level activities
under § 300.704 will be used to meet the
requirements of this part; and
(2) How those amounts will be
allocated among the activities described
in § 300.704 to meet State priorities
based on input from LEAs.
(b) If a State’s plans for use of its
funds under § 300.704 for the
forthcoming year do not change from
the prior year, the State may submit a
letter to that effect to meet the
requirement in paragraph (a) of this
section.
(c) The provisions of this section do
not apply to the Virgin Islands, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, and the
freely associated States.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1411(e)(5))
§ 300.172 Access to instructional
materials.
(a)
General.
The State must—
(1) Adopt the National Instructional
Materials Accessibility Standard
(NIMAS), published as appendix C to
part 300, for the purposes of providing
instructional materials to blind persons
or other persons with print disabilities,
in a timely manner after publication of
the NIMAS in the
Federal Register
on
July 19, 2006 (71 FR 41084); and
(2) Establish a State definition of
‘‘timely manner’’ for purposes of
paragraphs (b)(2) and (b)(3) of this
section if the State is not coordinating
with the National Instructional
Materials Access Center (NIMAC) or
(b)(3) and (c)(2) of this section if the
State is coordinating with the NIMAC.
(b)
Rights and responsibilities of SEA.
(1) Nothing in this section shall be
construed to require any SEA to
coordinate with the NIMAC.
(2) If an SEA chooses not to
coordinate with the NIMAC, the SEA
must provide an assurance to the
Secretary that it will provide
instructional materials to blind persons
or other persons with print disabilities
in a timely manner.
(3) Nothing in this section relieves an
SEA of its responsibility to ensure that
children with disabilities who need
instructional materials in accessible
formats, but are not included under the
definition of blind or other persons with
print disabilities in § 300.172(e)(1)(i) or
who need materials that cannot be
produced from NIMAS files, receive
those instructional materials in a timely
manner.
(4) In order to meet its responsibility
under paragraphs (b)(2), (b)(3), and (c) of
this section to ensure that children with
disabilities who need instructional
materials in accessible formats are
provided those materials in a timely
manner, the SEA must ensure that all
public agencies take all reasonable steps
to provide instructional materials in
accessible formats to children with
disabilities who need those
instructional materials at the same time
as other children receive instructional
materials.
(c)
Preparation and delivery of files.
If
an SEA chooses to coordinate with the
NIMAC, as of December 3, 2006, the
SEA must—
(1) As part of any print instructional
materials adoption process,
procurement contract, or other practice
or instrument used for purchase of print
instructional materials, must enter into
a written contract with the publisher of
the print instructional materials to—
(i) Require the publisher to prepare
and, on or before delivery of the print
instructional materials, provide to
NIMAC electronic files containing the
contents of the print instructional
materials using the NIMAS; or
(ii) Purchase instructional materials
from the publisher that are produced in,
or may be rendered in, specialized
formats.
(2) Provide instructional materials to
blind persons or other persons with
print disabilities in a timely manner.
(d)
Assistive technology.
In carrying
out this section, the SEA, to the
maximum extent possible, must work
collaboratively with the State agency
responsible for assistive technology
programs.
(e)
Definitions.
(1) In this section and
§ 300.210—
(i)
Blind persons or other persons with
print disabilities
means children served
under this part who may qualify to
receive books and other publications
produced in specialized formats in
accordance with the Act entitled ‘‘An
Act to provide books for adult blind,’’
approved March 3, 1931, 2 U.S.C 135a;
(ii)
National Instructional Materials
Access Center
or
NIMAC
means the
center established pursuant to section
674(e) of the Act;
(iii)
National Instructional Materials
Accessibility Standard
or
NIMAS
has
the meaning given the term in section
674(e)(3)(B) of the Act;
(iv)
Specialized formats
has the
meaning given the term in section
674(e)(3)(D) of the Act.
(2) The definitions in paragraph (e)(1)
of this section apply to each State and
LEA, whether or not the State or LEA
chooses to coordinate with the NIMAC.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(23), 1474(e))
§ 300.173 Overidentification and
disproportionality.
The State must have in effect,
consistent with the purposes of this part
and with section 618(d) of the Act,
policies and procedures designed to
prevent the inappropriate
overidentification or disproportionate
representation by race and ethnicity of
children as children with disabilities,
including children with disabilities
with a particular impairment described
in § 300.8.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(24))
§ 300.174 Prohibition on mandatory
medication.
(a)
General.
The SEA must prohibit
State and LEA personnel from requiring
parents to obtain a prescription for
substances identified under schedules I,
II, III, IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C.
812(c)) for a child as a condition of
attending school, receiving an
evaluation under §§ 300.300 through
300.311, or receiving services under this
part.
(b)
Rule of construction.
Nothing in
paragraph (a) of this section shall be
construed to create a Federal
prohibition against teachers and other
school personnel consulting or sharing
classroom-based observations with
parents or guardians regarding a
student’s academic and functional
performance, or behavior in the
classroom or school, or regarding the
need for evaluation for special
education or related services under
§ 300.111 (related to child find).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(a)(25))
§ 300.175 SEA as provider of FAPE or
direct services.
If the SEA provides FAPE to children
with disabilities, or provides direct
services to these children, the agency—
(a) Must comply with any additional
requirements of §§ 300.201 and 300.202
and §§ 300.206 through 300.226 as if the
agency were an LEA; and
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(b) May use amounts that are
otherwise available to the agency under
Part B of the Act to serve those children
without regard to § 300.202(b) (relating
to excess costs).
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(b))
§ 300.176 Exception for prior State plans.
(a)
General.
If a State has on file with
the Secretary policies and procedures
approved by the Secretary that
demonstrate that the State meets any
requirement of § 300.100, including any
policies and procedures filed under Part
B of the Act as in effect before,
December 3, 2004, the Secretary
considers the State to have met the
requirement for purposes of receiving a
grant under Part B of the Act.
(b)
Modifications made by a State.
(1)
Subject to paragraph (b)(2) of this
section, policies and procedures
submitted by a State in accordance with
this subpart remain in effect until the
State submits to the Secretary the
modifications that the State determines
necessary.
(2) The provisions of this subpart
apply to a modification to an
application to the same extent and in
the same manner that they apply to the
original plan.
(c)
Modifications required by the
Secretary.
The Secretary may require a
State to modify its policies and
procedures, but only to the extent
necessary to ensure the State’s
compliance with this part, if—
(1) After December 3, 2004, the
provisions of the Act or the regulations
in this part are amended;
(2) There is a new interpretation of
this Act by a Federal court or a State’s
highest court; or
(3) There is an official finding of
noncompliance with Federal law or
regulations.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(c)(2) and (3))
§ 300.177 States’ sovereign immunity.
(a)
General.
A State that accepts funds
under this part waives its immunity
under the 11th amendment to the
Constitution of the United States from
suit in Federal court for a violation of
this part.
(b)
Remedies.
In a suit against a State
for a violation of this part, remedies
(including remedies both at law and in
equity) are available for such a violation
in the suit against a public entity other
than a State.
(c)
Effective date.
Paragraphs (a) and
(b) of this section apply with respect to
violations that occur in whole or part
after the date of enactment of the
Education of the Handicapped Act
Amendments of 1990.
(Authority: 20 U.S.C. 1404)
Department Procedures
§ 300.178 Determination by the Secretary
that a State is eligible to receive a grant.
If the Secretary determines that a
State is eligible to receive a grant under
Part B of the Act, the Secretary notifies
the State of that determination.
(Authority: 20 U.S.C. 1412(d)(1))
§ 300.179 Notice and hearing before
determining that a State is not eligible to
receive a grant.
(a)
General.
(1) The Secretary does not
make a final determination that a State
is not eligible to receive a grant under
Part B of the Act until providing the
State—
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph
(a)(1)(i) of this section, the Secretary
sends a written notice to the SEA by
certified mail with return receipt
requested.
(b)
Content of notice.
In the written
notice described in paragraph (a)(2) of
this section, the Secretary—
(1) States the basis on which the
Secretary proposes to make a final
determination that the State is not
eligible;
(2) May describe possible options for
resolving the issues;
(3) Advises the SEA that it may
request a hearing and that the request
for a hearing must be made not later
than 30 days after it receives the notice
of the proposed final determination that
the State is not eligible; and
(4) Provides the SEA with information
about the hearing procedures that will
be followed.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.180 Hearing official or panel.
(a) If the SEA requests a hearing, the
Secretary designates one or more
individuals, either from the Department
or elsewhere, not responsible for or
connected with the administration of
this program, to conduct a hearing.
(b) If more than one individual is
designated, the Secretary designates one
of those individuals as the Chief
Hearing Official of the Hearing Panel. If
one individual is designated, that
individual is the Hearing Official.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.181 Hearing procedures.
(a) As used in §§ 300.179 through
300.184 the term party or parties means
the following:
(1) An SEA that requests a hearing
regarding the proposed disapproval of
the State’s eligibility under this part.
(2) The Department official who
administers the program of financial
assistance under this part.
(3) A person, group or agency with an
interest in and having relevant
information about the case that has
applied for and been granted leave to
intervene by the Hearing Official or
Hearing Panel.
(b) Within 15 days after receiving a
request for a hearing, the Secretary
designates a Hearing Official or Hearing
Panel and notifies the parties.
(c) The Hearing Official or Hearing
Panel may regulate the course of
proceedings and the conduct of the
parties during the proceedings. The
Hearing Official or Hearing Panel takes
all steps necessary to conduct a fair and
impartial proceeding, to avoid delay,
and to maintain order, including the
following:
(1) The Hearing Official or Hearing
Panel may hold conferences or other
types of appropriate proceedings to
clarify, simplify, or define the issues or
to consider other matters that may aid
in the disposition of the case.
(2) The Hearing Official or Hearing
Panel may schedule a prehearing
conference with the Hearing Official or
Hearing Panel and the parties.
(3) Any party may request the Hearing
Official or Hearing Panel to schedule a
prehearing or other conference. The
Hearing Official or Hearing Panel
decides whether a conference is
necessary and notifies all parties.
(4) At a prehearing or other
conference, the Hearing Official or
Hearing Panel and the parties may
consider subjects such as—
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching
agreements and stipulations;
(iii) Clarifying the positions of the
parties;
(iv) Determining whether an
evidentiary hearing or oral argument
should be held; and
(v) Setting dates for—
(A) The exchange of written
documents;
(B) The receipt of comments from the
parties on the need for oral argument or
evidentiary hearing;
(C) Further proceedings before the
Hearing Official or Hearing Panel
(including an evidentiary hearing or oral
argument, if either is scheduled);
(D) Requesting the names of witnesses
each party wishes to present at an
evidentiary hearing and estimation of
time for each presentation; or
(E) Completion of the review and the
initial decision of the Hearing Official or
Hearing Panel.
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(5) A prehearing or other conference
held under paragraph (b)(4) of this
section may be conducted by telephone
conference call.
(6) At a prehearing or other
conference, the parties must be prepared
to discuss the subjects listed in
paragraph (b)(4) of this section.
(7) Following a prehearing or other
conference the Hearing Official or
Hearing Panel may issue a written
statement describing the issues raised,
the action taken, and the stipulations
and agreements reached by the parties.
(d) The Hearing Official or Hearing
Panel may require parties to state their
positions and to provide all or part of
the evidence in writing.
(e) The Hearing Official or Hearing
Panel may require parties to present
testimony through affidavits and to
conduct cross-examination through
interrogatories.
(f) The Hearing Official or Hearing
Panel may direct the parties to exchange
relevant documents or information and
lists of witnesses, and to send copies to
the Hearing Official or Panel.
(g) The Hearing Official or Hearing
Panel may receive, rule on, exclude, or
limit evidence at any stage of the
proceedings.
(h) The Hearing Official or Hearing
Panel may rule on motions and other
issues at any stage of the proceedings.
(i) The Hearing Official or Hearing
Panel may examine witnesses.
(j) The Hearing Official or Hearing
Panel may set reasonable time limits for
submission of written documents.
(k) The Hearing Official or Hearing
Panel may refuse to consider documents
or other submissions if they are not
submitted in a timely manner unless
good cause is shown.
(l) The Hearing Official or Hearing
Panel may interpret applicable statutes
and regulations but may not waive them
or rule on their validity.
(m)(1) The parties must present their
positions through briefs and the
submission of other documents and may
request an oral argument or evidentiary
hearing. The Hearing Official or Hearing
Panel shall determine whether an oral
argument or an evidentiary hearing is
needed to clarify the positions of the
parties.
(2) The Hearing Official or Hearing
Panel gives each party an opportunity to
be represented by counsel.
(n) If the Hearing Official or Hearing
Panel determines that an evidentiary
hearing would materially assist the
resolution of the matter, the Hearing
Official or Hearing Panel gives each
party, in addition to the opportunity to
be represented by counsel—
(1) An opportunity to present
witnesses on the party’s behalf; and
(2) An opportunity to cross-examine
witnesses either orally or with written
questions.
(o) The Hearing Official or Hearing
Panel accepts any evidence that it finds
is relevant and material to the
proceedings and is not unduly
repetitious.
(p)(1) The Hearing Official or Hearing
Panel—
(i) Arranges for the preparation of a
transcript of each hearing;
(ii) Retains the original transcript as
part of the record of the hearing; and
(iii) Provides one copy of the
transcript to each party.
(2) Additional copies of the transcript
are available on request and with
payment of the reproduction fee.
(q) Each party must file with the
Hearing Official or Hearing Panel all
written motions, briefs, and other
documents and must at the same time
provide a copy to the other parties to the
proceedings.
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.182 Initial decision; final decision.
(a) The Hearing Official or Hearing
Panel prepares an initial written
decision that addresses each of the
points in the notice sent by the
Secretary to the SEA under § 300.179
including any amendments to or further
clarifications of the issues, under
§ 300.181(c)(7).
(b) The initial decision of a Hearing
Panel is made by a majority of Panel
members.
(c) The Hearing Official or Hearing
Panel mails, by certified mail with
return receipt requested, a copy of the
initial decision to each party (or to the
party’s counsel) and to the Secretary,
with a notice stating that each party has
an opportunity to submit written
comments regarding the decision to the
Secretary.
(d) Each party may file comments and
recommendations on the initial decision
with the Hearing Official or Hearing
Panel within 15 days of the date the
party receives the Panel’s decision.
(e) The Hearing Official or Hearing
Panel sends a copy of a party’s initial
comments and recommendations to the
other parties by certified mail with
return receipt requested. Each party may
file responsive comments and
recommendations with the Hearing
Official or Hearing Panel within seven
days of the date the party receives the
initial comments and recommendations.
(f) The Hearing Official or Hearing
Panel forwards the parties’ initial and
responsive comments on the initial
decision to the Secretary who reviews
the initial decision and issues a final
decision.
(g) The initial decision of the Hearing
Official or Hearing Panel becomes the
final decision of the Secretary unless,
within 25 days after the end of the time
for receipt of written comments and
recommendations, the Secretary informs
the Hearing Official or Hearing Panel
and the parties to a hearing in writing
that the decision is being further
reviewed for possible modification.
(h) The Secretary rejects or modifies
the initial decision of the Hearing
Official or Hearing Panel if the Secretary
finds that it is clearly erroneous.
(i) The Secretary conducts the review
based on the initial decision, the written
record, the transcript of the Hearing
Official’s or Hearing Panel’s
proceedings, and written comments.
(j) The Secretary may remand the
matter to the Hearing Official or Hearing
Panel for further proceedings.
(k) Unless the Secretary remands the
matter as provided in paragraph (j) of
this section, the Secretary issues the
final decision, with any necessary
modifications, within 30 days after
notifying the Hearing Official or Hearing
Panel that the initial decision is being
further reviewed.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1412(d)(2))
§ 300.183 Filing requirements.
(a) Any written submission by a party
under §§ 300.179 through 300.184 must
be filed by hand delivery, by mail, or by
facsimile transmission. The Secretary
discourages the use of facsimile
transmission for documents longer than
five pages.
(b) The filing date under paragraph (a)
of this section is the date the document
is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile
transmission is responsible for
confirming that a complete and legible
copy of the document was received by
the Department.
(d) If a document is filed by facsimile
transmission, the Secretary, the Hearing
Official, or the Hearing Panel, as
applicable, may require the filing of a
follow-up hard copy by hand delivery or
by mail within a reasonable period of
time.
(e) If agreed upon by the parties,
service of a document may be made
upon the other party by facsimile
transmission.
(Authority: 20 U.S.C. 1412(d))
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§ 300.184 Judicial review.
If a State is dissatisfied with the
Secretary’s final decision with respect to
the eligibility of the State under section
612 of the Act, the State may, not later
than 60 days after notice of that
decision, file with the United States
Court of Appeals for the circuit in
which that State is located a petition for
review of that decision. A copy of the
petition must be transmitted by the
clerk of the court to the Secretary. The
Secretary then files in the court the
record of the proceedings upon which
the Secretary’s decision was based, as
provided in 28 U.S.C. 2112.
(Authority: 20 U.S.C. 1416(e)(8))
§ 300.185 [Reserved]
§ 300.186 Assistance under other Federal
programs.
Part B of the Act may not be
construed to permit a State to reduce
medical and other assistance available,
or to alter eligibility, under titles V and
XIX of the Social Security Act with
respect to the provision of FAPE for
children with disabilities in the State.
(Authority: 20 U.S.C. 1412(e))
By-pass for Children in Private Schools
§ 300.190 By-pass—general.
(a) If, on December 2, 1983, the date
of enactment of the Education of the
Handicapped Act Amendments of 1983,
an SEA was prohibited by law from
providing for the equitable participation
in special programs of children with
disabilities enrolled in private
elementary schools and secondary
schools as required by section
612(a)(10)(A) of the Act, or if the
Secretary determines that an SEA, LEA,
or other public agency has substantially
failed or is unwilling to provide for such
equitable participation then the
Secretary shall, notwithstanding such
provision of law, arrange for the
provision of services to these children
through arrangements which shall be
subject to the requirements of section
612(a)(10)(A) of the Act.
(b) The Secretary waives the
requirement of section 612(a)(10)(A) of
the Act and of §§ 300.131 through
300.144 if the Secretary implements a
by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
§ 300.191 Provisions for services under a
by-pass.
(a) Before implementing a by-pass, the
Secretary consults with appropriate
public and private school officials,
including SEA officials, in the affected
State, and as appropriate, LEA or other
public agency officials to consider
matters such as—
(1) Any prohibition imposed by State
law that results in the need for a by-
pass; and
(2) The scope and nature of the
services required by private school
children with disabilities in the State,
and the number of children to be served
under the by-pass.
(b) After determining that a by-pass is
required, the Secretary arranges for the
provision of services to private school
children with disabilities in the State,
LEA or other public agency in a manner
consistent with the requirements of
section 612(a)(10)(A) of the Act and
§§ 300.131 through 300.144 by
providing services through one or more
agreements with appropriate parties.
(c) For any fiscal year that a by-pass
is implemented, the Secretary
determines the maximum amount to be
paid to the providers of services by
multiplying—
(1) A per child amount determined by
dividing the total amount received by
the State under Part B of the Act for the
fiscal year by the number of children
with disabilities served in the prior year
as reported to the Secretary under
section 618 of the Act; by
(2) The number of private school
children with disabilities (as defined in
§§ 300.8(a) and 300.130) in the State,
LEA or other public agency, as
determined by the Secretary on the basis
of the most recent satisfactory data
available, which may include an
estimate of the number of those children
with disabilities.
(d) The Secretary deducts from the
State’s allocation under Part B of the Act
the amount the Secretary determines is
necessary to implement a by-pass and
pays that amount to the provider of
services. The Secretary may withhold
this amount from the State’s allocation
pending final resolution of any
investigation or complaint that could
result in a determination that a by-pass
must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
§ 300.192 Notice of intent to implement a
by-pass.
(a) Before taking any final action to
implement a by-pass, the Secretary
provides the SEA and, as appropriate,
LEA or other public agency with written
notice.
(b) In the written notice, the
Secretary—
(1) States the reasons for the proposed
by-pass in sufficient detail to allow the
SEA and, as appropriate, LEA or other
public agency to respond; and
(2) Advises the SEA and, as
appropriate, LEA or other public agency
that it has a specific period of time (at
least 45 days) from receipt of the written
notice to submit written objections to
the proposed by-pass and that it may
request in writing the opportunity for a
hearing to show cause why a by-pass
should not be implemented.
(c) The Secretary sends the notice to
the SEA and, as appropriate, LEA or
other public agency by certified mail
with return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
§ 300.193 Request to show cause.
An SEA, LEA or other public agency
in receipt of a notice under § 300.192
that seeks an opportunity to show cause
why a by-pass should not be
implemented must submit a written
request for a show cause hearing to the
Secretary, within the specified time
period in the written notice in
§ 300.192(b)(2).
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.194 Show cause hearing.
(a) If a show cause hearing is
requested, the Secretary—
(1) Notifies the SEA and affected LEA
or other public agency, and other
appropriate public and private school
officials of the time and place for the
hearing;
(2) Designates a person to conduct the
show cause hearing. The designee must
not have had any responsibility for the
matter brought for a hearing; and
(3) Notifies the SEA, LEA or other
public agency, and representatives of
private schools that they may be
represented by legal counsel and submit
oral or written evidence and arguments
at the hearing.
(b) At the show cause hearing, the
designee considers matters such as—
(1) The necessity for implementing a
by-pass;
(2) Possible factual errors in the
written notice of intent to implement a
by-pass; and
(3) The objections raised by public
and private school representatives.
(c) The designee may regulate the
course of the proceedings and the
conduct of parties during the pendency
of the proceedings. The designee takes
all steps necessary to conduct a fair and
impartial proceeding, to avoid delay,
and to maintain order.
(d) The designee has no authority to
require or conduct discovery.
(e) The designee may interpret
applicable statutes and regulations, but
may not waive them or rule on their
validity.
(f) The designee arranges for the
preparation, retention, and, if
appropriate, dissemination of the record
of the hearing.
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(g) Within 10 days after the hearing,
the designee—
(1) Indicates that a decision will be
issued on the basis of the existing
record; or
(2) Requests further information from
the SEA, LEA, other public agency,
representatives of private schools or
Department officials.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.195 Decision.
(a) The designee who conducts the
show cause hearing—
(1) Within 120 days after the record of
a show cause hearing is closed, issues
a written decision that includes a
statement of findings; and
(2) Submits a copy of the decision to
the Secretary and sends a copy to each
party by certified mail with return
receipt requested.
(b) Each party may submit comments
and recommendations on the designee’s
decision to the Secretary within 30 days
of the date the party receives the
designee’s decision.
(c) The Secretary adopts, reverses, or
modifies the designee’s decision and
notifies all parties to the show cause
hearing of the Secretary’s final action.
That notice is sent by certified mail with
return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.196 Filing requirements.
(a) Any written submission under
§ 300.194 must be filed by hand-
delivery, by mail, or by facsimile
transmission. The Secretary discourages
the use of facsimile transmission for
documents longer than five pages.
(b) The filing date under paragraph (a)
of this section is the date the document
is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile
transmission is responsible for
confirming that a complete and legible
copy of the document was received by
the Department.
(d) If a document is filed by facsimile
transmission, the Secretary or the
hearing officer, as applicable, may
require the filing of a follow-up hard
copy by hand-delivery or by mail within
a reasonable period of time.
(e) If agreed upon by the parties,
service of a document may be made
upon the other party by facsimile
transmission.
(f) A party must show a proof of
mailing to establish the filing date under
paragraph (b)(2) of this section as
provided in 34 CFR 75.102(d).
(Authority: 20 U.S.C. 1412(f)(3))
§ 300.197 Judicial review.
If dissatisfied with the Secretary’s
final action, the SEA may, within 60
days after notice of that action, file a
petition for review with the United
States Court of Appeals for the circuit in
which the State is located. The
procedures for judicial review are
described in section 612(f)(3) (B)
through (D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)–(D))
§ 300.198 Continuation of a by-pass.
The Secretary continues a by-pass
until the Secretary determines that the
SEA, LEA or other public agency will
meet the requirements for providing
services to private school children.
(Authority: 20 U.S.C. 1412(f)(2)(C))
State Administration
§ 300.199 State administration.
(a)
Rulemaking.
Each State that
receives funds under Part B of the Act
must—
(1) Ensure that any State rules,
regulations, and policies relating to this
part conform to the purposes of this
part;
(2) Identify in writing to LEAs located
in the State and the Secretary any such
rule, regulation, or policy as a State-
imposed requirement that is not
required by Part B of the Act and
Federal regulations; and
(3) Minimize the number of rules,
regulations, and policies to which the
LEAs and schools located in the State
are subject under Part B of the Act.
(b)
Support and facilitation.
State
rules, regulations, and policies under
Part B of the Act must support and
facilitate LEA and school-level system
improvement designed to enable
children with disabilities to meet the
challenging State student academic
achievement standards.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1407)
Subpart C—Local Educational Agency
Eligibility
§ 300.200 Condition of assistance.
An LEA is eligible for assistance
under Part B of the Act for a fiscal year
if the agency submits a plan that
provides assurances to the SEA that the
LEA meets each of the conditions in
§§ 300.201 through 300.213.
(Authority: 20 U.S.C. 1413(a))
§ 300.201 Consistency with State policies.
The LEA, in providing for the
education of children with disabilities
within its jurisdiction, must have in
effect policies, procedures, and
programs that are consistent with the
State policies and procedures
established under §§ 300.101 through
300.163, and §§ 300.165 through
300.174.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(1))
§ 300.202 Use of amounts.
(a)
General.
Amounts provided to the
LEA under Part B of the Act—
(1) Must be expended in accordance
with the applicable provisions of this
part;
(2) Must be used only to pay the
excess costs of providing special
education and related services to
children with disabilities, consistent
with paragraph (b) of this section; and
(3) Must be used to supplement State,
local, and other Federal funds and not
to supplant those funds.
(b)
Excess cost requirement
—(1)
General.
(i) The excess cost requirement
prevents an LEA from using funds
provided under Part B of the Act to pay
for all of the costs directly attributable
to the education of a child with a
disability, subject to paragraph (b)(1)(ii)
of this section.
(ii) The excess cost requirement does
not prevent an LEA from using Part B
funds to pay for all of the costs directly
attributable to the education of a child
with a disability in any of the ages 3, 4,
5, 18, 19, 20, or 21, if no local or State
funds are available for nondisabled
children of these ages. However, the
LEA must comply with the
nonsupplanting and other requirements
of this part in providing the education
and services for these children.
(2)(i) An LEA meets the excess cost
requirement if it has spent at least a
minimum average amount for the
education of its children with
disabilities before funds under Part B of
the Act are used.
(ii) The amount described in
paragraph (b)(2)(i) of this section is
determined in accordance with the
definition of
excess costs
in § 300.16.
That amount may not include capital
outlay or debt service.
(3) If two or more LEAs jointly
establish eligibility in accordance with
§ 300.223, the minimum average amount
is the average of the combined
minimum average amounts determined
in accordance with the definition of
excess costs in § 300.16 in those
agencies for elementary or secondary
school students, as the case may be.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
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§ 300.203 Maintenance of effort.
(a)
General.
Except as provided in
§§ 300.204 and 300.205, funds provided
to an LEA under Part B of the Act must
not be used to reduce the level of
expenditures for the education of
children with disabilities made by the
LEA from local funds below the level of
those expenditures for the preceding
fiscal year.
(b)
Standard.
(1) Except as provided
in paragraph (b)(2) of this section, the
SEA must determine that an LEA
complies with paragraph (a) of this
section for purposes of establishing the
LEA’s eligibility for an award for a fiscal
year if the LEA budgets, for the
education of children with disabilities,
at least the same total or per capita
amount from either of the following
sources as the LEA spent for that
purpose from the same source for the
most recent prior year for which
information is available:
(i) Local funds only.
(ii) The combination of State and local
funds.
(2) An LEA that relies on paragraph
(b)(1)(i) of this section for any fiscal year
must ensure that the amount of local
funds it budgets for the education of
children with disabilities in that year is
at least the same, either in total or per
capita, as the amount it spent for that
purpose in the most recent fiscal year
for which information is available and
the standard in paragraph (b)(1)(i) of
this section was used to establish its
compliance with this section.
(3) The SEA may not consider any
expenditures made from funds provided
by the Federal Government for which
the SEA is required to account to the
Federal Government or for which the
LEA is required to account to the
Federal Government directly or through
the SEA in determining an LEA’s
compliance with the requirement in
paragraph (a) of this section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
§ 300.204 Exception to maintenance of
effort.
Notwithstanding the restriction in
§ 300.203(a), an LEA may reduce the
level of expenditures by the LEA under
Part B of the Act below the level of
those expenditures for the preceding
fiscal year if the reduction is attributable
to any of the following:
(a) The voluntary departure, by
retirement or otherwise, or departure for
just cause, of special education or
related services personnel.
(b) A decrease in the enrollment of
children with disabilities.
(c) The termination of the obligation
of the agency, consistent with this part,
to provide a program of special
education to a particular child with a
disability that is an exceptionally costly
program, as determined by the SEA,
because the child—
(1) Has left the jurisdiction of the
agency;
(2) Has reached the age at which the
obligation of the agency to provide
FAPE to the child has terminated; or
(3) No longer needs the program of
special education.
(d) The termination of costly
expenditures for long-term purchases,
such as the acquisition of equipment or
the construction of school facilities.
(e) The assumption of cost by the high
cost fund operated by the SEA under
§ 300.704(c).
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(B))
§ 300.205 Adjustment to local fiscal efforts
in certain fiscal years.
(a)
Amounts in excess.
Notwithstanding § 300.202(a)(2) and (b)
and § 300.203(a), and except as
provided in paragraph (d) of this section
and § 300.230(e)(2), for any fiscal year
for which the allocation received by an
LEA under § 300.705 exceeds the
amount the LEA received for the
previous fiscal year, the LEA may
reduce the level of expenditures
otherwise required by § 300.203(a) by
not more than 50 percent of the amount
of that excess.
(b)
Use of amounts to carry out
activities under ESEA.
If an LEA
exercises the authority under paragraph
(a) of this section, the LEA must use an
amount of local funds equal to the
reduction in expenditures under
paragraph (a) of this section to carry out
activities that could be supported with
funds under the ESEA regardless of
whether the LEA is using funds under
the ESEA for those activities.
(c)
State prohibition.
Notwithstanding
paragraph (a) of this section, if an SEA
determines that an LEA is unable to
establish and maintain programs of
FAPE that meet the requirements of
section 613(a) of the Act and this part
or the SEA has taken action against the
LEA under section 616 of the Act and
subpart F of these regulations, the SEA
must prohibit the LEA from reducing
the level of expenditures under
paragraph (a) of this section for that
fiscal year.
(d)
Special rule.
The amount of funds
expended by an LEA for early
intervening services under § 300.226
shall count toward the maximum
amount of expenditures that the LEA
may reduce under paragraph (a) of this
section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(C))
§ 300.206 Schoolwide programs under title
I of the ESEA.
(a)
General.
Notwithstanding the
provisions of §§ 300.202 and 300.203 or
any other provision of Part B of the Act,
an LEA may use funds received under
Part B of the Act for any fiscal year to
carry out a schoolwide program under
section 1114 of the ESEA, except that
the amount used in any schoolwide
program may not exceed—
(1)(i) The amount received by the LEA
under Part B of the Act for that fiscal
year; divided by
(ii) The number of children with
disabilities in the jurisdiction of the
LEA; and multiplied by
(2) The number of children with
disabilities participating in the
schoolwide program.
(b)
Funding conditions.
The funds
described in paragraph (a) of this
section are subject to the following
conditions:
(1) The funds must be considered as
Federal Part B funds for purposes of the
calculations required by § 300.202(a)(2)
and (a)(3).
(2) The funds may be used without
regard to the requirements of
§ 300.202(a)(1).
(c)
Meeting other Part B requirements.
Except as provided in paragraph (b) of
this section, all other requirements of
Part B of the Act must be met by an LEA
using Part B funds in accordance with
paragraph (a) of this section, including
ensuring that children with disabilities
in schoolwide program schools—
(1) Receive services in accordance
with a properly developed IEP; and
(2) Are afforded all of the rights and
services guaranteed to children with
disabilities under the Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(2)(D))
§ 300.207 Personnel development.
The LEA must ensure that all
personnel necessary to carry out Part B
of the Act are appropriately and
adequately prepared, subject to the
requirements of § 300.156 (related to
personnel qualifications) and section
2122 of the ESEA.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(3))
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§ 300.208 Permissive use of funds.
(a)
Uses.
Notwithstanding §§ 300.202,
300.203(a), and 300.162(b), funds
provided to an LEA under Part B of the
Act may be used for the following
activities:
(1)
Services and aids that also benefit
nondisabled children.
For the costs of
special education and related services,
and supplementary aids and services,
provided in a regular class or other
education-related setting to a child with
a disability in accordance with the IEP
of the child, even if one or more
nondisabled children benefit from these
services.
(2)
Early intervening services.
To
develop and implement coordinated,
early intervening educational services in
accordance with § 300.226.
(3)
High cost special education and
related services.
To establish and
implement cost or risk sharing funds,
consortia, or cooperatives for the LEA
itself, or for LEAs working in a
consortium of which the LEA is a part,
to pay for high cost special education
and related services.
(b)
Administrative case management.
An LEA may use funds received under
Part B of the Act to purchase
appropriate technology for
recordkeeping, data collection, and
related case management activities of
teachers and related services personnel
providing services described in the IEP
of children with disabilities, that is
needed for the implementation of those
case management activities.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(4))
§ 300.209 Treatment of charter schools
and their students.
(a)
Rights of children with disabilities.
Children with disabilities who attend
public charter schools and their parents
retain all rights under this part.
(b)
Charter schools that are public
schools of the LEA.
(1) In carrying out
Part B of the Act and these regulations
with respect to charter schools that are
public schools of the LEA, the LEA
must—
(i) Serve children with disabilities
attending those charter schools in the
same manner as the LEA serves children
with disabilities in its other schools,
including providing supplementary and
related services on site at the charter
school to the same extent to which the
LEA has a policy or practice of
providing such services on the site to its
other public schools; and
(ii) Provide funds under Part B of the
Act to those charter schools—
(A) On the same basis as the LEA
provides funds to the LEA’s other public
schools, including proportional
distribution based on relative
enrollment of children with disabilities;
and
(B) At the same time as the LEA
distributes other Federal funds to the
LEA’s other public schools, consistent
with the State’s charter school law.
(2) If the public charter school is a
school of an LEA that receives funding
under § 300.705 and includes other
public schools—
(i) The LEA is responsible for
ensuring that the requirements of this
part are met, unless State law assigns
that responsibility to some other entity;
and
(ii) The LEA must meet the
requirements of paragraph (b)(1) of this
section.
(c)
Public charter schools that are
LEAs.
If the public charter school is an
LEA, consistent with § 300.28, that
receives funding under § 300.705, that
charter school is responsible for
ensuring that the requirements of this
part are met, unless State law assigns
that responsibility to some other entity.
(d)
Public charter schools that are not
an LEA or a school that is part of an
LEA.
(1) If the public charter school is
not an LEA receiving funding under
§ 300.705, or a school that is part of an
LEA receiving funding under § 300.705,
the SEA is responsible for ensuring that
the requirements of this part are met.
(2) Paragraph (d)(1) of this section
does not preclude a State from assigning
initial responsibility for ensuring the
requirements of this part are met to
another entity. However, the SEA must
maintain the ultimate responsibility for
ensuring compliance with this part,
consistent with § 300.149.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(5))
§ 300.210 Purchase of instructional
materials.
(a)
General.
Not later than December
3, 2006, an LEA that chooses to
coordinate with the National
Instructional Materials Access Center
(NIMAC), when purchasing print
instructional materials, must acquire
those instructional materials in the same
manner, and subject to the same
conditions as an SEA under § 300.172.
(b)
Rights of LEA.
(1) Nothing in this
section shall be construed to require an
LEA to coordinate with the NIMAC.
(2) If an LEA chooses not to
coordinate with the NIMAC, the LEA
must provide an assurance to the SEA
that the LEA will provide instructional
materials to blind persons or other
persons with print disabilities in a
timely manner.
(3) Nothing in this section relieves an
LEA of its responsibility to ensure that
children with disabilities who need
instructional materials in accessible
formats but are not included under the
definition of blind or other persons with
print disabilities in § 300.172(e)(1)(i) or
who need materials that cannot be
produced from NIMAS files, receive
those instructional materials in a timely
manner.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(6))
§ 300.211 Information for SEA.
The LEA must provide the SEA with
information necessary to enable the SEA
to carry out its duties under Part B of
the Act, including, with respect to
§§ 300.157 and 300.160, information
relating to the performance of children
with disabilities participating in
programs carried out under Part B of the
Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(7))
§ 0.212 Public information.
The LEA must make available to
parents of children with disabilities and
to the general public all documents
relating to the eligibility of the agency
under Part B of the Act.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(8))
§ 300.213 Records regarding migratory
children with disabilities.
The LEA must cooperate in the
Secretary’s efforts under section 1308 of
the ESEA to ensure the linkage of
records pertaining to migratory children
with disabilities for the purpose of
electronically exchanging, among the
States, health and educational
information regarding those children.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(a)(9))
§§ 300.214–300.219 [Reserved]
§ 300.220 Exception for prior local plans.
(a)
General.
If an LEA or a State
agency described in § 300.228 has on
file with the SEA policies and
procedures that demonstrate that the
LEA or State agency meets any
requirement of § 300.200, including any
policies and procedures filed under Part
B of the Act as in effect before December
3, 2004, the SEA must consider the LEA
or State agency to have met that
requirement for purposes of receiving
assistance under Part B of the Act.
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(b)
Modification made by an LEA or
State agency.
Subject to paragraph (c) of
this section, policies and procedures
submitted by an LEA or a State agency
in accordance with this subpart remain
in effect until the LEA or State agency
submits to the SEA the modifications
that the LEA or State agency determines
are necessary.
(c)
Modifications required by the SEA.
The SEA may require an LEA or a State
agency to modify its policies and
procedures, but only to the extent
necessary to ensure the LEA’s or State
agency’s compliance with Part B of the
Act or State law, if—
(1) After December 3, 2004, the
effective date of the Individuals with
Disabilities Education Improvement Act
of 2004, the applicable provisions of the
Act (or the regulations developed to
carry out the Act) are amended;
(2) There is a new interpretation of an
applicable provision of the Act by
Federal or State courts; or
(3) There is an official finding of
noncompliance with Federal or State
law or regulations.
(Authority: 20 U.S.C. 1413(b))
§ 300.221 Notification of LEA or State
agency in case of ineligibility.
If the SEA determines that an LEA or
State agency is not eligible under Part B
of the Act, then the SEA must—
(a) Notify the LEA or State agency of
that determination; and
(b) Provide the LEA or State agency
with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
§ 300.222 LEA and State agency
compliance.
(a)
General.
If the SEA, after
reasonable notice and an opportunity
for a hearing, finds that an LEA or State
agency that has been determined to be
eligible under this subpart is failing to
comply with any requirement described
in §§ 300.201 through 300.213, the SEA
must reduce or must not provide any
further payments to the LEA or State
agency until the SEA is satisfied that the
LEA or State agency is complying with
that requirement.
(b)
Notice requirement.
Any State
agency or LEA in receipt of a notice
described in paragraph (a) of this
section must, by means of public notice,
take the measures necessary to bring the
pendency of an action pursuant to this
section to the attention of the public
within the jurisdiction of the agency.
(c)
Consideration.
In carrying out its
responsibilities under this section, each
SEA must consider any decision
resulting from a hearing held under
§§ 300.511 through 300.533 that is
adverse to the LEA or State agency
involved in the decision.
(Authority: 20 U.S.C. 1413(d))
§ 300.223 Joint establishment of eligibility.
(a)
General.
An SEA may require an
LEA to establish its eligibility jointly
with another LEA if the SEA determines
that the LEA will be ineligible under
this subpart because the agency will not
be able to establish and maintain
programs of sufficient size and scope to
effectively meet the needs of children
with disabilities.
(b)
Charter school exception.
An SEA
may not require a charter school that is
an LEA to jointly establish its eligibility
under paragraph (a) of this section
unless the charter school is explicitly
permitted to do so under the State’s
charter school statute.
(c)
Amount of payments.
If an SEA
requires the joint establishment of
eligibility under paragraph (a) of this
section, the total amount of funds made
available to the affected LEAs must be
equal to the sum of the payments that
each LEA would have received under
§ 300.705 if the agencies were eligible
for those payments.
(Authority: 20 U.S.C. 1413(e)(1) and (2))
§ 300.224 Requirements for establishing
eligibility.
(a)
Requirements for LEAs in general.
LEAs that establish joint eligibility
under this section must—
(1) Adopt policies and procedures
that are consistent with the State’s
policies and procedures under
§§ 300.101 through 300.163, and
§§ 300.165 through 300.174; and
(2) Be jointly responsible for
implementing programs that receive
assistance under Part B of the Act.
(b)
Requirements for educational
service agencies in general.
If an
educational service agency is required
by State law to carry out programs
under Part B of the Act, the joint
responsibilities given to LEAs under
Part B of the Act—
(1) Do not apply to the administration
and disbursement of any payments
received by that educational service
agency; and
(2) Must be carried out only by that
educational service agency.
(c)
Additional requirement.
Notwithstanding any other provision of
§§ 300.223 through 300.224, an
educational service agency must
provide for the education of children
with disabilities in the least restrictive
environment, as required by § 300.112.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(e)(3) and (4))
§ 300.225 [Reserved]
§ 300.226 Early intervening services.
(a)
General.
An LEA may not use more
than 15 percent of the amount the LEA
receives under Part B of the Act for any
fiscal year, less any amount reduced by
the LEA pursuant to § 300.205, if any, in
combination with other amounts (which
may include amounts other than
education funds), to develop and
implement coordinated, early
intervening services, which may include
interagency financing structures, for
students in kindergarten through grade
12 (with a particular emphasis on
students in kindergarten through grade
three) who are not currently identified
as needing special education or related
services, but who need additional
academic and behavioral support to
succeed in a general education
environment. (See Appendix D for
examples of how § 300.205(d), regarding
local maintenance of effort, and
§ 300.226(a) affect one another.)
(b)
Activities.
In implementing
coordinated, early intervening services
under this section, an LEA may carry
out activities that include—
(1) Professional development (which
may be provided by entities other than
LEAs) for teachers and other school staff
to enable such personnel to deliver
scientifically based academic and
behavioral interventions, including
scientifically based literacy instruction,
and, where appropriate, instruction on
the use of adaptive and instructional
software; and
(2) Providing educational and
behavioral evaluations, services, and
supports, including scientifically based
literacy instruction.
(c)
Construction.
Nothing in this
section shall be construed to either limit
or create a right to FAPE under Part B
of the Act or to delay appropriate
evaluation of a child suspected of
having a disability.
(d)
Reporting.
Each LEA that develops
and maintains coordinated, early
intervening services under this section
must annually report to the SEA on—
(1) The number of children served
under this section who received early
intervening services; and
(2) The number of children served
under this section who received early
intervening services and subsequently
receive special education and related
services under Part B of the Act during
the preceding two year period.
(e)
Coordination with ESEA.
Funds
made available to carry out this section
may be used to carry out coordinated,
early intervening services aligned with
activities funded by, and carried out
under the ESEA if those funds are used
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to supplement, and not supplant, funds
made available under the ESEA for the
activities and services assisted under
this section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1413(f))
§ 300.227 Direct services by the SEA.
(a)
General.
(1) An SEA must use the
payments that would otherwise have
been available to an LEA or to a State
agency to provide special education and
related services directly to children with
disabilities residing in the area served
by that LEA, or for whom that State
agency is responsible, if the SEA
determines that the LEA or State
agency—
(i) Has not provided the information
needed to establish the eligibility of the
LEA or State agency, or elected not to
apply for its Part B allotment, under Part
B of the Act;
(ii) Is unable to establish and maintain
programs of FAPE that meet the
requirements of this part;
(iii) Is unable or unwilling to be
consolidated with one or more LEAs in
order to establish and maintain the
programs; or
(iv) Has one or more children with
disabilities who can best be served by a
regional or State program or service
delivery system designed to meet the
needs of these children.
(2)
SEA administrative procedures.
(i)
In meeting the requirements in
paragraph (a)(1) of this section, the SEA
may provide special education and
related services directly, by contract, or
through other arrangements.
(ii) The excess cost requirements of
§ 300.202(b) do not apply to the SEA.
(b)
Manner and location of education
and services.
The SEA may provide
special education and related services
under paragraph (a) of this section in
the manner and at the locations
(including regional or State centers) as
the SEA considers appropriate. The
education and services must be
provided in accordance with this part.
(Authority: 20 U.S.C. 1413(g))
§ 300.228 State agency eligibility.
Any State agency that desires to
receive a subgrant for any fiscal year
under § 300.705 must demonstrate to
the satisfaction of the SEA that—
(a) All children with disabilities who
are participating in programs and
projects funded under Part B of the Act
receive FAPE, and that those children
and their parents are provided all the
rights and procedural safeguards
described in this part; and
(b) The agency meets the other
conditions of this subpart that apply to
LEAs.
(Authority: 20 U.S.C. 1413(h))
§ 300.229 Disciplinary information.
(a) The State may require that a public
agency include in the records of a child
with a disability a statement of any
current or previous disciplinary action
that has been taken against the child
and transmit the statement to the same
extent that the disciplinary information
is included in, and transmitted with, the
student records of nondisabled children.
(b) The statement may include a
description of any behavior engaged in
by the child that required disciplinary
action, a description of the disciplinary
action taken, and any other information
that is relevant to the safety of the child
and other individuals involved with the
child.
(c) If the State adopts such a policy,
and the child transfers from one school
to another, the transmission of any of
the child’s records must include both
the child’s current IEP and any
statement of current or previous
disciplinary action that has been taken
against the child.
(Authority: 20 U.S.C. 1413(i))
§ 300.230 SEA flexibility.
(a)
Adjustment to State fiscal effort in
certain fiscal years.
For any fiscal year
for which the allotment received by a
State under § 300.703 exceeds the
amount the State received for the
previous fiscal year and if the State in
school year 2003–2004 or any
subsequent school year pays or
reimburses all LEAs within the State
from State revenue 100 percent of the
non-Federal share of the costs of special
education and related services, the SEA,
notwithstanding §§ 300.162 through
300.163 (related to State-level
nonsupplanting and maintenance of
effort), and § 300.175 (related to direct
services by the SEA) may reduce the
level of expenditures from State sources
for the education of children with
disabilities by not more than 50 percent
of the amount of such excess.
(b)
Prohibition.
Notwithstanding
paragraph (a) of this section, if the
Secretary determines that an SEA is
unable to establish, maintain, or oversee
programs of FAPE that meet the
requirements of this part, or that the
State needs assistance, intervention, or
substantial intervention under
§ 300.603, the Secretary prohibits the
SEA from exercising the authority in
paragraph (a) of this section.
(c)
Education activities.
If an SEA
exercises the authority under paragraph
(a) of this section, the agency must use
funds from State sources, in an amount
equal to the amount of the reduction
under paragraph (a) of this section, to
support activities authorized under the
ESEA, or to support need-based student
or teacher higher education programs.
(d)
Report.
For each fiscal year for
which an SEA exercises the authority
under paragraph (a) of this section, the
SEA must report to the Secretary—
(1) The amount of expenditures
reduced pursuant to that paragraph; and
(2) The activities that were funded
pursuant to paragraph (c) of this section.
(e)
Limitation.
(1) Notwithstanding
paragraph (a) of this section, an SEA
may not reduce the level of
expenditures described in paragraph (a)
of this section if any LEA in the State
would, as a result of such reduction,
receive less than 100 percent of the
amount necessary to ensure that all
children with disabilities served by the
LEA receive FAPE from the combination
of Federal funds received under Part B
of the Act and State funds received from
the SEA.
(2) If an SEA exercises the authority
under paragraph (a) of this section,
LEAs in the State may not reduce local
effort under § 300.205 by more than the
reduction in the State funds they
receive.
(Authority: 20 U.S.C. 1413(j))
Subpart D—Evaluations, Eligibility
Determinations, Individualized
Education Programs, and Educational
Placements
Parental Consent
§ 300.300 Parental consent.
(a)
Parental consent for initial
evaluation.
(1)(i) The public agency
proposing to conduct an initial
evaluation to determine if a child
qualifies as a child with a disability
under § 300.8 must, after providing
notice consistent with §§ 300.503 and
300.504, obtain informed consent,
consistent with § 300.9, from the parent
of the child before conducting the
evaluation.
(ii) Parental consent for initial
evaluation must not be construed as
consent for initial provision of special
education and related services.
(iii) The public agency must make
reasonable efforts to obtain the informed
consent from the parent for an initial
evaluation to determine whether the
child is a child with a disability.
(2) For initial evaluations only, if the
child is a ward of the State and is not
residing with the child’s parent, the
public agency is not required to obtain
informed consent from the parent for an
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initial evaluation to determine whether
the child is a child with a disability if—
(i) Despite reasonable efforts to do so,
the public agency cannot discover the
whereabouts of the parent of the child;
(ii) The rights of the parents of the
child have been terminated in
accordance with State law; or
(iii) The rights of the parent to make
educational decisions have been
subrogated by a judge in accordance
with State law and consent for an initial
evaluation has been given by an
individual appointed by the judge to
represent the child.
(3)(i) If the parent of a child enrolled
in public school or seeking to be
enrolled in public school does not
provide consent for initial evaluation
under paragraph (a)(1) of this section, or
the parent fails to respond to a request
to provide consent, the public agency
may, but is not required to, pursue the
initial evaluation of the child by
utilizing the procedural safeguards in
subpart E of this part (including the
mediation procedures under § 300.506
or the due process procedures under
§§ 300.507 through 300.516), if
appropriate, except to the extent
inconsistent with State law relating to
such parental consent.
(ii) The public agency does not violate
its obligation under § 300.111 and
§§ 300.301 through 300.311 if it declines
to pursue the evaluation.
(b)
Parental consent for services.
(1) A
public agency that is responsible for
making FAPE available to a child with
a disability must obtain informed
consent from the parent of the child
before the initial provision of special
education and related services to the
child.
(2) The public agency must make
reasonable efforts to obtain informed
consent from the parent for the initial
provision of special education and
related services to the child.
(3) If the parent of a child fails to
respond or refuses to consent to services
under paragraph (b)(1) of this section,
the public agency may not use the
procedures in subpart E of this part
(including the mediation procedures
under § 300.506 or the due process
procedures under §§ 300.507 through
300.516) in order to obtain agreement or
a ruling that the services may be
provided to the child.
(4) If the parent of the child refuses to
consent to the initial provision of
special education and related services,
or the parent fails to respond to a
request to provide consent for the initial
provision of special education and
related services, the public agency—
(i) Will not be considered to be in
violation of the requirement to make
available FAPE to the child for the
failure to provide the child with the
special education and related services
for which the public agency requests
consent; and
(ii) Is not required to convene an IEP
Team meeting or develop an IEP under
§§ 300.320 and 300.324 for the child for
the special education and related
services for which the public agency
requests such consent.
(c)
Parental consent for reevaluations.
(1) Subject to paragraph (c)(2) of this
section, each public agency—
(i) Must obtain informed parental
consent, in accordance with
§ 300.300(a)(1), prior to conducting any
reevaluation of a child with a disability.
(ii) If the parent refuses to consent to
the reevaluation, the public agency may,
but is not required to, pursue the
reevaluation by using the consent
override procedures described in
paragraph (a)(3) of this section.
(iii) The public agency does not
violate its obligation under § 300.111
and §§ 300.301 through 300.311 if it
declines to pursue the evaluation or
reevaluation.
(2) The informed parental consent
described in paragraph (c)(1) of this
section need not be obtained if the
public agency can demonstrate that—
(i) It made reasonable efforts to obtain
such consent; and
(ii) The child’s parent has failed to
respond.
(d) Other consent requirements.
(1) Parental consent is not required
before—
(i) Reviewing existing data as part of
an evaluation or a reevaluation; or
(ii) Administering a test or other
evaluation that is administered to all
children unless, before administration
of that test or evaluation, consent is
required of parents of all children.
(2) In addition to the parental consent
requirements described in paragraph (a)
of this section, a State may require
parental consent for other services and
activities under this part if it ensures
that each public agency in the State
establishes and implements effective
procedures to ensure that a parent’s
refusal to consent does not result in a
failure to provide the child with FAPE.
(3) A public agency may not use a
parent’s refusal to consent to one service
or activity under paragraphs (a) or (d)(2)
of this section to deny the parent or
child any other service, benefit, or
activity of the public agency, except as
required by this part.
(4)(i) If a parent of a child who is
home schooled or placed in a private
school by the parents at their own
expense does not provide consent for
the initial evaluation or the
reevaluation, or the parent fails to
respond to a request to provide consent,
the public agency may not use the
consent override procedures (described
in paragraphs (a)(3) and (c)(1) of this
section); and
(ii) The public agency is not required
to consider the child as eligible for
services under §§ 300.132 through
300.144.
(5) To meet the reasonable efforts
requirement in paragraphs (a)(1)(iii),
(a)(2)(i), (b)(2), and (c)(2)(i) of this
section, the public agency must
document its attempts to obtain parental
consent using the procedures in
§ 300.322(d).
(Authority: 20 U.S.C. 1414(a)(1)(D) and
1414(c))
Evaluations and Reevaluations
§ 300.301 Initial evaluations.
(a)
General.
Each public agency must
conduct a full and individual initial
evaluation, in accordance with
§§ 300.305 and 300.306, before the
initial provision of special education
and related services to a child with a
disability under this part.
(b)
Request for initial evaluation.
Consistent with the consent
requirements in § 300.300, either a
parent of a child or a public agency may
initiate a request for an initial
evaluation to determine if the child is a
child with a disability.
(c)
Procedures for initial evaluation.
The initial evaluation—
(1)(i) Must be conducted within 60
days of receiving parental consent for
the evaluation; or
(ii) If the State establishes a timeframe
within which the evaluation must be
conducted, within that timeframe; and
(2) Must consist of procedures—
(i) To determine if the child is a child
with a disability under § 300.8; and
(ii) To determine the educational
needs of the child.
(d)
Exception.
The timeframe
described in paragraph (c)(1) of this
section does not apply to a public
agency if—
(1) The parent of a child repeatedly
fails or refuses to produce the child for
the evaluation; or
(2) A child enrolls in a school of
another public agency after the relevant
timeframe in paragraph (c)(1) of this
section has begun, and prior to a
determination by the child’s previous
public agency as to whether the child is
a child with a disability under § 300.8.
(e) The exception in paragraph (d)(2)
of this section applies only if the
subsequent public agency is making
sufficient progress to ensure a prompt
completion of the evaluation, and the
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parent and subsequent public agency
agree to a specific time when the
evaluation will be completed.
(Authority: 20 U.S.C. 1414(a))
§ 300.302 Screening for instructional
purposes is not evaluation.
The screening of a student by a
teacher or specialist to determine
appropriate instructional strategies for
curriculum implementation shall not be
considered to be an evaluation for
eligibility for special education and
related services.
(Authority: 20 U.S.C. 1414(a)(1)(E))
§ 300.303 Reevaluations.
(a)
General.
A public agency must
ensure that a reevaluation of each child
with a disability is conducted in
accordance with §§ 300.304 through
300.311—
(1) If the public agency determines
that the educational or related services
needs, including improved academic
achievement and functional
performance, of the child warrant a
reevaluation; or
(2) If the child’s parent or teacher
requests a reevaluation.
(b)
Limitation.
A reevaluation
conducted under paragraph (a) of this
section—
(1) May occur not more than once a
year, unless the parent and the public
agency agree otherwise; and
(2) Must occur at least once every 3
years, unless the parent and the public
agency agree that a reevaluation is
unnecessary.
(Authority: 20 U.S.C. 1414(a)(2))
§ 300.304 Evaluation procedures.
(a)
Notice.
The public agency must
provide notice to the parents of a child
with a disability, in accordance with
§ 300.503, that describes any evaluation
procedures the agency proposes to
conduct.
(b)
Conduct of evaluation.
In
conducting the evaluation, the public
agency must—
(1) Use a variety of assessment tools
and strategies to gather relevant
functional, developmental, and
academic information about the child,
including information provided by the
parent, that may assist in determining—
(i) Whether the child is a child with
a disability under § 300.8; and
(ii) The content of the child’s IEP,
including information related to
enabling the child to be involved in and
progress in the general education
curriculum (or for a preschool child, to
participate in appropriate activities);
(2) Not use any single measure or
assessment as the sole criterion for
determining whether a child is a child
with a disability and for determining an
appropriate educational program for the
child; and
(3) Use technically sound instruments
that may assess the relative contribution
of cognitive and behavioral factors, in
addition to physical or developmental
factors.
(c)
Other evaluation procedures.
Each
public agency must ensure that—
(1) Assessments and other evaluation
materials used to assess a child under
this part—
(i) Are selected and administered so
as not to be discriminatory on a racial
or cultural basis;
(ii) Are provided and administered in
the child’s native language or other
mode of communication and in the form
most likely to yield accurate
information on what the child knows
and can do academically,
developmentally, and functionally,
unless it is clearly not feasible to so
provide or administer;
(iii) Are used for the purposes for
which the assessments or measures are
valid and reliable;
(iv) Are administered by trained and
knowledgeable personnel; and
(v) Are administered in accordance
with any instructions provided by the
producer of the assessments.
(2) Assessments and other evaluation
materials include those tailored to
assess specific areas of educational need
and not merely those that are designed
to provide a single general intelligence
quotient.
(3) Assessments are selected and
administered so as best to ensure that if
an assessment is administered to a child
with impaired sensory, manual, or
speaking skills, the assessment results
accurately reflect the child’s aptitude or
achievement level or whatever other
factors the test purports to measure,
rather than reflecting the child’s
impaired sensory, manual, or speaking
skills (unless those skills are the factors
that the test purports to measure).
(4) The child is assessed in all areas
related to the suspected disability,
including, if appropriate, health, vision,
hearing, social and emotional status,
general intelligence, academic
performance, communicative status, and
motor abilities;
(5) Assessments of children with
disabilities who transfer from one
public agency to another public agency
in the same school year are coordinated
with those children’s prior and
subsequent schools, as necessary and as
expeditiously as possible, consistent
with § 300.301(d)(2) and (e), to ensure
prompt completion of full evaluations.
(6) In evaluating each child with a
disability under §§ 300.304 through
300.306, the evaluation is sufficiently
comprehensive to identify all of the
child’s special education and related
services needs, whether or not
commonly linked to the disability
category in which the child has been
classified.
(7) Assessment tools and strategies
that provide relevant information that
directly assists persons in determining
the educational needs of the child are
provided.
(Authority: 20 U.S.C. 1414(b)(1)-(3),
1412(a)(6)(B))
§ 300.305 Additional requirements for
evaluations and reevaluations.
(a)
Review of existing evaluation data.
As part of an initial evaluation (if
appropriate) and as part of any
reevaluation under this part, the IEP
Team and other qualified professionals,
as appropriate, must—
(1) Review existing evaluation data on
the child, including—
(i) Evaluations and information
provided by the parents of the child;
(ii) Current classroom-based, local, or
State assessments, and classroom-based
observations; and
(iii) Observations by teachers and
related services providers; and
(2) On the basis of that review, and
input from the child’s parents, identify
what additional data, if any, are needed
to determine—
(i)(A) Whether the child is a child
with a disability, as defined in § 300.8,
and the educational needs of the child;
or
(B) In case of a reevaluation of a child,
whether the child continues to have
such a disability, and the educational
needs of the child;
(ii) The present levels of academic
achievement and related developmental
needs of the child;
(iii)(A) Whether the child needs
special education and related services;
or
(B) In the case of a reevaluation of a
child, whether the child continues to
need special education and related
services; and
(iv) Whether any additions or
modifications to the special education
and related services are needed to
enable the child to meet the measurable
annual goals set out in the IEP of the
child and to participate, as appropriate,
in the general education curriculum.
(b)
Conduct of review.
The group
described in paragraph (a) of this
section may conduct its review without
a meeting.
(c)
Source of data.
The public agency
must administer such assessments and
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other evaluation measures as may be
needed to produce the data identified
under paragraph (a) of this section.
(d)
Requirements if additional data
are not needed.
(1) If the IEP Team and
other qualified professionals, as
appropriate, determine that no
additional data are needed to determine
whether the child continues to be a
child with a disability, and to determine
the child’s educational needs, the public
agency must notify the child’s parents
of’—
(i) That determination and the reasons
for the determination; and
(ii) The right of the parents to request
an assessment to determine whether the
child continues to be a child with a
disability, and to determine the child’s
educational needs.
(2) The public agency is not required
to conduct the assessment described in
paragraph (d)(1)(ii) of this section unless
requested to do so by the child’s
parents.
(e)
Evaluations before change in
eligibility.
(1) Except as provided in
paragraph (e)(2) of this section, a public
agency must evaluate a child with a
disability in accordance with §§ 300.304
through 300.311 before determining that
the child is no longer a child with a
disability.
(2) The evaluation described in
paragraph (e)(1) of this section is not
required before the termination of a
child’s eligibility under this part due to
graduation from secondary school with
a regular diploma, or due to exceeding
the age eligibility for FAPE under State
law.
(3) For a child whose eligibility
terminates under circumstances
described in paragraph (e)(2) of this
section, a public agency must provide
the child with a summary of the child’s
academic achievement and functional
performance, which shall include
recommendations on how to assist the
child in meeting the child’s
postsecondary goals.
(Authority: 20 U.S.C. 1414(c))
§ 300.306 Determination of eligibility.
(a)
General.
Upon completion of the
administration of assessments and other
evaluation measures—
(1) A group of qualified professionals
and the parent of the child determines
whether the child is a child with a
disability, as defined in § 300.8, in
accordance with paragraph (b) of this
section and the educational needs of the
child; and
(2) The public agency provides a copy
of the evaluation report and the
documentation of determination of
eligibility at no cost to the parent.
(b)
Special rule for eligibility
determination.
A child must not be
determined to be a child with a
disability under this part—
(1) If the determinant factor for that
determination is—
(i) Lack of appropriate instruction in
reading, including the essential
components of reading instruction (as
defined in section 1208(3) of the ESEA);
(ii) Lack of appropriate instruction in
math; or
(iii) Limited English proficiency; and
(2) If the child does not otherwise
meet the eligibility criteria under
§ 300.8(a).
(c)
Procedures for determining
eligibility and educational need.
(1) In
interpreting evaluation data for the
purpose of determining if a child is a
child with a disability under § 300.8,
and the educational needs of the child,
each public agency must—
(i) Draw upon information from a
variety of sources, including aptitude
and achievement tests, parent input,
and teacher recommendations, as well
as information about the child’s
physical condition, social or cultural
background, and adaptive behavior; and
(ii) Ensure that information obtained
from all of these sources is documented
and carefully considered.
(2) If a determination is made that a
child has a disability and needs special
education and related services, an IEP
must be developed for the child in
accordance with §§ 300.320 through
300.324.
(Authority: 20 U.S.C. 1414(b)(4) and (5))
Additional Procedures for Identifying
Children With Specific Learning
Disabilities
§ 300.307 Specific learning disabilities.
(a)
General.
A State must adopt,
consistent with § 300.309, criteria for
determining whether a child has a
specific learning disability as defined in
§ 300.8(c)(10). In addition, the criteria
adopted by the State—
(1) Must not require the use of a
severe discrepancy between intellectual
ability and achievement for determining
whether a child has a specific learning
disability, as defined in § 300.8(c)(10);
(2) Must permit the use of a process
based on the child’s response to
scientific, research-based intervention;
and
(3) May permit the use of other
alternative research-based procedures
for determining whether a child has a
specific learning disability, as defined
in § 300.8(c)(10).
(b)
Consistency with State criteria.
A
public agency must use the State criteria
adopted pursuant to paragraph (a) of
this section in determining whether a
child has a specific learning disability.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.308 Additional group members.
The determination of whether a child
suspected of having a specific learning
disability is a child with a disability as
defined in § 300.8, must be made by the
child’s parents and a team of qualified
professionals, which must include—
(a)(1) The child’s regular teacher; or
(2) If the child does not have a regular
teacher, a regular classroom teacher
qualified to teach a child of his or her
age; or
(3) For a child of less than school age,
an individual qualified by the SEA to
teach a child of his or her age; and
(b) At least one person qualified to
conduct individual diagnostic
examinations of children, such as a
school psychologist, speech-language
pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.309 Determining the existence of a
specific learning disability.
(a) The group described in § 300.306
may determine that a child has a
specific learning disability, as defined
in § 300.8(c)(10), if—
(1) The child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards in
one or more of the following areas,
when provided with learning
experiences and instruction appropriate
for the child’s age or State-approved
grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make
sufficient progress to meet age or State-
approved grade-level standards in one
or more of the areas identified in
paragraph (a)(1) of this section when
using a process based on the child’s
response to scientific, research-based
intervention; or
(ii) The child exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age, State-approved grade-
level standards, or intellectual
development, that is determined by the
group to be relevant to the identification
of a specific learning disability, using
appropriate assessments, consistent
with §§ 300.304 and 300.305; and
(3) The group determines that its
findings under paragraphs (a)(1) and (2)
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of this section are not primarily the
result of—
(i) A visual, hearing, or motor
disability;
(ii) Mental retardation;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic
disadvantage; or
(vi) Limited English proficiency.
(b) To ensure that underachievement
in a child suspected of having a specific
learning disability is not due to lack of
appropriate instruction in reading or
math, the group must consider, as part
of the evaluation described in
§§ 300.304 through 300.306—
(1) Data that demonstrate that prior to,
or as a part of, the referral process, the
child was provided appropriate
instruction in regular education settings,
delivered by qualified personnel; and
(2) Data-based documentation of
repeated assessments of achievement at
reasonable intervals, reflecting formal
assessment of student progress during
instruction, which was provided to the
child’s parents.
(c) The public agency must promptly
request parental consent to evaluate the
child to determine if the child needs
special education and related services,
and must adhere to the timeframes
described in §§ 300.301 and 300.303,
unless extended by mutual written
agreement of the child’s parents and a
group of qualified professionals, as
described in § 300.306(a)(1)—
(1) If, prior to a referral, a child has
not made adequate progress after an
appropriate period of time when
provided instruction, as described in
paragraphs (b)(1) and (b)(2) of this
section; and
(2) Whenever a child is referred for an
evaluation.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.310 Observation.
(a) The public agency must ensure
that the child is observed in the child’s
learning environment (including the
regular classroom setting) to document
the child’s academic performance and
behavior in the areas of difficulty.
(b) The group described in
§ 300.306(a)(1), in determining whether
a child has a specific learning disability,
must decide to—
(1) Use information from an
observation in routine classroom
instruction and monitoring of the
child’s performance that was done
before the child was referred for an
evaluation; or
(2) Have at least one member of the
group described in § 300.306(a)(1)
conduct an observation of the child’s
academic performance in the regular
classroom after the child has been
referred for an evaluation and parental
consent, consistent with § 300.300(a), is
obtained.
(c) In the case of a child of less than
school age or out of school, a group
member must observe the child in an
environment appropriate for a child of
that age.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
§ 300.311 Specific documentation for the
eligibility determination.
(a) For a child suspected of having a
specific learning disability, the
documentation of the determination of
eligibility, as required in § 300.306(a)(2),
must contain a statement of—
(1) Whether the child has a specific
learning disability;
(2) The basis for making the
determination, including an assurance
that the determination has been made in
accordance with § 300.306(c)(1);
(3) The relevant behavior, if any,
noted during the observation of the
child and the relationship of that
behavior to the child’s academic
functioning;
(4) The educationally relevant
medical findings, if any;
(5) Whether—
(i) The child does not achieve
adequately for the child’s age or to meet
State-approved grade-level standards
consistent with § 300.309(a)(1); and
(ii)(A) The child does not make
sufficient progress to meet age or State-
approved grade-level standards
consistent with § 300.309(a)(2)(i); or
(B) The child exhibits a pattern of
strengths and weaknesses in
performance, achievement, or both,
relative to age, State-approved grade
level standards or intellectual
development consistent with
§ 300.309(a)(2)(ii);
(6) The determination of the group
concerning the effects of a visual,
hearing, or motor disability; mental
retardation; emotional disturbance;
cultural factors; environmental or
economic disadvantage; or limited
English proficiency on the child’s
achievement level; and
(7) If the child has participated in a
process that assesses the child’s
response to scientific, research-based
intervention—
(i) The instructional strategies used
and the student-centered data collected;
and
(ii) The documentation that the
child’s parents were notified about—
(A) The State’s policies regarding the
amount and nature of student
performance data that would be
collected and the general education
services that would be provided;
(B) Strategies for increasing the
child’s rate of learning; and
(C) The parents’ right to request an
evaluation.
(b) Each group member must certify in
writing whether the report reflects the
member’s conclusion. If it does not
reflect the member’s conclusion, the
group member must submit a separate
statement presenting the member’s
conclusions.
(Authority: 20 U.S.C. 1221e–3; 1401(30);
1414(b)(6))
Individualized Education Programs
§ 300.320 Definition of individualized
education program.
(a)
General.
As used in this part, the
term individualized education program
or IEP means a written statement for
each child with a disability that is
developed, reviewed, and revised in a
meeting in accordance with §§ 300.320
through 300.324, and that must
include—
(1) A statement of the child’s present
levels of academic achievement and
functional performance, including—
(i) How the child’s disability affects
the child’s involvement and progress in
the general education curriculum (i.e.,
the same curriculum as for nondisabled
children); or
(ii) For preschool children, as
appropriate, how the disability affects
the child’s participation in appropriate
activities;
(2)(i) A statement of measurable
annual goals, including academic and
functional goals designed to—
(A) Meet the child’s needs that result
from the child’s disability to enable the
child to be involved in and make
progress in the general education
curriculum; and
(B) Meet each of the child’s other
educational needs that result from the
child’s disability;
(ii) For children with disabilities who
take alternate assessments aligned to
alternate achievement standards, a
description of benchmarks or short-term
objectives;
(3) A description of—
(i) How the child’s progress toward
meeting the annual goals described in
paragraph (2) of this section will be
measured; and
(ii) When periodic reports on the
progress the child is making toward
meeting the annual goals (such as
through the use of quarterly or other
periodic reports, concurrent with the
issuance of report cards) will be
provided;
(4) A statement of the special
education and related services and
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supplementary aids and services, based
on peer-reviewed research to the extent
practicable, to be provided to the child,
or on behalf of the child, and a
statement of the program modifications
or supports for school personnel that
will be provided to enable the child—
(i) To advance appropriately toward
attaining the annual goals;
(ii) To be involved in and make
progress in the general education
curriculum in accordance with
paragraph (a)(1) of this section, and to
participate in extracurricular and other
nonacademic activities; and
(iii) To be educated and participate
with other children with disabilities and
nondisabled children in the activities
described in this section;
(5) An explanation of the extent, if
any, to which the child will not
participate with nondisabled children in
the regular class and in the activities
described in paragraph (a)(4) of this
section;
(6)(i) A statement of any individual
appropriate accommodations that are
necessary to measure the academic
achievement and functional
performance of the child on State and
districtwide assessments consistent
with section 612(a)(16) of the Act; and
(ii) If the IEP Team determines that
the child must take an alternate
assessment instead of a particular
regular State or districtwide assessment
of student achievement, a statement of
why—
(A) The child cannot participate in
the regular assessment; and
(B) The particular alternate
assessment selected is appropriate for
the child; and
(7) The projected date for the
beginning of the services and
modifications described in paragraph
(a)(4) of this section, and the anticipated
frequency, location, and duration of
those services and modifications.
(b)
Transition services.
Beginning not
later than the first IEP to be in effect
when the child turns 16, or younger if
determined appropriate by the IEP
Team, and updated annually, thereafter,
the IEP must include—
(1) Appropriate measurable
postsecondary goals based upon age
appropriate transition assessments
related to training, education,
employment, and, where appropriate,
independent living skills; and
(2) The transition services (including
courses of study) needed to assist the
child in reaching those goals.
(c)
Transfer of rights at age of
majority.
Beginning not later than one
year before the child reaches the age of
majority under State law, the IEP must
include a statement that the child has
been informed of the child’s rights
under Part B of the Act, if any, that will
transfer to the child on reaching the age
of majority under § 300.520.
(d)
Construction.
Nothing in this
section shall be construed to require—
(1) That additional information be
included in a child’s IEP beyond what
is explicitly required in section 614 of
the Act; or
(2) The IEP Team to include
information under one component of a
child’s IEP that is already contained
under another component of the child’s
IEP.
(Authority: 20 U.S.C. 1414(d)(1)(A) and
(d)(6))
§ 300.321 IEP Team.
(a)
General.
The public agency must
ensure that the IEP Team for each child
with a disability includes—
(1) The parents of the child;
(2) Not less than one regular
education teacher of the child (if the
child is, or may be, participating in the
regular education environment);
(3) Not less than one special
education teacher of the child, or where
appropriate, not less then one special
education provider of the child;
(4) A representative of the public
agency who—
(i) Is qualified to provide, or supervise
the provision of, specially designed
instruction to meet the unique needs of
children with disabilities;
(ii) Is knowledgeable about the
general education curriculum; and
(iii) Is knowledgeable about the
availability of resources of the public
agency.
(5) An individual who can interpret
the instructional implications of
evaluation results, who may be a
member of the team described in
paragraphs (a)(2) through (a)(6) of this
section;
(6) At the discretion of the parent or
the agency, other individuals who have
knowledge or special expertise
regarding the child, including related
services personnel as appropriate; and
(7) Whenever appropriate, the child
with a disability.
(b)
Transition services participants.
(1) In accordance with paragraph (a)(7)
of this section, the public agency must
invite a child with a disability to attend
the child’s IEP Team meeting if a
purpose of the meeting will be the
consideration of the postsecondary goals
for the child and the transition services
needed to assist the child in reaching
those goals under § 300.320(b).
(2) If the child does not attend the IEP
Team meeting, the public agency must
take other steps to ensure that the
child’s preferences and interests are
considered.
(3) To the extent appropriate, with the
consent of the parents or a child who
has reached the age of majority, in
implementing the requirements of
paragraph (b)(1) of this section, the
public agency must invite a
representative of any participating
agency that is likely to be responsible
for providing or paying for transition
services.
(c)
Determination of knowledge and
special expertise.
The determination of
the knowledge or special expertise of
any individual described in paragraph
(a)(6) of this section must be made by
the party (parents or public agency) who
invited the individual to be a member
of the IEP Team.
(d)
Designating a public agency
representative.
A public agency may
designate a public agency member of the
IEP Team to also serve as the agency
representative, if the criteria in
paragraph (a)(4) of this section are
satisfied.
(e)
IEP Team attendance.
(1) A
member of the IEP Team described in
paragraphs (a)(2) through (a)(5) of this
section is not required to attend an IEP
Team meeting, in whole or in part, if the
parent of a child with a disability and
the public agency agree, in writing, that
the attendance of the member is not
necessary because the member’s area of
the curriculum or related services is not
being modified or discussed in the
meeting.
(2) A member of the IEP Team
described in paragraph (e)(1) of this
section may be excused from attending
an IEP Team meeting, in whole or in
part, when the meeting involves a
modification to or discussion of the
member’s area of the curriculum or
related services, if—
(i) The parent, in writing, and the
public agency consent to the excusal;
and
(ii) The member submits, in writing to
the parent and the IEP Team, input into
the development of the IEP prior to the
meeting.
(f)
Initial IEP Team meeting for child
under Part C.
In the case of a child who
was previously served under Part C of
the Act, an invitation to the initial IEP
Team meeting must, at the request of the
parent, be sent to the Part C service
coordinator or other representatives of
the Part C system to assist with the
smooth transition of services.
(Authority: 20 U.S.C. 1414(d)(1)(B)–(d)(1)(D))
§ 300.322 Parent participation.
(a)
Public agency responsibility—
general.
Each public agency must take
steps to ensure that one or both of the
parents of a child with a disability are
present at each IEP Team meeting or are
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afforded the opportunity to participate,
including—
(1) Notifying parents of the meeting
early enough to ensure that they will
have an opportunity to attend; and
(2) Scheduling the meeting at a
mutually agreed on time and place.
(b)
Information provided to parents.
(1) The notice required under paragraph
(a)(1) of this section must—
(i) Indicate the purpose, time, and
location of the meeting and who will be
in attendance; and
(ii) Inform the parents of the
provisions in § 300.321(a)(6) and (c)
(relating to the participation of other
individuals on the IEP Team who have
knowledge or special expertise about
the child), and § 300.321(f) (relating to
the participation of the Part C service
coordinator or other representatives of
the Part C system at the initial IEP Team
meeting for a child previously served
under Part C of the Act).
(2) For a child with a disability
beginning not later than the first IEP to
be in effect when the child turns 16, or
younger if determined appropriate by
the IEP Team, the notice also must—
(i) Indicate—
(A) That a purpose of the meeting will
be the consideration of the
postsecondary goals and transition
services for the child, in accordance
with § 300.320(b); and
(B) That the agency will invite the
student; and
(ii) Identify any other agency that will
be invited to send a representative.
(c)
Other methods to ensure parent
participation.
If neither parent can
attend an IEP Team meeting, the public
agency must use other methods to
ensure parent participation, including
individual or conference telephone
calls, consistent with § 300.328 (related
to alternative means of meeting
participation).
(d)
Conducting an IEP Team meeting
without a parent in attendance.
A
meeting may be conducted without a
parent in attendance if the public
agency is unable to convince the parents
that they should attend. In this case, the
public agency must keep a record of its
attempts to arrange a mutually agreed
on time and place, such as—
(1) Detailed records of telephone calls
made or attempted and the results of
those calls;
(2) Copies of correspondence sent to
the parents and any responses received;
and
(3) Detailed records of visits made to
the parent’s home or place of
employment and the results of those
visits.
(e)
Use of interpreters or other action,
as appropriate.
The public agency must
take whatever action is necessary to
ensure that the parent understands the
proceedings of the IEP Team meeting,
including arranging for an interpreter
for parents with deafness or whose
native language is other than English.
(f)
Parent copy of child’s IEP.
The
public agency must give the parent a
copy of the child’s IEP at no cost to the
parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
§ 300.323 When IEPs must be in effect.
(a)
General.
At the beginning of each
school year, each public agency must
have in effect, for each child with a
disability within its jurisdiction, an IEP,
as defined in § 300.320.
(b)
IEP or IFSP for children aged three
through five.
(1) In the case of a child
with a disability aged three through five
(or, at the discretion of the SEA, a two-
year-old child with a disability who will
turn age three during the school year),
the IEP Team must consider an IFSP
that contains the IFSP content
(including the natural environments
statement) described in section 636(d) of
the Act and its implementing
regulations (including an educational
component that promotes school
readiness and incorporates pre-literacy,
language, and numeracy skills for
children with IFSPs under this section
who are at least three years of age), and
that is developed in accordance with the
IEP procedures under this part. The
IFSP may serve as the IEP of the child,
if using the IFSP as the IEP is—
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the
child’s parents.
(2) In implementing the requirements
of paragraph (b)(1) of this section, the
public agency must—
(i) Provide to the child’s parents a
detailed explanation of the differences
between an IFSP and an IEP; and
(ii) If the parents choose an IFSP,
obtain written informed consent from
the parents.
(c)
Initial IEPs; provision of services.
Each public agency must ensure that—
(1) A meeting to develop an IEP for a
child is conducted within 30 days of a
determination that the child needs
special education and related services;
and
(2) As soon as possible following
development of the IEP, special
education and related services are made
available to the child in accordance
with the child’s IEP.
(d)
Accessibility of child’s IEP to
teachers and others.
Each public agency
must ensure that—
(1) The child’s IEP is accessible to
each regular education teacher, special
education teacher, related services
provider, and any other service provider
who is responsible for its
implementation; and
(2) Each teacher and provider
described in paragraph (d)(1) of this
section is informed of—
(i) His or her specific responsibilities
related to implementing the child’s IEP;
and
(ii) The specific accommodations,
modifications, and supports that must
be provided for the child in accordance
with the IEP.
(e)
IEPs for children who transfer
public agencies in the same State.
If a
child with a disability (who had an IEP
that was in effect in a previous public
agency in the same State) transfers to a
new public agency in the same State,
and enrolls in a new school within the
same school year, the new public
agency (in consultation with the
parents) must provide FAPE to the child
(including services comparable to those
described in the child’s IEP from the
previous public agency), until the new
public agency either—
(1) Adopts the child’s IEP from the
previous public agency; or
(2) Develops, adopts, and implements
a new IEP that meets the applicable
requirements in §§ 300.320 through
300.324.
(f)
IEPs for children who transfer from
another State.
If a child with a disability
(who had an IEP that was in effect in a
previous public agency in another State)
transfers to a public agency in a new
State, and enrolls in a new school
within the same school year, the new
public agency (in consultation with the
parents) must provide the child with
FAPE (including services comparable to
those described in the child’s IEP from
the previous public agency), until the
new public agency—
(1) Conducts an evaluation pursuant
to §§ 300.304 through 300.306 (if
determined to be necessary by the new
public agency); and
(2) Develops, adopts, and implements
a new IEP, if appropriate, that meets the
applicable requirements in §§ 300.320
through 300.324.
(g)
Transmittal of records.
To
facilitate the transition for a child
described in paragraphs (e) and (f) of
this section—
(1) The new public agency in which
the child enrolls must take reasonable
steps to promptly obtain the child’s
records, including the IEP and
supporting documents and any other
records relating to the provision of
special education or related services to
the child, from the previous public
agency in which the child was enrolled,
pursuant to 34 CFR 99.31(a)(2); and
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(2) The previous public agency in
which the child was enrolled must take
reasonable steps to promptly respond to
the request from the new public agency.
(Authority: 20 U.S.C. 1414(d)(2)(A)–(C))
Development of IEP
§ 300.324 Development, review, and
revision of IEP.
(a)
Development of IEP
—(1)
General.
In developing each child’s IEP, the IEP
Team must consider—
(i) The strengths of the child;
(ii) The concerns of the parents for
enhancing the education of their child;
(iii) The results of the initial or most
recent evaluation of the child; and
(iv) The academic, developmental,
and functional needs of the child.
(2)
Consideration of special factors.
The IEP Team must—
(i) In the case of a child whose
behavior impedes the child’s learning or
that of others, consider the use of
positive behavioral interventions and
supports, and other strategies, to
address that behavior;
(ii) In the case of a child with limited
English proficiency, consider the
language needs of the child as those
needs relate to the child’s IEP;
(iii) In the case of a child who is blind
or visually impaired, provide for
instruction in Braille and the use of
Braille unless the IEP Team determines,
after an evaluation of the child’s reading
and writing skills, needs, and
appropriate reading and writing media
(including an evaluation of the child’s
future needs for instruction in Braille or
the use of Braille), that instruction in
Braille or the use of Braille is not
appropriate for the child;
(iv) Consider the communication
needs of the child, and in the case of a
child who is deaf or hard of hearing,
consider the child’s language and
communication needs, opportunities for
direct communications 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; and
(v) Consider whether the child needs
assistive technology devices and
services.
(3)
Requirement with respect to
regular education teacher.
A regular
education teacher of a child with a
disability, as a member of the IEP Team,
must, to the extent appropriate,
participate in the development of the
IEP of the child, including the
determination of—
(i) Appropriate positive behavioral
interventions and supports and other
strategies for the child; and
(ii) Supplementary aids and services,
program modifications, and support for
school personnel consistent with
§ 300.320(a)(4).
(4)
Agreement.
(i) In making changes
to a child’s IEP after the annual IEP
Team meeting for a school year, the
parent of a child with a disability and
the public agency may agree not to
convene an IEP Team meeting for the
purposes of making those changes, and
instead may develop a written
document to amend or modify the
child’s current IEP.
(ii) If changes are made to the child’s
IEP in accordance with paragraph
(a)(4)(i) of this section, the public
agency must ensure that the child’s IEP
Team is informed of those changes.
(5)
Consolidation of IEP Team
meetings.
To the extent possible, the
public agency must encourage the
consolidation of reevaluation meetings
for the child and other IEP Team
meetings for the child.
(6)
Amendments.
Changes to the IEP
may be made either by the entire IEP
Team at an IEP Team meeting, or as
provided in paragraph (a)(4) of this
section, by amending the IEP rather than
by redrafting the entire IEP. Upon
request, a parent must be provided with
a revised copy of the IEP with the
amendments incorporated.
(b)
Review and revision of IEPs
—(1)
General.
Each public agency must
ensure that, subject to paragraphs (b)(2)
and (b)(3) of this section, the IEP
Team—
(i) Reviews the child’s IEP
periodically, but not less than annually,
to determine whether the annual goals
for the child are being achieved; and
(ii) Revises the IEP, as appropriate, to
address—
(A) Any lack of expected progress
toward the annual goals described in
§ 300.320(a)(2), and in the general
education curriculum, if appropriate;
(B) The results of any reevaluation
conducted under § 300.303;
(C) Information about the child
provided to, or by, the parents, as
described under § 300.305(a)(2);
(D) The child’s anticipated needs; or
(E) Other matters.
(2)
Consideration of special factors.
In
conducting a review of the child’s IEP,
the IEP Team must consider the special
factors described in paragraph (a)(2) of
this section.
(3)
Requirement with respect to
regular education teacher.
A regular
education teacher of the child, as a
member of the IEP Team, must,
consistent with paragraph (a)(3) of this
section, participate in the review and
revision of the IEP of the child.
(c)
Failure to meet transition
objectives
—(1)
Participating agency
failure.
If a participating agency, other
than the public agency, fails to provide
the transition services described in the
IEP in accordance with § 300.320(b), the
public agency must reconvene the IEP
Team to identify alternative strategies to
meet the transition objectives for the
child set out in the IEP.
(2)
Construction.
Nothing in this part
relieves any participating agency,
including a State vocational
rehabilitation agency, of the
responsibility to provide or pay for any
transition service that the agency would
otherwise provide to children with
disabilities who meet the eligibility
criteria of that agency.
(d)
Children with disabilities in adult
prisons
—(1)
Requirements that do not
apply.
The following requirements do
not apply to children with disabilities
who are convicted as adults under State
law and incarcerated in adult prisons:
(i) The requirements contained in
section 612(a)(16) of the Act and
§ 300.320(a)(6) (relating to participation
of children with disabilities in general
assessments).
(ii) The requirements in § 300.320(b)
(relating to transition planning and
transition services) do not apply with
respect to the children whose eligibility
under Part B of the Act will end,
because of their age, before they will be
eligible to be released from prison based
on consideration of their sentence and
eligibility for early release.
(2)
Modifications of IEP or placement.
(i) Subject to paragraph (d)(2)(ii) of this
section, the IEP Team of a child with a
disability who is convicted as an adult
under State law and incarcerated in an
adult prison 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.
(ii) The requirements of §§ 300.320
(relating to IEPs), and 300.112 (relating
to LRE), do not apply with respect to the
modifications described in paragraph
(d)(2)(i) of this section.
(Authority: 20 U.S.C. 1412(a)(1),
1412(a)(12)(A)(i), 1414(d)(3), (4)(B), and (7);
and 1414(e))
§ 300.325 Private school placements by
public agencies.
(a)
Developing IEPs.
(1) Before a
public agency places a child with a
disability in, or refers a child to, a
private school or facility, the agency
must initiate and conduct a meeting to
develop an IEP for the child in
accordance with §§ 300.320 and
300.324.
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(2) The agency must ensure that a
representative of the private school or
facility attends the meeting. If the
representative cannot attend, the agency
must use other methods to ensure
participation by the private school or
facility, including individual or
conference telephone calls.
(b)
Reviewing and revising IEPs.
(1)
After a child with a disability enters a
private school or facility, any meetings
to review and revise the child’s IEP may
be initiated and conducted by the
private school or facility at the
discretion of the public agency.
(2) If the private school or facility
initiates and conducts these meetings,
the public agency must ensure that the
parents and an agency representative—
(i) Are involved in any decision about
the child’s IEP; and
(ii) Agree to any proposed changes in
the IEP before those changes are
implemented.
(c)
Responsibility.
Even if a private
school or facility implements a child’s
IEP, responsibility for compliance with
this part remains with the public agency
and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
§ 300.326 [Reserved]
§ 300.327 Educational placements.
Consistent with § 300.501(c), each
public agency must ensure that the
parents of each child with a disability
are members of any group that makes
decisions on the educational placement
of their child.
(Authority: 20 U.S.C. 1414(e))
§ 300.328 Alternative means of meeting
participation.
When conducting IEP Team meetings
and placement meetings pursuant to
this subpart, and subpart E of this part,
and carrying out administrative matters
under section 615 of the Act (such as
scheduling, exchange of witness lists,
and status conferences), the parent of a
child with a disability and a public
agency may agree to use alternative
means of meeting participation, such as
video conferences and conference calls.
(Authority: 20 U.S.C. 1414(f))
Subpart E—Procedural Safeguards
Due Process Procedures for Parents
and Children
§ 300.500 Responsibility of SEA and other
public agencies.
Each SEA must ensure that each
public agency establishes, maintains,
and implements procedural safeguards
that meet the requirements of §§ 300.500
through 300.536.
(Authority: 20 U.S.C. 1415(a))
§ 300.501 Opportunity to examine records;
parent participation in meetings.
(a)
Opportunity to examine records.
The parents of a child with a disability
must be afforded, in accordance with
the procedures of §§ 300.613 through
300.621, an opportunity to inspect and
review all education records with
respect to—
(1) The identification, evaluation, and
educational placement of the child; and
(2) The provision of FAPE to the
child.
(b)
Parent participation in meetings.
(1) The parents of a child with a
disability must be afforded an
opportunity to participate in meetings
with respect to—
(i) The identification, evaluation, and
educational placement of the child; and
(ii) The provision of FAPE to the
child.
(2) Each public agency must provide
notice consistent with § 300.322(a)(1)
and (b)(1) to ensure that parents of
children with disabilities have the
opportunity to participate in meetings
described in paragraph (b)(1) of this
section.
(3) A meeting does not include
informal or unscheduled conversations
involving public agency personnel and
conversations on issues such as teaching
methodology, lesson plans, or
coordination of service provision. A
meeting also does not include
preparatory activities that public agency
personnel engage in to develop a
proposal or response to a parent
proposal that will be discussed at a later
meeting.
(c)
Parent involvement in placement
decisions.
(1) Each public agency must
ensure that a parent of each child with
a disability is a member of any group
that makes decisions on the educational
placement of the parent’s child.
(2) In implementing the requirements
of paragraph (c)(1) of this section, the
public agency must use procedures
consistent with the procedures
described in § 300.322(a) through (b)(1).
(3) If neither parent can participate in
a meeting in which a decision is to be
made relating to the educational
placement of their child, the public
agency must use other methods to
ensure their participation, including
individual or conference telephone
calls, or video conferencing.
(4) A placement decision may be
made by a group without the
involvement of a parent, if the public
agency is unable to obtain the parent’s
participation in the decision. In this
case, the public agency must have a
record of its attempt to ensure their
involvement.
(Authority: 20 U.S.C. 1414(e), 1415(b)(1))
§ 300.502 Independent educational
evaluation.
(a)
General.
(1) The parents of a child
with a disability have the right under
this part to obtain an independent
educational evaluation of the child,
subject to paragraphs (b) through (e) of
this section.
(2) Each public agency must provide
to parents, upon request for an
independent educational evaluation,
information about where an
independent educational evaluation
may be obtained, and the agency criteria
applicable for independent educational
evaluations as set forth in paragraph (e)
of this section.
(3) For the purposes of this subpart—
(i)
Independent educational
evaluation
means an evaluation
conducted by a qualified examiner who
is not employed by the public agency
responsible for the education of the
child in question; and
(ii)
Public expense
means that the
public agency either pays for the full
cost of the evaluation or ensures that the
evaluation is otherwise provided at no
cost to the parent, consistent with
§ 300.103.
(b)
Parent right to evaluation at public
expense.
(1) A parent has the right to an
independent educational evaluation at
public expense if the parent disagrees
with an evaluation obtained by the
public agency, subject to the conditions
in paragraphs (b)(2) through (4) of this
section.
(2) If a parent requests an
independent educational evaluation at
public expense, the public agency must,
without unnecessary delay, either—
(i) File a due process complaint to
request a hearing to show that its
evaluation is appropriate; or
(ii) Ensure that an independent
educational evaluation is provided at
public expense, unless the agency
demonstrates in a hearing pursuant to
§§ 300.507 through 300.513 that the
evaluation obtained by the parent did
not meet agency criteria.
(3) If the public agency files a due
process complaint notice to request a
hearing and the final decision is that the
agency’s evaluation is appropriate, the
parent still has the right to an
independent educational evaluation, but
not at public expense.
(4) If a parent requests an
independent educational evaluation, the
public agency may ask for the parent’s
reason why he or she objects to the
public evaluation. However, the public
agency may not require the parent to
provide an explanation and may not
unreasonably delay either providing the
independent educational evaluation at
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public expense or filing a due process
complaint to request a due process
hearing to defend the public evaluation.
(5) A parent is entitled to only one
independent educational evaluation at
public expense each time the public
agency conducts an evaluation with
which the parent disagrees.
(c)
Parent-initiated evaluations.
If the
parent obtains an independent
educational evaluation at public
expense or shares with the public
agency an evaluation obtained at private
expense, the results of the evaluation—
(1) Must be considered by the public
agency, if it meets agency criteria, in
any decision made with respect to the
provision of FAPE to the child; and
(2) May be presented by any party as
evidence at a hearing on a due process
complaint under subpart E of this part
regarding that child.
(d)
Requests for evaluations by
hearing officers.
If a hearing officer
requests an independent educational
evaluation as part of a hearing on a due
process complaint, the cost of the
evaluation must be at public expense.
(e)
Agency criteria.
(1) If an
independent educational evaluation is
at public expense, the criteria under
which the evaluation is obtained,
including the location of the evaluation
and the qualifications of the examiner,
must be the same as the criteria that the
public agency uses when it initiates an
evaluation, to the extent those criteria
are consistent with the parent’s right to
an independent educational evaluation.
(2) Except for the criteria described in
paragraph (e)(1) of this section, a public
agency may not impose conditions or
timelines related to obtaining an
independent educational evaluation at
public expense.
(Authority: 20 U.S.C. 1415(b)(1) and
(d)(2)(A))
§ 300.503 Prior notice by the public
agency; content of notice.
(a)
Notice.
Written notice that meets
the requirements of paragraph (b) of this
section must be given to the parents of
a child with a disability a reasonable
time before the public agency—
(1) Proposes to initiate or change the
identification, evaluation, or
educational placement of the child or
the provision of FAPE to the child; or
(2) Refuses to initiate or change the
identification, evaluation, or
educational placement of the child or
the provision of FAPE to the child.
(b)
Content of notice.
The notice
required under paragraph (a) of this
section must include—
(1) A description of the action
proposed or refused by the agency;
(2) An explanation of why the agency
proposes or refuses to take the action;
(3) A description of each evaluation
procedure, assessment, record, or report
the agency used as a basis for the
proposed or refused action;
(4) A statement that the parents of a
child with a disability have protection
under the procedural safeguards of this
part and, if this notice is not an initial
referral for evaluation, the means by
which a copy of a description of the
procedural safeguards can be obtained;
(5) Sources for parents to contact to
obtain assistance in understanding the
provisions of this part;
(6) A description of other options that
the IEP Team considered and the
reasons why those options were
rejected; and
(7) A description of other factors that
are relevant to the agency’s proposal or
refusal.
(c)
Notice in understandable
language.
(1) The notice required under
paragraph (a) of this section must be—
(i) Written in language
understandable to the general public;
and
(ii) Provided in the native language of
the parent or other mode of
communication used by the parent,
unless it is clearly not feasible to do so.
(2) If the native language or other
mode of communication of the parent is
not a written language, the public
agency must take steps to ensure—
(i) That the notice is translated orally
or by other means to the parent in his
or her native language or other mode of
communication;
(ii) That the parent understands the
content of the notice; and
(iii) That there is written evidence
that the requirements in paragraphs
(c)(2)(i) and (ii) of this section have been
met.
(Authority: 20 U.S.C. 1415(b)(3) and (4),
1415(c)(1), 1414(b)(1))
§ 300.504 Procedural safeguards notice.
(a)
General
. A copy of the procedural
safeguards available to the parents of a
child with a disability must be given to
the parents only one time a school year,
except that a copy also must be given to
the parents—
(1) Upon initial referral or parent
request for evaluation;
(2) Upon receipt of the first State
complaint under §§ 300.151 through
300.153 and upon receipt of the first
due process complaint under § 300.507
in a school year;
(3) In accordance with the discipline
procedures in § 300.530(h); and
(4) Upon request by a parent.
(b)
Internet Web site.
A public agency
may place a current copy of the
procedural safeguards notice on its
Internet Web site if a Web site exists.
(c)
Contents.
The procedural
safeguards notice must include a full
explanation of all of the procedural
safeguards available under § 300.148,
§§ 300.151 through 300.153, § 300.300,
§§ 300.502 through 300.503, §§ 300.505
through 300.518, § 300.520, §§ 300.530
through 300.536 and §§ 300.610 through
300.625 relating to—
(1) Independent educational
evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve
complaints through the due process
complaint and State complaint
procedures, including—
(i) The time period in which to file a
complaint;
(ii) The opportunity for the agency to
resolve the complaint; and
(iii) The difference between the due
process complaint and the State
complaint procedures, including the
jurisdiction of each procedure, what
issues may be raised, filing and
decisional timelines, and relevant
procedures;
(6) The availability of mediation;
(7) The child’s placement during the
pendency of any due process complaint;
(8) Procedures for students who are
subject to placement in an interim
alternative educational setting;
(9) Requirements for unilateral
placement by parents of children in
private schools at public expense;
(10) Hearings on due process
complaints, including requirements for
disclosure of evaluation results and
recommendations;
(11) State-level appeals (if applicable
in the State);
(12) Civil actions, including the time
period in which to file those actions;
and
(13) Attorneys’ fees.
(d)
Notice in understandable
language.
The notice required under
paragraph (a) of this section must meet
the requirements of § 300.503(c).
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(d))
§ 300.505 Electronic mail.
A parent of a child with a disability
may elect to receive notices required by
§§ 300.503, 300.504, and 300.508 by an
electronic mail communication, if the
public agency makes that option
available.
(Authority: 20 U.S.C. 1415(n))
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§ 300.506 Mediation.
(a)
General.
Each public agency must
ensure that procedures are established
and implemented to allow parties to
disputes involving any matter under
this part, including matters arising prior
to the filing of a due process complaint,
to resolve disputes through a mediation
process.
(b)
Requirements.
The procedures
must meet the following requirements:
(1) The procedures must ensure that
the mediation process—
(i) Is voluntary on the part of the
parties;
(ii) Is not used to deny or delay a
parent’s right to a hearing on the
parent’s due process complaint, or to
deny any other rights afforded under
Part B of the Act; and
(iii) Is conducted by a qualified and
impartial mediator who is trained in
effective mediation techniques.
(2) A public agency may establish
procedures to offer to parents and
schools that choose not to use the
mediation process, an opportunity to
meet, at a time and location convenient
to the parents, with a disinterested
party—
(i) Who is under contract with an
appropriate alternative dispute
resolution entity, or a parent training
and information center or community
parent resource center in the State
established under section 671 or 672 of
the Act; and
(ii) Who would explain the benefits
of, and encourage the use of, the
mediation process to the parents.
(3)(i) The State must maintain a list of
individuals who are qualified mediators
and knowledgeable in laws and
regulations relating to the provision of
special education and related services.
(ii) The SEA must select mediators on
a random, rotational, or other impartial
basis.
(4) The State must bear the cost of the
mediation process, including the costs
of meetings described in paragraph
(b)(2) of this section.
(5) Each session in the mediation
process must be scheduled in a timely
manner and must be held in a location
that is convenient to the parties to the
dispute.
(6) If the parties resolve a dispute
through the mediation process, the
parties must execute a legally binding
agreement that sets forth that resolution
and that—
(i) States that all discussions that
occurred during the mediation process
will remain confidential and may not be
used as evidence in any subsequent due
process hearing or civil proceeding; and
(ii) Is signed by both the parent and
a representative of the agency who has
the authority to bind such agency.
(7) A written, signed mediation
agreement under this paragraph is
enforceable in any State court of
competent jurisdiction or in a district
court of the United States.
Discussions that occur during the
mediation process must be confidential
and may not be used as evidence in any
subsequent due process hearing or civil
proceeding of any Federal court or State
court of a State receiving assistance
under this part.
(c)
Impartiality of mediator.
(1) An
individual who serves as a mediator
under this part—
(i) May not be an employee of the SEA
or the LEA that is involved in the
education or care of the child; and
(ii) Must not have a personal or
professional interest that conflicts with
the person’s objectivity.
(2) A person who otherwise qualifies
as a mediator is not an employee of an
LEA or State agency described under
§ 300.228 solely because he or she is
paid by the agency to serve as a
mediator.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(e))
§ 300.507 Filing a due process complaint.
(a)
General.
(1) A parent or a public
agency may file a due process complaint
on any of the matters described in
§ 300.503(a)(1) and (2) (relating to the
identification, evaluation or educational
placement of a child with a disability,
or the provision of FAPE to the child).
(2) The due process complaint must
allege a violation that occurred not more
than two years before the date the
parent or public agency knew or should
have known about the alleged action
that forms the basis of the due process
complaint, or, if the State has an explicit
time limitation for filing a due process
complaint under this part, in the time
allowed by that State law, except that
the exceptions to the timeline described
in § 300.511(f) apply to the timeline in
this section.
(b)
Information for parents.
The
public agency must inform the parent of
any free or low-cost legal and other
relevant services available in the area
if—
(1) The parent requests the
information; or
(2) The parent or the agency files a
due process complaint under this
section.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(b)(6))
§ 300.508 Due process complaint.
(a)
General.
(1) The public agency
must have procedures that require either
party, or the attorney representing a
party, to provide to the other party a due
process complaint (which must remain
confidential).
(2) The party filing a due process
complaint must forward a copy of the
due process complaint to the SEA.
(b)
Content of complaint.
The due
process complaint required in paragraph
(a)(1) of this section must include—
(1) The name of the child;
(2) The address of the residence of the
child;
(3) The name of the school the child
is attending;
(4) In the case of a homeless child or
youth (within the meaning of section
725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)),
available contact information for the
child, and the name of the school the
child is attending;
(5) A description of the nature of the
problem of the child relating to the
proposed or refused initiation or
change, including facts relating to the
problem; and
(6) A proposed resolution of the
problem to the extent known and
available to the party at the time.
(c)
Notice required before a hearing
on a due process complaint.
A party
may not have a hearing on a due process
complaint until the party, or the
attorney representing the party, files a
due process complaint that meets the
requirements of paragraph (b) of this
section.
(d)
Sufficiency of complaint.
(1) The
due process complaint required by this
section must be deemed sufficient
unless the party receiving the due
process complaint notifies the hearing
officer and the other party in writing,
within 15 days of receipt of the due
process complaint, that the receiving
party believes the due process
complaint does not meet the
requirements in paragraph (b) of this
section.
(2) Within five days of receipt of
notification under paragraph (d)(1) of
this section, the hearing officer must
make a determination on the face of the
due process complaint of whether the
due process complaint meets the
requirements of paragraph (b) of this
section, and must immediately notify
the parties in writing of that
determination.
(3) A party may amend its due process
complaint only if—
(i) The other party consents in writing
to the amendment and is given the
opportunity to resolve the due process
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complaint through a meeting held
pursuant to § 300.510; or
(ii) The hearing officer grants
permission, except that the hearing
officer may only grant permission to
amend at any time not later than five
days before the due process hearing
begins.
(4) If a party files an amended due
process complaint, the timelines for the
resolution meeting in § 300.510(a) and
the time period to resolve in
§ 300.510(b) begin again with the filing
of the amended due process complaint.
(e)
LEA response to a due process
complaint.
(1) If the LEA has not sent
a prior written notice under § 300.503 to
the parent regarding the subject matter
contained in the parent’s due process
complaint, the LEA must, within 10
days of receiving the due process
complaint, send to the parent a response
that includes—
(i) An explanation of why the agency
proposed or refused to take the action
raised in the due process complaint;
(ii) A description of other options that
the IEP Team considered and the
reasons why those options were
rejected;
(iii) A description of each evaluation
procedure, assessment, record, or report
the agency used as the basis for the
proposed or refused action; and
(iv) A description of the other factors
that are relevant to the agency’s
proposed or refused action.
(2) A response by an LEA under
paragraph (e)(1) of this section shall not
be construed to preclude the LEA from
asserting that the parent’s due process
complaint was insufficient, where
appropriate.
(f)
Other party response to a due
process complaint.
Except as provided
in paragraph (e) of this section, the party
receiving a due process complaint must,
within 10 days of receiving the due
process complaint, send to the other
party a response that specifically
addresses the issues raised in the due
process complaint.
(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))
§ 300.509 Model forms.
(a) Each SEA must develop model
forms to assist parents and public
agencies in filing a due process
complaint in accordance with
§§ 300.507(a) and 300.508(a) through (c)
and to assist parents and other parties
in filing a State complaint under
§§ 300.151 through 300.153. However,
the SEA or LEA may not require the use
of the model forms.
(b) Parents, public agencies, and other
parties may use the appropriate model
form described in paragraph (a) of this
section, or another form or other
document, so long as the form or
document that is used meets, as
appropriate, the content requirements in
§ 300.508(b) for filing a due process
complaint, or the requirements in
§ 300.153(b) for filing a State complaint.
(Authority: 20 U.S.C. 1415(b)(8))
§ 300.510 Resolution process.
(a)
Resolution meeting
. (1) Within 15
days of receiving notice of the parent’s
due process complaint, and prior to the
initiation of a due process hearing under
§ 300.511, the LEA must convene a
meeting with the parent and the
relevant member or members of the IEP
Team who have specific knowledge of
the facts identified in the due process
complaint that—
(i) Includes a representative of the
public agency who has decision-making
authority on behalf of that agency; and
(ii) May not include an attorney of the
LEA unless the parent is accompanied
by an attorney.
(2) The purpose of the meeting is for
the parent of the child to discuss the
due process complaint, and the facts
that form the basis of the due process
complaint, so that the LEA has the
opportunity to resolve the dispute that
is the basis for the due process
complaint.
(3) The meeting described in
paragraph (a)(1) and (2) of this section
need not be held if—
(i) The parent and the LEA agree in
writing to waive the meeting; or
(ii) The parent and the LEA agree to
use the mediation process described in
§ 300.506.
(4) The parent and the LEA determine
the relevant members of the IEP Team
to attend the meeting.
(b)
Resolution period.
(1) If the LEA
has not resolved the due process
complaint to the satisfaction of the
parent within 30 days of the receipt of
the due process complaint, the due
process hearing may occur.
(2) Except as provided in paragraph
(c) of this section, the timeline for
issuing a final decision under § 300.515
begins at the expiration of this 30-day
period.
(3) Except where the parties have
jointly agreed to waive the resolution
process or to use mediation,
notwithstanding paragraphs (b)(1) and
(2) of this section, the failure of the
parent filing a due process complaint to
participate in the resolution meeting
will delay the timelines for the
resolution process and due process
hearing until the meeting is held.
(4) If the LEA is unable to obtain the
participation of the parent in the
resolution meeting after reasonable
efforts have been made (and
documented using the procedures in
§ 300.322(d)), the LEA may, at the
conclusion of the 30-day period, request
that a hearing officer dismiss the
parent’s due process complaint.
(5) If the LEA fails to hold the
resolution meeting specified in
paragraph (a) of this section within 15
days of receiving notice of a parent’s
due process complaint or fails to
participate in the resolution meeting,
the parent may seek the intervention of
a hearing officer to begin the due
process hearing timeline.
(c)
Adjustments to 30-day resolution
period.
The 45-day timeline for the due
process hearing in § 300.515(a) starts the
day after one of the following events:
(1) Both parties agree in writing to
waive the resolution meeting;
(2) After either the mediation or
resolution meeting starts but before the
end of the 30-day period, the parties
agree in writing that no agreement is
possible;
(3) If both parties agree in writing to
continue the mediation at the end of the
30-day resolution period, but later, the
parent or public agency withdraws from
the mediation process.
(d)
Written settlement agreement.
If a
resolution to the dispute is reached at
the meeting described in paragraphs
(a)(1) and (2) of this section, the parties
must execute a legally binding
agreement that is—
(1) Signed by both the parent and a
representative of the agency who has the
authority to bind the agency; and
(2) Enforceable in any State court of
competent jurisdiction or in a district
court of the United States, or, by the
SEA, if the State has other mechanisms
or procedures that permit parties to seek
enforcement of resolution agreements,
pursuant to § 300.537.
(e)
Agreement review period.
If the
parties execute an agreement pursuant
to paragraph (c) of this section, a party
may void the agreement within 3
business days of the agreement’s
execution.
(Authority: 20 U.S.C. 1415(f)(1)(B))
§ 300.511 Impartial due process hearing.
(a)
General.
Whenever a due process
complaint is received under § 300.507
or § 300.532, the parents or the LEA
involved in the dispute must have an
opportunity for an impartial due process
hearing, consistent with the procedures
in §§ 300.507, 300.508, and 300.510.
(b)
Agency responsible for conducting
the due process hearing.
The hearing
described in paragraph (a) of this
section must be conducted by the SEA
or the public agency directly
responsible for the education of the
child, as determined under State statute,
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State regulation, or a written policy of
the SEA.
(c)
Impartial hearing officer.
(1) At a
minimum, a hearing officer—
(i) Must not be—
(A) An employee of the SEA or the
LEA that is involved in the education or
care of the child; or
(B) A person having a personal or
professional interest that conflicts with
the person’s objectivity in the hearing;
(ii) Must possess knowledge of, and
the ability to understand, the provisions
of the Act, Federal and State regulations
pertaining to the Act, and legal
interpretations of the Act by Federal and
State courts;
(iii) Must possess the knowledge and
ability to conduct hearings in
accordance with appropriate, standard
legal practice; and
(iv) Must possess the knowledge and
ability to render and write decisions in
accordance with appropriate, standard
legal practice.
(2) A person who otherwise qualifies
to conduct a hearing under paragraph
(c)(1) of this section is not an employee
of the agency solely because he or she
is paid by the agency to serve as a
hearing officer.
(3) Each public agency must keep a
list of the persons who serve as hearing
officers. The list must include a
statement of the qualifications of each of
those persons.
(d)
Subject matter of due process
hearings.
The party requesting the due
process hearing may not raise issues at
the due process hearing that were not
raised in the due process complaint
filed under § 300.508(b), unless the
other party agrees otherwise.
(e)
Timeline for requesting a hearing.
A parent or agency must request an
impartial hearing on their due process
complaint within two years of the date
the parent or agency knew or should
have known about the alleged action
that forms the basis of the due process
complaint, or if the State has an explicit
time limitation for requesting such a
due process hearing under this part, in
the time allowed by that State law.
(f)
Exceptions to the timeline.
The
timeline described in paragraph (e) of
this section does not apply to a parent
if the parent was prevented from filing
a due process complaint due to—
(1) Specific misrepresentations by the
LEA that it had resolved the problem
forming the basis of the due process
complaint; or
(2) The LEA’s withholding of
information from the parent that was
required under this part to be provided
to the parent.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1415(f)(1)(A),
1415(f)(3)(A)–(D))
§ 300.512 Hearing rights.
(a)
General.
Any party to a hearing
conducted pursuant to §§ 300.507
through 300.513 or §§ 300.530 through
300.534, or an appeal conducted
pursuant to § 300.514, has the right to—
(1) Be accompanied and advised by
counsel and by individuals with special
knowledge or training with respect to
the problems of children with
disabilities;
(2) Present evidence and confront,
cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any
evidence at the hearing that has not
been disclosed to that party at least five
business days before the hearing;
(4) Obtain a written, or, at the option
of the parents, electronic, verbatim
record of the hearing; and
(5) Obtain written, or, at the option of
the parents, electronic findings of fact
and decisions.
(b)
Additional disclosure of
information.
(1) At least five business
days prior to a hearing conducted
pursuant to § 300.511(a), each party
must disclose to all other parties all
evaluations completed by that date and
recommendations based on the offering
party’s evaluations that the party
intends to use at the hearing.
(2) A hearing officer may bar any
party that fails to comply with
paragraph (b)(1) of this section from
introducing the relevant evaluation or
recommendation at the hearing without
the consent of the other party.
(c)
Parental rights at hearings.
Parents
involved in hearings must be given the
right to—
(1) Have the child who is the subject
of the hearing present;
(2) Open the hearing to the public;
and
(3) Have the record of the hearing and
the findings of fact and decisions
described in paragraphs (a)(4) and (a)(5)
of this section provided at no cost to
parents.
(Authority: 20 U.S.C. 1415(f)(2), 1415(h))
§ 300.513 Hearing decisions.
(a)
Decision of hearing officer on the
provision of FAPE.
(1) Subject to
paragraph (a)(2) of this section, a
hearing officer’s determination of
whether a child received FAPE must be
based on substantive grounds.
(2) In matters alleging a procedural
violation, a hearing officer may find that
a child did not receive a FAPE only if
the procedural inadequacies—
(i) Impeded the child’s right to a
FAPE;
(ii) Significantly impeded the parent’s
opportunity to participate in the
decision-making process regarding the
provision of a FAPE to the parent’s
child; or
(iii) Caused a deprivation of
educational benefit.
(3) Nothing in paragraph (a) of this
section shall be construed to preclude a
hearing officer from ordering an LEA to
comply with procedural requirements
under §§ 300.500 through 300.536.
(b)
Construction clause.
Nothing in
§§ 300.507 through 300.513 shall be
construed to affect the right of a parent
to file an appeal of the due process
hearing decision with the SEA under
§ 300.514(b), if a State level appeal is
available.
(c)
Separate request for a due process
hearing.
Nothing in §§ 300.500 through
300.536 shall be construed to preclude
a parent from filing a separate due
process complaint on an issue separate
from a due process complaint already
filed.
(d)
Findings and decision to advisory
panel and general public.
The public
agency, after deleting any personally
identifiable information, must—
(1) Transmit the findings and
decisions referred to in § 300.512(a)(5)
to the State advisory panel established
under § 300.167; and
(2) Make those findings and decisions
available to the public.
(Authority: 20 U.S.C. 1415(f)(3)(E) and (F),
1415(h)(4), 1415(o))
§ 300.514 Finality of decision; appeal;
impartial review.
(a)
Finality of hearing decision.
A
decision made in a hearing conducted
pursuant to §§ 300.507 through 300.513
or §§ 300.530 through 300.534 is final,
except that any party involved in the
hearing may appeal the decision under
the provisions of paragraph (b) of this
section and § 300.516.
(b)
Appeal of decisions; impartial
review.
(1) If the hearing required by
§ 300.511 is conducted by a public
agency other than the SEA, any party
aggrieved by the findings and decision
in the hearing may appeal to the SEA.
(2) If there is an appeal, the SEA must
conduct an impartial review of the
findings and decision appealed. The
official conducting the review must—
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the
hearing were consistent with the
requirements of due process;
(iii) Seek additional evidence if
necessary. If a hearing is held to receive
additional evidence, the rights in
§ 300.512 apply;
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(iv) Afford the parties an opportunity
for oral or written argument, or both, at
the discretion of the reviewing official;
(v) Make an independent decision on
completion of the review; and
(vi) Give a copy of the written, or, at
the option of the parents, electronic
findings of fact and decisions to the
parties.
(c)
Findings and decision to advisory
panel and general public.
The SEA,
after deleting any personally identifiable
information, must—
(1) Transmit the findings and
decisions referred to in paragraph
(b)(2)(vi) of this section to the State
advisory panel established under
§ 300.167; and
(2) Make those findings and decisions
available to the public.
(d)
Finality of review decision.
The
decision made by the reviewing official
is final unless a party brings a civil
action under § 300.516.
(Authority: 20 U.S.C. 1415(g) and (h)(4),
1415(i)(1)(A), 1415(i)(2))
§ 300.515 Timelines and convenience of
hearings and reviews.
(a) The public agency must ensure
that not later than 45 days after the
expiration of the 30 day period under
§ 300.510(b), or the adjusted time
periods described in § 300.510(c)—
(1) A final decision is reached in the
hearing; and
(2) A copy of the decision is mailed
to each of the parties.
(b) The SEA must ensure that not later
than 30 days after the receipt of a
request for a review—
(1) A final decision is reached in the
review; and
(2) A copy of the decision is mailed
to each of the parties.
(c) A hearing or reviewing officer may
grant specific extensions of time beyond
the periods set out in paragraphs (a) and
(b) of this section at the request of either
party.
(d) Each hearing and each review
involving oral arguments must be
conducted at a time and place that is
reasonably convenient to the parents
and child involved.
(Authority: 20 U.S.C. 1415(f)(1)(B)(ii),
1415(g), 1415(i)(1))
§ 300.516 Civil action.
(a)
General.
Any party aggrieved by
the findings and decision made under
§§ 300.507 through 300.513 or
§§ 300.530 through 300.534 who does
not have the right to an appeal under
§ 300.514(b), and any party aggrieved by
the findings and decision under
§ 300.514(b), has the right to bring a
civil action with respect to the due
process complaint notice requesting a
due process hearing under § 300.507 or
§§ 300.530 through 300.532. The action
may be brought in any State court of
competent jurisdiction or in a district
court of the United States without
regard to the amount in controversy.
(b)
Time limitation.
The party
bringing the action shall have 90 days
from the date of the decision of the
hearing officer or, if applicable, the
decision of the State review official, to
file a civil action, or, if the State has an
explicit time limitation for bringing civil
actions under Part B of the Act, in the
time allowed by that State law.
(c)
Additional requirements.
In any
action brought under paragraph (a) of
this section, the court—
(1) Receives the records of the
administrative proceedings;
(2) Hears additional evidence at the
request of a party; and
(3) Basing its decision on the
preponderance of the evidence, grants
the relief that the court determines to be
appropriate.
(d)
Jurisdiction of district courts.
The
district courts of the United States have
jurisdiction of actions brought under
section 615 of the Act without regard to
the amount in controversy.
(e)
Rule of construction.
Nothing in
this part restricts or limits the rights,
procedures, and remedies available
under the Constitution, the Americans
with Disabilities Act of 1990, title V of
the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of
children with disabilities, except that
before the filing of a civil action under
these laws seeking relief that is also
available under section 615 of the Act,
the procedures under §§ 300.507 and
300.514 must be exhausted to the same
extent as would be required had the
action been brought under section 615
of the Act.
(Authority: 20 U.S.C. 1415(i)(2) and (3)(A),
1415(l))
§ 300.517 Attorneys’ fees.
(a)
In general.
(1) In any action or
proceeding brought under section 615 of
the Act, the court, in its discretion, may
award reasonable attorneys’ fees as part
of the costs to—
(i) The prevailing party who is the
parent of a child with a disability;
(ii) To a prevailing party who is an
SEA or LEA against the attorney of a
parent who files a complaint or
subsequent cause of action that is
frivolous, unreasonable, or without
foundation, or against the attorney of a
parent who continued to litigate after
the litigation clearly became frivolous,
unreasonable, or without foundation; or
(iii) To a prevailing SEA or LEA
against the attorney of a parent, or
against the parent, if the parent’s request
for a due process hearing or subsequent
cause of action was presented for any
improper purpose, such as to harass, to
cause unnecessary delay, or to
needlessly increase the cost of litigation.
(2) Nothing in this subsection shall be
construed to affect section 327 of the
District of Columbia Appropriations
Act, 2005.
(b)
Prohibition on use of funds.
(1)
Funds under Part B of the Act may not
be used to pay attorneys’ fees or costs
of a party related to any action or
proceeding under section 615 of the Act
and subpart E of this part.
(2) Paragraph (b)(1) of this section
does not preclude a public agency from
using funds under Part B of the Act for
conducting an action or proceeding
under section 615 of the Act.
(c)
Award of fees.
A court awards
reasonable attorneys’ fees under section
615(i)(3) of the Act consistent with the
following:
(1) Fees awarded under section
615(i)(3) of the Act must be based on
rates prevailing in the community in
which the action or proceeding arose for
the kind and quality of services
furnished. No bonus or multiplier may
be used in calculating the fees awarded
under this paragraph.
(2)(i) Attorneys’ fees may not be
awarded and related costs may not be
reimbursed in any action or proceeding
under section 615 of the Act for services
performed subsequent to the time of a
written offer of settlement to a parent
if—
(A) The offer is made within the time
prescribed by Rule 68 of the Federal
Rules of Civil Procedure or, in the case
of an administrative proceeding, at any
time more than 10 days before the
proceeding begins;
(B) The offer is not accepted within 10
days; and
(C) The court or administrative
hearing officer finds that the relief
finally obtained by the parents is not
more favorable to the parents than the
offer of settlement.
(ii) Attorneys’ fees may not be
awarded relating to any meeting of the
IEP Team unless the meeting is
convened as a result of an
administrative proceeding or judicial
action, or at the discretion of the State,
for a mediation described in § 300.506.
(iii) A meeting conducted pursuant to
§ 300.510 shall not be considered—
(A) A meeting convened as a result of
an administrative hearing or judicial
action; or
(B) An administrative hearing or
judicial action for purposes of this
section.
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(3) Notwithstanding paragraph (c)(2)
of this section, an award of attorneys’
fees and related costs may be made to
a parent who is the prevailing party and
who was substantially justified in
rejecting the settlement offer.
(4) Except as provided in paragraph
(c)(5) of this section, the court reduces,
accordingly, the amount of the
attorneys’ fees awarded under section
615 of the Act, if the court finds that—
(i) The parent, or the parent’s
attorney, during the course of the action
or proceeding, unreasonably protracted
the final resolution of the controversy;
(ii) The amount of the attorneys’ fees
otherwise authorized to be awarded
unreasonably exceeds the hourly rate
prevailing in the community for similar
services by attorneys of reasonably
comparable skill, reputation, and
experience;
(iii) The time spent and legal services
furnished were excessive considering
the nature of the action or proceeding;
or
(iv) The attorney representing the
parent did not provide to the LEA the
appropriate information in the due
process request notice in accordance
with § 300.508.
(5) The provisions of paragraph (c)(4)
of this section do not apply in any
action or proceeding if the court finds
that the State or local agency
unreasonably protracted the final
resolution of the action or proceeding or
there was a violation of section 615 of
the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)–(G))
§ 300.518 Child’s status during
proceedings.
(a) Except as provided in § 300.533,
during the pendency of any
administrative or judicial proceeding
regarding a due process complaint
notice requesting a due process hearing
under § 300.507, unless the State or
local agency and the parents of the child
agree otherwise, the child involved in
the complaint must remain in his or her
current educational placement.
(b) If the complaint involves an
application for initial admission to
public school, the child, with the
consent of the parents, must be placed
in the public school until the
completion of all the proceedings.
(c) If the complaint involves an
application for initial services under
this part from a child who is
transitioning from Part C of the Act to
Part B and is no longer eligible for Part
C services because the child has turned
three, the public agency is not required
to provide the Part C services that the
child had been receiving. If the child is
found eligible for special education and
related services under Part B and the
parent consents to the initial provision
of special education and related services
under § 300.300(b), then the public
agency must provide those special
education and related services that are
not in dispute between the parent and
the public agency.
(d) If the hearing officer in a due
process hearing conducted by the SEA
or a State review official in an
administrative appeal agrees with the
child’s parents that a change of
placement is appropriate, that
placement must be treated as an
agreement between the State and the
parents for purposes of paragraph (a) of
this section.
(Authority: 20 U.S.C. 1415(j))
§ 300.519 Surrogate parents.
(a)
General.
Each public agency must
ensure that the rights of a child are
protected when—
(1) No parent (as defined in § 300.30)
can be identified;
(2) The public agency, after
reasonable efforts, cannot locate a
parent;
(3) The child is a ward of the State
under the laws of that State; or
(4) The child is an unaccompanied
homeless youth as defined in section
725(6) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(6)).
(b)
Duties of public agency.
The duties
of a public agency under paragraph (a)
of this section include the assignment of
an individual to act as a surrogate for
the parents. This must include a
method—
(1) For determining whether a child
needs a surrogate parent; and
(2) For assigning a surrogate parent to
the child.
(c)
Wards of the State.
In the case of
a child who is a ward of the State, the
surrogate parent alternatively may be
appointed by the judge overseeing the
child’s case, provided that the surrogate
meets the requirements in paragraphs
(d)(2)(i) and (e) of this section.
(d)
Criteria for selection of surrogate
parents.
(1) The public agency may
select a surrogate parent in any way
permitted under State law.
(2) Public agencies must ensure that a
person selected as a surrogate parent—
(i) Is not an employee of the SEA, the
LEA, or any other agency that is
involved in the education or care of the
child;
(ii) Has no personal or professional
interest that conflicts with the interest
of the child the surrogate parent
represents; and
(iii) Has knowledge and skills that
ensure adequate representation of the
child.
(e)
Non-employee requirement;
compensation.
A person otherwise
qualified to be a surrogate parent under
paragraph (d) of this section is not an
employee of the agency solely because
he or she is paid by the agency to serve
as a surrogate parent.
(f)
Unaccompanied homeless youth.
In the case of a child who is an
unaccompanied homeless youth,
appropriate staff of emergency shelters,
transitional shelters, independent living
programs, and street outreach programs
may be appointed as temporary
surrogate parents without regard to
paragraph (d)(2)(i) of this section, until
a surrogate parent can be appointed that
meets all of the requirements of
paragraph (d) of this section.
(g)
Surrogate parent responsibilities.
The surrogate parent may represent the
child in all matters relating to—
(1) The identification, evaluation, and
educational placement of the child; and
(2) The provision of FAPE to the
child.
(h)
SEA responsibility.
The SEA must
make reasonable efforts to ensure the
assignment of a surrogate parent not
more than 30 days after a public agency
determines that the child needs a
surrogate parent.
(Authority: 20 U.S.C. 1415(b)(2))
§ 300.520 Transfer of parental rights at age
of majority.
(a)
General.
A State may provide that,
when a child with a disability reaches
the age of majority under State law that
applies to all children (except for a
child with a disability who has been
determined to be incompetent under
State law)—
(1)(i) The public agency must provide
any notice required by this part to both
the child and the parents; and
(ii) All rights accorded to parents
under Part B of the Act transfer to the
child;
(2) All rights accorded to parents
under Part B of the Act transfer to
children who are incarcerated in an
adult or juvenile, State or local
correctional institution; and
(3) Whenever a State provides for the
transfer of rights under this part
pursuant to paragraph (a)(1) or (a)(2) of
this section, the agency must notify the
child and the parents of the transfer of
rights.
(b)
Special rule.
A State must
establish procedures for appointing the
parent of a child with a disability, or, if
the parent is not available, another
appropriate individual, to represent the
educational interests of the child
throughout the period of the child’s
eligibility under Part B of the Act if,
under State law, a child who has
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reached the age of majority, but has not
been determined to be incompetent, can
be determined not to have the ability to
provide informed consent with respect
to the child’s educational program.
(Authority: 20 U.S.C. 1415(m))
§§ 300.521–300.529 [Reserved]
Discipline Procedures
§ 300.530 Authority of school personnel.
(a)
Case-by-case determination.
School personnel may consider any
unique circumstances on a case-by-case
basis when determining whether a
change in placement, consistent with
the other requirements of this section, is
appropriate for a child with a disability
who violates a code of student conduct.
(b)
General.
(1) School personnel
under this section may remove a child
with a disability who violates a code of
student conduct from his or her current
placement to an appropriate interim
alternative educational setting, another
setting, or suspension, for not more than
10 consecutive school days (to the
extent those alternatives are applied to
children without disabilities), and for
additional removals of not more than 10
consecutive school days in that same
school year for separate incidents of
misconduct (as long as those removals
do not constitute a change of placement
under § 300.536).
(2) After a child with a disability has
been removed from his or her current
placement for 10 school days in the
same school year, during any
subsequent days of removal the public
agency must provide services to the
extent required under paragraph (d) of
this section.
(c)
Additional authority.
For
disciplinary changes in placement that
would exceed 10 consecutive school
days, if the behavior that gave rise to the
violation of the school code is
determined not to be a manifestation of
the child’s disability pursuant to
paragraph (e) of this section, school
personnel may apply the relevant
disciplinary procedures to children with
disabilities in the same manner and for
the same duration as the procedures
would be applied to children without
disabilities, except as provided in
paragraph (d) of this section.
(d)
Services.
(1) A child with a
disability who is removed from the
child’s current placement pursuant to
paragraphs (c), or (g) of this section
must—
(i) Continue to receive educational
services, as provided in § 300.101(a), so
as to enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP; and
(ii) Receive, as appropriate, a
functional behavioral assessment, and
behavioral intervention services and
modifications, that are designed to
address the behavior violation so that it
does not recur.
(2) The services required by paragraph
(d)(1), (d)(3), (d)(4), and (d)(5) of this
section may be provided in an interim
alternative educational setting.
(3) A public agency is only required
to provide services during periods of
removal to a child with a disability who
has been removed from his or her
current placement for 10 school days or
less in that school year, if it provides
services to a child without disabilities
who is similarly removed.
(4) After a child with a disability has
been removed from his or her current
placement for 10 school days in the
same school year, if the current removal
is for not more than 10 consecutive
school days and is not a change of
placement under § 300.536, school
personnel, in consultation with at least
one of the child’s teachers, determine
the extent to which services are needed,
as provided in § 300.101(a), so as to
enable the child to continue to
participate in the general education
curriculum, although in another setting,
and to progress toward meeting the
goals set out in the child’s IEP.
(5) If the removal is a change of
placement under § 300.536, the child’s
IEP Team determines appropriate
services under paragraph (d)(1) of this
section.
(e)
Manifestation determination.
(1)
Within 10 school days of any decision
to change the placement of a child with
a disability because of a violation of a
code of student conduct, the LEA, the
parent, and relevant members of the
child’s IEP Team (as determined by the
parent and the LEA) must review all
relevant information in the student’s
file, including the child’s IEP, any
teacher observations, and any relevant
information provided by the parents to
determine—
(i) If the conduct in question was
caused by, or had a direct and
substantial relationship to, the child’s
disability; or
(ii) If the conduct in question was the
direct result of the LEA’s failure to
implement the IEP.
(2) The conduct must be determined
to be a manifestation of the child’s
disability if the LEA, the parent, and
relevant members of the child’s IEP
Team determine that a condition in
either paragraph (e)(1)(i) or (1)(ii) of this
section was met.
(3) If the LEA, the parent, and relevant
members of the child’s IEP Team
determine the condition described in
paragraph (e)(1)(ii) of this section was
met, the LEA must take immediate steps
to remedy those deficiencies.
(f)
Determination that behavior was a
manifestation.
If the LEA, the parent,
and relevant members of the IEP Team
make the determination that the
conduct was a manifestation of the
child’s disability, the IEP Team must—
(1) Either—
(i) Conduct a functional behavioral
assessment, unless the LEA had
conducted a functional behavioral
assessment before the behavior that
resulted in the change of placement
occurred, and implement a behavioral
intervention plan for the child; or
(ii) If a behavioral intervention plan
already has been developed, review the
behavioral intervention plan, and
modify it, as necessary, to address the
behavior; and
(2) Except as provided in paragraph
(g) of this section, return the child to the
placement from which the child was
removed, unless the parent and the LEA
agree to a change of placement as part
of the modification of the behavioral
intervention plan.
(g)
Special circumstances.
School
personnel may remove a student to an
interim alternative educational setting
for not more than 45 school days
without regard to whether the behavior
is determined to be a manifestation of
the child’s disability, if the child—
(1) Carries a weapon to or possesses
a weapon at school, on school premises,
or to or at a school function under the
jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses
illegal drugs, or sells or solicits the sale
of a controlled substance, while at
school, on school premises, or at a
school function under the jurisdiction of
an SEA or an LEA; or
(3) Has inflicted serious bodily injury
upon another person while at school, on
school premises, or at a school function
under the jurisdiction of an SEA or an
LEA.
(h)
Notification.
On the date on which
the decision is made to make a removal
that constitutes a change of placement
of a child with a disability because of
a violation of a code of student conduct,
the LEA must notify the parents of that
decision, and provide the parents the
procedural safeguards notice described
in § 300.504.
(i)
Definitions.
For purposes of this
section, the following definitions apply:
(1)
Controlled substance
means a drug
or other substance identified under
schedules I, II, III, IV, or V in section
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202(c) of the Controlled Substances Act
(21 U.S.C. 812(c)).
(2)
Illegal drug
means a controlled
substance; but does not include a
controlled substance that is legally
possessed or used under the supervision
of a licensed health-care professional or
that is legally possessed or used under
any other authority under that Act or
under any other provision of Federal
law.
(3)
Serious bodily injury
has the
meaning given the term ‘‘serious bodily
injury’’ under paragraph (3) of
subsection (h) of section 1365 of title 18,
United States Code.
(4)
Weapon
has the meaning given the
term ‘‘dangerous weapon’’ under
paragraph (2) of the first subsection (g)
of section 930 of title 18, United States
Code.
(Authority: 20 U.S.C. 1415(k)(1) and (7))
§ 300.531 Determination of setting.
The child’s IEP Team determines the
interim alternative educational setting
for services under § 300.530(c), (d)(5),
and (g).
(Authority: 20 U.S.C. 1415(k)(2))
§ 300.532 Appeal.
(a)
General.
The parent of a child with
a disability who disagrees with any
decision regarding placement under
§§ 300.530 and 300.531, or the
manifestation determination under
§ 300.530(e), or an LEA that believes
that maintaining the current placement
of the child is substantially likely to
result in injury to the child or others,
may appeal the decision by requesting
a hearing. The hearing is requested by
filing a complaint pursuant to
§§ 300.507 and 300.508(a) and (b).
(b)
Authority of hearing officer.
(1) A
hearing officer under § 300.511 hears,
and makes a determination regarding an
appeal under paragraph (a) of this
section.
(2) In making the determination under
paragraph (b)(1) of this section, the
hearing officer may—
(i) Return the child with a disability
to the placement from which the child
was removed if the hearing officer
determines that the removal was a
violation of § 300.530 or that the child’s
behavior was a manifestation of the
child’s disability; or
(ii) Order a change of placement of the
child with a disability to an appropriate
interim alternative educational setting
for not more than 45 school days if the
hearing officer determines that
maintaining the current placement of
the child is substantially likely to result
in injury to the child or to others.
(3) The procedures under paragraphs
(a) and (b)(1) and (2) of this section may
be repeated, if the LEA believes that
returning the child to the original
placement is substantially likely to
result in injury to the child or to others.
(c)
Expedited due process hearing.
(1)
Whenever a hearing is requested under
paragraph (a) of this section, the parents
or the LEA involved in the dispute must
have an opportunity for an impartial
due process hearing consistent with the
requirements of §§ 300.507 and
300.508(a) through (c) and §§ 300.510
through 300.514, except as provided in
paragraph (c)(2) through (4) of this
section.
(2) The SEA or LEA is responsible for
arranging the expedited due process
hearing, which must occur within 20
school days of the date the complaint
requesting the hearing is filed. The
hearing officer must make a
determination within 10 school days
after the hearing.
(3) Unless the parents and LEA agree
in writing to waive the resolution
meeting described in paragraph (c)(3)(i)
of this section, or agree to use the
mediation process described in
§ 300.506—
(i) A resolution meeting must occur
within seven days of receiving notice of
the due process complaint; and
(ii) The due process hearing may
proceed unless the matter has been
resolved to the satisfaction of both
parties within 15 days of the receipt of
the due process complaint.
(4) A State may establish different
State-imposed procedural rules for
expedited due process hearings
conducted under this section than it has
established for other due process
hearings, but, except for the timelines as
modified in paragraph (c)(3) of this
section, the State must ensure that the
requirements in §§ 300.510 through
300.514 are met.
(5) The decisions on expedited due
process hearings are appealable
consistent with § 300.514.
(Authority:
20 U.S.C. 1415(k)(3) and (4)(B),
1415(f)(1)(A))
§ 300.533 Placement during appeals.
When an appeal under § 300.532 has
been made by either the parent or the
LEA, the child must remain in the
interim alternative educational setting
pending the decision of the hearing
officer or until the expiration of the time
period specified in §A300.530(c) or (g),
whichever occurs first, unless the parent
and the SEA or LEA agree otherwise.
(Authority: 20 U.S.C. 1415(k)(4)(A))
§ 300.534 Protections for children not
determined eligible for special education
and related services.
(a)
General.
A child who has not been
determined to be eligible for special
education and related services under
this part and who has engaged in
behavior that violated a code of student
conduct, may assert any of the
protections provided for in this part if
the public agency had knowledge (as
determined in accordance with
paragraph (b) of this section) that the
child was a child with a disability
before the behavior that precipitated the
disciplinary action occurred.
(b)
Basis of knowledge.
A public
agency must be deemed to have
knowledge that a child is a child with
a disability if before the behavior that
precipitated the disciplinary action
occurred—
(1) The parent of the child expressed
concern in writing to supervisory or
administrative personnel of the
appropriate educational agency, or a
teacher of the child, that the child is in
need of special education and related
services;
(2) The parent of the child requested
an evaluation of the child pursuant to
§§ 300.300 through 300.311; or
(3) The teacher of the child, or other
personnel of the LEA, expressed specific
concerns about a pattern of behavior
demonstrated by the child directly to
the director of special education of the
agency or to other supervisory
personnel of the agency.
(c)
Exception.
A public agency would
not be deemed to have knowledge under
paragraph (b) of this section if—
(1) The parent of the child—
(i) Has not allowed an evaluation of
the child pursuant to §§ 300.300
through 300.311; or
(ii) Has refused services under this
part; or
(2) The child has been evaluated in
accordance with §§ 300.300 through
300.311 and determined to not be a
child with a disability under this part.
(d)
Conditions that apply if no basis
of knowledge.
(1) If a public agency does
not have knowledge that a child is a
child with a disability (in accordance
with paragraphs (b) and (c) of this
section) prior to taking disciplinary
measures against the child, the child
may be subjected to the disciplinary
measures applied to children without
disabilities who engage in comparable
behaviors consistent with paragraph
(d)(2) of this section.
(2)(i) If a request is made for an
evaluation of a child during the time
period in which the child is subjected
to disciplinary measures under
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§ 300.530, the evaluation must be
conducted in an expedited manner.
(ii) Until the evaluation is completed,
the child remains in the educational
placement determined by school
authorities, which can include
suspension or expulsion without
educational services.
(iii) If the child is determined to be a
child with a disability, taking into
consideration information from the
evaluation conducted by the agency and
information provided by the parents, the
agency must provide special education
and related services in accordance with
this part, including the requirements of
§§ 300.530 through 300.536 and section
612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))
§ 300.535 Referral to and action by law
enforcement and judicial authorities.
(a)
Rule of construction.
Nothing in
this part prohibits an agency from
reporting a crime committed by a child
with a disability to appropriate
authorities or prevents State law
enforcement and judicial authorities
from exercising their responsibilities
with regard to the application of Federal
and State law to crimes committed by a
child with a disability.
(b)
Transmittal of records.
(1) An
agency reporting a crime committed by
a child with a disability must ensure
that copies of the special education and
disciplinary records of the child are
transmitted for consideration by the
appropriate authorities to whom the
agency reports the crime.
(2) An agency reporting a crime under
this section may transmit copies of the
child’s special education and
disciplinary records only to the extent
that the transmission is permitted by the
Family Educational Rights and Privacy
Act.
(Authority: 20 U.S.C. 1415(k)(6))
§ 300.536 Change of placement because of
disciplinary removals.
(a) For purposes of removals of a child
with a disability from the child’s current
educational placement under §§ 300.530
through 300.535, a change of placement
occurs if—
(1) The removal is for more than 10
consecutive school days; or
(2) The child has been subjected to a
series of removals that constitute a
pattern—
(i) Because the series of removals total
more than 10 school days in a school
year;
(ii) Because the child’s behavior is
substantially similar to the child’s
behavior in previous incidents that
resulted in the series of removals; and
(iii) Because of such additional factors
as the length of each removal, the total
amount of time the child has been
removed, and the proximity of the
removals to one another.
(b)(1) The public agency determines
on a case-by-case basis whether a
pattern of removals constitutes a change
of placement.
(2) This determination is subject to
review through due process and judicial
proceedings.
(Authority: 20 U.S.C. 1415(k))
§ 300.537 State enforcement mechanisms.
Notwithstanding §§ 300.506(b)(7) and
300.510(d)(2), which provide for
judicial enforcement of a written
agreement reached as a result of
mediation or a resolution meeting, there
is nothing in this part that would
prevent the SEA from using other
mechanisms to seek enforcement of that
agreement, provided that use of those
mechanisms is not mandatory and does
not delay or deny a party the right to
seek enforcement of the written
agreement in a State court of competent
jurisdiction or in a district court of the
United States.
(Authority: 20 U.S.C. 1415(e)(2)(F),
1415(f)(1)(B))
§§ 300.538–300.599 [Reserved]
Subpart F—Monitoring, Enforcement,
Confidentiality, and Program
Information
Monitoring, Technical Assistance, and
Enforcement
§ 300.600 State monitoring and
enforcement.
(a) The State must monitor the
implementation of this part, enforce this
part in accordance with § 300.604(a)(1)
and (a)(3), (b)(2)(i) and (b)(2)(v), and
(c)(2), and annually report on
performance under this part.
(b) The primary focus of the State’s
monitoring activities must be on—
(1) Improving educational results and
functional outcomes for all children
with disabilities; and
(2) Ensuring that public agencies meet
the program requirements under Part B
of the Act, with a particular emphasis
on those requirements that are most
closely related to improving educational
results for children with disabilities.
(c) As a part of its responsibilities
under paragraph (a) of this section, the
State must use quantifiable indicators
and such qualitative indicators as are
needed to adequately measure
performance in the priority areas
identified in paragraph (d) of this
section, and the indicators established
by the Secretary for the State
performance plans.
(d) The State must monitor the LEAs
located in the State, using quantifiable
indicators in each of the following
priority areas, and using such
qualitative indicators as are needed to
adequately measure performance in
those areas:
(1) Provision of FAPE in the least
restrictive environment.
(2) State exercise of general
supervision, including child find,
effective monitoring, the use of
resolution meetings, mediation, and a
system of transition services as defined
in § 300.43 and in 20 U.S.C. 1437(a)(9).
(3) Disproportionate representation of
racial and ethnic groups in special
education and related services, to the
extent the representation is the result of
inappropriate identification.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(a))
§ 300.601 State performance plans and
data collection.
(a)
General.
Not later than December
3, 2005, each State must have in place
a performance plan that evaluates the
State’s efforts to implement the
requirements and purposes of Part B of
the Act, and describes how the State
will improve such implementation.
(1) Each State must submit the State’s
performance plan to the Secretary for
approval in accordance with the
approval process described in section
616(c) of the Act.
(2) Each State must review its State
performance plan at least once every six
years, and submit any amendments to
the Secretary.
(3) As part of the State performance
plan, each State must establish
measurable and rigorous targets for the
indicators established by the Secretary
under the priority areas described in
§ 300.600(d).
(b)
Data collection.
(1) Each State
must collect valid and reliable
information as needed to report
annually to the Secretary on the
indicators established by the Secretary
for the State performance plans.
(2) If the Secretary permits States to
collect data on specific indicators
through State monitoring or sampling,
and the State collects the data through
State monitoring or sampling, the State
must collect data on those indicators for
each LEA at least once during the period
of the State performance plan.
(3) Nothing in Part B of the Act shall
be construed to authorize the
development of a nationwide database
of personally identifiable information
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on individuals involved in studies or
other collections of data under Part B of
the Act.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(b))
§ 300.602 State use of targets and
reporting.
(a)
General.
Each State must use the
targets established in the State’s
performance plan under § 300.601 and
the priority areas described in
§ 300.600(d) to analyze the performance
of each LEA.
(b)
Public reporting and privacy
—(1)
Public report.
(i) Subject to paragraph
(b)(1)(ii) of this section, the State must—
(A) Report annually to the public on
the performance of each LEA located in
the State on the targets in the State’s
performance plan; and
(B) Make the State’s performance plan
available through public means,
including by posting on the Web site of
the SEA, distribution to the media, and
distribution through public agencies.
(ii) If the State, in meeting the
requirements of paragraph (b)(1)(i) of
this section, collects performance data
through State monitoring or sampling,
the State must include in its report
under paragraph (b)(1)(i)(A) of this
section the most recently available
performance data on each LEA, and the
date the data were obtained.
(2)
State performance report.
The
State must report annually to the
Secretary on the performance of the
State under the State’s performance
plan.
(3)
Privacy.
The State must not report
to the public or the Secretary any
information on performance that would
result in the disclosure of personally
identifiable information about
individual children, or where the
available data are insufficient to yield
statistically reliable information.
(Approved by the Office of Management and
Budget under control number 1820–0624)
(Authority: 20 U.S.C. 1416(b)(2)(C))
§ 300.603 Secretary’s review and
determination regarding State performance.
(a)
Review.
The Secretary annually
reviews the State’s performance report
submitted pursuant to § 300.602(b)(2).
(b)
Determination
—(1)
General.
Based
on the information provided by the
State in the State’s annual performance
report, information obtained through
monitoring visits, and any other public
information made available, the
Secretary determines if the State—
(i) Meets the requirements and
purposes of Part B of the Act;
(ii) Needs assistance in implementing
the requirements of Part B of the Act;
(iii) Needs intervention in
implementing the requirements of Part
B of the Act; or
(iv) Needs substantial intervention in
implementing the requirements of Part
B of the Act.
(2)
Notice and opportunity for a
hearing.
(i) For determinations made
under paragraphs (b)(1)(iii) and
(b)(1)(iv) of this section, the Secretary
provides reasonable notice and an
opportunity for a hearing on those
determinations.
(ii) The hearing described in
paragraph (b)(2) of this section consists
of an opportunity to meet with the
Assistant Secretary for Special
Education and Rehabilitative Services to
demonstrate why the Department
should not make the determination
described in paragraph (b)(1) of this
section.
(Authority: 20 U.S.C. 1416(d))
§ 300.604 Enforcement.
(a)
Needs assistance.
If the Secretary
determines, for two consecutive years,
that a State needs assistance under
§ 300.603(b)(1)(ii) in implementing the
requirements of Part B of the Act, the
Secretary takes one or more of the
following actions:
(1) Advises the State of available
sources of technical assistance that may
help the State address the areas in
which the State needs assistance, which
may include assistance from the Office
of Special Education Programs, other
offices of the Department of Education,
other Federal agencies, technical
assistance providers approved by the
Secretary, and other federally funded
nonprofit agencies, and requires the
State to work with appropriate entities.
Such technical assistance may
include—
(i) The provision of advice by experts
to address the areas in which the State
needs assistance, including explicit
plans for addressing the area for concern
within a specified period of time;
(ii) Assistance in identifying and
implementing professional
development, instructional strategies,
and methods of instruction that are
based on scientifically based research;
(iii) Designating and using
distinguished superintendents,
principals, special education
administrators, special education
teachers, and other teachers to provide
advice, technical assistance, and
support; and
(iv) Devising additional approaches to
providing technical assistance, such as
collaborating with institutions of higher
education, educational service agencies,
national centers of technical assistance
supported under Part D of the Act, and
private providers of scientifically based
technical assistance.
(2) Directs the use of State-level funds
under section 611(e) of the Act on the
area or areas in which the State needs
assistance.
(3) Identifies the State as a high-risk
grantee and imposes special conditions
on the State’s grant under Part B of the
Act.
(b)
Needs intervention.
If the
Secretary determines, for three or more
consecutive years, that a State needs
intervention under § 300.603(b)(1)(iii) in
implementing the requirements of Part
B of the Act, the following shall apply:
(1) The Secretary may take any of the
actions described in paragraph (a) of
this section.
(2) The Secretary takes one or more of
the following actions:
(i) Requires the State to prepare a
corrective action plan or improvement
plan if the Secretary determines that the
State should be able to correct the
problem within one year.
(ii) Requires the State to enter into a
compliance agreement under section
457 of the General Education Provisions
Act, as amended, 20 U.S.C. 1221
et seq.
(GEPA), if the Secretary has reason to
believe that the State cannot correct the
problem within one year.
(iii) For each year of the
determination, withholds not less than
20 percent and not more than 50 percent
of the State’s funds under section 611(e)
of the Act, until the Secretary
determines the State has sufficiently
addressed the areas in which the State
needs intervention.
(iv) Seeks to recover funds under
section 452 of GEPA.
(v) Withholds, in whole or in part,
any further payments to the State under
Part B of the Act.
(vi) Refers the matter for appropriate
enforcement action, which may include
referral to the Department of Justice.
(c)
Needs substantial intervention.
Notwithstanding paragraph (a) or (b) of
this section, at any time that the
Secretary determines that a State needs
substantial intervention in
implementing the requirements of Part
B of the Act or that there is a substantial
failure to comply with any condition of
an SEA’s or LEA’s eligibility under Part
B of the Act, the Secretary takes one or
more of the following actions:
(1) Recovers funds under section 452
of GEPA.
(2) Withholds, in whole or in part,
any further payments to the State under
Part B of the Act.
(3) Refers the case to the Office of the
Inspector General at the Department of
Education.
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(4) Refers the matter for appropriate
enforcement action, which may include
referral to the Department of Justice.
(d)
Report to Congress.
The Secretary
reports to the Committee on Education
and the Workforce of the House of
Representatives and the Committee on
Health, Education, Labor, and Pensions
of the Senate within 30 days of taking
enforcement action pursuant to
paragraph (a), (b), or (c) of this section,
on the specific action taken and the
reasons why enforcement action was
taken.
(Authority: 20 U.S.C. 1416(e)(1)–(e)(3), (e)(5))
§ 300.605 Withholding funds.
(a)
Opportunity for hearing.
Prior to
withholding any funds under Part B of
the Act, the Secretary provides
reasonable notice and an opportunity
for a hearing to the SEA involved,
pursuant to the procedures in
§§ 300.180 through 300.183.
(b)
Suspension.
Pending the outcome
of any hearing to withhold payments
under paragraph (a) of this section, the
Secretary may suspend payments to a
recipient, suspend the authority of the
recipient to obligate funds under Part B
of the Act, or both, after the recipient
has been given reasonable notice and an
opportunity to show cause why future
payments or authority to obligate funds
under Part B of the Act should not be
suspended.
(c)
Nature of withholding.
(1) If the
Secretary determines that it is
appropriate to withhold further
payments under § 300.604(b)(2) or (c)(2),
the Secretary may determine—
(i) That the withholding will be
limited to programs or projects, or
portions of programs or projects, that
affected the Secretary’s determination
under § 300.603(b)(1); or
(ii) That the SEA must not make
further payments under Part B of the
Act to specified State agencies or LEAs
that caused or were involved in the
Secretary’s determination under
§ 300.603(b)(1).
(2) Until the Secretary is satisfied that
the condition that caused the initial
withholding has been substantially
rectified—
(i) Payments to the State under Part B
of the Act must be withheld in whole or
in part; and
(ii) Payments by the SEA under Part
B of the Act must be limited to State
agencies and LEAs whose actions did
not cause or were not involved in the
Secretary’s determination under
§ 300.603(b)(1), as the case may be.
(Authority: 20 U.S.C. 1416(e)(4), (e)(6))
§ 300.606 Public attention.
Any State that has received notice
under §§ 300.603(b)(1)(ii) through (iv)
must, by means of a public notice, take
such measures as may be necessary to
notify the public within the State of the
pendency of an action taken pursuant to
§ 300.604.
(Authority: 20 U.S.C. 1416(e)(7))
§ 300.607 Divided State agency
responsibility.
For purposes of this subpart, if
responsibility for ensuring that the
requirements of Part B of the Act are
met with respect to children with
disabilities who are convicted as adults
under State law and incarcerated in
adult prisons is assigned to a public
agency other than the SEA pursuant to
§ 300.149(d), and if the Secretary finds
that the failure to comply substantially
with the provisions of Part B of the Act
are related to a failure by the public
agency, the Secretary takes appropriate
corrective action to ensure compliance
with Part B of the Act, except that—
(a) Any reduction or withholding of
payments to the State under § 300.604
must be proportionate to the total funds
allotted under section 611 of the Act to
the State as the number of eligible
children with disabilities in adult
prisons under the supervision of the
other public agency is proportionate to
the number of eligible individuals with
disabilities in the State under the
supervision of the SEA; and
(b) Any withholding of funds under
§ 300.604 must be limited to the specific
agency responsible for the failure to
comply with Part B of the Act.
(Authority: 20 U.S.C. 1416(h))
§ 300.608 State enforcement.
(a) If an SEA determines that an LEA
is not meeting the requirements of Part
B of the Act, including the targets in the
State’s performance plan, the SEA must
prohibit the LEA from reducing the
LEA’s maintenance of effort under
§ 300.203 for any fiscal year.
(b) Nothing in this subpart shall be
construed to restrict a State from
utilizing any other authority available to
it to monitor and enforce the
requirements of Part B of the Act.
(Authority: 20 U.S.C. 1416(f); 20 U.S.C.
1412(a)(11))
§ 300.609 Rule of construction.
Nothing in this subpart shall be
construed to restrict the Secretary from
utilizing any authority under GEPA,
including the provisions in 34 CFR parts
76, 77, 80, and 81 to monitor and
enforce the requirements of the Act,
including the imposition of special
conditions under 34 CFR 80.12.
(Authority: 20 U.S.C. 1416(g))
Confidentiality of Information
§ 300.610 Confidentiality.
The Secretary takes appropriate
action, in accordance with section 444
of GEPA, to ensure the protection of the
confidentiality of any personally
identifiable data, information, and
records collected or maintained by the
Secretary and by SEAs and LEAs
pursuant to Part B of the Act, and
consistent with §§ 300.611 through
300.627.
(Authority: 20 U.S.C. 1417(c))
§ 300.611 Definitions.
As used in §§ 300.611 through
300.625—
(a)
Destruction
means physical
destruction or removal of personal
identifiers from information so that the
information is no longer personally
identifiable.
(b)
Education records
means the type
of records covered under the definition
of ‘‘education records’’ in 34 CFR part
99 (the regulations implementing the
Family Educational Rights and Privacy
Act of 1974, 20 U.S.C. 1232g (FERPA)).
(c)
Participating agency
means any
agency or institution that collects,
maintains, or uses personally
identifiable information, or from which
information is obtained, under Part B of
the Act.
(Authority: 20 U.S.C. 1221e–3, 1412(a)(8),
1417(c))
§ 300.612 Notice to parents.
(a) The SEA must give notice that is
adequate to fully inform parents about
the requirements of § 300.123,
including—
(1) A description of the extent that the
notice is given in the native languages
of the various population groups in the
State;
(2) A description of the children on
whom personally identifiable
information is maintained, the types of
information sought, the methods the
State intends to use in gathering the
information (including the sources from
whom information is gathered), and the
uses to be made of the information;
(3) A summary of the policies and
procedures that participating agencies
must follow regarding storage,
disclosure to third parties, retention,
and destruction of personally
identifiable information; and
(4) A description of all of the rights of
parents and children regarding this
information, including the rights under
FERPA and implementing regulations in
34 CFR part 99.
(b) Before any major identification,
location, or evaluation activity, the
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notice must be published or announced
in newspapers or other media, or both,
with circulation adequate to notify
parents throughout the State of the
activity.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.613 Access rights.
(a) Each participating agency must
permit parents to inspect and review
any education records relating to their
children that are collected, maintained,
or used by the agency under this part.
The agency must comply with a request
without unnecessary delay and before
any meeting regarding an IEP, or any
hearing pursuant to § 300.507 or
§§ 300.530 through 300.532, or
resolution session pursuant to
§ 300.510, and in no case more than 45
days after the request has been made.
(b) The right to inspect and review
education records under this section
includes—
(1) The right to a response from the
participating agency to reasonable
requests for explanations and
interpretations of the records;
(2) The right to request that the
agency provide copies of the records
containing the information if failure to
provide those copies would effectively
prevent the parent from exercising the
right to inspect and review the records;
and
(3) The right to have a representative
of the parent inspect and review the
records.
(c) An agency may presume that the
parent has authority to inspect and
review records relating to his or her
child unless the agency has been
advised that the parent does not have
the authority under applicable State law
governing such matters as guardianship,
separation, and divorce.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.614 Record of access.
Each participating agency must keep
a record of parties obtaining access to
education records collected,
maintained, or used under Part B of the
Act (except access by parents and
authorized employees of the
participating agency), including the
name of the party, the date access was
given, and the purpose for which the
party is authorized to use the records.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.615 Records on more than one child.
If any education record includes
information on more than one child, the
parents of those children have the right
to inspect and review only the
information relating to their child or to
be informed of that specific information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.616 List of types and locations of
information.
Each participating agency must
provide parents on request a list of the
types and locations of education records
collected, maintained, or used by the
agency.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.617 Fees.
(a) Each participating agency may
charge a fee for copies of records that
are made for parents under this part if
the fee does not effectively prevent the
parents from exercising their right to
inspect and review those records.
(b) A participating agency may not
charge a fee to search for or to retrieve
information under this part.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.618 Amendment of records at
parent’s request.
(a) A parent who believes that
information in the education records
collected, maintained, or used under
this part is inaccurate or misleading or
violates the privacy or other rights of the
child may request the participating
agency that maintains the information to
amend the information.
(b) The agency must decide whether
to amend the information in accordance
with the request within a reasonable
period of time of receipt of the request.
(c) If the agency decides to refuse to
amend the information in accordance
with the request, it must inform the
parent of the refusal and advise the
parent of the right to a hearing under
§ 300.619.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.619 Opportunity for a hearing.
The agency must, on request, provide
an opportunity for a hearing to
challenge information in education
records to ensure that it is not
inaccurate, misleading, or otherwise in
violation of the privacy or other rights
of the child.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.620 Result of hearing.
(a) If, as a result of the hearing, the
agency decides that the information is
inaccurate, misleading or otherwise in
violation of the privacy or other rights
of the child, it must amend the
information accordingly and so inform
the parent in writing.
(b) If, as a result of the hearing, the
agency decides that the information is
not inaccurate, misleading, or otherwise
in violation of the privacy or other
rights of the child, it must inform the
parent of the parent’s right to place in
the records the agency maintains on the
child a statement commenting on the
information or setting forth any reasons
for disagreeing with the decision of the
agency.
(c) Any explanation placed in the
records of the child under this section
must—
(1) Be maintained by the agency as
part of the records of the child as long
as the record or contested portion is
maintained by the agency; and
(2) If the records of the child or the
contested portion is disclosed by the
agency to any party, the explanation
must also be disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.621 Hearing procedures.
A hearing held under § 300.619 must
be conducted according to the
procedures in 34 CFR 99.22.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.622 Consent.
(a) Parental consent must be obtained
before personally identifiable
information is disclosed to parties, other
than officials of participating agencies
in accordance with paragraph (b)(1) of
this section, unless the information is
contained in education records, and the
disclosure is authorized without
parental consent under 34 CFR part 99.
(b)(1) Except as provided in paragraphs
(b)(2) and (b)(3) of this section, parental
consent is not required before
personally identifiable information is
released to officials of participating
agencies for purposes of meeting a
requirement of this part.
(2) Parental consent, or the consent of
an eligible child who has reached the
age of majority under State law, must be
obtained before personally identifiable
information is released to officials of
participating agencies providing or
paying for transition services in
accordance with § 300.321(b)(3).
(3) If a child is enrolled, or is going
to enroll in a private school that is not
located in the LEA of the parent’s
residence, parental consent must be
obtained before any personally
identifiable information about the child
is released between officials in the LEA
where the private school is located and
officials in the LEA of the parent’s
residence.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.623 Safeguards.
(a) Each participating agency must
protect the confidentiality of personally
identifiable information at collection,
storage, disclosure, and destruction
stages.
(b) One official at each participating
agency must assume responsibility for
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ensuring the confidentiality of any
personally identifiable information.
(c) All persons collecting or using
personally identifiable information must
receive training or instruction regarding
the State’s policies and procedures
under § 300.123 and 34 CFR part 99.
(d) Each participating agency must
maintain, for public inspection, a
current listing of the names and
positions of those employees within the
agency who may have access to
personally identifiable information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.624 Destruction of information.
(a) The public agency must inform
parents when personally identifiable
information collected, maintained, or
used under this part is no longer needed
to provide educational services to the
child.
(b) The information must be destroyed
at the request of the parents. However,
a permanent record of a student’s name,
address, and phone number, his or her
grades, attendance record, classes
attended, grade level completed, and
year completed may be maintained
without time limitation.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.625 Children’s rights.
(a) The SEA must have in effect
policies and procedures regarding the
extent to which children are afforded
rights of privacy similar to those
afforded to parents, taking into
consideration the age of the child and
type or severity of disability.
(b) Under the regulations for FERPA
in 34 CFR 99.5(a), the rights of parents
regarding education records are
transferred to the student at age 18.
(c) If the rights accorded to parents
under Part B of the Act are transferred
to a student who reaches the age of
majority, consistent with § 300.520, the
rights regarding educational records in
§§ 300.613 through 300.624 must also be
transferred to the student. However, the
public agency must provide any notice
required under section 615 of the Act to
the student and the parents.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.626 Enforcement.
The SEA must have in effect the
policies and procedures, including
sanctions that the State uses, to ensure
that its policies and procedures
consistent with §§ 300.611 through
300.625 are followed and that the
requirements of the Act and the
regulations in this part are met.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
§ 300.627 Department use of personally
identifiable information.
If the Department or its authorized
representatives collect any personally
identifiable information regarding
children with disabilities that is not
subject to the Privacy Act of 1974, 5
U.S.C. 552a, the Secretary applies the
requirements of 5 U.S.C. 552a(b)(1) and
(b)(2), 552a(b)(4) through (b)(11); 552a(c)
through 552a(e)(3)(B); 552a(e)(3)(D);
552a(e)(5) through (e)(10); 552a(h);
552a(m); and 552a(n); and the
regulations implementing those
provisions in 34 CFR part 5b.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Reports—Program Information
§ 300.640 Annual report of children
served—report requirement.
(a) The SEA must annually report to
the Secretary on the information
required by section 618 of the Act at the
times specified by the Secretary.
(b) The SEA must submit the report
on forms provided by the Secretary.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0518, 1820–0521, 1820–0517, and 1820–
0677)
(Authority: 20 U.S.C. 1418(a))
§ 300.641 Annual report of children
served—information required in the report.
(a) For purposes of the annual report
required by section 618 of the Act and
§ 300.640, the State and the Secretary of
the Interior must count and report the
number of children with disabilities
receiving special education and related
services on any date between October 1
and December 1 of each year.
(b) For the purpose of this reporting
provision, a child’s age is the child’s
actual age on the date of the child count.
(c) The SEA may not report a child
under more than one disability category.
(d) If a child with a disability has
more than one disability, the SEA must
report that child in accordance with the
following procedure:
(1) If a child has only two disabilities
and those disabilities are deafness and
blindness, and the child is not reported
as having a developmental delay, that
child must be reported under the
category ‘‘deaf-blindness.’’
(2) A child who has more than one
disability and is not reported as having
deaf-blindness or as having a
developmental delay must be reported
under the category ‘‘multiple
disabilities.’’
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0621, 1820–0521, and
1820–0517)
(Authority: 20 U.S.C. 1418(a), (b))
§ 300.642 Data reporting.
(a)
Protection of personally
identifiable data.
The data described in
section 618(a) of the Act and in
§ 300.641 must be publicly reported by
each State in a manner that does not
result in disclosure of data identifiable
to individual children.
(b)
Sampling.
The Secretary may
permit States and the Secretary of the
Interior to obtain data in section 618(a)
of the Act through sampling.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0518, 1820–0521, and
1820–0517)
(Authority: 20 U.S.C. 1418(b))
§ 300.643 Annual report of children
served—certification.
The SEA must include in its report a
certification signed by an authorized
official of the agency that the
information provided under § 300.640 is
an accurate and unduplicated count of
children with disabilities receiving
special education and related services
on the dates in question.
(Approved by the Office of Management and
Budget under control numbers 1820–0030
and 1820–0043)
(Authority: 20 U.S.C. 1418(a)(3))
§ 300.644 Annual report of children
served—criteria for counting children.
The SEA may include in its report
children with disabilities who are
enrolled in a school or program that is
operated or supported by a public
agency, and that—
(a) Provides them with both special
education and related services that meet
State standards;
(b) Provides them only with special
education, if a related service is not
required, that meets State standards; or
(c) In the case of children with
disabilities enrolled by their parents in
private schools, counts those children
who are eligible under the Act and
receive special education or related
services or both that meet State
standards under §§ 300.132 through
300.144.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0521, and 1820–0517)
(Authority: 20 U.S.C. 1418(a))
§ 300.645 Annual report of children
served—other responsibilities of the SEA.
In addition to meeting the other
requirements of §§ 300.640 through
300.644, the SEA must—
(a) Establish procedures to be used by
LEAs and other educational institutions
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in counting the number of children with
disabilities receiving special education
and related services;
(b) Set dates by which those agencies
and institutions must report to the SEA
to ensure that the State complies with
§ 300.640(a);
(c) Obtain certification from each
agency and institution that an
unduplicated and accurate count has
been made;
(d) Aggregate the data from the count
obtained from each agency and
institution, and prepare the reports
required under §§ 300.640 through
300.644; and
(e) Ensure that documentation is
maintained that enables the State and
the Secretary to audit the accuracy of
the count.
(Approved by the Office of Management and
Budget under control numbers 1820–0030,
1820–0043, 1820–0659, 1820–0621, 1820–
0518, 1820–0521, and 1820–0517)
(Authority: 20 U.S.C. 1418(a))
§ 300.646 Disproportionality.
(a)
General.
Each State that receives
assistance under Part B of the Act, and
the Secretary of the Interior, must
provide for the collection and
examination of data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State with
respect to—
(1) The identification of children as
children with disabilities, including the
identification of children as children
with disabilities in accordance with a
particular impairment described in
section 602(3) of the Act;
(2) The placement in particular
educational settings of these children;
and
(3) The incidence, duration, and type
of disciplinary actions, including
suspensions and expulsions.
(b)
Review and revision of policies,
practices, and procedures.
In the case of
a determination of significant
disproportionality with respect to the
identification of children as children
with disabilities, or the placement in
particular educational settings of these
children, in accordance with paragraph
(a) of this section, the State or the
Secretary of the Interior must—
(1) Provide for the review and, if
appropriate revision of the policies,
procedures, and practices used in the
identification or placement to ensure
that the policies, procedures, and
practices comply with the requirements
of the Act.
(2) Require any LEA identified under
paragraph (a) of this section to reserve
the maximum amount of funds under
section 613(f) of the Act to provide
comprehensive coordinated early
intervening services to serve children in
the LEA, particularly, but not
exclusively, children in those groups
that were significantly overidentified
under paragraph (a) of this section; and
(3) Require the LEA to publicly report
on the revision of policies, practices,
and procedures described under
paragraph (b)(1) of this section.
(Authority: 20 U.S.C. 1418(d))
Subpart G—Authorization, Allotment,
Use of Funds, and Authorization of
Appropriations
Allotments, Grants, and Use of Funds
§ 300.700 Grants to States.
(a)
Purpose of grants.
The Secretary
makes grants to States, outlying areas,
and freely associated States (as defined
in § 300.717), and provides funds to the
Secretary of the Interior, to assist them
to provide special education and related
services to children with disabilities in
accordance with Part B of the Act.
(b)
Maximum amount.
The maximum
amount of the grant a State may receive
under section 611 of the Act is—
(1) For fiscal years 2005 and 2006—
(i) The number of children with
disabilities in the State who are
receiving special education and related
services—
(A) Aged three through five, if the
State is eligible for a grant under section
619 of the Act; and
(B) Aged 6 through 21; multiplied
by—
(ii) Forty (40) percent of the average
per-pupil expenditure in public
elementary schools and secondary
schools in the United States (as defined
in § 300.717); and
(2) For fiscal year 2007 and
subsequent fiscal years—
(i) The number of children with
disabilities in the 2004–2005 school
year in the State who received special
education and related services—
(A) Aged three through five if the
State is eligible for a grant under section
619 of the Act; and
(B) Aged 6 through 21; multiplied by
(ii) Forty (40) percent of the average
per-pupil expenditure in public
elementary schools and secondary
schools in the United States (as defined
in § 300.717);
(iii) Adjusted by the rate of annual
change in the sum of—
(A) Eighty-five (85) percent of the
State’s population of children aged 3
through 21 who are of the same age as
children with disabilities for whom the
State ensures the availability of FAPE
under Part B of the Act; and
(B) Fifteen (15) percent of the State’s
population of children described in
paragraph (b)(2)(iii)(A) of this section
who are living in poverty.
(Authority: 20 U.S.C. 1411(a) and (d))
§ 300.701 Outlying areas, freely associated
States, and the Secretary of the Interior.
(a)
Outlying areas and freely
associated States.
(1)
Funds reserved.
From the amount appropriated for any
fiscal year under section 611(i) of the
Act, the Secretary reserves not more
than one percent, which must be used—
(i) To provide assistance to the
outlying areas in accordance with their
respective populations of individuals
aged 3 through 21; and
(ii) To provide each freely associated
State a grant in the amount that the
freely associated State received for fiscal
year 2003 under Part B of the Act, but
only if the freely associated State—
(A) Meets the applicable requirements
of Part B of the Act that apply to States.
(B) Meets the requirements in
paragraph (a)(2) of this section.
(2)
Application.
Any freely associated
State that wishes to receive funds under
Part B of the Act must include, in its
application for assistance—
(i) Information demonstrating that it
will meet all conditions that apply to
States under Part B of the Act.
(ii) An assurance that,
notwithstanding any other provision of
Part B of the Act, it will use those funds
only for the direct provision of special
education and related services to
children with disabilities and to
enhance its capacity to make FAPE
available to all children with
disabilities;
(iii) The identity of the source and
amount of funds, in addition to funds
under Part B of the Act, that it will make
available to ensure that FAPE is
available to all children with disabilities
within its jurisdiction; and
(iv) Such other information and
assurances as the Secretary may require.
(3)
Special rule.
The provisions of
Public Law 95–134, permitting the
consolidation of grants by the outlying
areas, do not apply to funds provided to
the outlying areas or to the freely
associated States under Part B of the
Act.
(b)
Secretary of the Interior.
From the
amount appropriated for any fiscal year
under section 611(i) of the Act, the
Secretary reserves 1.226 percent to
provide assistance to the Secretary of
the Interior in accordance with
§§ 300.707 through 300.716.
(Authority: 20 U.S.C. 1411(b))
§ 300.702 Technical assistance.
(a)
In general.
The Secretary may
reserve not more than one-half of one
percent of the amounts appropriated
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under Part B of the Act for each fiscal
year to support technical assistance
activities authorized under section
616(i) of the Act.
(b)
Maximum amount.
The maximum
amount the Secretary may reserve under
paragraph (a) of this section for any
fiscal year is $25,000,000, cumulatively
adjusted by the rate of inflation as
measured by the percentage increase, if
any, from the preceding fiscal year in
the Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(Authority: 20 U.S.C. 1411(c))
§ 300.703 Allocations to States.
(a)
General.
After reserving funds for
technical assistance under § 300.702,
and for payments to the outlying areas,
the freely associated States, and the
Secretary of the Interior under § 300.701
(a) and (b) for a fiscal year, the Secretary
allocates the remaining amount among
the States in accordance with
paragraphs (b), (c), and (d) of this
section.
(b)
Special rule for use of fiscal year
1999 amount.
If a State received any
funds under section 611 of the Act for
fiscal year 1999 on the basis of children
aged three through five, but does not
make FAPE available to all children
with disabilities aged three through five
in the State in any subsequent fiscal
year, the Secretary computes the State’s
amount for fiscal year 1999, solely for
the purpose of calculating the State’s
allocation in that subsequent year under
paragraph (c) or (d) of this section, by
subtracting the amount allocated to the
State for fiscal year 1999 on the basis of
those children.
(c)
Increase in funds.
If the amount
available for allocations to States under
paragraph (a) of this section for a fiscal
year is equal to or greater than the
amount allocated to the States under
section 611 of the Act for the preceding
fiscal year, those allocations are
calculated as follows:
(1)
Allocation of increase.
—(i)
General
. Except as provided in
paragraph (c)(2) of this section, the
Secretary allocates for the fiscal year—
(A) To each State the amount the State
received under this section for fiscal
year 1999;
(B) Eighty-five (85) percent of any
remaining funds to States on the basis
of the States’ relative populations of
children aged 3 through 21 who are of
the same age as children with
disabilities for whom the State ensures
the availability of FAPE under Part B of
the Act; and
(C) Fifteen (15) percent of those
remaining funds to States on the basis
of the States’ relative populations of
children described in paragraph
(c)(1)(i)(B) of this section who are living
in poverty.
(ii)
Data.
For the purpose of making
grants under this section, the Secretary
uses the most recent population data,
including data on children living in
poverty, that are available and
satisfactory to the Secretary.
(2)
Limitations
. Notwithstanding
paragraph (c)(1) of this section,
allocations under this section are
subject to the following:
(i)
Preceding year allocation.
No
State’s allocation may be less than its
allocation under section 611 of the Act
for the preceding fiscal year.
(ii)
Minimum.
No State’s allocation
may be less than the greatest of—
(A) The sum of—
(
1
) The amount the State received
under section 611 of the Act for fiscal
year 1999; and
(
2
) One third of one percent of the
amount by which the amount
appropriated under section 611(i) of the
Act for the fiscal year exceeds the
amount appropriated for section 611 of
the Act for fiscal year 1999;
(B) The sum of—
(
1
) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(
2
) That amount multiplied by the
percentage by which the increase in the
funds appropriated for section 611 of
the Act from the preceding fiscal year
exceeds 1.5 percent; or
(C) The sum of—
(
1
) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(
2
) That amount multiplied by 90
percent of the percentage increase in the
amount appropriated for section 611 of
the Act from the preceding fiscal year.
(iii)
Maximum.
Notwithstanding
paragraph (c)(2)(ii) of t his section, no
State’s allocation under paragraph (a) of
this section may exceed the sum of—
(A) The amount the State received
under section 611 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by the
sum of 1.5 percent and the percentage
increase in the amount appropriated
under section 611 of the Act from the
preceding fiscal year.
(3)
Ratable reduction.
If the amount
available for allocations to States under
paragraph (c) of this section is
insufficient to pay those allocations in
full, those allocations are ratably
reduced, subject to paragraph (c)(2)(i) of
this section.
(d)
Decrease in funds.
If the amount
available for allocations to States under
paragraph (a) of this section for a fiscal
year is less than the amount allocated to
the States under section 611 of the Act
for the preceding fiscal year, those
allocations are calculated as follows:
(1)
Amounts greater than fiscal year
1999 allocations.
If the amount available
for allocations under paragraph (a) of
this section is greater than the amount
allocated to the States for fiscal year
1999, each State is allocated the sum
of—
(i)
1999 amount.
The amount the
State received under section 611 of the
Act for fiscal year 1999; and
(ii)
Remaining funds.
An amount that
bears the same relation to any remaining
funds as the increase the State received
under section 611 of the Act for the
preceding fiscal year over fiscal year
1999 bears to the total of all such
increases for all States.
(2)
Amounts equal to or less than
fiscal year 1999 allocations.
—(i)
General.
If the amount available for
allocations under paragraph (a) of this
section is equal to or less than the
amount allocated to the States for fiscal
year 1999, each State is allocated the
amount it received for fiscal year 1999.
(ii)
Ratable reduction.
If the amount
available for allocations under
paragraph (d) of this section is
insufficient to make the allocations
described in paragraph (d)(2)(i) of this
section, those allocations are ratably
reduced.
(Authority: 20 U.S.C. 1411(d))
§ 300.704 State-level activities.
(a)
State administration.
(1) For the
purpose of administering Part B of the
Act, including paragraph (c) of this
section, section 619 of the Act, and the
coordination of activities under Part B
of the Act with, and providing technical
assistance to, other programs that
provide services to children with
disabilities—
(i) Each State may reserve for each
fiscal year not more than the maximum
amount the State was eligible to reserve
for State administration under section
611 of the Act for fiscal year 2004 or
$800,000 (adjusted in accordance with
paragraph (a)(2) of this section),
whichever is greater; and
(ii) Each outlying area may reserve for
each fiscal year not more than five
percent of the amount the outlying area
receives under § 300.701(a) for the fiscal
year or $35,000, whichever is greater.
(2) For each fiscal year, beginning
with fiscal year 2005, the Secretary
cumulatively adjusts—
(i) The maximum amount the State
was eligible to reserve for State
administration under section 611 of the
Act for fiscal year 2004; and
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(ii) $800,000, by the rate of inflation
as measured by the percentage increase,
if any, from the preceding fiscal year in
the Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(3) Prior to expenditure of funds
under paragraph (a) of this section, the
State must certify to the Secretary that
the arrangements to establish
responsibility for services pursuant to
section 612(a)(12)(A) of the Act are
current.
(4) Funds reserved under paragraph
(a)(1) of this section may be used for the
administration of Part C of the Act, if
the SEA is the lead agency for the State
under that Part.
(b)
Other State-level activities.
(1)
States may reserve a portion of their
allocations for other State-level
activities. The maximum amount that a
State may reserve for other State-level
activities is as follows:
(i) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is greater
than $850,000 and the State opts to
finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006, 10
percent of the State’s allocation under
§ 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to 10 percent of the State’s
allocation for fiscal year 2006 under
§ 300.703 adjusted cumulatively for
inflation.
(ii) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is greater
than $850,000 and the State opts not to
finance a high cost fund under
paragraph (c) of this section—
(A) For fiscal years 2005 and 2006,
nine percent of the State’s allocation
under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to nine percent of the State’s
allocation for fiscal year 2006 adjusted
cumulatively for inflation.
(iii) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is less than
or equal to $850,000 and the State opts
to finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006,
10.5 percent of the State’s allocation
under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to 10.5 percent of the State’s
allocation for fiscal year 2006 under
§ 300.703 adjusted cumulatively for
inflation.
(iv) If the amount that the State sets
aside for State administration under
paragraph (a) of this section is equal to
or less than $850,000 and the State opts
not to finance a high cost fund under
paragraph (c) of this section:
(A) For fiscal years 2005 and 2006,
nine and one-half percent of the State’s
allocation under § 300.703.
(B) For fiscal year 2007 and
subsequent fiscal years, an amount
equal to nine and one-half percent of the
State’s allocation for fiscal year 2006
under § 300.703 adjusted cumulatively
for inflation.
(2) The adjustment for inflation is the
rate of inflation as measured by the
percentage of increase, if any, from the
preceding fiscal year in the Consumer
Price Index for All Urban Consumers,
published by the Bureau of Labor
Statistics of the Department of Labor.
(3) Some portion of the funds reserved
under paragraph (b)(1) of this section
must be used to carry out the following
activities:
(i) For monitoring, enforcement, and
complaint investigation; and
(ii) To establish and implement the
mediation process required by section
615(e) of the Act, including providing
for the costs of mediators and support
personnel;
(4) Funds reserved under paragraph
(b)(1) of this section also may be used
to carry out the following activities:
(i) For support and direct services,
including technical assistance,
personnel preparation, and professional
development and training;
(ii) To support paperwork reduction
activities, including expanding the use
of technology in the IEP process;
(iii) To assist LEAs in providing
positive behavioral interventions and
supports and mental health services for
children with disabilities;
(iv) To improve the use of technology
in the classroom by children with
disabilities to enhance learning;
(v) To support the use of technology,
including technology with universal
design principles and assistive
technology devices, to maximize
accessibility to the general education
curriculum for children with
disabilities;
(vi) Development and implementation
of transition programs, including
coordination of services with agencies
involved in supporting the transition of
students with disabilities to
postsecondary activities;
(vii) To assist LEAs in meeting
personnel shortages;
(viii) To support capacity building
activities and improve the delivery of
services by LEAs to improve results for
children with disabilities;
(ix) Alternative programming for
children with disabilities who have
been expelled from school, and services
for children with disabilities in
correctional facilities, children enrolled
in State-operated or State-supported
schools, and children with disabilities
in charter schools;
(x) To support the development and
provision of appropriate
accommodations for children with
disabilities, or the development and
provision of alternate assessments that
are valid and reliable for assessing the
performance of children with
disabilities, in accordance with sections
1111(b) and 6111 of the ESEA; and
(xi) To provide technical assistance to
schools and LEAs, and direct services,
including supplemental educational
services as defined in section 1116(e) of
the ESEA to children with disabilities,
in schools or LEAs identified for
improvement under section 1116 of the
ESEA on the sole basis of the
assessment results of the disaggregated
subgroup of children with disabilities,
including providing professional
development to special and regular
education teachers, who teach children
with disabilities, based on scientifically
based research to improve educational
instruction, in order to improve
academic achievement to meet or
exceed the objectives established by the
State under section 1111(b)(2)(G) of the
ESEA.
(c)
Local educational agency high cost
fund.
(1) In general—
(i) For the purpose of assisting LEAs
(including a charter school that is an
LEA or a consortium of LEAs) in
addressing the needs of high need
children with disabilities, each State has
the option to reserve for each fiscal year
10 percent of the amount of funds the
State reserves for other State-level
activities under paragraph (b)(1) of this
section—
(A) To finance and make
disbursements from the high cost fund
to LEAs in accordance with paragraph
(c) of this section during the first and
succeeding fiscal years of the high cost
fund; and
(B) To support innovative and
effective ways of cost sharing by the
State, by an LEA, or among a
consortium of LEAs, as determined by
the State in coordination with
representatives from LEAs, subject to
paragraph (c)(2)(ii) of this section.
(ii) For purposes of paragraph (c) of
this section,
local educational agency
includes a charter school that is an LEA,
or a consortium of LEAs.
(2)(i) A State must not use any of the
funds the State reserves pursuant to
paragraph (c)(1)(i) of this section, which
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are solely for disbursement to LEAs, for
costs associated with establishing,
supporting, and otherwise
administering the fund. The State may
use funds the State reserves under
paragraph (a) of this section for those
administrative costs.
(ii) A State must not use more than 5
percent of the funds the State reserves
pursuant to paragraph (c)(1)(i) of this
section for each fiscal year to support
innovative and effective ways of cost
sharing among consortia of LEAs.
(3)(i) The SEA must develop, not later
than 90 days after the State reserves
funds under paragraph (c)(1)(i) of this
section, annually review, and amend as
necessary, a State plan for the high cost
fund. Such State plan must—
(A) Establish, in consultation and
coordination with representatives from
LEAs, a definition of a high need child
with a disability that, at a minimum—
(
1
) Addresses the financial impact a
high need child with a disability has on
the budget of the child’s LEA; and
(
2
) Ensures that the cost of the high
need child with a disability is greater
than 3 times the average per pupil
expenditure (as defined in section 9101
of the ESEA) in that State;
(B) Establish eligibility criteria for the
participation of an LEA that, at a
minimum, take into account the number
and percentage of high need children
with disabilities served by an LEA;
(C) Establish criteria to ensure that
placements supported by the fund are
consistent with the requirements of
§§ 300.114 through 300.118;
(D) Develop a funding mechanism
that provides distributions each fiscal
year to LEAs that meet the criteria
developed by the State under
paragraph(c)(3)(i)(B) of this section;
(E) Establish an annual schedule by
which the SEA must make its
distributions from the high cost fund
each fiscal year; and
(F) If the State elects to reserve funds
for supporting innovative and effective
ways of cost sharing under paragraph
(c)(1)(i)(B) of this section, describe how
these funds will be used.
(ii) The State must make its final State
plan available to the public not less than
30 days before the beginning of the
school year, including dissemination of
such information on the State Web site.
(4)(i) Each SEA must make all annual
disbursements from the high cost fund
established under paragraph (c)(1)(i) of
this section in accordance with the State
plan published pursuant to paragraph
(c)(3) of this section.
(ii) The costs associated with
educating a high need child with a
disability, as defined under paragraph
(c)(3)(i)(A) of this section, are only those
costs associated with providing direct
special education and related services to
the child that are identified in that
child’s IEP, including the cost of room
and board for a residential placement
determined necessary, consistent with
§ 300.114, to implement a child’s IEP.
(iii) The funds in the high cost fund
remain under the control of the State
until disbursed to an LEA to support a
specific child who qualifies under the
State plan for the high cost funds or
distributed to LEAs, consistent with
paragraph (c)(9) of this section.
(5) The disbursements under
paragraph (c)(4) of this section must not
be used to support legal fees, court
costs, or other costs associated with a
cause of action brought on behalf of a
child with a disability to ensure FAPE
for such child.
(6) Nothing in paragraph (c) of this
section—
(i) Limits or conditions the right of a
child with a disability who is assisted
under Part B of the Act to receive FAPE
pursuant to section 612(a)(1) of the Act
in the least restrictive environment
pursuant to section 612(a)(5) of the Act;
or
(ii) Authorizes an SEA or LEA to
establish a limit on what may be spent
on the education of a child with a
disability.
(7) Notwithstanding the provisions of
paragraphs (c)(1) through (6) of this
section, a State may use funds reserved
pursuant to paragraph (c)(1)(i) of this
section for implementing a placement
neutral cost sharing and reimbursement
program of high need, low incidence,
catastrophic, or extraordinary aid to
LEAs that provides services to high
need children based on eligibility
criteria for such programs that were
created not later than January 1, 2004,
and are currently in operation, if such
program serves children that meet the
requirement of the definition of a high
need child with a disability as described
in paragraph (c)(3)(i)(A) of this section.
(8) Disbursements provided under
paragraph (c) of this section must not be
used to pay costs that otherwise would
be reimbursed as medical assistance for
a child with a disability under the State
Medicaid program under Title XIX of
the Social Security Act.
(9) Funds reserved under paragraph
(c)(1)(i) of this section from the
appropriation for any fiscal year, but not
expended pursuant to paragraph (c)(4)
of this section before the beginning of
their last year of availability for
obligation, must be allocated to LEAs in
the same manner as other funds from
the appropriation for that fiscal year are
allocated to LEAs under § 300.705
during their final year of availability.
(d)
Inapplicability of certain
prohibitions.
A State may use funds the
State reserves under paragraphs (a) and
(b) of this section without regard to—
(1) The prohibition on commingling
of funds in § 300.162(b).
(2) The prohibition on supplanting
other funds in § 300.162(c).
(e)
Special rule for increasing funds.
A State may use funds the State reserves
under paragraph (a)(1) of this section as
a result of inflationary increases under
paragraph (a)(2) of this section to carry
out activities authorized under
paragraph(b)(4)(i), (iii), (vii), or (viii) of
this section.
(f)
Flexibility in using funds for Part
C.
Any State eligible to receive a grant
under section 619 of the Act may use
funds made available under paragraph
(a)(1) of this section, § 300.705(c), or
§ 300.814(e) to develop and implement
a State policy jointly with the lead
agency under Part C of the Act and the
SEA to provide early intervention
services (which must include an
educational component that promotes
school readiness and incorporates
preliteracy, language, and numeracy
skills) in accordance with Part C of the
Act to children with disabilities who are
eligible for services under section 619 of
the Act and who previously received
services under Part C of the Act until
the children enter, or are eligible under
State law to enter, kindergarten, or
elementary school as appropriate.
(Approved by the Office of Management and
Budget under control number 1820–0600)
(Authority: 20 U.S.C. 1411(e))
§ 300.705 Subgrants to LEAs.
(a)
Subgrants required.
Each State that
receives a grant under section 611 of the
Act for any fiscal year must distribute
any funds the State does not reserve
under § 300.704 to LEAs (including
public charter schools that operate as
LEAs) in the State that have established
their eligibility under section 613 of the
Act for use in accordance with Part B of
the Act.
(b)
Allocations to LEAs.
For each
fiscal year for which funds are allocated
to States under § 300.703, each State
shall allocate funds as follows:
(1)
Base payments.
The State first
must award each LEA described in
paragraph (a) of this section the amount
the LEA would have received under
section 611 of the Act for fiscal year
1999, if the State had distributed 75
percent of its grant for that year under
section 611(d) of the Act, as that section
was then in effect.
(2)
Base payment adjustments.
For
any fiscal year after 1999—
(i) If a new LEA is created, the State
must divide the base allocation
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determined under paragraph (b)(1) of
this section for the LEAs that would
have been responsible for serving
children with disabilities now being
served by the new LEA, among the new
LEA and affected LEAs based on the
relative numbers of children with
disabilities ages 3 through 21, or ages 6
through 21 if a State has had its
payment reduced under § 300.703(b),
currently provided special education by
each of the LEAs;
(ii) If one or more LEAs are combined
into a single new LEA, the State must
combine the base allocations of the
merged LEAs; and
(iii) If, for two or more LEAs,
geographic boundaries or administrative
responsibility for providing services to
children with disabilities ages 3 through
21 change, the base allocations of
affected LEAs must be redistributed
among affected LEAs based on the
relative numbers of children with
disabilities ages 3 through 21, or ages 6
through 21 if a State has had its
payment reduced under § 300.703(b),
currently provided special education by
each affected LEA.
(3)
Allocation of remaining funds.
After making allocations under
paragraph (b)(1) of this section, as
adjusted by paragraph (b)(2) of this
section, the State must—
(i) Allocate 85 percent of any
remaining funds to those LEAs on the
basis of the relative numbers of children
enrolled in public and private
elementary schools and secondary
schools within the LEA’s jurisdiction;
and
(ii) Allocate 15 percent of those
remaining funds to those LEAs in
accordance with their relative numbers
of children living in poverty, as
determined by the SEA.
(c)
Reallocation of funds.
If an SEA
determines that an LEA is adequately
providing FAPE to all children with
disabilities residing in the area served
by that agency with State and local
funds, the SEA may reallocate any
portion of the funds under this part that
are not needed by that LEA to provide
FAPE to other LEAs in the State that are
not adequately providing special
education and related services to all
children with disabilities residing in the
areas served by those other LEAs.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1411(f))
§ 300.706 [Reserved]
Secretary of the Interior
§ 300.707 Use of amounts by Secretary of
the Interior.
(a)
Definitions.
For purposes of
§§ 300.707 through 300.716, the
following definitions apply:
(1)
Reservation
means Indian Country
as defined in 18 U.S.C. 1151.
(2)
Tribal governing body
has the
definition given that term in 25 U.S.C.
2021(19).
(b)
Provision of amounts for
assistance.
The Secretary provides
amounts to the Secretary of the Interior
to meet the need for assistance for the
education of children with disabilities
on reservations aged 5 to 21, inclusive,
enrolled in elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior. The amount of the payment
for any fiscal year is equal to 80 percent
of the amount allotted under section
611(b)(2) of the Act for that fiscal year.
Of the amount described in the
preceding sentence, after the Secretary
of the Interior reserves funds for
administration under § 300.710, 80
percent must be allocated to such
schools by July 1 of that fiscal year and
20 percent must be allocated to such
schools by September 30 of that fiscal
year.
(c)
Additional requirement.
With
respect to all other children aged 3 to
21, inclusive, on reservations, the SEA
of the State in which the reservation is
located must ensure that all of the
requirements of Part B of the Act are
implemented.
(Authority: 20 U.S.C. 1411(h)(1))
§ 300.708 Submission of information.
The Secretary may provide the
Secretary of the Interior amounts under
§ 300.707 for a fiscal year only if the
Secretary of the Interior submits to the
Secretary information that—
(a) Meets the requirements of section
612(a)(1), (3) through (9), (10)(B)
through (C), (11) through (12), (14)
through (16), (19), and (21) through (25)
of the Act (including monitoring and
evaluation activities);
(b) Meets the requirements of section
612(b) and (e) of the Act;
(c) Meets the requirements of section
613(a)(1), (2)(A)(i), (7) through (9) and
section 613(i) of the Act (references to
LEAs in these sections must be read as
references to elementary schools and
secondary schools for Indian children
operated or funded by the Secretary of
the Interior);
(d) Meets the requirements of section
616 of the Act that apply to States
(references to LEAs in section 616 of the
Act must be read as references to
elementary schools and secondary
schools for Indian children operated or
funded by the Secretary of the Interior).
(e) Meets the requirements of this part
that implement the sections of the Act
listed in paragraphs (a) through (d) of
this section;
(f) Includes a description of how the
Secretary of the Interior will coordinate
the provision of services under Part B of
the Act with LEAs, tribes and tribal
organizations, and other private and
Federal service providers;
(g) Includes an assurance that there
are public hearings, adequate notice of
the hearings, and an opportunity for
comment afforded to members of tribes,
tribal governing bodies, and affected
local school boards before the adoption
of the policies, programs, and
procedures related to the requirements
described in paragraphs (a) through (d)
of this section;
(h) Includes an assurance that the
Secretary of the Interior provides the
information that the Secretary may
require to comply with section 618 of
the Act;
(i)(1) Includes an assurance that the
Secretary of the Interior and the
Secretary of Health and Human Services
have entered into a memorandum of
agreement, to be provided to the
Secretary, for the coordination of
services, resources, and personnel
between their respective Federal, State,
and local offices and with the SEAs and
LEAs and other entities to facilitate the
provision of services to Indian children
with disabilities residing on or near
reservations.
(2) The agreement must provide for
the apportionment of responsibilities
and costs, including child find,
evaluation, diagnosis, remediation or
therapeutic measures, and (where
appropriate) equipment and medical or
personal supplies, as needed for a child
with a disability to remain in a school
or program; and
(j) Includes an assurance that the
Department of the Interior will
cooperate with the Department in its
exercise of monitoring and oversight of
the requirements in this section and
§§ 300.709 through 300.711 and
§§ 300.713 through 300.716, and any
agreements entered into between the
Secretary of the Interior and other
entities under Part B of the Act, and will
fulfill its duties under Part B of the Act.
The Secretary withholds payments
under § 300.707 with respect to the
requirements described in this section
in the same manner as the Secretary
withholds payments under section
616(e)(6) of the Act.
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(Authority: 20 U.S.C. 1411(h)(2) and (3))
§ 300.709 Public participation.
In fulfilling the requirements of
§ 300.708 the Secretary of the Interior
must provide for public participation
consistent with § 300.165.
(Authority: 20 U.S.C. 1411(h))
§ 300.710 Use of funds under Part B of the
Act.
(a) The Secretary of the Interior may
reserve five percent of its payment
under § 300.707(b) in any fiscal year, or
$500,000, whichever is greater, for
administrative costs in carrying out the
provisions of §§ 300.707 through
300.709, 300.711, and 300.713 through
300.716.
(b) Payments to the Secretary of the
Interior under § 300.712 must be used in
accordance with that section.
(Authority: 20 U.S.C. 1411(h)(1)(A))
§ 300.711 Early intervening services.
(a) The Secretary of the Interior may
allow each elementary school and
secondary school for Indian children
operated or funded by the Secretary of
the Interior to use not more than 15
percent of the amount the school
receives under § 300.707(b) for any
fiscal year, in combination with other
amounts (which may include amounts
other than education funds), to develop
and implement coordinated, early
intervening services, which may include
interagency financing structures, for
children in kindergarten through grade
12 (with a particular emphasis on
children in kindergarten through grade
three) who have not been identified as
needing special education or related
services but who need additional
academic and behavioral support to
succeed in a general education
environment, in accordance with
section 613(f) of the Act.
(b) Each elementary school and
secondary school for Indian children
operated or funded by the Secretary of
the Interior that develops and maintains
coordinated early intervening services
in accordance with section 613(f) of the
Act and § 300.226 must annually report
to the Secretary of the Interior in
accordance with section 613(f) of the
Act.
(Authority: 20 U.S.C. 1411(h) and 1413(f))
§ 300.712 Payments for education and
services for Indian children with disabilities
aged three through five.
(a)
General.
With funds appropriated
under section 611(i) of the Act, the
Secretary makes payments to the
Secretary of the Interior to be
distributed to tribes or tribal
organizations (as defined under section
4 of the Indian Self-Determination and
Education Assistance Act) or consortia
of tribes or tribal organizations to
provide for the coordination of
assistance for special education and
related services for children with
disabilities aged three through five on
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Department of the Interior. The
amount of the payments under
paragraph (b) of this section for any
fiscal year is equal to 20 percent of the
amount allotted under § 300.701(b).
(b)
Distribution of funds.
The
Secretary of the Interior must distribute
the total amount of the payment under
paragraph (a) of this section by
allocating to each tribe, tribal
organization, or consortium an amount
based on the number of children with
disabilities aged three through five
residing on reservations as reported
annually, divided by the total of those
children served by all tribes or tribal
organizations.
(c)
Submission of information.
To
receive a payment under this section,
the tribe or tribal organization must
submit the figures to the Secretary of the
Interior as required to determine the
amounts to be allocated under
paragraph (b) of this section. This
information must be compiled and
submitted to the Secretary.
(d)
Use of funds.
(1) The funds
received by a tribe or tribal organization
must be used to assist in child find,
screening, and other procedures for the
early identification of children aged
three through five, parent training, and
the provision of direct services. These
activities may be carried out directly or
through contracts or cooperative
agreements with the BIA, LEAs, and
other public or private nonprofit
organizations. The tribe or tribal
organization is encouraged to involve
Indian parents in the development and
implementation of these activities.
(2) The tribe or tribal organization, as
appropriate, must make referrals to
local, State, or Federal entities for the
provision of services or further
diagnosis.
(e)
Biennial report.
To be eligible to
receive a grant pursuant to paragraph (a)
of this section, the tribe or tribal
organization must provide to the
Secretary of the Interior a biennial
report of activities undertaken under
this section, including the number of
contracts and cooperative agreements
entered into, the number of children
contacted and receiving services for
each year, and the estimated number of
children needing services during the
two years following the year in which
the report is made. The Secretary of the
Interior must include a summary of this
information on a biennial basis in the
report to the Secretary required under
section 611(h) of the Act. The Secretary
may require any additional information
from the Secretary of the Interior.
(f)
Prohibitions.
None of the funds
allocated under this section may be
used by the Secretary of the Interior for
administrative purposes, including
child count and the provision of
technical assistance.
(Authority: 20 U.S.C. 1411(h)(4))
§ 300.713 Plan for coordination of
services.
(a) The Secretary of the Interior must
develop and implement a plan for the
coordination of services for all Indian
children with disabilities residing on
reservations served by elementary
schools and secondary schools for
Indian children operated or funded by
the Secretary of the Interior.
(b) The plan must provide for the
coordination of services benefiting those
children from whatever source,
including tribes, the Indian Health
Service, other BIA divisions, other
Federal agencies, State educational
agencies, and State, local, and tribal
juvenile and adult correctional facilities.
(c) In developing the plan, the
Secretary of the Interior must consult
with all interested and involved parties.
(d) The plan must be based on the
needs of the children and the system
best suited for meeting those needs, and
may involve the establishment of
cooperative agreements between the
BIA, other Federal agencies, and other
entities.
(e) The plan also must be distributed
upon request to States; to SEAs, LEAs,
and other agencies providing services to
infants, toddlers, and children with
disabilities; to tribes; and to other
interested parties.
(Authority: 20 U.S.C. 1411(h)(5))
§ 300.714 Establishment of advisory
board.
(a) To meet the requirements of
section 612(a)(21) of the Act, the
Secretary of the Interior must establish,
under the BIA, an advisory board
composed of individuals involved in or
concerned with the education and
provision of services to Indian infants,
toddlers, children, and youth with
disabilities, including Indians with
disabilities, Indian parents or guardians
of such children, teachers, service
providers, State and local educational
officials, representatives of tribes or
tribal organizations, representatives
from State Interagency Coordinating
Councils under section 641 of the Act in
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States having reservations, and other
members representing the various
divisions and entities of the BIA. The
chairperson must be selected by the
Secretary of the Interior.
(b) The advisory board must—
(1) Assist in the coordination of
services within the BIA and with other
local, State, and Federal agencies in the
provision of education for infants,
toddlers, and children with disabilities;
(2) Advise and assist the Secretary of
the Interior in the performance of the
Secretary of the Interior’s
responsibilities described in section
611(h) of the Act;
(3) Develop and recommend policies
concerning effective inter- and intra-
agency collaboration, including
modifications to regulations, and the
elimination of barriers to inter- and
intra-agency programs and activities;
(4) Provide assistance and
disseminate information on best
practices, effective program
coordination strategies, and
recommendations for improved early
intervention services or educational
programming for Indian infants,
toddlers, and children with disabilities;
and
(5) Provide assistance in the
preparation of information required
under § 300.708(h).
(Authority: 20 U.S.C. 1411(h)(6))
§ 300.715 Annual reports.
(a)
In general.
The advisory board
established under § 300.714 must
prepare and submit to the Secretary of
the Interior and to Congress an annual
report containing a description of the
activities of the advisory board for the
preceding year.
(b)
Availability.
The Secretary of the
Interior must make available to the
Secretary the report described in
paragraph (a) of this section.
(Authority: 20 U.S.C. 1411(h)(7))
§ 300.716 Applicable regulations.
The Secretary of the Interior must
comply with the requirements of
§§ 300.103 through 300.108, 300.110
through 300.124, 300.145 through
300.154, 300.156 through 300.160,
300.165, 300.170 through 300.186,
300.226, 300.300 through 300.606,
300.610 through 300.646, and 300.707
through 300.716.
(Authority: 20 U.S.C. 1411(h)(2)(A))
Definitions that Apply to this Subpart
§ 300.717 Definitions applicable to
allotments, grants, and use of funds.
As used in this subpart—
(a)
Freely associated States
means the
Republic of the Marshall Islands, the
Federated States of Micronesia, and the
Republic of Palau;
(b)
Outlying areas
means the United
States Virgin Islands, Guam, American
Samoa, and the Commonwealth of the
Northern Mariana Islands;
(c)
State
means each of the 50 States,
the District of Columbia, and the
Commonwealth of Puerto Rico; and
(d)
Average per-pupil expenditure in
public elementary schools and
secondary schools in the United States
means—
(1) Without regard to the source of
funds—
(i) The aggregate current
expenditures, during the second fiscal
year preceding the fiscal year for which
the determination is made (or, if
satisfactory data for that year are not
available, during the most recent
preceding fiscal year for which
satisfactory data are available) of all
LEAs in the 50 States and the District of
Columbia); plus
(ii) Any direct expenditures by the
State for the operation of those agencies;
divided by (2) The aggregate number of
children in average daily attendance to
whom those agencies provided free
public education during that preceding
year.
(Authority: 20 U.S.C. 1401(22), 1411(b)(1) (C)
and (g))
Acquisition of Equipment and
Construction or Alteration of Facilities
§ 300.718 Acquisition of equipment and
construction or alteration of facilities.
(a)
General.
If the Secretary
determines that a program authorized
under Part B of the Act will be
improved by permitting program funds
to be used to acquire appropriate
equipment, or to construct new facilities
or alter existing facilities, the Secretary
may allow the use of those funds for
those purposes.
(b)
Compliance with certain
regulations.
Any construction of new
facilities or alteration of existing
facilities under paragraph (a) of this
section must comply with the
requirements of—
(1) Appendix A of part 36 of title 28,
Code of Federal Regulations (commonly
known as the ‘‘Americans with
Disabilities Accessibility Standards for
Buildings and Facilities’’); or
(2) Appendix A of subpart 101–19.6 of
title 41, Code of Federal Regulations
(commonly known as the ‘‘Uniform
Federal Accessibility Standards’’).
(Authority: 20 U.S.C. 1404)
Subpart H—Preschool Grants for
Children with Disabilities
§ 300.800 In general.
The Secretary provides grants under
section 619 of the Act to assist States to
provide special education and related
services in accordance with Part B of the
Act—
(a) To children with disabilities aged
three through five years; and
(b) At a State’s discretion, to two-year-
old children with disabilities who will
turn three during the school year.
(Authority: 20 U.S.C. 1419(a))
§§ 300.801–300.802 [Reserved]
§ 300.803 Definition of State.
As used in this subpart, State means
each of the 50 States, the District of
Columbia, and the Commonwealth of
Puerto Rico.
(Authority: 20 U.S.C. 1419(i))
§ 300.804 Eligibility.
A State is eligible for a grant under
section 619 of the Act if the State—
(a) Is eligible under section 612 of the
Act to receive a grant under Part B of the
Act; and
(b) Makes FAPE available to all
children with disabilities, aged three
through five, residing in the State.
(Approved by the Office of Management and
Budget under control number 1820–0030)
(Authority: 20 U.S.C. 1419(b))
§ 300.805 [Reserved]
§ 300.806 Eligibility for financial
assistance.
No State or LEA, or other public
institution or agency, may receive a
grant or enter into a contract or
cooperative agreement under subpart 2
or 3 of Part D of the Act that relates
exclusively to programs, projects, and
activities pertaining to children aged
three through five years, unless the State
is eligible to receive a grant under
section 619(b) of the Act.
(Authority: 20 U.S.C. 1481(e))
§ 300.807 Allocations to States.
The Secretary allocates the amount
made available to carry out section 619
of the Act for a fiscal year among the
States in accordance with §§ 300.808
through 300.810.
(Authority: 20 U.S.C. 1419(c)(1))
§ 300.808 Increase in funds.
If the amount available for allocation
to States under § 300.807 for a fiscal
year is equal to or greater than the
amount allocated to the States under
section 619 of the Act for the preceding
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fiscal year, those allocations are
calculated as follows:
(a) Except as provided in § 300.809,
the Secretary—
(1) Allocates to each State the amount
the State received under section 619 of
the Act for fiscal year 1997;
(2) Allocates 85 percent of any
remaining funds to States on the basis
of the States’ relative populations of
children aged three through five; and
(3) Allocates 15 percent of those
remaining funds to States on the basis
of the States’ relative populations of all
children aged three through five who
are living in poverty.
(b) For the purpose of making grants
under this section, the Secretary uses
the most recent population data,
including data on children living in
poverty, that are available and
satisfactory to the Secretary.
(Authority: 20 U.S.C. 1419(c)(2)(A))
§ 300.809 Limitations.
(a) Notwithstanding § 300.808,
allocations under that section are
subject to the following:
(1) No State’s allocation may be less
than its allocation under section 619 of
the Act for the preceding fiscal year.
(2) No State’s allocation may be less
than the greatest of—
(i) The sum of—
(A) The amount the State received
under section 619 of the Act for fiscal
year 1997; and
(B) One-third of one percent of the
amount by which the amount
appropriated under section 619(j) of the
Act for the fiscal year exceeds the
amount appropriated for section 619 of
the Act for fiscal year 1997;
(ii) The sum of—
(A) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by the
percentage by which the increase in the
funds appropriated under section 619 of
the Act from the preceding fiscal year
exceeds 1.5 percent; or
(iii) The sum of—
(A) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(B) That amount multiplied by 90
percent of the percentage increase in the
amount appropriated under section 619
of the Act from the preceding fiscal
year.
(b) Notwithstanding paragraph (a)(2)
of this section, no State’s allocation
under § 300.808 may exceed the sum
of—
(1) The amount the State received
under section 619 of the Act for the
preceding fiscal year; and
(2) That amount multiplied by the
sum of 1.5 percent and the percentage
increase in the amount appropriated
under section 619 of the Act from the
preceding fiscal year.
(c) If the amount available for
allocation to States under § 300.808 and
paragraphs (a) and (b) of this section is
insufficient to pay those allocations in
full, those allocations are ratably
reduced, subject to paragraph (a)(1) of
this section.
(Authority: 20 U.S.C. 1419(c)(2)(B) and
(c)(2)(C))
§ 300.810 Decrease in funds.
If the amount available for allocations
to States under § 300.807 for a fiscal
year is less than the amount allocated to
the States under section 619 of the Act
for the preceding fiscal year, those
allocations are calculated as follows:
(a) If the amount available for
allocations is greater than the amount
allocated to the States for fiscal year
1997, each State is allocated the sum
of—
(1) The amount the State received
under section 619 of the Act for fiscal
year 1997; and
(2) An amount that bears the same
relation to any remaining funds as the
increase the State received under
section 619 of the Act for the preceding
fiscal year over fiscal year 1997 bears to
the total of all such increases for all
States.
(b) If the amount available for
allocations is equal to or less than the
amount allocated to the States for fiscal
year 1997, each State is allocated the
amount the State received for fiscal year
1997, ratably reduced, if necessary.
(Authority: 20 U.S.C. 1419(c)(3))
§ 300.811 [Reserved]
§ 300.812 Reservation for State activities.
(a) Each State may reserve not more
than the amount described in paragraph
(b) of this section for administration and
other State-level activities in accordance
with §§ 300.813 and 300.814.
(b) For each fiscal year, the Secretary
determines and reports to the SEA an
amount that is 25 percent of the amount
the State received under section 619 of
the Act for fiscal year 1997,
cumulatively adjusted by the Secretary
for each succeeding fiscal year by the
lesser of—
(1) The percentage increase, if any,
from the preceding fiscal year in the
State’s allocation under section 619 of
the Act; or
(2) The rate of inflation, as measured
by the percentage increase, if any, from
the preceding fiscal year in the
Consumer Price Index For All Urban
Consumers, published by the Bureau of
Labor Statistics of the Department of
Labor.
(Authority: 20 U.S.C. 1419(d))
§ 300.813 State administration.
(a) For the purpose of administering
section 619 of the Act (including the
coordination of activities under Part B
of the Act with, and providing technical
assistance to, other programs that
provide services to children with
disabilities), a State may use not more
than 20 percent of the maximum
amount the State may reserve under
§ 300.812 for any fiscal year.
(b) Funds described in paragraph (a)
of this section may also be used for the
administration of Part C of the Act.
(Authority: 20 U.S.C. 1419(e))
§ 300.814 Other State-level activities.
Each State must use any funds the
State reserves under § 300.812 and does
not use for administration under
§ 300.813—
(a) For support services (including
establishing and implementing the
mediation process required by section
615(e) of the Act), which may benefit
children with disabilities younger than
three or older than five as long as those
services also benefit children with
disabilities aged three through five;
(b) For direct services for children
eligible for services under section 619 of
the Act;
(c) For activities at the State and local
levels to meet the performance goals
established by the State under section
612(a)(15) of the Act;
(d) To supplement other funds used to
develop and implement a statewide
coordinated services system designed to
improve results for children and
families, including children with
disabilities and their families, but not
more than one percent of the amount
received by the State under section 619
of the Act for a fiscal year;
(e) To provide early intervention
services (which must include an
educational component that promotes
school readiness and incorporates
preliteracy, language, and numeracy
skills) in accordance with Part C of the
Act to children with disabilities who are
eligible for services under section 619 of
the Act and who previously received
services under Part C of the Act until
such children enter, or are eligible
under State law to enter, kindergarten;
or
(f) At the State’s discretion, to
continue service coordination or case
management for families who receive
services under Part C of the Act,
consistent with § 300.814(e).
(Authority: 20 U.S.C. 1419(f))
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§ 300.815 Subgrants to LEAs.
Each State that receives a grant under
section 619 of the Act for any fiscal year
must distribute all of the grant funds
that the State does not reserve under
§ 300.812 to LEAs in the State that have
established their eligibility under
section 613 of the Act.
(Authority: 20 U.S.C. 1419(g)(1))
§ 300.816 Allocations to LEAs.
(a)
Base payments.
The State must
first award each LEA described in
§ 300.815 the amount that agency would
have received under section 619 of the
Act for fiscal year 1997 if the State had
distributed 75 percent of its grant for
that year under section 619(c)(3), as
such section was then in effect.
(b)
Base payment adjustments.
For
fiscal year 1998 and beyond—
(1) If a new LEA is created, the State
must divide the base allocation
determined under paragraph (a) of this
section for the LEAs that would have
been responsible for serving children
with disabilities now being served by
the new LEA, among the new LEA and
affected LEAs based on the relative
numbers of children with disabilities
ages three through five currently
provided special education by each of
the LEAs;
(2) If one or more LEAs are combined
into a single new LEA, the State must
combine the base allocations of the
merged LEAs; and
(3) If for two or more LEAs,
geographic boundaries or administrative
responsibility for providing services to
children with disabilities ages three
through five changes, the base
allocations of affected LEAs must be
redistributed among affected LEAs
based on the relative numbers of
children with disabilities ages three
through five currently provided special
education by each affected LEA.
(c)
Allocation of remaining funds.
After making allocations under
paragraph (a) of this section, the State
must—
(1) Allocate 85 percent of any
remaining funds to those LEAs on the
basis of the relative numbers of children
enrolled in public and private
elementary schools and secondary
schools within the LEA’s jurisdiction;
and
(2) Allocate 15 percent of those
remaining funds to those LEAs in
accordance with their relative numbers
of children living in poverty, as
determined by the SEA.
(d)
Use of best data.
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.
(Authority: 20 U.S.C. 1419(g)(1))
§ 300.817 Reallocation of LEA funds.
If an SEA determines that an LEA is
adequately providing FAPE to all
children with disabilities aged three
through five residing in the area served
by the LEA with State and local funds,
the SEA may reallocate any portion of
the funds under section 619 of the Act
that are not needed by that LEA to
provide FAPE to other LEAs in the State
that are not adequately providing
special education and related services to
all children with disabilities aged three
through five residing in the areas the
other LEAs serve.
(Authority: 20 U.S.C. 1419(g)(2))
§ 300.818 Part C of the Act inapplicable.
Part C of the Act does not apply to
any child with a disability receiving
FAPE, in accordance with Part B of the
Act, with funds received under section
619 of the Act.
(Authority: 20 U.S.C. 1419(h))
Appendix A to Part 300—Excess Costs
Calculation
Except as otherwise provided, amounts
provided to an LEA under Part B of the Act
may be used only to pay the excess costs of
providing special education and related
services to children with disabilities. Excess
costs are those costs for the education of an
elementary school or secondary school
student with a disability that are in excess of
the average annual per student expenditure
in an LEA during the preceding school year
for an elementary school or secondary school
student, as may be appropriate. An LEA must
spend at least the average annual per student
expenditure on the education of an
elementary school or secondary school child
with a disability before funds under Part B
of the Act are used to pay the excess costs
of providing special education and related
services.
Section 602(8) of the Act and § 300.16
require the LEA to compute the minimum
average amount separately for children with
disabilities in its elementary schools and for
children with disabilities in its secondary
schools. LEAs may not compute the
minimum average amount it must spend on
the education of children with disabilities
based on a combination of the enrollments in
its elementary schools and secondary
schools.
The following example shows how to
compute the minimum average amount an
LEA must spend for the education of each of
its elementary school children with
disabilities under section 602(3) of the Act
before it may use funds under Part B of the
Act.
a. First the LEA must determine the total
amount of its expenditures for elementary
school students from all sources—local,
State, and Federal (including Part B)—in the
preceding school year. Only capital outlay
and debt services are excluded.
Example:
The following is an example of
a computation for children with disabilities
enrolled in an LEA’s elementary schools. In
this example, the LEA had an average
elementary school enrollment for the
preceding school year of 800 (including 100
children with disabilities). The LEA spent
the following amounts last year for
elementary school students (including its
elementary school children with disabilities):
(1)
From State and local tax
funds.
$6,500,000
(2)
From Federal funds .........
600,000
Total expenditures .......
7,100,000
Of this total, $60,000 was for capital outlay
and debt service relating to the education of
elementary school students. This must be
subtracted from total expenditures.
(1)
Total Expenditures ..........
$7,100,000
(2)
Less capital outlay and
debt.
¥
60,000
Total expenditures for
elementary school stu-
dents less capital out-
lay and debt.
$7,040,000
b. Next, the LEA must subtract from the
total expenditures amounts spent for:
(1) IDEA, Part B allocation,
(2) ESEA, Title I, Part A allocation,
(3) ESEA, Title III, Parts A and B
allocation,
(4) State and local funds for children with
disabilities, and
(5) State or local funds for programs under
ESEA, Title I, Part A, and Title III, Parts A
and B.
These are funds that the LEA actually
spent, not funds received last year but carried
over for the current school year.
Example:
The LEA spent the following
amounts for elementary school students last
year:
(1)
From funds under IDEA,
Part B allocation.
$ 200,000
(2)
From funds under ESEA,
Title I, Part A alloca-
tion.
250,000
(3)
From funds under ESEA,
Title III, Parts A and B
allocation.
50,000
(4)
From State funds and
local funds for children
with disabilities.
500,000
(5)
From State and local
funds for programs
under ESEA, Title I,
Part A, and Title III,
Parts A and B.
150,000
Total ..............................
1,150,000
(1)
Total expenditures less
capital outlay and debt.
7,040,000
(2)
Other deductions .............
¥
1,150,000
Total ..............................
$5,890,000
c. Except as otherwise provided, the LEA
next must determine the average annual per
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student expenditure for its elementary
schools dividing the average number of
students enrolled in the elementary schools
of the agency during the preceding year
(including its children with disabilities) into
the amount computed under the above
paragraph. The amount obtained through this
computation is the minimum amount the
LEA must spend (on the average) for the
education of each of its elementary school
children with disabilities. Funds under Part
B of the Act may be used only for costs over
and above this minimum.
(1)
Amount from Step b ........
$5,890,000
(2)
Average number of stu-
dents enrolled.
800
(3)
$5,890,000/800 Average
annual per student ex-
penditure.
$ 7,362
d. Except as otherwise provided, to
determine the total minimum amount of
funds the LEA must spend for the education
of its elementary school children with
disabilities in the LEA (not including capital
outlay and debt service), the LEA must
multiply the number of elementary school
children with disabilities in the LEA times
the average annual per student expenditure
obtained in paragraph c above. Funds under
Part B of the Act can only be used for excess
costs over and above this minimum.
(1)
Number of children with
disabilities in the LEA’s
elementary schools.
100
(2)
Average annual per stu-
dent expenditure.
$ 7,362
(3)
$7,362 x 100.
Total minimum amount
of funds the LEA must
spend for the education
of children with dis-
abilities enrolled in the
LEA’s elementary
schools before using
Part B funds.
$ 736,200
Appendix B to Part 300—Proportionate
Share Calculation
Each LEA must expend, during the grant
period, on the provision of special education
and related services for the parentally-placed
private school children with disabilities
enrolled in private elementary schools and
secondary schools located in the LEA an
amount that is equal to—
(1) A proportionate share of the LEA’s
subgrant under section 611(f) of the Act for
children with disabilities aged 3 through 21.
This is an amount that is the same proportion
of the LEA’s total subgrant under section
611(f) of the Act as the number of parentally-
placed private school children with
disabilities aged 3 through 21 enrolled in
private elementary schools and secondary
schools located in the LEA is to the total
number of children with disabilities enrolled
in public and private elementary schools and
secondary schools located in the LEA aged 3
through 21; and
(2) A proportionate share of the LEA’s
subgrant under section 619(g) of the Act for
children with disabilities aged 3 through 5.
This is an amount that is the same proportion
of the LEA’s total subgrant under section
619(g) of the Act as the total number of
parentally-placed private school children
with disabilities aged 3 through 5 enrolled in
private elementary schools located in the
LEA is to the total number of children with
disabilities enrolled in public and private
elementary schools located in the LEA aged
3 through 5.
Consistent with section 612(a)(10)(A)(i) of
the Act and § 300.133 of these regulations,
annual expenditures for parentally-placed
private school children with disabilities are
calculated based on the total number of
children with disabilities enrolled in public
and private elementary schools and
secondary schools located in the LEA eligible
to receive special education and related
services under Part B, as compared with the
total number of eligible parentally-placed
private school children with disabilities
enrolled in private elementary schools
located in the LEA. This ratio is used to
determine the proportion of the LEA’s total
Part B subgrants under section 611(f) of the
Act for children aged 3 through 21, and
under section 619(g) of the Act for children
aged 3 through 5, that is to be expended on
services for parentally-placed private school
children with disabilities enrolled in private
elementary schools and secondary schools
located in the LEA.
The following is an example of how the
proportionate share is calculated:
There are 300 eligible children with
disabilities enrolled in the Flintstone School
District and 20 eligible parentally-placed
private school children with disabilities
enrolled in private elementary schools and
secondary schools located in the LEA for a
total of 320 eligible public and private school
children with disabilities (note:
proportionate share for parentally-placed
private school children is based on total
children eligible, not children served). The
number of eligible parentally-placed private
school children with disabilities (20) divided
by the total number of eligible public and
private school children with disabilities (320)
indicates that 6.25 percent of the LEA’s
subgrant must be spent for the group of
eligible parentally-placed children with
disabilities enrolled in private elementary
schools and secondary schools located in the
LEA. Flintstone School District receives
$152,500 in Federal flow through funds.
Therefore, the LEA must spend $9,531.25 on
special education or related services to the
group of parentally-placed private school
children with disabilities enrolled in private
elementary schools and secondary schools
located in the LEA. (Note: The LEA must
calculate the proportionate share of IDEA
funds before earmarking funds for any early
intervening activities in § 300.226).
The following outlines the calculations for
the example of how the proportionate share
is calculated.
Proportionate Share Calculation
for Parentally-Placed Private
School Children with Disabil-
ities For Flintstone School
District:
Number of eligible children with
disabilities in public schools
in the LEA ................................
300
Number of parentally-placed eli-
gible children with disabilities
in private elementary schools
and secondary schools located
in the LEA ................................
20
Total number of eligible
children .............................
320
FEDERAL FLOW-THROUGH FUNDS
TO FLINTSTONE SCHOOL DISTRICT
Total
allocation
to
Flintstone .......................... $152,500
Calculating Proportionate Share:
Total allocation to Flinstone .......
152,500
Divided by total number of eligi-
ble children ..............................
320
Average allocation per eligible
child .......................................... 476.5625
Multiplied by the number of pa-
rentally placed children with
disabilities ................................
20
Amount to be expended for pa-
rentally-placed children with
disabilities ................................
9,531.25
Appendix C to Part 300—National
Instructional Materials Accessibility
Standard (NIMAS)
Under sections 612(a)(23)(A) and 674(e)(4)
of the Individuals with Disabilities Education
Act, as amended by the Individuals with
Disabilities Education Improvement Act of
2004, the Secretary of Education establishes
the NIMAS. Under section 674(e)(4) of the
Act, the NIMAS applies to print instructional
materials published after July 19, 2006. The
purpose of the NIMAS is to help increase the
availability and timely delivery of print
instructional materials in accessible formats
to blind or other persons with print
disabilities in elementary and secondary
schools.
Technical Specifications—The Baseline
Element Set
The Baseline Element Set details the
minimum requirement that must be delivered
to fulfill the NIMAS. It is the responsibility
of publishers to provide this NIMAS-
conformant XML content file, a package file
(OPF), a PDF-format copy of the title page (or
whichever page(s) contain(s) ISBN and
copyright information), and a full set of the
content’s images. All of the images included
within a work must be provided in a folder
and placeholders entered in the relevant
XML document indicating their location (all
images must be included). The preferred
image type is SVG, next is either PNG or JPG
format. Images should be rendered in the
same size/proportion as their originals at 300
dpi. Images should be named with relative
path filenames in XML files (example: img
id=‘‘staricon4’’ src=‘‘./images/U10C02/
staricon4.jpg’’ alt=‘‘star icon’’).
NIMAS-conformant content must be valid
to the NIMAS 1.1 [see ANSI/NISO Z39.86
2005 or subsequent revisions]. In addition,
files are required to use the tags from the
Baseline Element Set when such tags are
appropriate. Publishers are encouraged to
augment the required Baseline Element Set
with tags from the Optional Element Set
(elements not included in the Standard) as
applicable. For the purposes of NIMAS,
appropriate usage of elements, both baseline
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and optional, is defined by the DAISY
Structure Guidelines. Files that do not follow
these guidelines in the selection and
application of tags are not conformant to this
Standard. Both optional elements and
appropriate structure guidelines may be
located within Z39.86–2002 and Z39.86–
2005 available from
http://www.daisy.org/
z3986/.
Use of the most current standard is
recommended.
THE BASELINE ELEMENT SET
Element
Description
a. Document-level tags
dtbook ..................................... The root element in the Digital Talking Book DTD. <dtbook> contains metadata in <head> and the contents
itself in <book>.
head ........................................ Contains metainformation about the book but no actual content of the book itself, which is placed in <book>.
book ........................................ Surrounds the actual content of the document, which is divided into <frontmatter>, <bodymatter>, and
<rearmatter>. <head>, which contains metadata, precedes <book>.
meta ........................................ Indicates metadata about the book. It is an empty element that may appear repeatedly only in <head>.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
b. Structure and Hierarchy
frontmatter ............................... Usually contains <doctitle> and <docauthor>, as well as preliminary material that is often enclosed in appro-
priate <level> or <level1> etc. Content may include a copyright notice, a foreword, an acknowledgements
section, a table of contents, etc. <frontmatter> serves as a guide to the content and nature of a <book>.
bodymatter .............................. Consists of the text proper of a book, as contrasted with preliminary material <frontmatter> or supplementary in-
formation in <rearmatter>.
rearmatter ................................ Contains supplementary material such as appendices, glossaries, bibliographies, and indices. It follows the
<bodymatter> of the book.
level1 ....................................... The highest-level container of major divisions of a book. Used in <frontmatter>, <bodymatter>, and
<rearmatter> to mark the largest divisions of the book (usually parts or chapters), inside which <level2> sub-
divisions (often sections) may nest. The class attribute identifies the actual name (e.g., part, chapter) of the
structure it marks. Contrast with <level>.
level2 ....................................... Contains subdivisions that nest within <level1> divisions. The class attribute identifies the actual name (e.g.,
subpart, chapter, subsection) of the structure it marks.
level3 ....................................... Contains sub-subdivisions that nest within <level2> subdivisions (e.g., sub-subsections within subsections). The
class attribute identifies the actual name (e.g., section, subpart, subsubsection) of the subordinate structure it
marks.
level4 ....................................... Contains further subdivisions that nest within <level3> subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
level5 ....................................... Contains further subdivisions that nest within <level4> subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
level6 ....................................... Contains further subdivisions that nest within <level5> subdivisions. The class attribute identifies the actual
name of the subordinate structure it marks.
h1 ............................................ Contains the text of the heading for a <level1> structure.
h2 ............................................ Contains the text of the heading for a <level2> structure.
h3 ............................................ Contains the text of the heading for a <level3> structure.
h4 ............................................ Contains the text of the heading for a <level4> structure.
h5 ............................................ Contains the text of the heading for a <level5> structure.
h6 ............................................ Contains the text of the heading for a <level6> structure.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
c. Block elements
author ...................................... Identifies the writer of a work other than this one. Contrast with <docauthor>, which identifies the author of this
work. <author> typically occurs within <blockquote> and <cite>.
blockquote ............................... Indicates a block of quoted content that is set off from the surrounding text by paragraph breaks. Compare with
<q>, which marks short, inline quotations.
list ............................................ Contains some form of list, ordered or unordered. The list may have an intermixed heading <hd> (generally
only one, possibly with <prodnote>), and an intermixture of list items <li> and <pagenum>. If bullets and out-
line enumerations are part of the print content, they are expected to prefix those list items in content, rather
than be implicitly generated.
li ............................................... Marks each list item in a <list>. <li> content may be either inline or block and may include other nested lists. Al-
ternatively it may contain a sequence of list item components, <lic>, that identify regularly occurring content,
such as the heading and page number of each entry in a table of contents.
hd ............................................ Marks the text of a heading in a <list> or <sidebar>.
note ......................................... Marks a footnote, endnote, etc. Any local reference to <note id=‘‘yyy’’> is by <noteref idref=‘‘#yyy’’’’>. [Attribute
id]
p .............................................. Contains a paragraph, which may contain subsidiary <list> or <dl>.
sidebar .................................... Contains information supplementary to the main text and/or narrative flow and is often boxed and printed apart
from the main text block on a page. It may have a heading <hd>.
cite ........................................... Marks a reference (or citation) to another document.
dd ............................................ Marks a definition of the preceding term <dt> within a definition list <dl>. A definition without a preceding <dt>
has no semantic interpretation, but is visually presented aligned with other <dd>.
dl ............................................. Contains a definition list, usually consisting of pairs of terms <dt> and definitions <dd>. Any definition can con-
tain another definition list.
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THE BASELINE ELEMENT SET—Continued
Element
Description
dt ............................................. Marks a term in a definition list <dl> for which a definition <dd> follows.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
d. Inline Elements
em ........................................... Indicates emphasis. Usually <em> is rendered in italics. Compare with <strong>.
q .............................................. Contains a short, inline quotation. Compare with <blockquote>, which marks a longer quotation set off from the
surrounding text.
strong ...................................... Marks stronger emphasis than <em>. Visually <strong> is usually rendered bold.
sub .......................................... Indicates a subscript character (printed below a character’s normal baseline). Can be used recursively and/or
intermixed with <sup>.
sup .......................................... Marks a superscript character (printed above a character’s normal baseline). Can be used recursively and/or
intermixed with <sub>.
br ............................................. Marks a forced line break.
line ........................................... Marks a single logical line of text. Often used in conjunction with <linenum> in documents with numbered lines.
[Use only when line breaks must be preserved to capture meaning (e.g., poems, legal texts).]
linenum .................................... Contains a line number, for example in legal text. [Use only when <line> is used, and only for lines numbered in
print book.]
pagenum ................................. Contains one page number as it appears from the print document, usually inserted at the point within the file
immediately preceding the first item of content on a new page. [NB: Only valid when it includes an id at-
tribute].
noteref ..................................... Marks one or more characters that reference a footnote or endnote <note>. Contrast with <annoref>. <noteref>
and <note> are independently skippable.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
e. Tables
table ........................................ Contains cells of tabular data arranged in rows and columns. A <table> may have a <caption>. It may have de-
scriptions of the columns in <col>s or groupings of several <col> in <colgroup>. A simple <table> may be
made up of just rows <tr>. A long table crossing several pages of the print book should have separate
<pagenum> values for each of the pages containing that <table> indicated on the page where it starts. Note
the logical order of optional <thead>, optional <tfoot>, then one or more of either <tbody> or just rows <tr>.
This order accommodates simple or large, complex tables. The <thead> and <tfoot> information usually helps
identify content of the <tbody> rows. For a multiple-page print <table> the <thead> and <tfoot> are repeated
on each page, but not redundantly tagged.
td ............................................. Indicates a table cell containing data.
tr .............................................. Marks one row of a <table> containing <th> or <td> cells.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
f. Images
imggroup ................................. Provides a container for one or more <img> and associated <caption>(s) and <prodnote>(s). A <prodnote> may
contain a description of the image. The content model allows: 1) multiple <img> if they share a caption, with
the ids of each <img> in the <caption imgref=‘‘id1 id2 ...’’>, 2) multiple <caption> if several captions refer to a
single <img id=‘‘xxx’’> where each caption has the same <caption imgref=‘‘xxx’’>, 3) multiple <prodnote> if
different versions are needed for different media (e.g., large print, braille, or print). If several <prodnote> refer
to a single <img id=‘‘xxx’’>, each prodnote has the same <prodnote imgref=‘‘xxx’’>.
img .......................................... Points to the image to be rendered. An <img> may stand alone or be grouped using <imggroup>. Note that pro-
viding extracted images is not a requirement of the NIMAS. If they are included, it is best to refer to them
using <img> within the <imggroup> container.
caption ..................................... Describes a <table> or <img>. If used with <table> it must follow immediately after the <table> start tag. If used
with <imggroup> it is not so constrained.
For the most current usage guidelines, please refer to http://www.daisy.org/z3986/
1. The Optional Elements and Guidelines for
Use
Publishers are encouraged to apply markup
beyond the baseline (required) elements. The
complete DTBook Element Set reflects the
tags necessary to create the six types of
Digital Talking Books and Braille output.
Because of the present necessity to subdivide
the creation of alternate format materials into
distinct phases, the Panel determined that
baseline elements would be provided by
publishers, and optional elements would be
added to the NIMAS-conformant files by
third party conversion entities. In both
circumstances the protocols for tagging
digital files should conform to the most
current ANSI/NISO Z39.86 specification.
Content converters are directed to the most
current DAISY Structure Guidelines (
http://
www.daisy.org/z3986/
) for guidance on their
use.
Since the publication of the original
National File Format report from which the
NIMAS technical specifications were
derived, ANSI/NISO Z39.86–2002 was
updated and is now ANSI/NISO Z39.86–
2005. It may be best to avoid using the
following optional elements which are no
longer included in ANSI/NISO Z39.86–2005:
style, notice, hr, and levelhd.
Also, the following new elements were
introduced by ANSI/NISO Z39.86–2005 and
should be considered optional elements for
the NIMAS: bridgehead, byline, covertitle,
dateline, epigraph, linegroup, and poem.
Please refer to ANSI/NISO Z39.86–2005 for
additional information regarding these
elements. To access the ANSI/NISO Z39.86–
2005 specification, go to
http://
www.daisy.org/z3986/.
2. Package File
A package file describes a publication. It
identifies all other files in the publication
and provides descriptive and access
information about them. A publication must
include a package file conforming to the
NIMAS. The package file is based on the
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Open eBook Publication Structure 1.2
package file specification (For most recent
detail please see
http://www.openebook.org/
oebps/oebps1.2/download/oeb12-
xhtml.htm#sec2
). A NIMAS package file
must be an XML-valid OeB PS 1.2 package
file instance and must meet the following
additional standards:
The NIMAS Package File must include the
following Dublin Core (dc:)metadata:
dc:Title.
dc:Creator (if applicable).
dc:Publisher.
dc:Date (Date of NIMAS-compliant file
creation—yyyy-mm-dd).
dc:Format (=‘‘NIMAS 1.0’’).
dc:Identifier (a unique identifier for the
NIMAS-compliant digital publication, e.g.,
print ISBN + ‘‘-NIMAS’’—exact format to
be determined).
dc:Language (one instance, or multiple in the
case of a foreign language textbook, etc.).
dc:Rights (details to be determined).
dc:Source (ISBN of print version of textbook).
And the following x-metadata items:
nimas-SourceEdition (the edition of the print
textbook).
nimas-SourceDate (date of publication of the
print textbook).
The following metadata were proposed
also as a means of facilitating recordkeeping,
storage and file retrieval:
dc:Subject (Lang Arts, Soc Studies, etc.).
nimas-grade (specific grade level of the print
textbook,
e.g.
; Grade 6).
nimas gradeRange (specific grade range of the
print textbook,
e.g.
; Grades 4–5).
An additional suggestion references the use
of:
dc:audience:educationLevel (for the grade
and gradeRange identifiers, noting that
Dublin Core recommends using
educationLevel with an appropriate
controlled vocabulary for context, and
recommends the U.S. Department of
Education’s Level of Education vocabulary
online at
http://www.ed.gov/admin/
reference/index.jsp.
Using educationLevel
obviates the need for a separate field for
gradeRange since dc elements can repeat
more than once. A book used in more than
one grade would therefore have two
elements, one with value ‘‘Grade 4’’ and
another with value ‘‘Grade 5.’’
A final determination as to which of these
specific metadata elements to use needs to be
clarified in practice. The package manifest
must list all provided files (text, images, etc.).
(
Note:
For purposes of continuity and to
minimize errors in transformation and
processing, the NIMAS-compliant digital text
should be provided as a single document.)
3. Modular Extensions
The most current DAISY/NISO standard,
formally the
ANSI/NISO Z39.86,
Specifications for the Digital Talking Book
defines a comprehensive system for creating
Digital Talking Books. A part of this standard
is DTBook, an XML vocabulary that provides
a core set of elements needed to produce
most types of books. However, DTBook is not
intended to be an exhaustive vocabulary for
all types of books.
Guidelines for the correct approach to
extend the DAISY/NISO standard have been
established. Mathematics, video support,
testing, workbooks, music, dictionaries,
chemistry, and searching are some of the
extensions that have been discussed. Visit
http://www.daisy.org/z3986/
to learn more
about modular extensions.
End
Appendix D to Part 300—Maintenance of
Effort and Early Intervening Services
LEAs that seek to reduce their local
maintenance of effort in accordance with
§ 300.205(d) and use some of their Part B
funds for early intervening services under
§ 300.226 must do so with caution because
the local maintenance of effort reduction
provision and the authority to use Part B
funds for early intervening services are
interconnected. The decisions that an LEA
makes about the amount of funds that it uses
for one purpose affect the amount that it may
use for the other. Below are examples that
illustrate how §§ 300.205(d) and 300.226(a)
affect one another.
Example 1:
In this example, the amount
that is 15 percent of the LEA’s total grant (see
§ 300.226(a)), which is the maximum amount
that the LEA may use for early intervening
services (EIS), is greater than the amount that
may be used for local maintenance of effort
(MOE) reduction (50 percent of the increase
in the LEA’s grant from the prior year’s grant)
(see § 300.205(a)).
Prior Year’s Allocation ..................
$900,000.
Current Year’s Allocation ..............
1,000,000.
Increase ...........................................
100,000.
Maximum Available for MOE Re-
duction ........................................
50,000.
Maximum Available for EIS ..........
150,000.
If the LEA chooses to set aside $150,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $150,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $100,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $100,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $50,000 for
EIS, it may not reduce its MOE (MOE
maximum $50,000 less $50,000 for EIS
means $0 can be used for MOE).
If the LEA chooses to set aside $30,000 for
EIS, it may reduce its MOE by $20,000 (MOE
maximum $50,000 less $30,000 for EIS
means $20,000 can be used for MOE).
If the LEA chooses to set aside $0 for EIS,
it may reduce its MOE by $50,000 (MOE
maximum $50,000 less $0 for EIS means
$50,000 can be used for MOE).
Example 2:
In this example, the amount
that is 15 percent of the LEA’s total grant (see
§ 300.226(a)), which is the maximum amount
that the LEA may use for EIS, is less than the
amount that may be used for MOE reduction
(50 percent of the increase in the LEA’s grant
from the prior year’s grant) (see § 300.205(a)).
Prior Year’s Allocation ..................
$1,000,000.
Current Year’s Allocation ..............
2,000,000.
Increase ...........................................
1,000,000.
Maximum Available for MOE Re-
duction ........................................
500,000.
Maximum Available for EIS ..........
300,000.
If the LEA chooses to use no funds for
MOE, it may set aside $300,000 for EIS (EIS
maximum $300,000 less $0 means $300,000
for EIS).
If the LEA chooses to use $100,000 for
MOE, it may set aside $200,000 for EIS (EIS
maximum $300,000 less $100,000 means
$200,000 for EIS).
If the LEA chooses to use $150,000 for
MOE, it may set aside $150,000 for EIS (EIS
maximum $300,000 less $150,000 means
$150,000 for EIS).
If the LEA chooses to use $300,000 for
MOE, it may not set aside anything for EIS
(EIS maximum $300,000 less $300,000 means
$0 for EIS).
If the LEA chooses to use $500,000 for
MOE, it may not set aside anything for EIS
(EIS maximum $300,000 less $500,000 means
$0 for EIS).
Appendix E to Part 300—Index for
IDEA—Part B Regulations (34 CFR Part
300)
ACCESS TO
•
Access rights (Parents) ............................................................................................................................................... 300.613.
•
Assistive technology devices in child’s home ......................................................................................................... 300.105(b).
•
Disciplinary records ................................................................................................................................................... 300.229.
•
Education records (Procedural safeguards notice) ................................................................................................... 300.504(c)(4).
•
General curriculum (Ensure access to) ..................................................................................................................... 300.39(b)(3)(ii).
•
Instructional materials (see §§ 300.172, 300.210).
•
List of employees who may have access to records ................................................................................................ 300.623(d).
•
Parent’s private insurance proceeds ......................................................................................................................... 300.154(e).
•
Record of access (Confidentiality) ............................................................................................................................ 300.614.
ACCESSIBILITY STANDARDS (Regarding construction)
•
Americans with Disabilities Accessibility Standards for Buildings and Facilities ............................................... 300.718(b)(1).
•
Uniform Federal Accessibility Standards ................................................................................................................ 300.718(b)(2).
ACCOMMODATIONS
•
In assessments ............................................................................................................................................................ 300.320(a)(6)(i).
•
State level activities in support of ............................................................................................................................ 300.704(b)(4)(x).
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ACT (Definition) ............................................................................................................................................................ 300.4.
ADD AND ADHD (See ‘‘Attention deficit disorder’’ and ‘‘Attention deficit hyperactivity disorder’’)
ADDITIONAL DISCLOSURE OF INFORMATION REQUIREMENT .......................................................................... 300.512(b).
ADULT CORRECTIONAL FACILITIES (See ‘‘Correctional facilities’’)
ADULT PRISONS (Children with disabilities in)
•
Divided State agency responsibility ......................................................................................................................... 300.607.
•
FAPE requirements:
Æ
Exception to FAPE ............................................................................................................................................. 300.102(a)(2).
Æ
Modifications of IEP or placement .................................................................................................................... 300.324(d)(2).
Æ
Requirements that do not apply ........................................................................................................................ 300.324(d)(1).
•
Governor ..................................................................................................................................................................... 300.149(d).
•
Other public agency responsibility ........................................................................................................................... 300.149(d).
ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Child with a disability,’’ § 300.8(c)(1)(i), (c)(3),
(c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii), (c)(11), (c)(12))
ADVISORY BOARD
(Secretary of the Interior) .............................................................................................................................................. 300.714.
ADVISORY PANEL (See ‘‘State advisory panel’’)
AGE–APPROPRIATE CLASSROOM ............................................................................................................................. 300.116(e).
ALLOCATION(S)
•
By-pass for private school children (see § 300.191(d)).
•
To LEAs (see §§ 300.705(b), 300.816)
•
To Outlying areas ....................................................................................................................................................... 300.701(a).
•
To Secretary of the Interior ....................................................................................................................................... 300.707.
•
To States (see §§ 300.703, 300.807 through 300.810).
ALLOWABLE COSTS
(By SEA for State administration) ................................................................................................................................ 300.704(a).
ALTERATION OF FACILITIES ..................................................................................................................................... 300.718(b).
ALTERNATE ASSESSMENTS
•
Aligned with alternate achievement standards ........................................................................................................ 300.320(a)(2)(ii).
•
Development and provision of in accordance with ESEA ...................................................................................... 300.704(b)(4)(x).
•
Participation determined by IEP Team .................................................................................................................... 300.320(a)(6)(ii).
ALTERNATIVE PLACEMENTS (Continuum) .............................................................................................................. 300.115.
ALTERNATIVE STRATEGIES to meet transition objectives ...................................................................................... 300.324(c)(1).
AMENDMENTS
•
To LEA policies and procedures .............................................................................................................................. 300.220(b).
•
To State policies and procedures:
Æ
Made by State ..................................................................................................................................................... 300.176(b).
Æ
Required by the Secretary .................................................................................................................................. 300.176(c).
ANNUAL GOALS (IEPs)
•
FAPE for children suspended or expelled (see §§ 300.101(a), 300.530(d))
•
IEP content:
Æ
How progress will be measured ........................................................................................................................ 300.320(a)(3).
Æ
Special education and related services ............................................................................................................. 300.320(a)(4).
Æ
Statement of measurable annual goals .............................................................................................................. 300.320(a)(2)(i).
•
Review and revision of IEP ....................................................................................................................................... 300.324(b)(1).
•
Review of existing evaluation data ........................................................................................................................... 300.305(a).
ANNUAL REPORT
Of children served (see §§ 300.640 through 300.646)
On education of Indian children .................................................................................................................................. 300.715.
APPENDICES TO PART 300 (A through E)
Excess Costs Calculation (see Appendix A)
Proportionate Share Calculation (see Appendix B)
National Instructional Materials Accessibility Standard (NIMAS) (see Appendix C)
Maintenance of Effort and Early Intervening Services (see Appendix D)
Index for IDEA—Part B Regulations (This Appendix E)
APPLICABILITY OF THIS PART to State, local, and private agencies ..................................................................... 300.2.
APPLICATION
•
Initial admission to public school ............................................................................................................................ 300.518(b).
•
Initial services ............................................................................................................................................................ 300.518(c).
ASSESSMENT(S)
•
For specific learning disability (see § 300.309(a)(2)(ii), (b)(2))
•
Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i))
•
In evaluation (see §§ 300.304(b), (c), 300.305(a)(1)(ii), (c), (d))
•
Of leisure function (in ‘‘Recreation’’) ....................................................................................................................... 300.34(c)(11)(i).
ASSESSMENTS—STATE and DISTRICT-WIDE
Alternate assessments (see § 300.320 (a)(2)(ii), (a)(6)(ii))
Performance indicators .................................................................................................................................................. 300.157.
ASSISTANCE UNDER OTHER FEDERAL PROGRAMS ............................................................................................. 300.186.
ASSISTIVE TECHNOLOGY (AT)
•
AT devices .................................................................................................................................................................. 300.5.
•
AT services ................................................................................................................................................................. 300.6.
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•
Consideration of special factors ................................................................................................................................ 300.324(a)(2)(v).
•
Hearing aids ............................................................................................................................................................... 300.113.
•
Requirement:
Æ
Ensure availability of ......................................................................................................................................... 300.105(a).
Æ
Use of AT in child’s home ................................................................................................................................. 300.105(b).
•
Surgically implanted medical devices (see §§ 300.5, 300.34(b), 300.113(b))
ASTHMA ........................................................................................................................................................................ 300.8(c)(9).
ATTENTION DEFICIT DISORDER (ADD) .................................................................................................................... 300.8(c)(9).
ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD) .................................................................................. 300.8(c)(9).
ATTORNEYS’ FEES ....................................................................................................................................................... 300.517.
•
Award of fees ............................................................................................................................................................. 300.517(c).
•
Prohibition on use of funds for ................................................................................................................................. 300.517(b).
•
When court reduces fee awards ................................................................................................................................ 300.517(c)(4).
AUDIOLOGY .................................................................................................................................................................. 300.34(c)(1).
AUTHORITY (A–O)
•
Of guardian ................................................................................................................................................................. 300.30(a)(3).
•
Of hearing officer (Discipline) .................................................................................................................................. 300.532(b).
•
Of school personnel (Discipline) .............................................................................................................................. 300.530.
•
Of Secretary to monitor and enforce ........................................................................................................................ 300.609.
AUTHORITY (P–Z)
•
Parental authority to inspect and review records .................................................................................................... 300.613.
•
State complaint procedures ....................................................................................................................................... 300.151(b).
•
Waiver request (Signed by person with authority) .................................................................................................. 300.164(c)(1).
AUTISM ......................................................................................................................................................................... 300.8(c)(1).
AVERAGE PER-PUPIL EXPENDITURE
(Definition) ..................................................................................................................................................................... 300.717(d).
BASE PAYMENTS (to LEAs) (See § 300.705(b)(1), (b)(2))
BASIS OF KNOWLEDGE: Protection for children not yet eligible ............................................................................ 300.534(b).
BEHAVIORAL ASSESSMENT (See ‘‘Functional behavioral assessment’’)
BEHAVIORAL INTERVENTION(S) .............................................................................................................................. 300.530(f).
•
Assist in developing .................................................................................................................................................. 300.34(c)(10)(vi).
•
Behavioral intervention plan .................................................................................................................................... 300.530(f).
•
Consideration of by IEP Team .................................................................................................................................. 300.324(a)(2)(i).
•
Not a manifestation of disability .............................................................................................................................. 300.530(d).
•
Regular education teacher (Determination of) ......................................................................................................... 300.324(a)(3).
•
Suspension and expulsion rates ............................................................................................................................... 300.170(b).
BENCHMARKS OR SHORT TERM OBJECTIVES ........................................................................................................ 300.320(a)(2)(ii).
BENEFITS TO NONDISABLED (Permissive use of funds) ......................................................................................... 300.208(a)(1).
BIA (See ‘‘Bureau of Indian Affairs’’)
BLIND(NESS): Under ‘‘Visual impairment’’
•
Access to instructional materials (see §§ 300.172, 300.210(b)(3))
•
Consideration of special factors by IEP Team .......................................................................................................... 300.324(a)(2).
•
Definition .................................................................................................................................................................... 300.8(c)(13).
BRAILLE (see §§ 300.29(b), 300.324(a)(2)(iii))
BUREAU OF INDIAN AFFAIRS (BIA)
•
BIA funded schools ................................................................................................................................................... 300.28(c).
•
In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(c).
•
See also §§ 300.21(c), 300.713(b), (d), 300.714
•
Use of funds ............................................................................................................................................................... 300.712(d).
BUSINESS DAY
•
Definition .................................................................................................................................................................... 300.11(b).
•
See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
BY-PASS: Private school children with disabilities (see §§ 300.190 through 300.198)
CALENDAR DAY
•
Definition .................................................................................................................................................................... 300.11(a).
•
See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
CERTIFICATION
•
Annual report of children served ............................................................................................................................. 300.643.
CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS ................................................................. 300.536.
CHARTER SCHOOLS
•
Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(ii).
•
Definition .................................................................................................................................................................... 300.7.
•
Exception: joint establishment of eligibility ............................................................................................................ 300.223(b).
•
In definition of ‘‘Elementary school’’ ....................................................................................................................... 300.13.
•
In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(2).
•
In definition of ‘‘Public agency’’ ............................................................................................................................... 300.33.
•
In definition of ‘‘Secondary school’’ ........................................................................................................................ 300.36.
•
State-level activities regarding charter schools ........................................................................................................ 300.704(b)(4)(ix).
•
Treatment of charter schools and their students ..................................................................................................... 300.209.
CHIEF EXECUTIVE OFFICER (CEO)
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•
Adult prisons (Assigned by Governor) ..................................................................................................................... 300.149(d).
•
Methods of ensuring services (see § 300.154(a), (c))
CHILD COUNT
•
Annual report of children served (see §§ 300.640 through 300.646)
•
Certification ................................................................................................................................................................ 300.643.
•
Criteria for .................................................................................................................................................................. 300.644.
•
Dates for count ........................................................................................................................................................... 300.641(a).
•
Indian children .......................................................................................................................................................... 300.712(b).
•
LEA records of private school children ................................................................................................................... 300.132(c).
•
Procedures for counting children served ................................................................................................................. 300.645(a).
CHILD FIND
•
Basic requirement ...................................................................................................................................................... 300.111(a).
•
Children advancing from grade to grade .................................................................................................................. 300.111(c)(1).
•
Developmental delay ................................................................................................................................................. 300.111(b).
•
Highly mobile children ............................................................................................................................................. 300.111(c)(2).
•
Homeless children ..................................................................................................................................................... 300.111(a)(1)(i).
•
Indian children aged 3 through 5 ............................................................................................................................. 300.712(d)(1).
•
Migrant children ........................................................................................................................................................ 300.111(c)(2).
•
Private school children .............................................................................................................................................. 300.131(b).
•
Protections for children not determined eligible ..................................................................................................... 300.534.
•
Secretaries of the Interior and Health and Human Services (Memo of agreement) .............................................. 300.708(i)(2).
CHILD WITH A DISABILITY (CWD)
•
Adversely affects educational performance (see § 300.8(c)(1)(i), (c)(3), (c)(4)(i), (c)(5), (c)(6), (c)(8), (c)(9)(ii),
(c)(11), (c)(12), (c)(13))
•
Children experiencing developmental delay(s) ....................................................................................................... 300.8(b)(1).
•
Children who need only a related service ............................................................................................................... 300.8(a)(2).
•
Definition .................................................................................................................................................................... 300.8(a)(1).
•
Individual disability terms (Defined) ....................................................................................................................... 300.8(c).
•
Requirement ............................................................................................................................................................... 300.111(b).
•
See ‘‘Developmental delay(s)’’
CHILD’S STATUS DURING PROCEEDINGS
•
Discipline (see §§ 300.530(f)(2), 300.533)
•
Pendency (Stay put) ................................................................................................................................................... 300.518.
CHILDREN ADVANCING FROM GRADE TO GRADE
•
Child find ................................................................................................................................................................... 300.111(c)(1).
•
FAPE ........................................................................................................................................................................... 300.101(c).
CHILDREN EXPERIENCING DEVELOPMENTAL DELAY(S) (See ‘‘Developmental delay(s)’’)
CHILDREN’S RIGHTS (Confidentiality) ....................................................................................................................... 300.625.
CIVIL ACTION—PROCEEDINGS .................................................................................................................................. 300.516.
•
Finality of review decision ....................................................................................................................................... 300.514(d).
•
Mediation ................................................................................................................................................................... 300.506(b)(6)(i).
•
Procedural safeguards notice .................................................................................................................................... 300.504(c)(12).
•
See ‘‘Court(s)’’
COCHLEAR IMPLANT (See ‘‘Surgically implanted medical device’’) ...................................................................... 300.34(b).
CODE OF CONDUCT
•
Case-by-case determination ....................................................................................................................................... 300.530(a).
•
Manifestation determination review ......................................................................................................................... 300.530(e).
•
Protections for children not determined eligible ..................................................................................................... 300.534(a).
COMMINGLING—PROHIBITION AGAINST ............................................................................................................... 300.162(b).
COMMUNITY-BASED WAIVERS (Public benefits or insurance) .............................................................................. 300.154(d)(2)(iii).
COMPLAINT(S): DUE PROCESS
•
Attorneys’ fees ............................................................................................................................................................ 300.517(a)(1).
•
Civil action ................................................................................................................................................................. 300.516(a).
•
Pendency .................................................................................................................................................................... 300.518(a).
•
Private school children (Complaints) ....................................................................................................................... 300.140(c).
•
See ‘‘Due process hearing(s) and reviews’’
COMPLAINT(S): STATE COMPLAINT PROCEDURES (A–P)
•
Adoption of State complaint procedures ................................................................................................................. 300.151(a).
•
Complaint investigations (SEA allocations for) ....................................................................................................... 300.704(b)(3)(i).
•
Filing a complaint ...................................................................................................................................................... 300.153(a).
•
Minimum State complaint procedures ..................................................................................................................... 300.152.
•
Private schools (State complaints) ............................................................................................................................ 300.140.
•
Procedural safeguards notice .................................................................................................................................... 300.504(c).
•
Provisions for services under by-pass ...................................................................................................................... 300.191(d).
•
Public agency failure to implement hearing decision ............................................................................................. 300.152(c)(3).
COMPLAINT(S): STATE COMPLAINT PROCEDURES (Q–Z)
•
See also §§ 300.151 through 300.153
•
Time limit ................................................................................................................................................................... 300.152(a).
•
Waiver of nonsupplanting requirement ................................................................................................................... 300.163(c)(2).
COMPLIANCE—COMPLY (A–M)
•
Child find requirements ............................................................................................................................................ 300.111(a).
•
Department procedures (If failure to comply) .......................................................................................................... 300.604(c).
•
FAPE requirement ...................................................................................................................................................... 300.101(a).
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•
LEA and State agency compliance ........................................................................................................................... 300.222(a).
•
LRE (State funding mechanism) ............................................................................................................................... 300.114(b).
•
Modifications of policies:.
Æ
Made by LEA or State agency ............................................................................................................................ 300.176(b).
Æ
Required by SEA ................................................................................................................................................ 300.220(c).
Æ
Required by Secretary ........................................................................................................................................ 300.176(c).
•
Monitoring (See ‘‘Monitor; Monitoring activities’’);
COMPLIANCE—COMPLY (N–Z)
•
Physical education ..................................................................................................................................................... 300.108.
•
Private school placement by parents ........................................................................................................................ 300.148(e).
•
Private school placements by public agencies:
Æ
IEP requirement .................................................................................................................................................. 300.325(c).
Æ
SEA (Monitor compliance) ................................................................................................................................ 300.147(a)
•
Public participation requirements ............................................................................................................................ 300.165.
•
SEA responsibility if LEA does not comply ............................................................................................................ 300.227(a).
•
State funding mechanism (LRE) ............................................................................................................................... 300.114(b).
•
COMPREHENSIVE EVALUATION ........................................................................................................................... 300.304(c)(6).
CONDITION OF ASSISTANCE
•
LEA eligibility ............................................................................................................................................................ 300.200.
•
State eligibility ........................................................................................................................................................... 300.100.
CONFIDENTIALITY (A–C)
•
Access rights .............................................................................................................................................................. 300.613.
•
Children’s rights ......................................................................................................................................................... 300.625.
•
Consent ....................................................................................................................................................................... 300.622.
CONFIDENTIALITY (D–E)
Definitions:
Æ
Destruction of information ................................................................................................................................. 300.611(a).
Æ
Education records ............................................................................................................................................... 300.611(b).
Æ
Participating agency ........................................................................................................................................... 300.611(c).
•
Department use of personally identifiable information .......................................................................................... 300.627.
•
Disciplinary information ........................................................................................................................................... 300.229.
•
Enforcement by SEA .................................................................................................................................................. 300.626.
CONFIDENTIALITY (F–Z)
•
Family Educational Rights and Privacy Act:
Æ
Children’s rights ................................................................................................................................................. 300.625.
Æ
Disciplinary records ........................................................................................................................................... 300.535(b)(2).
Æ
In definition of ‘‘Education records’’ ................................................................................................................ 300.611(b).
Æ
Notice to parents ................................................................................................................................................ 300.612(a)(3).
•
Fees ............................................................................................................................................................................. 300.617.
•
Hearing procedures .................................................................................................................................................... 300.621.
•
List of types and location of information ................................................................................................................. 300.616.
•
Notice to parents ........................................................................................................................................................ 300.612(a).
•
Opportunity for a hearing ......................................................................................................................................... 300.619.
•
Parental authority to inspect and review records .................................................................................................... 300.613(b).
•
Record of access ......................................................................................................................................................... 300.614.
•
Records on more than one child ............................................................................................................................... 300.615.
•
Result of hearing ........................................................................................................................................................ 300.620.
•
Safeguards .................................................................................................................................................................. 300.623.
•
State eligibility requirement ...................................................................................................................................... 300.123.
CONSENT (A–I)
•
Confidentiality (Records to non-agency officials) .................................................................................................... 300.622(a).
•
Definition .................................................................................................................................................................... 300.9.
•
IEP vs. IFSP ................................................................................................................................................................ 300.323(b)(2)(ii).
•
Initial evaluations ...................................................................................................................................................... 300.300(a).
•
Initial provision of services ....................................................................................................................................... 300.300(b).
CONSENT (J–Z)
•
Not required:
Æ
Before administering a test or other evaluation to all children ...................................................................... 300.300(d)(1)(ii).
Æ
Before reviewing existing data .......................................................................................................................... 300.300(d)(1)(i).
Æ
When screening for instructional purposes ...................................................................................................... 300.302.
•
Private insurance (Accessing) ................................................................................................................................... 300.154(e)(1).
•
Reasonable efforts to obtain consent:
Æ
For initial evaluation .......................................................................................................................................... 300.300(a)(1)(iii).
Æ
For initial evaluations for wards of the State ................................................................................................... 300.300(a)(2).
Æ
For initial provision of services ........................................................................................................................ 300.300(b)(2).
Æ
Reasonable efforts requirements ........................................................................................................................ 300.300(d)(5).
•
Reevaluations ............................................................................................................................................................. 300.300(c)(2).
•
Release of information from education records ....................................................................................................... 300.622
CONSIDERATION OF SPECIAL FACTORS (by IEP Team) ........................................................................................ 300.324(a)(2).
CONSISTENCY WITH STATE POLICIES: LEA ........................................................................................................... 300.201.
CONSTRUCTION
•
Accessibility standards .............................................................................................................................................. 300.718(b).
•
Exception to maintenance of effort (Termination of costly expenditures for construction) ................................. 300.204(d).
•
Private schools (No funds may be used for) ............................................................................................................ 300.144(e).
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CONSTRUCTION CLAUSES (A–I)
•
Child find (Nothing requires classifying children by disability) ............................................................................ 300.111(d).
•
Civil action (Exhaust administrative remedies under Part B before filing a civil action) .................................... 300.516(e).
•
Early intervening services ......................................................................................................................................... 300.226(c).
•
Funding mandated by State law ............................................................................................................................... 300.166.
•
Hearing: right of parent to appeal decision .............................................................................................................. 300.513(b).
•
Highly qualified SEA or LEA staff ............................................................................................................................ 300.156(e).
•
Highly qualified teacher ............................................................................................................................................ 300.18(f).
•
IEP (Inclusion of additional information beyond explicit requirements) .............................................................. 300.320(d)(1).
•
IEP (Information in more than one component not required) ................................................................................ 300.320(d)(2).
CONSTRUCTION CLAUSES (J–Z)
•
Prohibition on mandatory medication ..................................................................................................................... 300.174(b).
•
Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535(a).
•
Secretary’s authority to monitor enforcement under GEPA .................................................................................... 300.609.
•
State Medicaid agency (Nothing alters requirements imposed under Titles XIX or XXI or other public bene-
fits or insurance program).
300.154(h).
•
Transition service ...................................................................................................................................................... 300.324(c)(2).
CONSUMER PRICE INDEX For All Urban Consumers (regarding rate of inflation) (See §§ 300.702(b),
300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
CONTENT OF IEP ......................................................................................................................................................... 300.320(a).
CONTINUUM OF ALTERNATIVE PLACEMENTS (See ‘‘Least restrictive environment’’) ...................................... 300.115.
CONTROLLED SUBSTANCE (Definition) .................................................................................................................... 300.530(i)(1).
COORDINATION OF SERVICES
•
Methods of ensuring services .................................................................................................................................... 300.154(a).
•
Secretary of the Interior ............................................................................................................................................. 300.708(i)(1).
Æ
Advisory board (Service coordination within BIA) ......................................................................................... 300.714(b)(1).
Æ
Payments for children aged 3 through 5 ........................................................................................................... 300.712(a).
Æ
Plan for coordination of services ....................................................................................................................... 300.713.
•
See ‘‘Interagency agreements,’’ ‘‘Interagency coordination’’
•
State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(e).
•
Use of LEA funds for early intervening services ..................................................................................................... 300.208(a)(2).
•
Use of SEA allocations for transition ....................................................................................................................... 300.704(b)(4)(vi).
CO-PAY OR DEDUCTIBLE (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii).
CORE ACADEMIC SUBJECTS
•
Definition .................................................................................................................................................................... 300.10.
•
See ‘‘Highly qualified special education teachers’’ ................................................................................................. 300.18.
CORRECTIONAL FACILITIES
•
Applicability of this part to ...................................................................................................................................... 300.2(b)(1)(iv).
•
Divided State agency responsibility ......................................................................................................................... 300.607.
•
Exception to FAPE (Children in adult facilities) ..................................................................................................... 300.102(a)(2).
•
See also ‘‘Adult prisons’’
•
State advisory panel (Representatives on) ............................................................................................................... 300.168(a)(11).
•
State juvenile-adult correctional facilities ................................................................................................................ 300.2(b)(1)(iv).
•
Transfer of rights to children in ............................................................................................................................... 300.520(a)(2).
CORRECTIVE ACTION (PLAN)
•
Corrective actions to achieve compliance (see §§ 300.152(b)(2)(iii), 300.607)
•
Monitoring activities .................................................................................................................................................. 300.120(b)(2).
•
Needs intervention by Secretary ............................................................................................................................... 300.604(b)(2)(i).
•
State advisory panel (Advise SEA on) ..................................................................................................................... 300.169(d).
COUNSELING SERVICES (Definition) ......................................................................................................................... 300.34(c)(2).
COUNT (See ‘‘Child count’’)
COURT(S)
•
Attorneys’ fees ............................................................................................................................................................ 300.517.
•
Civil action ................................................................................................................................................................. 300.516.
•
Court order:
Æ
Exception to FAPE for certain ages ................................................................................................................... 300.102(a)(1).
•
Judicial review:
Æ
By-pass ................................................................................................................................................................ 300.197.
Æ
Department procedures ...................................................................................................................................... 300.184.
•
New interpretation of Act by courts requiring modification .................................................................................. 300.176(c)(2).
•
Reimbursement for private school placement (see § 300.148(b) through (e))
CRIME (See ‘‘Reporting a crime’’) ................................................................................................................................ 300.535.
CRITERIA (A–I)
•
Child count ................................................................................................................................................................. 300.644.
•
Child eligibility (Determinant factor) ....................................................................................................................... 300.306(b)(1).
•
IEP Team (Public agency representative) ................................................................................................................. 300.321(a)(4).
•
Independent educational evaluation ........................................................................................................................ 300.502.
CRITERIA (J–Z)
•
Specific learning disability (see §§ 300.307, 300.309)
•
Surrogate parents ....................................................................................................................................................... 300.519(d).
CURRENT PLACEMENT (Discipline)
•
Authority of hearing officer ...................................................................................................................................... 300.532(b).
•
Placement during appeals ......................................................................................................................................... 300.533.
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DATA (A–L)
•
Allocation of remaining funds to LEAs .................................................................................................................... 300.816(d).
•
Average per-pupil expenditure (Definition) ............................................................................................................. 300.717(d).
•
By-pass (Provision of services under) ...................................................................................................................... 300.191(c)(2).
•
Determination of needed evaluation data ................................................................................................................ 300.305(c).
•
Disaggregated data ..................................................................................................................................................... 300.704(b)(4)(xi).
•
Evaluation data:
Æ
Procedures for determining eligibility and placement .................................................................................... 300.306(c).
Æ
Review of existing data ...................................................................................................................................... 300.305(a)(1).
•
Grants to States most recent data ............................................................................................................................. 300.703(c)(1)(ii).
•
LRE (Placements—meaning of evaluation data ........................................................................................................ 300.116(a)(1).
DATA (M–Z)
•
Parental consent (Not required for reviewing existing evaluation data) ................................................................ 300.300(d)(1)(i).
•
State advisory council (Advise SEA on) .................................................................................................................. 300.169(c).
•
Suspension and expulsion rates ............................................................................................................................... 300.170(a).
DAY
•
Business day (Definition) .......................................................................................................................................... 300.11(b).
•
Day (Calendar) ............................................................................................................................................................ 300.11(a).
•
Discipline (See ‘‘Timelines—Discipline’’)
•
School day (Definition) ............................................................................................................................................. 300.11(c).
•
See ‘‘Timelines’’.
DECREASE IN ENROLLMENT (Exception to LEA maintenance of effort) ................................................................ 300.204(b).
DECREASE IN FUNDS (To States) ............................................................................................................................... 300.703(d).
DEDUCTIBLE OR CO-PAY (Public benefits or insurance) ......................................................................................... 300.154(d)(2)(ii).
DEFINITIONS (A–D)
•
Act ............................................................................................................................................................................... 300.4.
•
Assistive technology device ...................................................................................................................................... 300.5.
•
Assistive technology service ..................................................................................................................................... 300.6.
•
At no cost ................................................................................................................................................................... 300.39(b)(1).
•
Audiology ................................................................................................................................................................... 300.34(c)(1).
•
Autism ........................................................................................................................................................................ 300.8(c)(1).
•
Average per-pupil expenditure in public elementary and secondary schools in the United States .................... 300.717(d).
•
Business day ............................................................................................................................................................... 300.11(b).
•
Charter school ............................................................................................................................................................ 300.7.
•
Child with a disability ............................................................................................................................................... 300.8(a)(1).
•
Consent ....................................................................................................................................................................... 300.9.
•
Controlled substance ................................................................................................................................................. 300.530(i)(1).
•
Core academic subjects .............................................................................................................................................. 300.10.
•
Counseling services ................................................................................................................................................... 300.34(c)(2).
•
Day; business day; school day .................................................................................................................................. 300.11.
•
Deaf-blindness ............................................................................................................................................................ 300.8(c)(2).
•
Deafness ...................................................................................................................................................................... 300.8(c)(3).
•
Destruction (Of information) ..................................................................................................................................... 300.611(a).
•
Developmental delays(s) ............................................................................................................................................ 300.8(b).
DEFINITIONS (E–H)
•
Early identification and assessment ......................................................................................................................... 300.34(c)(3).
•
Education records ...................................................................................................................................................... 300.611(b).
•
Educational service agency ....................................................................................................................................... 300.12.
•
Elementary school ...................................................................................................................................................... 300.13.
•
Emotional disturbance ............................................................................................................................................... 300.8(c)(4).
•
Equipment .................................................................................................................................................................. 300.14.
•
Evaluation ................................................................................................................................................................... 300.15.
•
Excess costs ................................................................................................................................................................ 300.16.
•
Extended school year services .................................................................................................................................. 300.106(b).
•
Free appropriate public education ........................................................................................................................... 300.17.
•
Freely associated States ............................................................................................................................................. 300.717(a).
•
Hearing impairment ................................................................................................................................................... 300.8(c)(5).
•
Highly qualified special education teacher .............................................................................................................. 300.18(b).
•
Homeless children ..................................................................................................................................................... 300.19.
DEFINITIONS (I)
•
IEP Team .................................................................................................................................................................... 300.23.
•
Illegal drug ................................................................................................................................................................. 300.530(i)(2).
•
Include ........................................................................................................................................................................ 300.20.
•
Independent educational evaluation ........................................................................................................................ 300.502(a)(3)(i).
•
Indian .......................................................................................................................................................................... 300.21(a).
•
Indian tribe ................................................................................................................................................................. 300.21(b).
•
Individualized education program (IEP) .................................................................................................................. 300.22.
•
Individualized family service plan ........................................................................................................................... 300.24.
•
Infant or toddler with a disability ............................................................................................................................ 300.25.
•
Institution of higher education ................................................................................................................................. 300.26.
•
Interpreting services .................................................................................................................................................. 300.34(c)(4).
DEFINITIONS (J–O)
•
Limited English proficient (LEP) .............................................................................................................................. 300.27.
•
Local educational agency (LEA) ............................................................................................................................... 300.28.
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•
Medical services ......................................................................................................................................................... 300.34(c)(5).
•
Mental retardation ..................................................................................................................................................... 300.8(c)(6).
•
Multiple disabilities ................................................................................................................................................... 300.8(c)(7).
•
Native language .......................................................................................................................................................... 300.29(a).
•
Occupational therapy ................................................................................................................................................ 300.34(c)(6).
•
Orientation and mobility services ............................................................................................................................ 300.34(c)(7).
•
Orthopedic impairment ............................................................................................................................................. 300.8(c)(8).
•
Other health impairment ........................................................................................................................................... 300.8(c)(9).
•
Outlying areas ............................................................................................................................................................ 300.717(b).
DEFINITIONS (P–R)
•
Parent .......................................................................................................................................................................... 300.30(a).
•
Parent counseling and training ................................................................................................................................. 300.34(c)(8).
•
Parent training and information center .................................................................................................................... 300.31.
•
Parentally-placed private school children with disabilities ................................................................................... 300.130.
•
Participating agency (as used in ‘‘Confidentiality’’) ................................................................................................ 300.611(c).
•
Party or parties (Regarding procedures) ................................................................................................................... 300.181(a).
•
Personally identifiable ............................................................................................................................................... 300.32.
•
Physical education ..................................................................................................................................................... 300.39(b)(2).
•
Physical therapy ......................................................................................................................................................... 300.34(c)(9).
•
Psychological services ............................................................................................................................................... 300.34(c)(10).
•
Public agency ............................................................................................................................................................. 300.33.
•
Public expense ........................................................................................................................................................... 300.502(a)(3)(ii).
•
Recreation ................................................................................................................................................................... 300.34(c)(11).
•
Rehabilitation counseling services ........................................................................................................................... 300.34(c)(12).
•
Related services .......................................................................................................................................................... 300.34(a).
DEFINITIONS (S)
•
School day .................................................................................................................................................................. 300.11(c).
•
School health services ............................................................................................................................................... 300.34(c)(13).
•
School nurse services ................................................................................................................................................ 300.34(c)(13).
•
Scientifically based research ..................................................................................................................................... 300.35.
•
Secondary school ....................................................................................................................................................... 300.36.
•
Secretary ..................................................................................................................................................................... 300.38.
•
Serious bodily injury ................................................................................................................................................. 300.530(i)(3).
•
Services plan .............................................................................................................................................................. 300.37.
•
Social work services in schools ................................................................................................................................ 300.34(c)(14).
•
Special education ....................................................................................................................................................... 300.39(a).
•
Specially designed instruction .................................................................................................................................. 300.39(b)(3).
•
Specific learning disability ....................................................................................................................................... 300.8(c)(10).
•
Speech-language pathology services ......................................................................................................................... 300.34(c)(15).
•
Speech or language impairment ............................................................................................................................... 300.8(c)(11).
•
State ............................................................................................................................................................................ 300.40.
•
State (Special definition) ........................................................................................................................................... 300.717(c).
•
State educational agency (SEA) ................................................................................................................................ 300.41.
•
Supplementary aids and services ............................................................................................................................. 300.42.
DEFINITIONS (T–Z)
•
Transition services ..................................................................................................................................................... 300.43.
•
Transportation ............................................................................................................................................................ 300.34(c)(16).
•
Traumatic brain injury .............................................................................................................................................. 300.8(c)(12).
•
Travel training ............................................................................................................................................................ 300.38(b)(4).
•
Universal design ........................................................................................................................................................ 300.44.
•
Visual impairment including blindness ................................................................................................................... 300.8(c)(13).
•
Vocational education ................................................................................................................................................. 300.39(b)(5).
•
Ward of the State ....................................................................................................................................................... 300.45.
•
Weapon ....................................................................................................................................................................... 300.530(i)(4).
DEPARTMENT OF LABOR, Bureau of Labor Statistics (Regarding rate of inflation) (see §§ 300.702(b),
300.704(a)(2)(ii), (b)(2), 300.812(b)(2))
DEPARTMENT (U.S. Department of Education)
•
Enforcement: hearing procedures (see §§ 300.178 through 300.184)
•
Monitoring (Regarding Secretary of the Interior) ..................................................................................................... 300.708(a).
•
Personally identifiable information (Use of) ............................................................................................................ 300.627.
DESTRUCTION OF INFORMATION ............................................................................................................................ 300.624(b).
•
Definition .................................................................................................................................................................... 300.611(a).
DETERMINANT FACTOR for eligibility determination
•
Lack of instruction in reading or math (see § 300.306(b)(1)(i), (b)(1)(ii))
•
Limited English proficiency ...................................................................................................................................... 300.306(b)(1)(iii).
DEVELOPMENT, REVIEW, AND REVISION OF IEP .................................................................................................. 300.324.
DEVELOPMENTAL DELAY(S)
•
In definition of ‘‘Child with a disability’’ ................................................................................................................ 300.8(b).
•
Requirements for using ‘‘Developmental delay’’ ..................................................................................................... 300.111(b).
•
State definition ........................................................................................................................................................... 300.111(b).
•
Using specified disability categories ........................................................................................................................ 300.111(d).
DIABETES ...................................................................................................................................................................... 300.8(c)(9)(i).
DIRECT SERVICES
•
For children in private schools (see §§ 300.132(a); 300.133(a); 300.134(d)(1))
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•
Nature and location of services ................................................................................................................................ 300.227(b).
•
Payment by Secretary of the Interior ........................................................................................................................ 300.712(d).
•
SEA (Additional information) ................................................................................................................................... 300.175(a).
•
State-level activities ................................................................................................................................................... 300.704(b)(4)(i).
•
Use of LEA allocations for ........................................................................................................................................ 300.227(a).
DISABILITY: ADVERSELY AFFECTS EDUCATIONAL PERFORMANCE (See ‘‘Adversely affects educational
performance’’)
DISAGGREGATED DATA
•
Assessment results for subgroup of children with disabilities ............................................................................... 300.704(b)(4)(xi).
•
For suspension and expulsion by race and ethnicity .............................................................................................. 300.170(a).
DISCIPLINE (A–B)
•
Alternative educational setting (see §§ 300.530(d)(1), (d)(2), (d)(4), (g), 300.531, 300.533)
•
Appeal ........................................................................................................................................................................ 300.532(a).
•
Behavioral interventions—intervention plan ........................................................................................................... 300.530(f).
DISCIPLINE (C–H)
•
Change of placements for disciplinary removals ..................................................................................................... 300.536.
•
Child’s status during due process hearings .............................................................................................................. 300.518.
•
Determination of setting ............................................................................................................................................ 300.531.
•
Expedited due process hearings ............................................................................................................................... 300.532(c).
•
Functional behavioral assessment (see § 300.530(d)(1)(ii), (f)(1)(i)).
•
Hearing officer (authority of) (see §§ 300.532(b), 300.533).
DISCIPLINE (I–Z)
•
IEP Team (relevant members) (see §§ 300.530(e)(1), (f), 300.531).
•
Interim alternative educational setting (see §§ 300.530(b), (d)(2), (g), 300.531, 300.532(b)(2)(ii), 300.533).
•
Manifestation determination ..................................................................................................................................... 300.530(e).
•
Placement during appeals ......................................................................................................................................... 300.533.
•
Protections for children not determined eligible ..................................................................................................... 300.534.
•
Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535.
•
School personnel (Authority of) ............................................................................................................................... 300.530(b).
•
See ‘‘Timelines—Discipline’’.
DISCLOSURE
•
Additional disclosure of information requirement .................................................................................................. 300.512(b).
•
Consent required before disclosing:
Æ
Education records to public benefits or insurance agencies ........................................................................... 300.154(d)(2)(iv).
Æ
Personal information to non-agency officials ................................................................................................... 300.622(a).
•
Notice on disclosure of evaluation results ............................................................................................................... 300.504(c)(10).
•
Policies on disclosing information to 3rd parties .................................................................................................... 300.612(a)(3).
•
Prohibit evidence not disclosed ................................................................................................................................ 300.512(a)(3).
DISPROPORTIONALITY ............................................................................................................................................... 300.646.
DISPUTES
•
Interagency disputes (Methods of ensuring services):
Æ
Ensure services during pendency of dispute .................................................................................................... 300.154(a).
Æ
Procedures for resolving .................................................................................................................................... 300.154(a)(3).
•
Mediation (see also § 300.532(c)(3)) ......................................................................................................................... 300.506.
Æ
Attorneys’ fees for .............................................................................................................................................. 300.517(c)(2)(ii).
Æ
During discipline appeal process ...................................................................................................................... 300.532(c)(3).
Æ
During resolution process (see § 300.510(b)(3), (c)(3))
Æ
Enforcement of agreement (see §§ 300.506(b)(7), 300.510(d)(2), 300.537)
DIVIDED STATE AGENCY RESPONSIBILITY (Adult prisons) .................................................................................. 300.607.
DIVORCE—SEPARATION (Authority to review records) ........................................................................................... 300.613(c).
DROPOUT RATES (Performance indicators) ............................................................................................................... 300.157(a)(3).
DUE PROCESS HEARING(S) AND REVIEWS (A–E)
•
Agency responsible for conducting hearing ............................................................................................................. 300.511(b).
•
Appeal of decisions; impartial review ..................................................................................................................... 300.514(b).
•
Attorneys’ fees ............................................................................................................................................................ 300.517(a).
•
Basic requirements (see §§ 300.507 through 300.514)
•
Child’s status during proceedings (Pendency) ......................................................................................................... 300.518.
Æ
Parent request for hearing (Discipline) ............................................................................................................. 300.532(a).
•
Civil action ................................................................................................................................................................. 300.516(a).
•
Evaluations disclosed at least 5 business days before hearing ............................................................................... 300.512(a)(3).
•
Expedited due process hearings (Discipline) ........................................................................................................... 300.532(c).
DUE PROCESS HEARING(S) AND REVIEWS (F–I)
•
Failure to implement a due process hearing decision ............................................................................................ 300.152(c)(3).
•
Finality of decision; appeal; impartial review ......................................................................................................... 300.514.
•
Findings of fact and decisions (see § 300.512(a)(5), (c)(3)):
Æ
To State advisory panel (see §§ 300.513(d), 300.514(c))
•
Hearing rights ............................................................................................................................................................. 300.512(a).
•
Impartial hearing officer ............................................................................................................................................ 300.511(c).
Æ
See ‘‘Hearing officer(s)’’
DUE PROCESS HEARING(S) AND REVIEWS (J–Z)
•
Parental rights at hearings ......................................................................................................................................... 300.512(c).
•
Party notice to other party ........................................................................................................................................ 300.508(c).
Æ
Model form to assist parents ............................................................................................................................. 300.509.
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Party request for hearing (Discipline) ....................................................................................................................... 300.532(a).
•
Pendency (Stay put) ................................................................................................................................................... 300.518.
•
Prohibit evidence not introduced 5 business days before hearing ......................................................................... 300.512(a)(3).
•
Record of hearing ....................................................................................................................................................... 300.512(c)(3).
•
See ‘‘Civil action—proceedings,’’ ‘‘Court(s)’’ ‘‘Procedural safeguards,’’ ‘‘Timelines’’
•
Timelines and convenience of hearings—reviews (see §§ 300.506(b)(5), 300.511(e), 300.516(b))
EARLY IDENTIFICATION AND ASSESSMENT (Definition) ..................................................................................... 300.34(c)(3).
EARLY INTERVENING SERVICES ............................................................................................................................... 300.226.
•
Adjustment to local fiscal efforts .............................................................................................................................. 300.205(d).
•
Do not limit/create right to FAPE ............................................................................................................................. 300.226(c).
•
For children not currently identified as needing special education or related services ...................................... 300.226(a).
•
Permissive use of funds ............................................................................................................................................. 300.208(a)(2).
•
Scientifically based literacy instruction ................................................................................................................... 300.226(b).
•
Use of funds:
Æ
By LEA ................................................................................................................................................................ 300.226(a).
Æ
By Secretary of the Interior ................................................................................................................................ 300.711.
EDUCATION RECORDS (Definition) ............................................................................................................................ 300.611(b).
EDUCATIONAL PLACEMENTS (LRE) ......................................................................................................................... 300.114.
EDUCATIONAL SERVICE AGENCY (ESA)
•
Definition .................................................................................................................................................................... 300.12.
•
In definition of ‘‘LEA’’ ............................................................................................................................................... 300.28(b)(1).
•
Joint establishment of eligibility (Regarding ESAs) ................................................................................................. 300.224(b).
Æ
Additional requirements (Regarding LRE) ........................................................................................................ 300.224(c).
ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965 (ESEA)
•
Coordination of early intervening services .............................................................................................................. 300.226(e).
•
Excess cost requirement ............................................................................................................................................ 300.202(b).
•
Schoolwide programs ................................................................................................................................................ 300.206(a).
ELIGIBILITY (CHILD—STUDENT) (A–G)
•
Additional eligibility requirements (see §§ 300.121 through 300.124, 300.307 through 300.311)
•
Children with disabilities in adult prisons .............................................................................................................. 300.324(d).
•
Children with specific learning disabilities (Documentation of eligibility determination) .................................. 300.311(a).
•
Determinant factor for ............................................................................................................................................... 300.306(b)(1).
•
Determination of eligibility ....................................................................................................................................... 300.306.
•
Developmental delay (Non-use of term by LEA if not adopted by State) .............................................................. 300.111(b)(iv).
•
Documentation of eligibility (To parent) .................................................................................................................. 300.306(a)(2).
•
Graduation with regular diploma: termination (see §§ 300.102(a)(3), 300.305(e)(2)).
ELIGIBILITY (CHILD—STUDENT) (H–Z)
•
Lack of instruction in reading or math .................................................................................................................... 300.306(b).
•
Limited English proficiency ...................................................................................................................................... 300.306(b).
•
Public benefits or insurance (Risk loss of eligibility) .............................................................................................. § 300.154(d)(2) (iii).
•
Termination of eligibility (see §§ 300.204(c), 300.305(e)(2))
•
Transfer of rights (Special rule) ................................................................................................................................ 300.520(b).
ELIGIBILITY (PUBLIC AGENCIES)
•
Hearings related to (See ‘‘Hearings—Hearing procedures’’)
•
Joint establishment of (see §§ 300.202(b)(3), 300.223(a), 300.224(a))
•
LEA (See ‘‘LEA eligibility’’) Secretary of the Interior ............................................................................................. 300.712(e).
•
State (See ‘‘State eligibility’’)
•
State agency eligibility .............................................................................................................................................. 300.228.
Æ
See ‘‘State agencies’’
EMOTIONAL DISTURBANCE (Definition) .................................................................................................................. 300.8(c)(4).
ENFORCEMENT
•
Department procedures (see §§ 300.600, 300.604, 300.605)
•
Referral to law enforcement authorities ................................................................................................................... 300.535.
•
State policies and procedures:
Æ
Enforcement mechanisms .................................................................................................................................. 300.537.
Æ
LEA not meeting requirements .......................................................................................................................... 300.608.
Æ
Regarding confidentiality ................................................................................................................................... 300.626.
EPILEPSY ....................................................................................................................................................................... 300.8(c)(9)(i).
EQUIPMENT
•
Acquisition of ............................................................................................................................................................. 300.718(a).
•
Definition .................................................................................................................................................................... 300.14.
•
Exception to maintenance of effort ........................................................................................................................... 300.204(d).
•
Placement in private school ...................................................................................................................................... 300.144.
EVALUATION (A–G)
•
Assessments in (see §§ 300.304(b), (c) 300.305(c)).
•
Basic requirements (see §§ 300.301, 300.303, 00.324)
•
Comprehensive (Identify all special education needs) ............................................................................................ 300.304(c)(6).
•
Definition of ............................................................................................................................................................... 300.15.
•
Evaluation procedures ............................................................................................................................................... 300.304.
•
Evaluation report to parents ...................................................................................................................................... 300.306(a)(2).
•
Existing evaluation data (Review of) ........................................................................................................................ 300.305(a)(1).
•
Graduation (Evaluation not required for) ................................................................................................................. 300.305(e)(2).
EVALUATION (H–Z)
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Independent educational evaluation (IEE) ............................................................................................................... 300.502.
•
Initial evaluation (see §§ 300.301, 300.305)
•
Observation in determining SLD .............................................................................................................................. 300.310.
•
Parent consent ............................................................................................................................................................ 300.300.
•
Parent right to evaluation at public expense ........................................................................................................... 300.502(b).
•
Reevaluation ............................................................................................................................................................... 300.303.
EXCEPTION
•
Charter schools exception (Joint eligibility) ............................................................................................................. 300.223(b).
•
For prior local policies and procedures ................................................................................................................... 300.220.
•
For prior State policies and procedures ................................................................................................................... 300.176(a).
•
To FAPE:
Æ
For certain ages .................................................................................................................................................. 300.102.
Æ
For graduating with a regular diploma ............................................................................................................. 300.102(a)(3)(i).
Æ
For children in adult prisons (see §§ 300.102(a)(2), 300.324(d)).
•
To maintenance of effort ........................................................................................................................................... 300.204.
•
To reimbursement for parental placement ............................................................................................................... 300.148(e).
EXCESS COSTS
•
Calculation of (see Appendix A—Excess Costs Calculation)
•
Definition .................................................................................................................................................................... 300.16.
•
Excess cost requirement ............................................................................................................................................ 300.202(b)
•
Joint establishment of eligibility ............................................................................................................................... 300.202(b)(3)
•
LEA requirement ........................................................................................................................................................ 300.202(b)
•
Limitation on use of Part B funds ............................................................................................................................ 300.202(b)
•
Meeting the excess cost requirement ........................................................................................................................ 300.202(b)(2)
•
See also §§ 300.163(a), 300.175(b), 300.202(a), 300.227(a)(2)(ii)
EXISTING EVALUATION DATA (Review of) ............................................................................................................. 300.305(a)(1).
EXPEDITED DUE PROCESS HEARINGS ..................................................................................................................... 300.532(c).
•
Authority of hearing officer ...................................................................................................................................... 300.532(b).
•
Party appeal (Hearing requested by parents) ........................................................................................................... 300.532(a).
EXPULSION (See ‘‘Suspension and expulsion’’)
EXTENDED SCHOOL YEAR SERVICES ...................................................................................................................... 300.106.
EXTRACURRICULAR
•
IEP content ................................................................................................................................................................. 300.320(a)(4)(ii).
•
In supplementary aids and services ......................................................................................................................... 300.42.
•
Nonacademic services ............................................................................................................................................... 300.107.
•
Nonacademic settings ................................................................................................................................................ 300.117.
FACILITIES
•
Alteration of ............................................................................................................................................................... 300.718.
•
Children in private schools or facilities (see §§ 300.130, 300.142(a), 300.144(b), (c), 300.147(c))
•
Construction of ........................................................................................................................................................... 300.718.
•
Physical education (In separate facilities) ................................................................................................................ 300.108(d).
•
Private schools and facilities .................................................................................................................................... 300.2(c).
•
See also ‘‘Correctional facilities’’
•
Termination of expenses for construction of ........................................................................................................... 300.204(d).
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) (See ‘‘Confidentiality’’)
FAPE (A–G)
•
Definition .................................................................................................................................................................... 300.17.
•
Documentation of exceptions .................................................................................................................................... 300.102(b).
•
Exception to FAPE:
Æ
For certain ages .................................................................................................................................................. 300.102(a).
Æ
For children receiving early intervention services .......................................................................................... 300.102(a)(4).
Æ
For children graduating with a regular diploma .............................................................................................. 300.102(a)(3).
Æ
For children in adult correctional facilities ..................................................................................................... 300.102(a)(2).
•
For children:
Æ
Advancing from grade to grade ......................................................................................................................... 300.101(c).
Æ
Beginning at age 3 .............................................................................................................................................. 300.101(b).
Æ
On Indian reservations ....................................................................................................................................... 300.707(c).
Æ
Suspended or expelled from school .................................................................................................................. 300.101(a).
•
General requirement .................................................................................................................................................. 300.101(a).
FAPE (H–Z)
•
Methods and payments ............................................................................................................................................. 300.103.
•
Private school children with disabilities:
Æ
Placed by parents when FAPE is at issue ......................................................................................................... 300.148.
Æ
Placed in or referred by public agencies (see §§ 300.145 through 300.147)
•
Reallocation of LEA funds (FAPE adequately provided) ........................................................................................ 300.705(c).
•
Services (and placement) for FAPE:
Æ
Based on child’s needs (Not disability category) ............................................................................................. 300.304(c)(6).
•
State eligibility condition .......................................................................................................................................... 300.100.
FAS (Freely associated States) ...................................................................................................................................... 300.717(a).
FAX (FACSIMILE TRANSMISSION)
•
Department procedures (see §§ 300.183, 300.196(a) through (e))
FERPA (Family Educational Rights and Privacy Act) (See ‘‘Confidentiality’’)
FILING A CLAIM (Private insurance) .......................................................................................................................... 300.154(e).
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FILING A COMPLAINT (State complaint procedures) ............................................................................................... 300.153.
FILING REQUIREMENTS
•
By-pass (Regarding private school children) ........................................................................................................... 300.196.
•
Department procedures ............................................................................................................................................. 300.183.
•
See §§ 300.178 through 300.186.
FINALITY OF DECISION .............................................................................................................................................. 300.514.
FORMULA
•
Allocations to LEAs ................................................................................................................................................... 300.705(b).
•
Allocations to States .................................................................................................................................................. 300.703.
•
Allocation to States when by-pass is implemented ................................................................................................. 300.191.
•
Allocation to States regarding section 619 (see §§ 300.807, 300.810).
•
Parentally-placed private school children ............................................................................................................... 300.133.
•
SEA set aside funds ................................................................................................................................................... 300.704(b).
•
See also § 300.171(a).
FOSTER PARENT .......................................................................................................................................................... 300.30(a)(2).
•
See also § 300.45(b).
FREELY ASSOCIATED STATES AND OUTLYING AREAS
•
Funding for ................................................................................................................................................................. 300.701(a).
•
Purpose of grants ....................................................................................................................................................... 300.700(a).
FULL EDUCATIONAL OPPORTUNITY GOAL ........................................................................................................... 300.109.
FUNCTIONAL BEHAVIORAL ASSESSMENT (see § 300.530(d)(1)(ii), (f)(1)(i))
FUNDING MECHANISM: LRE ...................................................................................................................................... 300.114(b).
FUNDS (See ‘‘Use of funds’’)
GENERAL CURRICULUM
•
Discipline (Continue participating in) ...................................................................................................................... 300.530(d)(1)(i).
•
Evaluation procedures:
Æ
Be involved and progress in .............................................................................................................................. 300.304(b)(1)(ii).
Æ
Review of existing evaluation data ................................................................................................................... 300.305(a)(1).
•
IEPs:
Æ
Measurable annual goals .................................................................................................................................... 300.320(a)(2)(i).
Æ
Present levels of educational performance ....................................................................................................... 300.320(a)(1).
Æ
Review and revision of IEPs .............................................................................................................................. 300.324(b)(1)(ii).
Æ
Special education and related services ............................................................................................................. 300.320(a)(4)(ii).
•
IEP Team .................................................................................................................................................................... 300.321(a)(4)(ii).
•
Specially designed instruction (Definition) ............................................................................................................. 300.39(b)(3).
GOALS
Annual goals (See ‘‘IEP’’ and ‘‘Annual goals’’).
•
Performance goals and indicators ............................................................................................................................. 300.157.
Æ
State and local activities to meet ...................................................................................................................... 300.814(c).
Æ
Use of State-level funds to meet ........................................................................................................................ 300.704(b)(4)(x).
GOVERNOR (Adult prisons) ......................................................................................................................................... 300.149(d).
•
See also ‘‘Chief executive officer’’.
GRADUATION
•
Evaluation not required for ....................................................................................................................................... 300.305(e)(2).
•
Exception to FAPE ..................................................................................................................................................... 300.102(a)(3)(i).
•
Graduation rates as performance indicators ............................................................................................................. 300.157(a)(3).
•
Written prior notice required .................................................................................................................................... 300.102(a)(3)(iii).
GRANDPARENT OR STEPPARENT (In definition of ‘‘Parent’’) ................................................................................ 300.30(a)(4).
GRANTS
•
Grants to States: ......................................................................................................................................................... 300.700.
Æ
Maximum amount .............................................................................................................................................. 300.700(b).
Æ
Purpose of ........................................................................................................................................................... 300.700(a).
•
See ‘‘Subgrants’’.
GUARDIAN (In definition of ‘‘Parent’’) ....................................................................................................................... 300.30(a)(3).
GUARDIANSHIP, SEPARATION, AND DIVORCE (Regarding parent’s authority to review records) ..................... 300.613(c).
HEALTH AND HUMAN SERVICES (Secretary of) ...................................................................................................... 300.708(i)(1).
HEARING AIDS: Proper functioning of ....................................................................................................................... 300.113(a).
HEARING IMPAIRMENT
•
Definition .................................................................................................................................................................... 300.8(c)(5).
•
Related services, audiology ....................................................................................................................................... 300.34(c)(1).
HEARING OFFICER(S) (A–B)
•
Additional disclosure of information requirement .................................................................................................. 300.512(b).
•
Attorneys’ fees ............................................................................................................................................................ 300.517(c)(2)(i).
•
Authority of (Discipline) ........................................................................................................................................... 300.532(b).
Æ
Basis of decisions ............................................................................................................................................... 300.513(a).
HEARING OFFICER(S) (C–Z)
•
Change of placement:
Æ
Hearing officer decision agrees with parents ................................................................................................... 300.518(d).
Æ
Hearing officer may order .................................................................................................................................. 300.532(b)(2)(ii).
•
Expedited due process hearing (Discipline) ............................................................................................................. 300.532(c).
•
Impartial hearing officer ............................................................................................................................................ 300.511(c).
•
Parent appeal (Discipline) ......................................................................................................................................... 300.532(a).
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•
Placement during appeals ......................................................................................................................................... 300.533.
•
Private school placement when FAPE is at issue .................................................................................................... 300.148(b).
•
Reimbursement for private school placement by parents ....................................................................................... 300.148(c).
•
Requests for evaluations by ....................................................................................................................................... 300.502(d).
HEARING RIGHTS ........................................................................................................................................................ 300.512.
HEARINGS—HEARING PROCEDURES
•
Due process (See ‘‘Due process hearings’’).
•
Public hearings on policies and procedures ............................................................................................................ 300.165(a).
•
State and local eligibility:
Æ
LEA eligibility .................................................................................................................................................... 300.155.
Æ
Notification in case of LEA or State ineligibility ............................................................................................. 300.221.
Æ
State eligibility (Notice and hearing) (see §§ 300.178, 300.179, 300.181).
HEART CONDITION ..................................................................................................................................................... 300.8(c)(9)(i).
HEIGHTENED ALERTNESS TO ENVIRONMENTAL STIMULI (In ‘‘Other health impairment’’) ........................... 300.8(c)(9).
HIGH COST FUND (LEA) ............................................................................................................................................. 300.704(c).
HIGHLY MOBILE CHILDREN (e.g., homeless and migrant children) ....................................................................... 300.111(c)(2).
HIGHLY QUALIFIED TEACHER (A–Q)
•
Alternative route to certification .............................................................................................................................. 300.18(b)(2).
•
Definition of ............................................................................................................................................................... 300.18.
•
Private school teachers .............................................................................................................................................. 300.18(h).
HIGHLY QUALIFIED TEACHER (R–Z)
•
Requirements for in general ...................................................................................................................................... 300.18(b).
•
Requirements for teaching to alternate achievement standards ............................................................................. 300.18(c).
•
Requirements for teaching multiple subjects ........................................................................................................... 300.18(d).
•
Personnel qualifications ............................................................................................................................................ 300.156(c).
HIGH NEED CHILD ....................................................................................................................................................... 300.704(c)(3)(i).
HOMELESS CHILDREN
•
Child find ................................................................................................................................................................... 300.111(a)(1)(i).
•
Definition of ............................................................................................................................................................... 300.19.
•
McKinney-Vento Homeless Assistance Act (see §§ 300.19, 300.149(a)(3), 300.153(b)(4)(iii), 300.168(a)(5),
300.508(b)(4)).
•
Surrogate parents for ................................................................................................................................................. 300.519(a)(4).
HYPERACTIVITY (Attention deficit hyperactivity disorder) ..................................................................................... 300.8(c)(9)(i).
INAPPLICABILITY (Of requirements that prohibit commingling and supplanting of funds) ................................. 300.704(d).
IEE (See ‘‘Independent educational evaluation’’)
IEP (A–I)
•
Agency responsibilities for transition services ........................................................................................................ 300.324(c)(1).
•
Basic requirements (see §§ 300.320 through 300.324).
•
Child participation when considering transition ..................................................................................................... 300.321(b)(1).
•
Consideration of special factors ................................................................................................................................ 300.324(a)(2).
•
Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5).
•
Content of IEPs ........................................................................................................................................................... 300.320(a).
•
Definition (see §§ 300.22, 300.320).
•
Development, review, and revision of ...................................................................................................................... 300.324.
•
IEP or IFSP for children aged 3 through 5 ............................................................................................................... 300.323(b).
•
IEP Team .................................................................................................................................................................... 300.321.
IEP (J–Z)
•
Modifications of IEP or placement (FAPE for children in adult prisons) .............................................................. 300.324(d)(2)(i).
•
Modify/Amend without convening meeting (see § 300.324(a)(4), (a)(6)).
•
Parent participation ................................................................................................................................................... 300.322.
•
Alternative means ...................................................................................................................................................... 300.328.
•
Part C coordinator involvement ................................................................................................................................ 300.321(f).
•
Private school placements by public agencies ......................................................................................................... 300.325(a)(1).
•
Regular education teacher (See ‘‘IEP Team’’).
•
Review and revision of IEPs ..................................................................................................................................... 300.324(b).
•
SEA responsibility regarding private school ............................................................................................................ 300.325(c).
•
State eligibility requirement ...................................................................................................................................... 300.112.
•
Transition services ..................................................................................................................................................... 300.320(b).
•
When IEPs must be in effect ..................................................................................................................................... 300.323.
IEP TEAM ...................................................................................................................................................................... 300.321.
•
Alternative educational setting (Determined by) ..................................................................................................... 300.531.
•
Consideration of special factors ................................................................................................................................ 300.324(a)(2).
Æ
Assistive technology ........................................................................................................................................... 300.324(a)(2)(v).
Æ
Behavioral interventions .................................................................................................................................... 300.324(a)(2)(i).
Æ
Braille needs ....................................................................................................................................................... 300.324(a)(2)(iii).
Æ
Communication needs (Deafness and other needs) ......................................................................................... 300.324(a)(2)(iv).
Æ
Limited English proficiency .............................................................................................................................. 300.324(a)(2)(ii).
•
Determination of knowledge or special expertise .................................................................................................... 300.321(c).
•
Discipline procedures (see §§ 300.530(e), 300.531).
•
Manifestation determination ..................................................................................................................................... 300.530(e).
•
Other individuals who have knowledge or special expertise (At parent or agency discretion) .......................... 300.321(a)(6).
•
Participation by private school (public agency placement) .................................................................................... 300.325(a).
•
Regular education teacher (see §§ 300.321(a)(2), 300.324(a)(3)).
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IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN)
•
Definition .................................................................................................................................................................... 300.24.
•
Transition from Part C ............................................................................................................................................... 300.124.
•
IFSP vs. IEP ................................................................................................................................................................ 300.323(b).
ILLEGAL DRUG (Definition—discipline) ..................................................................................................................... 300.530(i)(2).
IMPARTIAL DUE PROCESS HEARING ....................................................................................................................... 300.511.
•
See ‘‘Due process hearings and reviews’’.
IMPARTIAL HEARING OFFICER ................................................................................................................................. 300.511(c).
IMPARTIALITY OF MEDIATOR .................................................................................................................................. 300.506(b)(1).
INCIDENTAL BENEFITS (Permissive use of funds) ................................................................................................... 300.208.
INCIDENTAL FEES (In definition of ‘‘at no cost’’ under ‘‘Special education’’) ....................................................... 300.39(b)(1).
INCLUDE (Definition) .................................................................................................................................................... 300.20.
INDEPENDENT EDUCATIONAL EVALUATION (IEE) ............................................................................................... 300.502.
•
Agency criteria (see § 300.502(a)(2), (b)(2)(ii), (c)(1), (e)).
•
Definition .................................................................................................................................................................... 300.502(a)(3)(i).
•
Parent-initiated evaluations ...................................................................................................................................... 300.502(c).
•
Parent right to ............................................................................................................................................................ 300.502(a)(1).
•
Procedural safeguards notice .................................................................................................................................... 300.504(c)(1).
•
Public expense (Definition under IEE) ..................................................................................................................... 300.502(a)(3)(ii).
•
Request by hearing officers ....................................................................................................................................... 300.502(d).
•
Use as evidence at hearing ........................................................................................................................................ 300.502(c)(2).
INDIAN; INDIAN CHILDREN
•
Child find for Indian children aged 3 through 5 ..................................................................................................... 300.712(d).
•
Definition of ‘‘Indian’’ ............................................................................................................................................... 300.21(a).
•
Definition of ‘‘Indian tribe’’ ...................................................................................................................................... 300.21(b).
•
Early intervening services ......................................................................................................................................... 300.711.
•
Payments and use of amounts for:
Æ
Education and services for children aged 3 through 5 .................................................................................... 300.712(a).
Æ
Education of Indian children ............................................................................................................................. 300.707.
•
Plan for coordination of services .............................................................................................................................. 300.713.
•
Submission of information by Secretary of Interior ................................................................................................ 300.708.
INDICATORS ................................................................................................................................................................. 300.157(b).
•
See ‘‘Performance goals and indicators’’.
INDIVIDUALIZED EDUCATION PROGRAM (See ‘‘IEP’’)
INDIVIDUALIZED FAMILY SERVICE PLAN (See ‘‘IFSP’’)
INFORMED CONSENT (See ‘‘Consent’’)
INITIAL EVALUATION ................................................................................................................................................. 300.301.
•
Consent before conducting ........................................................................................................................................ 300.300(a)(1)(i).
Æ
For ward of State ................................................................................................................................................ 300.300(a)(2).
Æ
Not construed as consent for initial placement ............................................................................................... 300.300(a)(1)(ii).
Æ
When not required ............................................................................................................................................. 300.300(a)(2).
•
Review of existing evaluation data ........................................................................................................................... 300.305(a).
INSTITUTION OF HIGHER EDUCATION
•
Definition .................................................................................................................................................................... 300.26.
INSTRUCTIONAL MATERIALS
•
Access to ..................................................................................................................................................................... 300.172.
•
Audio-visual materials .............................................................................................................................................. 300.14(b).
•
LEA purchase of ......................................................................................................................................................... 300.210.
•
NIMAC:
Æ
SEA coordination with ....................................................................................................................................... 300.172(c).
Æ
SEA rights and responsibilities if not coordinating ......................................................................................... 300.172(b).
INSURANCE
•
Community-based waivers (see § 300.154(d)(2)(iii)(D)).
•
Financial costs ........................................................................................................................................................... 300.154(f)(2).
•
Financial responsibility of LEA/SEA ....................................................................................................................... 300.154(a)(1).
•
Out-of-pocket expense ............................................................................................................................................... 300.154(d)(2)(ii).
•
Private insurance ....................................................................................................................................................... 300.154(e).
•
Public benefits or insurance ...................................................................................................................................... 300.154(d).
•
Risk of loss of eligibility (see § 300.154(d)(2)(iii)(D)).
INTERAGENCY AGREEMENTS
•
FAPE methods and payments (Joint agreements) .................................................................................................... 300.103(a).
•
LRE (Children in public/private institutions) .......................................................................................................... 300.114(a)(2)(i).
•
Methods of ensuring services .................................................................................................................................... 300.154(a).
•
SEA responsibility for general supervision .............................................................................................................. 300.149.
•
Secretary of Interior—with Health and Human Services Secretary ....................................................................... 300.708(i)(1).
Æ
Cooperative agreements (BIA and other agencies) ........................................................................................... 300.712(d).
INTERAGENCY COORDINATION (See ‘‘Coordination of services,’’ ‘‘Interagency agreements’’)
INTERAGENCY DISPUTES ........................................................................................................................................... 300.154(a)(3).
INTERAGENCY RESPONSIBILITIES (Transition services) ........................................................................................ 300.320(b).
INTERIM ALTERNATIVE EDUCATIONAL SETTING (See §§ 300.530(b), 300.531, 300.532(b)(2)(ii), 300.533)
INTERPRETING SERVICES
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•
As a related service .................................................................................................................................................... 300.34(a).
•
Definition .................................................................................................................................................................... 300.34(c)(4).
JOINT ESTABLISHMENT OF ELIGIBILITY (LEAs) .................................................................................................... 300.223.
•
See also §§ 300.202(b)(3), 300.224.
JUDICIAL
•
Authorities (Referral to) ............................................................................................................................................. 300.535.
•
Finding of unreasonableness ..................................................................................................................................... 300.148(d)(3).
•
Proceeding (During pendency) .................................................................................................................................. 300.518(a).
•
Review ........................................................................................................................................................................ 300.197.
•
See also:
Æ
Civil action (see §§ 300.504(c)(12), 300.514(d), 300.516).
Æ
Court(s) (see §§ 300.102(a)(1), 300.184, 300.148(c), (d)(3), 300.197, 300.516(a), (c), (d), 300.517(a), (c)).
JUVENILE-ADULT CORRECTIONS FACILITIES (See ‘‘Correctional facilities’’)
LAW ENFORCEMENT AND JUDICIAL AUTHORITIES
•
Referral to ................................................................................................................................................................... 300.535.
LEA (LOCAL EDUCATIONAL AGENCY) (A–C)
•
Allocations to LEAs ................................................................................................................................................... 300.705(b).
Æ
Reallocation of funds (If LEA is adequately providing FAPE) ........................................................................ 300.705(c).
•
Charter schools and LEAs (See ‘‘Charter schools’’).
•
Child count—LEAs:
Æ
Parentally-placed private school children with disabilities ............................................................................ 300.133(c).
Æ
Procedures for counting all children served (Annual report) ......................................................................... 300.645.
Æ
See also ‘‘Child count’’.
•
Child find—LEAs:
Æ
Parentally-placed private school children with disabilities ............................................................................ 300.131.
Æ
See also ‘‘Child find’’.
•
Compliance (LEA and State agency) ........................................................................................................................ 300.222.
•
Consistency of LEA policies with State policies ..................................................................................................... 300.201.
LEA (D–G)
•
Definition of LEA ....................................................................................................................................................... 300.28.
•
Developmental delay: Use of term by LEAs (see § 300.111(b)(2) through (b)(4)).
•
Direct services by SEA (If LEA is unable or unwilling to serve CWDs, etc.) ........................................................ 300.227.
•
Discipline and LEAs (See ‘‘Discipline’’).
•
Eligibility of LEA:
Æ
Condition of assistance (see §§ 300.200 through 300.213).
Æ
Exception for prior local plans. ......................................................................................................................... 300.220.
Æ
Ineligibility of LEA (Notice by SEA) ................................................................................................................. 300.221.
Æ
SEA hearings on LEA eligibility ........................................................................................................................ 300.155.
•
Excess cost requirement—LEA: ................................................................................................................................ 300.202(b).
Æ
Use of amounts for excess costs ........................................................................................................................ 300.202(a)(2).
Æ
See also ‘‘Excess costs’’.
LEA (H–L)
•
Hearings relating to LEA eligibility .......................................................................................................................... 300.155.
•
Information for SEA ................................................................................................................................................... 300.211.
•
Instructional materials (Purchase of) ........................................................................................................................ 300.210.
•
Joint establishment of eligibility (By two or more LEAs) ....................................................................................... 300.202(b)(3).
Æ
See also §§ 300.223, 300.224.
•
LEA and State agency compliance ........................................................................................................................... 300.222.
•
LEA policies (Modification of) .................................................................................................................................. 300.220(b).
Æ
See ‘‘LEA eligibility,’’ ‘‘Eligibility of LEA’’.
LEA (M–P)
•
Maintenance of effort regarding LEAs (See ‘‘Maintenance of effort’’).
•
Methods of ensuring services—LEAs (see § 300.154(a)(1) through (a)(4), (b)).
•
Migratory children with disabilities (Linkage with records under ESEA) ............................................................. 300.213.
•
Modification of policies by LEA ............................................................................................................................... 300.220(b).
•
Noncompliance of LEA (SEA determination) .......................................................................................................... 300.222(a).
•
Notice requirement (On LEA) ................................................................................................................................... 300.222(b).
•
Purchase of instructional materials .......................................................................................................................... 300.210.
•
Personnel shortages (Use of funds to assist LEAs in meeting) ............................................................................... 300.704(b)(4)(vii).
•
Public information (By LEA) ..................................................................................................................................... 300.212.
LEA (R–T)
•
Reallocation of LEA funds (If LEA is adequately providing FAPE) ....................................................................... 300.705(c).
•
Reimbursement of LEAs by other agencies (See ‘‘Methods of ensuring services,’’ § 300.154(a)(2) through
(a)(3), (b)(2)).
•
Review and revision of policies ................................................................................................................................ 300.170(b).
•
SEA reduction in payments to LEA ......................................................................................................................... 300.222(a).
•
SEA use of LEA allocations for direct services ........................................................................................................ 300.227.
•
Show cause hearing (By-pass requirement) ............................................................................................................. 300.194.
•
State-level nonsupplanting ........................................................................................................................................ 300.162(c).
•
Subgrants to LEAs ...................................................................................................................................................... 300.705(a).
•
Suspension and expulsion rates—LEAs ................................................................................................................... 300.170(a)(1).
•
Transition planning conferences (Part C to B) ......................................................................................................... 300.124(c).
LEA (U–Z)
•
Use of amounts (by LEA) .......................................................................................................................................... 300.202.
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(See ‘‘Permissive use of funds’’).
•
Use of SEA allocations (Regarding LEAs) ................................................................................................................ 300.704.
Æ
For capacity-building, etc. (see § 300.704(b)(4)(viii)).
Æ
To assist in meeting personnel shortages (see § 300.704(b)(4)(vii)).
LEA ELIGIBILITY (A–I)
•
Adjustment to local fiscal efforts in certain fiscal years ......................................................................................... 300.205.
•
Charter schools—public:
Æ
Rights of children with disabilities who attend public charter schools ......................................................... 300.209(a).
Æ
That are public schools of the LEA ................................................................................................................... 300.209(b).
Æ
That are LEAs ..................................................................................................................................................... 300.209(c).
Æ
That are not an LEA or a school that is part of an LEA .................................................................................. 300.209(d).
Æ
Treatment of charter schools and their students .............................................................................................. 300.209.
Æ
See also ‘‘Charter schools’’.
•
Condition of assistance .............................................................................................................................................. 300.200.
Æ
See §§ 300.201 through 300.213.
•
Consistency with State policies ................................................................................................................................ 300.201.
•
Information for SEA ................................................................................................................................................... 300.211.
LEA ELIGIBILITY (M–Z)
•
Maintenance of effort ................................................................................................................................................. 300.203.
Æ
Exception to ........................................................................................................................................................ 300.204.
•
Migratory children with disabilities—records regarding ........................................................................................ 300.213.
•
Permissive use of funds ............................................................................................................................................. 300.208.
Æ
Administrative case management ...................................................................................................................... 300.208(b).
Æ
Early intervening services .................................................................................................................................. 300.208(a)(2).
Æ
High cost special education and related services ............................................................................................ 300.208(a)(3).
Æ
Services and aids that also benefit nondisabled children ............................................................................... 300.208(a)(1).
•
Personnel development ............................................................................................................................................. 300.207.
•
Records regarding migratory children with disabilities .......................................................................................... 300.213.
•
State prohibition (If LEA is unable to establish/maintain programs of FAPE) ...................................................... 300.205(c).
•
Treatment of charter schools and their students ..................................................................................................... 300.209.
LEAD POISONING (Other health impairment) ........................................................................................................... 300.8(c)(9)(i).
LEAST RESTRICTIVE ENVIRONMENT (LRE)
•
Children in public or private institutions ................................................................................................................ 300.118.
•
Continuum of alternative placements ...................................................................................................................... 300.115.
•
Educational service agency (Additional requirement regarding LRE) .................................................................... 300.224(c).
•
Monitoring activities .................................................................................................................................................. 300.120.
•
Nonacademic settings ................................................................................................................................................ 300.117.
•
Placements ................................................................................................................................................................ 300.116.
•
State eligibility requirements .................................................................................................................................... 300.114.
•
Additional requirement: State funding mechanism ................................................................................................ 300.114(b).
•
Technical assistance and training ............................................................................................................................. 300.119.
LEISURE EDUCATION (Recreation) ............................................................................................................................. 300.34(c)(11)(iv).
LEP (See ‘‘Limited English proficient’’)
LEUKEMIA (Other health impairment) ........................................................................................................................ 300.8(c)(9)(i).
LIMITED ENGLISH PROFICIENT (LEP)
•
Definition of ............................................................................................................................................................... 300.27.
•
Determinant factor in eligibility determination ....................................................................................................... 300.306(b)(1)(iii).
•
In development, review, and revision of IEP ........................................................................................................... 300.324(a)(2)(ii).
•
In ‘‘native language’’ (Definition) ............................................................................................................................. 300.29(a).
•
Special rule—LEP not determinant factor ................................................................................................................ 300.306(b)(1)(iii).
LOCAL EDUCATIONAL AGENCY (See ‘‘LEA’’)
LRE (See ‘‘Least restrictive environment’’)
MAINTENANCE OF EFFORT (MOE–LEA) (A–R)
•
Amounts in excess (Reduce level) ............................................................................................................................ 300.205(a).
•
Exception to ............................................................................................................................................................... 300.204.
•
Maintenance of effort and early intervening services (see Appendix D).
•
Maintenance of effort—LEA ...................................................................................................................................... 300.203.
•
Non-reduction of (State enforcement) ...................................................................................................................... 300.608.
•
Public benefits or insurance proceeds are not MOE ............................................................................................... 300.154(g)(2).
Æ
See ‘‘Methods of ensuring services’’.
MAINTENANCE OF EFFORT (MOE–LEA) (S–Z)
•
SEA flexibility ............................................................................................................................................................ 300.230(a).
•
State enforcement (SEA must prohibit LEA from reducing MOE) ......................................................................... 300.608.
MAINTENANCE OF STATE FINANCIAL SUPPORT ................................................................................................. 300.163.
•
Reduction of funds for failure to maintain support ................................................................................................ 300.163(b).
•
Subsequent years (Regarding a waiver) .................................................................................................................... 300.163(d).
•
Waivers: Exceptional or uncontrollable circumstances ........................................................................................... 300.163(c).
MANIFESTATION DETERMINATION (See ‘‘Discipline’’) ......................................................................................... 300.530(e).
McKINNEY-VENTO HOMELESS ASSISTANCE ACT
•
In definition of ‘‘Homeless children’’ ....................................................................................................................... 300.19.
•
In filing a State complaint ......................................................................................................................................... 300.153(b)(4)(iii).
•
SEA responsibility for general supervision (Regarding homeless children) .......................................................... 300.149(a)(3).
•
State advisory panel (Membership) .......................................................................................................................... 300.168(a)(5).
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•
Surrogate parents (Homeless child’s rights protected ............................................................................................. 300.519(a)(4).
MEDIATION (A–O)
•
Benefits of (Meeting to explain) ................................................................................................................................ 300.506(b)(2)(ii).
•
Confidential discussions ........................................................................................................................................... 300.506(b)(6)(i).
•
Cost of (Borne by State) ............................................................................................................................................. 300.506(b)(4).
•
Disinterested party (To meet with parents and schools .......................................................................................... 300.506(b)(2).
•
Disputes (Resolve through mediation) ..................................................................................................................... 300.506(a).
•
Legally binding agreement ........................................................................................................................................ 300.506(b)(6).
•
Mediation procedures (By public agency to allow parties to resolve disputes) .................................................... 300.506(a).
•
Mediators:.
Æ
Impartiality of ..................................................................................................................................................... 300.506(c).
Æ
List of .................................................................................................................................................................. 300.506(b)(3)(i).
Æ
Qualified and impartial (see § 300.506(b)(1)(iii)).
•
Meeting to explain benefits of .................................................................................................................................. 300.506(b)(2)(ii).
•
Not used as evidence in hearing ............................................................................................................................... 300.506(b)(8).
•
Not used to deny/delay right to hearing .................................................................................................................. 300.506(b)(1)(ii),
•
Opportunity to meet .................................................................................................................................................. 30.506(b)(2).
MEDIATION (P–Z)
•
Parent training and information center .................................................................................................................... 300.506(b)(2)(i).
•
Procedural safeguards notice .................................................................................................................................... 300.504(c)(6).
•
Random selection of mediators ................................................................................................................................. 300.506(b)(3)(ii).
•
Use of SEA allocations to establish .......................................................................................................................... 300.704(b)(3)(ii).
•
Voluntary .................................................................................................................................................................... 300.506(b)(1)(i).
•
Written mediation agreement .................................................................................................................................... 300.506(b)(7).
MEDICAID
•
Children covered by public benefits or insurance ................................................................................................... 300.154(d)(1).
•
Construction (Nothing alters requirements imposed under Titles XIX or XXI) .................................................... 300.154(h).
•
Financial responsibility of each non-educational public agency (e.g., State Medicaid) ....................................... 300.154(a)(1).
•
LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8).
•
Medicaid reimbursement not disqualified because service in school context ...................................................... 300.154(b)(1)(ii).
•
Methods of ensuring services (see § 300.154(a)(1), (b)(1)(ii), (d), (g)(2), (h)).
•
Proceeds from public or private insurance .............................................................................................................. 300.154(g)(1).
•
Public agency may use Medicaid ............................................................................................................................. 300.154(a)(1).
•
State Medicaid, etc., must precede financial responsibility of LEA ...................................................................... 300.154(a)(1).
MEDICAL (A–L)
•
Assistance under other Federal programs ................................................................................................................ 300.186.
•
Assistive technology device (Does not include a surgically implanted medical device) ..................................... 300.5.
•
LEA high cost fund (Disbursements not medical assistance under State Medicaid) ............................................ 300.704(c)(8).
MEDICAL (M–Q)
•
Medical services in (‘‘Related services’’):
Æ
Audiology (Referral for) ..................................................................................................................................... 300.34(c)(1)(ii).
Æ
Definition of ........................................................................................................................................................ 300.34(c)(5).
Æ
For diagnostic purposes ..................................................................................................................................... 300.34(a).
Æ
Speech-language pathology (Referral for) ......................................................................................................... 300.34(c)(15)(iii).
•
Medical supplies, etc. (Memo of agreement between HHS and Interior) .............................................................. 300.708(i)(2).
•
Non-medical (Residential placement) ...................................................................................................................... 300.104.
MEDICAL (R–Z)
•
Referral for medical services:
Æ
Audiology ........................................................................................................................................................... 300.34(c)(1)(ii).
Æ
Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii).
•
Related services: Exception; surgically implanted devices (‘‘Cochlear implants’’) ............................................... 300.34(b).
•
Routine checking of hearing aids and other devices ............................................................................................... 300.113.
•
SLD: Educationally relevant medical findings, if any ............................................................................................. 300.311(a)(4).
MEDICATION
•
Prohibition on mandatory medication ..................................................................................................................... 300.174.
MEETING(S)
•
Alternative means of meeting participation ............................................................................................................. 300.328.
•
Consolidation of IEP Team meetings ........................................................................................................................ 300.324(a)(5).
•
Equitable services determined (Parentally-placed private school CWDs) .............................................................. 300.137.
•
IEP Team meetings (See ‘‘IEP’’).
•
Mediation (Opportunity to meet) .............................................................................................................................. 300.506(b)(2).
•
Opportunity to examine records; participation in IEP Team meetings .................................................................. 300.501.
•
Parent participation in meetings (see § 300.506(b)(2), (b)(4)).
•
Private school placements by public agencies ......................................................................................................... 300.325.
•
Reviewing and revising IEPs (Private school placements) ...................................................................................... 300.325(b).
•
Services plan for private school children (Meetings) .............................................................................................. 300.137(c)(1).
MENTAL RETARDATION (Definition) ........................................................................................................................ 300.8(c)(6).
METHODS OF ENSURING SERVICES ......................................................................................................................... 300.154.
MIGRANT CHILDREN
•
Child find ................................................................................................................................................................... 300.111(c)(2).
•
Records regarding migratory children (Linkage with ESEA) .................................................................................. 300.213.
MINIMUM STATE COMPLAINT PROCEDURES ........................................................................................................ 300.152.
•
See ‘‘Complaints,’’ ‘‘State complaint procedures’’.
MONITOR; MONITORING ACTIVITIES (A–N)
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Allowable costs for monitoring ................................................................................................................................. 300.704(b)(3)(i).
•
Children placed in private schools by public agencies ........................................................................................... 300.147(a).
•
Implementation by SEA ............................................................................................................................................ 300.147(a).
•
LRE (SEA monitoring activities) ............................................................................................................................... 300.120.
•
Monitoring activities (LRE) ....................................................................................................................................... 300.120.
•
Monitoring—Enforcement (Subpart F) ..................................................................................................................... 300.600.
Æ
Rule of construction (Use any authority under GEPA to monitor) ................................................................. 300.609.
Æ
Secretary’s review and determination regarding State performance .............................................................. 300.603(b)(1).
Æ
State exercise of general supervision ................................................................................................................ 300.600(d)(2).
Æ
State use of targets and reporting ...................................................................................................................... 300.602(a), (b)(1).
MONITOR; MONITORING ACTIVITIES (O–Z)
•
Outlying areas, etc. (see § 300.701(a)(1)(ii)).
•
Private school children: SEA monitoring ................................................................................................................. 300.147(a).
•
SEA responsibility for general supervision .............................................................................................................. 300.149(b).
•
Secretary of the Interior ............................................................................................................................................. 300.708.
•
State advisory panel functions (Advise SEA on corrective action plans) .............................................................. 300.169(d).
•
Use of SEA allocations for monitoring ..................................................................................................................... 300.704(b)(3)(i).
•
Waiver (State’s procedures for monitoring) ............................................................................................................. 300.164(c)(2)(ii)(B).
Æ
Summary of monitoring reports ........................................................................................................................ 300.164(c)(3).
MULTIPLE DISABILITIES (Definition) ........................................................................................................................ 300.8(c)(7).
NATIONAL INSTRUCTIONAL MATERIALS ACCESS CENTER (NIMAC) ............................................................... 300.172(e)(1)(ii).
NATIONAL INSTRUCTIONAL MATERIALS ACCESSIBILITY STANDARDS (NIMAS) ......................................... 300.172(e)(1)(iii).
•
See also Appendix C.
NATIVE LANGUAGE
•
Confidentiality (Notice to parents) ........................................................................................................................... 300.612(a)(1).
•
Definition .................................................................................................................................................................... 300.29.
•
Definition of ‘‘Consent’’ ............................................................................................................................................. 300.9.
•
Evaluation procedures (Tests in native language) ................................................................................................... 300.304(c)(1)(ii).
•
Notice to parents: Confidentiality (In native language) ........................................................................................... 300.612(a)(1).
•
Prior notice:
Æ
Notice in native language .................................................................................................................................. 300.503(c)(1)(ii).
Æ
Notice translated orally ...................................................................................................................................... 300.503(c)(2)(i).
Æ
Steps if not a written language .......................................................................................................................... 300.503(c)(2).
NATURE/LOCATION OF SERVICES (Direct services by SEA) .................................................................................. 300.227.
NEPHRITIS (In ‘‘Other health impairment’’) ............................................................................................................... 300.8(c)(9)(i).
NIMAC (See ‘‘National Instructional Materials Access Center’’)
NIMAS (See ‘‘National Instructional Materials Accessibility Standard’’)
NONACADEMIC
•
Activities: Participate in (IEP content) ..................................................................................................................... 300.320(a)(4)(ii).
•
Services and extracurricular activities (Equal opportunity to participate in) ....................................................... 300.107(a).
•
Settings ....................................................................................................................................................................... 300.117.
NONCOMMINGLING .................................................................................................................................................... 300.162(b).
NONDISABLED (Children; students) (A–P)
•
At no cost (In definition of ‘‘special education’’) .................................................................................................... 300.39(b)(1).
•
Disciplinary information ........................................................................................................................................... 300.229(a).
•
Excess cost requirement ............................................................................................................................................ 300.202(b).
•
IEP (definition) (see § 300.320(a)(1)(i), (a)(4)(iii), (a)(5)).
•
LRE (General requirement) ........................................................................................................................................ 300.114.
•
Nonacademic settings ................................................................................................................................................ 300.117.
•
Placement ................................................................................................................................................................... 300.116.
•
Program options ......................................................................................................................................................... 300.110.
NONDISABLED (Children; students) (R–Z)
•
Regular physical education ....................................................................................................................................... 300.108(b).
•
Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1).
•
Special education (Definition: In definition of ‘‘at no cost’’) ................................................................................. 300.39(b)(1).
•
Supplementary aids and services ............................................................................................................................. 300.42.
•
Suspension and expulsion rates ............................................................................................................................... 300.170(a)(2).
NONEDUCATIONAL (Public agency)
•
Medicaid service (May not be disqualified because in school context) ................................................................. 300.154(b)(1)(ii).
•
Methods of ensuring services (see § 300.154(a), (b))
•
Obligation of ............................................................................................................................................................... 300.154(b).
•
Reimbursement for services by ................................................................................................................................. 300.154(b)(2).
NON-MEDICAL CARE (Residential placement) .......................................................................................................... 300.104.
NONSUPPLANTING
•
Excess cost requirement (Regarding children aged 3 through 5 and 18 through 21) ............................................ 300.202(b)(1)(ii).
•
LEA nonsupplanting .................................................................................................................................................. 300.202(b)(1)(ii).
•
SEA flexibility ............................................................................................................................................................ 300.230(a).
•
State-level activities (Inapplicability of certain provisions) ................................................................................... 300.704(d).
•
State-level nonsupplanting ........................................................................................................................................ 300.162(c).
•
Waiver of requirement ............................................................................................................................................... 300.164.
NOTICES: By parents or parties
•
Attorneys’ fees: When court reduces fee award regarding due process request notice ........................................ 300.517(c)(4)(iv).
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•
Children enrolled by parents in private schools when FAPE is at issue ............................................................... 300.148(d)(1)(i).
•
Due process complaint (Notice before a hearing on a complaint) .......................................................................... 300.508(c).
•
Private school placement by parents (When FAPE is at issue) .............................................................................. 300.148(d)(1)(i).
NOTICES: Public agency (A–M)
•
By-pass (Judicial review) ........................................................................................................................................... 300.197.
•
Children’s rights (Transfer of rights) ........................................................................................................................ 300.625(c).
•
Confidentiality (Notice to parents) ........................................................................................................................... 300.612.
•
Department procedures (Notice to States) ................................................................................................................ 300.179.
Æ
See ‘‘Judicial review’’ ......................................................................................................................................... 300.184.
•
Discipline (Notification) ............................................................................................................................................ 300.530(h).
•
Exception to FAPE (Graduation) ............................................................................................................................... 300.102(a)(3).
•
Hearings relating to LEA eligibility .......................................................................................................................... 300.155.
•
IEP meetings (Parent participation) .......................................................................................................................... 300.322(b).
•
Judicial review: If State dissatisfied with eligibility determination ....................................................................... 300.184.
•
LEA and State agency compliance ........................................................................................................................... 300.222.
Æ
Notification in case of ineligibility ................................................................................................................... 300.221(b).
NOTICES: Public agency (N–P)
•
Notice before a hearing on a due process complaint .............................................................................................. 300.508(c).
•
Notice and hearing before State ineligible ............................................................................................................... 300.179.
•
Notice in understandable language .......................................................................................................................... 300.503(c).
•
Notification of LEA in case of ineligibility .............................................................................................................. 300.221(b).
•
Parent participation in meetings ............................................................................................................................... 300.501(b)(2).
•
Prior notice by public agency ................................................................................................................................... 300.503.
•
Private school placement by parents when FAPE is at issue (Public agency notice) ........................................... 300.148(d)(2).
•
Procedural safeguards notice .................................................................................................................................... 300.504.
•
Public attention .......................................................................................................................................................... 300.606.
•
Public participation (Notice of hearings) ................................................................................................................. 300.165(a).
NOTICES: Public agency (Q–Z)
•
Secretary of the Interior (Submission of information) ............................................................................................. 300.708(g).
•
Secretary’s review and determination of State performance .................................................................................. 300.603(b)(2).
•
Transfer of parental rights ......................................................................................................................................... 300.520(a)(1)(i).
•
Use of electronic mail ................................................................................................................................................ 300.505.
•
Withholding funds ..................................................................................................................................................... 300.605.
OCCUPATIONAL THERAPY ........................................................................................................................................ 300.34(c)(6).
OPPORTUNITY TO EXAMINE RECORDS ................................................................................................................... 300.501.
ORIENTATION AND MOBILITY SERVICES ............................................................................................................... 300.34(c)(7).
ORTHOPEDIC IMPAIRMENT ....................................................................................................................................... 300.8(c)(8).
OTHER HEALTH IMPAIRMENT .................................................................................................................................. 300.8(c)(9).
OTHER INDIVIDUALS ON IEP TEAM ......................................................................................................................... 300.321(a)(6).
OUTLYING AREAS—FREELY ASSOCIATED STATES
•
Allocations to States (General) .................................................................................................................................. 300.703(a).
•
Annual description of use of funds .......................................................................................................................... 300.171(c).
•
Definitions applicable to allotments, grants and use of funds:
Æ
Freely associated States ..................................................................................................................................... 300.717(a).
Æ
Outlying areas ..................................................................................................................................................... 300.717(b).
•
Definition of ‘‘State’’ (Includes ‘‘Outlying areas’’) ................................................................................................... 300.40.
•
Outlying areas and freely associated States ............................................................................................................. 300.701.
•
Purpose of grants ....................................................................................................................................................... 300.700(a).
OUT-OF-POCKET EXPENSE (Public benefits or insurance) ...................................................................................... 300.154(d)(2)(ii).
PARAPROFESSIONALS
In ‘‘Personnel qualifications’’ ....................................................................................................................................... 300.156(b).
PARENT (Definition) ..................................................................................................................................................... 300.30.
PARENT: RIGHTS AND PROTECTIONS (A–G)
•
Appeal (Manifestation determination) ..................................................................................................................... 300.532.
•
Confidentiality (Authority to inspect and review records) ..................................................................................... 300.613(c).
•
Consent (See ‘‘Consent’’)
•
Counseling and training (Definition) ........................................................................................................................ 300.34(c)(8).
•
Definition of ‘‘Parent’’ ............................................................................................................................................... 300.30.
Æ
Foster parent ....................................................................................................................................................... 300.30(a)(2).
Æ
Grandparent or stepparent ................................................................................................................................. 300.30(a)(4).
Æ
Guardian ............................................................................................................................................................. 300.30(a)(3).
PARENT: RIGHTS AND PROTECTIONS (H–N)
•
Independent educational evaluation ........................................................................................................................ 300.502.
Æ
Parent-initiated evaluations ............................................................................................................................... 300.502(c).
Æ
Parent right to evaluation at public expense .................................................................................................... 300.502(b).
•
IEP and parent involvement:
Æ
Copy of child’s IEP ............................................................................................................................................. 300.322(f).
Æ
Informed of child’s progress .............................................................................................................................. 300.320(a)(3)(ii).
Æ
Option to invite other individuals .................................................................................................................... 300.321(a)(6).
Æ
Participation in meetings ................................................................................................................................... 300.322.
Æ
Team member ..................................................................................................................................................... 300.321(a)(1).
•
Informed consent (Accessing private insurance) ..................................................................................................... 300.154(e)(1).
•
Involvement in placement decisions ........................................................................................................................ 300.501(c).
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Meetings (Participation in) ........................................................................................................................................ 300.501(b).
•
Notice to public agency:
Æ
Before a hearing on a due process complaint .................................................................................................. 300.508(c).
Æ
Before removing child from public school ....................................................................................................... 300.148(d)(1)(ii).
Æ
Timeline for requesting a hearing ..................................................................................................................... 300.511(e).
•
Exceptions to timeline ................................................................................................................................ 300.511(f).
Æ
Opportunity to examine records ....................................................................................................................... 300.501(a).
PARENT: RIGHTS AND PROTECTIONS (O–Z)
•
Parent counseling and training ................................................................................................................................. 300.34(c)(8).
•
Placement decisions (Involvement in) ..................................................................................................................... 300.501(c).
•
Request for hearing (Discipline) ............................................................................................................................... 300.532(a).
•
Right to an independent educational evaluation ..................................................................................................... 300.502(b).
PARENTAL CONSENT (See ‘‘Consent’’)
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (A–E)
•
Annual count of the number of ................................................................................................................................ 300.133(c).
•
Bypass (see §§ 300.190 through 300.198)
•
Child find for ............................................................................................................................................................. 300.131.
•
Calculating proportionate amount ............................................................................................................................ 300.133(b).
•
Compliance ................................................................................................................................................................. 300.136.
•
Consultation with private schools ............................................................................................................................ 300.134.
•
Written affirmation .................................................................................................................................................... 300.135.
•
Definition of ............................................................................................................................................................... 300.130.
•
Due process complaints and State complaints ........................................................................................................ 300.140.
•
Equitable services determined .................................................................................................................................. 300.137.
Æ
Equitable services provided ............................................................................................................................... 300.138.
•
Expenditures .............................................................................................................................................................. 300.133.
Æ
Formula ............................................................................................................................................................... 300.133(a).
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (F–R)
•
No individual right to special education and related services ............................................................................... 300.137(a).
•
Property, equipment, and supplies ........................................................................................................................... 300.144.
•
Proportionate share of funds ..................................................................................................................................... 300.134(b).
Æ
See ‘‘Appendix B—Proportionate Share Calculation’’
•
Provision of equitable services ................................................................................................................................. 300.138(c).
•
Religious schools (see §§ 300.131(a), 300.137(c), 300.139(a))
•
Requirement that funds not benefit a private school .............................................................................................. 300.141.
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (S–T)
•
Separate classes prohibited ....................................................................................................................................... 300.143.
•
Services on private school premises ........................................................................................................................ 300.139(a).
•
Services plan (Definition) .......................................................................................................................................... 300.37.
Æ
For each child served under §§ 300.130 through 300.144 ............................................................................... 300.137(c).
Æ
See also §§ 300.132(b), 300.138(b), 300.140(a)
•
State eligibility requirement ...................................................................................................................................... 300.129.
•
Transportation (Cost of) ............................................................................................................................................. 300.139(b)(2).
PARENTALLY-PLACED PRIVATE SCHOOL CHILDREN WITH DISABILITIES (U–Z)
•
Use of personnel:
Æ
Private school personnel .................................................................................................................................... 300.142(b).
Æ
Public school personnel ..................................................................................................................................... 300.142(a).
•
Written affirmation .................................................................................................................................................... 300.135.
•
Written explanation by LEA regarding services ...................................................................................................... 300.134(e).
PARTICIPATING AGENCY
•
Confidentiality provisions:
Æ
Definition of participating agency ..................................................................................................................... 300.611(c).
Æ
See also §§ 300.613(c), 300.614, 300.616, 300.618, 300.623
•
IEP requirements (Transition services) ..................................................................................................................... 300.324(c).
PENDENCY (Stay put)
•
Child’s status during due process proceedings ........................................................................................................ 300.518.
•
Placement during appeals (Discipline) ..................................................................................................................... 300.533.
•
Procedural safeguards notice .................................................................................................................................... 300.504(c)(7).
PERFORMANCE GOALS AND INDICATORS
•
Assess progress toward achieving goals ................................................................................................................... 300.157(c).
•
Establishment of goals ............................................................................................................................................... 300.157.
•
Other State level activities ........................................................................................................................................ 300.814(c).
•
Performance goals and indicators ............................................................................................................................. 300.157.
•
State monitoring and enforcement ........................................................................................................................... 300.600(c).
•
State performance plans and data collection ........................................................................................................... 300.601.
PERFORMANCE; PERFORMANCE PLANS (STATE)
•
Enforcement ............................................................................................................................................................... 300.604.
•
Public reporting and privacy .................................................................................................................................... 300.602(b).
•
Secretary’s review and determination regarding State performance ...................................................................... 300.603.
•
State performance plans and data collection ........................................................................................................... 300.601.
•
State performance report ........................................................................................................................................... 300.602(b)(2).
•
State use of targets and reporting ............................................................................................................................. 300.602.
Æ
Public reporting .................................................................................................................................................. 300.602(b)(1).
Æ
State performance report .................................................................................................................................... 300.602(b)(2).
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PERMISSIVE USE OF FUNDS (LEAs)
•
Administrative case management ............................................................................................................................. 300.208(b).
•
Early intervening services ......................................................................................................................................... 300.208(a)(2).
•
High cost education and related services ................................................................................................................. 300.208(a)(3).
•
Permissive use of funds ............................................................................................................................................. 300.208.
•
Services and aids that also benefit nondisabled children ....................................................................................... 300.208(a)(1).
PERSONALLY IDENTIFIABLE (PI) INFORMATION (A–H)
•
Confidentiality of (State eligibility requirement) ..................................................................................................... 300.123.
•
Consent (confidentiality) ........................................................................................................................................... 300.622(a).
•
Data collection (State performance plans) ............................................................................................................... 300.601(b)(3).
•
Definition of ‘‘personally identifiable’’ .................................................................................................................... 300.32.
•
Department use of information ................................................................................................................................. 300.627.
•
Destruction:
Æ
Definition of ........................................................................................................................................................ 300.611(a).
Æ
Destruction of information ................................................................................................................................. 300.624.
•
Hearing decisions to advisory panel and the public ............................................................................................... 300.513(d).
PERSONALLY IDENTIFIABLE (PI) INFORMATION (I–Z)
•
Notice to parents (Confidentiality):
Æ
Children on whom PI information is maintained ............................................................................................ 300.612(a)(2).
Æ
Policies and procedures regarding disclosure to third parties, etc ................................................................. 300.612(a)(3).
•
Participating agency (Definition) .............................................................................................................................. 300.611(c).
•
Protection of PI information ...................................................................................................................................... 300.642(a).
•
See also § 300.610.
•
Safeguards (Protect PI information) .......................................................................................................................... 300.623.
PERSONNEL QUALIFICATIONS ................................................................................................................................. 300.156.
PERSONNEL SHORTAGES
•
Use of SEA allocations to meet ................................................................................................................................. 300.704(b)(4)(vii).
PHYSICAL EDUCATION.
•
Definition .................................................................................................................................................................... 300.39(b)(2).
•
State eligibility requirement ...................................................................................................................................... 300.108.
PHYSICAL THERAPY (Definition) ............................................................................................................................... 300.34(c)(9).
PLACEMENT(S) (A–Co)
•
Adult prisons (CWDs in):
Æ
Last educational placement before incarceration ............................................................................................. 300.102(a)(2)(i).
Æ
Modifications to IEPs and placements .............................................................................................................. 300.324(d)(2).
•
Alternative means of meeting participation (Regarding ‘‘Placement meetings’’) .................................................. 300.328.
•
Change in placement: Graduation ............................................................................................................................ 300.102(a)(3)(iii).
•
Child’s placement during pendency of any complaint ........................................................................................... 300.504(c)(7).
Æ
See also ‘‘Pendency’’ (Child’s status during proceedings) .............................................................................. 300.518.
•
Children with disabilities in adult prisons: Placements regarding (see §§ 300.102(a)(2)(i), 300.324(d)(2)).
•
Continuum of alternative placements (Continuum—LRE) ...................................................................................... 300.115.
PLACEMENT(S) (Cu–L)
•
Current placement (see § 300.530(b)((2), (d) )
•
Current ‘‘Educational placement:’’
Æ
Change of placements because of disciplinary removals ................................................................................ 300.536.
Æ
Child’s status during proceedings ..................................................................................................................... 300.518(a).
•
Disciplinary changes in placement ........................................................................................................................... 300.530(c).
•
Discipline procedures and placements (see §§ 300.530 through 300.536).
•
Educational placements (Parents in any group that makes placement decisions) ................................................ 300.327.
•
Graduation: A change in placement (Exception to FAPE) ...................................................................................... 300.102(a)(3)(iii).
•
Last educational placement (Before incarceration) .................................................................................................. 300.102(a)(2)(i).
•
Least restrictive environment (LRE) (see §§ 300.114 through 300.120)
•
Notification: LEA must notify parents of decision to change placement .............................................................. 300.530(h).
PLACEMENT(S) (O–Z)
•
Pendency (Child’s status during proceedings) ......................................................................................................... 300.518.
Placement of children by parents if FAPE is at issue ................................................................................................. 300.148.
•
Placements (LRE) ....................................................................................................................................................... 300.116.
•
Requirements for unilateral placement by parents of CWDs in private schools (In ‘‘Procedural safeguards no-
tice’’).
300.504(c)(9).
•
State funding mechanism (Must not result in placements that violate LRE) ........................................................ 300.114(b)(1).
POLICY: POLICIES AND PROCEDURES
•
Condition of assistance (LEA eligibility) .................................................................................................................. 300.200.
Æ
Consistency with State policies ......................................................................................................................... 300.201.
Æ
See also §§ 300.200 through 300.213
•
Eligibility for assistance (State) ................................................................................................................................. 300.100.
•
Exception for prior policies on file:
Æ
With the SEA ...................................................................................................................................................... 300.220.
Æ
With the Secretary .............................................................................................................................................. 300.176(a).
•
FAPE policy ............................................................................................................................................................... 300.101(a).
•
Joint establishment of eligibility (Requirements) ..................................................................................................... 300.223.
•
Modifications of:
Æ
LEA or State agency policies ............................................................................................................................. 300.220(b).
Æ
Required by Secretary ........................................................................................................................................ 300.176(c).
Æ
State policies (By a State) .................................................................................................................................. 300.176(b).
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Public participation ................................................................................................................................................... 300.165.
•
Secretary of the Interior ............................................................................................................................................. 300.708.
Æ
Public participation ............................................................................................................................................ 300.709.
Æ
Submission of information ................................................................................................................................ 300.708.
PREPONDERANCE OF EVIDENCE
•
Civil action ................................................................................................................................................................. 300.516(c)(3).
PRESCHOOL GRANTS
•
Allocations to LEAs ................................................................................................................................................... 300.816.
Æ
Subgrants to LEAs .............................................................................................................................................. 300.815.
•
Other State-level activities ........................................................................................................................................ 300.814.
Æ
Provide early intervention services in accordance with Part C of the Act .................................................... 300.814(e).
Æ
Service coordination or case management ....................................................................................................... 300.814(f).
•
State administration ................................................................................................................................................... 300.813.
•
Use of funds for administration of Part C ................................................................................................................ 300.813(b).
PRIOR NOTICE
•
By public agency ........................................................................................................................................................ 300.503.
•
Notice required before a hearing on a due process complaint ............................................................................... 300.508(c).
•
Procedural safeguards notice .................................................................................................................................... 300.504.
PRISONS (See ‘‘Adult prisons’’)
PRIVATE INSURANCE
•
Children with disabilities who are covered by ........................................................................................................ 300.154(e).
Æ
Proceeds from public benefits or insurance or private insurance .................................................................. 300.154(g).
Æ
Use of Part B funds ............................................................................................................................................ 300.154(f).
PRIVATE SCHOOLS AND FACILITIES
•
Applicability of this part to State and local agencies:
Æ
CWDs placed in private schools by parents under § 300.148 ......................................................................... 300.2(c)(2).
Æ
CWDs referred to or placed in private schools by public agency ................................................................... 300.2(c)(1).
PRIVATE SCHOOL CHILDREN ENROLLED BY THEIR PARENTS
•
Placement of children by parents when FAPE is at issue ...................................................................................... 300.148.
•
See ‘‘Parentally-placed private school children with disabilities’’
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (A–D)
•
Applicability of this part to private schools ............................................................................................................ 300.2(c)(1).
•
Applicable standards (SEA to disseminate to private schools involved) .............................................................. 300.147(b).
PRIVATE SCHOOL PLACEMENTS BY PUBLIC AGENCIES (E–Z)
•
Implementation by SEA (Must monitor, provide standards, etc.) .......................................................................... 300.147.
•
Monitor compliance ................................................................................................................................................... 300.147(a).
•
Input by private schools (Provide for) ...................................................................................................................... 300.147(c).
•
Responsibility of SEA ................................................................................................................................................ 300.146.
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (A–C)
•
Additional disclosure of information (5 business days before hearing) ................................................................ 300.512(b).
•
Agency responsible for conducting hearing ............................................................................................................. 300.511(b).
•
Appeal of hearing decisions; impartial review ........................................................................................................ 300.514(b).
•
Attorneys’ fees ............................................................................................................................................................ 300.517.
•
Child’s status during proceedings ............................................................................................................................ 300.518.
•
Civil action ................................................................................................................................................................. 300.516.
•
Consent (Definition) ................................................................................................................................................... 300.9.
•
Court (See ‘‘Court(s)’’)
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (D–H)
•
Electronic mail (Parent may elect to receive notices by) ........................................................................................ 300.505.
•
Evaluation (Definition) .............................................................................................................................................. 300.15.
•
Evaluations: Hearing officer requests for ................................................................................................................. 300.502(d).
•
Finality of decision; appeal; impartial review ......................................................................................................... 300.514.
•
Findings and decision to advisory panel and public .............................................................................................. 300.513(d).
•
Hearing rights ............................................................................................................................................................. 300.512.
PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (I–Pa)
•
Impartial due process hearing ................................................................................................................................... 300.511.
•
Impartial hearing officer ............................................................................................................................................ 300.511(c).
•
Impartiality of mediator ............................................................................................................................................ 300.506(c).
•
Independent educational evaluation ........................................................................................................................ 300.502.
Æ
Definition ............................................................................................................................................................ 300.502(a)(3)(i).
•
Jurisdiction of district courts .................................................................................................................................... 300.516(d).
Æ
See ‘‘Court(s)’’
•
Mediation ................................................................................................................................................................... 300.506.
Æ
Opportunity to meet with a disinterested party ............................................................................................... 300.506(b)(2).
•
Model form to assist parties in filing a due process or State complaint ............................................................... 300.509.
•
Notice required before a hearing on a due process complaint ............................................................................... 300.508(c).
•
Opportunity to examine records ............................................................................................................................... 300.501(a).
•
Parental consent ......................................................................................................................................................... 300.300.
•
Parent-initiated evaluations ...................................................................................................................................... 300.502(c).
•
Parent involvement in placement decisions ............................................................................................................ 300.501(c).
•
Parent participation in meetings ............................................................................................................................... 300.501(b).
•
Parental rights at hearings ......................................................................................................................................... 300.512(c).
•
Parent right to evaluation at public expense ........................................................................................................... 300.502(b).
Æ
Public expense (Definition) ............................................................................................................................... 300.502(a)(3)(ii).
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PROCEDURAL SAFEGUARDS: DUE PROCESS PROCEDURES (Pe–Z)
•
Pendency .................................................................................................................................................................... 300.518.
•
Personally identifiable (Definition) .......................................................................................................................... 300.32.
•
Prior notice by public agency ................................................................................................................................... 300.503.
•
Procedural safeguards notice .................................................................................................................................... 300.504.
•
Prohibition on introduction of undisclosed evidence 5 business days before hearing ........................................ 300.512(a)(3).
•
Record of hearing ....................................................................................................................................................... 300.512(a)(4).
•
Resolution process ..................................................................................................................................................... 300.510.
•
SEA implementation of ............................................................................................................................................. 300.150.
•
See ‘‘Civil Action Proceedings,’’ ‘‘Court(s),’’ ‘‘Hearing Officer(s),’’ ‘‘Timelines’’
•
Surrogate parents ....................................................................................................................................................... 300.519.
•
Timelines and convenience of hearings ................................................................................................................... 300.515.
•
Transfer of parental rights at age of majority ........................................................................................................... 300.520.
PROCEDURAL SAFEGUARDS NOTICE ...................................................................................................................... 300.504.
•
Internet Web site (Notice on) .................................................................................................................................... 300.504(b).
PROCEEDS FROM PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE ............................................. 300.154(g).
PROGRAM INCOME (Not treated as proceeds from insurance) ................................................................................ 300.154(g.)
PROGRAM MODIFICATIONS OR SUPPORTS (IEP content) ..................................................................................... 300.320(a)(4).
PROPORTIONATE SHARE CALCULATION (See Appendix B)
PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE (Discipline) .......................................................... 300.534.
PSYCHOLOGICAL SERVICES (Definition) .................................................................................................................. 300.34(c)(10).
PUBLIC AGENCY (Definition) ...................................................................................................................................... 300.33.
PUBLIC BENEFITS OR INSURANCE ........................................................................................................................... 300.154(d).
PUBLIC BENEFITS OR INSURANCE OR PRIVATE INSURANCE (Proceeds from) ................................................. 300.154(g).
PUBLIC CHARTER SCHOOLS (See ‘‘Charter schools’’)
PUBLIC EXPENSE (Definition under IEE) ................................................................................................................... 300.502(a)(3)(ii).
PUBLIC HEARINGS (On policies)
•
State eligibility ........................................................................................................................................................... 300.165(a).
•
Secretary of the Interior ............................................................................................................................................. 300.708(g).
PUBLIC INFORMATION (LEA) .................................................................................................................................... 300.212.
PUBLIC NOTICE
•
LEA and State agency compliance ........................................................................................................................... 300.222(b).
•
Public attention (If State has received a notice under § 300.603) .......................................................................... 300.606.
PURPOSES (Of this Part 300) ....................................................................................................................................... 300.1.
QUALIFIED PERSONNEL ............................................................................................................................................. 300.156.
•
Related services definitions (see § 300.34(c)(2), (c)(5), (c)(6), (c)(7), (c)(9), (c)(12), (c)(13)).
RATE OF INFLATION (In the Consumer Price Index for All Urban Consumers) (see §§ 300.702(b),
300.704(a)(2)(ii), 300.704(b)(2), 300.812(b)(2)).
REALLOCATION OF LEA FUNDS (If SEA determines LEA adequately providing FAPE) (see §§ 300.705(c),
300.817)).
RECORDS (A–D)
•
Access rights (Parents’ right to inspect) ................................................................................................................... 300.613.
Æ
Fees for records .................................................................................................................................................. 300.617.
Æ
Records on more than one child ....................................................................................................................... 300.615.
•
Civil action (Court shall receive records) ................................................................................................................. 300.516(c)(1).
•
Conducting IEP Team meetings without parents (Records of attempts to convince parents) .............................. 300.322(d).
Confidentiality (See ‘‘Confidentiality’’)
•
Consent to release records ......................................................................................................................................... 300.622(b).
Disciplinary records:
Æ
Determination that behavior not manifestation ................................................................................................ 300.530(e).
Æ
Disciplinary information .................................................................................................................................... 300.229(c).
Æ
Referral to and action by law enforcement and judicial authorities .............................................................. 300.535.
RECORDS (E–Z)
•
Education records (Definition) .................................................................................................................................. 300.611(b).
•
Of parentally-placed private school CWDs (LEA to SEA) ....................................................................................... 300.132(c).
•
Opportunity to examine records ............................................................................................................................... 300.501(a).
•
Procedural safeguards notice (Access to education records) .................................................................................. 300.504(c)(4).
•
Record of access ......................................................................................................................................................... 300.614.
•
See also ‘‘Transfer during academic year’’
RECREATION (Definition) ............................................................................................................................................ 300.34(c)(11).
REDUCTION OF FUNDS FOR FAILURE TO MAINTAIN SUPPORT ........................................................................ 300.163(b).
REEVALUATION
•
Frequency of occurrence ........................................................................................................................................... 300.303(b).
•
Parental consent required before conducting .......................................................................................................... 300.300(c)(1).
Æ
If parent fails to consent .................................................................................................................................... 300.300(c)(1)(ii).
•
Parental consent not required for:
Æ
Administering a test that all children take ....................................................................................................... 300.300(d)(1)(ii).
Æ
Reviewing existing data ..................................................................................................................................... 300.300(d)(1)(i).
•
Parent refusal to consent ........................................................................................................................................... 300.300(c)(1)(ii).
•
Review of existing evaluation data ........................................................................................................................... 300.305(a).
•
Revision of IEP (To address reevaluation) ............................................................................................................... 300.324(b)(1)(ii).
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REFERRAL (A–M)
•
Discipline:
Æ
Referral to and action by law enforcement and judicial authorities .............................................................. 300.535.
Æ
Protections for children not determined eligible ............................................................................................. 300.534.
•
Enforcement (Referral for) ......................................................................................................................................... 300.604(b)(2)(vi).
•
Indian children (Referral for services or further diagnosis) .................................................................................... 300.712(d)(2).
•
Medical attention (Referral for):
Æ
Audiology ........................................................................................................................................................... 300.34(c)(1)(ii).
Æ
Speech-language pathology services ................................................................................................................. 300.34(c)(15)(iii).
REFERRAL (N–Z)
•
Nonacademic and extracurricular services (Referral to agencies regarding assistance to individuals with dis-
abilities).
300.107(b).
•
Prior notice (If not initial referral for evaluation) .................................................................................................... 300.503(b)(4).
•
Private school placement when FAPE is at issue (Reimbursement when no referral by public agency) ............ 300.148(c).
•
Procedural safeguards notice (Upon initial referral for evaluation) ....................................................................... 300.504(a)(1).
•
Referral to and action by law enforcement and judicial authorities ...................................................................... 300.535.
REGULAR EDUCATION TEACHER
•
Access to IEP .............................................................................................................................................................. 300.323(d).
•
IEP Team member ...................................................................................................................................................... 300.321(a)(2).
•
Participate in IEP development ................................................................................................................................ 300.324(a)(3).
Æ
Behavioral interventions .................................................................................................................................... 300.324(a)(3)(i).
Æ
Supplementary aids and services ...................................................................................................................... 300.324(a)(3)(ii).
REGULATIONS
•
Applicable regulations (Secretary of the Interior) ................................................................................................... 300.716.
•
Applicability of this part to State, local, and private agencies ............................................................................... 300.2.
REHABILITATION
•
Assistive technology service (see § 300.6(d), (f))
•
Rehabilitation Act of 1973 (see §§ 300.34(c)(12), 300.516(e))
•
Rehabilitation counseling services:
Æ
Definition ............................................................................................................................................................ 300.34(c)(12).
Æ
In vocational rehabilitation (VR) programs ...................................................................................................... 300.34(c)(12).
•
Transition services (State VR agency responsibility) .............................................................................................. 300.324(c)(2).
REHABILITATION COUNSELING SERVICES ............................................................................................................. 300.34(c)(12).
REIMBURSEMENT
•
Methods of ensuring services (see § 300.154(a)(3), (b)(1)(ii), (b)(2), (g)(2))
•
Private school placement when FAPE is at issue:
Æ
Limitation on reimbursement ............................................................................................................................ 300.148(d).
Æ
Reimbursement for private school placement .................................................................................................. 300.148(c).
Æ
Subject to due process procedures .................................................................................................................... 300.148(b).
•
Reimbursement by non-educational public agency ................................................................................................. 300.154(b)(2).
•
Reimbursement by SEA to LEA ................................................................................................................................ 300.704(c)(7).
RELATED SERVICES
•
Definition .................................................................................................................................................................... 300.34.
•
Observations by teachers and related services providers regarding existing evaluation data .............................. 300.305(a)(1)(iii).
RELATION OF PART B TO OTHER FEDERAL PROGRAMS ..................................................................................... 300.186.
RELIGIOUS SCHOOLS
•
Child find for parentally-placed private school children ....................................................................................... 300.131(a).
•
Child find for out-of-State children .......................................................................................................................... 300.131(f).
•
Formula for LEA expenditures on ............................................................................................................................ 300.133(a).
•
See ‘‘Parentally-placed private school children with disabilities’’
•
Services plan for each child served .......................................................................................................................... 300.137(c).
•
Services provided on-site .......................................................................................................................................... 300.139(a).
REMEDIES FOR DENIAL OF APPROPRIATE SERVICES ........................................................................................... 300.151(b).
REPORTS (A–C)
•
Annual report of children served ............................................................................................................................. 300.640.
Æ
See also §§ 300.641 through 300.646
•
Annual report to Secretary of Interior by advisory board on Indian children ...................................................... 300.715(a).
•
Biennial report (Indian tribes) .................................................................................................................................. 300.712(e).
•
Child count (Annual report of children served) ...................................................................................................... 300.641.
REPORTS (D–Z)
•
Evaluation reports to parents .................................................................................................................................... 300.306(a)(2).
•
Monitoring compliance of publicly placed children in private schools (
e.g.
, written reports) ............................ 300.147(a).
•
Monitoring reports (Waiver of nonsupplanting requirement) ................................................................................. 300.164(c)(3).
•
Performance goals (Progress reports) ........................................................................................................................ 300.157(c).
•
Secretary’s report to States regarding 25% of funds ............................................................................................... 300.812(b).
REPORT CARDS ............................................................................................................................................................ 300.320(a)(3)(ii).
REPORTING A CRIME to law enforcement and judicial authorities ......................................................................... 300.535.
RESIDENTIAL PLACEMENTS ...................................................................................................................................... 300.104.
REVOKE CONSENT AT ANY TIME (In definition of ‘‘Consent’’) ............................................................................. 300.9(c)(1).
RHEUMATIC FEVER ..................................................................................................................................................... 300.8(c)(9)(i).
RISK OF LOSS OF ELIGIBILITY FOR INSURANCE ................................................................................................... 300.154(d)(2)(iii)(D).
SCHOOL DAY
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•
Definition .................................................................................................................................................................... 300.11(c).
•
See ‘‘Timelines,’’ ‘‘Timelines—Discipline’’
SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES ............................................................................ 300.34(c)(13).
SCHOOL PERSONNEL
•
Content of IEP ............................................................................................................................................................ 300.320(a)(4).
•
Development, review, and revision of IEP ............................................................................................................... 300.324(a)(4).
•
Disciplinary authority ................................................................................................................................................ 300.530.
•
Use of private school personnel ............................................................................................................................... 300.142(b).
•
Use of public school personnel ................................................................................................................................ 300.142(a).
SCHOOLWIDE PROGRAMS ......................................................................................................................................... 300.206.
SEA RESPONSIBILITY
•
For all education programs ....................................................................................................................................... 300.149.
•
For direct services ...................................................................................................................................................... 300.227.
•
For each parentally-placed private school child designated to receive services ................................................... 300.132(b).
•
For impartial review .................................................................................................................................................. 300.514(b)(2).
•
Prohibition of LEA from reducing maintenance of effort ....................................................................................... 300.608.
SECRETARY
•
Determination that a State is eligible ....................................................................................................................... 300.178.
•
Notice and hearing before determining that a State is not eligible ........................................................................ 300.179.
•
Waiver of nonsupplanting requirement ................................................................................................................... 300.164.
SECRETARY OF THE INTERIOR
•
Advisory board establishment .................................................................................................................................. 300.714.
Æ
Annual report by advisory board ...................................................................................................................... 300.715.
•
Biennial report (By tribe or tribal organization) ...................................................................................................... 300.712(e).
•
Eligibility (see §§ 300.708 through 300.716)
•
Payments for:
Æ
Children aged 3 through 5 ................................................................................................................................. 300.712.
Æ
Child find and screening ................................................................................................................................... 300.712(d).
•
Plan for coordination of services .............................................................................................................................. 300.713.
•
Use of funds for early intervening services .............................................................................................................. 300.711.
SEPARATION—DIVORCE (Authority to review records) ........................................................................................... 300.613(c).
SERVICES PLAN for parentally-placed private school children (see §§ 300.132(b), 300.137(c) 300.138(b))
SERVICES THAT ALSO BENEFIT NONDISABLED CHILDREN ................................................................................ 300.208(a)(1).
SHORTAGE OF PERSONNEL (Policy to address) ....................................................................................................... 300.704(b)(4)(vii).
SHORT TERM OBJECTIVES OR BENCHMARKS ........................................................................................................ 300.320(a)(2)(ii).
SHOULD HAVE KNOWN (Regarding due process complaint) .................................................................................. 300.511(e).
SHOW CAUSE HEARING ............................................................................................................................................. 300.194.
•
Decision ...................................................................................................................................................................... 300.195.
•
Implementation of by-pass (see §§ 300.192(b)(2), 300.193)
•
Right to legal counsel ................................................................................................................................................ 300.194(a)(3).
SICKLE CELL ANEMIA ................................................................................................................................................. 300.8(c)(9)(i).
SLD (See ‘‘Specific Learning Disability’’)
SOCIAL WORK SERVICES IN SCHOOLS (Definition) ............................................................................................... 300.34(b)(14).
SPECIAL FACTORS (IEP Team) ................................................................................................................................... 300.324(a)(2).
SPECIAL EDUCATION (Definition) ............................................................................................................................. 300.39.
SPECIAL EDUCATION PROVIDER .............................................................................................................................. 300.321(a)(3).
SPECIAL EDUCATION TEACHER
•
IEP accessible to ......................................................................................................................................................... 300.323(d).
•
On IEP Team .............................................................................................................................................................. 300.321(a)(3).
•
Requirements regarding highly qualified ................................................................................................................. 300.18.
SPECIAL RULE
•
Adjustments to local efforts ...................................................................................................................................... 300.205(d).
•
For child’s eligibility determination ......................................................................................................................... 300.306(b).
•
For increasing funds .................................................................................................................................................. 300.704(e).
•
Methods of ensuring services .................................................................................................................................. 300.154(c).
•
LEA high cost fund .................................................................................................................................................... 300.704(c).
•
Regarding outlying areas and freely associated States ............................................................................................ 300.701(a)(3).
•
Regarding transfer of rights ....................................................................................................................................... 300.520(b).
•
Regarding use of FY 1999 amount ............................................................................................................................ 300.703(b).
•
State advisory panel (Parent members) .................................................................................................................... 300.168(b).
SPECIFIC LEARNING DISABILITY
•
Definition .................................................................................................................................................................... 300.8(c)(10).
•
Evaluation requirements and report (see §§ 300.306(a), 300.307 through 300.311)
•
Other alternative research-based procedures ........................................................................................................... 300.307(a)(3).
•
Response to scientific, research-based intervention (see §§ 300.307(a)(2), 300.309(a)(2)(i), 300.311(a)(7))
•
Scientifically based research:
Æ
Definition ............................................................................................................................................................ 300.35.
Æ
Enforcement ........................................................................................................................................................ 300.604(a)(1)(ii).
•
Severe discrepancy .................................................................................................................................................... 300.307(a)(1).
SPEECH-LANGUAGE PATHOLOGY SERVICES
•
Definition .................................................................................................................................................................... 300.34(b)(15).
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•
Speech or language impairment (Definition) ........................................................................................................... 300.8(c)(11).
STATE
•
Definition .................................................................................................................................................................... 300.40.
•
Special definition for grants ...................................................................................................................................... 300.717(c).
•
Sovereign immunity .................................................................................................................................................. 300.177.
STATE ADMINISTRATION (Use of funds for) (see §§ 300.704(a), 300.812(a)).
STATE ADVISORY PANEL .......................................................................................................................................... 300.167
•
Due process hearings (Findings and decisions to State advisory panel) (see §§ 300.513(d)(1), 300.514(c)(1))
•
Duties .......................................................................................................................................................................... 300.169.
•
Establishment ............................................................................................................................................................. 300.167.
•
Membership ................................................................................................................................................................ 300.168.
•
Waiver of nonsupplant requirement (State has consulted with advisory panel regarding provision of FAPE)
300.164(c)(4).
STATE AGENCIES
•
Applicability of Part B to other State agencies ........................................................................................................ 300.2(b)(1)(iii).
•
Compliance (LEA and State agency) ........................................................................................................................ 300.222.
•
Eligibility (LEA and State agency):
Æ
General conditions (see §§ 300.200 through 300.213)
•
Notification of LEA or State agency in case of ineligibility .................................................................................... 300.221.
•
State advisory panel (Membership) .......................................................................................................................... 300.168.
•
State agency eligibility .............................................................................................................................................. 300.228.
•
State Medicaid agency ............................................................................................................................................... 300.154(a)(1), (h).
STATE COMPLAINT PROCEDURES (see §§ 300.151 through 300.153)
•
See ‘‘Complaint(s): State complaint procedures’’
STATE ELIGIBILITY
•
Condition of assistance .............................................................................................................................................. 300.100.
•
Department procedures (see §§ 300.178 through 300.186)
•
Determination of eligibility (By the Secretary) ........................................................................................................ 300.178.
•
General conditions ..................................................................................................................................................... 300.100.
•
Notice and hearing before determining that a State is not eligible ........................................................................ 300.179.
•
Specific conditions (see §§ 300.101 through 300.176)
STATE JUVENILE AND ADULT CORRECTIONAL FACILITIES ............................................................................... 300.2(b)(1)(iv).
•
See also ‘‘Correctional facilities,’’ ‘‘Adult prisons’’
STATE-LEVEL ACTIVITIES (With Part B funds) ........................................................................................................ 300.704.
STATE-LEVEL NONSUPPLANTING ............................................................................................................................ 300.162(c).
•
Waiver by Secretary ................................................................................................................................................... 300.162(c)(2).
•
Waiver of requirement ............................................................................................................................................... 300.164.
STATE MAINTENANCE OF EFFORT .......................................................................................................................... 300.163.
SUBGRANT(S)
•
State agency eligibility .............................................................................................................................................. 300.228.
•
To LEAs ...................................................................................................................................................................... 300.705(a).
STATE MEDICAID AGENCY
•
Methods of ensuring services .................................................................................................................................... 300.154(a)(1).
•
See also ‘‘Medicaid’’
STATE SCHOOLS
•
Applicability of this part to schools for children with deafness or blindness ...................................................... 300.2(b)(1)(iii).
STATE VOCATIONAL REHABILITATION AGENCY (See ‘‘Rehabilitation’’)
STATES’ SOVEREIGN IMMUNITY .............................................................................................................................. 300.177.
STAY-PUT (Child’s status during proceedings) .......................................................................................................... 300.518.
•
See also ‘‘Pendency’’
SUBSTANTIAL LIKELIHOOD OF INJURY (Discipline) ............................................................................................. 300.532(a).
SUPPLEMENTARY AIDS AND SERVICES
•
Definition .................................................................................................................................................................... 300.42.
•
IEP content ................................................................................................................................................................. 300.320(a)(4).
•
In ‘‘assistive technology’’ .......................................................................................................................................... 300.105(a)(3).
•
LRE requirements ....................................................................................................................................................... 300.114(a)(2)(ii).
•
Methods of ensuring services .................................................................................................................................... 300.154(b).
•
Requirement regarding regular education teacher (IEP) .......................................................................................... 300.324(a)(3)(ii).
•
Services that also benefit nondisabled children ...................................................................................................... 300.208(a)(1).
SUPPLEMENT—NOT SUPPLANT
•
LEA requirement ........................................................................................................................................................ 300.202(a)(3).
•
State level nonsupplanting ........................................................................................................................................ 300.162(c).
•
See ‘‘Nonsupplanting’’
SUPPORT SERVICES (see §§ 300.704(b)(4)(i)), 300.814(a))
SURGICALLY IMPLANTED MEDICAL DEVICE (see §§ 300.5, 300.34(b), 300.113(b))
SURROGATE PARENTS ............................................................................................................................................... 300.519.
•
Appointed for homeless youth ................................................................................................................................. 300.519(f).
•
In definition of ‘‘Parent’’ ........................................................................................................................................... 300.30(a)(5).
•
Timeline for assignment ............................................................................................................................................ 300.519(h).
SUSPENSION (EXPULSION)
•
Alternative programming for children expelled ...................................................................................................... 300.704(b)(4)(ix).
•
Provision of FAPE ...................................................................................................................................................... 300.101(a).
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•
Suspension and expulsion rates ............................................................................................................................... 300.170(a).
•
Suspension or expulsion without services ............................................................................................................... 300.534(d)(2)(ii).
TEACHERS
See ‘‘Regular education teacher’’
See ‘‘Special education teacher’’
TECHNICAL ASSISTANCE (Amounts to support) ..................................................................................................... 300.702.
TECHNICALLY SOUND INSTRUMENTS (Evaluation) .............................................................................................. 300.304(b)(3).
TERMINATION OF AGENCY OBLIGATION to provide special education to a particular child (Exception to
MOE).
300.204(c).
THERAPEUTIC RECREATION ...................................................................................................................................... 300.34(b)(11)(ii).
TIMELINES (A–D)
•
Access rights (Confidentiality: 45 days) ................................................................................................................... 300.613(a).
•
Annual report of children served (Between Oct. 1 and Dec. 1) ............................................................................. 300.641(a).
•
Annual count of parentally-placed private school children (Between Oct. 1 and Dec. 1) ................................... 300.133(c).
•
Assignment of surrogate parent (Not more than 30 days) ....................................................................................... 300.519(h).
•
Attorneys’ fees (10 days prohibition) ....................................................................................................................... 300.517(c)(2)(i).
•
Complaint procedures (State: 60 days) ..................................................................................................................... 300.152(a).
•
Department hearing procedures (30 days) ............................................................................................................... 300.179(b)(3).
Æ
See also §§ 300.181 through 300.184
•
Due process hearings and reviews (see §§ 300.510(b)(2), 300.511(e), (f)):
Æ
Conducted within 20 school days; decision within 10 school days .............................................................. 300.532(c)(2).
Æ
Decision within 45 days after expiration of 30 day period ............................................................................. 300.515(a).
Æ
Disclose evaluations before hearings (5 business days) ................................................................................... 300.512(a)(3).
TIMELINES (E–H)
•
Hearing procedures (State eligibility: 30 days) ........................................................................................................ 300.179(b)(3).
•
Hearing rights:
Æ
Disclosure of evaluations (At least 5 business days before hearing) .............................................................. 300.512(b)(1).
Æ
Prohibit introduction of evidence not disclosed (At least 5 business days before hearing) ......................... 300.512(a)(3).
Æ
Reviews (Decision not later than 30 days) ....................................................................................................... 300.515(b).
TIMELINES (I–Z)
•
IEP (Initial meeting: 30 days) .................................................................................................................................... 300.323(c)(1).
•
Initial evaluation (60 days) ....................................................................................................................................... 300.301(c)(1).
•
Parent notice before private placement (At least 10 business days) ...................................................................... 300.148(d)(2).
•
Show cause hearing ................................................................................................................................................... 300.194(g).
•
Decision ...................................................................................................................................................................... 300.195(a)(1).
•
State eligibility: Department hearing procedures (see §§ 300.179(b)(3), 300.181(b), 300.182(d), (e), (g), (k),
300.184)
•
Timelines and convenience of hearings and reviews .............................................................................................. 300.515.
TIMELINES—DISCIPLINE (A–P)
•
Authority of hearing officer (May order change of placement for not more than 45 school days) ...................... 300.532(b)(2)(ii).
•
Authority of school personnel:
Æ
Change of placement for not more than 45 consecutive days for weapons or drugs .................................... 300.530(g).
Æ
Removal of a child for not more than 10 school days ..................................................................................... 300.530(b).
•
Change of placement for disciplinary removals:
Æ
Of more than 10 consecutive school days ........................................................................................................ 300.536(a)(1).
Æ
Because series of removals total more than 10 school days ............................................................................ 300.536(a)(2)(i).
•
Due process hearing request ..................................................................................................................................... 300.507(a)(2).
•
Expedited due process hearings:
Æ
Conducted within 20 days ................................................................................................................................. 300.532(c)(2).
Æ
Decision within 10 days .................................................................................................................................... 300.532(c)(3)(i).
•
Hearing officer (Order change of placement for not more than 45 days) .............................................................. 300.532(b)(2)(ii).
•
Manifestation determination review (Conducted in no more than 10 school days) ............................................. 300.530(e).
•
Placement during appeals (Not longer than 45 days) .............................................................................................. 300.532(b)(2)(ii).
TIMELINES—DISCIPLINE (Q–Z)
•
Removals for not more than:
Æ
10 school days (By school personnel) ............................................................................................................. 300.530(b).
Æ
45 days (To interim alternative educational setting) ...................................................................................... 300.532(b)(2)(ii).
By hearing officer (For substantial likelihood of injury to child or others) ................................................ 300.532(b)(2)(ii).
By school personnel (For weapons or drugs) (see § 300.530(g)(1), (g)(2))
TIMETABLE: Full educational opportunity goal (FEOG) ........................................................................................... 300.109.
TRAINING
•
Assistive technology services (see § 300.6(e), (f))
•
Confidentiality procedures (Personnel using personally identifiable information must receive training) .......... 300.623(c).
•
Parent counseling and training ................................................................................................................................. 300.34(b)(8).
•
Technical assistance and training for teachers and administrators ........................................................................ 300.119.
•
Travel training (see § 300.39(a)(2)(ii), (b)(4))
TRANSFER DURING ACADEMIC YEAR
•
Assessments coordinated between public agencies ................................................................................................. 300.304(c)(5).
•
New school district responsibilities (see § 300.323(e), (f))
•
Transmittal of records ............................................................................................................................................... 300.323(g).
TRANSFER OF PARENTAL RIGHTS ........................................................................................................................... 300.520.
•
IEP requirement ......................................................................................................................................................... 300.320(c).
•
Special rule ................................................................................................................................................................ 300.520(b).
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•
To children in correctional institutions ................................................................................................................... 300.520(a)(2).
TRANSITION FROM PART C TO PART B .................................................................................................................. 300.124.
TRANSITION SERVICES (NEEDS)
•
Agency responsibilities for (see §§ 300.321(b)(3), 300.324(c)(2))
•
Alternative strategies ................................................................................................................................................. 300.324(c)(1).
•
Child participation in IEP Team meetings ............................................................................................................... 300.321(b)(1).
•
Definition .................................................................................................................................................................... 300.43.
•
IEP requirement (Statement of)
Æ
Transition service needs .................................................................................................................................... 300.320(b).
Æ
Needed transition services ................................................................................................................................. 300.43(b).
•
State rehabilitation agency ........................................................................................................................................ 300.324(c)(2).
TRANSMITTAL OF RECORDS TO LAW ENFORCEMENT AND JUDICIAL AUTHORITIES .................................. 300.535(b).
TRANSPORTATION
•
Definition .................................................................................................................................................................... 300.34(c)(16).
•
Nonacademic services ............................................................................................................................................... 300.107(b).
•
Of private school children ........................................................................................................................................ 300.139(b).
TRAUMATIC BRAIN INJURY (Definition) .................................................................................................................. 300.8(c)(12).
TRAVEL TRAINING (see § 300.39(a)(2)(ii), (b)(4))
•
Definition .................................................................................................................................................................... 300.39(b)(4).
TREATMENT OF CHARTER SCHOOLS AND THEIR STUDENTS ........................................................................... 300.209.
TREATMENT OF FEDERAL FUNDS IN CERTAIN YEARS ....................................................................................... 300.205.
UNIVERSAL DESIGN
•
Definition .................................................................................................................................................................... 300.44.
•
Support technology with universal design principles ............................................................................................ 300.704(b)(4)(v).
USE OF AMOUNTS (LEA) ............................................................................................................................................ 300.202.
USE OF FUNDS BY LEAs
•
Coordinated services system ..................................................................................................................................... 300.208(a)(2).
•
For school-wide programs ......................................................................................................................................... 300.206.
•
For services and aids that also benefit nondisabled children ................................................................................ 300.208(a)(1).
•
For use in accordance with Part B ........................................................................................................................... 300.705.
USE OF FUNDS BY STATES (SEAs) (A–C)
•
Administering Part B State activities ....................................................................................................................... 300.704(a)(1).
•
Administering Part C (If SEA is Lead Agency) ........................................................................................................ 300.704(a)(4).
•
Administrative costs of monitoring and complaint investigations ......................................................................... 300.704(b)(3)(i).
•
Allowable costs .......................................................................................................................................................... 300.704(b)(3).
•
Amount for State administration .............................................................................................................................. 300.704(a)
•
Annual description of use of Part B funds ............................................................................................................... 300.171.
•
Assist LEAs in meeting personnel shortages ........................................................................................................... 300.704(b)(4)(vii).
•
Complaint investigations ........................................................................................................................................... 300.704(b)(3)(i).
•
Coordination of activities with other programs ....................................................................................................... 300.704(b)(1).
USE OF FUNDS BY STATES (SEAs) (D–Z)
•
Direct and support services ....................................................................................................................................... 300.704(b)(4)(i).
•
High cost fund ............................................................................................................................................................ 300.704(c).
•
Mediation process ...................................................................................................................................................... 300.704(b)(3)(ii).
•
Monitoring .................................................................................................................................................................. 300.704(b)(3)(i).
•
Personnel preparation, professional development and training (see § 300.704(b)(4)(i), (b)(4)(xi)).
•
State plan .................................................................................................................................................................... 300.704(c)(3)(i).
•
Statewide coordinated services system .................................................................................................................... 300.814(d).
•
Support and direct services ...................................................................................................................................... 300.704(b)(4)(i).
•
Technical assistance:
Æ
To LEAs .............................................................................................................................................................. 300.704(b)(4)(xi).
Æ
To other programs that provide services .......................................................................................................... 300.704(a)(1).
USE OF FUNDS BY SECRETARY OF THE INTERIOR (see §§ 300.707 through 300.716)
•
By Indian tribes:
Æ
For child find for children aged 3 throught 5 .................................................................................................. 300.712(d).
Æ
For coordination of assistance for services ....................................................................................................... 300.712(a).
•
For administrative costs ............................................................................................................................................ 300.710(a).
USE OF SEA ALLOCATIONS ....................................................................................................................................... 300.704.
•
Inapplicability of requirements that prohibit commingling and supplanting of funds ........................................ 300.704(d).
VISUAL IMPAIRMENT INCLUDING BLINDNESS (Definition) ................................................................................. 300.8(c)(13).
VOCATIONAL EDUCATION
•
Definition .................................................................................................................................................................... 300.39(b)(5).
•
In definition of ‘‘Special education’’ ........................................................................................................................ 300.39(a)(2)(iii).
•
Program options ......................................................................................................................................................... 300.110.
•
Transition services ..................................................................................................................................................... 300.320(b)(1).
VOCATIONAL REHABILITATION (See ‘‘Rehabilitation’’)
VOLUNTARY DEPARTURE OF PERSONNEL
(Exception to LEA maintenance of effort) .................................................................................................................... 300.204(a).
WAIVER(S)
•
For exceptional and uncontrollable circumstances (State maintenance of effort) ................................................ 300.163(c).
•
‘‘In whole or in part’’ ................................................................................................................................................. 300.164(e).
•
Public benefits or insurance (Risk of loss of eligibility for home and community-based waivers) ..................... 300.154(d)(2)(iii)(D).
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Federal Register
/ Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations
46845
•
State-level nonsupplanting ........................................................................................................................................ 300.162(c).
•
State maintenance of effort ....................................................................................................................................... 300.163.
•
State’s procedures for monitoring ............................................................................................................................. 300.164(c)(2)(ii)(B).
•
Waiver procedures ..................................................................................................................................................... 300.164.
WARD OF THE STATE
•
Appointment of surrogate parent .............................................................................................................................. 300.519(c).
•
Definition .................................................................................................................................................................... 300.45.
•
See definition of ‘‘Parent’’ ......................................................................................................................................... 300.30(a)(3).
•
See ‘‘Surrogate parents’’ ............................................................................................................................................ 300.519(a)(3).
WEAPON (Definition) ................................................................................................................................................... 300.530(i)(4).
WHEN IEPS MUST BE IN EFFECT .............................................................................................................................. 300.323.
PART 301—[REMOVED]
■
2. Remove part 301.
[FR Doc. 06–6656 Filed 8–3–06; 8:45 am]
BILLING CODE 4000–01–P
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Chapter 72.--SCHOOLS
Article 9.--SPECIAL EDUCATION
72-961. Citation of act.
This act shall be known and may be cited as the
special education for exceptional children act.
History.
L. 1974, ch. 290, § 1;
L. 1979, ch. 219, § 1; L. 1999, ch. 116, § 1; July 1.
K.S.A. 72-962
.
Definitions
. As used in this act:
(a) ‘‘School district’’ means any public school district.
(b) ‘‘Board’’ means the board of education of any school district.
(c) ‘‘State board’’ means the state board of education.
(d) ‘‘Department’’ means the state department of education.
(e) ‘‘State institution’’ means any institution under the jurisdiction of a state
agency.
(f) ‘‘State agency’’ means the department of social and rehabilitation services,
the department of corrections and the juvenile justice authority.
(g) ‘‘Exceptional children’’ means persons who are children with disabilities
or gifted children and are school age, to be determined in accordance with rules
and regulations adopted by the state board, which age may differ from the ages
of children required to attend school under the provisions of K.S.A. 72-1111, and
amendments thereto.
(h) ‘‘Gifted children’’ means exceptional children who are determined to be
within the gifted category of exceptionality as such category is defined by the
state board.
(i) ‘‘Special education’’ means specially designed instruction provided at no
cost to parents to meet the unique needs of an exceptional child, including:
(1) Instruction conducted in the classroom, in the home, in hospitals and
institutions, and in other settings; and
(2) instruction in physical education.
(j) ‘‘Special teacher’’ means a person, employed by or under contract with a
school district or a state institution to provide special education or related
services, who is: (1) Qualified to provide special education or related services to
exceptional children as determined pursuant to standards established by the
state board; or (2) qualified to assist in the provision of special education or
related services to exceptional children as determined pursuant to standards
established by the state board.
(k) ‘‘State plan’’ means the state plan for special education and related
services authorized by this act.
(l) ‘‘Agency’’ means boards and the state agencies.
(m) ‘‘Parent’’ means: (1) A natural parent; (2) an adoptive parent;
(3) a person acting as parent; (4) a legal guardian; (5) an education advocate; or
(6) a foster parent, if the foster parent has been appointed the education
advocate of an exceptional child.
(n) ‘‘Person acting as parent’’ means a person such as a grandparent
,
stepparent or other relative with whom a child lives or a person other than a
parent who is legally responsible for the welfare of a child.
(o) ‘‘Education advocate’’ means a person appointed by the state board in
accordance with the provisions of section 13, and amendments thereto. A person
appointed as an education advocate for a child shall not be: (1) An employee of
the agency which is required by law to provide special education or related
services for the child; (2) an employee of the state board, the department, or any
agency which is directly involved in providing educational services for the child;
or (3) any person having a professional or personal interest which would conflict
with the interests of the child.
(p) ‘‘Free appropriate public education’’ means special education and
related services that: (1) Are provided at public expense, under public
supervision and direction, and without charge; (2) meet the standards of
the state board; (3) include an appropriate preschool, elementary, or secondary
school education; and (4) are provided in conformity with an individualized
education program.
(q) ‘‘Federal law’’ means the individuals with disabilities education
act, as amended.
(r) ‘‘Individualized education program’’ or ‘‘IEP’’ means a written
statement for each exceptional child that is developed, reviewed, and
revised in accordance with the provisions of K.S.A. 72-987, and amendments
thereto.
(s) (1) ‘‘Related services’’ means transportation, and such developmental,
corrective, and other supportive services, including speech-language
pathology and audiology services, interpreting services
,
psychological
services, physical and occupational therapy, recreation, including
therapeutic recreation, social work services, school nurse services designed
to enable a child with a disability to receive a free appropriate public education as
described in the child’s IEP
,
counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services, except that
such medical services shall be for diagnostic and evaluation purposes only, as
may be required to assist an exceptional child to benefit from special education,
and includes the early identification and assessment of disabling conditions in
children.
(2) ‘‘Related services’’ shall not mean any medical device that is surgically
implanted or the replacement of any such device.
(t) ‘‘Supplementary aids and services’’ means aids, services, and other
supports that are provided in regular education classes or other education-
related settings to enable children with disabilities to be educated with
nondisabled children to the maximum extent appropriate.
(u) ‘‘Individualized education program team’’ or ‘‘IEP team’’ means
a group of individuals composed of: (1) The parents of a child; (2) at least
one regular education teacher of the child, if the child is, or may be,
participating in the regular education environment; (3) at least one special
education teacher or, where appropriate, at least one special education
provider of the child; (4) a representative of the agency directly involved
in providing educational services for the child who: (A) Is qualified to
provide, or supervise the provision of, specially designed instruction to
2
meet the unique needs of exceptional children; (B) is knowledgeable
about the general curriculum; and (C) is knowledgeable about the availability
of resources of the agency; (5) an individual who can interpret the
instructional implications of evaluation results; (6) at the discretion of the
parent or the agency, other individuals who have knowledge or special
expertise regarding the child, including related services personnel as appropriate;
and (7) whenever appropriate, the child.
(v) ‘‘Evaluation’’ means a multisourced and multidisciplinary examination,
conducted in accordance with the provisions of K.S.A. 72-986, and amendments
thereto, to determine whether a child is an exceptional child.
(w) ‘‘Independent educational evaluation’’ means an examination
which is obtained by the parent of an exceptional child and performed
by an individual or group of individuals who meet state and local standards
to conduct such an examination.
(x) ‘‘Elementary school’’ means any nonprofit institutional day or residential
school that offers instruction in any or all of the grades kindergarten through nine.
(y) ‘‘Secondary school’’ means any nonprofit institutional day or residential
school that offers instruction in any or all of the grades nine through 12.
(z) ‘‘Children with disabilities’’ means
:
(1) Children with mental retardation,
hearing impairments including deafness, speech or language impairments, visual
impairments including blindness, emotional disturbance, orthopedic impairments,
autism, traumatic brain injury, other health impairments, or specific learning
disabilities and who, by reason thereof, need special education and related
services; and (2) children experiencing one or more developmental delays and,
by reason thereof, need special education and related services if such children
are ages three through nine.
(aa) ‘‘Substantial change in placement’’ means the movement of an
exceptional child, for more than 25% of the child’s school day, from a
less restrictive environment to a more restrictive environment or from a
more restrictive environment to a less restrictive environment.
(bb) ‘‘Material change in services’’ means an increase or decrease of
25% or more of the duration or frequency of a special education service,
a related service or a supplementary aid or a service specified on the IEP
of an exceptional child.
(cc) ‘‘Developmental delay’’ means such a deviation from average
development in one or more of the following developmental areas, as determined
by appropriate diagnostic instruments and procedures, as indicates that special
education and related services are required: (1) Physical; (2) cognitive; (3)
adaptive behavior; (4) communication; or (5) social oremotional development.
(dd) ‘‘Homeless children’’ means ‘‘homeless children and youths’’ as
defined in the federal McKinney-Vento homeless assistance act, 42 U.S.C.
11434a.
(ee) ‘‘Limited English proficient’’ means an individual who meets the
qualifications specified in section 9101 of the federal elementary and secondary
education act of 1965, as amended.
History:
L. 1974, ch. 290, § 2; L. 1975, ch.
365, § 1; L. 1977, ch. 240, § 1; L. 1978, ch. 349, § 6; L. 1979, ch. 219, § 2; L.
3
1980, ch. 216, § 1; L. 1982, ch. 357, § 21; L. 1982, ch. 182, § 140; L. 1985, ch.
237, § 1; L. 1987, ch. 268, § 2; L. 1991, ch. 218, § 1; L. 1992, ch. 199, § 2; L.
1994, ch. 307, § 9; L. 1996, ch. 229, § 119; L. 1999, ch. 116, § 2; L. 2005, ch.
171, § 1; L. 2006, ch. 200, §112; January 1, 2007.
K.S.A. 72-963
.
Administration by state board; rules and regulations;
state plan.
(a) The state board shall adopt and administer the state plan. The
state board may amend the state plan as necessary. The state plan, and
amendments thereto, shall be prepared in consultation with the state
advisory council for special education provided for in this act.
(b) The state board may adopt rules and regulations for administration
of this act and shall adopt rules and regulations necessary to comply
with the federal law and to implement the provisions of this act. Any rules
and regulations in effect on July 1, 2005, that conflict with federal law or
this act are suspended until amended or revoked by the state board.
(c) The state board may apply to participate in any pilot program
authorized by the federal law and, if approved, may participate in any
such program.
History:
L. 1974, ch. 290, § 3; L. 1975, ch. 428, § 3; L. 1982, ch.
291, § 1; L. 1999, ch. 116, § 3; L. 2005, ch. 171, § 2; July 1.
K.S.A. 72-963a
.
Dispute resolution procedures; hearing officers and
mediators, qualification standards, education and training, list.
The state board shall:
(a) Establish procedures, which shall be utilized by each agency, to allow
parties to disputes involving any matter described in subsection (b)(4) of K.S.A.
72-988, and amendments thereto, or in K.S.A. 72-992a, and amendments
thereto, to resolve such disputes through a mediation process or through due
process hearings which meet the requirements of the federal law and this act.
(b) Establish the qualification of persons as hearing officers and mediators in
accordance with federal law.
(c) Compile and maintain a list of qualified hearing officers and
mediators.
History
L. 1983, ch. 237, § 2; L. 1999, ch. 116, § 4; L. 2005, ch. 171,
§ 3; July 1.
72-963b.
L. 1983, ch. 237, § 4; Repealed, L. 1999, ch. 116, § 51; July 1.
72-963c. Education advocates, appointment and qualification; training
programs.
(a) The state board, in consultation with the state advisory council for
special education, shall:
(1) Prescribe guidelines for the selection of persons for appointment as
education advocates and for the exercise of their authorized powers, duties and
functions;
(2) establish standards and criteria for qualification of persons for
appointment as education advocates; and
(3) provide for special training programs with respect to the powers, duties
and functions of parents.
4
(b) Parents who are education advocates shall, and all other parents may,
participate in the special training programs provided for under provision (3) of
subsection (a).
History:
L. 1985, ch. 237, § 2; L. 1987, ch. 268, § 3; L. 1999,
ch. 116, § 5; July 1.
K.S.A. 72-964. State advisory council for special education;
composition; duties; expenses; meetings.
(a) There is established a state
advisory council for special education which shall consist of not more than 21
members. Members of the advisory council shall be appointed by the state board
of education, and shall serve for a term of three years. No member may serve
more than two consecutive terms. Whenever a vacancy occurs in the
membership of the advisory council for any reason other than the expiration of
the term of a member, the state board shall appoint a successor for the
remainder of the unexpired term.
(b) (1) The advisory council established under this section shall be
representative of the state population and be comprised of persons involved
in, or concerned with, the education of exceptional children, including: (A)
Parents of exceptional children, ages birth through 26 years
.
At least one of
such parents shall be the parent of a gifted child; (B) individuals with disabilities;
(C) teachers; (D) representatives of institutions of higher education that prepare
special education and related services personnel; (E) state and local education
officials
,
including officials who carry out activities under the federal McKinney-
Vento homeless education act, 42 U.S.C. 11431 et seq.; (F) administrators of
programs for exceptional children; (G) representatives of other state agencies
involved in the financing or delivery of related services to exceptional children;
(H) representatives of private schools and public charter schools; (I) at least one
representative of a vocational, community, or business organization concerned
with the provision of transition services to children with disabilities; (J)
representatives from the state juvenile and adult corrections agencies
;
and (K) a
representative from the state agency responsible for foster care of children.
(2) A majority of the members of the advisory council shall be individuals
with disabilities or parents of children with disabilities ages birth through 26.
(c) The state advisory council for special education shall:
(1) Advise the state board of unmet needs within the state in the
education of exceptional children;
(2) comment publicly on any rules and regulations proposed by the
state board regarding the education of exceptional children;
(3) advise the state board in developing evaluations and reporting on
data to the federal government;
(4) advise the state board in developing corrective action plans to address
findings identified in federal monitoring reports; and
(5) advise the state board in developing and implementing policies
relating to the coordination of services for exceptional children.
(d) Members of the state advisory council for special education attending
meetings of such council, or attending a subcommittee meeting thereof
authorized by the state board, shall be paid subsistence allowances,
5
mileage and other expenses as provided in K.S.A. 75-3223, and
amendments thereto.
(e) The state board shall call the members of the advisory council to
meet at least once each year, at which meeting the council shall organize
by electing a chairperson and a vice-chairperson. The person in the department
specified to be the principal administrator of special education and related
services shall be the secretary of the advisory council. The council shall meet
upon the call of the chairperson or upon the call of the state board as often as
may be necessary at times and places designated by the chairperson or by the
state board in order to fulfill the duties prescribed under the provisions of this act.
History.
L. 1974, ch. 290, § 4; L. 1982, ch. 292, § 1; L. 1987, ch. 268, § 4; L.
1999, ch. 116, § 6; L. 2005, ch. 171, § 4; July 1.
K.S.A. 72-965
.
State and federal funds; distribution and allocation;
payments; adjustments; grants and contributions.
(a) The state board shall
be responsible for the distribution and allocation of state and federal funds for
special education. Such moneys shall be expended only in accordance with and
for the purposes specified in federal or state law. Payments under this act may
be made in installments and in advance or by way of reimbursement, with
necessary adjustments for overpayments or underpayments. Federal funds for
special education shall be deposited in the state treasury.
(b) The state board is hereby authorized to accept from an individual
or individuals, the United States government or any of its agencies or any
other public or private body, grants or contributions of money, funds or
property which the state board may authorize to be used in accordance
with appropriation acts, for or in aid of special education or related services
or any of the purposes authorized by the federal law or this act.
(c) (1) Each board may use up to 15% of the amount it receives each
year under the federal law to develop and implement coordinated, early
intervening services for students in kindergarten through grade 12, with
a particular emphasis on students in kindergarten through grade 3, who
have not been identified as needing special education or related services
but who appear to need additional academic and behavioral support to
succeed in a general education environment.
(2) In implementing coordinated, early intervening services under
this subsection, a board may carry out activities that include:
(A) Providing professional development for teachers and other school
staff to enable such personnel to deliver scientifically based academic instruction
and behavioral interventions, including scientifically based literacy
instruction and, where appropriate, instruction on the use of adaptive
and instructional software; and
(B) providing educational and behavioral evaluations, services and
supports, including scientifically based literacy instruction.
(3) Each board that develops and maintains coordinated, early intervening
services under this subsection shall annually report to the department:
(A) The number of students served under this subsection; and
6
(B) the number of students served under this subsection who subsequently
receive special education and related services under this title during
the 2-year period preceding each report. History. L. 1974, ch. 290, § 5; L. 1999,
ch. 116, § 7; L. 2005, ch. 171, § 5; July 1
K.S.A. 72-966. Duties of boards of education in meeting requirements of
law; responsibilities of state board of education and other state agencies;
interagency agreements; dispute resolution.
(a) (1) Each board shall adopt
and implement procedures to assure that all exceptional children residing in the
school district, including homeless children, foster care children and children
enrolled in private schools, who are in need of special education and related
services, are identified, located and evaluated.
(2) Each board shall provide a free appropriate public education for
exceptional children enrolled in the school district and for children with
disabilities who are placed in a private school or facility by the school
district as the means of carrying out the board’s obligation to provide a
free appropriate public education under this act and for children with
disabilities who have been suspended for an extended term or expelled
from school.
(3) Each board shall provide exceptional children who are enrolled
by their parents in private schools with special education and related
services in accordance with state law and federal law.
(b) If an exceptional child, upon referral by a person licensed to practice
medicine and surgery, is admitted to a hospital, treatment center, or
other health care institution, or to a group boarding home or other care
facility, and the institution or facility is located outside the school district
in which the child resides, the district in which the institution or facility
is located may contract with the district in which a parent of the child
resides to provide special education or related services, if such services
are necessary for the child. Special education and related services required
by this subsection may be provided pursuant to a contract entered
into between the board of the school district of which the child is a resident
and the board of the school district in which the child is housed.
Any such contract shall be subject to the provisions of subsections (a)(3)
and (c) of K.S.A. 72-967, and amendments thereto. If a contract is not
entered into between the school districts, the child shall be deemed to
be a pupil of the school district which is providing special education and
related services to the child. Nothing in this subsection shall be construed
to limit or supersede or in any manner affect or diminish the requirements
of compliance by each school district with the provisions of subsection
(a), but shall operate as a comity of school districts in assuring the provision
of special education services for each exceptional child in the state.
(c) (1) Special education and related services required by this section
shall meet standards and criteria set by the state board.
(2) The state board shall be responsible for assuring that the requirements
7
of the federal law and this act are met and that all educational programs for
exceptional children, including programs administered by any other state agency:
(A) Are under the general supervision of individuals who are responsible for
educational programs for exceptional children; and (B) meet the educational
standards prescribed by the state board.
(3) Provision (2) of this subsection shall not limit the responsibility of
any other state agency to provide, or pay for some or all of the costs of,
a free appropriate public education for an exceptional child.
(d) Consistent with state and federal law, state agencies shall enter
into such interagency agreements as are necessary or advisable in making
a free appropriate public education available to all exceptional children
residing in the state. The state board shall establish procedures for resolving
interagency disputes, including procedures under which local educational
agencies may initiate proceedings to secure reimbursement or otherwise
implement or seek enforcement of the provisions of the interagency
agreement.
(e) Each school board and state agency is prohibited from requiring any child
to obtain a prescription for a substance covered by the federal controlled
substances act, 21 U.S.C. 801 et seq., as a condition for the child to attend
school or be evaluated or receive special education services under this act
.
History:
L. 1974, ch. 290, § 6; L. 1979, ch. 219, § 3; L. 1991, ch. 218, § 2; L.
1992, ch. 199, § 1; L. 1999, ch. 116, § 8; L. 2005, ch. 171, § 6; July 1.
72-967. Methods of compliance with requirements of act; powers and
duties of boards of education.
(a) Each board, in order to comply with the
requirements of this act shall have the authority to:
(1) Provide appropriate special education and related services for
exceptional children within its schools.
(2) Provide for appropriate special education and related services in the
home, in a hospital or in other facilities.
(3) Contract with another school district for special education and related
services. Any such contract may provide for the payment of tuition and other
costs by the school district in which the child is enrolled.
(4) Enter into cooperative agreements with one or more other school districts
for special education and related services.
(5) Contract with any private nonprofit corporation or any public or private
institution, within or outside the state, which has proper special education or
related services for exceptional children. Whenever an exceptional child is
educated by a private nonprofit corporation or a public or private institution as
provided under this paragraph, such child shall be considered a pupil of the
school district contracting for such education to the same extent as other pupils
of such school district for the purpose of determining entitlements and
participation in all state, federal and other financial assistance or payments to
such school district.
(6) Furnish transportation for exceptional children, whether such children are
residents or nonresidents of such school district, for the provision of special
8
education or related services. In lieu of paying for transportation, the board of the
school district in which an exceptional child resides may pay all or part of the cost
of room and board for such exceptional child at the place where the special
education or related services are provided.
(b) Special education and related services which are provided for exceptional
children shall meet standards and criteria set by the state board and shall be
subject to approval by the state board.
(c) Any contract entered into by a board under the provisions of this section
shall be subject to change or termination by the legislature.
History:
L. 1974,
ch. 290, § 8; L. 1976, ch. 306, § 1; L. 1999, ch. 116, § 13; July 1.
72-968. Cooperative agreements; requirements and conditions;
duration; partial or complete termination; change or modification.
(a) The
boards of any two or more school districts within or outside the state may make
and enter into agreements providing for cooperative operation and administration
in providing special education and related services for exceptional children on a
shared-cost basis, subject to the following:
(1) An agreement shall be effective only after approval by the state board,
which approval shall be granted if the special education services provided for in
such agreement meet standards and criteria set by the state board.
(2) (A) The duration of an agreement shall be perpetual but the agreement
may be partially or completely terminated as hereinafter provided.
(B) Partial termination of an agreement made and entered into by the boards
of three or more school districts may be accomplished only upon petition for
withdrawal from the agreement made by a contracting school district to the other
contracting school districts and approval by the state board of written consent to
the petition by such other school districts or upon order of the state board after
appeal to it by a school district from denial of consent to a petition for withdrawal
and hearing thereon conducted by the state board. The state board shall
consider all the testimony and evidence brought forth at the hearing and issue an
order approving or disapproving withdrawal by the school district from the
agreement.
(C) Complete termination of an agreement made and entered into by the
boards of two school districts may be accomplished upon approval by the state
board of a joint petition made to the state board for termination of the agreement
by both of the contracting school districts after adoption of a resolution to that
effect by each of the contracting school districts or upon petition for withdrawal
from the agreement made by a contracting school district to the other contracting
school district and approval by the state board of written consent to the petition
by such other school district or upon order of the state board after appeal to it by
a school district from denial of consent to a petition for withdrawal and hearing
thereon conducted by the state board. The state board shall consider all the
testimony and evidence brought forth at the hearing and issue an order
approving or disapproving withdrawal by the school district from the agreement.
(D) Complete termination of an agreement made and entered into by the
boards of three or more school districts may be accomplished only upon approval
9
by the state board of a joint petition made to the state board for termination of the
agreement by not less than 2/3 of the contracting school districts after adoption
of a resolution to that effect by each of the contracting school districts seeking
termination of the agreement. The state board shall consider the petition and
approve or disapprove termination of the agreement.
(E) The state board shall take such action in approving or disapproving the
complete or partial termination of an agreement as the state board deems to be
in the best interests of the involved school districts and of the state as a whole in
the provision of special education services for exceptional children. Whenever
the state board has disapproved the complete or partial termination of an
agreement, no further action with respect to such agreement shall be considered
or taken by the state board for a period of not less than three years.
(3) An agreement shall designate the sponsoring school district and shall
provide for a separate fund thereof, to which each contracting district shall pay
the moneys due from it under the agreement. Any school district which is a party
to an agreement may be designated the sponsoring district.
(4) An agreement shall specify the method or methods to be employed for
disposing of property upon partial or complete termination.
(5) Within the limitations provided by law, an agreement may be changed or
modified by mutual consent of the contracting school districts.
(6) An agreement shall be subject to change or termination by the legislature.
(b) The provisions of this section apply to every agreement entered into
under authority of this section after the effective date of this act and to every
agreement entered into under this section prior to the effective date of this act,
and extant on the effective date of this act, regardless of any provisions in such
agreement to the contrary.
History:
L. 1974, ch. 290, § 9; L. 1987, ch. 269, § 1;
L. 1997, ch. 35, § 1; L. 1999, ch. 116, § 14; July 1.
72-970. State institutions required to provide special education and
related services; standards and criteria; contracts authorized; correctional
institutions, certain exemptions.
(a) Except as otherwise provided in
subsection (b), every state institution shall provide special education and related
services for exceptional children housed and maintained in the state institution
and such services shall meet standards and criteria set by the state board and
shall be subject to approval by the state board. State institutions may contract
with local school districts and other appropriate agencies or individuals for
special education or related services. Prior to the time any state institution enters
into a contract for special education or related services, the services to be
provided shall be approved by the state board.
(b) In providing special education or related services to incarcerated children
with disabilities, a correctional institution shall be exempt from the requirements
of this act to the extent authorized by the federal law.
History:
L. 1974, ch. 290, § 11; L. 1975, ch. 365, § 2; L. 1977, ch. 240, § 2;
L. 1999, ch. 116, § 15; July 1.
10
K.S.A. 72-971
.
Reports by state board; furnishing of data by districts
and state agencies.
(a) The state board shall prepare and file such reports as
are required by the federal law or this act.
(b) School districts and state agencies having data needed by the state board
to complete required reports shall furnish such data, as requested, to the state
board.
History:
L. 1974, ch. 290, § 12; L. 1999, ch. 116, § 16; L. 2005, ch. 171,
§ 7; July 1.
72-972a. Due process hearing, initiation of; complaint notice; response
to notice.
(a) (1) Subject to the requirements in this section, the parent of an
exceptional child or the agency responsible for providing services to the child
may initiate a due process hearing regarding any problem arising in regard to any
matter governed by this act, if:
(A) The problem about which complaint is made occurred not more
than two years before the filing of the complaint and the party filing the
complaint knew or should have known about the alleged action that forms
the basis of the complaint;
(B) the party filing the complaint or the attorney for that party provides
to the other party and to the department, a written due process complaint notice
that shall remain confidential and include the following information:
(i) the name of the child, the address of the residence of the child
(or in the case of a homeless child or youth, available contact information
for the child), and the name of the school the child is attending;
(ii) a description of the nature of the problem and the facts that form
the basis of the complaint; and
(iii) a proposed resolution of the problem.
(2) A parent or an agency shall not be entitled to a due process hearing
until the parent or agency, or their attorney, files a notice that meets the
requirements of this subsection.
(b) (1) Any due process complaint notice filed by a parent shall be
deemed to be timely even if presented more than two years after the
occurrence of the facts giving rise to the complaint, if:
(A) The agency made specific misrepresentations that it had resolved
the problem forming the basis of the complaint; or
(B) the agency withheld information from the parent that is required
to be given to the parent under this act.
(2) The due process complaint notice required by subsection (a) shall
be deemed to be sufficient unless the party receiving the notice notifies
the hearing officer and the other party, in writing, within 15 days of
receiving the complaint, that the receiving party believes the notice does
not meet the requirements.
(3) Within five days of receipt of the notification provided under subsection
(a), the hearing officer shall make a determination of whether the
notification meets the requirements of subsection (b)(2) and shall immediately
notify the parties, in writing, of such determination.
(c) (1) If the complaint is filed by a parent and the agency has not
11
sent a prior written notice to the parent regarding the problem described
in the parent’s due process complaint notice, the agency, within 10 days
of receiving the complaint, shall send to the parent a response that includes:
(A) An explanation of why the agency proposed or refused to take
the action raised in the complaint, or an appropriate reply if the problem
does not address proposed or refused action by the agency;
(B) a description of other options that the IEP team considered and
the reasons why those options were rejected;
(C) a description of each evaluation procedure, assessment, record
or report the agency used as the basis for any action it has proposed or
refused; and
(D) a description of the factors that are relevant to the agency’s proposal
or refusal, or in reply to the complaint.
(2) The fact an agency gives notice to a parent pursuant to paragraph
(1) shall not preclude such agency from asserting that the parent’s due
process complaint notice is insufficient.
(d) The non-complaining party, within 10 days of receiving the complaint,
shall send to the complaining party a response that specifically
addresses the issues raised in the complaint.
(e) (1) A party may amend its due process complaint notice only if:
(A) The other party consents in writing to such amendment and is
given the opportunity to resolve the complaint through a meeting held
pursuant to K.S.A. 72-973, and amendments thereto; or
(B) the hearing officer grants permission, except that such permission
shall be granted not less than five days before a due process hearing occurs.
(2) The applicable timeline for a due process hearing shall recommence
at the time the party files an amended notice, including the timeline for resolution
of the complaint.
(f) (1) Nothing in this section shall be construed to preclude a parent
or an agency from filing a separate due process complaint on an issue
different from issues presented in a due process complaint already filed.
(2) Upon motion of either party and if deemed appropriate by the
due process hearing officer presiding in the initial hearing, the issues
raised in the separate complaints may be considered and resolved in the
same due process hearing.
History.
L. 2005, ch. 171, § 8; July 1.
K.S.A. 72-973
.
Due process requirements; time limitations; access to
records; hearing officers
. (a) (1) Except as hereinafter provided, within 15
days of receipt of a due process complaint notice from a parent, the agency shall
convene a meeting with the parent and the member or members of the IEP team
who have specific knowledge of the facts identified in the complaint, and a
representative of the agency who has the authority to make binding decisions
on behalf of the agency. This meeting shall not include the agency’s
attorney unless the parent is accompanied by an attorney
.
(2) At this meeting, the parent of the child shall discuss and explain
the complaint, including the facts that form the basis of the complaint and
12
the agency shall be provided the opportunity to resolve the complaint.
(3) If the meeting of the parties results in a resolution of the complaint,
the parties shall execute a written agreement that both the parent
and the representative of the agency shall sign and that, at a minimum,
includes the following statements:
(A) The agreed upon resolution of each issue presented in the complaint;
(B) that each party understands that the agreement is legally binding
upon them, unless the party provides written notice to the other party,
within three days of signing the agreement, that the party giving notice
is voiding the agreement; and
(C) if not voided, each party understands that the agreement may be
enforced in state or federal court.
(4) If a resolution of the complaint is not reached at the meeting held under
this subsection and the agency has not resolved the complaint to the satisfaction
of the parent within 30 days of the agency’s receipt of the complaint, the due
process hearing procedures shall be implemented and all of the applicable
timelines for a due process hearing shall commence. All discussions that
occurred during the meeting shall be confidential and may not be used as
evidence in any subsequent hearing or civil proceeding
.
(5) A meeting shall not be required under this subsection if the parent and the
agency agree, in writing, to waive such a meeting, or they agree to use mediation
to attempt to resolve the complaint.
(b) Any due process hearing provided for under this act, shall be held at a
time and place reasonably convenient to the parent of the involved child, be a
closed hearing unless the parent requests an open hearing, and be conducted in
accordance with procedural due process rights, including the following:
(1) The right of the parties to be accompanied and advised by counsel and by
individuals with special knowledge or training with respect to the problems of
children with disabilities;
(2) the right of the parties to be present at the hearing;
(3) the right of the parties to confront and cross-examine witnesses
who appear in person at the hearing, either voluntarily or as a result of
the issuance of a subpoena;
(4) the right of the parties to present witnesses in person or their
testimony by affidavit, including expert medical, psychological or educational
testimony;
(5) the right of the parties to prohibit the presentation of any evidence at the
hearing which has not been disclosed to the opposite party at least five days
prior to the hearing, including any evaluations completed by that date and any
recommendations based on such evaluations;
(6) the right to prohibit the other party from raising, at the due process
hearing, any issue that was not raised in the due process complaint notice or in a
prehearing conference held prior to the hearing;
(7) the right of the parties to have a written or, at the option of the parent, an
electronic, verbatim record of the hearing; and
13
(8) the right to a written or, at the option of the parent, an electronic decision,
including findings of facts and conclusions.
(c) Except as provided by subsection (a), each due process hearing, other
than an expedited hearing under K.S.A. 72-993, and amendments thereto, shall
be held not later than 35 days from the date on which the request therefor is
received. The parties shall be notified in writing of the time and place of the
hearing at least five days prior thereto. At any reasonable time prior to the
hearing, the parent and the counsel or advisor of the involved child shall be given
access to all records, tests, reports or clinical evaluations relating to the
proposed action.
(d) (1) Except as otherwise provided in K.S.A. 72-993, and amendments
thereto, during the pendency of any proceedings conducted under this act,
unless the agency and parent otherwise agree, the child shall remain in the then-
current educational placement of such child.
(2) If proceedings arise in connection with the initial admission of the child to
school, the child shall be placed in the appropriate regular education classroom
or program in compliance with K.S.A. 72-1111, and amendments thereto, unless
otherwise directed pursuant to section 18, and amendments thereto.
(e) Subject to the provisions of K.S.A. 72-973a, and amendments thereto, the
agency shall appoint a hearing officer for the purpose of conducting the hearing.
Members of the state board, the secretary of social and rehabilitation services,
the secretary of corrections, the commissioner of the juvenile justice authority,
and members of any board or agency involved in the education of the child shall
not serve as hearing officers. No hearing officer shall be any person responsible
for recommending the proposed action upon which the hearing is based, any
person having a personal or professional interest which would conflict with
objectivity in the hearing, or any person who is an employee of the state board or
any agency involved in the education of the child. A person shall not be
considered an employee of the agency solely because the person is paid by the
agency to serve as a hearing officer. Each agency shall maintain a list of hearing
officers. Such list shall include a statement of the qualifications of each hearing
officer. Each hearing officer and each state review officer shall be qualified in
accordance with standards and requirements established by the state board and
shall have satisfactorily completed a training program conducted or approved by
the state board.
(f) (1) Any party to a due process hearing who has grounds to believe
that the hearing officer cannot afford the party a fair and impartial hearing
due to bias, prejudice or a conflict of interest may file a written request
for the hearing officer to disqualify such officer and have another hearing
officer appointed by the state board. Any such written request shall state
the grounds for the request and the facts upon which the request is based.
(2) If a request for disqualification is filed, the hearing officer shall
review the request and determine the sufficiency of the grounds stated in
the request. The hearing officer then shall prepare a written order concerning
the request and serve the order on the parties to the hearing. If the grounds are
found to be insufficient, the hearing officer shall continue to serve as the hearing
14
officer. If the grounds are found to be sufficient, the hearing officer immediately
shall notify the state board and request the state board to appoint another
hearing officer.
(g) (1) Except as provided in paragraph (2), the decision of the hearing officer
in each due process hearing shall be based on substantive grounds and a
determination of whether the child received a free appropriate public education.
(2) In due process hearings in which procedural violations are alleged, the
hearing officer may find that the child did not receive a free appropriate public
education only if the hearing officer concludes the procedural violations did occur
and those violations:
(A) Impeded the child’s right to a free appropriate public education;
(B) significantly impeded the parents’ opportunity to participate in
the decision making process regarding the provision of a free appropriate
public education to the parents’ child; or
(C) caused a deprivation of educational benefits.
(3) Nothing in this subsection shall be construed to preclude a hearing
officer from ordering a local educational agency to comply with procedural
requirements under this act.
(h) Whenever a hearing officer conducts any hearing, such hearing
officer shall render a decision on the matter, including findings of fact
and conclusions, not later than 10 days after the close of the hearing. The
decision shall be written or, at the option of the parent, shall be an electronic
decision. Any action of the hearing officer in accordance with this
subsection shall be final, subject to appeal and review in accordance with
this act.
History:
L. 1974, ch. 290, § 14; L. 1977, ch. 241, § 2; L. 1978, ch. 286,
§ 2; L. 1980, ch. 216, § 3; L. 1983, ch. 237, § 1; L. 1986, ch. 318, § 127; L. 1991,
ch. 218, § 3; L. 1999, ch. 116, § 20; L. 2005, ch. 171, § 9; July 1.
K.S.A. 72-973a
.
Same; list and appointment of hearing officers;
procedure
. Prior to appointing any hearing officer to conduct a due process
hearing provided for under this act, the agency shall make its list of hearing
officers available to the parent of the involved child and shall inform the parent of
the right to request disqualification of any or all of the hearing officers on the list
and to request the state board to appoint a hearing officer in accordance with the
procedure provided in this subsection. If the parent does not give written notice of
disqualification to the agency within five days after the parent receives the list,
the agency may appoint from its list any hearing officer whom the parent has not
requested to be disqualified. If the parent requests disqualification of all of the
hearing officers and requests the appointment of a hearing officer by the state
board, the agency shall immediately notify the state board and shall request the
state board to appoint a hearing officer.
History:
L. 1983, ch. 237, § 3; L. 1991,
ch. 218, § 4; L. 1999, ch. 116, § 21; July 1.
15
K.S.A. 72-974
.
Appeal and review; procedure; review officers,
appointment and duties; federal court actions.
(a) Written notice of the result
of any hearing provided for under this act shall be given to the agency providing
for the hearing and shall be sent by certified mail to the parent, or attorney of the
child within 24 hours after the result is determined. Such decision, after deletion
of any personally identifiable information contained therein, shall be transmitted
to the state board which shall make the decision available to the state advisory
council for special education and to the public upon request.
(b) (1) Any party to a due process hearing provided for under this act may
appeal the decision to the state board by filing a written notice of appeal with the
commissioner of education not later than 30 calendar days after the date of the
postmark on the written notice specified in subsection (a). A review officer
appointed by the state board shall conduct an impartial review of the decision.
The review officer shall render a decision not later than 20 calendar days after
the notice of appeal is filed. The review officer shall: (A) Examine the record of
the hearing; (B) determine whether the procedures at the hearing were in
accordance with the requirements of due process; (C) afford the parties an
opportunity for oral or written argument, or both, at the discretion of the review
officer; (D) seek additional evidence if necessary; (E) render an independent
decision on any such appeal not later than five days after completion of the
review; and (F) send the decision on any such appeal to the parties and to the
state board.
(2) For the purpose of reviewing any hearing and decision under
provision (1), the state board may appoint one or more review officers.
Any such appointment may apply to a review of a particular hearing or
to reviewing a set or class of hearings as specified by the state board in
making the appointment.
(c) Subject to the provisions of subsection (e), any action of a review
officer pursuant to this section is subject to review in accordance with
the act for judicial review and civil enforcement of agency actions or to
an action in federal court as allowed by the federal law.
(d) Consistent with state court actions, any action in federal court
shall be filed within 30 days after service of the review officer’s decision.
(e) In any action brought under subsection (c), the court:
(1) Shall receive the records of the administrative proceedings;
(2) if it deems necessary, shall hear additional evidence at the request
of a party;
(3) basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate; and
(4) in accordance with the federal law, may award attorneys’ fees to
the prevailing party in any due process hearing or judicial action brought
in accordance with this act.
History:
L. 1974, ch. 290, § 15; L. 1974, ch. 291, §
1; L. 1977, ch. 241, § 3; L. 1978, ch. 286, § 3; L. 1978, ch. 287, § 1; L. 1980, ch.
216, § 4; L. 1982, ch. 292, § 2; L. 1986, ch. 318, § 128; L. 1991, ch. 218, § 5; L.
1993, ch. 63, § 1; L. 1999, ch. 116, § 22; L. 2005, ch. 171, § 10; July 1.
16
72-975. Administration of oaths; issuance of subpoenas; extension of
time; costs; hearing for additional evidence.
(a) Any person conducting a
hearing or review under this act may administer oaths for the purpose of taking
testimony therein.
(b) Any person conducting a hearing or review under this act or any party to
any such hearing or review may request the clerk of the district court to issue
subpoenas for the attendance and testimony of witnesses and the production of
all relevant records, tests, reports and evaluations in the same manner provided
for the issuance of subpoenas in civil actions pursuant to K.S.A. 60-245, and
amendments thereto.
(c) Any person conducting a hearing or review under this act, at the request
of either party, may grant specific extensions of time beyond the limitations
specified in this act.
(d) Any person conducting a hearing under this act shall consider any
request for discovery in accordance with the provisions of K.S.A. 77-522, and
amendments thereto, except that depositions of witnesses who will be available
for the hearing shall not be allowed.
(e) Every hearing and review under this act shall be provided for at no cost to
the child or the parent of the child. The costs of any hearing provided for by a
board shall be paid by the school district.
(f) Any review officer conducting a review under this act may hold a hearing
to receive additional evidence. Every such hearing shall be conducted in
accordance with requirements which are consonant with the requirements of this
act.
History:
L. 1974, ch. 290, § 16; L. 1974, ch. 291, § 2; L. 1977, ch. 241, §
4; L. 1978, ch. 286, § 4; L. 1980, ch. 216, § 5; L. 1982, ch. 292, § 3; L. 1999, ch.
116, § 23; July 1.
72-976. Requirements for education of children with disabilities in
regular classes, exception; admission to state institutions.
(a) Each school
district shall be required, to the maximum extent appropriate, to educate children
with disabilities with children who are not disabled, and to provide special
classes, separate schooling or for the removal of children with disabilities from
the regular education environment only when the nature or severity of the
disability of the child is such that education in regular classes with supplementary
aids and services cannot be achieved satisfactorily.
(b) Nothing in this section shall be construed to authorize the state board or
any board to function as an admitting agency to the state institutions or to limit or
supersede or in any manner affect the requirements of each board to comply with
the provisions of K.S.A. 72-966, and amendments thereto, to provide special
education services for each exceptional child in the school district unless and
until such child meets the criteria for admission to a state institution and is so
admitted by the state institution. Each state institution shall publish the criteria for
admission to such state institution and shall furnish such criteria to each board
upon request therefor.
History:
L. 1974, ch. 290, § 17; L. 1975, ch. 365, § 3; L.
1977, ch. 240, § 3; L. 1999, ch. 116, § 24; July 1.
17
72-977. Compulsory attendance of exceptional children at school for
receipt of services; provision of services privately; nonapplicability to
gifted children.
(a) Except as otherwise provided in this section, it shall be the
duty of the parent of each exceptional child to require such child to attend school
to receive the special education and related services which are indicated on the
child's IEP or to provide for such services privately.
(b) The provisions of subsection (a) do not apply to gifted children or to
parents of gifted children.
History:
L. 1974, ch. 290, § 18; L. 1980, ch. 216, § 6;
L. 1999, ch. 116, § 25; July 1.
72-978. Reimbursement to school districts; computation of amounts;
apportionment; limitations.
(a) Each year, the state board of education shall
determine the amount of state aid for the provision of special education and related
services each school district shall receive for the ensuing school year. The amount of
such state aid shall be computed by the state board as provided in this section. The
state board shall:
(1) Determine the total amount of general fund and local option budgets of all
school districts;
(2) subtract from the amount determined in paragraph (1) the total amount
attributable to assignment of transportation weighting, program weighting, special
education weighting and at-risk pupil weighting to enrollment of all school districts;
(3) divide the remainder obtained in paragraph (2) by the total number of full-time
equivalent pupils enrolled in all school districts on September 20;
(4) determine the total full-time equivalent enrollment of exceptional children
receiving special education and related services provided by all school districts;
(5) multiply the amount of the quotient obtained in paragraph (3) by the full-time
equivalent enrollment determined in paragraph (4);
(6) determine the amount of federal funds received by all school districts for the
provision of special education and related services;
(7) determine the amount of revenue received by all school districts rendered
under contracts with the state institutions for the provisions of special education and
related services by the state institution;
(8) add the amounts determined under paragraphs (6) and (7) to the amount of the
product obtained under paragraph (5);
(9) determine the total amount of expenditures of all school districts for the
provision of special education and related services;
(10) subtract the amount of the sum obtained under paragraph (8) from the
amount determined under paragraph (9); and
(11) multiply the remainder obtained under paragraph (10) by 92%.
The computed amount is the amount of state aid for the provision of special
education and related services aid a school district is entitled to receive for the ensuing
school year.
(b) Each school district shall be entitled to receive:
(1) Reimbursement for actual travel allowances paid to special teachers at not to
exceed the rate specified under K.S.A. 75-3203, and amendments thereto, for each
mile actually traveled during the school year in connection with duties in providing
special education or related services for exceptional children; such reimbursement
shall be computed by the state board by ascertaining the actual travel allowances paid
to special teachers by the school district for the school year and shall be in an amount
equal to 80% of such actual travel allowances;
18
(2) reimbursement in an amount equal to 80% of the actual travel expenses
incurred for providing transportation for exceptional children to special education or
related services; such reimbursement shall not be paid if such child has been counted
in determining the transportation weighting of the district under the provisions of the
school district finance and quality performance act;
(3) reimbursement in an amount equal to 80% of the actual expenses incurred for
the maintenance of an exceptional child at some place other than the residence of
such child for the purpose of providing special education or related services; such
reimbursement shall not exceed $600 per exceptional child per school year; and
(4) except for those school districts entitled to receive reimbursement under
subsection (c) or (d), after subtracting the amounts of reimbursement under
paragraphs (1), (2) and (3) of this subsection (a) from the total amount appropriated for
special education and related services under this act, an amount which bears the same
proportion to the remaining amount appropriated as the number of full-time equivalent
special teachers who are qualified to provide special education or related services to
exceptional children and are employed by the school district for approved special
education or related services bears to the total number of such qualified full-time
equivalent special teachers employed by all school districts for approved special
education or related services.
Each special teacher who is qualified to assist in the provision of special education
or related services to exceptional children shall be counted as 2/5 full-time equivalent
special teacher who is qualified to provide special education or related services to
exceptional children.
(c) Each school district which has paid amounts for the provision of special
education and related services under an interlocal agreement shall be entitled to
receive reimbursement under subsection (b)(4). The amount of such reimbursement for
the district shall be the amount which bears the same relation to the aggregate amount
available for reimbursement for the provision of special education and related services
under the interlocal agreement, as the amount paid by such district in the current
school year for provision of such special education and related services bears to the
aggregate of all amounts paid by all school districts in the current school year who
have entered into such interlocal agreement for provision of such special education
and related services.
(d) Each contracting school district which has paid amounts for the provision of
special education and related services as a member of a cooperative shall be entitled
to receive reimbursement under subsection (b)(4). The amount of such reimbursement
for the district shall be the amount which bears the same relation to the aggregate
amount available for reimbursement for the provision of special education and related
services by the cooperative, as the amount paid by such district in the current school
year for provision of such special education and related services bears to the
aggregate of all amounts paid by all contracting school districts in the current school
year by such cooperative for provision of such special education and related services.
(e) No time spent by a special teacher in connection with duties performed under a
contract entered into by the Kansas juvenile correctional complex, the Atchison juvenile
correctional facility, the Beloit juvenile correctional facility, the Larned juvenile
correctional facility, or the Topeka juvenile correctional facility and a school district for
the provision of special education services by such state institution shall be counted in
making computations under this section.
History:
L. 1974, ch. 290, § 19; L. 1976, ch. 307, § 1; L. 1986, ch. 265, § 1; L.
1987, ch. 270, § 1; L. 1992, ch. 280, § 39; L. 1996, ch. 229, § 120; L. 1997, ch. 156, §
19
84; L. 1999, ch. 116, § 26; L. 2002, ch. 196, § 1; L. 2003, ch. 72, § 3; L. 2005, ch. 152,
§ 10; L. 2005, ch. 2, § 17 (Special Session); July 28; L. 2006, ch. 197, § 6; July 1.
72-979. Manner of payments determined by state board; disposition;
overpayments; underpayments; forms; reports.
(a) Payments under this act
of state aid for the provision of special education and related services shall be
made in the manner and at such times during each school year as are
determined by the state board. All amounts received by a district under this
section shall be deposited in the general fund of the district and transferred to its
special education fund. If any district is paid more than it is entitled to receive
under any distribution made under this act, the state board shall notify the district
of the amount of such overpayment, and such district shall remit the same to the
state board. The state board shall remit any moneys so received to the state
treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments
thereto. Upon receipt of each such remittance, the state treasurer shall deposit
the entire amount in the state treasury to the credit of the state general fund. If
any such district fails so to remit, the state board shall deduct the excess
amounts so paid from future payments becoming due to such district. If any
district is paid less than the amount to which it is entitled under any distribution
made under this act, the state board shall pay the additional amount due at any
time within the school year in which the underpayment was made or within 60
days after the end of such school year. If the amount of appropriations for state
aid for the provision of special education and related services is insufficient to
pay in full the amount of state aid each school district is entitled to receive for the
school year, the state board shall prorate the amount appropriated among all
school districts.
(b) The state board shall prescribe all forms necessary for reporting under
this act.
(c) Every board shall make such periodic and special reports of information
to the state board as it may request in order to carry out its responsibilities under
this act.
History:
L. 1974, ch. 290, § 20; L. 1999, ch. 116, § 27; L. 2001, ch. 215, §
12; L. 2002, ch. 164, § 2; L. 2005, ch. 152, § 11; July 1.
72-981. Technical advice and assistance by state department;
recommendations.
The department, upon request, shall: (1) Give technical
advice and assistance to any agency in connection with the establishment and
maintenance of special education and related services for exceptional children;
(2) make recommendations to any agency concerning appropriate special
education or related services to be provided to exceptional children; and (3)
consider and give advice to any agency concerning problems encountered by
such agency in complying with the requirements of this act.
History:
L. 1975,
ch. 365, § 4; L. 1999, ch. 116, § 28; July 1.
72-983. Provision of excess cost services; grants of state moneys,
application and disposition; duties of state board.
(a) In each school year, to
20
the extent that appropriations are available, each school district which has
provided special education or related services for an exceptional child whose IEP
provides for services which cost in excess of $25,000 for the school year is
eligible to receive a grant of state moneys in an amount equal to 75% of that
portion of the costs, incurred by the district in the provision of special education
or related services for the child, that is in excess of $25,000.
(b) In order to be eligible for a grant of state moneys provided for by
subsection (a), a school district shall submit to the state board of education an
application for a grant, a description of the special education or related services
provided, and the name or names of the child or children for whom provided. The
application and description shall be prepared in such form and manner as the
state board shall require and shall be submitted at a time to be determined and
specified by the state board. Approval by the state board of applications for
grants of state moneys is prerequisite to the award of grants.
(c) Each school district which is awarded a grant under this section shall
make such periodic and special reports of statistical and financial information to
the state board as it may request.
(d) All moneys received by a school district under authority of this section
shall be deposited in the general fund of the school district and transferred to its
special education fund.
(e) The state board of education shall:
(1) Prescribe and adopt criteria for identification and determination of
excessive costs attributable to the provision of special education and related
services for which an application for a grant of state moneys may be made under
this section;
(2) approve applications of school districts for grants;
(3) determine the amount of grants and be responsible for payment of such
grants to school districts; and
(4) prescribe all forms necessary for reporting under this section.
(f) If the amount of appropriations for the payment of grants under this
section is insufficient to pay in full the amount each school district is determined
to be eligible to receive for the school year, the state board shall prorate the
amount appropriated among all school districts which are eligible to receive
grants of state moneys in proportion to the amount each school district is
determined to be eligible to receive.
History:
L. 1994, ch. 307, § 10; L. 1999,
ch. 116, § 29; L. 2001, ch. 215, § 13; July 1.
72-984. Performance goals and indicators for children with disabilities;
reports to U.S. department of education; state improvement plan.
The state board shall:
(1) Establish goals for the performance of children with disabilities in the state
that: (A) Will promote the purposes of this act; (B) are consistent, to the
maximum extent appropriate, with other goals and standards for children
established by the state board; (C) are the same as the goals included in the
state’s definition of adequate yearly progress under the federal no child left
behind act of 2004, including the state’s objectives for progress by children with
21
disabilities; and (D) address graduation rates, dropout rates, and other factors as
determined by the state board;
(2) establish performance indicators the state will use to assess progress
toward achieving the goals designated in paragraph (1), including the
measurable annual objectives for progress by children with disabilities; and
(3) annually report to the secretary of the U.S. department of education, and
to the public, the progress of the state, and of children with disabilities in the
state, toward meeting the goals established under this section.
History.
L.
1999, ch. 116, § 9; L. 2005, ch. 171, § 11; July 1.
72-985
.
Assessment programs; participtation by children with
disabilities; reports to public
. (a) (1) The state board and each board shall
include exceptional children in general state and district-wide assessment
programs, including assessments described in the federal no child left behind act
of 2004 with appropriate accommodations and alternate assessments where
necessary and as indicated in the children’ respective IEPs.
(2) In accordance with the federal law, the state board and each board
shall develop guidelines for
:
(A) The provision of appropriate accommodations;
and (B) for the participation of children with disabilities in alternate assessments
for those children who cannot participate in regular state and district-wide
assessments as indicated in their respective IEPs.
(3) The guidelines for alternative assessments shall meet the requirements
of the federal law.
(b) The state board
,
and each local board with respect to district
assessments
,
shall make available to the public, and report to the public
with the same frequency and in the same detail as it reports on the assessment
of nondisabled children, the following:
(1) The number of children with disabilities participating in regular
assessments and the number of those children who were provided
accommodations in order to participate in those assessments;
(2) the number of children with disabilities participating in alternate
assessments that are: (A) Aligned with the state’s challenging academic
and achievement standards; or (B) based upon the achievement of children
with disabilities; and
(3) the performance of children with disabilities on regular assessments
and on alternate assessments if doing so would be statistically sound and would
not result in the disclosure of personally identifiable information about an
individual student compared with the achievement of all children, including
children with disabilities, on those assessments.
History.
L. 1999, ch. 116, § 9;
L. 2005, ch. 171, § 12; July 1.
72-986. Initial evaluation of children prior to provision of services;
parental consent; reevaluation; notice; procedure; duties of IEP team.
(a) (1) An agency shall conduct a full and individual initial evaluation in
accordance with this section before the initial provision of special education
and related services to an exceptional child.
22
(2) An initial evaluation may be initiated either by the parent of a child or by an
agency.
(3) An initial evaluation shall consist of procedures to determine whether a
child is an exceptional child and the educational needs of such child.
(4) The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be
considered to be an evaluation under this act.
(5) An agency proposing to conduct an initial evaluation of a child shall obtain
informed consent from the parent of such child before the evaluation is
conducted. Parental consent for evaluation shall not be construed as consent for
placement for receipt of special education and related services.
(6) If the parent of a child refuses consent for an initial evaluation of the child,
or fails to respond to a written request to provide consent, the agency may, but
shall not be required to, continue to pursue an initial evaluation by utilizing the
mediation or due process procedures prescribed in this act.
(b) An agency shall provide notice to the parents of a child that describes any
evaluation procedures such agency proposes to conduct. In conducting the
evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant
functional
,
developmental and academic information, including information
provided by the parent, that may assist in determining whether the child is an
exceptional child and the content of the child’s individualized education program,
including information related to enabling the child to be involved, and progress, in
the general education curriculum or, for preschool children, to participate in
appropriate activities;
(2) not use any single measure or assessment as the sole criterion for
determining whether a child is an exceptional child or determining an appropriate
educational program for the child;
(3) use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to physical or
developmental factors; and
(4) in determining whether a child has a specific learning disability,
not be required to take into consideration whether the child has a severe
discrepancy between achievement and intellectual ability, and may use a
process that determines if the child responds to scientific, research-based
intervention as part of the child’s evaluation.
(c) An agency shall ensure that:
(1) Assessments and other evaluation materials used to assess a child under
this section: (A) Are selected and administered so as not to be discriminatory on
a racial or cultural basis; (B) are provided and administered in the language and
form most likely to yield accurate information on what the child knows and is able
to do academically, developmentally and functionally, unless it is not feasible to
so provide or administer; (C) are valid and reliable for the specific purpose for
which they are used; (D) are administered by trained and knowledgeable
personnel; and (E) are administered in accordance with instructions provided by
the producer of such tests;
23
(2) the child is assessed in all areas of suspected exceptionality;
(3) assessment tools and strategies that provide relevant information
that directly assists persons in determining the educational needs of the child are
provided
;
and
(4) the assessments of any child who transfers from another agency during
the school year are coordinated with the child’s prior school, as necessary and as
expeditiously as possible, to ensure prompt completion of an evaluation begun
by the prior school.
(e) Upon completion of the administration of assessments and other
evaluation materials:
(1) The determination of whether the child is an exceptional child shall be
made by a team of qualified professionals and the parent of the child in
accordance with this section; and
(2) a copy of the evaluation report and the documentation of determination
of eligibility shall be given to the parent.
(f) In making a determination of eligibility under this section, a child shall not
be determined to be an exceptional child if the determinant factor for such
determination is lack of instruction in reading, including instruction using the
essential components of reading instruction, math or limited English proficiency.
(g) (1) If it is determined that a child is an exceptional child, the
agency shall seek consent from the parent of the child to provide special
education and related services to the child. No such services shall be provided
until consent is given by the parent.
(2) If the parent of a child refuses to consent to the provision of services,
or fails to respond to a request for consent to services, the agency:
(A) Shall not initiate any procedure or proceeding under this act to gain
authority to provide services to the child;
(B) shall not be considered to be in violation of the requirement to
provide a free appropriate public education to the child; and
(C) shall not be required to convene an IEP meeting or develop an
IEP for the child.
(h) (1) Each agency shall ensure that a reevaluation of each exceptional
child is conducted:
(A) If the agency determines that the educational or related services
needs of the child, including academic achievement or functional performance,
warrant a reevaluation; or
(B) if the child’s parent or teacher requests a reevaluation.
(2) An agency shall conduct a reevaluation of a child:
(A) Not more frequently than once a year, unless the parent and the
agency agree otherwise; and
(B) at least once every three years, unless the parent and the agency
agree that a reevaluation is unnecessary.
(i) As part of an initial evaluation, if appropriate, and as part of any
reevaluation under this section, the IEP team and other qualified professionals,
as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations
24
and information provided by the parents of the child, current classroom-based
assessments and observations, and teacher and related services providers’
observations; and
(2) on the basis of that review, and input from the child’s parents,
identify what additional data, if any, are needed to determine: (A)
Whether the child is an exceptional child and the educational needs of the child,
or in the case of a reevaluation of a child, whether the child continues to be an
exceptional child and the current educational needs of the child; (B) the
present levels of academic and related needs of the child; (C) whether the child
needs special education and related services; or in the case of a reevaluation of
a child, whether the child continues to need special education and related
services; and (D) whether any additions or modifications to the special education
and related services are needed to enable the child to meet the measurable
annual goals set out in the IEP of the child and to participate, as appropriate,
in the general education curriculum.
(j) Each agency shall obtain informed parental consent prior to
conducting any reevaluation of an exceptional child, except that such informed
consent need not be obtained if the agency can demonstrate that it took
reasonable measures to obtain such consent and the child’s parent
failed to respond.
(k) If the IEP team and other qualified professionals, as appropriate,
determine that no additional data are needed to determine whether the child
continues to be an exceptional child and the child’s educational needs, the
agency:
(1) Shall notify the child’s parents of: (A) That determination and the
reasons for it; and (B) the rights of such parents to request an assessment
to determine whether the child continues to be an exceptional child and
the child’s educational needs; and
(2) shall not be required to conduct such an assessment unless requested
by the child’s parents.
(l) (1) Except as provided in paragraph (2), an agency shall reevaluate a child
in accordance with this section before determining that the child is no longer an
exceptional child.
(2) A reevaluation of a child shall not be required before termination
of a child’s eligibility for services under this act due to graduation from
secondary school with a regular diploma, or due to exceeding the age for
eligibility for services under this act.
(m) For a child whose eligibility for services under this act terminates
under either of the circumstances described in subsection (l), the agency
shall provide the child with a summary of the child’s academic achievement
and functional performance, which shall include recommendations on how to
assist the child in meeting the child’s postsecondary goals.
History.
L. 1999, ch.
116, § 9; L. 2005, ch. 171, § 13; July 1.
72-987. Individualized education program or family service plan;
contents; development; duties of IEP team.
(a) (1) Except as specified in
25
provision (2), at the beginning of each school year, each agency shall have an
individualized education program in effect for each exceptional child.
(2) (A) In the case of a child with a disability aged three through five
and for two year-old children with a disability who will turn age three
during the school year, an individualized family service plan that contains
the material described in 20 U.S.C. 1436, and that is developed in accordance
with this section, may serve as the IEP of the child if using that plan as the IEP is
agreed to by the agency and the child’s parents.
(B) In conducting the initial IEP meeting for a child who was previously
served under part C of the federal law, an agency, at the request of the parent,
shall send an invitation to attend the IEP meeting to the part C services
coordinator or other representatives of the part C system to assist with the
smooth transition of services.
(b) (1) Except as otherwise provided in this section, each IEP of an
exceptional child and any amendment or modification of an IEP shall be
made by the child’s IEP team. Upon agreement of the parent and the
agency, an IEP team can meet in person or by alternative means, including
telephone conference calls and video conferences.
(2) A member of a child’s IEP team shall not be required to attend an
IEP meeting, if the parent of the child and the agency agree that the
attendance of such IEP member is not necessary because the IEP member’s
area of curriculum or related service is not to be discussed or modified
at the meeting. The parent’s agreement shall be in writing.
(3) A member of a child’s IEP team may be excused from attending an IEP
meeting when the meeting is to involve a discussion of, and possibly a
modification to, the IEP member’s area of the curriculum or related service, if:
(A) The parent and the agency consent to the excusal;
(B) the IEP member submits, in writing to the parent and the IEP team, input
into the development of the IEP prior to the meeting; and
(C) the parent’s consent to the excusal is in writing.
(4) (A) After the annual IEP meeting for a school year, the parent of
an exceptional child and an appropriate representative of the agency providing
services to the child may agree to develop a written document amending or
modifying the child’s current IEP, without convening an IEP meeting.
(B) If the parent and agency representative develop a written document
amending or modifying a child’s current IEP, the document shall be
dated and signed by the parent and the agency representative. The parent
and the agency shall be provided a copy of the document.
(c) The IEP for each exceptional child shall include:
(1) A statement of the child’s present levels of academic achievement and
functional performance, including: (A) How the child’s disability or giftedness
affects the child’s involvement and progress in the general education curriculum;
(B) for preschool children, as appropriate, how the disability affects the child’s
participation in appropriate activities; and (C) for those children with disabilities
who take alternate assessments aligned to alternate achievement standards, a
description of benchmarks or short-term objections;
26
(2) a statement of measurable annual goals, including academic and
functional goals designed to: (A) Meet the child’s needs that result from the
child’s disability or giftedness, to enable the child to be involved in and make
progress in the general education or advanced curriculum; and (B) meet each of
the child’s other educational needs that result from the child’s disability or
giftedness;
(3) a description of how the child’s progress toward meeting the annual goals
will be measured and when periodic reports on the progress the child is making
toward meeting the annual goals will be provided, such as through the use of
quarterly or other periodic reports issued concurrently with general education
report cards;
(4) a statement of the special education and related services and
supplementary aids, based on peer-reviewed research to the extent practicable,
and services to be provided to the child, or on behalf of the child, and a
statement of the program modifications or supports for school personnel
that will be provided for the child: (A) To advance appropriately toward attaining
the annual goals; (B) to be involved in and make progress in the general
education curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and (C) to be educated and
participate with other exceptional and nonexceptional children in the activities
described in this paragraph;
(5) an explanation of the extent, if any, to which the child will not
participate with nonexceptional children in the regular class and in the
activities described in provision (4);
(6) (A) a statement of any individual appropriate accommodations that are
necessary to measure the academic achievement and functional performance of
the child on state and districtwide assessments; and (B) if the IEP team
determines that the child shall take an alternate assessment on a particular state
or district-wide assessment of student achievement or part of such an
assessment, a statement of why the child cannot participate in the regular
assessment and why the particular alternate assessment selected is appropriate
for the child;
(7) the projected date for the beginning of the services and modifications
described in provision (4), and the anticipated frequency, location, and duration
of those services and modifications;
(8) (A) beginning at age 14, and updated annually thereafter: (A) Appropriate
measurable postsecondary goals based upon age-appropriate transition
assessments related to training, education, employment and where appropriate,
independent living skills; and (B) the transition services, including appropriate
courses of study, needed to assist the child in reaching the stated postsecondary
goals; and (C) beginning at age 16, or younger, if determined appropriate by the
IEP team, a statement of needed transition services for the child, including, when
appropriate, a statement of the interagency responsibilities or any needed
linkages; and
(9) beginning at least one year before the child reaches the age of
majority under state law, a statement that the child has been informed of
27
the child’s rights, if any, that will transfer to the child on reaching the age
of majority as provided in K.S.A. 72-989, and amendments thereto.
Nothing in this section shall be construed to require: (1) That additional
information be included in a child’s IEP beyond that which is specifically
required by this section; and (2) that an IEP team include information
under one component of a child’s IEP that is already contained under
another component of the IEP.
(d) In developing each child’s IEP, the IEP team shall consider:
(1) The strengths of the child and the concerns of the parents for
enhancing the education of their child;
(2) the results of the initial evaluation or most recent evaluation of
the child;
(3) the academic, developmental and functional needs of the child;
(4) in the case of a child whose behavior impedes the child’s learning
or that of others, the use of positive behavioral interventions and supports and
other strategies to address that behavior;
(5) in the case of a child with limited English proficiency, the
language needs of the child as such needs relate to the child’s IEP;
(6) in the case of a child who is blind or visually impaired, provide
for instruction in Braille and the use of Braille unless the IEP team determines,
after an evaluation of the child’s reading and writing skills,
needs, and appropriate reading and writing media, including an evaluation
of the child’s future needs for instruction in Braille or the use of Braille, that
instruction in Braille or the use of Braille is not appropriate for the child;
(7) the communication needs of the child, and in the case of a
child who is deaf or hard of hearing, consider the child’s language and
communication needs, opportunities for direct communications 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; and
(8) whether the child requires assistive technology devices and services.
(e) The regular education teacher of the child, as a member of the IEP team,
to the extent appropriate, shall participate in:
(1) The development of the IEP of the child, including the determination
of appropriate positive behavioral interventions supports, and other strategies
and the determination of supplementary aids and services, program
modifications, and support for school personnel consistent with this section; and
(2) except as provided in this section, the review and revision of the child’s
IEP.
(f) Each agency shall ensure that the IEP team:
(1) Reviews the child’s IEP periodically, but not less than annually to
determine whether the annual goals for the child are being achieved; and
(2) revises the IEP, as appropriate, to address: (A) Any lack of expected
progress toward the annual goals and in the general education curriculum, where
appropriate; (B) the results of any reevaluation conducted under this section; (C)
28
information about the child provided by the parents; (D) the child’s anticipated
needs; or (E) other matters.
(g) (1) If an exceptional child with a current IEP transfers from one
Kansas school district to another during the academic year, the new school
district, in consultation with the child’s parent, shall provide the child a
FAPE, including services comparable to those described in the transferred
IEP, until the new school district either adopts the transferred IEP, or
develops and implements a new IEP for the child.
(2) If during the academic year, an exceptional child who has a current
IEP transfers from a school district in another state to a Kansas school
district, the Kansas school district, in consultation with the child’s parent,
shall provide the child a FAPE, including services comparable to those
described in the transferred IEP, until the Kansas school district either
adopts the transferred IEP, or conducts an evaluation of the child, if
deemed necessary, and develops and implements a new IEP for the child.
History.
L. 1999, ch. 116, § 9; L. 2005, ch. 171, § 14; July 1.
72-988. Parental rights.
(a) The rights of parents of exceptional children
shall include, but not be limited to, the rights specified in this section.
(b) The parents of exceptional children shall have the right to:
(1) Examine all records relating to such child and to participate in
meetings with respect to the identification, evaluation, and educational
placement of the child, and the provision of a free appropriate public
education to such child, and to obtain an independent educational evaluation
of the child;
(2) written prior notice in accordance with K.S.A. 72-990, and
amendments thereto, whenever an agency: (A) Proposes to initiate or
change; or (B) refuses to initiate or change, the identification, evaluation,
or educational placement of the child or the provision of a free appropriate
public education to the child;
(3) receive the notice required by provision (2) in their native language,
unless it clearly is not feasible to do so;
(4) present complaints with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free
appropriate public education to the child, subject to the requirements in section 8,
and amendments thereto;
(5) request mediation in accordance with this act;
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial
placement of their child and to any substantial change in placement of, or a
material change in services for, their child, unless a change in placement of their
child is ordered pursuant to the provisions of section 17, and amendments
thereto, or the agency can demonstrate that it has taken reasonable measures to
obtain parental consent to a change in placement or services, and the child’s
parent has failed to respond. If the parent fails to respond to the request for
parental consent to a substantial change in placement or a material change in
services, the agency must maintain detailed records of written and verbal
contacts with the parent and the response, if any, received from the parent;
29
(7) be members of any group that makes decisions on the educational
placement of their child;
(8) demand that their child remain in the child’s current educational
placement pending the outcome of a due process hearing, except as otherwise
provided by federal law and this act;
(9) subject to the requirements of this act, request a due process hearing
in regard to any complaint filed in accordance with provision (4) of this
subsection, or as authorized in section 18, and amendments thereto;
(10) appeal to the state board any adverse decision rendered by a
hearing officer in a local due process hearing;
(11) appeal to state or federal court any adverse decision rendered
by a review officer in a state-level due process appeal; and
(12) recover attorney fees, as provided in the federal law, if they are
the prevailing parties in a due process hearing or court action; however,
only a court shall have the authority to award attorney fees, and such fees
may be reduced or denied in accordance with federal law.
(c) The state board shall develop a model form to assist parents in
filing a complaint and due process complaint notice.
(d) The state board shall develop, and thereafter amend as necessary,
and distribute for use by agencies, a notice of the rights available to the parents
of exceptional children under the federal law and this act. The notice shall include
a full explanation of the rights and be made available in various languages and
be written so as to be easily understandable by parents.
(e) A list of the rights available to the parents of exceptional children
shall be given to the parents only one time each school year, except a copy also
shall be given to the parents: (A) Upon initial referral or parental request for
evaluation; (B) upon request of a parent; and (C) upon the initial filing of a
complaint under subsection (b)(4).
History.
L. 1999, ch. 116, § 9; L. 2005, ch.
171, § 15; July 1.
72-989. Rights of child with disability upon reaching 18 years of age.
When a person who has been determined to be a child with a disability reaches
the age of 18, except for such a person who has been determined to be
incompetent under state law:
(a) An agency shall provide to both the person and to the person's parents any
notice required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights;
and
(d) all rights accorded to parents under this act transfer to the person if
incarcerated in an adult or juvenile federal, state or local correctional institution.
History:
L. 1999, ch. 116, § 18; July 1.
72-990
.
Notice of parental rights; contents.
The notice required by
subsection (b)(2) of K.S.A. 72-988, and amendments thereto, shall include:
(a) A description of the action proposed or refused by the agency;
30
(b) an explanation of why the agency proposes or refuses to take the
action;
(c) a description of other options that the agency or IEP team
considered and the reasons those options were rejected;
(d) a description of each evaluation procedure, assessment, record,
or report the agency used as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency’s
proposal or refusal;
(f) a statement that the parents have protection under the procedural
safeguards of this act and, if the notice is not an initial referral for evaluation,
the means by which a copy of the procedural safeguards can be
obtained; and
(g) sources for parents to contact to obtain assistance in understanding
the provisions of the federal law and this act.
History.
L. 1999, ch. 116, § 19; L.
2005, ch. 171, § 16; July 1.
72-991. History.
L. 1999, ch. 116, § 30; L. 2005, ch. 171, § 24; July 1.
72-991a. Change in placement of child with disability to alternative
setting as disciplinary action for certain behavior; duties of IEP team and
hearing officer; behavioral assessment and intervention plan;
determination and review procedure.
(a) School personnel may order a
change in the placement of a child with a disability:
(1) To an appropriate interim alternative educational setting or other
setting, or the short-term suspension of the child;
(2) to an appropriate interim alternative educational setting for not
more than 45 school days if: (A) The child carries or possesses a weapon
to, or at, school, on school premises, or to, or at, a school function under
the jurisdiction of an agency; (B) the child knowingly possesses or uses
illegal drugs or sells or solicits the sale of a controlled substance while at
school, on school premises, or at a school function under the jurisdiction
of an agency; or (C) the child has inflicted serious bodily injury upon
another person while at school, on school premises, or at a school function
under the jurisdiction of an agency; or
(3) To an appropriate interim alternative educational placement for
not more than 186 school days, if it is determined that the conduct of the
child violated the code of student conduct and was not a manifestation
of the child’s disability, if the relevant disciplinary procedures applicable
to children without disabilities are applied in the same manner and the
discipline is for the same duration as would be applied to a child without
disabilities, except that services must continue to be provided to the child
during the period of disciplinary action.
(b) Any child with a disability whose placement is changed under
subsection (a)(2) or (a)(3) shall:
(1) Continue to receive educational services so as to enable the child
to continue to participate in the general education curriculum, although
31
in another setting and to progress toward meeting the goals set out in the
child’s IEP; and
(2) receive, as appropriate, a functional behavioral assessment, behavioral
intervention services, and modifications that are designed to address
the inappropriate behavior so that it does not recur.
(c) The alternative educational setting described in subsections (a)(2)
and (a)(3) shall be determined by the IEP team.
(d) If a disciplinary action is contemplated as described in subsection
(a)(2) or (a)(3):
(1) Not later than the date on which the decision to take that action
is made, the agency shall notify the parents of that decision and of all
procedural safeguards afforded under section 18, and amendments
thereto; and
(2) within 10 school days of the date on which the decision to take
disciplinary action is made, a review shall be conducted to determine the
relationship between the child’s disability and the conduct that is subject
to disciplinary action.
(e) (1) The review described in subsection (d)(2) shall be conducted
by the agency, the parent, and relevant members of the child’s IEP team
as determined by the parent and the agency. In carrying out the review,
that group shall review all relevant information in the student’s file, including
the child’s IEP, any teacher observations, and any relevant information
provided by the parent.
(2) Based upon its review of all the relevant information, the group
shall determine if the conduct in question:
(A) Was caused by, or had a direct and substantial relationship to, the
child’s disability; or
(B) was the direct result of the agency’s failure to implement the
child’s IEP.
(3) If it is determined that the conduct of the student is described in
either paragraph (2)(A) or (2)(B) of this subsection, then the conduct shall
be determined to be a manifestation of the child’s disability.
(f) If it is determined that the conduct of a child was a manifestation
of the child’s disability, the IEP team shall:
(1) Conduct a functional behavioral assessment, and implement a behavioral
intervention plan for such child, provided that the agency has not conducted such
an assessment prior to the behavior that resulted in a change in placement;
(2) if the child already had a behavioral intervention plan, review and
modify it, as necessary, to address the behavior; and
(3) except as provided in paragraph (a)(2), return the child to the
placement from which the child was removed, unless the parent and the
agency agree to a change of placement as part of the modification of the
behavioral intervention plan.
(g) For the purposes of this section, the following definitions apply:
(1) ‘‘Controlled substance’’ means a drug or other substance identified
under schedules I, II, III, IV, or V in 21 U.S.C. 812(c);
32
(2) ‘‘illegal drug’’ means a controlled substance but does not include
such a substance that is legally possessed or used under the supervision
of a licensed healthcare professional or that is legally possessed or used
under any other authority under any federal or state law;
(3) ‘‘weapon’’ means a weapon, device, instrument, material, or substance,
animate or inanimate, that is used for, or is readily capable of, causing death or
serious bodily injury, except that such term does not include a pocket knife with a
blade of less than 2 1
∕
2 inches in length; and
(4) ‘‘serious bodily injury’’ means an injury as described in subsection
(h)(3) of section 1365 of title 18 of the United States Code.
History.
L. 2005, ch.
171, § 17; July 1.
72-992. History.
L. 1999, ch. 116, § 31; L. 2005, ch. 171, § 24; July 1.
72-992a
.
Same; parental disagreement with determination; due process
hearing and review.
(a) The parent of a child with a disability who disagrees
with any decision regarding placement, or the manifestation determination
under K.S.A. 72-991a, and amendments thereto, or an agency that believes
that maintaining the current placement of a child is substantially likely to result in
injury to the child or to others, may request a hearing.
(b) A hearing officer appointed under this act shall hear, and make
the determination regarding, an appeal requested under subsection (a).
(c) In making the determination under subsection (b), the hearing
officer may order a change in placement of the child. In such situations,
the hearing officer may:
(1) Uphold the manifestation determination;
(2) uphold the interim alternative educational placement of the child;
(3) return the child to the placement from which the child was removed;
or
(4) order a change in placement of the child to an appropriate interim
alternative educational setting for not more than 45 school days if the
hearing officer determines that maintaining the current placement of
such child is substantially likely to result in injury to the child or to others.
History.
L. 2005, ch. 171, § 18; July 1.
72-993. Same; placement of child during pendency of due process
proceedings.
(a) If a parent or agency requests a hearing under section 18, and
amendments thereto, the child shall remain in the interim alternative educational
setting pending the decision of the hearing officer or until the expiration of the
forty-five-school-day period described in subsection (a)(2) of section 17, and
amendments thereto, whichever occurs first, unless the parent and the
agency agree otherwise.
(b) The agency shall arrange for an expedited hearing, which shall
occur within 20 school days of the date the hearing is requested and shall
result in a determination within 10 school days after the hearing. To
expedite the hearing, the agency, within three school days of receiving the
33
request for a hearing, shall request the state board to appoint a hearing
officer to conduct the hearing.
History.
L. 1999, ch. 116, §32; L. 2005, ch. 171,
§ 19; July 1.
72-994. School district knowledge that child is child with disability prior
to determination, when deemed; subjection of child to disciplinary action,
when; evaluation and placement of child.
(a) A child who has not been
determined to be eligible for special education and related services under this act
and who has engaged in behavior that violated any rule or code of conduct of the
school district may assert any of the protections provided for in this act if the
school district had knowledge, as determined in accordance with this section,
that the child was a child with a disability before the behavior that precipitated
the disciplinary action occurred.
(b) A school district shall be deemed to have knowledge that a child
is a child with a disability if before the behavior that precipitated the
disciplinary action occurred:
(1) The parent of the child has expressed concern
,
in writing, to supervisory
or administrative personnel of the appropriate educational agency or to a teacher
of the child, that the child is in need of special education and related
services;
(2) the parent of the child previously has requested an evaluation of
the child; or
(3) the teacher of the child, or other personnel of the school district,
previously has expresse
d
specific concerns about a pattern of behavior
demonstrated by the child directly to the director of special education of such
school district or to other supervisory personnel of the district.
(c) A school district shall not be deemed to have knowledge that a
child is a child with a disability if the parent of the child has not allowed
an evaluation of the child or has refused services under this law, or the
child has been evaluated but it was determined that the child was not a
child with a disability.
(d) (1) Subject to provision (2) of this subsection, if a school district
does not have knowledge that a child is a child with a disability prior
to taking disciplinary action against the child, the child may be subjected
to the same disciplinary action as is applied to children without disabilities
who engage in comparable behaviors.
(2) If a request is made for an evaluation of a child during the time
period in which the child is subjected to disciplinary action described by
this act, an evaluation shall be conducted in an expedited manner. If the
child is determined to be a child with a disability, taking into consideration
information from the evaluation conducted by the school district and information
provided by the parents, the school district shall provide special education and
related services in accordance with the provisions of this act, except that,
pending the results of the evaluation, the child shall remain in the educational
placement determined by school authorities, which may be long-term suspension
34
or expulsion from school.
History.
L. 1999, ch. 116, §33; L. 2005, ch. 171, § 20;
July 1
72-995. Crimes committed by child with disability, reports to law
enforcement and judicial authorities; transmittal of special education and
disciplinary records.
(a) Nothing in this act shall be construed to prohibit an
agency from reporting a crime committed by a child with a disability to
appropriate authorities or to prevent state or local law enforcement and judicial
authorities from exercising their responsibilities with regard to the application of
federal, state, or local law to crimes committed by a child with a disability.
(b) An agency reporting a crime committed by a child with a disability shall
ensure that copies of the special education and disciplinary records of the child
are transmitted for consideration by the appropriate authorities to whom it reports
the crime.
History:
L. 1999, ch. 116, § 34; July 1.
72-996. Dispute resolution through mediation; procedures; list of
mediators; costs; time and location; agreements; confidentiality.
(a) The state board shall establish and implement procedures to allow
agencies and parents to resolve disputes involving any matter, including
matters arising prior to the filing of a complaint, through a mediation
process.
(b) The procedures adopted shall ensure that the mediation process is:
(1) Voluntary on the part of the parties;
(2) not used to deny or delay a parent’s right to a due process hearing,
or to deny any other rights afforded under this act; and
(3) conducted by a qualified and impartial mediator who is trained in
effective mediation techniques.
(c) The state board shall maintain a list of individuals who are qualified
mediators and knowledgeable in laws and regulations relating to the
provision of special education and related services and shall establish
procedures for the appointment of a mediator to help resolve disputes between
the parties.
(d) The state board shall bear the cost of the mediation process described
in this section.
(e) Each session in the mediation process shall be scheduled in a
timely manner and shall be held in a location that is convenient to the
parties to the dispute.
(f) If the mediation process results in a resolution of the complaint, the parties
shall execute a written agreement that both the parent and an authorized
representative of the agency shall sign and that, at a minimum, includes the
following statements:
(1) The resolution of each issue presented in the complaint;
(2) all discussions that occurred during the mediation process are
confidential and may not be used as evidence in any subsequent due process
hearing or civil proceeding; and
(3) each party understands that the agreement is legally binding upon
35
them; and
(4) the agreement may be enforced in state or federal court.
(g) Discussions that occur during the mediation process shall be confidential
and may not be used as evidence in any subsequent due process hearings or
civil proceedings.
History:
L. 1999, ch. 116, § 354; L. 2005, ch. 171, § 21;July
1.
72-997. Transfer of records of an exceptional child when child changes
school.
All records of an exceptional child who transfers, or who is transferred,
from one school district to another shall be transferred at the same time that such
child transfers, or is transferred, or as soon thereafter as possible. If the transfer
is a result of the change in placement by the secretary of the department of
social and rehabilitation services, it shall be the duty of the secretary to transfer,
or make provision for the transfer, of such records to the district or school to
which the child is transferred. If the transfer is a result of the change in placement
by the commissioner of juvenile justice, it shall be the duty of the commissioner
to transfer, or make provision for the transfer, of such records to the district or
school to which the child is transferred. If the transfer is a result of the change in
placement by the secretary of the department of corrections, it shall be the duty
of the secretary to transfer, or make provision for the transfer, of such records to
the district or school to which the child is transferred.
History.
L. 2005, ch. 171,
§ 22; July 1.
36
This statute will be repealed on January 1, 2007.
38-1513b. Transfer of school records of an exceptional child when a
change in placement occurs; report to the legislature.
(a) As used in this
section:
(1) ‘‘Pupil’’ means a child living in a school district as a result of placement
therein by the secretary pursuant to the Kansas code for care of children.
(2) ‘‘Secretary’’ means the secretary of social and rehabilitation services.
(b) If the secretary changes the placement of a pupil from one school
district to another or to another school within the same district, it shall
be the duty of the secretary to transfer, or make provision for the transfer,
of all school records of such pupil to the district or school to which the
pupil is transferred. Such school records shall be transferred at the same
time that the pupil is transferred or as soon as possible thereafter.
(c) On or before December 31, 2005, and on or before December 31, 2006,
the secretary shall submit to the legislature a report of the number of pupils who
have been transferred from one school district to another school district or from
one school to another school within the same district during the preceding school
year. Each time a pupil is transferred shall be accounted for separately in such
report. The report also shall indicate the number of days which elapsed between
the day on which the request for the transfer of school records was submitted
under K.S.A. 72-5386, and amendments thereto, and day on which the records
were received by the receiving district.
The provisions of this subsection shall expire January 1, 2007.
(d) School districts shall assist the secretary in compiling information
for the report required by subsection (c) by providing information requested
by the secretary.
History.
L. 2005, ch. 171, § 23; July 1.
37
February 2008
Appendix E
Kansas Special Education Process Handbook
Special Education Regulations (2008)
91-40-1.
Definitions
91-40-2.
FAPE
91-40-3.
Ancillary FAPE requirements
91-40-4.
FAPE for exceptional children housed
and maintained in certain state
institutions (NOT BEING
AMENDED)
91-40-5.
FAPE for detained or incarcerated
children with disabilities
91-40-6.
(Reserved)
91-40-7.
Child find
91-40-8.
Evaluations
91-40-9.
Evaluation procedures
91-40-10.
Eligibility determination
91-40-11.
Evaluation for specific learning
disability; use of response to
intervention process
91-40-12.
Right to independent educational
evaluation
91-40-13.
(Reserved)
91-40-14.
(Reserved)
91-40-15.
(Reserved)
91-40-16.
IEP requirements
91-40-17.
IEP team meetings and participants
91-40-18.
IEP development and content (NOT
BEING AMENDED)
91-40-19.
IEP liability (NOT BEING
AMENDED)
91-40-20.
(Reserved)
91-40-21.
Educational placement
91-40-22.
Agency placement in private schools or
facilities
91-40-23.
(Reserved)
91-40-24.
Educational advocates (NOT BEING
AMENDED)
91-40-25.
Opportunity to examine records and
participate in meetings (NOT BEING
AMENDED)
91-40-26.
Notice requirements
91-40-27.
Parental consent
91-40-28.
Special education mediation and due
process hearings
91-40-29.
Qualifications of special education
mediators and due process hearing
officers
91-40-30.
Expedited due process hearings
91-40-31.
Educational placement during
proceedings
91-40-32.
(Reserved)
91-40-33.
Change in placement for disciplinary
reasons; definitions
91-40-34.
Short-term suspensions and interim
placements; suspension of gifted
children
91-40-35.
Services required during suspensions
or interim alternative educational
placements
91-40-36.
Determination of services for children
suspended from school or placed in
an alternative setting (NOT BEING
AMENDED)
91-40-37.
Functional behavioral assessments –
(BEING REVOKED. Now in the
Law)
91-40-38.
Manifestation determination
91-40-39.
Rights of children not identified as
disabled (BEING REVOKED. Now
in the Law)
91-40-40.
(Reserved)
91-40-41.
Private school placement by parents to
obtain FAPE
91-40-42.
Child find and count of children with
disabilities enrolled in private
schools; determination of children to
receive services
91-40-42a.
Consultation (NEW)
91-40-43.
Services to private school children
91-40-44.
Allocation and expenditure of federal
funds; reports
91-40-45.
Services plan or IEP
91-40-46.
Mediation and due process rights of
private school children
91-40-47.
Transportation for private school
exceptional children (NOT BEING
AMENDED)
91-40-48.
Use of funds and equipment
91-40-49.
(Reserved)
91-40-50.
Parental access to student records;
confidentiality
91-40-51.
Filing complaints with the state
department of education
91-40-52.
School district eligibility for
funding; facilities (NOT
BEING AMENDED)
91-40-53.
Resolution of interagency
agreement disputes (NOT
BEING AMENDED)
February 2008
Appendix E
Kansas Special Education Process Handbook
February 2008
Appendix E
Kansas Special Education Process Handbook
1
SPECIAL EDUCATION REGULATIONS
91-40-1. Definitions.
Additional definitions of
terms concerning student discipline are provided
in K.A.R. 91-40-33. (a) ‘‘Adapted physical
education’’ means physical education that is
modified to accommodate the particular needs of
children with disabilities.
(b) ‘‘Agency’’ means any board or state
agency.
(c) ‘‘Assistive technology device’’ means
any item, piece of equipment, or product system,
whether acquired commercially off the shelf,
modified, or customized, that is used to increase,
maintain, or improve the functional capabilities
of a child with a disability. The term shall not
include any medical device that is surgically
implanted or the replacement of the device.
(d) ‘‘Assistive technology service’’ means
any service that directly assists a child with a
disability in the selection, acquisition, or use of
an assistive technology device. This term shall
include the following:
(1) Evaluating the needs of a child with a
disability, including a functional evaluation of
the child in the child’s customary environment;
(2) purchasing, leasing, or otherwise
providing for the acquisition of assistive
technology devices by children with disabilities;
(3) selecting, designing, fitting, customizing,
adapting, applying, maintaining, repairing, or
replacing assistive technology devices;
(4) coordinating and using other therapies,
interventions,
or
services
with
assistive
technology devices, including those associated
with existing education and rehabilitation plans
and programs;
(5) providing training or technical assistance
for a child with a disability or, if appropriate, that
child’s family; and
(6) providing training or technical assistance
for professionals including individuals providing
education and rehabilitation services, employers,
or other individuals who provide services to,
employ, or are otherwise substantially involved
in the major life functions of a child.
(e) ‘‘Audiology’’ means the following:
(1) Identification of children with hearing
loss;
(2) determination of the range, nature, and
degree of hearing loss, including referral for
medical or other professional attention for the
habilitation of hearing;
(3) provision of habilitative activities,
including language rehabilitation, auditory
training, lip-reading, hearing evaluation, and
speech conservation;
(4) creation and administration of programs
for prevention of hearing loss;
(5) counseling and guidance of children,
parents, and teachers regarding hearing loss; and
(6) determination of children’s needs for
group and individual amplification, selecting and
fitting an appropriate aid, and evaluating the
effectiveness of amplification.
(f) ‘‘Autism’’ means a developmental
disability significantly affecting verbal and
nonverbal communication and social interaction,
generally evident before age three but not
necessarily so, that adversely affects a child’s
educational performance. Other characteristics
often associated with autism are engagement in
repetitive activities and stereotyped movements,
resistance to environmental change or change in
daily routines, and unusual responses to sensory
experiences. The term shall not apply if a child’s
educational performance is adversely affected
primarily because the child has an emotional
disturbance.
(g) ‘‘Blindness’’ means a visual impairment
that requires dependence on tactile and auditory
media for learning.
(h) ‘‘Board’’ means the board of education
of any school district.
(i) ‘‘Business day’’ means Monday through
Friday, except for federal and state holidays
unless holidays are specifically included in the
designation of business day in a specific
regulation.
(j) ‘‘Child find activities’’ means policies
and procedures to ensure that all exceptional
children, including exceptional children who are
enrolled in private schools and exceptional
children who are homeless, regardless of the
severity of any disability, are identified, located,
and evaluated.
(k) ‘‘Child with a disability’’ means the
following:
(1) A child evaluated as having mental
retardation, a hearing impairment including
deafness, a speech or language impairment, a
visual
impairment
including
blindness,
emotional
disturbance,
an
orthopedic
impairment, autism, traumatic brain injury, any
other health impairment, a specific learning
disability, deaf-blindness, or multiple disabilities
and who, by reason thereof, needs special
education and related services; and
February 2008
Appendix E
Kansas Special Education Process Handbook
2
(2) for children ages three through nine, a
child who is experiencing developmental delays
and, by reason thereof, needs special education
and related services.
(l) ‘‘Consent’’ means that all of the
following conditions are met:
(1) A parent has been fully informed of all
information relevant to the activity for which
consent is sought, in the parent’s native language
or other mode of communication.
(2) A parent understands and agrees in
writing to the carrying out of the activity for
which consent is sought, and the consent
describes that activity and lists the records, if
any, that will be released and to whom.
(3) A parent understands that the granting of
consent is voluntary on the part of the parent and
may be revoked at any time, but if the parent
revokes consent, that the revocation is not
retroactive and does not negate an action that has
occurred after the consent was given and before
the consent was revoked.
(m) ‘‘Counseling services’’ means services
provided
by
qualified
social
workers,
psychologists, guidance counselors, or other
qualified personnel.
(n) ‘‘Day’’ means a calendar day unless
otherwise indicated as business day or school
day.
(o)
‘‘Deaf-blindness’’
means
the
combination of hearing and visual impairments
that causes such severe communication and other
developmental and educational needs that the
needs cannot be accommodated in special
education programs solely for the hearing
impaired or the visually impaired.
(p)
‘‘Deafness’’
means
a
hearing
impairment that is so severe that it impairs a
child’s ability to process linguistic information
through hearing, with or without amplification,
and adversely affects the child’s educational
performance.
(q) ‘‘Developmental delay’’ means such a
deviation from average development in one or
more of the following developmental areas that
special education and related services are
required:
(1) Physical;
(2) cognitive;
(3) adaptive behavior;
(4) communication; or
(5) social or emotional development. The
deviation from average development shall be
documented and measured by appropriate
diagnostic instruments and procedures.
(r)
‘‘Department’’
means
the
state
department of education.
(s) ‘‘Early identification and assessment of
disabilities’’ means the implementation of a
formal plan for identifying a disability as early as
possible in a child’s life.
(t)
‘‘Educational
placement’’
and
‘‘placement’’
mean
the
instructional
environment in which special education services
are provided.
(u) ‘‘Emotional disturbance’’ means a
condition exhibiting one or more of the
following characteristics over a long period of
time and to a marked degree that adversely
affects a child’s educational performance:
(1) An inability to learn that cannot be
explained by intellectual, sensory, or health
factors;
(2) an inability to build or maintain
satisfactory interpersonal relationships with
peers and teachers;
(3) inappropriate types of behavior or
feelings under normal circumstances;
(4) a general pervasive mood of unhappiness
or depression; or
(5) a tendency to develop physical
symptoms or fears associated with personal or
school problems. The term shall include
schizophrenia but shall not apply to children who
are socially maladjusted, unless it is determined
that they have an emotional disturbance.
(v) ‘‘Evaluation’’ means a multisourced and
multidisciplinary examination, conducted in
accordance with applicable laws and regulations,
to determine whether a child is an exceptional
child and the nature and extent of the special
education and related services that the child
needs.
(w) ‘‘Exceptional children’’ means children
with disabilities and gifted children.
(x) ‘‘Extended school year services’’ means
special education and related services that are
provided to a child with a disability under the
following conditions:
(1) Beyond the school term provided to
nondisabled children;
(2) in accordance with the child’s IEP; and
(3) at no cost to the parent or parents of the
child.
(y) ‘‘Federal law’’ means the individuals
with disabilities education act, as amended, and
its implementing regulations.
(z) ‘‘Free appropriate public education’’ and
‘‘FAPE’’ mean special education and related
services that meet the following criteria:
February 2008
Appendix E
Kansas Special Education Process Handbook
3
(1) Are provided at public expense, under
public supervision and direction, and without
charge;
(2) meet the standards of the state board;
(3) include an appropriate preschool,
elementary, or secondary school education; and
(4) are provided in conformity with an
individualized education program.
(aa) ‘‘General education curriculum’’ means
the curriculum offered to the nondisabled
students of a school district.
(bb) ‘‘Gifted’’ means performing or
demonstrating the potential for performing at
significantly higher levels of accomplishment in
one or more academic fields due to intellectual
ability, when compared to others of similar age,
experience, and environment.
(cc) ‘‘Hearing impairment’’ means an
impairment in hearing, whether permanent or
fluctuating, that adversely affects a child’s
educational performance but that does not
constitute deafness as defined in this regulation.
(dd) ‘‘Homebound instruction’’ means the
delivery of special education and related services
in the home of a child with a disability.
(ee) ‘‘Hospital instruction’’ means the
delivery of special education and related services
to a child with a disability who is confined to a
hospital for psychiatric or medical treatment.
(ff) ‘‘Independent educational evaluation’’
means an examination that is obtained by the
parent of an exceptional child and is performed
by an individual or individuals who are not
employed by the agency responsible for the
education of the child but who meet state and
local standards to conduct the examination.
(gg) ‘‘Individualized education program’’
and ‘‘IEP’’ mean a written statement for each
exceptional child that meets the requirements of
K.S.A. 72-987, and amendments thereto, and the
following criteria:
(1) Describes the unique educational needs
of the child and the manner in which those needs
are to be met; and
(2) is developed, reviewed, and revised in
accordance with applicable laws and regulations.
(hh) ‘‘Individualized education program
team’’ and ‘‘IEP team’’ mean a group of
individuals composed of the following:
(1) The parent or parents of a child;
(2) at least one regular education teacher of
the child, if the child is, or may be, participating
in the regular education environment;
(3) at least one special education teacher or,
if appropriate, at least one special education
provider of the child;
(4) a representative of the agency directly
involved in providing educational services for
the child who meets the following criteria:
(A) Is qualified to provide, or supervise the
provision of, specially designed instruction to
meet the unique needs of exceptional children;
(B) is knowledgeable about the general
curriculum; and
(C) is knowledgeable about the availability
of resources of the agency;
(5) an individual who can interpret the
instructional implications of evaluation results;
(6) at the discretion of the child’s parent or
the agency, other individuals who have
knowledge or special expertise regarding the
child, including related services personnel as
appropriate; and
(7) whenever appropriate, the exceptional
child.
(ii) ‘‘Individualized family service plan’’
and ‘‘IFSP’’ mean a written plan, in accordance
with section 1436 of the federal law, for
providing early intervention services to an infant
or toddler with a disability and the infant’s or
toddler’s family.
(jj) ‘‘Infants and toddlers with disabilities’’
means children from birth through two years of
age who have been determined to be eligible for
early intervention services under the federal law.
(kk) ‘‘Interpreting services’’ means the
following:
(1) For children who are deaf or hard of
hearing, oral transliteration services, cued
language transliteration services, sign language
transliteration and interpreting services, and
transcription services, including communication
access real-time translation (CART), C-Print,
and TypeWell; and
(2) special interpreting services for children
who are deaf-blind.
(ll) ‘‘Least restrictive environment’’ and
‘‘LRE’’ mean the educational placement in
which, to the maximum extent appropriate,
children with disabilities, including children in
institutions or other care facilities, are educated
with children who are not disabled, with this
placement meeting the requirements of K.S.A.
72-976, and amendments thereto, and the
following criteria:
(1) Determined at least annually;
(2) based upon the student’s individualized
education program; and
(3) provided as close as possible to the
child’s home.
(mm) ‘‘Material change in service’’ means
an increase or decrease of 25 percent or more of
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the duration or frequency of a special education
service, related service, or supplementary aid or
service specified on the IEP of an exceptional
child.
(nn) ‘‘Medical services’’ means services
provided by a licensed physician to determine a
child’s medically related disability that results in
the child’s need for special education and related
services.
(oo)
‘‘Mental
retardation’’
means
significantly subaverage general intellectual
functioning, existing concurrently with deficits
in adaptive behavior and manifested during the
developmental period, that adversely affects a
child’s educational performance.
(pp)
‘‘Multiple
disabilities’’
means
coexisting impairments, the combination of
which causes such severe educational needs that
those needs cannot be accommodated in special
education programs solely for one of the
impairments. The term shall not include deaf-
blindness.
(qq) ‘‘Native language’’ means the
following:
(1) If used with reference to an individual of
limited English proficiency, either of the
following:
(A) The language normally used by that
individual, or, in the case of a child, the language
normally used by the parent or parents of the
child, except as provided in paragraph (1) (B) of
this subsection; or
(B) in all direct contact with a child,
including evaluation of the child, the language
normally used by the child in the home or
learning environment.
(2) For an individual with deafness or
blindness or for an individual with no written
language, the mode of communication is that
normally used by the individual, including
sign language, braille, or oral communication.
(rr) ‘‘Occupational therapy’’ means the
services provided by a qualified occupational
therapist and shall include services for the
following:
(1) Improving, developing, or restoring
functions impaired or lost through illness, injury,
or deprivation;
(2) improving the ability to perform tasks
for independent functioning if functions are
impaired or lost; and
(3) preventing, through early intervention,
initial or further impairment or loss of function.
(ss) ‘‘Orientation and mobility services’’
means the services provided to blind or visually
impaired students by qualified personnel to
enable those students to attain systematic
orientation to, and safe movement within, their
environments at school, at home, and in the
community. This term shall include teaching
students the following, as appropriate:
(1) Spatial and environmental concepts and
use of information received by the senses,
including sound, temperature, and vibrations to
establish, maintain, or regain orientation and line
of travel;
(2) use of the long cane or a service animal
to supplement visual travel skills or to function
as a tool for safely negotiating the environment
for students with no available travel vision;
(3) the understanding and use of remaining
vision and distance low vision aids; and
(4) other concepts, techniques, and tools.
(tt) ‘‘Orthopedic impairment’’ means a
severe orthopedic impairment that adversely
affects a child’s educational performance and
includes impairments caused by any of the
following:
(1) Congenital anomaly, including clubfoot
or the absence of a limb;
(2) disease, including poliomyelitis or bone
tuberculosis; or
(3) other causes, including cerebral palsy,
amputation, and fractures or burns that cause
contractures.
(uu) ‘‘Other health impairment’’ means
having limited strength, vitality, or alertness,
including
a
heightened
alertness
to
environmental stimuli, that results in limited
alertness with respect to the educational
environment and that meets the following
criteria:
(1) Is due to chronic or acute health
problems, including asthma, attention deficit
disorder or attention deficit hyperactivity
disorder, diabetes, epilepsy, a heart condition,
hemophilia, lead poisoning, leukemia, nephritis,
rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(2) adversely affects a child’s educational
performance.
(vv) ‘‘Parent’’ means any person described
in K.S.A. 72-962(m) and amendments thereto.
(ww) ‘‘Parent counseling and training’’
means the following:
(1) Assisting parents in understanding the
special needs of their child;
(2) providing parents with information about
child development; and
(3) helping parents to acquire the necessary
skills that will allow them to support the
implementation of their child’s IEP or IFSP.
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(xx) ‘‘Physical education’’ means the
development of the following:
(1) Physical and motor fitness;
(2) fundamental motor skills and patterns;
and
(3) skills in aquatics, dance, and individual
and group games and sports, including
intramural and lifetime sports. The term shall
include special physical education, adapted
physical education, movement education, and
motor development.
(yy) ‘‘Physical therapy’’ means therapy
services provided by a qualified physical
therapist.
(zz) ‘‘Private school children’’ means
children with disabilities who are enrolled by
their parents in private elementary or secondary
schools.
(aaa) ‘‘Recreation’’ means leisure education
and recreation programs offered in schools and
by community agencies. The term shall include
assessment of leisure function and therapeutic
recreation services.
(bbb) ‘‘Rehabilitation counseling services’’
means services provided by qualified personnel
in individual or group sessions that focus
specifically on career development, employment
preparation,
achieving
independence,
and
integration in the workplace and community of a
student with a disability. The term shall also
include any vocational rehabilitation services
provided to a student with a disability under any
vocational rehabilitation program funded under
the rehabilitation act of 1973, as amended.
(ccc)
‘‘Related
services’’
means
developmental, corrective, and supportive
services that are required to assist an exceptional
child to benefit from special education.
(1) Related services shall include the
following:
(A) Art therapy;
(B) assistive technology devices and
services;
(C) audiology;
(D) counseling services;
(E) dance movement therapy;
(F) early identification and assessment of
disabilities;
(G) interpreting services;
(H) medical services for diagnostic or
evaluation purposes;
(I) music therapy;
(J) occupational therapy;
(K) orientation and mobility services;
(L) parent counseling and training;
(M) physical therapy;
(N)
recreation,
including
therapeutic
recreation;
(O) rehabilitation counseling services;
(P) school health services;
(Q) school nurse services;
(R) school psychological services;
(S) school social work services;
(T) special education administration and
supervision;
(U) special music education;
(V) speech and language services;
(W) transportation; and
(X) other developmental, corrective, or
supportive services.
(2) Related services shall not include the
provision of any medical device that is surgically
implanted, including a cochlear implant, the
optimization of the device’s functioning,
including mapping and maintenance of the
device, and replacement of the device.
(ddd) ‘‘School age’’ means the following:
(1) For children identified as gifted, having
attained the age at which the local board of
education provides educational services to
children without disabilities, through the school
year in which the child graduates from high
school; and
(2) for children with disabilities, having
attained age three, through the school year in
which the child graduates with a regular high
school diploma or reaches age 21, whichever
occurs first.
(eee) ‘‘School day’’ means any day,
including a partial day, that all children,
including children with and without disabilities,
are in attendance at school for instructional
purposes.
(fff) ‘‘School health services’’ means health
services that are specified in the IEP of a child
with a disability and that are provided by a
school nurse or other qualified person.
(ggg) ‘‘School nurse services’’ means
nursing services that are provided by a qualified
nurse in accordance with the child’s IEP.
(hhh) ‘‘School psychological services’’
means the provision of any of the following
services:
(1)
Administering
psychological
and
educational
tests,
and
other
assessment
procedures;
(2) interpreting assessment results;
(3) obtaining, integrating, and interpreting
information about child behavior and conditions
relating to learning;
(4) consulting with other staff members in
planning school programs to meet the special
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needs of children as indicated by psychological
tests;
(5) planning and managing a program of
psychological services, including psychological
counseling for children and parents; and
(6) assisting in developing positive
behavioral intervention strategies.
(iii) ‘‘School social work services’’ means
services provided by a qualified social worker
and shall include the provision of any of the
following services:
(1) Preparing a social or developmental
history on a child with a disability;
(2) group and individual counseling with the
child and family;
(3) working in partnership with the parent or
parents and others on those problems in a child’s
living situation, at home, at school, and in the
community that affect the child’s adjustment in
school;
(4) mobilizing school and community
resources to enable the child to learn as
effectively as possible in the child’s educational
program; and
(5) assisting in developing positive
behavioral intervention strategies.
(jjj) ‘‘Services plan’’ means a written
statement for each child with a disability enrolled
in a private school that describes the special
education and related services that the child will
receive.
(kkk) ‘‘Special education’’ means the
following:
(1) Specially designed instruction, at no cost
to the parents, to meet the unique needs of an
exceptional child, including the following:
(A) Instruction conducted in the classroom,
in the home, in hospitals and institutions, and in
other settings; and
(B) instruction in physical education;
(2) paraeducator services, speech-language
pathology services, and any other related service,
if the service consists of specially designed
instruction to meet the unique needs of a child
with a disability;
(3) occupational or physical therapy and
interpreter services for deaf children if, without
any of these services, a child would have to be
educated in a more restrictive environment;
(4) travel training; and
(5) vocational education.
(lll) ‘‘Specially designed instruction’’ means
adapting, as appropriate to the needs of each
exceptional child, the content, methodology, or
delivery of instruction for the following
purposes:
(1) To address the unique needs of the child
that result from the child’s exceptionality; and
(2) to ensure access of any child with a
disability to the general education curriculum, so
that the child can meet the educational standards
within the jurisdiction of the agency that apply to
all children.
(mmm) ‘‘Specific learning disability’’
means a disorder in one or more of the basic
psychological
processes
involved
in
understanding or using language, spoken or
written, that may manifest itself in an imperfect
ability to listen, think, speak, read, write, spell,
or to do mathematical calculations, including
perceptual disabilities, brain injury, minimal
brain dysfunction, dyslexia, and developmental
aphasia. The term shall not include learning
problems that are primarily the result of any of
the following:
(1) Visual, hearing, or motor disabilities;
(2) mental retardation;
(3) emotional disturbance; or
(4) environmental, cultural, or economic
disadvantage.
(nnn)
‘‘Speech-language
pathology
services’’ means the provision of any of the
following services:
(1) Identification of children with speech or
language impairments;
(2) diagnosis and appraisal of specific
speech or language impairments;
(3) referral for medical or other professional
attention necessary for the habilitation of speech
or language impairments;
(4) provision of speech and language
services for the habilitation or prevention of
communicative impairments; and
(5) counseling and guidance of parents,
children, and teachers regarding speech and
language impairments.
(ooo) ‘‘Speech or language impairment’’
means a communication disorder, including
stuttering, impaired articulation, a language
impairment, or a voice impairment,
that
adversely
affects
a
child’s
educational
performance.
(ppp) ‘‘State agency’’ means the secretary
of social and rehabilitation services, the secretary
of corrections, and the commissioner of juvenile
justice.
(qqq) ‘‘State board’’ means the state board
of education.
(rrr) ‘‘State institution’’ means any
institution under the jurisdiction of a state
agency.
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(sss) ‘‘Substantial change in placement’’
means the movement of an exceptional child, for
more than 25 percent of the child’s school day,
from a less restrictive environment to a more
restrictive environment or from a more
restrictive environment to a less restrictive
environment.
(ttt) ‘‘Supplementary aids and services’’
means aids, services, and other supports that are
provided in regular education classes, other
education-related settings, and extracurricular
and nonacademic settings to enable children with
disabilities to be educated with nondisabled
children to the maximum extent appropriate.
(uuu) ‘‘Transition services’’ means a
coordinated set of activities for a student with
disabilities, designed within a results-oriented
process, that is focused on improving the
academic and functional achievement of the
child with a disability to facilitate the child’s
movement from school to postschool activities,
including postsecondary education, vocational
education, integrated employment including
supported employment, continuing and adult
education, adult services, independent living, and
community participation. The coordinated set of
activities shall be based on the individual
student’s needs, taking into account the student’s
preferences and interests, and shall include the
following:
(1) Instruction;
(2) related services;
(3) community experiences;
(4) the development of employment and
other postschool adult living objectives; and
(5) if appropriate, acquisition of daily living
skills and a functional vocational evaluation.
(vvv)
‘‘Transportation’’
means
the
following:
(1) Travel to and from school and between
schools;
(2) travel in and around school buildings;
and
(3) specialized equipment, including special
or adapted buses, lifts, and ramps, if required to
provide special transportation for a child with a
disability.
(www) ‘‘Traumatic brain injury’’ means an
acquired injury to the brain that is caused by an
external physical force, resulting in total or
partial functional disability or psychosocial
impairment, or both, that adversely affects
educational performance. The term shall apply to
open or closed head injuries resulting in
impairments in one or more areas, including the
following:
(1) Cognition;
(2) language;
(3) memory;
(4) attention;
(5) reasoning;
(6) abstract thinking;
(7) judgment;
(8) problem solving;
(9) sensory, perceptual, and motor abilities;
(10) psychosocial behavior;
(11) physical functions;
(12) information processing; and
(13) speech.
The term shall not include brain injuries that
are congenital or degenerative or that are induced
by birth trauma.
(xxx) ‘‘Travel training’’ means providing
instruction, as appropriate, to children with
significant cognitive disabilities, and any other
children with disabilities who require this
instruction, to enable them to perform the
following:
(1)
Develop
an
awareness
of
the
environment in which they live; and
(2) learn the skills necessary to move
effectively and safely from place to place within
various environments, including at school, home,
and work, and in the community.
(yyy) ‘‘Visual impairment’’ means an
impairment in vision that, even with correction,
adversely
affects
a
child’s
educational
performance. The term shall include both partial
sight and blindness.
(zzz) ‘‘Vocational education’’ means any
organized educational program that is directly
related to the preparation of individuals for paid
or unpaid employment, or for additional
preparation for a career requiring other than a
baccalaureate or advanced degree. (Authorized
by and implementing K.S.A. 2007 Supp. 72-963;
effective May 19, 2000; amended March 21,
2008.)
91-40-2. FAPE
. (a) (1) Each agency shall
provide FAPE in accordance with K.S.A. 72-966
and amendments thereto, and with this article.
(2) Each agency’s obligation to provide
FAPE shall extend to exceptional children
residing on Indian reservations, unless these
children are provided FAPE by the secretary of
the interior under federal law.
(b)(1) Each agency shall make FAPE
available to each child with a disability residing
in its jurisdiction beginning not later than the
child’s third birthday.
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(2) An IEP or IFSP shall be in effect by the
child’s third birthday, but, if that birthday occurs
during the summer when school is not in session,
the child’s IEP team shall determine the date
when services will begin.
(3) If a child is transitioning from early
intervention services provided under part C of
the federal law, the agency responsible for
providing FAPE to the child shall participate in
transition planning conferences for the child.
(c) An agency shall not be required to
provide FAPE to any child with a disability who
is eligible for preschool services under the
federal law but whose parent has elected to have
the child receive early intervention services
under the law.
(d)(1) Each agency shall make FAPE
available to any child with a disability even
though the child has not failed or been retained
in a course or grade and is advancing from grade
to grade.
(2) The determination of whether a child
who is advancing from grade to grade is a child
with a disability shall be made on an individual
basis in accordance with child find activities and
evaluation procedures required by this article.
(e) Each agency shall provide special
education and related services based upon the
child’s unique needs and not upon the child’s
area of exceptionality.
(f) An agency shall not be required to
provide FAPE to a student aged 18 through 21
who meets the following criteria:
(1) Is incarcerated in an adult correctional
facility; and
(2) in the student’s last educational
placement before incarceration, was not
identified as a child with a disability and did not
have an IEP.
(g) (1) An agency shall not be required to
provide FAPE to any exceptional child who has
graduated from high school with a regular high
school diploma.
(2) Each exceptional child shall be eligible
for graduation from high school upon successful
completion of state and local board requirements
and shall receive the same graduation
recognition and diploma that a nonexceptional
child receives.
(3) The IEP of an exceptional child may
designate goals other than high school
graduation.
(4) When an exceptional child enters high
school, progress toward graduation shall be
monitored annually and recorded on an official
transcript of credits.
(5) As used in this subsection, the term
‘‘regular high school diploma’’ shall mean the
same diploma as that awarded to nonexceptional
students and shall not include any certificate of
completion or any other certificate, or a general
educational development credential (GED).
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966;
effective May 19, 2000; amended May 4, 2001;
amended March 21, 2008.)
91-40-3. Ancillary FAPE requirements
. (a)
Each agency shall ensure that children with
disabilities have available to them the same
variety of educational programs and services that
are available to nondisabled children served by
the agency, including art, music, industrial arts,
consumer and homemaking education, and
vocational education.
(b) (1) Each agency shall provide
nonacademic and extracurricular services and
activities in the manner necessary to afford
children with disabilities an equal opportunity
for participation in those services and activities,
including the provision of supplementary aids
and services as determined to be necessary by
the child’s IEP team.
(2)
Nonacademic
and
extracurricular
services and activities shall include the
following:
(A) Counseling services;
(B) athletics;
(C) transportation;
(D) health services;
(E) recreational activities;
(F) special interest groups or clubs
sponsored by the agency;
(G) referrals to agencies that provide
assistance to individuals with disabilities; and
(H) employment of students, including both
employment by the agency and assistance in
making outside employment available.
(c) (1) Each agency shall make physical
education services, specially designed if
necessary, available to every child with a
disability, unless the agency does not provide
physical education to any children who are
enrolled in the same grade.
(2) Each child with a disability shall be
afforded the opportunity to participate in the
regular physical education program available to
nondisabled children unless either of the
following conditions is met:
(A) The child is enrolled full-time in a
separate facility.
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(B) The child needs specially designed
physical education, as prescribed in the child’s
IEP.
(d) (1) Each agency shall ensure that
assistive technology devices or assistive
technology services, or both, are made available
to a child with a disability if required as a part of
the child’s special education or related services,
or the child’s supplementary aids and services.
(2) Each agency, on a case-by-case basis,
shall allow the use of school-purchased assistive
technology devices in a child’s home or in other
settings if the child’s IEP team determines that
the child needs access to those devices at home
or in other settings in order to receive FAPE.
(e) (1) Each agency shall ensure that
extended school year services are available as
necessary to provide FAPE to a child with a
disability.
(2) An agency shall be required to provide
extended school year services only if a child’s
IEP team determines, on an individual basis, that
the services are necessary for the provision of
FAPE to the child.
(3) An agency shall neither limit extended
school year services to particular categories of
disabilities nor unilaterally limit the type,
amount, or duration of those services.
(f) (1) Each agency shall ensure that hearing
aids worn in school by children with hearing
impairments or deafness are functioning
properly.
(2) Each agency shall ensure that the
external components of surgically implanted
medical devices of children with disabilities are
functioning properly. However, an agency shall
not be responsible for the maintenance,
programming, or replacement of any surgically
implanted medical device or any external
component of the device.
(g) Each gifted child shall be permitted to
test out of, or work at an individual rate, and
receive credit for required or prerequisite
courses, or both, at all grade levels, if so
specified in that child’s individualized education
program.
(h) Any gifted child may receive credit for
college study at the college or high school level,
or both. If a gifted child chooses to receive
college credit, however, the student shall be
responsible for the college tuition costs.
Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966;
effective May 19, 200; amended March 21,
2008.)
91-40-4 FAPE for exceptional children
housed and maintained in certain state
institutions.
(a) Subject to K.S.A. 72-1046 and
amendments thereto, each state agency shall
provide FAPE to exceptional children housed
and maintained at any facility operated by the
agency. All educational programs shall comply
with the requirements of state special education
laws and regulations.
(b) State schools.
(1) The procedures for placing Kansas
residents into the Kansas state school for the
blind and the Kansas state school for the deaf
shall meet the following requirements:
(A) Admission procedures shall be initiated
by the child's home school district and by the
child's parent or parents.
(B) Placement of any child in a state school
shall be made only after the local school district
and the child's parent or parents have considered
less restrictive placement options.
(C) Placement shall be based on a child’s
IEP, which shall indicate a need for educational
services provided at the state school.
(D) Any agency may refer a child to a state
school for a portion or all of the child’s
evaluation. In such a case, a representative or
representatives from the agency shall be included
in any meeting at which the child’s eligibility for
services or placement is determined.
(E) If the initial evaluation and staffing are
conducted by any local school district and if one
of the state schools is proposed as a placement
for the child, a representative or representatives
from the state school shall be included in the
meeting at which placement for the child is
determined.
(2) Personnel from the child's home school
district, as well as personnel from the state
school and the child's parent or parents, shall be
afforded an opportunity to participate in any IEP
meeting for the child. Placement of the child in
the home school district shall be considered at
each annual IEP meeting.
(3) Each state school shall attempt to make
arrangements so that each child enrolled in the
state school has access to the educational
programs in the local school districts near the
location of the school, on either a part-time or
full-time basis.
(4) If a state school determines that its
program is not appropriate for a student and it
can no longer maintain the student in its
program, the state school shall give the district of
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residence of the student at least 15-day notice of
this determination.
(c) Unless otherwise expressly authorized by
state law, when a student transfers from a state
school to a school district or from one school
district to another, the most recent individualized
education program, as well as any additional
educationally relevant information concerning
the child, shall be forwarded immediately to the
receiving school district.
(d) SRS institutions and facilities.
(1) In accordance with K.S.A. 72-8223 and
amendments thereto, and subject to the
provisions of K.S.A. 72-970 and 72-1046 and
amendments thereto, provision for FAPE shall
be made by the secretary of social and
rehabilitation services for each exceptional child
housed and maintained at any institution or
facility under the jurisdiction of the secretary.
(2) The requirements in this article
concerning placement and LRE may be modified
in accordance with the child’s need for
maintenance at the state institution or facility.
(Authorized by K.S.A. 1999 Supp. 72-963;
implementing K.S.A. 1999 Supp. 72-966 and 72-
970; effective May 19, 2000.)
91-40-5. FAPE for detained or incarcerated
children with disabilities. (a) Local detention
facilities.
(1) Subject to the provisions of K.S.A. 72-
1046 and amendments thereto, each board shall
provide FAPE to each child with a disability
detained or incarcerated in a local juvenile or
adult detention facility located within its
jurisdiction.
(2) The requirements in this article
concerning placement and LRE may be modified
in accordance with the child’s detention or
incarceration.
(b) State juvenile correctional facilities.
(1) The commissioner of the juvenile justice
authority shall make provision for FAPE for
each child with a disability detained or
incarcerated in any state juvenile correctional
facility or other facility at the direction of the
commissioner.
(2) The requirements in this article
concerning parental rights, placement, and LRE
may be modified in accordance with state and
federal laws and the child’s conditions of
detention or incarceration.
(c) State adult correctional facilities.
(1) Except as otherwise provided in this
regulation, provision for FAPE shall be made by
the secretary of corrections for each child with a
disability incarcerated in any state correctional
institution or facility.
(2) In making provision for FAPE under
paragraph (1) of this subsection, compliance with
state or federal laws or regulations relating to the
following shall not be required of the secretary
of corrections:
(A) Participation of children with disabilities
in state or local assessments; and
(B) transition planning and services with
respect to any disabled child whose eligibility for
special education services will end, because of
the child’s age, before the child is eligible to be
released from the secretary’s custody based on
consideration of the child’s sentence and
eligibility for early release.
(3) Provision of FAPE to any person
incarcerated in a state correctional institution or
facility shall not be required by the secretary of
corrections if the person meets both of the
following criteria:
(A) The incarcerated person is at least 18
years of age.
(B) The incarcerated person, in the person’s
last educational placement before incarceration,
was not identified as a child with a disability.
(4)(A) Except as otherwise provided in
paragraph (4)(B) of this subsection, the IEP team
of a child with a disability incarcerated in a state
adult correctional institution or facility may
modify the child’s IEP or placement if personnel
of the correctional institution or facility
demonstrate a bona fide security or compelling
penological interest that cannot otherwise be
accommodated.
(B) An IEP team of a child with a disability
incarcerated in a state adult correctional
institution or facility shall not modify the
following requirements:
(i)
That
any
decision
regarding
modifications to, and reviews and revisions of,
any IEP shall be made by the IEP team; and
(ii) that, except as otherwise expressly
provided in paragraph (c)(2), each IEP shall have
the content specified in K.S.A. 72-987 and
amendments thereto. (Authorized by K.S.A.
2007 Supp. 72-963; implementing K.S.A. 2007
Supp. 72-966; effective May 19, 2000; amended
March 21, 2008.)
91-40-6. Reserved
.
91-40-7. Child find
. (a) Each board shall adopt
and implement policies and procedures to
identify, locate, and evaluate all children with
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11
exceptionalities residing in its jurisdiction,
including children with exceptionalities who
meet any of the following criteria:
(1) Attend private schools;
(2) are highly mobile, including migrant and
homeless children; or
(3) are suspected of being children with
disabilities even though they are advancing from
grade to grade.
(b) Each board’s policies and procedures
under this regulation shall include age-
appropriate screening procedures that meet the
following requirements:
(1) For children younger than five years of
age, observations, instruments, measures, and
techniques that disclose any potential disabilities
or developmental delays that indicate a need for
evaluation, including hearing and vision
screening;
(2) for children from ages five through 21,
observations,
instruments,
measures,
and
techniques
that
disclose
any
potential
exceptionality and indicate a need for evaluation,
including hearing and vision screening as
required by state law; and
(3) implementation of procedures ensuring
the early identification and assessment of
disabilities in children.
(c) Any board may refer a child who is
enrolled in public school for an evaluation if one
of the following conditions is met:
(1) School personnel have data-based
documentation indicating that general education
interventions and strategies would be inadequate
to address the areas of concern for the child.
(2) School personnel have data-based
documentation indicating that before the referral
or as a part of the referral, all of the following
conditions were met:
(A) The child was provided with appropriate
instruction in regular education settings that was
delivered by qualified personnel.
(B) The child’s academic achievement was
repeatedly assessed at reasonable intervals that
reflected formal assessment of the student’s
progress during instruction.
(C) The assessment results were provided to
the child’s parent or parents.
(D) The assessment results indicate that an
evaluation is appropriate.
(3) The parent of the child requests, and
gives written consent for, an evaluation of the
child, and the board agrees that an evaluation of
the child is appropriate.
(d) Each board, at least annually, shall
provide information to the public concerning the
availability of special education services for
exceptional children, including child find
activities conducted by the board.
(e) Each agency shall ensure that the
collection and use of data under this regulation
are subject to the confidentiality requirements of
K.A.R. 91-40-50. (Authorized by K.S.A. 2007
Supp. 72-963; implementing K.S.A. 2007 Supp.
72-966; effective May 19, 2000; amended May
4, 2001; amended March 21, 2008.)
91-40-8. Evaluations.
(a) Each agency shall
ensure that a full and individual evaluation is
conducted for each child being considered for
special education and related services. Each
evaluation shall include procedures to determine
the following:
(1) Whether the child is an exceptional
child; and
(2) what the educational needs of the child
are.
(b) In implementing the requirements of
subsection (a), the agency shall ensure that the
following conditions are met:
(1) The evaluation is conducted in
accordance with the procedures described in
K.A.R. 91-40-9 and, if applicable, K.A.R. 91-40-
11.
(2) The results of the evaluation are used by
the child’s IEP team to develop the child’s IEP.
(3) The evaluation is conducted before the
initial provision of special education and related
services to the child.
(c) As a part of an initial evaluation, if
appropriate, and as a part of any reevaluation,
each agency shall ensure that members of an
appropriate IEP team for the child and other
qualified professionals, as appropriate, comply
with the following requirements:
(1) The evaluation team shall review
existing evaluation data on the child, including
the following information:
(A) Evaluations and information provided
by the parent or parents of the child;
(B) current classroom-based, local, and state
assessments and classroom-based observations;
and
(C) observations by teachers and related
services providers.
(2) On the basis of that review and input
from the child’s parent or parents, the evaluation
team shall identify what additional data, if any, is
needed to determine the following matters:
(A) Whether the child has a particular
category of exceptionality or, in the case of a
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reevaluation of a child, whether the child
continues to have such an exceptionality;
(B) what the present levels of academic
achievement and educational and related
developmental needs of the child are;
(C) whether the child needs special
education and related services, or in the case of a
reevaluation of a child, whether the child
continues to need special education and related
services; and
(D) whether, in the case of a reevaluation of
the child, any additions or modifications to the
special education and related services currently
being provided to the child are needed to enable
the child to meet the measurable annual goals set
out in the IEP of the child and to participate, as
appropriate, in the general education curriculum.
(d) The team described in subsection (c)
may conduct its review without a meeting.
(e) (1) If the team described in subsection
(c) determines that additional data is required to
make any of the determinations specified in
paragraph (2) of subsection (c), the agency, after
giving proper written notice to the parent and
obtaining parental consent, shall administer those
tests and evaluations that are appropriate to
produce the needed data.
(2) If the team described in subsection (c)
determines that no additional data is needed to
make any of the determinations specified in
paragraph (2) of subsection (c), the agency shall
give written notice to the child’s parent of the
following information:
(A) The determination that no additional
data is needed and the reasons for this
determination; and
(B) the right of the parent to request an
assessment.
(3) The agency shall not be required to
conduct any additional assessments unless
requested to do so by a parent.
(f) Unless an agency has obtained written
parental consent to an extension of time and
except as otherwise provided in subsection (g),
the agency shall complete the following
activities within 60 school days of the date the
agency receives written parental consent for
evaluation of a child:
(1) Conduct the evaluation of the child;
(2) conduct a meeting to determine whether
the child is an exceptional child and, if so, to
develop an IEP for the child. The agency shall
give notice of this meeting to the child’s parent
or parents as required by K.A.R. 91-40- 17(a);
and
(3) implement the child’s IEP in accordance
with K.A.R. 91-40-16.
(g) An agency shall not be subject to the time
frame prescribed in subsection (f) if either of the
following conditions is met:
(1) The parent or parents of the child who is
to be evaluated repeatedly fail or refuse to
produce the child for the evaluation.
(2) The child enrolls in a different school
before the evaluation is completed, and the
parent and new school agree to a specific date by
which the evaluation will be completed.
(h) In complying with subsection (f), each
agency shall ensure that an IEP is developed for
each exceptional child within 30 days from the
date on which the child is determined to need
special
education
and
related
services.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966 and 72-
986; effective May 19, 2000; amended March
21, 2008.)
91-40-9. Evaluation procedures.
(a) If
assessment instruments are used as a part of the
evaluation or reevaluation of an exceptional
child, the agency shall ensure that the following
requirements are met:
(1) The assessment instruments or materials
shall meet the following criteria:
(A) Be selected and administered so as not
to be racially or culturally discriminatory; and
(B) be provided and administered in the
child’s native language or other mode of
communication and in the form most likely to
yield accurate information on what the child
knows
and
can
do
academically,
developmentally, and functionally, unless this is
clearly not feasible.
(2) Materials and procedures used to assess
a child with limited English proficiency shall be
selected and administered to ensure that they
measure the extent to which the child has an
exceptionality and needs special education,
rather than measuring the child’s English
language skills.
(3) A variety of assessment tools and
strategies shall be used to gather relevant
functional and developmental information about
the child, including information provided by the
parent, and information related to enabling the
child to be involved and progress in the general
curriculum or, for a preschool child, to
participate in appropriate activities that could
assist in determining whether the child is an
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13
exceptional child and what the content of the
child’s IEP should be.
(4) Any standardized tests that are given to a
child shall meet the following criteria:
(A) Have been validated for the specific
purpose for which they are used; and
(B) be administered by trained and
knowledgeable personnel in accordance with any
instructions provided by the producer of the
assessment.
(5) If an assessment is not conducted under
standard conditions, a description of the extent to
which the assessment varied from standard
conditions shall be included in the evaluation
report.
(6) Assessments and other evaluation
materials shall include those that are tailored to
assess specific areas of educational need and not
merely those that are designed to provide a
single general intelligence quotient.
(7) Assessments shall be selected and
administered to ensure that if an assessment is
administered to a child with impaired sensory,
manual, or speaking skills, the results accurately
reflect the child’s aptitude or achievement level
or whatever other factors the assessment purports
to measure, rather than reflecting the child’s
impaired sensory, manual, or speaking skills,
unless those skills are the factors that the
assessment purports to measure.
(8) A single procedure shall not be used as
the sole criterion for determining whether a child
is an exceptional child and for determining an
appropriate educational program for the child.
(9) Each agency shall use assessment tools
and strategies that provide relevant information
that directly assists persons in determining the
educational needs of the child.
(b) (1) Each child shall be assessed in all
areas related to a suspected exceptionality,
including, if appropriate, the following:
(A) Health;
(B) vision;
(C) hearing;
(D) social and emotional status;
(E) general intelligence;
(F) academic performance;
(G) communicative status; and
(H) motor abilities.
(2) Each evaluation shall be sufficiently
comprehensive to identify all of the child’s
special education and related services needs,
whether or not commonly linked to the disability
category in which the child has been classified.
(c) If a child is suspected of having a
specific learning disability, the agency also shall
follow the procedures prescribed in K.A.R. 91-
40-11 in conducting the evaluation of the child.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-986;
effective May 19, 2000; amended May 4, 2001;
amended March 21, 2008.)
91-40-10. Eligibility determination.
(a) (1)
After completion of appropriate evaluation
procedures, a team of qualified professionals and
the parent of the child who has been evaluated
shall prepare a written evaluation report that
includes a statement regarding each of the
following matters:
(A) The determination of whether the child
has an exceptionality;
(B) the basis for making the determination;
(C) the relevant behavior noted during the
observation of the child;
(D) the relationship of that behavior to the
child’s academic functioning;
(E) educationally relevant medical findings,
if any; and
(F) if the child was evaluated for a specific
learning disability, the additional information
specified in subsection (e).
(2) Each team member shall certify in
writing whether the report reflects the member’s
conclusion. If the report does not reflect that
member’s conclusion, the team member shall
submit a separate statement presenting the
member’s conclusion.
(b) Each agency shall provide, at no cost, a
copy of the evaluation report to the child’s
parent.
(c) An evaluation team shall not determine a
child to be an exceptional child if the
determinant
factor
for
that
eligibility
determination is the child’s lack of appropriate
instruction in reading or mathematics or limited
English proficiency, and if the child does not
otherwise qualify as a child with an
exceptionality.
(d) Each evaluation team, in determining
whether a child is an exceptional child and what
the educational needs of the child are, shall meet
the following requirements:
(1) The evaluation team shall draw upon
information from a variety of sources, including
the following:
(A) Aptitude and achievement tests;
(B) parent input;
(C) teacher recommendations;
(D) physical condition;
(E) social or cultural background; and
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(F) adaptive behavior.
(2) The evaluation team shall ensure that the
information obtained from all of the sources
specified in paragraph (1) of this subsection is
documented and considered.
(e) If the evaluation team and the parent
determine the parent’s child to be a child with a
specific learning disability, the evaluation team
and the parent shall prepare a written evaluation
report that includes a statement regarding each of
the following matters:
(1) An indication of whether the child has a
specific learning disability;
(2) the basis for making the determination,
including an assurance that the determination has
been made in accordance with applicable laws
and regulations;
(3) the relevant behavior, if any, noted
during the observation of the child and the
relationship of that behavior to the child’s
academic functioning;
(4) educationally relevant medical findings,
if any;
(5) an indication of whether the child meets
the following criteria:
(A) Does not achieve adequately for the
child’s age or meet state-approved grade-level
standards; and
(B)(i) Does not make sufficient progress to
meet age standards or state-approved grade-level
standards; or
(ii) exhibits a pattern of strengths and
weaknesses in performance, achievement, or
both, relative to age, state-approved grade-level
standards, or intellectual development; and
(6) the determination of the team concerning
the effect of the following factors on the child’s
achievement level:
(i) Visual, hearing, or motor skills disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v)
environmental
or
economic
disadvantage; and
(vi) limited English proficiency.
(f) If the child has participated in a process
that assessed the child’s response to scientific,
research-based intervention, the evaluation report
shall also address the following matters:
(1) The instructional strategies used and the
student-centered data collected; and
(2) the documentation indicating that the
child’s parent or parents were notified about the
following:
(A) The state’s policies regarding the
amount and nature of student performance data
that would be collected and the general education
services that would be provided;
(B) strategies for increasing the child’s rate
of learning; and
(C) the right of a parent to request an
evaluation.
(g) (1) Except as provided in paragraph (2)
of this subsection, after a child has been
determined to be a child with an exceptionality
and has been provided special education or
related services, an agency shall conduct a
reevaluation of the child before terminating
special education or related services to the child.
(2) An agency shall not be required to
conduct a reevaluation of a child with an
exceptionality
before
terminating
special
education or related services to the child if the
reason for termination of services is due to either
of the following:
(A) The child has graduated from high
school with a regular high school diploma.
(B) The child has reached the age of 21
years.
(3) An agency shall provide prior written
notice before terminating special education
services for either of the reasons stated in
paragraph (g)(2).
(h) An agency shall not be required to
classify children with disabilities according to
their categories of disabilities if each child with a
disability is regarded as a child with a disability
and is provided FAPE.
(i) With regard to children ages three
through nine who are determined to need special
education and related services, an agency shall
use one or more of the categories of disabilities
described in the definition of the term ‘‘child
with a disability’’ or the term ‘‘developmental
delay.’’ (Authorized by K.S.A. 2007 Supp. 72-
963; implementing K.S.A. 2007 Supp. 72-986;
effective May 19, 2000; amended May 4, 2001;
amended March 21, 2008.)
91-40-11. Evaluation for specific learning
disability; use of response to intervention
process.
(a) If a child is suspected of having a
specific learning disability and believed to need
special education services because of that
disability, the agency shall ensure that the
evaluation of the child is made by the child’s
parent and a group of qualified professionals,
including the following individuals:
(1)(A) The child’s regular education teacher
or, if the child does not have a regular education
teacher, a regular classroom teacher qualified to
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15
teach a child of the child’s age; or
(B) for a child of less than school age, an
individual who is qualified to teach a child of the
child’s age; and
(2) at least one person qualified to conduct
individualiagnostic examinations of children,
including a school psychologist, speech-
language pathologist, or remedial reading
teacher.
(b)(1) A group evaluating a child for a
specific learning disability may determine that
the child has that disability only if the following
conditions are met:
(A) The child does not achieve adequately
for the child’s age or meet state-approved grade-
level standards, if any, in one or more of the
following areas, when the child is provided with
learning experiences and instruction appropriate
for the child’s age and grade level:
(i) Oral expression;
(ii) listening comprehension;
(iii) written expression;
(iv) basic reading skill;
(v) reading fluency skills;
(vi) reading comprehension;
(vii) mathematics calculation; and
(viii) mathematics problem solving; and
(B)(i) The child does not make sufficient
progress to meet age or state-approved grade-
level standards in one or more of the areas
identified in paragraph (b)(1)(A) when using a
process based on the child’s response to
scientific, research-based intervention; or
(ii) the child exhibits a pattern of strengths
and weaknesses in performance, achievement, or
both, relative to age, grade-level standards, or
intellectual development that is determined by
the group conducting the evaluation to be
relevant to the identification of a specific
learning
disability,
using
appropriate
assessments.
(2) A child shall not be determined to be a
child with a specific learning disability unless
the group evaluating the child determines that its
findings under paragraphs
(b)(1) (A) and (B) are not primarily the
result of any of the following:
(i) A visual, hearing, or motor disability;
(ii) mental retardation;
(iii) emotional disturbance;
(iv) cultural factors;
(v)
environmental
or
economic
disadvantage; or
(vi) limited English proficiency.
(c) (1) The group evaluating the child shall
ensure that the child is observed in the child’s
learning environment, including the regular
classroom setting, to document the child’s
academic performance and behavior in the areas
of difficulty.
(2) In conducting the observation, the group
may employ either of the following procedures:
(A) Use information from an observation in
routine classroom instruction and monitoring of
the child’s performance that was done before the
child was referred for an evaluation; or
(B) have at least one member of the group
conduct an observation of the child’s academic
performance in the regular classroom after the
child has been referred for an evaluation and
parental consent is obtained. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-986; effective May 19, 2000;
amended March 21, 2008.)
91-40-12. Right to independent educational
evaluation
.
(a) (1) Subject to the conditions specified in
this regulation, a parent of an exceptional child
shall have the right to request an independent
educational evaluation at public expense if the
parent disagrees with the evaluation obtained by
the agency.
(2) The parent shall be eligible for only one
independent educational evaluation at public
expense in response to an evaluation conducted
by the agency.
(b) If a parent requests an independent
educational evaluation of the child, the agency,
without unnecessary delay, shall take one of the
following actions:
(1) Initiate a due process hearing to show
that its evaluation is appropriate; or
(2) (A) Provide information to the parent
about where an independent educational
evaluation may be obtained and the agency
criteria prescribed under subsection (g) that
apply to independent educational evaluations;
and
(B) take either of the following actions:
(i) Pay the full cost of the independent
educational evaluation or otherwise ensure that
the evaluation is provided at no cost to the
parent; or
(ii) initiate a due process hearing to show
that the evaluation obtained by the parent does
not meet agency criteria.
(c) If the agency initiates a hearing and the
final decision is that the agency’s evaluation is
appropriate, the parent shall still have the right to
an independent educational evaluation, but the
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agency shall not be required to pay the cost of
that evaluation.
(d) If a parent requests an independent
educational evaluation, the agency may ask the
reason for the objection to the public evaluation.
However, the explanation by the parent shall not
be required, and the agency shall not
unreasonably delay either providing the
independent educational evaluation at public
expense or initiating a due process hearing to
defend the public evaluation.
(e) If the parent obtains an independent
educational evaluation at public expense or
provides the agency with an evaluation obtained
at private expense, the results of the evaluation
shall be considered by the agency, if it meets
agency criteria, in any decision made with
respect to the provision of FAPE to the child.
The results of this evaluation may be presented
as evidence at a due process hearing regarding
that child.
(f) If a hearing officer requests an
independent educational evaluation as part of a
hearing, the cost of the evaluation shall be paid
by the agency.
(g) (1) Subject to the provisions of
paragraph (2) of this subsection, each agency
shall adopt criteria for obtaining an independent
educational evaluation at public expense. The
criteria may include the qualifications of the
examiner and the location of the evaluation, but
shall not impose other conditions or timelines for
obtaining the evaluation.
(2) The criteria adopted by an agency under
paragraph (1) of this subsection shall be the same
as the criteria that the agency uses when it
conducts an evaluation, to the extent that those
criteria are consistent with the parents’ right to
obtain an independent educational evaluation.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-986 and 72-
988; effective May 19, 2000; amended March
21, 2008.)
91-40-13. Reserved.
91-40-14. Reserved.
91-40-15. Reserved.
91-40-16. IEP requirements
. (a) Each agency
shall be responsible for initiating and conducting
meetings to develop, review, and revise the IEP
of each exceptional child served by the agency.
(b) Except as otherwise provided in
subsection (c), each agency shall ensure that the
following conditions are met:
(1) An IEP is in effect before special
education and related services are provided to an
exceptional child.
(2) Those services for which written consent
has been granted as specified by law are
implemented not later than 10 school days after
parental consent is granted unless reasonable
justification for a delay can be shown.
(3) An IEP is in effect for each exceptional
child at the beginning of each school year.
(4) The child’s IEP is accessible to each
regular education teacher, special education
teacher, related service provider, and other
service provider who is responsible for its
implementation.
(5) Each teacher and provider described in
paragraph (4) of this subsection is informed of
the following:
(A)
That
individual’s
specific
responsibilities related to implementing the
child’s IEP; and
(B)
the
specific
accommodations,
modifications, and supports that must be
provided for the child in accordance with the
IEP.
(c)(1) If an agency and a child’s parent
agree, an IFSP that meets the requirements of the
federal law and that is developed in accordance
with this article may serve as the IEP of a child
with a disability who is two years old but will
reach three years of age during the next school
year or who is three, four, or five years of age.
(2) Before using an IFSP as an IEP, each
agency shall meet the following requirements:
(A) The agency shall provide to the child’s
parent or parents a detailed explanation of the
differences between an IFSP and an IEP.
(B) If an IFSP is chosen, the agency shall
obtain written consent from the parent for use of
the IFSP as the child’s IEP. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-987; effective May 19, 2000;
amended March 21, 2008.)
91-40-17. IEP team meetings and participants.
(a) Each agency shall take steps to ensure that
one or both of the parents of an exceptional child
are present at each IEP team meeting or are
afforded the opportunity to participate. These
steps shall include the following:
(1) Scheduling each meeting at a mutually
agreed-upon time and place and informing the
parents of the information specified in subsection
(b) of this regulation; and
(2) except as otherwise provided in K.A.R.
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91-40-37,
providing
written
notice,
in
conformance with subsection (b) of this
regulation, to the parents of any IEP team
meeting at least 10 days in advance of the
meeting.
(b) The notice required in subsection (a) of
this regulation shall meet the following
requirements:
(1) The notice shall indicate the purpose,
time, and location of the IEP team meeting and
the titles or positions of the persons who will
attend on behalf of the agency, including, if
appropriate, any other agency invited to send a
representative to discuss needed transition
services.
(2) If the meeting is for a child who has been
receiving special education services under the
infant and toddler provisions of the federal law
but is now transitioning to the provisions for
older children, the notice shall specify that the
parent may require that a representative of the
infant and toddler program be invited to attend
the initial IEP team meeting to assist with the
smooth transition of services.
(3) The notice shall indicate the following
information, if a purpose is to consider
postsecondary goals and transition services for
the child:
(A) The agency will invite the child to
attend.
(B) One of the purposes of the meeting will
be to consider the postsecondary goals and
needed transition services for the student.
(4) The notice shall inform the parent that
the parent has the right to invite to the IEP team
meeting individuals whom the parent believes to
have knowledge or special expertise about the
child.
(c) If a parent of an exceptional child cannot
be physically present for an IEP team meeting
for the child, the agency shall attempt other
measures to ensure parental participation,
including individual or conference telephone
calls.
(d) An agency shall take action to ensure
that parents understand the discussions that occur
at IEP team meetings, including arranging for an
interpreter for parents who are deaf or whose
native language is other than English.
(e)(1) An agency may conduct an IEP team
meeting without parental participation if the
agency, despite repeated attempts, has been
unable to contact the parent or parents or to
convince them that they should participate.
(2) If an agency conducts an IEP team
meeting without parental participation, the
agency shall have a record of the attempts that
the agency made to contact the parents to
provide them notice of the meeting and to secure
their participation. The record shall include at
least two of the following:
(A) Detailed records of telephone calls made
or attempted, including the date, time, and
person making the calls and the results of the
calls;
(B) detailed records of visits made to the
parent’s home, including the date, time, and
person making the visit and the results of the
visit;
(C) copies of correspondence sent to each
parent and any responses received; and
(D) detailed records of any other method
attempted to contact the parents and the results
of that attempt.
(f)(1) An agency shall invite a child with a
disability, regardless of the child’s age, to attend
any IEP team meeting for the child if a purpose
of the meeting is consideration of the child’s
postsecondary goals and transition services
needs.
(2) If the child with a disability does not
attend the IEP team meeting, an agency shall
take other steps to ensure that the child’s
preferences and interests are considered.
(g) If a purpose of any IEP team meeting for
a child with a disability is consideration of the
postsecondary goals of the child and the
transition services needed to assist the child to
reach those goals, the agency, with the consent
of a parent or the child if the child is at least 18
years old, shall invite a representative of any
other agency that is likely to be responsible for
providing or paying for transition services.
(h) A regular education teacher of an
exceptional child, as a member of an IEP team,
shall participate to the extent appropriate in the
development, review, and revision of the child’s
IEP. This participation shall include assisting in
making the following determinations:
(1) The appropriate positive behavioral
interventions and strategies for the child;
(2) the supplementary aids and services
needed by the child; and
(3) the program modifications or supports
for school personnel that will be provided to
assist the child.
(i) If qualified to do so, an agency member
of the IEP team may serve in the role of two or
more required members of a child’s IEP team.
(j) In asking individuals with knowledge or
special expertise about a child to be members of
the child’s IEP team, the party asking the person
February 2008
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to participate shall have the sole discretion in
determining whether the invited person has
knowledge or special expertise regarding the
child. (Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-987;
effective May 19, 2000; amended May 4, 2001;
amended March 21, 2008.)
91-40-18. IEP development and content.
(a) In
developing or reviewing the IEP of any
exceptional child, each agency shall comply with
the requirements of K.S.A. 72-987 and
amendments thereto, and, as appropriate, shall
consider the results of the child’s performance on
any general state or district-wide assessment
programs.
(b) If, as a result of its consideration of the
special factors described in K.S.A. 72- 987(c)
and amendments thereto, an IEP team determines
that a child needs behavioral interventions and
strategies, accommodations, assistive technology
devices or services, or other program
modifications for the child to receive FAPE, the
IEP team shall include those items in the child’s
IEP.
(c) Each agency shall ensure that the IEP of
each exceptional child includes the information
required by K.S.A. 72-987(b) and amendments
thereto.
(d) Each agency shall give the parent a copy
of the child’s IEP at no cost to the parent.
(e) At least one year before an exceptional
child reaches 18 years of age, the agency
providing services to the child shall ensure that
the child’s IEP includes a statement the student
has been informed of rights provided in the
federal law, if any, that will transfer to the child
on reaching 18 years of age. (Authorized by
K.S.A. 2000 Supp. 72-963; implementing K.S.A.
2000 Supp. 72-987; effective May 19, 2000;
amended May 4, 2001.)
91-40-19.
IEP liability.
(a) Each agency,
teacher, and related services provider shall
provide special education and related services to
an exceptional child in accordance with the
child’s IEP and shall make a good faith effort to
assist the child to achieve the goals and
objectives stated in the IEP.
(b) An agency, teacher, or related services
provider that complies with subsection (a) of this
regulation shall not be held liable or accountable
if a child does not achieve the growth projected
in the goals and objectives stated in the child’s
IEP.
(c) Nothing in this regulation shall limit a
parent’s right to ask for revisions of the child’s
IEP or to invoke due process procedures if the
parent believes that the efforts required in
subsection (a) of this regulation are not being
made. (Authorized by K.S.A. 1999 Supp. 72-
963; implementing K.S.A. 1999 Supp. 72-987;
effective May 19, 2000.)
91-40-20. Reserved.
91-40-21. Educational placement.
(a) Each
agency shall ensure that the children with
disabilities served by the agency are educated in
the LRE.
(b) Each agency shall ensure that a
continuum of alternative educational placements
is available to meet the needs of children with
disabilities.
These
alternative
educational
placements shall meet the following criteria:
(1) Include instruction in regular classes,
special classes, and special schools; instruction
in a child’s home; and instruction in hospitals
and other institutions; and
(2) make provision for supplementary
services, including resource room and itinerant
services, to be provided in conjunction with
regular class placement.
(c)(1) In determining the educational
placement of a child with a disability, including
a preschool child with a disability, each agency
shall ensure that the placement decision meets
the following requirements:
(A) The decision shall be made by a group
of persons, including the child’s parent or
parents
and
other
persons
who
are
knowledgeable about the child, the meaning of
the evaluation data, and the placement options.
(B) The decision shall be made in
conformity with the requirement of providing
services in the LRE.
(2)
In
determining
the
educational
placement of a gifted child, each agency shall
ensure that the placement decision is made by a
group of persons, including the child’s parent or
parents
and
other
persons
who
are
knowledgeable about the child, the meaning of
the evaluation data, and appropriate placement
options for gifted children.
(d)(1) Each agency shall give notice to the
parents of any meeting to discuss the educational
placement of their child. The notice shall meet
the requirements of K.A.R. 91-40-17.
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(2) If a parent cannot participate in person at
a meeting relating to the educational placement
of the child, the agency shall offer to use other
methods to allow the parent to participate,
including
conference
calls
and
video
conferencing.
(3) An agency may conduct a meeting to
determine the appropriate educational placement
of a child with a disability without participation
of a parent if the agency, despite repeated
attempts, has been unable to contact the parent or
to convince the parent to participate.
(4) If an agency conducts a meeting to
determine the appropriate educational placement
of a child without the participation of a parent,
the agency shall have a record, as prescribed in
K.A.R. 91-40-17(e)(2), of the attempts that the
agency made to contact the parent.
(5) An agency shall take action to ensure
that parents understand, and are able to
participate in, any discussions concerning the
educational placement of their children,
including arranging for an interpreter for parents
who are deaf or whose native language is other
than English.
(e) Each agency shall ensure that each
exceptional child’s placement meets the
following criteria:
(1) Is determined at least annually;
(2) is based on the child’s IEP; and
(3) for a child with a disability, is as close as
possible to the child’s home.
(f) Unless the IEP of a child with a disability
requires some other arrangement, the agency
shall ensure that the child is educated in the
school that the child would attend if nondisabled.
(g) In selecting the LRE for a child with a
disability, the persons making the educational
placement decision shall give consideration to
any potential harmful effect on the child or on
the quality of services that the child needs.
(h) An agency shall not remove a child with
a disability from education in age-appropriate
regular classrooms solely because of needed
modifications in the general curriculum.
(i) (1) In providing, or arranging for the
provision of, nonacademic and extracurricular
services and activities, including meals, recess
periods, and other nonacademic services and
activities, each agency shall ensure that each
child with a disability participates with
nondisabled children in those services and
activities to the maximum extent appropriate to
the needs of that child.
(2) Each agency shall ensure that each child
with a disability receives the supplementary aids
and services specified in the child’s IEP as being
appropriate and necessary for the child to
participate in nonacademic settings.
(j) If it is determined that the placement in a
specialized public or private school or facility is
necessary to provide FAPE to a child with a
disability in accordance with the child’s IEP, the
agency shall provide for the placement,
including nonmedical care and room and board,
at no cost to the parent or parents of the child.
(k) Each agency that operates any separate
facility for the education of children with
disabilities shall ensure that the facility meets the
following requirements:
(1) Each facility shall be comparable to
those operated for nonexceptional children.
(2) Each facility shall be appropriate to the
chronological ages of the students and the
instructional
program
being
provided.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-976;
effective May 19, 2000; amended March 21,
2008.)
91-40-22. Agency placement in private schools
or facilities.
(a) If an agency places a child with
a disability in a private school or facility as a
means of providing FAPE to the child, the
agency shall remain responsible for ensuring that
the child is provided the special education and
related services specified in the child’s IEP and
is afforded all the rights granted by the law.
(b)(1) Before an agency places a child with a
disability in a private school or facility, the
agency shall initiate and conduct a meeting to
develop an IEP for the child.
(2) The agency shall ensure that a
representative of the private school or facility
attends the meeting. If a representative cannot
attend, the agency shall use other methods to
ensure participation by the private school or
facility, including individual or conference
telephone calls.
(c)(1) After a child with a disability enters a
private school or facility, the agency responsible
for providing FAPE to the child may allow any
meetings to review and revise the child’s IEP to
be initiated and conducted by the private school
or facility.
(2) If the private school or facility initiates
and conducts these meetings, the agency shall
ensure that a parent and an agency representative
are involved in any decision about the child’s
IEP and shall agree to any proposed changes in
the IEP before those changes are implemented.
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(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966 and 72-
976; effective May 19, 2000; amended March
21, 2008.)
91-40-23. Reserved.
91-40-24 Educational advocates.
(a) (1) Before
taking any special education action in regard to
any child, an agency shall attempt to identify the
parents of the child and the parent's current
whereabouts. parents'
(2) If the parental rights of the parents of an
exceptional child have been severed, the
secretary of social and rehabilitation services or
the secretary's designee shall notify the state
board or its designee of this fact and request the
appointment of an educational advocate for the
child.
(3) If the identity of the parent or the
parent's
current
whereabouts
cannot
be
determined, the agency shall take the following
action:
(A) Request that proceedings be initiated,
pursuant to the Kansas code for the care of
children, to determine whether the child is a
child in need of care; and
(B) notify the state board or its designee,
within three business days, of the agency's
determination and request the appointment of an
educational advocate for the child
(b) Within three business days of receiving a
request for the appointment of an educational
advocate, the agency making the request shall be
notified by the state board or its designee of the
name, address, and telephone number of the
person appointed to serve as the child's
educational advocate.
(c) Each person appointed as an educational
advocate shall meet the following requirements:
(1) Be at least 18 years of age;
(2) have completed a training program
offered or approved by the state board
concerning the powers, duties, and functions of
an educational advocate;
(3) not be an employee of the state board or
any agency that is involved in the education or
care of the child; and
(4) have no interest that conflicts with the
interest of any child whom the person represents.
(d) (1) A person who is an employee of a
nonpublic
agency
that
provides
only
noneducational care for the child and who meets
the requirements of subsection (c) of this
regulation may be appointed as an educational
advocate.
(2) A person who otherwise qualifies to be
an educational advocate shall not be considered
an employee of an agency solely because that
person is paid by the agency to serve as an
educational advocate.
(e) Any person appointed as an educational
advocate shall perform the following duties:
(1) Assert the child's rights in the education
and decision-making process, including the
identification, evaluation, and placement of the
child;
(2) comply with applicable confidentiality
requirements imposed by state and federal law;
(3) participate in the development of the
child's individualized education program; and
(4) exercise all the rights given to parents
under
the special education for exceptional
children act. (Authorized by K.S.A. 1999 Supp.
72-963; implementing K.S.A. 1999 Supp. 72-
963c; effective May 19, 2000.)
91-40-25.
Opportunity to examine records
and participate in meetings.
(a) Each agency
shall allow the parents of an exceptional child an
opportunity to inspect and review all education
records and participate in any meeting
concerning their child with respect to the
following:
(1) The identification, evaluation, or
education placement of the child; and
(2) the provision of FAPE to the child. (b)
Each agency shall take steps to ensure that one or
both of the parents of an exceptional child are
present at each meeting concerning their child or
are afforded the opportunity to participate.
These steps shall include the following:
(1) Scheduling the meeting at a mutually
agreed-upon time and place and informing the
parents of the information specified in subsection
(c) of this regulation; and
(2) providing prior written notice of any
meeting, in accordance with subsection (c) of
this regulation, to the parents of the child.
(c) The notice required in subsection (b) of
this regulation shall indicate the purpose, time,
and location of the meeting and the titles or
positions of the persons who will attend on
behalf of the agency or at the agency’s request.
(d) If neither parent of an exceptional child
can be physically present for a meeting
concerning the child, the agency shall attempt
other measures to ensure parental participation,
including individual or conference telephone
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21
calls.
(e) As used in this regulation, a meeting
shall not include the following:
(1) Informal or unscheduled conversations
involving agency personnel and conversations on
issues including teaching methodology, lesson
plans, or coordination of service provision if
those issues are not addressed in the child’s IEP;
and
(2) preparatory activities that agency
personnel engage in to develop a proposal or
response to a parent's proposal that will be
discussed at a later meeting. (Authorized by
K.S.A. 1999 Supp. 72-963; implementing K.S.A.
1999 Supp. 72-988; effective May 19, 2000.)
91-40-26.
Notice
requirements.
(a)
In
providingany notice to the parent or parents of an
exceptional child in accordance with K.S.A. 72-
990 and amendments thereto regarding any
action proposed or refused by an agency, each
agency shall ensure that the notice includes the
following information:
(1) A description of other options that the
agency considered and the reasons why those
options were rejected; and
(2) a description of other factors that are
relevant to the agency’s proposal or refusal.
(b) The notice shall be written in language
understandable to the general public and
provided in the native language of the parent or
other mode of communication used by the
parent, unless it is clearly not feasible to do so.
(c) If the native language or other mode of
communication of a parent is not a written
language, the agency shall take steps to ensure
all of the following:
(1) The notice is translated orally or by other
means to the parent in the parent’s native
language or other mode of communication.
(2) The parent understands the content of the
notice.
(3) There is written evidence that the
requirements of paragraphs (1) and (2) of this
subsection have been met.
(d) The agency shall be required to provide a
parent with a copy of the procedural safeguards
available to parents only one time during each
school year, except that a copy shall also be
provided to the parent in the following
circumstances:
(1) Upon initial referral of the child for an
evaluation or upon parental request for an
evaluation;
(2) upon receipt by the state department of
education of the first complaint filed with it by
the parent;
(3) upon receipt by an agency of the first
due process complaint filed against it by the
parent;
(4) upon the parent’s child being subjected
to disciplinary removal from the child’s current
placement; and
(5) at any time, upon request of the parent.
(e) The agency shall inform the parent of
any free or low-cost legal or other relevant
services available in the agency’s area if the
parent requests the information or the parent or
agency initiates a due process complaint
involving the parent’s child. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-988; effective May 19, 2000;
amended March 21, 2008.)
91-40-27. Parental consent.
(a) Except as
otherwise provided in this regulation, each
agency shall obtain written parental consent
before taking any of the following actions:
(1) Conducting an initial evaluation or any
reevaluation of an exceptional child;
(2) initially providing special education and
related services to an exceptional child; or
(3) making a material change in services to,
or a substantial change in the placement of, an
exceptional child, unless the change is made
under the provisions of K.A.R. 91-40-33 through
91-40-38 or is based upon the child’s graduation
from high school or exceeding the age of
eligibility for special education services.
(b) When screening or other methods used
by an agency indicate that a child may have a
disability and need special education services,
the agency shall make reasonable and prompt
efforts to obtain informed parental consent from
the child’s parent to conduct an initial evaluation
of the child and, if appropriate, to make the
initial provision of services to the child.
(c) Unless a judicial order specifies to the
contrary, each agency shall recognize the
biological or adoptive parent of an exceptional
child who is a minor as the educational decision
maker for the child if the parent exerts the
parent’s rights on behalf of the child, even if one
or more other persons meet the definition of
parent for the particular child.
(d) An agency shall not construe parental
consent for initial evaluation as parental consent
for the initial provision of special education and
February 2008
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22
related services to an exceptional child.
(e) An agency shall not be required to obtain
parental consent before taking either of the
following actions:
(1) Reviewing existing data as part of an
evaluation, reevaluation, or functional behavioral
assessment; or
(2) administering a test or other evaluation
that is administered to all children, unless before
administration of that test or evaluation, consent
is required of the parents of all children.
(f)(1) If a parent of an exceptional child who
is enrolled or is seeking to enroll in a public
school does not provide consent for an initial
evaluation or any reevaluation, or for a proposed
material change in services or a substantial
change in the placement of the parent’s child, an
agency may, but shall not be required to, pursue
the evaluation or proposed change by initiating
due process or mediation procedures.
(2) If a parent of an exceptional child who is
being homeschooled or has been placed in a
private school by the parent does not provide
consent for an initial evaluation or a
reevaluation, or fails to respond to a request to
provide consent, an agency shall not pursue the
evaluation or reevaluation by initiating mediation
or due process procedures.
(3) An agency shall not be in violation of its
obligations for identification, evaluation, or
reevaluation if the agency declines to pursue an
evaluation or reevaluation because a parent has
failed to provide consent for the proposed action.
(4) Each agency shall document its attempts
to obtain parental consent for action proposed
under this regulation.
(g) An agency shall not be required to obtain
parental consent for a reevaluation or a proposed
change in services or placement of the child if
the agency has made attempts, as described in
K.A.R. 91-40-17(e)(2), to obtain consent but the
parent or parents have failed to respond.
(h) An agency shall not use a parent’s
refusal to consent to an activity or service to
deny the parent or child other activities or
services offered by the agency. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-988; effective May 19, 2000;
amended May 4, 2001; amended March 21,
2008.)
91-40-28. Special education mediation and
due process hearings.
(a) If a disagreement
arises between a parent and an agency
concerning the identification, evaluation, or
educational
placement
of
the
parent’s
exceptional child, or the provision of FAPE to
the child, the parent or the agency, or both, may
request mediation or initiate a due process
hearing.
(b) (1) If mediation is requested by either
party, the provisions of K.S.A. 72-996 and
amendments thereto shall be followed, together
with the requirement in paragraph (2) of this
subsection.
(2) When agreement is reached to mediate,
the agency shall immediately contact the state
board or its designee. A mediator shall be
appointed by the state board from its list of
qualified mediators, based upon a random or
other impartial basis.
(c) If a disagreement as described in subsection
(a) arises, the parent or the agency, or both, may
initiate a special education due process hearing
by filing a due process complaint notice. Each
due process hearing shall be provided for by the
agency directly responsible for the education of
the child.
(d)(1) If a special education due process
complaint notice is filed, the provisions of
K.S.A.
72-972a
through
72-
975
and
amendments thereto shall be followed, together
with the requirements in this subsection.
(2) Not more than five business days after a
due process complaint notice is received, the
agency providing for the hearing shall furnish to
the parent the following information:
(A) The agency’s list of qualified due
process hearing officers;
(B) written notification that the parent has
the right to disqualify any or all of the hearing
officers on the agency’s list and to request that
the state board appoint the hearing officer; and
(C) written notification that the parent has
the right, within five days after the parent
receives the list, to advise the agency of any
hearing officer or officers that the parent
chooses to disqualify.
(3) (A) If a parent chooses to disqualify any
or all of the agency’s hearing officers, the parent,
within five days of receiving the list, shall notify
the agency of the officer or officers disqualified
by the parent.
(B) An agency may appoint from its list any
hearing officer who has not been disqualified by
the parent.
(4) Not more than three business days after
being notified that a parent has disqualified all of
the hearing officers on its list, an agency shall
contact the state board and request the state
board to appoint a hearing officer.
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In making this request, the agency shall advise
the state board of the following information:
(A) The name and address of the parent;
(B) the name and address of the attorney, if
any, representing the parent, if known to the
agency; and
(C) the names of the agency’s hearing
officers who were disqualified by the parent.
(5) Within three business days of receiving a
request to appoint a hearing officer, the parent
and agency shall be provided written notice by
the state board of the hearing officer appointed
by the state board.
(e) If a due process hearing is requested by a
parent or an agency, the agency shall provide
written notice to the state board of that action.
The notice shall be provided within five business
days of the date the due process hearing is
requested.
(f) (1) Unless the agency and parent have
agreed to waive a resolution meeting or to
engage in mediation, the agency and parent shall
participate in a resolution meeting as required by
K.S.A. 72-973 and amendments thereto. The
parent and agency shall determine which
members of the IEP team will attend the
meeting.
(2) If a parent who files a due process
complaint fails to participate in a resolution
meeting for which the agency has made
reasonable efforts to give the parent notice, the
timelines to complete the resolution process and
begin the due process hearing shall be delayed
until the parent attends a resolution meeting or
the agency, at the end of the 30-day resolution
period, requests the hearing officer to dismiss the
due process complaint.
(3) If an agency fails to hold a resolution
meeting within 15 days of receiving a due
process complaint or to participate in a meeting,
the parent may request the hearing officer to
begin the due process hearing and commence the
45-day timeline for its completion.
(g) The 45-day timeline for completion of a
due process hearing shall start on the day after
one of the following events occurs:
(1) Both parties to the due process
proceedings agree, in writing, to waive the
resolution meeting.
(2) The parties participate in a resolution
meeting or in mediation but agree, in writing,
that resolution of their dispute is not possible by
the end of the 30-day resolution period.
(3) Both parties agreed, in writing, to
continue to engage in mediation beyond the end
of the 30-day resolution period, but later one or
both of the parties withdraw from the mediation
process. (Authorized by K.S.A. 2007 Supp. 72-
963; implementing K.S.A. 2007 Supp. 72-963a,
72-973, and 72-996; effective May 19, 2000;
amended March 21, 2008.)
91-40-29. Qualifications of special education
mediators and due process hearing officers.
(a) To initially qualify as a special education
mediator, a person shall meet the following
requirements:
(1) Have passed a written examination
prescribed by the state board concerning special
education laws and regulations; and
(2) have completed a program sponsored or
approved by the state board concerning effective
mediation techniques and procedures, and the
role and responsibilities of a mediator.
(b) (1) Except as otherwise provided in
paragraph (2) of this subsection, to initially
qualify as a special education due process
hearing officer or review officer, a person shall
meet the following requirements:
(A) Be a licensed attorney in good standing
with the licensing agency in the state in which
the person is licensed to practice law;
(B) have passed a written examination
prescribed by the state board concerning special
education laws and regulations;
(C) have completed a program sponsored or
approved by the state board concerning due
process hearing procedures and the role and
responsibilities of a due process hearing officer;
and
(D) have passed a written examination
prescribed by the state board concerning due
process proceedings.
(2) Each person who is on the list of
qualified due process hearing officers maintained
by the state board shall remain eligible to serve
as a due process hearing officer or review officer
if the person completes the continuing education
programs in special education law that are
conducted or approved by the state board.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-963a;
effective May 19, 2000; amended March 21,
2008.)
91-40-30. Expedited due process hearings.
(a)
If an expedited due process hearing is requested
under the provisions of K.S.A. 72-992 or 72-993
and amendments thereto, the agency responsible
for providing the hearing shall immediately
February 2008
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24
notify the state board of the request and the
parent’s name and address.
(b) Upon being notified of a request for an
expedited due process hearing, the state board
shall appoint, from its list of qualified hearing
officers, a due process hearing officer and shall
notify the parties of the appointment.
(c) Each of the parties to an expedited due
process hearing shall have the rights afforded to
them under K.S.A. 72-973 and amendments
thereto, except that either party shall have the
right to prohibit the presentation of any evidence
at the expedited hearing that has not been
disclosed by the opposite party at least two
business days before the hearing.
(d) (1) Each hearing officer shall conduct
the expedited due process hearing within 20
school days of the agency’s receipt of the request
for the expedited due process hearing and shall
render a decision in the matter within 10 school
days after the close of the hearing.
(2) A hearing officer in an expedited due
process hearing shall not grant any extensions or
otherwise fail to comply with the requirement of
paragraph (1) of this subsection.
(e) Either party to an expedited due process
hearing may appeal the decision in accordance
with K.S.A. 72-974 and amendments thereto.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-992 and 72-
993; effective May 19, 2000; amended March
21, 2008.)
91-40-31. Educational placement during
proceedings.
(a) Except as otherwise provided
in K.S.A. 72-993 and amendments thereto and
this regulation, during the pendency of any
special education due process or judicial
proceeding, the child’s educational placement
shall be determined in accordance with K.S.A.
72-973 and amendments thereto.
(b) If a state review officer in an
administrative appeal agrees with the parent’s
position as to the appropriate educational
placement for the child, the child shall be
educated in that placement during any further
proceedings, unless the parent and agency agree
to another placement or the child’s placement is
changed in accordance with K.S.A. 72-993 and
amendments thereto.
(c) If the due process hearing involves the
evaluation of or initial services for a child who is
transferring from the infant and toddler program
under the federal law because the child has
reached three years of age, the agency shall not
be required to provide the services that the child
had been receiving under the infant and toddler
program. However, if the child is determined to
be eligible for special education and related
services, the agency shall provide appropriate
services to which the parent consents.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-973 and 72-
993; effective May 19, 2000; amended March
21, 2008.)
91-40-32. Reserved.
91-40-33.
Change
in
placement
for
disciplinary reasons; definitions
. As used in
K.A.R. 91-40-33
through
91-40-38, the
following terms shall have the meanings
specified in this regulation:
(a) (1) The phrase ‘‘change in placement for
disciplinary reasons’’ means that school
personnel or a special education due process
hearing officer has ordered any of the following
changes in placement of a child with a disability.
(A) The child is suspended or expelled from
school for more than 10 consecutive school days.
(B) The child is subjected to a series of
short-term suspensions constituting a pattern that
meets all of the following criteria:
(i) The suspensions cumulate to more than
10 school days in a school year.
(ii) Each incident of misconduct resulting in
a suspension involved substantially the same
behavior.
(iii) The length of each suspension, the total
amount of time the child is suspended, and the
proximity of the suspensions to one another
indicate a pattern.
(C) The child is placed in an interim
alternative educational setting.
(2) (A) If school personnel order two or
more short-term suspensions of a child with a
disability during a school year, these suspensions
shall not constitute a change in placement for
disciplinary reasons if the suspensions do not
constitute a pattern as described in paragraph
(a)(1)(B).
(B) School officials shall have the authority
to make the determination of whether a series of
short-term suspensions of a child with a
disability constitutes a change in placement for
disciplinary reasons. This determination shall be
subject to review through due process
proceedings.
(b) ‘‘School officials’’ means the following:
February 2008
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Kansas Special Education Process Handbook
25
(1) A regular education administrator;
(2) the director of special education or the
director’s designee or designees; and
(3) a special education teacher of the child
with a disability.
(c) ‘‘Short-term suspension’’ means a
suspension as authorized by K.S.A. 72-8902(a)
and amendments thereto. (Authorized by K.S.A.
2007 Supp. 72-963; implementing K.S.A. 2007
Supp. 72-991a; effective May 19, 2000;
amended May 4, 2001; amended March 21,
2008.)
91-40-34. Short-term suspensions and interim
placements; suspension of gifted children.
(a)
As authorized by K.S.A. 72-8902(a) and
amendments thereto, school personnel may
impose one or more short-term suspensions upon
a child with a disability during a school year for
violations of any school rule if these short-term
suspensions do not constitute a pattern
amounting to a change in placement for
disciplinary reasons as specified in paragraph
(a)(1)(B) of K.A.R. 91-40-33.
(b) As authorized in K.S.A. 72-991a and
amendments thereto, school personnel may order
a change in placement of a child with a disability
to an interim alternative educational setting.
(c) Gifted children shall be subject to
suspension or expulsion from school as
authorized by K.S.A. 72-8902 and amendments
thereto. While a gifted child is suspended or
expelled from school, an agency shall not be
required to provide special education or related
services to the child. (Authorized by K.S.A.
2007 Supp. 72-963; implementing K.S.A. 2007
Supp. 72-991a and 72-8902; effective May 19,
2000; amended March 21, 2008.)
91-40-35.
Services
required
during
suspensions or interim alternative educational
placements.
(a) An agency shall not be required
to provide special education or related services to
a child with a disability who has been suspended
from school for 10 or fewer school days during
any school year, if the agency does not provide
educational services to nondisabled children who
are suspended from school.
(b) (1) A child with a disability shall be
entitled to continue to receive special education
and related services if the child is suspended
from school under either of the following
circumstances:
(A) For more than 10 cumulative school
days in any school year, but with these
suspensions not resulting in a change of
placement for disciplinary reasons; or
(B) for more than 10 consecutive school
days in any school year for behavior that has
been determined not to be a manifestation of the
child’s disability.
(2) If a child with a disability is suspended
from school under either of the circumstances
stated in paragraph
(b)(1), the agency that suspended the child
shall provide, commencing on the 11th day of
suspension and during any subsequent day or
days of suspension, special education and related
services that are needed to enable the child to
continue to participate in the general education
curriculum and to progress toward meeting the
goals set out in the child’s IEP.
(c) If a child with a disability is placed in an
interim alternative educational setting in
accordance
with
K.S.A.
72-991a
and
amendments thereto, the agency shall provide
special education and related services to the child
that meet the following requirements:
(1) The services provided shall enable the
child to continue both of the following:
(A) To progress in the general curriculum,
although in another setting; and
(B) to receive those services and
modifications, including those described in the
child’s IEP, that will enable the child to meet the
goals set out in the IEP.
(2) The services shall include services and
modifications
that
address
the
child’s
misbehavior and that are designed to prevent the
misbehavior from recurring. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-966 and 72-991a; effective May
19, 2000; amended March 21, 2008.)
91-40-36. Determination of services for
children with disabilities suspended from
school or placed in interim alternative
educational settings.
(a) If a child with a
disability is properly suspended from school for
more than 10 cumulative school days in any
school year, the special education and related
services to be provided to the child during any
period of suspension shall be determined by
school officials of the agency responsible for the
education of the child.
(b) If a child with a disability is suspended
from school for more than 10 consecutive school
February 2008
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26
days or is expelled from school for behavior that
has been determined not to be a manifestation of
the child’s disability, the child’s IEP team shall
determine the special education and related
services that will be provided to the child.
(c) If a child with a disability is placed in an
interim alternative educational setting as a result
of the child’s possession of a weapon or illegal
drug, the child’s IEP team shall determine the
following:
(1) The special education and related
services to be provided to the child in the interim
alternative educational setting; and
(2) those services and modifications that will
be provided to address the misbehavior of the
child and that are designed to prevent the
misbehavior from recurring.
(d) (1) If a child with a disability is to be
placed in an interim alternative educational
setting by a due process hearing officer because
the child is substantially likely to cause injury to
self or others, school officials shall propose to
the hearing officer the special education and
related services to be provided to the child, and
those services and modifications to be provided
to address the behavior and prevent its
recurrence.
(2) The hearing officer shall determine
whether the services proposed by the school
officials are appropriate. If so determined, those
services shall be provided to the child. If
determined to be inappropriate, the hearing
officer shall order any modification in the
services to be provided that the hearing officer
determines necessary to provide the child with an
appropriate education.
(e) An agency shall convene IEP meetings
under this regulation as expeditiously as possible
and shall be required to give only 24 hours’ prior
notice of an IEP meeting to the child’s parents.
(Authorized by K.S.A. 2000 Supp. 72-963;
implementing K.S.A. 2000 Supp. 72-966 and
72-991; effective May 19, 2000; amended May
4, 2001.)
91-40-37.
(Authorized by K.S.A. 2000 Supp. 72-
963; implementing K.S.A. 2000 Supp. 72-991;
effective May 19, 2000; amended May 4, 2001;
revoked March 21, 2008.)
91-40-38.
Manifestation
determination;
appeal.
(a) If an agency proposes to make a
change in educational placement for disciplinary
reasons, the agency shall implement the
provisions of K.S.A. 72-991a and amendments
thereto.
(b)
An
agency
may
conduct
the
manifestation determination at the same IEP
team meeting that is held in regard to developing
or reviewing a behavioral intervention plan
under K.S.A. 72-991a and amendments thereto.
(c)
If,
in
making
a
manifestation
determination, deficiencies are identified in the
child’s IEP or placement or in the provision of
services to the child, the IEP team shall make
any changes it deems appropriate, and the
agency shall implement those changes.
(d) An agency shall convene meetings under
this regulation as expeditiously as possible and
shall be required to give only 24 hours’ prior
notice of a meeting to the child’s parent or
parents.
(e)(1) If a parent files a due process
complaint
concerning
the
manifestation
determination, a resolution meeting between the
parties shall be held within seven days of the
filing of the complaint, unless the parties agree,
in writing, to waive the resolution meeting or to
engage in mediation.
(2) If the matter has not been resolved to the
satisfaction of both parties within 15 days of the
filing of the due process complaint, the due
process hearing may proceed. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-991a; effective May 19, 2000;
amended May 4, 2001; amended March 21,
2008.)
91-40-39.
(Authorized by K.S.A. 1999 Supp. 72-
963; implementing K.S.A. 1999 Supp. 72-994;
effective May 19, 2000; revoked March 21,
2008.)
91-40-40. Reserved.
91-40-41. Private school placement by parents
to obtain FAPE.
(a) (1) If the parent of an
exceptional child who previously was receiving
special education and related services from an
agency enrolls the child, without the consent of
or referral by the agency, in a private preschool
or a private elementary or secondary school
because the parent believes the child was not
receiving FAPE from the agency, a court or
special education due process hearing officer
may require the agency to reimburse the parent
for the cost of that enrollment only if the court or
February 2008
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Kansas Special Education Process Handbook
27
due process hearing officer makes both of the
following findings:
(A) The agency did not make FAPE
available to the child in a timely manner before
the private school enrollment.
(B) The private school placement made by
the parent is appropriate to meet the needs of the
child.
(2) A court or due process hearing officer
may find that a private school placement by a
parent is appropriate for a child although that
placement does not meet state standards that
apply to special education and related services
that are required to be provided by public
agencies.
(b) Subject to subsection (c), a court or due
process hearing officer may deny or reduce any
reimbursement for private school placement by a
parent, if the court or due process hearing officer
makes any of the following findings:
(1) (A) At the most recent IEP meeting that
the parent attended before making the private
school placement, the parent did not inform the
IEP team that the parent was rejecting the
services or placements proposed by the agency to
provide FAPE to the child, including a statement
of concerns and the intent to enroll the child in a
private school at public expense; or
(B) at least 10 business days, including any
holidays that occur on a business day, before
removal of the child from public school, the
parent did not give written notice to the public
agency of the information specified in paragraph
(1) (A) of this subsection.
(2) Before the parent’s removal of the child
from public school, the agency notified the
parent, in accordance with the requirements of
K.S.A. 72-988 and amendments thereto, of its
intent to evaluate the child, including a statement
of the purpose of the evaluation that was
appropriate and reasonable, but the parent did
not make the child available for the evaluation.
(3) The actions of the parent in removing the
child from public school were unreasonable.
(c) Notwithstanding the notice requirements
in subsection (b), a court or due process hearing
officer shall not deny or reduce reimbursement
of the cost of a private school placement for
failure to provide the notice, if the court or due
process hearing officer makes any of the
following findings:
(1) Compliance with the prior notice
requirement would likely have resulted in
physical harm to the child.
(2) The agency prevented the parent from
providing the required prior notice.
(3) The parent had not been given notice by
the agency of the prior notice requirement
prescribed in subsection (b).
(d) At the discretion of a court or due
process hearing officer, the court or hearing
officer may allow a parent full or partial
reimbursement of the cost of a private school
placement even though the parent failed to
provide the notice required in subsection (b), if
the court or hearing officer finds either of the
following:
(1) The parent is not literate and cannot
write in English.
(2) Compliance with the prior notice requirement
would likely have resulted in serious
emotional harm to the child. (Authorized by
K.S.A. 2007 Supp. 72-963; implementing K.S.A.
2007 Supp. 72-966; effective May 19, 2000;
amended March 21, 2008.)
91-40-42. Child find and count of children
with disabilities enrolled in private schools;
determination of children to receive services
.
(a) Child find activities.
(1) Each board, in accordance with K.A.R.
91-40-7, shall locate, identify, and evaluate all
children with disabilities who are enrolled in
private elementary or secondary schools located
in the school district, including children with
disabilities who reside in another state.
(2) The activities undertaken to carry out
this responsibility shall meet the following
criteria:
(A) Be similar to the activities undertaken
for exceptional children enrolled in the public
schools;
(B) provide for the equitable participation of
private school children;
(C) provide for an accurate count of children
with disabilities enrolled in the private schools;
and
(D) be completed in a time period
comparable to the time for these activities in the
public schools.
(3) Each board, in accordance with K.A.R.
91-40-42a, shall consult with representatives of
private schools and parents of private school
children concerning the activities described in
paragraph (1) of this subsection.
(4) The cost of carrying out the child find
activities required under this regulation,
including individual evaluations of private
school children, shall not be considered in
determining if an agency has met its obligation
to provide a proportionate share of its federal
February 2008
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Kansas Special Education Process Handbook
28
funds for private school children.
(b) Child count activities.
(1) Each board shall annually conduct a
count of the number of children with disabilities
who are enrolled in private schools located in the
school district. This count, at the discretion of
each board, shall be conducted on either
December 1 or the last Friday of October of each
school year.
(2) Each board, in accordance with K.A.R.
91-40-42a, shall consult with representatives of
private schools and parents of private school
children concerning the annual count required in
paragraph (1) of this subsection.
(3) Each board shall use the child count
required by this subsection to calculate the
amount of funds provided to the school district
under the federal law that the school district must
allocate for the purpose of providing special
education and related services to private school
children with disabilities in the next succeeding
school year.
(c) Each board, based upon the results of its
child find activities under subsection (a), shall
consult with representatives of private schools
and parents of children with disabilities enrolled
in private schools and then determine which
private school children will be provided special
education and related services by the board.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966;
effective May 19, 2000; amended March 21,
2008.)
91-40-42a. Consultation.
(a) Each board shall
engage in timely and meaningful consultation
with representatives of private schools located in
the school district and representatives of parents
of children with disabilities enrolled in those
private schools before making determinations
regarding the following matters:
(1) How the consultation process among the
board,
private
school
officials,
and
representatives of parents of private school
children shall be organized and carried out,
including how the process will operate
throughout the school year to ensure that
children with disabilities who are identified
throughout the school year can receive the
special education and related services that are
provided to private school children;
(2) how the child find process will be
conducted, including the following:
(A) How children enrolled in private schools
who are suspected of having a disability can
participate equitably in the child find process;
and
(B) how parents, teachers, and private
school officials will be informed of the process;
(3)(A) How the determination of the
proportionate share of federal funds that will be
available to serve private school children will be
made, including a review of how the
proportionate share of those funds must be
calculated under the federal law; and
(B) how special education and related
services will be apportioned if the proportionate
share of federal funds are insufficient to serve all
of the private school children who are designated
to receive services; and
(4)(A) How, where, and by whom special
education and related services will be provided
to private school children, including a discussion
of the means by which services will be delivered,
including direct services and services through
contracts; and
(B) how and when final decisions on these
issues will be made by the board.
(b)(1) When a board believes that it has
completed timely and meaningful consultation as
required by this regulation, the board shall seek
to obtain a written affirmation, signed by
representatives of participating private schools,
affirming that the consultation did occur.
(2) If representatives of the private schools
do not provide the affirmation within 30 days of
the date the affirmation is requested, the board
shall forward documentation of the consultation
to the state department.
(c)(1) A representative of a private school
may submit a complaint to the state department
alleging that the board of the school district in
which the private school is located failed to
engage in consultation that was meaningful and
timely or did not give due consideration to the
views of private school representatives. A copy
of the complaint shall also be submitted to the
board.
(2) Each complaint submitted by a private
school representative shall include a statement of
the specific requirement that the board allegedly
failed to meet and the facts that support the
allegation.
(3) Within 30 days of receiving a complaint,
the board shall prepare a reply to the complaint
and submit the reply and documentation
supporting its position to the state department.
(4)(A) Within 60 days of receiving a
complaint, the state department shall issue a
determination on whether the complaint is
justified and any corrective action that is to be
February 2008
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Kansas Special Education Process Handbook
29
taken.
(B) If the private school representative is
dissatisfied with the decision of the state
department, the representative may appeal the
decision by submitting an appeal to the secretary
of the United States department of education as
specified in the federal regulations. (Authorized
by K.S.A. 2007 Supp. 72-963; implementing
K.S.A. 2007 Supp. 72-966; effective March 21,
2008.)
91-40-43. Services to private school children
.
(a) Consistent with the number and location of
private school children in the school district,
each board shall provide special education and
related services to this group of children in
accordance with K.A.R. 91-40-43 through 91-
40-48. Each board also shall provide services to
gifted children who reside in the district and are
enrolled in a private school.
(b) The parent of an exceptional child may
request that the child be provided special
education and related services in accordance
with K.S.A. 72-5393 and amendments thereto.
(c) A board shall not be required to provide
any special education or related services to a
private school child unless one of the following
conditions is met:
(1) The child is a member of a group of
private school children that has been designated
to receive special education and related services
in accordance with the provisions of K.A.R. 91-
40-43 through 91-40-48.
(2) The parent of the child requests that
services be provided to the child in accordance
with K.S.A. 72-5393 and amendments thereto.
(d) Except as otherwise provided in K.S.A.
72-5393 and amendments thereto, a private
school child shall not be entitled to receive any
special education or related service that the child
would be entitled to receive if enrolled in a
public school, and a private school child may
receive a different amount of special education
or related services than a child with a disability
who is enrolled in a public school.
(e) Each board shall ensure that the special
education and related services provided to
private school children are provided by
personnel who meet the same standards as the
standards for public school personnel, except that
private school teachers who provide services to
private school children shall not be required to
be highly qualified under the federal law.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966 and 72-
5393; effective May 19, 2000; amended March
21, 2008.)
91-40-44. Allocation and expenditure of
federal funds; reports
. (a) To meet the
requirement of K.A.R. 91-40-43 (a), each board
shall allocate, for expenditure in providing
special education and related services to private
school children, the amounts specified below.
(1) For private school children aged three
through 21, an amount calculated as follows:
(A) Divide the number of private school
children aged three through 21 who are enrolled
in private schools located in the school district
by the total number of children with disabilities
aged three through 21 in the school district; and
(B) multiply the quotient determined under
paragraph (1) (A) times the total amount of
federal funds received by the school district
under section 1411 (f) of the federal law; and
(2) for private school children aged three through
five, an amount calculated as follows:
(A) Divide the number of private school
children aged three through five who are enrolled
in private elementary schools located in the
school district by the total number of children
with disabilities aged three through five in the
school district; and
(B) multiply the quotient determined under
paragraph (2) (A) times the total amount of
federal funds received by the school district
under section 1419 (g) of the federal law.
(b) In making the calculations under
subsection (a), each board shall include all
private school children whether or not those
children are actually receiving special education
or related services from the school district.
(c) (1) Each board, to the extent necessary,
shall expend the amounts calculated under
subsection (a) of this regulation to provide
private school children with those special
education and related services that have been
determined will be provided to those children
under the provisions of K.A.R. 91-40-43.
(2) If a board does not expend all of the
funds allocated for the provision of special
education and related services to private school
children during a school year, the board shall
allocate the unexpended funds for the purpose of
providing services to private school children
during the next succeeding school year.
(d) (1) A board, in meeting the requirement
of subsection (c) of this regulation, shall not be
authorized to include expenditures made by the
board for child find activities under K.A.R. 91-
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30
40-42.
(2) A board, in meeting the requirement of
subsection (c) of this regulation, shall be
authorized to include expenditures made by the
board to provide transportation to private school
children to receive special education and related
services.
(e) Each board shall maintain records
regarding the following information related to
children enrolled in private schools located in the
school district:
(1) The number of children evaluated;
(2) the number of children determined to be
children with disabilities; and
(3) the number of children provided with
special
education
and
related
services.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-966;
effective May 19, 2000; amended March 21,
2008.)
91-40-45. Services plan or IEP.
(a) Each board
shall develop and implement a services plan for
each private school child who meets both of the
following criteria:
(1) The child is a member of the group of
private school children that has been designated
to receive special education and related services
under the provisions of K.A.R. 91-40-43.
(2) The child is not receiving special
education and related services by request of the
child’s parent under the provisions of K.S.A. 72-
5393 and amendments thereto.
(b) Each board shall ensure that the services
plan for each private school child meets each of
the following requirements:
(1) The services plan shall describe the
specific special education and related services
that the board will provide to the child, based
upon the services the board has determined that
it will make available to private school children
under the provisions of K.A.R. 91-40-43.
(2) The services plan shall be developed,
reviewed, and revised, as necessary, in the same
manner in which IEP’s are developed, reviewed,
and revised under this article, except that the
board shall ensure that a representative of the
child’s private school is invited to attend, or to
otherwise participate in, each meeting held to
develop or review the child’s services plan.
(3) The services plan shall meet the
requirements of K.A.R. 91-40-18 with respect to
the services that the child is designated to
receive.
(c) Each board shall develop, review, and
revise, as necessary, in accordance with this
article, an IEP for the following children:
(1) Each private school child whose parent
requests special education and related services
under the provisions of K.S.A. 72-5393 and
amendments thereto; and
(2) each identified gifted child residing in
the school district and enrolled in a private
school whose parent elects to have the child
receive special education and related services
from the board. (Authorized by K.S.A. 2007
Supp. 72-963; implementing K.S.A. 2007 Supp.
72-966 and 72-5393; effective May 19, 2000;
amended March 21, 2008.)
91-40-46. Mediation and due process rights of
private school children.
(a)(1) The parent of a
private school child may request mediation or
initiate a due process hearing as authorized under
this article, if the parent believes that a board has
failed to properly identify and evaluate the
parent’s child, in accordance with K.A.R. 91-40-
42 (a).
(2) Each due process complaint by the
parent of a private school child shall be filed
with the board of education of the school district
in which the private school is located. The parent
of the child shall provide a copy of the complaint
to the state board of education.
(b) The parent of a private school excep-
tional child who is receiving special education
and related services in accordance with an IEP
may request mediation or initiate a due process
hearing as authorized under this article on any
matter concerning the child’s education.
(c) The parent of a private school child with
a disability who is receiving special education
and related services under a services plan shall
not be entitled to request mediation or to initiate
a due process hearing on any matter concerning
the child’s education, but shall be entitled to take
either, or both, of the following actions:
(1) Request that a meeting be conducted, in
accordance with K.A.R. 91-40-45 (b), to review
and revise the child’s services plan; or
(2) file a complaint with the state board, in
accordance with K.A.R. 91-40-51. (Authorized
by K.S.A. 2007 Supp. 72-963; implementing
K.S.A. 2007 Supp. 72-966 and 72- 5393;
effective May 19, 2000; amended March 21,
2008.)
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31
91-40-47.
Transportation for exceptional
children
enrolled
in
private
schools.
(a) Except as otherwise provided in this
regulation, each board, to the extent necessary
for an exceptional child to benefit from, or to
participate in, special education and related
services provided to the child by the board, shall
furnish
or
provide
for
the
following
transportation services for the child:
(1) Transportation from the child’s private
school or home to the site at which the child is
provided special education and related services;
and
(2) transportation from the site at which
special education and related services are
provided to the child to the child’s private school
or the child’s home, as appropriate.
(b) Except as provided in K.S.A. 72-8306
and amendments thereto, a board shall not be
required to furnish or provide transportation
from an exceptional child’s home to the child’s
private school.
(c) A board shall not be required to furnish
or provide transportation services outside of its
school district. (Authorized by K.S.A. 1999
Supp. 72-963; implementing K.S.A. 1999 Supp.
72-966 and 72-5393; effective May 19, 2000.)
91-40-48. Use of funds and equipment.
(a)
Subject to subsection (d), an agency may use
state and federal funds to make personnel
available at locations other than at its facilities to
the extent necessary to provide special education
and related services to exceptional children
enrolled in private schools, if those services are
not normally provided by the private schools.
(b) Subject to subsection (d), an agency may
use state and federal funds to pay for the services
of an employee of a private school to provide
special education and related services if both of
the following conditions are met:
(1) The employee performs the services
outside of the employee’s regular hours of duty.
(2) The employee performs the services
under public supervision and control.
(c) (1) Subject to subsection (d), an agency
may use state and federal funds to provide for the
special education and related services needs of
exceptional children enrolled in private schools,
but shall not use those funds for either of the
following purposes:
(A) To enhance the existing level of
instruction in the private school or to otherwise
generally benefit the private school; or
(B) to generally benefit the needs of all
students enrolled in the private school.
(2) Each agency shall ensure that special
education and related services provided to
exceptional children enrolled in private schools
are provided in a secular and nonideological
manner.
(d) An agency’s authority to use federal
funds under this regulation shall be limited to
providing special education and related services
to children with disabilities.
(e) An agency shall not offer or maintain
classes that are organized separately on the basis
of public or private school enrollment or the
religion of the students, if the classes offered to
students are provided at the same site and the
classes include students enrolled in a public
school and students enrolled in a private school.
(f) (1) An agency shall keep title to, and
exercise continuing administrative control over,
all property, equipment, and supplies that are
acquired by the agency to be used for the benefit
of exceptional children enrolled in private
schools.
(2) An agency may place equipment and
supplies in a private school, to the extent allowed
by law, for the period of time needed to provide
special education and related services to
exceptional children enrolled in the school.
(g) (1) An agency shall ensure that any
equipment or supplies placed in a private school
are used to provide special education and related
services and can be removed from the private
school without the necessity of remodeling the
private school.
(2) An agency shall remove its equipment or
supplies from a private school if either of the
following conditions exists:
(A) The equipment or supplies are no longer
needed to provide special education or related
services to students enrolled in the private
school.
(B) Removal is necessary to avoid
unauthorized use of the equipment or supplies.
(h) An agency shall not use public funds to
construct, remodel, or repair any private school
facility. (Authorized by K.S.A. 2007 Supp. 72-
963; implementing K.S.A. 2007 Supp. 72-966;
effective May 19, 2000; amended March 21,
2008.)
91-40-49. Reserved.
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32
91-40-50. Parental access to student records;
confidentiality.
(a) As used in this regulation,
the following terms shall have the meanings
specified in this subsection:
(1)
‘‘Destruction’’
means
physically
destroying the medium on which information is
recorded or removing all personal identifiers
from the information so that no one can be
identified.
(2) ‘‘Education records’’ means any
document or medium on which information
directly related to one or more students is
maintained by a participating agency in
accordance
with
K.S.A.
72-6214
and
amendments thereto.
(3) ‘‘Participating agency’’ means any
educational agency or institution that collects,
maintains, or uses personally identifiable student
information to provide special education and
related services to children with disabilities.
(b) The provisions in 34 C.F.R. §§ 300.612
through 300.624, as in effect on August 14,
2006, and published in 71 fed. reg. 46802-46804
(2006), which concern parental access to
education records and confidentiality of those
records, are hereby adopted by reference.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-963 and 72-
988; effective May 19, 2000; amended March
21, 2008.)
91-40-51. Filing complaints with the state
department of education.
(a) Any person or
organization may file a written, signed complaint
alleging that an agency has violated a state or
federal special education law or regulation. Also,
a prevailing party in a due process hearing may
file a complaint alleging that the other party has
failed to implement the hearing decision. The
complaint
shall
include
the
following
information:
(1) A statement that the agency has violated
a requirement of state or federal special
education laws or regulations;
(2) the facts on which the statement is based;
(3) the signature of and contact information
for the complainant; and
(4) if the complaint involves a specific child,
the following information:
(A) The child’s name and address of
residence, or other contact information if the
child is a homeless child or youth;
(B) the name of the school the child is
attending;
(C) a description of the problem involving
the child; and
(D) a proposed resolution to the problem, if
a possible resolution is known and available to
the complainant.
(b)(1) The complaint shall allege a violation
that occurred not more than one year before the
date the complaint is received and shall be filed
with the commissioner of education.
(2) The party filing the complaint shall
forward a copy of the complaint to the agency
against which the allegations are made at the
same time the complaint is filed with the
commissioner of education.
(c) Upon receipt of a complaint, an
investigation shall be initiated. At a minimum,
each investigation shall include the following:
(1) A discussion with the complainant
during which additional information may be
gathered
and
specific
allegations
of
noncompliance identified, verified, and recorded;
(2) contact with the agency against which
the complaint is filed to allow the agency to
respond to the complaint with facts and
information supporting its position, offer a
proposal to resolve the complaint, or offer to
engage in mediation to resolve the complaint;
and
(3) a written report of findings of fact and
conclusions, including reasons for the decision,
and any corrective action or actions that are
required, including the time period within which
each action is to be taken. Unless the parent and
the agency agree to engage in mediation, this
report shall be sent to the parties within 30 days
of the receipt of the complaint. If the parties
mediate but fail to resolve the issues, the report
shall be sent 30 days after the department
received notice that mediation has failed.
(d) An on-site investigation may be
conducted before issuing a report.
(e)(1) If a report requires corrective action
by an agency, that agency, within 10 days of the
date of the report, shall submit to the state
director of special education one of the
following:
(A) Documentation to verify acceptance of
the corrective action or actions specified in the
report;
(B) a written request for an extension of
time within which to complete one or more of
the corrective actions specified in the report,
together with justification for the request; or
(C) a written notice of appeal. Each appeal
shall be made in accordance with subsection (f).
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33
(2) If an agency files a request for an
extension of time within which to complete one
or more corrective actions required in a report, a
review committee of at least three department of
education members shall be appointed by the
commissioner to review the request and the
offered justification for the extension of time. A
decision on the request shall be made by the
committee within five business days of the date
the request was received. The decision of the
review committee shall be final.
(3) If a local education agency fails to
respond to a report within the time allowed, the
sanctions listed in paragraph (f) (2) may be
invoked.
(f) Appeals.
(1) Any agency or complainant may appeal
any of the findings or conclusions of a
compliance report prepared by the special
education section of the department by filing a
written notice of appeal with the state
commissioner of education. Each notice shall be
filed within 10 days from the date of the report.
Each notice shall provide a detailed statement of
the basis for alleging that the report is incorrect.
Upon receiving an appeal, an appeal committee
of at least three department of education
members shall be appointed by the commissioner
to review the report and to consider the
information provided by the local education
agency, the complainant, or others. The appeal
process, including any hearing conducted by the
appeal committee, shall be completed within 15
days from the date of receipt of the notice of
appeal, and a decision shall be rendered within
five days after the appeal process is completed
unless the appeal committee determines that
exceptional circumstances exist with respect to
the particular complaint. In this event, the
decision shall be rendered as soon as possible by
the appeal committee.
(2) If an appeal committee affirms a
compliance report that requires corrective action
by an agency, that agency shall initiate the
required corrective action immediately. If, after
five days, no required corrective action has been
initiated, the agency shall be notified of the
action that will be taken to assure compliance as
determined by the department. This action may
include any of the following:
(A) The issuance of an accreditation
deficiency advisement;
(B) the withholding of state or federal funds
otherwise available to the agency;
(C) the award of monetary reimbursement to
the complainant; or
(D) any combination of the actions specified
in paragraph (f)(2).
(g) (1) If a complaint is received that is also
the subject of a due process hearing or that
contains multiple issues of which one or more
are part of the due process hearing, the complaint
or the issues that are part of the due process
hearing shall be set aside until conclusion of the
hearing.
(2) If an issue that has previously been
decided in a due process hearing involving the
same parties is raised in a complaint, the due
process hearing decision shall be binding on that
issue and the complainant informed of this fact.
(Authorized by K.S.A. 2007 Supp. 72-963;
implementing K.S.A. 2007 Supp. 72-988;
effective May 19, 2000; amended March 21,
2008.)
91-40-52. School district eligibility for
funding; facilities.
(a) (1) To be eligible to
receive state and federal funding, each board
shall submit to the state board documentation
that the board has policies, procedures, and
programs in effect to achieve compliance with
the special education for exceptional children act
and this article.
(2) In school districts having an enrollment
of more than 5,000 students, the board’s policies
shall provide for the employment of a full-time
administrator of special education.
(b) (1) Each board shall be eligible to
receive state funding for the following related
services, if provided under an exceptional child’s
IEP or services plan:
(A) Art therapy;
(B) assistive technology devices and
services;
(C) audiology;
(D) counseling services;
(E) dance movement therapy;
(F) medical services for diagnostic or
evaluation purposes;
(G) music therapy;
(H) occupational therapy;
(I) parent counseling and training;
(J) physical therapy;
(K) recreation;
(L) rehabilitation counseling services;
(M) school health services;
(N) school psychological services;
(O) school social work services;
(P) special education administration and
supervision;
(Q) special music education;
February 2008
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34
(R) speech or language services; and
(S) transportation.
(2) A board shall submit requests for
reimbursement for any other related service to
the state board for its consideration.
(c) An agency shall not use federal funds to
pay the attorneys’ fees or costs of any parent
who is the prevailing party in any proceeding or
action brought under the federal law and its
implementing regulations.
(d) Each agency shall ensure that all of the
following requirements concerning facilities are
met:
(1) All facilities for exceptional children
shall be comparable to those for non-exceptional
children within the same school building.
(2) If an agency operates a facility solely for
exceptional children, the facility and the services
and activities provided in the facility shall be
comparable to those provided to nonexceptional
children.
(3) All facilities for exceptional children
shall be age appropriate environments, and each
environment shall be appropriate for the
instructional
program
being
provided.
(Authorized by K.S.A. 2000 Supp. 72-963;
implementing K.S.A. 2000 Supp. 72-978;
effective May 19, 2000; amended May 4, 2001.)
91-40-53.
Resolution
of
interagency
agreement disputes.
(a) If a dispute arises under
an interagency agreement entered into under
K.S.A. 72-966 and amendments thereto, the
parties to the dispute shall resolve the matter
under either of the procedures specified in this
regulation.
(b) (1) Parties to an interagency agreement
dispute may select a mutually agreed-upon
mediator, or they may make a joint request to the
commissioner of education to appoint a person to
serve as mediator. Upon receiving a request for
the appointment of a mediator, a mediator shall
be promptly appointed by the commissioner of
education.
(2) The parties to any interagency agreement
dispute shall divide equally the costs of the
mediation process.
(c) (1) If the parties to an interagency
agreement dispute do not agree to mediate the
disagreement or are unable to resolve the dispute
through mediation, either party may initiate an
administrative hearing by filing a request for a
hearing with the commissioner of education.
(2) Upon receiving a request for an
administrative hearing under this regulation, an
attorney in private practice shall be appointed by
the commissioner of education to conduct the
hearing. The hearing officer shall be selected
from the list of special education due process
hearing officers that is required to be maintained
under K.S.A. 72-973 and amendments thereto.
(3) Upon being appointed, the hearing
officer shall notify the parties of the appointment
and shall commence the hearing procedures. The
hearing officer shall conduct the hearing in
accordance with the Kansas administrative
procedure act and shall issue a final order in
regard to the matter.
(4) The hearing officer, as part of the order,
shall assess the costs of the hearing as
determined appropriate based upon the outcome
of the hearing.
(d) If a party to an interagency agreement
fails to provide the transition services described
in a child’s IEP, the agency responsible for the
child’s education shall reconvene the child’s IEP
team to identify alternative strategies to meet the
transition objectives for the student as set out in
the IEP. (Authorized by K.S.A. 2000 Supp. 72-
963; implementing K.S.A. 2000 Supp. 72-966;
effective May 19, 2000; amended May 4, 2001.)
[Code of Federal Regulations]
[Title 34, Volume 1]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR99]
[Page 316-333]
February 2008
Appendix F
Kansas Special Education Process Handbook
1
TITLE 34--EDUCATION
PART 99_
FAMILY EDUCATIONAL RIGHTS
AND
PRIVACY
Subpart A-General
Sec.
99.1 To which educational agencies or institutions do these regulations apply?
99.2 What is the purpose of these regulations?
99.3 What definitions apply to these regulations?
99.4 What are the rights of parents?
99.5 What are the rights of students?
99.6 [Reserved]
99.7 What must an educational agency or institution include in its annual notification?
99.8 What provisions apply to records of a law enforcement unit?
Subpart B-What Are the Rights of Inspection and Review of Education Records?
99.10 What rights exist for a parent or eligible student to inspect and review education records?
99.11 May an educational agency or institution charge a fee for copies of education records?
99.12 What limitations exist on the right to inspect and review records?
Subpart C-What Are the Procedures for Amending Education Records?
99.20 How can a parent or eligible student request amendment of the student's education records?
99.21 Under what conditions does a parent or eligible student have the right to a hearing?
99.22 What minimum requirements exist for the conduct of a hearing?
Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From
Education Records?
99.30 Under what conditions is prior consent required to disclose information?
99.31 Under what conditions is prior consent not required to disclose information?
99.32 What recordkeeping requirements exist concerning requests and disclosures?
99.33 What limitations apply to the redisclosure of information?
99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
99.35 What conditions apply to disclosure of information for Federal or State program purposes?
99.36 What conditions apply to disclosure of information in health and safety emergencies?
99.37 What conditions apply to disclosing directory information?
99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November
19, 1974, concerning the juvenile justice system?
99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational
institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex
offenses?
Subpart E-What Are the Enforcement Procedures?
99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
99.61 What responsibility does an educational agency or institution have concerning conflict with State or local
laws?
99.62 What information must an educational agency or institution submit to the Office?
99.63 Where are complaints filed?
99.64 What is the complaint procedure?
99.65 What is the content of the notice of complaint issued by the Office?
99.66 What are the responsibilities of the Office in the enforcement process?
99.67 How does the Secretary enforce decisions?
Appendix A to Part 99--Crimes of Violence Definitions
Authority: 20 U.S.C. 1232g, unless otherwise noted.
Source: 53 FR 11943, Apr. 11, 1988, unless otherwise noted
February 2008
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2
Subpart A_General
Sec. 99.1 To which educational agencies or institutions do these regulations apply?
(a) Except as otherwise noted in Sec. 99.10, this part applies to an educational agency or institution to
which funds have been made available under any program administered by the Secretary, if--
(1) The educational institution provides educational services or instruction, or both, to students; or
(2) The educational agency is authorized to direct and control public elementary or secondary, or
postsecondary
educational
institutions.
(b) This part does not apply to an educational agency or institution solely because students attending
that agency or institution receive non-monetary benefits under a program referenced in paragraph
(a) of this section, if no funds under that program are made available to the agency or institution.
(c) The Secretary considers funds to be made available to an educational agency or institution of funds
under one or more of the programs referenced in paragraph (a) of this section--
(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant,
or subcontract; or
(2) Are provided to students attending the agency or institution and the funds may be paid to the
agency or institution by those students for educational purposes, such as under the Pell Grant
Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the
Higher Education Act of 1965, as amended).
(d) If an educational agency or institution receives funds under one or more of the programs covered
by this section, the regulations in this part apply to the recipient as a whole, including each of its
components (such as a department within a university).
(Authority: 20 U.S.C. 1232g)
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]
Sec. 99.2 What is the purpose of these regulations?
The purpose of this part is to set out requirements for the protection of privacy of parents and
students under section 444 of the General Education Provisions Act, as amended.
(Authority: 20 U.S.C. 1232g)
Note: 34 CFR 300.560-300.576 contain requirements regarding confidentiality of information
relating to handicapped children who receive benefits under the Education of the Handicapped
Act.
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996]
Sec. 99.3 What definitions apply to these regulations?
The following definitions apply to this part:
Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section
444 of the General Education Provisions Act.
(Authority: 20 U.S.C. 1232g)
Attendance includes, but is not limited to:
(a) Attendance in person or by correspondence; and
(b) The period during which a person is working under a work-study program.
February 2008
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3
(Authority: 20 U.S.C. 1232g)
Dates of attendance. (a) The term means the period of time during which a student attends or
attended an educational agency or institution. Examples of dates of attendance include an
academic year, a spring semester, or a first quarter. (b) The term does not include specific daily
records of a student's attendance at an educational agency or institution.
(Authority: 20 U.S.C. 1232g(a)(5)(A))
Directory information means information contained in an education record of a student that would not
generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not
limited to, the student's name, address, telephone listing, electronic mail address, photograph, date
and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g.,
undergraduate or graduate; full-time or part-time), participation in officially recognized activities
and sports, weight and height of members of athletic teams, degrees, honors and awards received,
and the most recent educational agency or institution attended.
(Authority: 20 U.S.C. 1232g(a)(5)(A))
Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions
by an educational agency or institution with respect to an infraction or violation of the internal
rules of conduct applicable to students of the agency or institution.
Disclosure means to permit access to or the release, transfer, or other communication of personally
identifiable information contained in education records to any party, by any means, including oral,
written, or electronic means.
(Authority: 20 U.S.C. 1232g(b)(1))
Educational agency or institution means any public or private agency or institution to which this
part applies under Sec. 99.1(a).
(Authority: 20 U.S.C. 1232g(a)(3))
Education records.
(a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or
institution.
(b) The term does not include:
(1) Records that are kept in the sole possession of the maker, are used only as a personal memory
aid, and are not accessible or revealed to any other person except a temporary substitute for the
maker of the record.
(2) Records of the law enforcement unit of an educational agency or institution, subject to the
provisions of Sec. 99.8.
(3)
(i) Records relating to an individual who is employed by an educational agency or institution,
that:
(A) Are made and maintained in the normal course of business;
February 2008
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4
(B) Relate exclusively to the individual in that individual's capacity as an employee; and
(C) Are not available for use for any other purpose.
(ii) Records relating to an individual in attendance at the agency or institution who is
employed as a result of his or her status as a student are education records and not
excepted under paragraph (b)(3)(i) of this definition.
(4) Records on a student who is 18 years of age or older, or is attending an institution of
postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in his or her professional capacity or assisting in a
paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the student; and
(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition,
``treatment'' does not include remedial educational activities or activities that are part of
the program of instruction at the agency or institution; and
(5) Records that only contain information about an individual after he or she is no longer a student
at that agency or institution.
(Authority: 20 U.S.C. 1232g(a)(4))
Eligible student means a student who has reached 18 years of age or is attending an institution of
postsecondary education.
(Authority: 20 U.S.C. 1232g(d))
Institution of postsecondary education means an institution that provides education to students beyond
the secondary school level; ``secondary school level'' means the educational level (not beyond
grade 12) at which secondary education is provided as determined under State law.
(Authority: 20 U.S.C. 1232g(d))
Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting
as a parent in the absence of a parent or a guardian.
(Authority: 20 U.S.C. 1232g)
Party means an individual, agency, institution, or organization.
(Authority: 20 U.S.C. 1232g(b)(4)(A))
Personally identifiable information includes, but is not limited to:
(a) The student's name;
(b) The name of the student's parent or other family member;
(c) The address of the student or student's family;
(d) A personal identifier, such as the student's social security number or student number;
(e) A list of personal characteristics that would make the student's identity easily traceable; or
(f) Other information that would make the student's identity easily traceable.
(Authority: 20 U.S.C. 1232g)
February 2008
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5
Record means any information recorded in any way, including, but not limited to, handwriting,
print, computer media, video or audio tape, film, microfilm, and microfiche.
(Authority: 20 U.S.C. 1232g)
Secretary means the Secretary of the U.S. Department of Education or an official or employee of the
Department of Education acting for the Secretary under a delegation of authority.
(Authority: 20 U.S.C. 1232g)
Student, except as otherwise specifically provided in this part, means any individual who is or has
been in attendance at an educational agency or institution and regarding whom the agency or
institution maintains education records.
(Authority: 20 U.S.C. 1232g(a)(6))
[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996;
65 FR 41852, July 6, 2000]
Sec. 99.4 What are the rights of parents?
An educational agency or institution shall give full rights under the Act to either parent, unless the
agency or institution has been provided with evidence that there is a court order, State statute, or
legally binding document relating to such matters as divorce, separation, or custody that
specifically revokes these rights.
(Authority: 20 U.S.C. 1232g)
Sec. 99.5 What are the rights of students?
(a) When a student becomes an eligible student, the rights accorded to, and consent required of,
parents under this part transfer from the parents to the student.
(b) The Act and this part do not prevent educational agencies or institutions from giving students
rights in addition to those given to parents.
(c) An individual who is or has been a student at an educational institution and who applies for
admission at another component of that institution does not have
rights
under this part with
respect to records maintained by that other component, including records maintained in connection
with the student's application for admission, unless the student is accepted and attends that other
component of the institution.
(Authority: 20 U.S.C. 1232g(d))
[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000]
Sec. 99.6 [Reserved]
Sec. 99.7 What must an educational agency or institution include in its annual notification?
(a)
(1) Each educational agency or institution shall annually notify parents of students currently in
attendance, or eligible students currently in attendance, of their rights under the Act and this part.
February 2008
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6
(2) The notice must inform parents or eligible students that they have the right to--
(i) Inspect and review the student's education records;
(ii) Seek amendment of the student's education records that the parent or eligible student
believes to be inaccurate, misleading, or otherwise in violation of the student's privacy
rights;
(iii) Consent to disclosures of personally identifiable information contained in the student's
education records, except to the extent that the Act and Sec. 99.31 authorize disclosure
without consent; and
(iv) File with the Department a complaint under Sec. Sec. 99.63 and 99.64 concerning alleged
failures by the educational agency or institution to comply with the requirements of the Act
and this part.
(3) The notice must include all of the following:
(i) The procedure for exercising the right to inspect and review education records.
(ii) The procedure for requesting amendment of records under Sec. 99.20.
(iii) If the educational agency or institution has a policy of disclosing education records under
Sec. 99.31(a)(1), a specification of criteria for determining who constitutes a school official
and what constitutes a legitimate educational interest.
(b) An educational agency or institution may provide this notice by any means that are reasonably
likely to inform the parents or eligible students of their rights.
(1) An educational agency or institution shall effectively notify parents or eligible students who are
disabled.
(2) An agency or institution of elementary or secondary education shall effectively notify parents
who have a primary or home language other than English.
(Approved by the Office of Management and Budget under control number 1880-0508)
(Authority: 20 U.S.C. 1232g (e) and (f))
[61 FR 59295, Nov. 21, 1996]
Sec. 99.8 What provisions apply to records of a law enforcement unit?
(a)
(1) Law enforcement unit means any individual, office, department, division, or other component
of an educational agency or institution, such as a unit of commissioned police officers or non-
commissioned security guards, that is officially authorized or designated by that agency or
institution to—
(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for
enforcement of any local, State, or Federal law against any individual or organization other
than the agency or institution itself; or
(ii) Maintain the physical security and safety of the agency or institution.
(2) A component of an educational agency or institution does not lose its status as a law
enforcement unit if it also performs other, non-law enforcement functions for the agency or
institution, including investigation of incidents or conduct that constitutes or leads to a
disciplinary action or proceedings against the student.
(b)
(1) Records of a law enforcement unit means those records, files, documents, and other materials
that are--
(i) Created by a law enforcement unit;
(ii) Created for a law enforcement purpose; and
(iii) Maintained by the law enforcement unit.
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(2) Records of a law enforcement unit does not mean--
(i) Records created by a law enforcement unit for a law enforcement purpose that are
maintained by a component of the educational agency or institution other than the law
enforcement unit; or
(ii) Records created and maintained by a law enforcement unit exclusively for a non-law
enforcement purpose, such as a disciplinary action or proceeding conducted by the
educational agency or institution.
(c)
(1) Nothing in the Act prohibits an educational agency or institution from contacting its law
enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible
violation of, or to enforce, any local, State, or Federal law.
(2) Education records, and personally identifiable information contained in education records, do
not lose their status as education records and remain subject to the Act, including the disclosure
provisions of Sec. 99.30, while in the possession of the law enforcement unit.
(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its
law enforcement unit records.
(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))
[60 FR 3469, Jan. 17, 1995]
Subpart B-What Are the Rights of Inspection and Review of Education Records?
Sec. 99.10 What rights exist for a parent or eligible student to inspect and review education records?
(a) Except as limited under Sec. 99.12, a parent or eligible student must be given the opportunity to
inspect and review the student's education records. This provision applies to--
(1) Any educational agency or institution; and
(2) Any State educational agency (SEA) and its components.
(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational
agency or institution.
(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education
records on students who are or have been in attendance at any school of an educational agency or
institution subject to the Act and this part.
(b) The educational agency or institution, or SEA or its component, shall comply with a request for
access to records within a reasonable period of time, but not more than 45 days after it has
received the request.
(c) The educational agency or institution, or SEA or its component shall respond to reasonable
requests for explanations and interpretations of the records.
(d) If circumstances effectively prevent the parent or eligible student from exercising the right to
inspect and review the student's education records, the educational agency or institution, or SEA
or its component, shall--
(1) Provide the parent or eligible student with a copy of the records requested; or
(2) Make other arrangements for the parent or eligible student to inspect and review the requested
records.
(e) The educational agency or institution, or SEA or its component shall not destroy any education
records if there is an outstanding request to inspect and review the records under this section.
(f) While an education agency or institution is not required to give an eligible student access to
treatment records under paragraph (b)(4) of the definition of Education records in Sec. 99.3, the
student may have those records reviewed by a physician or other appropriate professional of the
student's choice.
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(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]
Sec. 99.11 May an educational agency or institution charge a fee for copies of education records?
(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising
the right to inspect and review the student's education records, an educational agency or institution
may charge a fee for a copy of an education record which is made for the parent or eligible
student.
(b) An educational agency or institution may not charge a fee to search for or to retrieve the
education records of a student.
(Authority: 20 U.S.C. 1232g(a)(1))
Sec. 99.12 What limitations exist on the right to inspect and review records?
(a) If the education records of a student contain information on more than one student, the parent or
eligible student may inspect and review or be informed of only the specific information about that
student.
(b) A postsecondary institution does not have to permit a student to inspect and review education
records that are:
(1) Financial records, including any information those records contain, of his or her parents;
(2) Confidential letters and confidential statements of recommendation placed in the education
records of the student before January 1, 1975, as long as the statements are used only for the
purposes for which they were specifically intended; and
(3) Confidential letters and confidential statements of recommendation placed in the student's
education records after January 1, 1975, if:
(i) The student has waived his or her right to inspect and review those letters and statements; and
(ii) Those letters and statements are related to the student's:
(A) Admission to an educational institution;
(B) Application for employment; or
(C) Receipt of an honor or honorary recognition.
(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:
(i) The educational agency or institution does not require the waiver as a condition for admission to
or receipt of a service or benefit from the agency or institution; and
(ii) The waiver is made in writing and signed by the student, regardless of age.
(2) If a student has waived his or her rights under paragraph
(b)(3)(i) of this section, the educational institution shall:
(i) Give the student, on request, the names of the individuals who provided the letters and
statements of recommendation; and
(ii) Use the letters and statements of recommendation only for the purpose for which they were
intended.
(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions
occurring after the revocation.
(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.
(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]
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Subpart C-What Are the Procedures for Amending Education Records?
Sec. 99.20 How can a parent or eligible student request amendment of the student's education
records?
(a) If a parent or eligible student believes the education records relating to the student contain
information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or
she may ask the educational agency or institution to amend the record.
(b) The educational agency or institution shall decide whether to amend the record as requested
within a reasonable time after the agency or institution receives the request.
(c) If the educational agency or institution decides not to amend the record as requested, it shall
inform the parent or eligible student of its decision and of his or her right to a hearing under Sec.
99.21.
(Authority: 20 U.S.C. 1232g(a)(2))
[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21,
1996]
Sec. 99.21 Under what conditions does a parent or eligible student have the right to a hearing?
(a) An educational agency or institution shall give a parent or eligible student, on request, an
opportunity for a hearing to challenge the content of the student's education records on the grounds
that the information contained in the education records is inaccurate, misleading, or in violation of
the privacy rights of the student.
(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information
is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:
(i) Amend the record accordingly; and
(ii) Inform the parent or eligible student of the amendment in writing.
(2) If, as a result of the hearing, the educational agency or institution decides that the information in
the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of
the student, it shall inform the parent or eligible student of the right to place a statement in the
record commenting on the contested information in the record or stating why he or she disagrees
with the decision of the agency or institution, or both.
(c) If an educational agency or institution places a statement in the education records of a student
under paragraph (b)(2) of this section, the agency or institution shall:
(1) Maintain the statement with the contested part of the record for as long as the record is
maintained; and
(2) Disclose the statement whenever it discloses the portion of the record to which the statement
relates.
(Authority: 20 U.S.C. 1232g(a)(2))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]
Sec. 99.22 What minimum requirements exist for the conduct of a hearing?
The hearing required by Sec. 99.21 must meet, at a minimum, the following requirements:
(a) The educational agency or institution shall hold the hearing within a reasonable time after it has
received the request for the hearing from the parent or eligible student.
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(b) The educational agency or institution shall give the parent or eligible student notice of the date,
time, and place, reasonably in advance of the hearing.
(c) The hearing may be conducted by any individual, including an official of the educational agency
or institution, who does not have a direct interest in the outcome of the hearing.
(d) The educational agency or institution shall give the parent or eligible student a full and fair
opportunity to present evidence relevant to the issues raised under Sec. 99.21. The parent or
eligible student may, at their own expense, be assisted or represented by one or more individuals
of his or her own choice, including an attorney.
(e) The educational agency or institution shall make its decision in writing within a reasonable
period of time after the hearing.
(f) The decision must be based solely on the evidence presented at the hearing, and must include a
summary of the evidence and the reasons for the decision.
(Authority: 20 U.S.C. 1232g(a)(2))
Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information
From Education Records?
Sec. 99.30 Under what conditions is prior consent required to disclose information?
(a) The parent or eligible student shall provide a signed and dated written consent before an
educational agency or institution discloses personally identifiable information from the student's
education records, except as provided in Sec. 99.31.
(b) The written consent must:
(1) Specify the records that may be disclosed;
(2) State the purpose of the disclosure; and
(3) Identify the party or class of parties to whom the disclosure may be made.
(c) When a disclosure is made under paragraph (a) of this section:
(1) If a parent or eligible student so requests, the educational agency or institution shall provide him
or her with a copy of the records disclosed; and
(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall
provide the student with a copy of the records disclosed.
(d) ``Signed and dated written consent'' under this part may include a record and signature in
electronic form that--
(1) Identifies and authenticates a particular person as the source of the electronic consent; and
(2) Indicates such person's approval of the information contained in the electronic consent.
(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))
[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]
Sec. 99.31 Under what conditions is prior consent not required to disclose information?
(a) An educational agency or institution may disclose personally identifiable information from an
education record of a student without the consent required by Sec. 99.30 if the disclosure meets
one or more of the following conditions:
(1) The disclosure is to other school officials, including teachers, within the agency or institution
whom the agency or institution has determined to have legitimate educational interests.
(2) The disclosure is, subject to the requirements of Sec. 99.34, to officials of another school,
school system, or institution of postsecondary education where the student seeks or intends to
enroll.
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(3) The disclosure is, subject to the requirements of Sec. 99.35, to authorized representatives of--
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local educational authorities.
(4)(i) The disclosure is in connection with financial aid for which the student has applied or which
the student has received, if the information is necessary for such purposes as to:
(A) Determine eligibility for the aid;
(B) Determine the amount of the aid;
(C) Determine the conditions for the aid; or
(D) Enforce the terms and conditions of the aid.
(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided
to an individual (or a payment in kind of tangible or intangible property to the individual) that is
conditioned on the individual's attendance at an educational agency or institution.
(Authority: 20 U.S.C. 1232g(b)(1)(D))
(5)(i) The disclosure is to State and local officials or authorities to whom this information is
specifically--
(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19,
1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's
ability to effectively serve the student whose records are released; or
(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974,
subject to the requirements of Sec. 99.38.
(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or
type of State or local officials to whom disclosures may be made under that paragraph.
(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies
or institutions to:
(A) Develop, validate, or administer predictive tests;
(B) Administer student aid programs; or
(C) Improve instruction.
(ii) The agency or institution may disclose information under paragraph (a)(6)(i) of this section only
if:
(A) The study is conducted in a manner that does not permit personal identification of parents and
students by individuals other than representatives of the organization; and
(B) The information is destroyed when no longer needed for the purposes for which the study was
conducted.
(iii) If this Office determines that a third party outside the educational agency or institution to whom
information is disclosed under this paragraph (a)(6) violates paragraph (a)(6)(ii)(B) of this section,
the educational agency or institution may not allow that third party access to personally
identifiable information from education records for at least five years.
(iv) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not
limited to, Federal, State, and local agencies, and independent organizations.
(7) The disclosure is to accrediting organizations to carry out their accrediting functions.
(8) The disclosure is to parents, as defined in Sec. 99.3, of a dependent student, as defined in
section 152 of the Internal Revenue Code of 1986.
(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.
(ii) The educational agency or institution may disclose information Under paragraph (a)(9)(i) of this
section only if the agency or institution makes a reasonable effort to notify the parent or eligible
student of the order or subpoena in advance of compliance, so that the parent or eligible student
may seek protective action, unless the disclosure is in compliance with--
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(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of
the subpoena or the information furnished in response to the subpoena not be disclosed; or
(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency
has ordered that the existence or the contents of the subpoena or the information furnished in
response to the subpoena not be disclosed.
(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the
educational agency or institution may disclose to the court, without a court order or subpoena, the
education records of the student that are relevant for the educational agency or institution to
proceed with the legal action as plaintiff.
(B) If a parent or eligible student initiates legal action against an educational agency or institution,
the educational agency or institution may disclose to the court, without a court order or subpoena,
the student's education records that are relevant for the educational agency or institution to defend
itself.
(10) The disclosure is in connection with a health or safety emergency, under the conditions
described in Sec. 99.36.
(11) The disclosure is information the educational agency or institution has designated as ``directory
information'', under the conditions described in Sec. 99.37.
(12) The disclosure is to the parent of a student who is not an eligible student or to the student.
(13) The disclosure, subject to the requirements in Sec. 99.39, is to a victim of an alleged
perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include
the final results of the disciplinary proceeding conducted by the institution of postsecondary
education with respect to that alleged crime or offense. The institution may disclose the final
results of the disciplinary proceeding, regardless of whether the institution concluded a violation
was committed.
(14)(i) The disclosure, subject to the requirements in Sec. 99.39, is in connection with a
disciplinary proceeding at an institution of postsecondary education. The institution must not
disclose the final results of the disciplinary proceeding unless it determines that--
(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and
(B) With respect to the allegation made against him or her, the student has committed a violation of
the institution's rules or policies.
(ii) The institution may not disclose the name of any other student, including a victim or witness,
without the prior written consent of the other student.
(iii) This section applies only to disciplinary proceedings in which the final results were reached on
or after October 7, 1998.
(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education
regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the
institution, governing the use or possession of alcohol or a controlled substance if--
(A) The institution determines that the student has committed a disciplinary violation with respect to
that use or possession; and
(B) The student is under the age of 21 at the time of the disclosure to the parent.
(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an
institution of postsecondary education from disclosing information.
(b) Paragraph (a) of this section does not forbid an educational agency or institution from
disclosing, nor does it require an educational agency or institution to disclose, personally
identifiable information from the education records of a student to any partiesunder paragraphs
(a)(1) through (11), (13), (14), and (15) of this section.
(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1), (b)(2)(B), (b)(6), (h), and (i)) [53 FR 11943, Apr. 11,
1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov.
21, 1996; 65 FR 41853, July 6, 2000]
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Sec. 99.32 What recordkeeping requirements exist concerning requests and disclosures?
(a)(1) An educational agency or institution shall maintain a record of each request for access to and
each disclosure of personally identifiable information from the education records of each student.
(2) The agency or institution shall maintain the record with the education records of the student as
long as the records are maintained.
(3) For each request or disclosure the record must include:
(i) The parties who have requested or received personally identifiable information from the
education records; and
(ii) The legitimate interests the parties had in requesting or obtaining the information.
(b) If an educational agency or institution discloses personally identifiable information from an
education record with the understanding authorized under Sec. 99.33(b), the record of the
disclosure required under this section must include:
(1) The names of the additional parties to which the receiving party may disclose the information on
behalf of the educational agency or institution; and
(2) The legitimate interests under Sec. 99.31 which each of the additional parties has in requesting
or obtaining the information.
(c) The following parties may inspect the record relating to each student:
(1) The parent or eligible student.
(2) The school official or his or her assistants who are responsible for the custody of the records.
(3) Those parties authorized in Sec. 99.31(a) (1) and (3) for the purposes of auditing the
recordkeeping procedures of the educational agency or institution.
(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:
(1) The parent or eligible student;
(2) A school official under Sec. 99.31(a)(1);
(3) A party with written consent from the parent or eligible student;
(4) A party seeking directory information; or
(5) A party seeking or receiving the records as directed by a Federal grand jury or other law
enforcement subpoena and the issuing court or other issuing agency has ordered that the existence
or the contents of the subpoena or the information furnished in response to the subpoena not be
disclosed.
(Approved by the Office of Management and Budget under control number 1880-0508)
(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996]
Sec. 99.33 What limitations apply to the redisclosure of information?
(a)(1) An educational agency or institution may disclose personally identifiable information from an
education record 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 or eligible
student.
(2) The officers, employees, and agents of a party that receives
information under paragraph (a)(1) of this section may use the
information, but only for the purposes for which the disclosure was
made.
(b) Paragraph (a) of this section does not prevent an educational agency or institution from
disclosing personally identifiable information with the understanding that the party receiving the
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information may make further disclosures of the information on behalf of the educational agency
or institution if:
(1) The disclosures meet the requirements of Sec. 99.31; and
(2) The educational agency or institution has complied with the requirements of Sec. 99.32(b).
(c) Paragraph (a) of this section does not apply to disclosures made to parents of dependent students
under
Sec. 99.31(a)(8), to disclosures made pursuant to court orders, lawfully issued subpoenas, or litigation
under Sec. 99.31(a)(9), to disclosures of directory information under Sec. 99.31(a)(11), to
disclosures made to a parent or student under Sec. 99.31(a)(12), to disclosures made in
connection with a disciplinary proceeding under Sec. 99.31(a)(14), or to disclosures made to
parents under Sec. 99.31(a)(15).
(d) Except for disclosures under Sec. 99.31(a) (9), (11), and (12), an educational agency or
institution shall inform a party to whom disclosure is made of the requirements of this section.
(e) If this Office determines that a third party improperly rediscloses personally identifiable
information from education records in violation of Sec. 99.33(a) of this section, the educational
agency or institution may not allow that third party access to personally identifiable information
from education records for at least five years.
(Authority: 20 U.S.C. 1232g(b)(4)(B))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000]
Sec. 99.34 What conditions apply to disclosure of information to other educational agencies or
institutions?
(a) An educational agency or institution that discloses an education record under Sec. 99.31(a)(2)
shall:
(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of
the parent or eligible student, unless:
(i) The disclosure is initiated by the parent or eligible student; or
(ii) The annual notification of the agency or institution under Sec. 99.6 includes a notice that the
agency or institution forwards education records to other agencies or institutions that have
requested the records and in which the student seeks or intends to enroll;
(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and
(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.
(b) An educational agency or institution may disclose an education record of a student in attendance
to another educational agency or institution if:
(1) The student is enrolled in or receives services from the other agency or institution; and
(2) The disclosure meets the requirements of paragraph (a) of this section.
(Authority: 20 U.S.C. 1232g(b)(1)(B))
[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996]
Sec. 99.35 What conditions apply to disclosure of information for Federal or State program
purposes?
(a) The officials listed in Sec. 99.31(a)(3) may have access to education records in connection with
an audit or evaluation of Federal or State supported education programs, or for the enforcement of
or compliance with Federal legal requirements which relate to those programs.
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(b) Information that is collected under paragraph (a) of this section must:
(1) Be protected in a manner that does not permit personal identification of individuals by anyone
except the officials referred to in paragraph (a) of this section; and
(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.
(c) Paragraph (b) of this section does not apply if:
(1) The parent or eligible student has given written consent for the disclosure under Sec. 99.30; or
(2) The collection of personally identifiable information is specifically authorized by Federal law.
(Authority: 20 U.S.C. 1232g(b)(3))
Sec. 99.36 What conditions apply to disclosure of information in health and safety emergencies?
(a) An educational agency or institution may disclose personally identifiable information from an
education record to appropriate parties in connection with an emergency if knowledge of the
information is necessary to protect the health or safety of the student or other individuals.
(b) Nothing in this Act or this part shall prevent an educational agency or institution from--
(1) Including in the education records of a student appropriate information concerning disciplinary
action taken against the student for conduct that posed a significant risk to the safety or well-being
of that student, other students, or other members of the school community;
(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers
and school officials within the agency or institution who the agency or institution has determined
have legitimate educational interests in the behavior of the student; or
(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers
and school officials in other schools who have been determined to have legitimate educational
interests in the behavior of the student.
(c) Paragraphs (a) and (b) of this section will be strictly construed.
(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))
[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21,
1996]
Sec. 99.37 What conditions apply to disclosing directory information?
(a) An educational agency or institution may disclose directory information if it has given public
notice to parents of students in attendance and eligible students in attendance at the agency or
institution of:
(1) The types of personally identifiable information that the agency or institution has designated as
directory information;
(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all
of those types of information about the student as directory information; and
(3) The period of time within which a parent or eligible student has to notify the agency or
institution in writing that he or she does not want any or all of those types of information about the
student designated as directory information.
(b) An educational agency or institution may disclose directory information about former students
without meeting the conditions in paragraph (a) of this section.
(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))
Sec. 99.38 What conditions apply to disclosure of information as permitted by State statute adopted
after November 19, 1974, concerning the juvenile justice system?
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(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the
system's ability to effectively serve, prior to adjudication, the student whose records are released,
an educational agency or institution may disclose education records under Sec. 99.31(a)(5)(i)(B).
(b) The officials and authorities to whom the records are disclosed shall certify in writing to the
educational agency or institution that the information will not be disclosed to any other party,
except as provided under State law, without the prior written consent of the parent of the student.
(Authority: 20 U.S.C. 1232g(b)(1)(J))
[61 FR 59297, Nov. 21, 1996]
Sec. 99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary
educational institutions in connection with disciplinary proceedings concerning crimes of
violence or non-forcible sex offenses?
As used in this part:
Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that
would, if proven, constitute any of the following offenses or attempts to commit the following
offenses that are defined in appendix A to this part:
Arson
Assault offenses
Burglary
Criminal homicide--manslaughter by negligence
Criminal homicide--murder and nonnegligent manslaughter
Destruction/damage/vandalism of property
Kidnapping/abduction
Robbery
Forcible sex offenses.
Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed
acts that, if proven, would constitute statutory rape or incest. These offenses are defined in
appendix A to this part.
Final results means a decision or determination, made by an honor court or council, committee,
commission, or other entity authorized to resolve disciplinary matters within the institution. The
disclosure of final results must include only the name of the student, the violation committed, and
any sanction imposed by the institution against the student.
Sanction imposed means a description of the disciplinary action taken by the institution, the date of
its imposition, and its duration.
Violation committed means the institutional rules or code sections that were violated and any
essential findings supporting the institution's conclusion that the violation was committed.
(Authority: 20 U.S.C. 1232g(b)(6))
[65 FR 41853, July 6, 2000] Subpart E-What Are the Enforcement Procedures?
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Sec. 99.60 What functions has the Secretary delegated to the Office and to the Office of
Administrative Law Judges?
(a) For the purposes of this subpart, Office means the Family Policy Compliance Office, U.S.
Department of Education.
(b) The Secretary designates the Office to:
(1) Investigate, process, and review complaints and violations under the Act and this part; and
(2) Provide technical assistance to ensure compliance with the Act and this part.
(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board
required under the Act to enforce the Act with respect to all applicable programs. The term
applicable program is defined in section 400 of the General Education Provisions Act.
(Authority: 20 U.S.C. 1232g (f) and (g), 1234)
[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993]
Sec. 99.61 What responsibility does an educational agency or institution have concerning conflict
with State or local laws?
If an educational agency or institution determines that it cannot comply with the Act or this part due
to a conflict with State or local law, it shall notify the Office within 45 days, giving the text and
citation of the conflicting law.
(Authority: 20 U.S.C. 1232g(f))
Sec. 99.62 What information must an educational agency or institution submit to the Office?
The Office may require an educational agency or institution to submit reports containing
information necessary to resolve complaints under the Act and the regulations in this part.
(Authority: 20 U.S.C. 1232g (f) and (g))
Sec. 99.63 Where are complaints filed?
A parent or eligible student may file a written complaint with the Office regarding an alleged
violation under the Act and this part. The Office's address is: Family Policy Compliance Office,
U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202-4605.
(Authority: 20 U.S.C. 1232g(g))
[65 FR 41854, July 6, 2000]
Sec. 99.64 What is the complaint procedure?
(a) A complaint filed under Sec. 99.63 must contain specific allegations of fact giving reasonable
cause to believe that a violation of the Act or this part has occurred.
(b) The Office investigates each timely complaint to determine whether the educational agency or
institution has failed to comply with the provisions of the Act or this part.
(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the
Office within 180 days of the date of the alleged violation or of the date that the complainant knew
or reasonably should have known of the alleged violation.
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(d) The Office may extend the time limit in this section for good cause shown.
(Authority: 20 U.S.C. 1232g(f))
[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65
FR 41854, July 6, 2000]
Sec. 99.65 What is the content of the notice of complaint issued by the Office?
(a) The Office notifies the complainant and the educational agency or institution in writing if it
initiates an investigation of a complaint under Sec. 99.64(b). The notice to the educational agency
or institution--
(1) Includes the substance of the alleged violation; and
(2) Asks the agency or institution to submit a written response to the complaint.
(b) The Office notifies the complainant if it does not initiate an investigation of a complaint because
the complaint fails to meet the requirements of Sec. 99.64.
(Authority: 20 U.S.C. 1232g(g))
[58 FR 3189, Jan. 7, 1993]
Sec. 99.66 What are the responsibilities of the Office in the enforcement process?
(a) The Office reviews the complaint and response and may permit the parties to submit further
written or oral arguments or information.
(b) Following its investigation, the Office provides to the complainant and the educational agency
or institution written notice of its findings and the basis for its findings.
(c) If the Office finds that the educational agency or institution has not complied with the Act or this
part, the notice under paragraph (b) of this section:
(1) Includes a statement of the specific steps that the agency or institution must take to comply; and
(2) Provides a reasonable period of time, given all of the circumstances of the case, during which
the educational agency or institution may comply voluntarily.
(Authority: 20 U.S.C. 1232g(f))
Sec. 99.67 How does the Secretary enforce decisions?
(a) If the educational agency or institution does not comply during the period of time set under Sec.
99.66(c), the Secretary may, in accordance with part E of the General Education Provisions Act--
(1) Withhold further payments under any applicable program;
(2) Issue a compliant to compel compliance through a cease-and-desist order; or
(3) Terminate eligibility to receive funding under any applicable program.
(b) If, after an investigation under Sec. 99.66, the Secretary finds that an educational agency or
institution has complied voluntarily with the Act or this part, the Secretary provides the
complainant and the agency or institution written notice of the decision and the basis for the
decision.
(Note: 34 CFR part 78 contains the regulations of the Education Appeal Board)
(Authority: 20 U.S.C. 1232g(f); 20 U.S.C. 1234)
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[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993]
Appendix A to Part 99--Crimes of Violence Definitions
Arson
Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling
house, public building, motor vehicle or aircraft, personal property of another, etc.
Assault Offenses
An unlawful attack by one person upon another.
Note: By definition there can be no ``attempted'' assaults, only ``completed'' assaults.
(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting
severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a
weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury
result from an aggravated assault when a gun, knife, or other weapon is used which could and
probably would result in serious injury if the crime were successfully completed.)
(b) Simple Assault. An unlawful physical attack by one person upon another where neither the
offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury
involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss
of consciousness.
(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the
use of threatening words or other conduct, or both, but without displaying a weapon or subjecting
the victim to actual physical attack.
Note: This offense includes stalking.
Burglary
The unlawful entry into a building or other structure with the intent to commit a felony or a theft.
Criminal Homicide--Manslaughter by Negligence
The killing of another person through gross negligence.
Criminal Homicide--Murder and Nonnegligent Manslaughter
The willful (nonnegligent) killing of one human being by another.
Destruction/Damage/Vandalism of Property
To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property
without the consent of the owner or the person having custody or control of it.
Kidnapping/Abduction
The unlawful seizure, transportation, or detention of a person, or any combination of these actions,
against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal
guardian.
Note: Kidnapping/Abduction includes hostage taking.
Robbery
The taking of, or attempting to take, anything of value under confrontational circumstances from the
control, custody, or care of a person or persons by force or threat of force or violence or by putting
the victim in fear.
Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of
force.
Sex Offenses, Forcible
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Any sexual act directed against another person, forcibly or against that person's will, or both; or not
forcibly or against the person's will where the victim is incapable of giving consent.
(a) Forcible Rape (Except ``Statutory Rape''). The carnal knowledge of a person, forcibly or against
that person's will, or both; or not forcibly or against the person's will where the victim is incapable
of giving consent because of his or her temporary or permanent mental or physical incapacity (or
because of his or her youth).
(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that
person's will, or both; or not forcibly or against the person's will where the victim is incapable of
giving consent because of his or her youth or because of his or her temporary or permanent mental
or physical incapacity.
(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however
slightly, the genital or anal opening of the body of another person, forcibly or against that person's
will, or both; or not forcibly or against the person's will where the victim is incapable of giving
consent because of his or her youth or because of his or her temporary or permanent mental or
physical incapacity.
Note: An ``object'' or ``instrument'' is anything used by the offender other than the offender's
genitalia. Examples are a finger, bottle, handgun, stick, etc.
(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of
sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the
person's will where the victim is incapable of giving consent because of his or her youth or
because of his or her temporary or permanent mental or physical incapacity.
Note: Forcible Fondling includes ``Indecent Liberties'' and ``Child Molesting.''
Nonforcible Sex Offenses (Except ``Prostitution Offenses'')
Unlawful, nonforcible sexual intercourse.
(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the
degrees wherein marriage is prohibited by law.
(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of
consent.
(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)
[65 FR 41854, July 6, 2000]
Subtitle B--Regulations of the Offices of the Department of Education
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TITLE 34 EDUCATION
SUBTITLE B REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF
EDUCATION
CHAPTER I -- OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 104 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE
Subpart A
-- General Provisions
Sec.
104.1 Purpose.
104.2 Application.
104.3 Definitions.
104.4 Discrimination prohibited.
104.5 Assurances required.
104.6 Remedial action, voluntary action, and self-evaluation.
104.7 Designation of responsible employee and adoption of grievance procedures.
104.8 Notice.
104.9 Administrative requirements for small recipients.
104.10 Effect of state or local law or other requirements and effect of employment
opportunities.
Subpart B
-- Employment Practices
104.11 Discrimination prohibited.
104.12 Reasonable accommodation.
104.13
Employment criteria.
104.14 Preemployment inquiries.
Subpart C -- Accessibility
104.21
Discrimination prohibited.
104.22 Existing facilities.
104.23
New construction.
Subpart D
-- Preschool, Elementary, and Secondary Education
104.31
Application of this subpart.
104.32 Location and notification.
104.33
Free appropriate public education.
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104.34
Educational setting.
104.35 Evaluation and placement.
104.36 Procedural safeguards.
104.37
Nonacademic services.
104.38
Preschool and adult education.
104.39 Private education.
Subpart E -- Postsecondary Education
104.41 Application of this subpart.
104.42
Admissions and recruitment.
104.43
Treatment of students; general.
104.44 Academic adjustments.
104.45 Housing.
104.46 Financial and employment assistance to students.
104.47 Nonacademic services.
Subpart F
-- Health, Welfare, and Social Services
104.51 Application of this subpart.
104.52 Health, welfare, and other social services.
104.53 Drug and alcohol addicts.
104.54 Education of institutionalized persons.
Subpart G -- Procedures
104.61 Procedures.
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APPENDIX A TO PART 104 ANALYSIS OF FINAL REGULATION
APPENDIX B TO PART 104 GUIDELINES FOR ELIMINATING DISCRIMINATION
AND DENIAL OF SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL
ORIGIN, SEX, AND HANDICAP IN VOCATIONAL EDUCATION PROGRAMS
[NOTE]
AUTHORITY: 20 U.S.C. 1405; 29 U.S.C. 794.
SOURCE: 45 FR 30936, May 9, 1980, unless otherwise noted.
Subpart A -- General Provisions
104.1 Purpose.
The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973,
which is designed to eliminate discrimination on the basis of handicap in any program or
activity receiving Federal financial assistance.
104.2 Application.
This part applies to each recipient of Federal financial assistance from the Department of
Education and to the program or activity that receives such assistance.
104.3 Definitions.
As used in this part, the term:
(a)
The Act
means the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the
Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794.
(b)
Section 504
means section 504 of the Act.
(c)
Education of the Handicapped Act
means that statute as amended by the Education for
all Handicapped Children Act of 1975, Pub. L. 94-142, 20 U.S.C. 1401 et seq.
(d)
Department
means the Department of Education.
(e)
Assistant Secretary
means the Assistant Secretary for Civil Rights of the Department
of Education.
(f)
Recipient
means any state or its political subdivision, any instrumentality of a state or
its political subdivision, any public or private agency, institution, organization, or other
entity, or any person to which Federal financial assistance is extended directly or through
another recipient, including any successor, assignee, or transferee of a recipient, but
excluding the ultimate beneficiary of the assistance.
(g)
Applicant for assistance
means one who submits an application, request, or plan
required to be approved by a Department official or by a recipient as a condition to
becoming a recipient.
(h)
Federal financial assistance
means any grant, loan, contract (other than a
procurement contract or a contract of insurance or guaranty), or any other arrangement by
which the Department provides or otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
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(3) Real and personal property or any interest in or use of such property, including:
(i) Transfers or leases of such property for less than fair market value or for reduced
consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of
its fair market value is not returned to the Federal Government.
(i)
Facility
means all or any portion of buildings, structures, equipment, roads, walks,
parking lots, or other real or personal property or interest in such property.
(j)
Handicapped person
-- (1)
Handicapped persons
means any person who (i) has a
physical or mental impairment which substantially limits one or more major life
activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an
impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i)
Physical or mental impairment
means (A) any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs; respiratory, including
speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and
lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental illness, and specific
learning disabilities.
(ii)
Major life activities
means functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(iii)
Has a record of such an impairment
means has a history of, or has been misclassified
as having, a mental or physical impairment that substantially limits one or more major
life activities.
(iv)
Is regarded as having an impairment
means (A) has a physical or mental impairment
that does not substantially limit major life activities but that is treated by a recipient as
constituting such a limitation; (B) has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others toward such
impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this
section but is treated by a recipient as having such an impairment.
(k
) Program or activity
means all of the operations of--
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or
of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each
such department or agency (and each other State or local government entity) to which the
assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of
higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational
education, or other school system;
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(3)(i) An entire corporation, partnership, or other private organization, or an entire sole
proprietorship--
(A) If assistance is extended to such corporation, partnership, private organization, or
sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care,
housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which
Federal financial assistance is extended, in the case of any other corporation, partnership,
private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in
paragraph (k)(1), (2), or (3) of this section; any part of which is extended Federal
financial assistance.
(Authority: 29 U.S.C. 794(b))
(l)
Qualified handicapped person
means:
(1) With respect to employment, a handicapped person who, with reasonable
accommodation, can perform the essential functions of the job in question;
(2) With respect to public preschool elementary, secondary, or adult educational services,
a handicappped person (i) of an age during which nonhandicapped persons are provided
such services, (ii) of any age during which it is mandatory under state law to provide such
services to handicapped persons, or (iii) to whom a state is required to provide a free
appropriate public education under section 612 of the Education of the Handicapped Act;
and
(3) With respect to postsecondary and vocational education services, a handicapped
person who meets the academic and technical standards requisite to admission or
participation in the recipient's education program or activity;
(4) With respect to other services, a handicapped person who meets the essential
eligibility requirements for the receipt of such services.
(m)
Handicap
means any condition or characteristic that renders a person a handicapped
person as defined in paragraph (j) of this section.
104.4 Discrimination prohibited.
(a)
General.
No qualified handicapped person shall, on the basis of handicap, be excluded
from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activitiy which receives Federal financial assistance.
(b)
Discriminatory actions prohibited.
(1) A recipient, in providing any aid, benefit, or
service, may not, directly or through contractual, licensing, or other arrangements, on the
basis of handicap:
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from
the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from
the aid, benefit, or service that is not equal to that afforded others;
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(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as
effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to
any class of handicapped persons unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as effective as those provided
to others;
(v) Aid or perpetuate discrimination against a qualified handicapped person by providing
significant assistance to an agency, organization, or person that discriminates on the basis
of handicap in providing any aid, benefit, or service to beneficiaries of the recipients
program or activity;
(vi) Deny a qualified handicapped person the opportunity to participate as a member of
planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or
service.
(2) For purposes of this part, aids, benefits, and services, to be equally effective, are not
required to produce the identical result or level of achievement for handicapped and
nonhandicapped persons, but must afford handicapped persons equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same level of
achievement, in the most integrated setting appropriate to the person's needs.
(3) Despite the existence of separate or different aid, benefits, or services provided in
accordance with this part, a recipient may not deny a qualified handicapped person the
opportunity to participate in such aid, benefits, or services that are not separate or
different.
(4) A recipient may not, directly or through contractual or other arrangements, utilize
criteria or methods of administration (i) that have the effect of subjecting qualified
handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose
or effect of defeating or substantially impairing accomplishment of the objectives of the
recipient's program or activity with respect to handicapped persons, or (iii) that
perpetuate the discrimination of another recipient if both recipients are subject to
common administrative control or are agencies of the same State.
(5) In determining the site or location of a facility, an applicant for assistance or a
recipient may not make selections (i) that have the effect of excluding handicapped
persons from, denying them the benefits of, or otherwise subjecting them to
discrimination under any program or activity that receives Federal financial assistance or
(ii) that have the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the program or activity with respect to handicapped
persons.
(6) As used in this section, the aid, benefit, or service provided under a program or
activity receiving Federal financial assistance includes any aid, benefit, or service
provided in or through a facility that has been constructed, expanded, altered, leased or
rented, or otherwise acquired, in whole or in part, with Federal financial assistance.
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(c)
Aid, benefits or services limited by Federal law.
The exclusion of nonhandicapped
persons from aid, benefits, or services limited by Federal statute or executive order to
handicapped persons or the exclusion of a specific class of handicapped persons from aid,
benefits, or services limited by Federal statute or executive order to a different class of
handicapped persons is not prohibited by this part.
104.5 Assurances required.
(a)
Assurances.
An applicant for Federal financial assistance to which this part applies
shall submit an assurance, on a form specified by the Assistant Secretary, that the
program or activity will be operated in compliance with this part. An applicant may
incorporate these assurances by reference in subsequent applications to the Department.
(b)
Duration of obligation.
(1) In the case of Federal financial assistance extended in the
form of real property or to provide real property or structures on the property, the
assurance will obligate the recipient or, in the case of a subsequent transfer, the
transferee, for the period during which the real property or structures are used for the
purpose for which Federal financial assistance is extended or for another purpose
involving the provision of similar services or benefits.
(2) In the case of Federal financial assistance extended to provide personal property, the
assurance will obligate the recipient for the period during which it retains ownership or
possession of the property.
(3) In all other cases the assurance will obligate the recipient for the period during which
Federal financial assistance is extended.
(c)
Covenants.
(1) Where Federal financial assistance is provided in the form of real
property or interest in the property from the Department, the instrument effecting or
recording this transfer shall contain a covenant running with the land to assure
nondiscrimination for the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another purpose involving the
provision of similar services or benefits.
(2) Where no transfer of property is involved but property is purchased or improved with
Federal financial assistance, the recipient shall agree to include the covenant described in
paragraph (b)(2) of this section in the instrument effecting or recording any subsequent
transfer of the property.
(3) Where Federal financial assistance is provided in the form of real property or interest
in the property from the Department, the covenant shall also include a condition coupled
with a right to be reserved by the Department to revert title to the property in the event of
a breach of the covenant. If a transferee of real property proposes to mortgage or
otherwise encumber the real property as security for financing construction of new, or
improvement of existing, facilities on the property for the purposes for which the
property was transferred, the Assistant Secretary may, upon request of the transferee and
if necessary to accomplish such financing and upon such conditions as he or she deems
appropriate, agree to forbear the exercise of such right to revert title for so long as the lien
of such mortgage or other encumbrance remains effective.
104.6 Remedial action, voluntary action, and self-evaluation.
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(a)
Remedial action.
(1) If the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of handicap in violation of section 504 or this part, the
recipient shall take such remedial action as the Assistant Secretary deems necessary to
overcome the effects of the discrimination.
(2) Where a recipient is found to have discriminated against persons on the basis of
handicap in violation of section 504 or this part and where another recipient exercises
control over the recipient that has discriminated, the Assistant Secretary, where
appropriate, may require either or both recipients to take remedial action.
(3) The Assistant Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a recipient to take remedial
action (i) with respect to handicapped persons who are no longer participants in the
recipient's program or activity but who were participants in the program or activity when
such discrimination occurred or (ii) with respect to handicapped persons who would have
been participants in the program or activity had the discrimination not occurred.
(b)
Voluntary action.
A recipient may take steps, in addition to any action that is required
by this part, to overcome the effects of conditions that resulted in limited participation in
the recipient's program or activity by qualified handicapped persons.
(c)
Self-evaluation.
(1) A recipient shall, within one year of the effective date of this part:
(i) Evaluate, with the assistance of interested persons, including handicapped persons or
organizations representing handicapped persons, its current policies and practices and the
effects thereof that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including handicapped persons or
organizations representing handicapped persons, any policies and practices that do not
meet the requirements of this part; and
(iii) Take, after consultation with interested persons, including handicapped persons or
organizations representing handicapped persons, appropriate remedial steps to eliminate
the effects of any discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons shall, for at least three years
following completion of the evaluation required under paragraph (c)(1) of this section,
maintain on file, make available for public inspection, and provide to the Assistant
Secretary upon request:
(i) A list of the interested persons consulted,
(ii) A description of areas examined and any problems identified, and
(iii) A description of any modifications made and of any remedial steps taken.
104.7 Designation of responsible employee and adoption of grievance procedures.
(a)
Designation of responsible employee.
A recipient that employs fifteen or more
persons shall designate at least one person to coordinate its efforts to comply with this
part.
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(b)
Adoption of grievance procedures.
A recipient that employs fifteen or more persons
shall adopt grievance procedures that incorporate appropriate due process standards and
that provide for the prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with respect to
complaints from applicants for employment or from applicants for admission to
postsecondary educational institutions.
104.8 Notice.
(a) A recipient that employs fifteen or more persons shall take appropriate initial and
continuing steps to notify participants, beneficiaries, applicants, and employees,
including those with impaired vision or hearing, and unions or professional organizations
holding collective bargaining or professional agreements with the recipient that it does
not discriminate on the basis of handicap in violation of section 504 and this part. The
notification shall state, where appropriate, that the recipient does not discriminate in
admission or access to, or treatment or employment in, its program or activity. The
notification shall also include an identification of the responsible employee designated
pursuant to 104.7(a). A recipient shall make the initial notification required by this
paragraph within 90 days of the effective date of this part. Methods of initial and
continuing notification may include the posting of notices, publication in newspapers and
magazines, placement of notices in recipients' publication, and distribution of memoranda
or other written communications.
(b) If a recipient publishes or uses recruitment materials or publications containing
general information that it makes available to participants, beneficiaries, applicants, or
employees, it shall include in those materials or publications a statement of the policy
described in paragraph (a) of this section. A recipient may meet the requirement of this
paragraph either by including appropriate inserts in existing materials and publications or
by revising and reprinting the materials and publications.
104.9 Administrative requirements for small recipients.
The Assistant Secretary may require any recipient with fewer than fifteen employees, or
any class of such recipients, to comply with 104.7 and 104.8, in whole or in part, when
the Assistant Secretary finds a violation of this part or finds that such compliance will not
significantly impair the ability of the recipient or class of recipients to provide benefits or
services.
104.10 Effect of state or local law or other requirements and effect of employment
opportunities.
(a) The obligation to comply with this part is not obviated or alleviated by the existence
of any state or local law or other requirement that, on the basis of handicap, imposes
prohibitions or limits upon the eligibility of qualified handicapped persons to receive
services or to practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or alleviated because
employment opportunities in any occupation or profession are or may be more limited for
handicapped persons than for nonhandicapped persons.
Subpart B -- Employment Practices
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104.11 Discrimination prohibited.
(a)
General.
(1) No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity to which this
part applies.
(2) A recipient that receives assistance under the Education of the Handicapped Act shall
take positive steps to employ and advance in employment qualified handicapped persons
in programs or activities assisted under that Act.
(3) A recipient shall make all decisions concerning employment under any program or
activity to which this part applies in a manner which ensures that discrimination on the
basis of handicap does not occur and may not limit, segregate, or classify applicants or
employees in any way that adversely affects their opportunities or status because of
handicap.
(4) A recipient may not participate in a contractual or other relationship that has the effect
of subjecting qualified handicapped applicants or employees to discrimination prohibited
by this subpart. The relationships referred to in this paragraph include relationships with
employment and referral agencies, with labor unions, with organizations providing or
administering fringe benefits to employees of the recipient, and with organizations
providing training and apprenticeships.
(b)
Specific activities.
The provisions of this subpart apply to:
(1) Recruitment, advertising, and the processing of applications for employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff,
termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in compensation;
(4) Job assignments, job classifications, organizational structures, position descriptions,
lines of progression, and seniority lists;
(5) Leaves of absense, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not administered by the
recipient;
(7) Selection and financial support for training, including apprenticeship, professional
meetings, conferences, and other related activities, and selection for leaves of absence to
pursue training;
(8) Employer sponsored activities, including those that are social or recreational; and
(9) Any other term, condition, or privilege of employment.
(c) A recipient's obligation to comply with this subpart is not affected by any inconsistent
term of any collective bargaining agreement to which it is a party.
104.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known physical or mental
limitations of an otherwise qualified handicapped applicant or employee unless the
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recipient can demonstrate that the accommodation would impose an undue hardship on
the operation of its program or activity.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and usable by handicapped
persons, and
(2) Job restructuring, part-time or modified work schedules, acquisition or modification
of equipment or devices, the provision of readers or interpreters, and other similar
actions.
(c) In determining pursuant to paragraph (a) of this section whether an accommodation
would impose an undue hardship on the operation of a recipient's program or activity,
factors to be considered include:
(1) The overall size of the recipient's program or activity with respect to number of
employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition and structure of the
recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a qualified handicapped
employee or applicant if the basis for the denial is the need to make reasonable
accommodation to the physical or mental limitations of the employee or applicant.
104.13 Employment criteria.
(a) A recipient may not make use of any employment test or other selection criterion that
screens out or tends to screen out handicapped persons or any class of handicapped
persons unless:
(1) The test score or other selection criterion, as used by the recipient, is shown to be
job-related for the position in question, and
(2) Alternative job-related tests or criteria that do not screen out or tend to screen out as
many handicapped persons are not shown by the Director to be available.
(b) A recipient shall select and administer tests concerning employment so as best to
ensure that, when administered to an applicant or employee who has a handicap that
impairs sensory, manual, or speaking skills, the test results accurately reflect the
applicant's or employee's job skills, aptitude, or whatever other factor the test purports to
measure, rather than reflecting the applicant's or employee's impaired sensory, manual, or
speaking skills (except where those skills are the factors that the test purports to
measure).
104.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not
conduct a preemployment medical examination or may not make preemployment inquiry
of an applicant as to whether the applicant is a handicapped person or as to the nature or
severity of a handicap. A recipient may, however, make preemployment inquiry into an
applicant's ability to perform job-related functions.
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(b) When a recipient is taking remedial action to correct the effects of past discrimination
pursuant to 104.6 (a), when a recipient is taking voluntary action to overcome the effects
of conditions that resulted in limited participation in its federally assisted program or
activity pursuant to 104.6(b), or when a recipient is taking affirmative action pursuant to
section 503 of the Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped,
Provided
, That:
(1) The recipient states clearly on any written questionnaire used for this purpose or
makes clear orally if no written questionnaire is used that the information requested is
intended for use solely in connection with its remedial action obligations or its voluntary
or affirmative action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary
basis, that it will be kept confidential as provided in paragraph (d) of this section, that
refusal to provide it will not subject the applicant or employee to any adverse treatment,
and that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from conditioning an offer of
employment on the results of a medical examination conducted prior to the employee's
entrance on duty,
Provided,
That:
(1) All entering employees are subjected to such an examination regardless of handicap,
and
(2) The results of such an examination are used only in accordance with the requirements
of this part.
(d) Information obtained in accordance with this section as to the medical condition or
history of the applicant shall be collected and maintained on separate forms that shall be
accorded confidentiality as medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions on the work or
duties of handicapped persons and regarding necessary accommodations;
(2) First aid and safety personnel may be informed, where appropriate, if the condition
might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall be provided
relevant information upon request.
Subpart C--Accessibility
104.21 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's facilities are inaccessible to
or unusable by handicapped persons, be denied the benefits of, be excluded from
participation in, or otherwise be subjected to discrimination under any program or
activity to which this part applies.
104.22 Existing facilities.
(a)
Accessibility.
A recipient shall operate its program or activity so that when each part is
viewed in its entirety, it is readily accessible to handicapped persons. This paragraph does
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not require a recipient to make each of its existing facilities or every part of a facility
accessible to and usable by handicapped persons.
(b)
Methods.
A recipient may comply with the requirements of paragraph (a) of this
section through such means as redesign of equipment, reassignment of classes or other
services to accessible buildings, assignment of aides to beneficiaries, home visits,
delivery of health, welfare, or other social services at alternate accessible sites, alteration
of existing facilities and construction of new facilities in conformance with the
requirements of 104.23, or any other methods that result in making its program or activity
accessible to handicapped persons. A recipient is not required to make structural changes
in existing facilities where other methods are effective in achieving compliance with
paragraph (a) of this section. In choosing among available methods for meeting the
requirement of paragraph (a) of this section, a recipient shall give priority to those
methods that serve handicapped persons in the most integrated setting appropriate.
(c)
Small health, welfare, or other social service providers.
If a recipient with fewer than
fifteen employees that provides health, welfare, or other social services finds, after
consultation with a handicapped person seeking its services, that there is no method of
complying with paragraph (a) of this section other than making a significant alteration in
its existing facilities, the recipient may, as an alternative, refer the handicapped person to
other providers of those services that are accessible.
(d)
Time period.
A recipient shall comply with the requirement of paragraph (a) of this
section within sixty days of the effective date of this part except that where structural
changes in facilities are necessary, such changes shall be made within three years of the
effective date of this part, but in any event as expeditiously as possible.
(e)
Transition plan.
In the event that structural changes to facilities are necessary to meet
the requirement of paragraph (a) of this section, a recipient shall develop, within six
months of the effective date of this part, a transition plan setting forth the steps necessary
to complete such changes. The plan shall be developed with the assistance of interested
persons, including handicapped persons or organizations representing handicapped
persons. A copy of the transition plan shall be made available for public inspection. The
plan shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that limit the accessibility of its
program or activity to handicappped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve full accessibility in
order to comply with paragraph (a) of this section and, if the time period of the transition
plan is longer than one year, identify the steps of that will be taken during each year of
the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f)
Notice.
The recipient shall adopt and implement procedures to ensure that interested
persons, including persons with impaired vision or hearing, can obtain information as to
the existence and location of services, activities, and facilities that are accessible to and
usuable by handicapped persons.
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104.23 New construction.
(a)
Design and construction.
Each facility or part of a facility constructed by, on behalf
of, or for the use of a recipient shall be designed and constructed in such manner that the
facility or part of the facility is readily accessible to and usable by handicapped persons,
if the construction was commenced after the effective date of this part.
(b)
Alteration.
Each facility or part of a facility which is altered by, on behalf of, or for
the use of a recipient after the effective date of this part in a manner that affects or could
affect the usability of the facility or part of the facility shall, to the maximum extent
feasible, be altered in such manner that the altered portion of the facility is readily
accessible to and usable by handicapped persons.
(c)
Conformance with Uniform Federal Accessibility Standards.
(1) Effective as of
January 18, 1991, design, construction, or alteration of buildings in conformance with
sections 3-8 of the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41
CFR subpart 101-19.6) shall be deemed to comply with the requirements of this section
with respect to those buildings. Departures from particular technical and scoping
requirements of UFAS by the use of other methods are permitted where substantially
equivalent or greater access to and usability of the building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to
exempt from the requirements of UFAS only mechanical rooms and other spaces that,
because of their intended use, will not require accessibility to the public or beneficiaries
or result in the employment or residence therein of persons with phusical handicaps.
(3) This section does not require recipients to make building alterations that have little
likelihood of being accomplished without removing or altering a load-bearing structural
member.
[45 FR 30936, May 9, 1980; 45 FR 37426, June 3, 1980, as amended at 55 FR 52138,
52141, Dec. 19, 1990]
Subpart D -- Preschool, Elementary, and Secondary Education
104.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult education programs or
activities that receive Federal financial assistance and to recipients that operate, or that
receive Federal financial assistance for the operation of, such programs or activities.
104.32 Location and notification.
A recipient that operates a public elementary or secondary education program or activity
shall annually:
(a) Undertake to identify and locate every qualified handicapped person residing in the
recipient's jurisdiction who is not receiving a public education; and
(b) Take appropriate steps to notify handicapped persons and their parents or guardians of
the recipient's duty under this subpart.
104.33 Free appropriate public education.
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(a)
General.
A recipient that operates a public elementary or secondary education
program or activity shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature or
severity of the person's handicap.
(b)
Appropriate education.
(1) For the purpose of this subpart, the provision of an
appropriate education is the provision of regular or special education and related aids and
services that (i) are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met and (ii) are based
upon adherence to procedures that satisfy the requirements of 104.34, 104.35, and
104.36.
(2) Implementation of an Individualized Education Program developed in accordance
with the Education of the Handicapped Act is one means of meeting the standard
established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such a person for aid, benefits, or
services other than those that it operates or provides as its means of carrying out the
requirements of this subpart. If so, the recipient remains responsible for ensuring that the
requirements of this subpart are met with respect to any handicapped person so placed or
referred.
(c)
Free education
-- (1)
General.
For the purpose of this section, the provision of a free
education is the provision of educational and related services without cost to the
handicapped person or to his or her parents or guardian, except for those fees that are
imposed on non-handicapped persons or their parents or guardian. It may consist either of
the provision of free services or, if a recipient places a handicapped person or refers such
person for aid, benefits, or services not operated or provided by the recipient as its means
of carrying out the requirements of this subpart, of payment for the costs of the aid,
benefits, or services. Funds available from any public or private agency may be used to
meet the requirements of this subpart. Nothing in this section shall be construed to relieve
an insurer or similar third party from an otherwise valid obligation to provide or pay for
services provided to a handicapped person.
(2
) Transportation.
If a recipient places a handicapped person or refers such person for
aid, benefits, or services not operated or provided by the recipient as its means of
carrying out the requirements of this subpart, the recipient shall ensure that adequate
transportation to and from the aid, benefits, or services is provided at no greater cost than
would be incurred by the person or his or her parents or guardian if the person were
placed in the aid, benefits, or services operated by the recipient.
(3)
Residential placement.
If a public or private residential placement is necessary to
provide a free appropriate public education to a handicapped person because of his or her
handicap, the placement, including non-medical care and room and board, shall be
provided at no cost to the person or his or her parents or guardian.
(4
) Placement of handicapped persons by parents.
If a recipient has made available, in
conformance with the requirements of this section and 104.34, a free appropriate public
education to a handicapped person and the person's parents or guardian choose to place
the person in a private school, the recipient is not required to pay for the person's
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education in the private school. Disagreements between a parent or guardian and a
recipient regarding whether the recipient has made a free appropriate public education
available or otherwise regarding the question of financial responsibility are subject to the
due process procedures of 104.36.
(d)
Compliance.
A recipient may not exclude any qualified handicapped person from a
public elementary or secondary education after the effective date of this part. A recipient
that is not, on the effective date of this regulation, in full compliance with the other
requirements of the preceding paragraphs of this section shall meet such requirements at
the earliest practicable time and in no event later than September 1, 1978.
104.34 Educational setting.
(a)
Academic setting.
A recipient to which this subpart applies shall educate, or shall
provide for the education of, each qualified handicapped person in its jurisdiction with
persons who are not handicapped to the maximum extent appropriate to the needs of the
handicapped person. A recipient shall place a handicapped person in the regular
educational environment operated by the recipient unless it is demonstrated by the
recipient that the education of the person in the regular environment with the use of
supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient
places a person in a setting other than the regular educational environment pursuant to
this paragraph, it shall take into account the proximity of the alternate setting to the
person's home.
(b)
Nonacademic settings.
In providing or arranging for the provision of nonacademic
and extracurricular services and activities, including meals, recess periods, and the
services and activities set forth in 104.37(a)(2), a recipient shall ensure that handicapped
persons participate with nonhandicapped persons in such activities and services to the
maximum extent appropriate to the needs of the handicapped person in question.
(c)
Comparable facilities.
If a recipient, in compliance with paragraph (a) of this section,
operates a facility that is identifiable as being for handicapped persons, the recipient shall
ensure that the facility and the services and activities provided therein are comparable to
the other facilities, services, and activities of the recipient.
104.35 Evaluation and placement.
(a)
Preplacement evaluation.
A recipient that operates a public elementary or secondary
education program or activity shall conduct an evaluation in accordance with the
requirements of paragraph (b) of this section of any person who, because of handicap,
needs or is belived to need special education or related services before taking any action
with respect to the initial placement of the person in regular or special education and any
subsequent significant change in placement.
(b)
Evaluation procedures.
A recipient to which this subpart applies shall establish
standards and procedures for the evaluation and placement of persons who, because of
handicap, need or are believed to need special education or related services which ensure
that:
(1) Tests and other evaluation materials have been validated for the specific purpose for
which they are used and are administered by trained personnel in conformance with the
instructions provided by their producer;
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(2) Tests and other evaluation materials include those tailored to assess specific areas of
educational need and not merely those which are designed to provide a single general
intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that, when a test is
administered to a student with impaired sensory, manual, or speaking skills, the test
results accurately reflect the student's aptitude or achievement level or whatever other
factor the test purports to measure, rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors that the test purports
to measure).
(c)
Placement procedures.
In interpreting evaluation data and in making placement
decisions, a recipient shall (1) draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical condition, social or
cultural background, and adaptive behavior, (2) establish procedures to ensure that
information obtained from all such sources is documented and carefully considered, (3)
ensure that the placement decision is made by a group of persons, including persons
knowledgeable about the child, the meaning of the evaluation data, and the placement
options, and (4) ensure that the placement decision is made in conformity with 104.34.
(d)
Reevaluation.
A recipient to which this section applies shall establish procedures, in
accordance with paragraph (b) of this section, for periodic reevaluation of students who
have been provided special education and related services. A reevaluation procedure
consistent with the Education for the Handicapped Act is one means of meeting this
requirement.
104.36 Procedural safeguards.
A recipient that operates a public elementary or secondary education program or activity
shall establish and implement, with respect to actions regarding the identification,
evaluation, or educational placement of persons who, because of handicap, need or are
believed to need special instruction or related services, a system of procedural safeguards
that includes notice, an opportunity for the parents or guardian of the person to examine
relevant records, an impartial hearing with opportunity for participation by the person's
parents or guardian and representation by counsel, and a review procedure. Compliance
with the procedural safeguards of section 615 of the Education of the Handicapped Act is
one means of meeting this requirement.
104.37 Nonacademic services.
(a)
General.
(1) A recipient to which this subpart applies shall provide non-academic and
extracurricular services and activities in such manner as is necessary to afford
handicapped students an equal opportunity for participation in such services and
activities.
(2) Nonacademic and extracurricular services and activities may include counseling
services, physical recreational athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the recipients, referrals to
agencies which provide assistance to handicapped persons, and employment of students,
including both employment by the recipient and assistance in making available outside
employment.
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(b)
Counseling services.
A recipient to which this subpart applies that provides personal,
academic, or vocational counseling, guidance, or placement services to its students shall
provide these services without discrimination on the basis of handicap. The recipient
shall ensure that qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar interests and abilities.
(c)
Physical education and athletics.
(1) In providing physical education courses and
athletics and similar aid, benefits, or services to any of its students, a recipient to which
this subpart applies may not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic, club, or intramural
athletics shall provide to qualified handicapped students an equal opportunity for
participation.
(2) A recipient may offer to handicapped students physical education and athletic
activities that are separate or different from those offered to nonhandicapped students
only if separation or differentiation is consistent with the requirements of 104.34 and only
if no qualified handicapped student is denied the opportunity to compete for teams or to
participate in courses that are not separate or different.
104.38 Preschool and adult education.
A recipient to which this subpart applies that provides preschool education or day care or
adult education may not, on the basis of handicap, exclude qualified handicapped persons
and shall take into account the needs of such persons in determining the aid, benefits, or
services to be provided.
104.39 Private education.
(a) A recipient that provides private elementary or secondary education may not, on the
basis of handicap, exclude a qualified handicapped person if the person can, with minor
adjustments, be provided an appropriate education, as defined in 104.33(b)(1), within that
recipients program or activity.
(b) A recipient to which this section applies may not charge more for the provision of an
appropriate education to handicapped persons than to nonhandicapped persons except to
the extent that any additional charge is justified by a substantial increase in cost to the
recipient.
(c) A recipient to which this section applies that provides special education shall do so in
accordance with the provisions of 104.35 and 104.36. Each recipient to which this section
applies is subject to the provisions of 104.34, 104.37, and 104.38.
Subpart E -- Postsecondary Education
104.41 Application of this subpart.
Subpart E applies to postsecondary education programs or activities, including
postsecondary vocational education programs or activities, that receive Federal financial
assistance and to recipients that operate, or that receive Federal financial assistance for
the operation of, such programs or activities.
104.42 Admissions and recruitment.
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(a)
General.
Qualified handicapped persons may not, on the basis of handicap, be denied
admission or be subjected to discrimination in admission or recruitment by a recipient to
which this subpart applies.
(b)
Admissions.
In administering its admission policies, a recipient to which this subpart
applies:
(1) May not apply limitations upon the number or proportion of handicapped persons
who may be admitted;
(2) May not make use of any test or criterion for admission that has a disproportionate,
adverse effect on handicapped persons or any class of handicapped persons unless (i) the
test or criterion, as used by the recipient, has been validated as a predictor of success in
the education program or activity in question and (ii) alternate tests or criteria that have a
less disproportionate, adverse effect are not shown by the Assistant Secretary to be
available.
(3) Shall assure itself that (i) admissions tests are selected and administered so as best to
ensure that, when a test is administered to an applicant who has a handicap that impairs
sensory, manual, or speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level or whatever other factor the test purports to measure, rather
than reflecting the applicant's impaired sensory, manual, or speaking skills (except where
those skills are the factors that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills are offered as
often and in as timely a manner as are other admissions tests; and (iii) admissions tests
are administered in facilities that, on the whole, are accessible to handicapped persons;
and
(4) Except as provided in paragraph (c) of this section, may not make preadmission
inquiry as to whether an applicant for admission is a handicapped person but, after
admission, may make inquiries on a confidential basis as to handicaps that may require
accommodation.
(c)
Preadmission inquiry exception.
When a recipient is taking remedial action to correct
the effects of past discrimination pursuant to 104.6(a) or when a recipient is taking
voluntary action to overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to 104.6(b), the
recipient may invite applicants for admission to indicate whether and to what extent they
are handicapped,
Provided,
That:
(1) The recipient states clearly on any written questionnaire used for this purpose or
makes clear orally if no written questionnaire is used that the information requested is
intended for use solely in connection with its remedial action obligations or its voluntary
action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary
basis, that it will be kept confidential, that refusal to provide it will not subject the
applicant to any adverse treatment, and that it will be used only in accordance with this
part.
(d)
Validity studies.
For the purpose of paragraph (b)(2) of this section, a recipient may
base prediction equations on first year grades, but shall conduct periodic validity studies
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against the criterion of overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
104.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of handicap, be excluded from
participation in, be denied the benefits of, or otherwise be subjected to discrimination
under any academic, research, occupational training, housing, health insurance,
counseling, financial aid, physical education, athletics, recreation, transportation, other
extracurricular, or other postsecondary education aid, benefits, or services to which this
subpart applies.
(b) A recipient to which this subpart applies that considers participation by students in
education programs or activities not operated wholly by the recipient as part of, or
equivalent to, and education program or activity operated by the recipient shall assure
itself that the other education program or activity, as a whole, provides an equal
opportunity for the participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis of handicap, exclude
any qualified handicapped student from any course, course of study, or other part of its
education program or activity.
(d) A recipient to which this subpart applies shall operate its program or activity in the
most integrated setting appropriate.
104.44 Academic adjustments.
(a)
Academic requirements.
A recipient to which this subpart applies shall make such
modifications to its academic requirements as are necessary to ensure that such
requirements do not discriminate or have the effect of discriminating, on the basis of
handicap, against a qualified handicapped applicant or student. Academic requirements
that the recipient can demonstrate are essential to the instruction being pursued by such
student or to any directly related licensing requirement will not be regarded as
discriminatory within the meaning of this section. Modifications may include changes in
the length of time permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and adaptation of the
manner in which specific courses are conducted.
(b)
Other rules.
A recipient to which this subpart applies may not impose upon
handicapped students other rules, such as the prohibition of tape recorders in classrooms
or of dog guides in campus buildings, that have the effect of limiting the participation of
handicapped students in the recipient's education program or activity.
(c)
Course examinations.
In its course examinations or other procedures for evaluating
students' academic achievement, a recipient to which this subpart applies shall provide
such methods for evaluating the achievement of students who have a handicap that
impairs sensory, manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather than reflecting the
student's impaired sensory, manual, or speaking skills (except where such skills are the
factors that the test purports to measure).
February 2008
Appendix G
Kansas Special Education Process Handbook
21
(d)
Auxiliary aids.
(1) A recipient to which this subpart applies shall take such steps as
are necessary to ensure that no handicapped student is denied the benefits of, excluded
from participation in, or otherwise subjected to discrimination because of the absence of
educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective methods of
making orally delivered materials available to students with hearing impairments, readers
in libraries for students with visual impairments, classroom equipment adapted for use by
students with manual impairments, and other similar services and actions. Recipients
need not provide attendants, individually prescribed devices, readers for personal use or
study, or other devices or services of a personal nature.
104.45 Housing.
(a)
Housing provided by the recipient.
A recipient that provides housing to its
nonhandicapped students shall provide comparable, convenient, and accessible housing
to handicapped students at the same cost as to others. At the end of the transition period
provided for in subpart C, such housing shall be available in sufficient quantity and
variety so that the scope of handicapped students' choice of living accommodations is, as
a whole, comparable to that of nonhandicapped students.
(b)
Other housing.
A recipient that assists any agency, organization, or person in making
housing available to any of its students shall take such action as may be necessary to
assure itself that such housing is, as a whole, made available in a manner that does not
result in discrimination on the basis of handicap.
104.46 Financial and employment assistance to students.
(a)
Provision of financial assistance.
(1) In providing financial assistance to qualified
handicapped persons, a recipient to which this subpart applies may not,
(i) On the basis of handicap, provide less assistance than is provided to nonhandicapped
persons, limit eligibility for assistance, or otherwise discriminate or
(ii) Assist any entity or person that provides assistance to any of the recipient's students in
a manner that discriminates against qualified handicapped persons on the basis of
handicap.
(2) A recipient may administer or assist in the administration of scholarships, fellowships,
or other forms of financial assistance established under wills, trusts, bequests, or similar
legal instruments that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if the overall effect of
the award of scholarships, fellowships, and other forms of financial assistance is not
discriminatory on the basis of handicap.
(b)
Assistance in making available outside employment.
A recipient that assists any
agency, organization, or person in providing employment opportunities to any of its
students shall assure itself that such employment opportunities, as a whole, are made
available in a manner that would not violate subpart B if they were provided by the
recipient.
(c
) Employment of students by recipients.
A recipient that employs any of its students
may not do so in a manner that violates subpart B.
February 2008
Appendix G
Kansas Special Education Process Handbook
22
104.47 Nonacademic services.
(a)
Physical education and athletics.
(1) In providing physical education courses and
athletics and similar aid, benefits, or services to any of its students, a recipient to which
this subpart applies may not disacriminate on the basis of handicap. A recipient that
offers physical education courses or that operates or sponsors intercollegiate, club, or
intramural athletics shall provide to qualified handicapped students an equal opportunity
for participation in these activities.
(2) A recipient may offer to handicapped students physical education and athletic
activities that are separate or different only if separation or differentiation is consistent
with the requirements of 104.43(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that are not separate or
different.
(b)
Counseling and placement services.
A recipient to which this subpart applies that
provides personal, academic, or vocational counseling, guidance, or placement services to
its students shall provide these services without discrimination on the basis of handicap.
The recipient shall ensure that qualified handicapped students are not counseled toward
more restrictive career objectives than are nonhandicapped students with similar interests
and abilities. This requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may present obstacles to
handicapped persons in their pursuit of particular careers.
(c)
Social organizations.
A recipient that provides significant assistance to fraternities,
sororities, or similar organizations shall assure itself that the membership practices of
such organizations do not permit discrimination otherwise prohibited by this subpart.
Subpart F -- Health, Welfare, and Social Services
104.51 Application of this subpart.
Subpart F applies to health, welfare, and other social service programs or activities that
receive Federal financial assistance and to recipients that operate, or that receive Federal
financial assistance for the operation of, such programs or activities.
104.52 Health, welfare, and other social services.
(a)
General.
In providing health, welfare, or other social services or benefits, a recipient
may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Afford a qualified handicapped person an opportunity to receive benefits or services
that is not equal to that offered nonhandicapped persons;
(3) Provide a qualified handicapped person with benefits or services that are not as
effective (as defined in 104.4(b)) as the benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the effect of limiting the
participation of qualified handicapped persons; or
February 2008
Appendix G
Kansas Special Education Process Handbook
23
(5) Provide different or separate benefits or services to handicapped persons except where
necessary to provide qualified handicapped persons with benefits and services that are as
effective as those provided to others.
(b)
Notice.
A recipient that provides notice concerning benefits or services or written
material concerning waivers of rights or consent to treatment shall take such steps as are
necessary to ensure that qualified handicapped persons, including those with impaired
sensory or speaking skills, are not denied effective notice because of their handicap.
(c)
Emergency treatment for the hearing impaired.
A recipient hospital that provides
health services or benefits shall establish a procedure for effective communication with
persons with impaired hearing for the purpose of providing emergency health care.
(d)
Auxiliary aids.
(1) A recipient to which this subpart applies that employs fifteen or
more persons shall provide appropriate auxiliary aids to persons with impaired sensory,
manual, or speaking skills, where necessary to afford such persons an equal opportunity
to benefit from the service in question.
(2) The Assistant Secretary may require recipients with fewer than fifteen employees to
provide auxiliary aids where the provision of aids would not significantly impair the
ability of the recipient to provide its benefits or services.
(3) For the purpose of this paragraph, auxiliary aids may include brailled and taped
material, interpreters, and other aids for persons with impaired hearing or vision.
104.53 Drug and alcohol addicts.
A recipient to which this subpart applies that operates a general hospital or outpatient
facility may not discriminate in admission or treatment against a drug or alcohol abuser
or alcoholic who is suffering from a medical condition, because of the person's drug or
alcohol abuse or alcoholism.
104.54 Education of institutionalized persons.
A recipient to which this subpart applies and that operates or supervises a program or
activity that provides aid, benefits or services for persons who are institutionalized
because of handicap shall ensure that each qualified handicapped person, as defined in
104.3(k)(2), in its program or activity is provided an appropriate education, as defined in
104.33(b). Nothing in this section shall be interpreted as altering in any way the
obligations of recipients under subpart D.
Subpart G -- Procedures
104.61 Procedures.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to
this part. These procedures are found in 100.6-100.10 and part 101 of this title.
February 2008
Appendix H, pg 1
Kansas Special Education Process Handbook
OTHER RESOURCES
(All resources are hyperlinked or have the link)
Kansas Resources
Special Education Services, KSDE, http://www.kansped.org/
General Education Interventions, Initial Evaluation , Eligibility, and the IEP, Version 3.0
(a revision to the October, 2000 version)
Guide To Special Education (2006)
Guide To Special Education (Spanish) (2006)
Hearing Screening Guidelines and Resource Manual ( 2004)
Kansas Guidelines for Educational Interpreters (200 3)
Kansas Positive Behavioral Support Manual (2000)
Kansas Special Education Process Handbook (2008)
Medicaid LEA Provider Manual https://www.kmap-state-ks.us/public/providermanuals.asp
National Alliance for Medicaid in Education http://www.medicaidforeducation.org/
Occupational Therapy and Physical Therapy Services in Schools: Frequently Asked Questions
Seclusion / Restraint Guidelines (March 2007)
Special Education Reimbursement Guide for State Cat egorical Aid (Updated annually)
Speech-Language Guidelines for Schools (2005)
Assessment System for K-12 Educational Interpreters (ASK12)
Multi-Tier System of Support
Information About All Schools In Kansas
Early Learning Guidelines & Standards http://www.kpirc.org/index.html
Kansas State Assessments http://www.kansped.org/ksde/assmts/ksstassmtsinfo.html
Legal Information: Forms, Mediation, Due Process, F ormal Complaint , Laws and Regulations
http://www.kansped.org/ksde/laws/legalreqmts.html
Research and Data: SPP, MIS http://www.kansped.org/ksde/research/research.html
Secondary Transition http://www.kansped.org/ksde/resources/iep/iep.html
IEP Development http://www.kansped.org/ksde/resources/iep/iep.html
Kansas Communities of Practice (CoP) http://www.kscommunitiesofpractice.org/
Infinitec http://www.myinfinitec.org/MyInfinitec/
February 2008
Appendix H, pg 2
Kansas Special Education Process Handbook
Kansas Statewide Technical Assistance and Resource System (KSTARS)
Kansas Educational Employment Board (KEEB)
Kansas Inservice Training System (KITS)
Kansas Instructional Resource Center for the Visual ly Impaired (KIRC)
Kansas Instructional Support Network (KISN)
Autism Spectrum Disorders http://www.kansasasd.com/KSASD/Home_.html
Supporting Program Outcomes and Teachers (Project S POT)
Supporting Teachers and Youth (Project STAY)
Inclusive Network of Kansas (INKS)
Integrated Data Management and Support System Prior ity (IDMSS)
Parent Information and Resource Centers
Families Together, Inc. http://www.familiestogetherinc.com/
Keys for Networking, Inc. http://www.keys.org/
Kansas Parent Information Resource Center (KPIRC) http://www.kpirc.org/index.html
Disability Rights Center of Kansas (DRC): (877) 776 -1541
Kansas Infant Toddler Services (Part C of IDEA) http://www.kdheks.gov/its/index.html
Kansas Coordinating Council on Early Childhood Developmental Services
http://www.kansasicc.org/
Kansas School for the Deaf http://www.ksdeaf.org/
Kansas School for the Blind http://www.kssb.net/
National Resources
Code of Federal Regulations
Individuals with Disabilities Education Act (IDEA)
February 2008
Appendix H, pg 3
Kansas Special Education Process Handbook
O.S.E.P. Office of Special Education Programs
U.S. Department of Education
IDEA Partnership
Office of Civil Rights (504 Information) telephone 816-268-0550
National Association of State Directors of Special Education, Inc.
National Center for Special Education Personnel & Related Service Providers
National State Policy Database
NCLB and IDEA: What Parents of Students with Disabilities Need to Know
Offical Federal Goverment at Your Fingertips
Office of Civil Rights (504 Information) telephone 816-268-0550
O.S.E.P. Office of Special Education Programs
U.S. Department of Education
IDEA Partnership
Project Forum
Education Resource Organizations Directory (EROD)
February 2008
Appendix I, pg 1
Kansas Special Education Process Handbook
INDEX
A
Access to records 9-3
Accommodation, state assessment 4-22, 5-9, 5-11
Adapted physical education 4-14
Adoptive parent 1-4, 1-5
Age of majority 1-18, 1-19, 4-26, 9-9
Aging out 8-2
Alternate assessment 4-22
Alternate educational placement 13-10
Amendment of records 9-1, 9-8
Annual goals, see Measurable annual goals
Appeal, formal complaint 11-3, due process 12-5, di sciplinary action 13-11
Appropriate activities, for preschool children 3-12
Assessment 2-4, 3-12, 3-13
Assistive technology 4-14, 5-9
Attorney 4-38, 8-5, as due process hearing officer 12-2, 12-3, attorney fees 12-1 and 12-6, 14-2
B
Behavior intervention plan 4-13, 13-6
Benchmark 4-20
Biological/Birth parent 1-4, 1-5
Braille 4-13
Business day 1-16, 10-5, 11-3, 11-4, 12-9, 14-3
C
Calendar day 2-2, 2-3, 3-11, 3-18, 4-7, 4-9, 6-1, 7 -1, 9-3, 11-2, 11-3, 12-5, 12-6
Change of placement
Charter schools 14-1
Child find 2-1, private schools 14-4
Civil action 12-6
Code of conduct 13-3, 13-5
Communication needs 4-13, 4-13
Confidentiality, Chapter 9
Confidentiality pledge 10-2
Consent 1-9, 1-13, initial evaluation 3-7, reevalua tion 7-4, services 4-32, revocation 8-4, 8-5, priva te school exchange
of information 14-5
Continuum of services 6-3
Controlled substance 13-4 (definition)
Courses of study 4-24
Crime, reporting 13-15
D
Dangerous behavior 13-5
Daniel R.R. standard 6-10
Destruction of records 9-2, 9-8
Detention 14-1, facilities 5-15
Developmental delay 7-2
February 2008
Appendix I, pg 2
Kansas Special Education Process Handbook
Disciplinary action 12-6, 13-3, 13-14
Disciplinary records 9-10
Discipline, Chapter 13
Disclosure 9-3
Discontinuing special education services, Chapter 8
District of residence 14-6
District-wide assessment 4-22
Dropping out 8-5
Drugs, see illegal drugs
Due process Chapter 12, private school 14-14
Due process hearing officer 12-2
E
11th day rule 13-6
Early identification 2-2, 5-5
Early intervening services 2-9
Education advocate 1-16, 1-20, 1-21
Educational decision maker 1-5
Educational placement, Chapter 6, 6-3
Eligibility 3-18, no longer eligible 8-1, disciplin ary action 13-14
Evaluation, Chapter 3, 3-12, team 3-9, data 3-16
Evaluation/eligibility report 3-20
Exceptionality,
Exclusionary factors 3-19
Exit from special education, Chapter 8
Expedited hearing 13-12
Expel, expulsion 13-3, 13-5, 13-8, 13-10, 13-14
Extended school year 4-14, 5-12
Extended standards 4-17, 4-18
Extracurricular activities 5-10, 6-6
F
Family Educational Rights and Privacy Act (FERPA), Appendix F, 9-1
Formal complaint, Chapter 11
Foster care database 1-17
Foster parent 1-5
Free appropriate public education (FAPE)
Functional behavior assessment 13-6
Functional performance 3-1
G
General education classroom 4-28, 5-10, 5-12, 5-13, 6-1, 6-3, 6-5
General education curriculum 2-5, 3-9, 3-12, 3-16, 3-19, 4-11, 4-15, 4-26, 5-3, 5-12, 6-3, 7-3, 13-6
General education intervention, Chapter 2, 2-2 (def inition)
General education teacher, on IEP team 4-2,
Gifted 1-5, 5-4, 13-3, 14-7
Goal, see Measurable annual goal
Graduation 8-1
Grandparent 1-4
February 2008
Appendix I, pg 3
Kansas Special Education Process Handbook
Guardian 1-4
H
Harmful effects 4-14, 6-4
Head Start 4-3
Health care plan 4-4
Health Department 5-3, 5-7
Health services 5-6
Hearing officer 13-2
Hearing screening 2-2
Highly qualified teacher 5-16
Home schooling 5-14, 14-1
I
Identification 1-7, 3-8, 3-23
IEP meeting 4-7, review, revise or amend 4-29
IEP team 4-1
Illegal drug, 13-4 (definition), 13-10
Immunizations 9-5
Incidental benefit 5-12
Independent educational evaluation 3-23
Individuals with Disabilities Education Improvement Act (IDEA), Appendix B (Law), Appendix C (Regulati ons)
Individualized education program (IEP), Chapter 4, 4-12, implement 4-32
Individualized family service plan (IFSP), 4-9
Infant-Toddler Services 4-10
Informed consent 1-9 (definition),
Initial evaluation, Chapter 3
In-school suspension 13-2
Interim alternate educational placement 13-10
Interim IEP 4-34
Interpreter services, as special education 5-4, 5-8
Interview 3-17
J
Juvenile Justice Authority (JJA) 1-18, 5-15, 6-8
K
Kansas Alternate Assessment (KAA) 4-22
Kansas Assessment with Modifications 4-22
Kansas Department of Corrections 1-18, 5-15, 6-8
Kansas Department of Health and Environment (KDHE) 5-7
Kansas Department of Social and Rehabilitation Serv ices (SRS) 1-17
Kansas Rehabilitation Services, notice to 4-14
Kansas Special Education Regulations, Appendix E
Kansas State Board of Education Policy 6-7
Kansas Statutes, Appendix D
February 2008
Appendix I, pg 4
Kansas Special Education Process Handbook
L
Learning disability 3-19
Least restrictive environment (LRE), Chapter 6, 4-2 7, 6-5, early childhood 6-9
Legal educational decision maker 1-5
Limited English Proficiency (LEP) 4-13
Local agency authority 5-1
Long-term suspension, long-term removal 13-7
M
Management information system (MIS) 3-27
Manifestation determination 13-8
Material change in services 1-10
Measurable annual goals 4-18
Measurable postsecondary goals 4-24
Mediation, Chapter 10, Private school 14-14
Medicaid 1-11, 9-6, 9-7
Medical services 5-6
Modifications 5-11
Monitor child progress 2-4
Multi-tiered system of supports (MTSS) 2-5
N
National Instructional Materials Accessibility Stan dards (NIMAS) 5-11
Natural (biological) parent 1-4
Nonacademic activities 5-10, 6-6
Notice of meeting 1-14, disciplinary action 13-8, 1 3-18
Notice of proposed action, see Prior Written Notice
Nursing services 5-6
O
Objectives, see short term
Observation 3-17
Occupational therapy as special education 5-4
Out-of-school suspension 13-2
P
Paraeducator 5-3
Parent, 1-4 (definition)
Parent Rights, Chapter 1, 1-6
Parochial school 14-1
Part C 4-4, 4-9
Peer reviewed research 5-3
Person acting as a parent 1-4, 1-5
Personally identifiable information 9-2
Physical education (PE) 4-14
Physical therapy (PT), as special education 5- 4
Placement, see Educational placement
Positive behavior interventions 4-13
February 2008
Appendix I, pg 5
Kansas Special Education Process Handbook
Positive behavioral supports 4-13
Preschool 1-2, 1-15, 2-2, 2-9, 3-3, 3-12, 4-3, 4-15 , 4-16, 5-9, 6-3, 6-9, 14-1
Present levels of academic achievement and function al performance (PLAAFP) 4-15
Prior written notice 1-7, initial evaluation 3-4, i dentification 3-23, services 4-32, reevaluation 7-3 , 7-5, 8-5
Private insurance 1-11, 9-6, 9-7
Private school, Chapter 14
Problem-solving 2-6
Procedural safeguards, Chapter1, 1-6(definition)
Progress report 4-21
Proposed special education action 1-7
Public notice for child find 2-2
Public notice for FERPA 9-1
Q
Qualified personnel 5-16
Quality performance accreditation (QPA) 1-2
R
Record, educational 9-2 (definition)
Record review 3-17, 7-9
Recreation 5-11
Reevaluation, Chapter 7, developmental delay at age 10 7-12, need for 7-2
Referral, for initial evaluation 2-8, 3-3
Related services 4-27, as special education 5-4, 5- 5,
Release of information 9-6
Removals, pattern or series 13-6
Reporting progress 4-21
Resolution meeting 12-3, disciplinary action 13-12
Response to scientific, research-based intervention s 3-14
Restraint policy 13-17
Review of existing data 3-5, 7-3
S
School day 13-4 (definition)
School disciplinary hearing officer 13-2
School health services 5-6
School nurse service 5-6
School officials 13-5
School personnel, supports for 5-11
School representative 4-3
Section 504, Appendix G, 3-18, 7-12
Services plan14-11
Short-term objectives 4-20, 4-21
Short-term suspension, short-term removal 13-4 defi nition, 13-5
Sign language interpreter 5-8
Special considerations 4-12
Special education due process hearing officer 12-2
Special education services 4-27, 5-3, in hospital 5 -2
Special education teacher 4-2
February 2008
Appendix I, pg 6
Kansas Special Education Process Handbook
Specially designed instruction 5-3
Specific learning disability 3-19
Speech-language pathology, as special education 5-4
State policy on use of response to intervention (or MTSS) 2-8, 3-21
Stay-put 12-6
Stepparent, 1-5
Substantial change in placement 1-10
Supplementary aids and services 5-9, 6-6
Supportive services 5-5
Surgically implanted devices 5-6
Surrogate parent 1-16
Suspend, suspension 13-2, 13-4, 13-5, 13-9, 13-11, 13-18
T
Test protocols 9-9
Tests 3-17, 7-9
Timeline, for evaluation to services 3-10, 3-11
Transfer of records 4-31, 9-5
Transition, early childhood 4-4, 4-9, 4-10
Transition, school to post-school 4-23
Transportation 5-8, 14-12
U
V
Vision screening 2-2
W
Weapons 13-4
Withdrawal from services 8-4
X
Y
Z
February 2008
Appendix J, pg 1
Kansas Special Education Process Handbook
INDEX TO KANSAS
SPECIAL EDUCATION
STATUTES AND REGULATIONS
(2008)
ADVISORY COUNCIL, STATE
72-964
ASSESSMENTS
Not required for some incarcerated students – when 91-40-5(c)(2)(A)
State and district-wide, accommodations, guidelines, reports 72-985
ASSISTIVE TECHNOLOGY DEVICE
Availability 91-40-3(d)(1)
Availability at home and other settings 91-40-3(d)(2)
Definition 91-40-1(c)
ATTENDANCE (COMPULSORY)
72-977
ATTORNEY’S FEES
72-988(b)(12)
CATASTROPIC AID
72-983
CHILD FIND
Generally 72-966(a)(1) and *91-40-7
Annual public information regarding activities 91-40-7(d)
Conditions for referral 91-40-7(c)(2)
Confidentiality requirements 91-40-7(e)
COMPLAINT TO STATE DEPARTMENT
91-40-51
CONFIDENTIALITY
See, Records
CONSENT
Consent for initial evaluation is not consent for services 91-40-27(d)
Documentation of attempts to obtain consent 91-40-27(f)(4)
Lack of consent does not require LEA to initiate due process 91-40-27(f)(1)&(3)
Lack of consent re private or home school precludes due process 91-40-27(f)(2)
Initial evaluation
required *72-986(a)(5) 72-988(b)(6) 91-40-27(a)(1)
parents refuse/fail to respond, due process not required 72-986(a)(6)
Initial services
required *72-986(g)(1) 72-988(b)(6) 91-40-27(a)(2)
refusal to consent/failure to respond – no due process 72-986(g)(2)(A)
refusal to consent/failure to respond - not violation of FAPE 72-986(g)(2)(B)
refusal to consent/failure to respond – IEP/IEP meeting not required 72-986(g)(2)(C)
Material change in services – required/failure to respond 72-988(b)(6) 91-40-27(a)(3)
Not required for failure to respond 91-40-27(g)
Refusal to consent may not be used to deny other activities or services 91-40-27(h)
Reevaluation – required/failure to respond *72-986(j) 72-988(b)(6) 91-40-27(a)(1)
Review of existing data – consent not required 91-40-27(e)(1)
Substantial change in placement – required/fail to respond 72-988(b)(6) 91-40-27(a)(3)
CONTRACTS
72-967(a)(5) 72-967(c)
COOPERATIVE AGREEMENTS
72-967(a)(4) *72-968
DEFINITIONS
72-962
91-40-1
February 2008
Appendix J, pg 2
Kansas Special Education Process Handbook
DISCIPLINE
Children not yet identified
72-994
Change of placement
91-40-33
Due Process
To contest manifestation determination 72-992a
To contest disciplinary placement 72-992a
Expedited due process hearing 72-993(b) *91-40-30
FAPE required during long term suspension 72-966(a)(2), 72-991a(b)
FBA & BIP
72-991a(f)
Gifted children – subject to suspension without services
91-40-34(c)
Interim alternative educational setting
Determined by IEP team
72-991a(c)
Notice required 72-991a(d)(1)
Ordered by school personnel/weapons, drugs, serious bodily injury 72-991a(a)(2)
Ordered by hearing officer/behavior likely to result in injury 72-992a(a)&(c)(4)
Long-term suspension/expulsion
72-991a(a)(3)
Manifestation determination
Criteria
72-991a(e)(2)
Conducted by relevant members of IEP team
72-991a(e)(1)
Due process resolution session and timelines 91-40-38(e)
Deficiencies found in IEP, placement or services must be addressed 91-40-38(c)
Notice 24 hours in advance of the meeting 91-40-38(d)
Review of relevant information – required 72-991a(e)(1)
Time – within 10 school days of decision
72-991a(d)(2)
When behavior is a manifestation – return to IEP placement, FBA&BIP 72-991a(f)
Notice of IEP meeting – 24 hours prior to meeting 91-40-36(e)
Report of crimes - not prohibited – transmission of records to authorities 72-995
Services during suspension
Amount of services required
91-40-35
Services - not a change of placement determined by school officials
91-40-36(a)
Services – change of placement - determined by IEP team 91-40-36(b)
Services – alt. setting for weapons/ drugs – determined by IEP team 91-40-36(c)
Services – alt. setting for likelihood of injury – hearing officer approval 91-40-36(d)
School Officials – definition
91-40-33(b)
Short-term suspension by school personnel
72-991a(a)(1) 91-40-33 91-40-34
Stay-put is the disciplinary setting 72-993(a)
Terms defined – illegal drug, weapon
72-991a(g)
DUE PROCESS HEARING
Amendment of complaint notice
72-972a(e)
Attorney’s fees 72-988(b)(12)
Appeal
Generally
72-974
Additional evidence
72-975(f)
Right of parent
72-988(b)(10)&(11)
Closed hearing unless parent requests open hearing
72-973(b)
Complaint notice – content
72-972a(1)(B)
February 2008
Appendix J, pg 3
Kansas Special Education Process Handbook
Due Process Hearing, continued
Complaint notice – required
72-972a(B)(2)
Cost of hearing paid by LEA
72-975(e)
Decision based on substantive grounds and FAPE
72-973(g)(1)
Decision based on procedural grounds
72-973(g)(2)
Decision rendered within 10 of close of hearing
72-973(h)
Discovery
72-975(d)
Due process rights at hearing
72-973(b)
Expedited due process hearing
72-993(b) *91-40-30
Extension of time
72-975(c)
Held at a time and place reasonably convenient to parent
72-973(b)
Notice of insufficiency
72-972a(b)(2)&(3)
Notice to state board required
91-40-28(e)
Pendent placement (Stay put)
72-973(d)(1)&(2)
Resolution session - required in 15 days when parent files
72-973(a)
time for resolution – 30 days
72-973(a)(4)
waiver of resolution session or mediation
72-973(a)(5)
written agreement and required content
72-973(a)(3)
Right of parent and school district to file 72-972a(a)(1) 72-988(b)(9) 91-40-28(a)
Right to file additional complaints (may be consolidated)
72-972a(f)
Response to a parent’s complaint notice
72-972a(c)(1)
Response from non-complaining party
72-972a(d)
Resolution meeting
91-40-28(f)
Time limit for hearing to begin – 35 days
72-973(c)
Time limit for completion of hearing
91-40-28(g)
Time limit to file – 2 years
72-972a(a)(1)(A)
Time limit to file – 2 years – exceptions
72-972a(b)
Selection of hearing officer – procedure 91-40-28(d)
DUE PROCESS HEARING OFFICER
Administration of oaths for testimony
72-975(a)
Appointment of hearing officer
72-973a
Authority of State Board to establish qualifications and maintain list 72-963a(b)&(c)
Disqualification of hearing officer
72-973(f)
Issuance of subpoenas
72-975(b)
Qualifications of hearing officer
72-973(e) 91-40-29(b)
EARLY CHILDHOOD
Early intervention services
91-40-2(c)
FAPE required by 3
rd
birthday 91-40-2(b)
IFSP used as an IEP
72-987(a)(2)(A) 91-40-16(c)
Transition planning conference 91-40-2(b)(3)
EARLY INTERVENING SERVICES
Annual report required/content 72-965(c)(3)
Educational and behavioral evaluations, supports and services 72-965(c)(2)(B)
Professional development for teachers/staff 72-965(c)(2)(A)
Use of up to 15% of federal funds
72-965(c)(1)
February 2008
Appendix J, pg 4
Kansas Special Education Process Handbook
EDUCATION ADVOCATE
Generally
91-40-24
State board authority regarding qualifications, training and selection
72-963c
Definition
72-962(o)
EVALUATION
Generally
72-986 91-40-8
Assessment in all areas of suspected exceptionality 72-986(c)(2)
Consent of parent required
72-986(a)(5)
Consent of parent for evaluation is not consent for services 72-986(a)(5)
Eligibility
Classification by category of disability not required 91-40-10(h)
Determination of 91-40-8(a) 91-40-10
Determined by team of qualified professionals and parent 72-986(e)(1)
Developmental Delay
Exclusionary factors 72-986(f) 91-40-10(c)
Information from a variety of sources required 91-40-10(d)(1)
Information to be documented and considered 91-40-10(d)(2)
Learning disability eligibility requirements
91-40-11(b)(1)
Evaluation report
Content 91-40-10
Copy to parent 72-986(e)(2) 91-40-10(b)
Learning disability requirements 91-40-10(e)
Exclusionary factors 72-986(f) 91-40-10(c)
Initiated by parent or school
72-986(a)(2)
Learning disabilities
Eligibility 91-40-11(b)(1)
Evaluation team requirements 91-40-11(a)
Exclusionary factors
91-40-11(b)(2)
Notice required 72-986(b)
Parent refusal to consent or failure to respond – due process not required 72-986(a)(6)
Procedures – required 72-986(b)&(c) 91-40-9
Required before provision of special education services *72-986(a)(1) 91-40-8(b)(3)
Required before terminating eligibility
72-986(l)
Review of existing data
72-986(i)&(k) 91-40-8(c)(1)
Screening not an evaluation
72-986(a)(4)
Time to complete – 60 school days
91-40-8(f)
Exceptions to time to complete
91-40-8(g)
Time to complete/implement IEP from date of identification – 30 days 91-40-8(h)
Terminating services – reevaluation required and exceptions 91-40-10(g)
EXCESS COSTS
72-983
EXPEDITED DUE PROCESS HEARING
72-993(b) 91-40-30
EXTENDED SCHOOL YEAR
Availability
91-40-3(e)
Definition
91-40-1(x)
FACILITIES
–
COMPARABLE AND AGE APPROPRIATE
91-40-52(d)
February 2008
Appendix J, pg 5
Kansas Special Education Process Handbook
FREE APPROPRIATE PUBLIC EDUCATION (FAPE)
Definition 91-40-1(z)
Doctor referral to institution outside home district 72-966(b)
Hearing aids and surgically implanted medical devices – function checks
91-40-3(f)
Incarcerated, children who have been - See this index
Nonacademic and extracurricular services – opportunity to participate 91-40-3(b)
Physical education 91-40-3(c)
Private schools – See, this index
Not required after graduation or aging out 91-40-2(g)
Required 72-966(a)(2) 91-40-2(a)
Required even when child is advancing from grade to grade 91-40-2(d)
Required not later than 3
rd
birthday 91-40-2(b)(1)
Services based on need, not area of exceptionality 91-40-2(e)
Services implemented within 10 school days of consent 91-40-16(b)(2)
State Board responsibility
all education programs for exceptional children 72-966(c)(2)
programs administered by other state agencies 72-966(c)(2)
responsibility of other state agencies 72-966(c)(3)
state interagency agreements/disputes 72-966(d)
Suspended or expelled students 72-966(a)(2)
FUNDS AND FUNDING
Categorical aid
72-978(b)(4)
Computation of amount of state aid for special education
72-978(a)
Contract services to the Kansas Juvenile Correctional Complex excepted 72-978(e)
Excess costs
72-983
Maintenance of exceptional child at place other than residence of child
72-978(b)(3)
Overpayments
72-979(a)
Payments deposited in general fund
72-979(a)
Payments determined by State Board
72-979(a)
Reimbursement of districts under an interlocal agreement
72-978(c)
Reimbursement of districts under a cooperative agreement
72-978(d)
School district - eligibility to receive
91-40-52
State board responsible for allocation/distribution of state and federal funds 72-965(a)
Transportation of exceptional children
72-978(b)(2)
Travel allowances paid to special teachers
72-978(b)(1)
Underpayments
72-979(a)
GENERAL EDUCATION INTERVENTIONS
(Also see – Child Find)
Conditions of referral
91-40-7(c)(2)
Required 91-40-7(c)(1)
GIFTED
Credit for college study
91-40-3(h)
Discipline protections do not apply 91-40-34(c)
Private school provisions apply 91-40-45(c) & 91-40-43(a)
Work at individual rate or test out of course work 91-40-3(g)
February 2008
Appendix J, pg 6
Kansas Special Education Process Handbook
GRADUATION
Eligibility for graduation and diploma same as general education 91-40-2(g)(2)&(5)
FAPE not required after graduation 91-40-2(g)
IEP goals may be other than graduation 91-40-2(g)(3)
Progress monitored annually and recorded on transcript 91-40-2(g)(4)
Reevaluation not required
72-986(l)(2)
IEP – Individualized Education Program
Accessible to providers 91-40-16(b)(5)
Amendment of IEP
72-987(b)(4)
Considerations – required 72-987(d) 91-40-18
Content of IEP
72-987(c)
Copy of IEP to be given to parent at no cost 91-40-18(d)
Developed and modified by IEP team
72-987(b)(1)
Duplication of information not required 72-987(c)(9)
Goals may be other than high school graduation 91-40-2(g)(3)
IFSP may serve as IEP
72-987(a)(2)(A) 91-40-16(c)
In effect at beginning of school year 91-40-16(b)(3)
In effect before services are provided 91-40-16(b)(1)
Liability – good faith effort required
91-40-19
Meeting
Agency responsible for initiating and conducting 91-40-16(a)
Alternative means of participation 72-987(b)(1) 91-40-17(c)
Conducting the meeting without the parent 91-40-17(e)
Excusing attendance - members responsibility being discussed 72-987(b)(3)
Excusing attendance - members responsibility not being discussed 72-987(b)(2)
Invitation to student when considering transition
91-40-17(f)
Invitation to representative of outside transition service agency 91-40-17(g)
Interpreters/other means of insuring parents understand discussions 91-40-17(d)
Notice in writing 10 days prior to meeting
91-40-17(a)(2)
Notice, required content
91-40-17(b)
Parent’s right to an opportunity to participate 91-40-17(a)
Placement – meetings to discuss
91-40-21(d)
Schedule at mutually agreed time and place 91-40-17(a)(1)
Providers informed of responsibilities and accommodations in IEP 91-40-16(b)(5)
Review and revision – required annually 72-987(f)
Team
Invitation to Part C Coordinator 72-987(a)(2)(B)
Individuals invited due to knowledge or special expertise 91-40-17(j)
Member may serve multiple roles on team, if qualified 91-40-17(i)
Regular Education Teacher – Role 72-987(e) 91-40-17(h)
Transfer of rights statement
91-40-18(e)
INCARCERATED – children who have been
FAPE not required – when
91-40-2(f)
FAPE required – when 91-40-5(a)
FAPE for children in state juvenile correctional facility 91-40-5(b)
FAPE for children in state adult correctional facility 91-40-5(c)
February 2008
Appendix J, pg 7
Kansas Special Education Process Handbook
INDEPENDENT EDUCATIONAL EVALUATION
91-40-12
INTERAGENCY AGREEMENTS – RESOLUTION OF DISPUTES
91-40-53
LEAST RESTRICTIVE ENVIRONMENT
Generally
72-976(a)
Age appropriate classrooms
91-40-21(h)
Continuum of alternative educational placements available 91-40-21(b)
Determined by team – including parents
91-40-21(c)(1)(A) & 91-40-21(c)(2)
Modifications for incarcerated students 91-40-5(a)(2) 91-40-5(b)(2) 91-40-5(c)(4)
Nonacademic and extracurricular activities
91-40-21(i)
Placement – See, this index
Required 91-40-21(a)
Separate facility – comparable and age appropriate
91-40-21(k)
Specialized or residential program
91-40-21(j)
MATERIAL CHANGE IN SERVICES
Consent for
72-988(b)(6)
Definition 91-40-1(mm)
MEDIATION
Authority of State Board to establish qualifications/list of mediators 72-963a(b)
Procedures 72-996
Qualifications of mediators
91-40-29(a)
Right of parent and school to request 91-40-28(a)
MEDICATION –
may not be required for attendance or evaluation 72-966(e)
MEETINGS
Defined
91-40-25(a)(1) and 91-40-25(e)
Opportunity to participate in meetings 91-40-25(b)
MODEL FORMS
72-988(c)
NOTICE
Content of prior written notice 72-990
91-40-26(a)
IEP meeting 10 days prior to meeting 91-40-17(a)(2)
Initial evaluation – required 72-986(b)
Initiation or change to identification, evaluation, placement or FAPE 72-988(b)(2)
Low cost legal services notice upon request
91-40-26(e)
Native language requirement – when 72-988(b)((3) 91-40-26(b)&(c)
Parents rights required - when
72-988(d)&(e) 91-40-26(d)
PARENTS RIGHTS
Attorney’s fees
72-988(b)(12)
Biological or adoptive parent as primary decision maker 91-40-27(c)
Consent – when 72-988(b)(6) 91-40-27
Due Process Hearing and appeal 72-988(b)(4)&(9)&(10)&(11)
Examine educational records
72-988(b)(1)
Member of any group making placement decisions 72-988(b)(7)
Notice
Prior written, before initiation/change of ID/EVAL/Placement/FAPE 72-988(b)(2)
Procedural Safeguards 72-988(d)&(e)
Request services for a child enrolled in private school
*72-5393
91-40-43(b)
Stay put during due process hearing 72-988(b)(8)
February 2008
Appendix J, pg 8
Kansas Special Education Process Handbook
PLACEMENT
Criteria for placement 91-40-21(e)
Definition 91-40-1(t)
Potential harmful effects 91-40-21(g)
See in this index, Least Restrictive Environment
Substantial change in placement
Stay-Put
POWERS AND DUTIES OF LEA
Contract with another district for special education
72-967(a)(3)
Contract with private institution in or out of state
72-967(a)(5)
Cooperative agreements with other schools
72-967(a)(4)
Furnish transportation – or room and board
72-967(a)(6)
Provide information required by state board
72-971(b)
Provide special education in schools and other settings 72-967(a)(1)&(2)
Provide special education that meets state standards
72-967(b)
PRIVATE SCHOOL
Federal funds – allocation, calculation, and expenditure 91-40-44
General state requirements 72-5393
Child count 91-40-42(b)
Child find 91-40-42(a)
Consultation 91-40-42a
Definitions 72-5392
Due Process rights 91-40-46
Funds and equipment – use of 91-40-48
Gifted
IEP
91-40-45(c)
Services 91-40-43(a)
IEP required – when 91-40-45(c)
Mediation rights 91-40-46
Non-resident students not entitled to services under state law 91-40-43(d)
Personnel standards
91-40-43(e)
Placement by parents to obtain FAPE
91-40-41
Placement by public school
72-966(a)(2)
Referral by public school – FAPE required 72-966(a)(2) 91-40-22
Services
Gifted children 91-40-43(a)
Parent’s right to request
91-40-43(b)
When required
91-40-43(c)
Services plan 91-40-45(a) & (b)
Transportation 72-5393 *91-40-47
REEVALUATION
Consent for and exception for failure to respond 72-986(j)
Required – when
72-986(h)
Termination of special education
72-986(l)
February 2008
Appendix J, pg 9
Kansas Special Education Process Handbook
RECORDS
Confidentiality
91-40-50(b)
Parent’s right to examine 72-988(b)(1)
91-40-25(a) 91-40-50(b)
Transfer of records when child changes school 72-997
Transmission to law enforcement authorities – when 72-995(b)
REGULATIONS
Suspension of regulations contrary to federal law 72-963(b)
SUBSTANTIAL CHANGE IN PLACEMENT
Consent for
72-988(b)(6)
Definition 91-40-1(sss)
STATE BOARD
Authority - acceptance of grants, funds or property for special education 72-965(b)
Authority - dispute resolution 72-963a(a)
Authority - education advocate 72-963c
Authority - fund allocation and distribution 72-965(a)
Authority - pilot programs 72-963(c)
Authority - qualification of hearing officers and mediators 72-963a(b)
Authority - State Regulations 72-963(b)
Authority - State Plan 72-963(a)
See, FAPE, this index – State board responsibility
STATE IMPROVEMENT PLAN
72-984
STATE INSTITUTIONS
72-962(e) *72-970 72-976(b) 91-40-4
STAY PUT
Generally *72-973(d)(1)&(2)
91-40-31
Disciplinary stay-put is the disciplinary setting 72-993(a)
Infant and toddler program – non-application of stay-put
91-40-31(c)
Right of parent 72-988(b)(8)
State Review Officer agreement with parent
91-40-31(b)
TECHNICAL ASSISTANCE FROM STATE DEPARTMENT
72-981
TERMINATION OF ELIGIBILITY
Notice required 91-40-10(g)(3)
Reevaluation required, unless due to age or graduation 72-986(l) 91-40-10(g)
Summary of academic achievement 72-986(m)
TRANSFER OF RIGHTS AT AGE 18
72-989
TRANSFER STUDENTS
Intra-state transfers with IEP
72-987(g)(1)
Inter-state transfers with IEP
72-987(g)(2)
TRANSITION SERVICES
Definition 91-40-1(uuu)
IEP requirement 72-987(c)(8)
Not required for some incarcerated students – when
91-40-5(c)(2)(B)
TRANSPORTATION
Authority to provide
72-967(a)(6)
-
NOTES
-
1. Numbers beginning with “72” are statutes.
Numbers beginning with “91” are regulations
2. * Suggested most helpful source
