March 12, 1999 federal register · Federal Register/Vol. 64, No. 48/Friday, March 12, 1999/Rules...

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Department ofEducation34 CFR Parts 300 and 303Assistance to States for the Education ofChildren With Disabilities and the EarlyIntervention Program for Infants andToddlers With Disabilities; FinalRegulations

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12406 Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

DEPARTMENT OF EDUCATION

34 CFR Parts 300 and 303

RIN 1820–AB40

Assistance to States for the Educationof Children With Disabilities and theEarly Intervention Program for Infantsand Toddlers With Disabilities

AGENCY: Office of Special Education andRehabilitative Services, Department ofEducation.ACTION: Final regulations.

SUMMARY: The Secretary issues finalregulations for the Assistance to Statesfor Education of Children withDisabilities program under Part B of theIndividuals with Disabilities EducationAct (IDEA; Part B) and the EarlyIntervention Program for Infants andToddlers with Disabilities under Part Cof the Act (Part C). These regulations areneeded to implement changes made toPart B by the IDEA Amendments of1997; make other changes to the part Bregulations based on relevant,longstanding policy guidance; andrevise the requirements on Statecomplaint procedures under both thePart B and Part C programs.DATES: These regulations take effect onMay 11, 1999. However, compliancewith these regulations will not berequired until the date the State receivesFY 1999 funding (expected to beavailable for obligation to States on July1, 1999) under the program or October1, 1999, whichever is earlier. Affectedparties do not have to comply with theinformation collection requirementscontained in the regulations listedunder the Paperwork Reduction Act of1995 section of this preamble until theDepartment publishes in the FederalRegister the control number assigned bythe Office of Management and Budget(OMB) to these information collectionrequirements. Publication of the controlnumbers notifies the public that OMBhas approved these informationcollection requirements under thePaperwork Reduction Act of 1995.FOR FURTHER INFORMATION CONTACT:Thomas Irvin or JoLeta Reynolds (202)205–5507. Individuals who use atelecommunications device for the deaf(TDD) may call (202) 205–5465.

Individuals with disabilities mayobtain this document in an alternateformat (e.g., Braille, large print,audiotape, or computer diskette) onrequest to Katie Mincey, Director of theAlternate Formats Center. Telephone:(202) 205–8113.SUPPLEMENTARY INFORMATION: OnOctober 22, 1997, the Secretary

published a notice of proposedrulemaking (NPRM) in the FederalRegister (62 FR 55026) to amend theregulations governing the Assistance toStates for Education of Children withDisabilities program (part 300), thePreschool Grants for Children withDisabilities program (part 301), and theEarly Intervention Program for Infantsand Toddlers with Disabilities (part303). A key purpose of the NPRM wasto implement changes made by theIDEA Amendments of 1997 (Pub. L.105–17).

Since that time, the Department haspublished final regulations for both thePreschool Grants program (63 FR 29928,June 1, 1998) and the Early Interventionprogram for Infants and Toddlers withDisabilities (63 FR 18297, April 14,1998), to incorporate the requirementsadded to those programs by Pub. L. 105–17. On April 14, 1998, a document waspublished in the Federal Registerinviting comment on whether theregulations for the Early Interventionprogram for Infants and Toddlers withDisabilities should be further amended(63 FR 18297). (A subsequent documentreopening the comment period waspublished on August 14, 1998 (63 FR43866)).

The final regulations in thispublication are needed to conform theexisting regulations under Part B of theAct to the new statutory requirementsadded by Pub. L. 105–17, including (1)amending requirements under prior lawrelated to areas such as State and localeligibility, evaluation, andindividualized education programs(IEPs), and (2) incorporating newrequirements in the Act (e.g., thoserelating to discipline, performance goalsand indicators, participation of childrenwith disabilities in State and district-wide assessments, proceduralsafeguards notice, and mediation).

The regulations have also beenamended to incorporate relevantlongstanding interpretations of the Actthat have been addressed innonregulatory guidance in the past andare needed to ensure a more meaningfulimplementation of the Act and itsregulations for children withdisabilities, parents, and publicagencies. These interpretations arebased on the statutory provisions of theIDEA that were in effect prior to theIDEA Amendments of 1997 and thatwere not changed by thoseAmendments. Examples of provisions ofthe regulations that incorporate priorDepartment interpretations of the statuteinclude:

Section 300.7(c)(9)—recognizing thatsome children with attention deficit

disorder (ADD) may be identified underthe category of other health impairment;

Section 300.19—recognizing thatfoster parents may, under certaincircumstances and if permitted underState law, qualify as a ‘‘parent’;

Section 300.121(c)—recognizing thatif a child’s third birthday is in thesummer, the child’s IEP teamdetermines the date when services beginunder the child’s IEP or IFSP. (The teammust develop the IEP or IFSP by thechild’s third birthday.);

Section 300.122(a)(3)—recognizingthat graduation with a regular highschool diploma ends the child’seligibility under Part B;

Section 300.309—recognizing thatextended school year services must beprovided if necessary for the provisionof a free appropriate public education tothe child; and

Section 300.519—identifying whatconstitutes a change of placement fordisciplinary purposes under theseregulations.

In addition, changes have been madeto the requirements on State complaintprocedures in the regulations for Part B(§§ 300.660–300.662), and conformingchanges have been made in the Part Cregulations (§§ 303.510–303.512).

Analysis of Comments and ChangesIn response to the Secretary’s

invitation to comment on the NPRMpublished in the Federal Register onOctober 22, 1997 (62 FR 55026), about6,000 individuals, public agencies, andorganizations submitted written or oralcomments. An analysis of the publiccomments received, including adescription of the changes made in theproposed regulations since publicationof the NPRM, is published asAttachment 1 to these final regulations.The perspectives of individuals andgroups of parents, teachers, relatedservice providers, State and localofficials, individuals with disabilitiesand members of Congress were veryimportant in helping to identify wherechanges were necessary in the proposedregulations, and in formulating many ofthose changes. The detailed, thoughtfulcomments of so many individuals andorganizations clearly demonstrated ahigh level of commitment to makingsure that the IDEA and its regulationsmake a real difference in the day-to-dayeducation of our children. In light of thecomments received, a number ofsignificant changes are reflected in thesefinal regulations.

Effective Date of These RegulationsThese regulations take effect on May

11, 1999. As these regulations were notin effect at the time Federal fiscal year


12407Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules and Regulations

(FY) 1998 funds (funds for use duringschool year 1998–99) became availablefor obligation to States, compliance withthe requirements of these regulations,that are not statutory requirements orprovisions of pre-existing regulations,will not be mandatory for this grantyear. When either the FY 1998 fundsthat are unobligated by States andschool districts become carryover funds(October 1, 1999) or, if earlier, the Statereceives FY 1999 funding (expected tobe available for obligation to States July1, 1999) compliance with these finalregulations is required. This will enableall parties to become familiar with thenew regulations without requiringchanges that could interrupt school orprogram operations in the middle of agrant year. However, States and schooldistricts may adopt and use theseregulations when they are effective, andare encouraged, to the greatest extentpossible, to start to implement them assoon as possible during this school year.In any case, the statutory requirementsof the Individuals with DisabilitiesEducation Act Amendments of 1997(IDEA Amendments of 1997) are ineffect and must be complied withthroughout the 1998–99 school year. Inaddition, States and school districtsmust comply with all requirements ofthe Part 300 regulations that were ineffect at the beginning of this schoolyear unless inconsistent with the IDEAAmendments of 1997 or these finalregulations. Applications for grants forFY 1999 funds must be consistent withthe requirements of these finalregulations.

Most of the provisions of the IDEAAmendments of 1997 relating to Parts Band C of the Act have been in effectsince enactment, June 4, 1997, with afew provisions, such as the new Part Bprovisions concerning individualizededucation programs and thecomprehensive system of personneldevelopment, taking effect on July 1,1998. Therefore, States and schooldistricts already are familiar with thestatutory provisions of the IDEAAmendments of 1997 to which theymust comply.

Major Changes in the RegulationsThe following is a summary of the

major substantive changes from theNPRM in these final regulations:

1. General Changes• All notes in the NPRM related to

the sections or subparts covered in thesefinal regulations have been removed.The substance of any note that shouldbe required for proper implementationof the Act has been added to the text ofthese final regulations. Information in

notes considered to be directly relevantto the ‘‘Notice of Interpretation’’ on IEPrequirements has been added to the textof that notice in Appendix A to thesefinal regulations. The substance of anynote considered to provide clarifyinginformation or useful guidance has beenincorporated into the discussion of theapplicable comments in the ‘‘Analysisof Comments and Changes’’ (seeAttachment 1 to these final regulations).All other notes have been deleted.

• Appendix C in the NPRM (‘‘Noticeof Interpretation on IEPs) has beenredesignated as ‘‘Appendix A’’ in thesefinal regulations; and a new AppendixB—Index to IDEA Part B Regulationshas been added.

• Three attachments have also beenadded: Attachment 1—Analysis ofComments and Changes; Attachment2—Final Regulatory FlexibilityAnalysis; and Attachment 3—Tableshowing ‘‘Disposition of NPRM Notes inFinal Part 300 and 303 Regulations.’’However, these attachments will not becodified in the Code of FederalRegulations.

2. Changes in Subpart A—General• Proposed § 300.2 (Applicability of

this part to State, local, and privateagencies) has been revised to include‘‘public charter schools that are nototherwise included as local educationalagencies (LEAs) or educational serviceagencies (ESAs) and are not a school ofan LEA or ESA’’ and to specify that therules of Part 300 apply to all publicagencies in the State providing specialeducation and related services.

• Consistent with the generaldecision to not use notes in these finalregulations, proposed Note 1immediately preceding § 300.4 in theNPRM, (which included a list of termsdefined in specific subparts andsections of the regulations) has beendeleted and the terms included as partof an index to these regulations (seeAppendix B).

• The proposed definition of ‘‘childwith a disability’’ (§ 300.7(a)) has beenrevised to clarify that if a child with adisability needs only a related serviceand not special education, the child isnot eligible under this part; but if therelated service is considered to bespecial education under State standards,the child would be eligible.

• The proposed definition of ‘‘otherhealth impairment’’ (‘‘OHI’’), at§ 300.7(c)(9), has been amended to (1)add ‘‘attention deficit disorder’’ (ADD)and ‘‘attention deficit hyperactivitydisorder’’ (ADHD) to the list ofconditions that could render a childeligible under OHI, and (2) clarify that,with respect to children with ADD/

ADHD, the phrase ‘‘limited strength,vitality, or alertness’’ includes ‘‘a child’sheightened alertness to environmentalstimuli that results in limited alertnesswith respect to the educationalenvironment.’’

• The proposed definition of ‘‘Day’’(§ 300.9) has been retitled ‘‘Day;business day; school day,’’ anddefinitions of ‘‘business day’’ and‘‘school day’’ have been added.

• The proposed definition of‘‘educational service agency’’ (§ 300.10)has been revised to clarify that the term‘‘[i]ncludes entities that meet thedefinition of ‘‘intermediate educationalunit’’ in section 602(23) of IDEA as ineffect prior to June 4, 1997.’’

• The proposed definition of ‘‘generalcurriculum’’ in § 300.12 of the NPRMand the explanatory note following thatsection have been deleted. The term isexplained where it is used in § 300.347and in Appendix A regarding IEPrequirements.

• The proposed definition of ‘‘localeducational agency’’ (§ 300.18) has beenamended to clarify, consistent with newstatutory language concerning publiccharter schools, that the term includespublic charter schools that areestablished as an LEA under State law.

• The proposed definition of ‘‘nativelanguage’’ (§ 300.19) has been amendedto specify that (1) in all direct contactwith a child (including evaluation of thechild), the native language is thelanguage normally used by the child inthe home or learning environment, and(2) for an individual with deafness orblindness, or with no written language,the mode of communication is thatnormally used by the individual (suchas sign language, braille, or oralcommunication).

• The proposed definition of ‘‘parent’’has been amended to (1) add languageclarifying that the term means a naturalor adoptive parent of a child and aperson acting in the place of a parent(such as a grandparent or stepparentwith whom the child lives, or a personwho is legally responsible for the child’swelfare), and (2) permit States in certaincircumstances to use foster parents asparents under the Act unless prohibitedby State law.

• The proposed definition of ‘‘publicagency’’ (§ 300.22) has been amended toadd to the list of examples of a publicagency ‘‘public charter schools that arenot otherwise included as LEAs or ESAsand are not a school of an LEA or ESA’’,consistent with new statutory languageconcerning public charter schools.

• The proposed definition of ‘‘parentcounseling and training,’’ under thedefinition of ‘‘related services,’’(§ 300.24(b)(7)) has been amended to



add that the term also means ‘‘helpingparents to acquire the necessary skillsthat will allow them to support theimplementation of their child’s IEP orIFSP.’’

• The proposed definition of ‘‘specialeducation’’ (§ 300.26) has been amendedto add ‘‘travel training’’ as a specialeducation service and to include adefinition of the term.

3. Changes in Subpart B—State andLocal Eligibility

State Eligibility

• Proposed § 300.110 (Condition ofassistance) has been amended to moreexplicitly state what is required forcompliance with the State eligibilityrequirements.

• Proposed § 300.121 (FAPE) hasbeen amended to specify (1)requirements for providing FAPE forchildren with disabilities beginning atage 3; (2) that services need not beprovided during periods of removalunder § 300.520(a)(1) to a child with adisability who has been removed fromhis or her current placement for 10school days or less in that school year,if services are not provided to a childwithout disabiliities who has beensimilarly removed; (3) the standards thatare used to determine appropriateservices for children with disabilitieswho have been removed from theircurrent placement for more than 10school days in a school year; (4) thatLEAs must ensure that FAPE isavailable to any child with a disabilitywho needs special education andrelated services, even though the childis advancing from grade to grade; and(5) that the determination that a childwho is advancing from grade to grade iseligible under this part must be made onan individual basis by the group withinthe LEA responsible for makingeligibility determinations.

• Proposed § 300.122 (Exception toFAPE for certain ages) has beenamended to (1) specify situations inwhich the exception to FAPE forstudents with disabilities in adultprisons does not apply, and (2) makeclear that graduation from high schoolwith a regular diploma is a change inplacement requiring notice inaccordance with § 300.503. (A relatedchange to § 300.534(c) makes clear thata reevaluation is not required forgraduation with a regular high schooldiploma or termination of eligibility forexceeding the age eligibility for FAPEunder State law.)

• Proposed § 300.125 (Child find) hasbeen revised to (1) clarify that the childfind requirements apply to highlymobile children (e.g., migrant and

homeless children), and to children whoare suspected of being a child with adisability under this part, even thoughthey are advancing from grade to grade,and (2) add needed clarifications ofrequirements relating to child find forchildren from birth through age 2 whenthe SEA and lead agency for the Part Cprogram are different.

• Proposed § 300.136 (Personnelstandards) has been amended asfollows:

(1) The proposed definition of‘‘profession or discipline’’ in§ 300.136(a)(3) has been revised toclarify that the term ‘‘specificoccupational category’’ is not limited totraditional categories.

(2) The policies and procedures inproposed § 300.136(b) have beenexpanded to provide that (A) each Statemay determine the specific occupationalcategories required in the State andrevise or expand them as needed; (B)nothing in these regulations requires aState to establish a specific trainingstandard (e.g., a masters degree); and (C)a State with only one entry-levelacademic degree for employment ofpersonnel in a specific profession ordiscipline may modify that standard, asnecessary, to ensure the provision ofFAPE to all eligible children.

(3) Proposed § 300.136(g) (State policyto address shortage of personnel) hasbeen amended by adding provisions that(A) if a State has reached its establisheddate for a specific profession ordiscipline, it may still exercise theoption in redesignated § 300.136(g)(1);and (B) each State must have amechanism for serving children withdisabilities if instructional needs exceedavailable (qualified) personnel,including addressing those shortages inits comprehensive system of personneldevelopment if the shortages continue.

• Proposed § 300.138 (Participationin assessments) has been amended torequire appropriate modifications in theadministration of the assessments, ifnecessary.

• Proposed § 300.142 (Methods ofensuring services) has been amended asfollows:

(1) Proposed § 300.142(b) (Obligationof noneducational public agencies) hasbeen revised to specify that thoseagencies may not disqualify an eligibleservice for Medicaid reimbursementbecause the service is provided in aneducational context.

(2) Proposed § 300.142(b)(2)(Reimbursement for services bynoneducational public agency) has beenrevised to require that an LEA mustprovide services in a timely manner ifa public noneducational agency fails toprovide or pay for the services.

(3) Proposed § 300.142(e) has beenadded to make clear that a publicagency may use a child’s publicinsurance to provide or pay for servicesrequired under Part B, with certainlimitations. The public agency (A) maynot require parents to sign up for publicinsurance in order for the child toreceive FAPE, (B) may not requireparents to incur out-of-pocket expensesin order to file the claim for servicesunder Part B, and (C) may not use thechild’s benefits under a publicinsurance program if that use woulddecrease available lifetime coverage orany other insured benefit, result in thefamily paying for services that wouldhave been covered by the publicinsurance and are required for the childoutside of the time the child is inschool, increase premiums or lead todiscontinuation of services or risk lossof eligibility for home and community-based waivers due to aggregate health-related expenditures.

(4) The proposed provisions onchildren covered by private insurancehave been redesignated as § 300.142(f),and revised to provide that a publicagency (A) may access a parent’s privateinsurance proceeds only if the parentprovides informed consent, and (B)must obtain consent each time itproposes to access those proceeds, andinform the parents that their refusal topermit such access does not relieve thepublic agency of its responsibility toprovide all required services at no costto the parents.

(5) A new § 300.142(g) has been addedto permit the use of part B funds toensure FAPE for (A) the cost of requiredservices under these regulations if theparents refuse consent to use public orprivate insurance, and (B) the costs ofusing the parents’ insurance, such aspaying deductible or co-pay amounts.

(6) Proposed § 300.142(f) (Proceedsfrom public or private insurance) hasbeen redesignated as paragraph (h), andrevised to clarify that (A) the insuranceproceeds received by a public agency donot have to be returned to theDepartment or dedicated to the part Bprogram; and (B) funds expended by apublic agency from reimbursements ofFederal funds will not be consideredState or local funds for purposes of Stateor local maintenance of effort.

(7) A new § 300.142(i) has been addedto specify that nothing in Part B shouldbe construed to alter the requirementsimposed on a State medicaid agency, orany other agency administering a publicinsurance program by Federal statute,regulations or policy under Title XIX orTitle XXI of the Social Security Act, orany other public insurance program.



• Proposed § 300.148 (Publicparticipation) has been amended toclarify that a State will be considered tobe in compliance with this section if theState has subjected the policy orprocedure to a public participationprocess that is required by the State forother purposes and is comparable to andconsistent with the requirements of§§ 300.280–300.284.

• Proposed § 300.154 (Maintenance ofState financial support) has beenamended to clarify that maintenance ofState financial support can bedemonstrated on either a total or per-capita basis.

LEA Eligibility—Specific Conditions

• Proposed § 300.231 (Maintenance ofeffort) has been amended to set out thestandard for meeting the maintenance ofeffort requirement.

• Proposed § 300.232 (Exception tomaintenance of effort) has beenamended to specify that the exceptionrelated to voluntary retirement orresignation of personnel must be in fullconformity with existing school boardpolicies, any applicable collectivebargaining agreement, and applicableState statutes.

• Proposed § 300.234 (Schoolwideprograms under title I of the ESEA) hasbeen amended to make clear that anLEA that uses Part B funds inschoolwide program schools mustensure that children with disabilities inthose schools receive services inaccordance with a properly developedIEP and are afforded all applicablerights and services guaranteed under theIDEA.

4. Changes in Subpart C—Services

Free Appropriate Public Education

• Proposed § 300.300 (Provision ofFAPE) has been amended to specify thatthe State must ensure that the child findrequirements of § 300.125 areimplemented by public agenciesthroughout the State. Proposed§ 300.300 also has been amended tospecify that (1) the services provided tothe child under this part address all ofthe child’s identified special educationand related services needs, and (2) arebased on the child’s identified needsand not the child’s disability category.

• Proposed § 300.301 (FAPE—methods and payments) has beenamended to add a provision requiringthat the State must ensure that there isno delay in implementing a child’s IEP,including any case in which thepayment source for providing or payingfor the special education and relatedservices to the child is beingdetermined.

• Proposed § 300.308 (Assistivetechnology) has been amended to clarifythat, on a case-by-case basis, the use ofschool-purchased assistive technologydevices in a child’s home or in othersettings is required if the child’s IEPteam determines that the child needsaccess to those devices in order toreceive FAPE.

• Proposed § 300.309 (Extendedschool year (ESY) services) has beenamended to specify that (1) ESY servicesmust be provided only if a child’s IEPteam determines, on an individual basis,that the services are necessary for theprovision of FAPE to the child, and (2)an LEA may not limit ESY services toparticular categories of disability, orunilaterally limit the type, amount, orduration of those services.

• A new § 300.312 (Children withdisabilities in public charter schools)has been added to (1) specify that thesechildren and their parents retain allrights under these regulations, and thatcompliance with part B is requiredregardless of whether a public charterschool receives Part B funds; and (2)address the responsibilities of thefollowing: public charter schools thatare LEAs; LEAs if the charter school isa school in the LEA; and the SEA if thecharter school is not an LEA or a schoolof an LEA.

• A new § 300.313 (Childrenexperiencing developmental delays) hasbeen added to (1) clarify thecircumstances under which thedesignation ‘‘developmental delay’’ maybe used by a State or an LEA in theState; (2) permit a State or LEA thatelects to use that term to also use oneor more of the disability categoriesdescribed in § 300.7 for any child aged3 through 9 who has been determinedto have a disability and who, by reasonthereof, needs special education; and (3)permit a State to adopt a commondefinition of developmental delay underParts B and C of the Act.

Individualized Education Programs(IEPs)

• Proposed § 300.341 (retitled‘‘Responsibility of SEA and other publicagencies for IEPs) has been revised to (1)consistent with provisions regardingparentally-placed children withdisabilities in religious or other privateschools (see changes to Subpart D), and(2) to clarify that the section also appliesto the SEA if it provides direct servicesto children with disabilities as well asother public agencies that providespecial education either directly, bycontract, or through other means.

• Proposed § 300.342(b) has beenrevised to provide that the child’s IEPmust be accessible to each of the child’s

teachers and service providers and thatteacher and service provider withresponsibility for its implementation beinformed of his or her specificresponsibilities under the IEP and of thespecific accommodations,modifications, and supports that mustbe provided for the child under that IEP.

• Proposed § 300.342(d) has beenrevised to state that all IEPs developed,reviewed, or revised on or after July 1,1998 must meet the requirements of§§ 300.340–300.350.

• Proposed § 300.343 (IEP meetings)has been revised to clarify that specialeducation and related services must beavailable to the child within areasonable period of time followingreceipt of parent consent to an initialevaluation.

• Proposed § 300.344 (IEP Team) hasbeen amended to (1) clarify that thedetermination of knowledge or specialexpertise of ‘‘other individuals’’ under§ 300.344(a)(6) is made by the party whohas invited the individual to be amember of the IEP team; and (2) permita public agency to designate anotherpublic agency member of the IEP teamto also serve as the agencyrepresentative, if the criteria in§ 300.344(a)(4) are satisfied.

• Proposed § 300.345 (Parentparticipation) has been revised to clarifythat (1) the public agency’s notice toparents about the IEP meeting mustinform them about the ability of eitherparty to invite individuals withknowledge or special expertise to themeeting, consistent with § 300.344(a)(6)and (c); and (2) the agency must give theparents a copy of their child’s IEP.

• Proposed § 300.346 (Development,review, and revision of IEP) has beenrevised to clarify that, in developingeach child’s IEP, the IEP team also mustconsider ‘‘as appropriate, the results ofthe child’s performance on any generalState or district-wide assessmentprograms.

• Proposed § 300.347 (Content of IEP)has been amended to (1) clarify that‘‘general curriculum’’ is the samecurriculum as for nondisabled children,and (2) delete the requirement that, ifthe IEP team determines that servicesare not needed in one or more of theareas specified in the definition oftransition services (§ 300.29), the IEPmust include a statement to that effectand the basis upon which thedetermination was made.

• Proposed § 300.350 (Children withdisabilities in religiously-affiliated orother private schools) has been deleted.A new § 300.455(c) has been added tospecify LEA responsibilities regardingthe development of ‘‘services plans’’ forprivate school children.



• Proposed § 300.351 (IEP—accountability) has been redesignated as§ 300.350, and revised to provide that(1) each public agency must make agood faith effort to assist the child toachieve the goals and objectives orbenchmarks listed in the IEP; (2) a Stateor public agency is not prohibited fromestablishing its own accountabilitysystems regarding teacher, school, oragency performance; and (3) ‘‘[n]othingin this section limits a parent’s right toask for revisions of the child’s IEP or toinvoke due process procedures if theparent feels that efforts required inparagraph (a) of this section are notbeing met.’’

Direct Services by SEA

• Proposed § 300.360 (Use of LEAallocation for direct services) has beenamended to clarify that (1) if an LEAdoes not elect to apply for its Part Bfunds, the SEA must use those funds toensure that FAPE is available to alleligible children residing in thejurisdiction of the LEA; (2) if the localallotment is not sufficient to ensureFAPE to all eligible children within theLEA, the SEA must ensure that FAPE isavailable to those children; and (3) theSEA may use whatever funding sourcesare available in the State to ensure thatall eligible children within each LEAreceive FAPE (see § 300.301).

• Proposed § 300.370 (Use of SEAallocations) has been amended to clarifythat, of the Part B funds it retains forother than administration, the SEA mayuse the funds either directly, ordistribute them to LEAs on acompetitive, targeted, or formula basis.

5. Changes in Subpart D—Children inPrivate Schools

Children With Disabilities in PrivateSchools Placed or Referred by PublicAgencies

• Proposed § 300.401(‘‘Responsibility of SEA’’) has beenrevised to provide that a child with adisability placed by a public agency asthe means of providing FAPE to thechild must receive an education thatmeets the standards that apply to theSEA and LEA.

Children With Disabilities Enrolled byTheir Parents in Private Schools WhenFAPE Is at Issue

• Proposed § 300.403 (‘‘Placement ofchildren by parent if FAPE is at issue’’)has been revised to clarify that (1) theprovisions of §§ 300.450–300.462 applyto children with disabilities placedvoluntarily in private schools, eventhough the public agency made FAPEavailable to those children; (2) private

school placement by the parents mustbe appropriate (as determined by a courtor hearing officer) in order to be eligiblefor reimbursement, (3) a parentalplacement does not need to meet Statestandards that apply to educationprovided by the SEA and LEAs in orderto be appropriate; and (4) thereimbursement provisions of § 300.403also apply if parents of a child with adisability who previously receivedspecial education and related servicesunder the authority of a public agencyenroll the child in a private preschoolprogram.

Children With Disabilities Enrolled byTheir Parents in Private Schools

• Proposed § 300.451 (‘‘Child find forprivate school children withdisabilities’’) has been revised to specifythat (1) child find activities for thosechildren must be comparable to childfind activities for children withdisabilities in public schools, and (2)LEAs must consult with representativesof parentally-placed private schoolstudents with disabilities on how toconduct child find activities for thatpopulation in a manner that iscomparable to those activities for publicschool children.

• Proposed § 300.452 (retitled‘‘Provision of services—basicrequirement’’) has been amended to adda new provision related to the SEA’sresponsibility for ensuring that aservices plan is developed for eachprivate school child with a disabilitywho has been designated to receiveservices under these regulations.

• Proposed § 300.453(‘‘Expenditures’’) has been revised tospecify that (1) each LEA must consultwith representatives of private schoolchildren with disabilities to decide howto conduct the annual count of thenumber of those children; (2) the LEAmust ensure that the count is conductedby specified dates, and that the data areused to determine the amount of Part Bfunds to be earmarked for private schoolchildren in the next fiscal year; (3) thecosts of child find activities for privateschool children with disabilities maynot be considered in determiningwhether the LEA met the expendituresrequirement of this section; and (4)SEAs and LEAs are not prohibited fromproviding services to private schoolchildren with disabilities beyond thoserequired by this part, consistent withState law or local policy.

• Proposed § 300.454 (Servicesdetermined) has been revised to specifythat each LEA must (1) consult withprivate school representatives on whereservices will be provided; (2) conductmeetings to develop, review, and revise

a ‘‘services plan,’’ in accordance with§ 300.455, for each private school childwith a disability who has beendesignated to receive services under thispart; and (3) ensure that a representativeof the private school participates in themeetings.

• Proposed § 300.455 (Servicesprovided) has been revised to specifythat (1) each private school child witha disability who has been designated toreceive Part B services must have aservices plan, and (2) the plan must, tothe extent appropriate, meet therequirements of § 300.347 with respectto the services provided, and bedeveloped, reviewed and revisedconsistent with §§ 300.342-300.346.

• Proposed § 300.456 (Location ofservices) has been revised to make clearthat, while transportation might beprovided between a child’s home orprivate school and a service site ifnecessary for the child to benefit fromor participate in the services offered,LEAs are not required to providetransportation between the child’s homeand private school.

• Proposed § 300.457 (Complaints)has been revised to specify that the dueprocess procedures under this partapply to child find activities for privateschool children with disabilities,including evaluations.

6. Changes in Subpart E—ProceduralSafeguards

Due Process Procedures for Parents andChildren

• Proposed § 300.500 (Generalresponsibility of public agencies;definitions) has been amended asfollows:

(1) The proposed definition of‘‘consent’’ (300.500(b)(1)) has beenrevised to clarify that a revocation ofconsent does not have a retroactiveeffect if the action consented to hasalready occurred.

(2) The proposed definition of‘‘evaluation’’ (§ 300.500(b)(2)) has beenrevised by deleting the last sentence ofthe definition, to ensure that evaluationsmay include a review of a child’sperformance on a test or proceduresused for all children in a school, grade,or class.

• Proposed § 300.501 (Opportunity toexamine records; parent participation inmeetings) has been amended to (1)delete the word ‘‘all’’ from§ 300.501(a)(2); (2) delete the definitionof ‘‘meetings’’ but provide that the termdoes not include certain conversationsor preparation for a meeting and (3)clarify that each public agency must‘‘make reasonable efforts’’ related toparental participation in group



discussions relating to the educationalplacements of their child.

• Proposed § 300.502 (Independenteducational evaluation (IEE)) has beenamended to (1) add that, upon requestfor an IEE, parents must be giveninformation about agency criteriaapplicable for IEEs; (2) clarify, in§ 300.502(e)(1), that the criteria underwhich an IEE is obtained must be thesame as that of the public agency ‘‘to theextent such criteria are consistent withthe parent’s right to an IEE,’’ and (3)explain that an explanation of parentdisagreement with an agency evaluationmay not be required and the publicagency may not delay either providingthe IEE at public expense or,alternatively, initiating a due processhearing.

• Proposed § 300.503 (Prior notice bythe public agency; content of notice) hasbeen amended to delete the provision in§ 300.503(b)(8) (related to informingparents about the State complaintprocedures). (See § 300.504(b).)

• Proposed § 300.504 (Proceduralsafeguards notice) has been amended toadd State complaint procedures under§§ 300.660-300.662 to the itemsincluded in the notice.

• Proposed § 300.505 (Parentalconsent) has been amended to (1) referto ‘‘informed parent consent;’’ (2) add‘‘all reevaluations’’ to the list of actionsrequiring consent (see§ 300.505(a)(1)(i)); (3) delete paragraph(a)(1)(iii), and add a new paragraph(a)(3) to specify that parental consent isnot required before reviewing existingevaluation data as a part of anevaluation or reevaluation or foradministering a test used with allchildren unless consent is required ofall parents; and (4) specify, in paragraph(e), that a public agency may not use aparental refusal to consent to oneservice or benefit under paragraphs (a)and (d) to deny the parent or childanother service or benefit.

• Proposed § 300.506 (Mediation) hasbeen revised to (1) add a new§ 300.506(b)(2) to specify that themediator must be selected from a list ofmediators on a random basis (e.g., arotation), or that both parties areinvolved in selecting the mediator andagree with the selection of theindividual who will mediate; and (2)add a new § 300.506(c)(2) to clarify thatpayment for mediation services by theState does not make the mediator anemployee of the State agency forpurposes of impartiality.

• Proposed § 300.507 (Impartial dueprocess hearing; parent notice) has beenamended to clarify that, in the contentof the parent notice, the description ofthe nature of the problem applies to the

action ‘‘refused’’ as well as thatproposed by the public agency.

• Proposed § 300.509 (Hearing rights)has been revised to clarify that, inparagraph (a)(3), the disclosure isrequired at least 5 ‘‘business’’ daysbefore the hearing.

• Proposed § 300.510 (Finality ofdecision; impartiality of review) hasbeen amended to (1) make the referenceto written findings and decision in§ 300.510(b)(2)(vi) consistent with§ 300.509(a)(5), and (2) allow the choiceof ‘‘electronic or written findings of factand decision.’’

• Proposed § 300.513 (Attorneys’fees) has been amended to include all ofthe provisions of section 615(i)(3)(C)-(G)of the Act.

• Proposed § 300.514(c) has beenamended to provide that a decision bya State hearing or review officer that isin agreement with the parentsconstitutes an agreement for purposes ofpendency.

• Proposed § 300.515 (Surrogateparents) has been revised to permitemployees of nonpublic agencies thathave no role in educating a child toserve as surrogate parents.

Discipline Procedures• A new § 300.519 (Change of

placement for disciplinary removals)has been added regarding change ofplacement in the context of removalsunder §§ 300.520–300.529.

• Proposed § 300.520 (Authority ofschool personnel) has been amended asfollows:

(1) Proposed § 300.520(a)(1) has beenrevised to specify that to the extentremoval would be applied to childrenwithout disabilities, school personnelmay order the removal of a child witha disability from the child’s currentplacement for not more than 10consecutive school days and additionalremovals of not more than 10consecutive school days in that sameschool year for separate incidents ofmisconduct as long as they do notconstitute a change in placement under§ 300.519, and to make clear that aftera child with a disability has beenremoved from his or her currentplacement for more than 10 school daysin the same school year, during anysubsequent days of removal the publicagency must provide services to theextent necessary under § 300.121(d).

(2) Proposed § 300.520(b) has beenrevised to replace ‘‘suspension’’ with‘‘removal,’’ and to specify that whenfirst removing a child for more than 10school days in a school year, orcommencing a removal that constitutesa change of placement, the LEA mustwithin 10 business days, convene an IEPmeeting. If the agency had not already

conducted a functional behavioralassessment and implemented abehavioral intervention plan for thechild the purpose of the IEP meeting isto develop an assessment plan. As soonas practicable after completion of theplan, the LEA must then convene an IEPmeeting to develop appropriatebehavioral interventions to address thechild’s behavior. If a child already hasa behavioral intervention plan, thepurpose of the IEP meeting is to reviewthe plan and its implementation.

(3) Proposed § 300.520(c) has beendeleted and replaced with a provisionthat requires that if a child with adisability who has a behavioralintervention plan and has been removedfor more than 10 school days in a schoolyear subsequently is subjected to aremoval that is not a change ofplacement, the child’s IEP teammembers shall review the behavioralintervention plan, and meet to modify itor its implementation if one or moreteam members think modifications areneeded.

• Proposed § 300.521(d) has beenmodified to make clear that the hearingofficer determines the appropriatenessof the interim alternative educationalsetting proposed by school personnelwho have consulted with the child’sspecial education teacher.

• Proposed § 300.522 (Determinationof setting) has been amended to (1)specify that the interim alternativeeducational setting referred to in§ 300.520(a)(2) must be determined bythe IEP team; and (2) clarify that theservices and modifications to addressthe child’s behavior are designed toprevent the behavior from recurring.

• Proposed § 300.523 (Manifestationdetermination review) has beenamended as follows:

(1) Proposed § 300.523(a) has beenrevised to (1) specify that themanifestation determination review isdone regarding behavior described in§§ 300.520(a)(2) and 300.521, or if aremoval is contemplated that constitutesa change of placement under § 300.519;and (2) require that parents be providednotice of procedural safeguardsconsistent with § 300.504.

(2) Proposed § 300.523(b) (exceptionto conducting a manifestationdetermination review) has beenremoved.

(3) Proposed § 300.523(c) has beenredesignated as § 300.523(b) and revisedto specify that the manifestationdetermination review is conducted at ameeting.

(4) Proposed § 300.523(d) and (e) havebeen redesignated as § 300.523(c) and(d) and revised by adding ‘‘and other



qualified personnel’’ after ‘‘IEP team’’each time it is used.

(5) Proposed paragraph (f) has beenredesignated as paragraph (e) and a newparagraph (f) has been added to clarifythat if in the manifestation reviewdeficiencies are identified in the child’sIEP or placement or in theirimplementation, the public agency mustact to correct those deficiencies.

• Proposed § 300.524 (Determinationthat behavior was not a manifestation ofdisability) has been amended to (1)replace, in paragraph (a), the referenceto ‘‘section 612 of the Act’’ with‘‘§ 300.121(c);’’ and (2) refer, inparagraph (c), to the placement rules of§ 300.526.

• Proposed § 300.525 (Parent appeal)has been revised to refer to any decisionregarding placement under §§ 300.520-300.528.

• Proposed § 300.526(c)(3) has beenrevised to clarify that extensions of 45day removals by a hearing officerbecause returning the child to thechild’s current placement would bedangerous, may be repeated, ifnecessary.

• Proposed § 300.527 (Protections forchildren not yet eligible for specialeducation and related services) has beenamended as follows:

(1) Proposed § 300.527(b)(1) has beenrevised to refer to not knowing how towrite rather than illiteracy in English.

(2) Proposed § 300.527(b)(2) has beenrevised to clarify that the behavior orperformance is in relation to thecategories of disability identified in§ 300.7.

(3) Proposed § 300.527(b)(4) has beenrevised to refer to other personnel whohave responsibilities for child find orspecial education referrals in theagency.

(4) Proposed § 300.527(c) has beenredesignated as paragraph (d), and anew paragraph (c) has been added toprovide that if an agency acts on one ofthe bases identified in paragraph (b),determines that the child is not eligible,and provides proper notice to theparents, and there are no additionalbases of knowledge under paragraph (b)that were not considered, the agencywould not be held to have a basis ofknowledge under § 300.527(b).

(5) Proposed § 300.527(d)(2)(ii) hasbeen revised to clarify that aneducational placement under thatprovision can include suspension orexpulsion without educational services.

• Proposed § 300.528 (Expedited dueprocess hearings) has been amended asfollows:

(1) Proposed § 300.528(a)(1) (requiringa decision within 10 business days) hasbeen deleted. (Paragraphs (a)(2) and

(a)(3) are redesignated as (a)(1) and(a)(2) and paragraphs (b) and (c) areredesignated as (c) and (d).)

(2) A new § 300.528(b) has beenadded to require that (A) each Stateestablish a timeline for expedited dueprocess hearings that results in a writtendecision being mailed to the partieswithin 45 days, with no extensionspermitted that result in decisions beingissued more than 45 days after thehearing request is received by the publicagency; and (B) decisions be issued inthe same period of time, whether thehearing is requested by a parent or anagency.

(3) Redesignated § 300.528(d) hasbeen revised to specify that expediteddue process hearings are appealableconsistent with the § 300.510.

• Proposed § 300.529 (Referral to andaction by law enforcement and judicialauthorities) has been amended to makeclear that copies of a child’s specialeducation and disciplinary records maybe transmitted only to the extent thatsuch transmission is permitted underFERPA. (Section 300.571 has beenamended to note the relationship of thissection.)

Procedures for Evaluation andDetermination of Eligibility

• Proposed § 300.532 (Evaluationprocedures) has been amended to (1)require that assessments of childrenwith limited English proficiency mustbe selected and administered to ensurethat they measure the extent to which achild has a disability and needs specialeducation, and do not, instead, measurethe child’s English language skills(§ 300.532(a)2); (2) provide that theinformation gathered includeinformation related to enabling the childto be involved and progress in thegeneral curriculum or appropriateactivities if the child is a preschoolchild (§ 300.532(b)); (3) provide that ifan assessment is not conducted understandard conditions, information aboutthe extent to which the assessmentvaried from standard conditions, suchas the qualifications of the personadministering the test or the method oftest administration, must be included inthe evaluation report (§ 300.532(c)(2));and (4) provide that each public agencyensure that the evaluation of each childwith a disability under §§ 300.531–300.536 is sufficiently comprehensive toidentify all of the child’s specialeducation and related services needs,whether or not commonly linked to thedisability category in which the childhas been classified.

• Proposed § 300.533 (Determinationof needed evaluation data) has beenrevised to clarify that the group

reviewing existing data may conductthat review without a meeting(§ 300.533(b)).

• Proposed § 300.534 (Determinationof eligibility) has been amended toclarify that (1) children are not eligibleif they need specialized instructionbecause of limited English proficiencyor lack of instruction in reading or math,but do not need such instructionbecause of a disability, as defined in§ 300.7; and (2) the evaluation requiredin § 300.534(c)(1) is not required beforetermination of a child’s eligibility underPart B of the Act due to graduation witha regular high school diploma, orceasing to meet the age requirement forFAPE under State law.

• Proposed § 300.535 (Procedures fordetermining eligibility and placement)has been revised to add ‘‘parent input’’to the variety of sources from which thepublic agency will draw in interpretingevaluation data for the purpose ofdetermining a child’s eligibility underthis part.

Least Restrictive Environment (LRE)

• Proposed § 300.550 (General LRErequirements) has been amended to adda cross reference to § 300.311(b) and (c),to clarify that the LRE provisions do notapply to students with disabilities whoare convicted as adults under State lawand incarcerated in adult prisons.

• Proposed § 300.552 (Placements)has been amended to (1) include areference to preschool children withdisabilities in the introductoryparagraph of this section, and (2) to adda new § 300.552(e) prohibiting theremoval of child with a disability froman age-appropriate regular classroomsolely because of needed modificationsin the general curriculum.

Confidentiality of Information

• Proposed § 300.562 (Access rights)has been revised to make it clear thatexpedited due process hearingprocedures under §§ 300.521–300.529are also covered under this section.

• Proposed § 300.571 (Consent) hasbeen amended to permit disclosureswithout parental consent to the agenciesidentified in § 300.529, to the extentpermitted under the Family EducationalRights and Privacy Act (FERPA).

• Proposed § 300.574 (Children’srights) has been revised byincorporating into the regulations thesubstance of the two notes following thesection (relating to transfer ofeducational records to the student at age18).

Department Procedures

• Proposed § 300.589 (Waiver ofrequirement regarding supplementing



and not supplanting with Part B funds)has been revised to conform to thestatutory provision that the Secretaryprovides a waiver ‘‘in whole or in part.’’

7. Changes in Subpart F—StateAdministration

• Proposed § 300.652 (Advisory panelfunctions) has been revised to clarifythat one of the duties of the advisorypanel is advising the State agency thathas general responsibility for studentswho have been convicted as adults andincarcerated in adult prisons.

• Proposed § 300.653 (Advisory panelprocedures) has been amended tospecify that all advisory panel meetingsand agenda items must be ‘‘announcedenough in advance of the meeting toafford interested parties a reasonableopportunity to attend.’’

• Proposed § 300.660 (Adoption ofState complaint procedures) has beenrevised to clarify that if an SEA, inresolving a complaint, finds a failure toprovide appropriate services to a childwith a disability, the SEA must address(1) how to remediate the denial of thoseservices, including, as appropriate, theawarding of monetary reimbursement orother corrective action appropriate tothe needs of the child; and (2)appropriate future provision of servicesfor all children with disabilities.

• Proposed § 300.661 (MinimumState complaint procedures) has beenrevised to clarify that (1) if an issue ina complaint is the subject of a dueprocess hearing, that issue (but not anyissue outside of the hearing) would beset aside until the conclusion of thehearing, (2) the decision on an issue ina due process hearing would be bindingin a State complaint resolution, and (3)a public agency’s failure to implementa due process decision would have to beresolved by the SEA.

8. Changes in Subpart G—Allocation ofFunds; Reports

• Proposed § 300.712 (Allocations toLEAs) has been revised to clarify that,if LEAs are created, combined, orotherwise reconfigured subsequent tothe base year (i.e. the year prior to theyear in which the appropriation undersection 611(j) of the Act exceeds$4,924,672,200), the State is required toprovide the LEAs involved with revisedbase allocations calculated on the basisof the relative numbers of children withdisabilities aged 3 through 21, or 6through 21, depending on whether theState serves all children withdisabilities aged 3 through 5 currentlyprovided special education by each ofthe affected LEAs. The section also hasbeen expanded to state that, for thepurpose of making grants under this

section, States must apply, on a uniformbasis across all LEAs, the best data thatare available to them on the numbers ofchildren enrolled in public and privateelementary and secondary schools andthe numbers of children living inpoverty.

• Proposed § 300.713 (FormerChapter 1 State agencies) has beenrevised to clarify that the amount eachformer Chapter 1 State agency mustreceive is the minimum amount.

• Proposed § 300.751 (Annual reportof children served) has been revised toclarify that the Secretary may permitStates to collect certain data throughsampling.

9. Changes to Part 303

• Proposed § 303.510 (Adopting Statecomplaint procedures) has been revisedto clarify that if a lead agency, inresolving a complaint, finds a failure toprovide appropriate services, it mustaddress (1) how to remediate the denialof those services, including, asappropriate, the awarding of monetaryreimbursement or other correctiveaction appropriate to the needs of thechild and the child’s family, as well as(2) appropriate future provision ofservices for all infants and toddlers withdisabilities and their families.

• Proposed § 303.512 (MinimumState complaint procedures) has beenrevised to clarify that (1) if an issue ina complaint is the subject of a dueprocess hearing, that issue (but not anyissue outside of the hearing) would beset aside until the conclusion of thehearing, (2) the decision on an issue ina due process hearing would be bindingin a State complaint resolution, and (3)a public agency’s or private serviceprovider’s failure to implement a dueprocess decision must be resolved bythe lead agency.

Role of the Regular Education Teacheron the IEP Team

The regulations at §§ 300.344(a)(2)and 300.346(d) repeat the statutoryprovisions regarding the role of theregular education teacher in developing,reviewing, and revising IEPs. The extentof the regular education teacher’sinvolvement in the IEP process wouldbe determined on a case by case basisand is addressed in question 24 inAppendix A.

Discipline for Children WithDisabilities

Some Key Changes in the RegulationsRegarding Discipline for Children WithDisabilities

One of the major areas of concern inpublic comment on the NPRM was the

issue of discipline for children withdisabilities under the Act. The previouslist of major changes briefly describesthe major changes from the NPRM thatare reflected in these final regulationsregarding discipline under§§ 300.121(d), and 300.519–529. Thesechanges reflect very seriousconsideration of the concerns of schooladministrators and teachers regardingpreserving school safety and orderwithout unduly burdensomerequirements, while helping schoolsrespond appropriately to a child’sbehavior, promoting the use ofappropriate behavioral interventions,and increasing the likelihood of successin school and school completion forsome of our most at-risk students.

The comments also revealed someconfusion about several of theprovisions of the Act and the NPRMregarding discipline. Limitations in thestatute and regulations about theamount of time that a child can beremoved from his or her currentplacement only come into play whenschools are not able to work out anappropriate placement with the parentsof a child who has violated a schoolcode of conduct. In many, many casesinvolving discipline for children withdisabilities, schools and parents are ableto reach an agreement about how torespond to the child’s behavior. Inaddition, neither the statute or theproposed or final regulations imposeabsolute limits on the number of daysthat a child can be removed from his orher current placement in a school year.As was the case in the past, schoolpersonnel have the ability to remove achild for short periods of time as longas the removal does not constitute achange of placement. To help make thispoint, the regulations include a newprovision (§ 300.519) that reflects theDepartment’s longstanding definition ofwhat constitutes a ‘‘change ofplacement’’ in the disciplinary context.In this regulation, a disciplinary‘‘change of placement’’ occurs when achild is removed for more than 10consecutive school days or when thechild is subjected to a series of removalsthat constitute a pattern because theycumulate to more than 10 school daysin a school year, and because of factorssuch as the length of the removal, thetotal amount of time the child isremoved, and the proximity of theremovals to one another. (§ 300.519).Changes also have been made to§ 300.520(a)(1) to make clear thatmultiple short-term removals (i.e., 10consecutive days or less) for separateincidents of misconduct are permitted,to the extent removals would be applied



to children without disabilities as longas those removals do not constitute achange of placement, as defined in§ 300.519.

Instead of requiring that servicesbegin on the eleventh day in a schoolyear that a child is removed from his orher current educational placement, aswas proposed in the NPRM, theregulations take a more flexibleapproach. If the removal is pursuant toschool personnel’s authority to removefor not more than 10 consecutive days(§ 300.520(a)(1)) or for behavior that isnot a manifestation of the child’sdisability, consistent with § 300.524services must be provided to the extentnecessary to enable the child tocontinue to appropriately progress inthe general curriculum andappropriately advance toward the goalsin his or her IEP. (§ 300.121(d)).

If the removal is by school personnelunder their authority to remove for notmore than 10 school days at a time(§ 300.520(a)(1)), school personnel, inconsultation with the child’s specialeducation teacher, make thedetermination regarding the extent towhich services are necessary to meetthis standard. (§ 300.121(d)(3)(i)). Onthe other hand, if the removalconstitutes a change in placement, thechild’s IEP team must be involved. If theremoval is pursuant to the authority todiscipline a child with a disability tothe same extent as a nondisabled childfor behavior that has been determined tonot be a manifestation of the child’sdisability (§ 300.524), the child’s IEPteam makes the determination regardingthe extent to which services arenecessary to meet this standard.(§ 300.121(d)(3)(ii)). If the child is beingplaced in an interim alternativeeducational setting for up to 45 daysbecause of certain weapon or drugoffenses (§ 300.520(a)(2)) or because ahearing officer has determined thatthere is a substantial likelihood of injuryto the child or others if the childremains in his or her current placement(§ 300.521), the services to be providedto the child are determined based on§ 300.522. In these cases, the interimalternative educational setting must beselected so as to enable the child tocontinue to progress in the generalcurriculum, although in another setting,and to continue to receive those servicesand modifications, including thosedescribed in the child’s current IEP, thatwill enable the child to meet the goalsset out in that IEP and include servicesand modifications to address thebehavior. (§§ 300.121(d)(2)(ii) and300.522).

Under these regulations, IEP teammeetings regarding functional

behavioral assessments and behavioralintervention plans will only be requiredwithin 10 business days of (1) when thechild is first removed for more than 10school days in a school year, and (2)whenever the child is subjected to adisciplinary change of placement.(§ 300.520(b)(1)). In other subsequentremovals in a school year of a child whoalready has a functional behavioralassessment and behavioral interventionplan, the IEP team members can reviewthe behavioral intervention plan and itsimplementation in light of the child’sbehavior, without a meeting, and onlymeet if one or more of the teammembers believe that the plan or itsimplementation need modification.(§ 300.520(c)).

These final regulations also providethat manifestation determinations, andthe IEP team meetings to make thesedeterminations, are only required whena child is subjected to a disciplinarychange of placement. (§ 300.523(a)).These changes should eliminate theneed for unnecessary, repetitive IEPteam meetings. The discussion ofcomments regarding the disciplinarysections of the regulations inAttachment 1 provides a fullerexplanation of the regulatory provisionsregarding discipline.

Answers to Some Commonly AskedQuestions About Discipline Under IDEA

Prior to the amendments to theEducation of the Handicapped Act(EHA) in 1975, (the EHA is today knownas IDEA), the special educational needsof children with disabilities were notbeing met. More than half of thechildren with disabilities in the UnitedStates did not receive appropriateeducational services, and a millionchildren with disabilities were excludedentirely from the public school system.All too often, school officials useddisciplinary measures to excludechildren with disabilities fromeducation simply because they weredifferent or more difficult to educatethan nondisabled children.

It is against that backdrop that Pub. L.94–142 was developed, with one of itsprimary goals being the elimination ofany exclusion of children withdisabilities from education. In the IDEAreauthorization of 1997, Congressrecognized that in certain instancesschool districts needed increasedflexibility to deal with safety issueswhile maintaining needed due processprotections in the IDEA. The followingquestions and answers address: (1) theproactive requirements of the IDEAdesigned to ensure that children withdisabilities will be able to adhere toschool rules; (2) IDEA provisions

regarding removal of students from theircurrent placement when their behaviorsignificantly violates school disciplinecodes; and (3) the requirement of theIDEA for the continuation of services forchildren with disabilities who aredisciplined.

1. Why are there special rules aboutdiscipline for children with disabilities?

The protections in the IDEA regardingdiscipline are designed to prevent thetype of often speculative and subjectivedecision making by school officials thatled to widespread abuses of the rights ofchildren with disabilities to anappropriate education in the past. Forexample, in Mills v. Board of Educationof the District of Columbia (1972) thecourt recognized that many childrenwere being excluded entirely fromeducation merely because they had beenidentified as having a behavior disorder.It is important to keep in mind,however, that these protections do notprevent school officials frommaintaining a learning environment thatis safe and conducive to learning for allchildren. Well run schools that havegood leadership, well-trained teachersand high standards for all students havefewer discipline problems than schoolsthat do not.

It is also extremely important to keepin mind that the provisions of thestatute and regulation concerning theamount of time a child with a disabilitycan be removed from his or her regularplacement for disciplinary reasons areonly called into play if the removalconstitutes a change of placement andthe parent objects to proposed action byschool officials (or objects to a refusal byschool officials to take an action) andrequests a due process hearing. Thediscipline rules concerning the amountof time a child can be removed from hisor her current placement essentially areexceptions to the generally applicablerequirement that a child remains in hisor her current placement during thependency of due process, andsubsequent judicial, proceedings. (See,section 615(j) of the Act and § 300.514.)If school officials believe that a child’splacement is inappropriate they canwork with the child’s parent through theIEP and placement processes to come upwith an appropriate placement for thechild that will meet the needs of thechild and result in his or her improvedlearning and the learning of others andensure a safe environment. In additionto the other measures discussed in thefollowing questions, the disciplineprovisions of the IDEA allowresponsible and appropriate changes inplacement of children with disabilitieswhen their parents do not object.



2. Does IDEA contain provisions thatpromote proactive up-front measuresthat will help prevent disciplineproblems?

Yes. Research has shown that ifteachers and other school personnelhave the knowledge and expertise toprovide appropriate behavioralinterventions, future behavior problemscan be greatly diminished if not totallyavoided. Appropriate staff developmentactivities and improved pre-servicetraining programs at the university levelwith emphasis in the area of earlyidentification of reading and behaviorproblems and appropriate interventionscan help to ensure that regular andspecial education teachers and otherschool personnel have the neededknowledge and skills. Changes in theIDEA emphasize the need of State andlocal educational agencies to work toensure that superintendents, principals,teachers and other school personnel areequipped with the knowledge and skillsthat will enable them to appropriatelyaddress behavior problems when theyoccur.

In addition, the IDEA includesprovisions that focus on individualchildren. If a child has behaviorproblems that interfere with his or herlearning or the learning of others, theIEP team must consider whetherstrategies, including positive behavioralinterventions, strategies, and supportsare needed to address the behavior. Ifthe IEP team determines that suchservices are needed, they must be addedto the IEP and must be provided. TheDepartment has supported a number ofactivities such as training institutes,conferences, clearinghouses and othertechnical assistance and researchactivities on this topic to help schoolpersonnel appropriately addressbehavioral concerns for children withdisabilities.

3. Can a child with a disability who isexperiencing significant disciplinaryproblems be removed to anotherplacement?

Yes. Even when school personnel areappropriately trained and areproactively addressing children’sbehavior issues through positivebehavioral intervention supports,interventions, and strategies, there maybe instances when a child must beremoved from his or her currentplacement. When there is agreementbetween school personnel and thechild’s parents regarding a change inplacement (as there frequently is), therewill be no need to bring into play thediscipline provisions of the law. Even ifagreement is not possible, in general,

school officials can remove any childwith a disability from his or her regularschool placement for up to 10 schooldays at a time, even over the parents’objections, whenever discipline isappropriate and is administeredconsistent with the treatment ofnondisabled children. § 300.520(a)(1).However, school officials cannot usethis authority to repeatedly remove achild from his or her current placementif that series of removals means thechild is removed for more than 10school days in a school year and factorssuch as the length of each removal, thetotal amount of time that the child isremoved, and the proximity of theremovals to one another lead to theconclusion that there has been a changein placement. §§ 300.519–300.520(a)(1).There is no specific limit on the numberof days in a school year that a child witha disability can be removed from his orher current placement. After a child isremoved from his or her currentplacement for more than 10 cumulativeschool days in a school year, servicesmust be provided to the extent requiredunder § 300.121(d), which concerns theprovision of FAPE for childrensuspended or expelled from school.

If the child’s parents do not agree toa change of placement, schoolauthorities can unilaterally remove achild with a disability from the child’sregular placement for up to 45 days ata time if the child has brought a weaponto school or to a school function, orknowingly possessed or used illegaldrugs or sold or solicited the sale ofcontrolled substances while at school ora school function. § 300.520(a)(2). Inaddition, if school officials believe thata child with a disability is substantiallylikely to injure self or others in thechild’s regular placement, they can askan impartial hearing officer to order thatthe child be removed to an interimalternative educational setting for aperiod of up to 45 days. § 300.521. If atthe end of an interim alternativeeducational placement of up to 45 days,school officials believe that it would bedangerous to return the child to theregular placement because the childwould be substantially likely to injureself or others in that placement, theycan ask an impartial hearing officer toorder that the child remain in an interimalternative educational setting for anadditional 45 days. § 300.526(c). Ifnecessary, school officials can alsorequest subsequent extensions of theseinterim alternative educational settingsfor up to 45 days at a time if schoolofficials continue to believe that thechild would be substantially likely to

injure self or others if returned to his orher regular placement. § 300.526(c)(4).

Additionally, at any time, schoolofficials may seek to obtain a court orderto remove a child with a disability fromschool or to change a child’s currenteducational placement if they believethat maintaining the child in the currenteducational placement is substantiallylikely to result in injury to the child orothers.

Finally, school officials can reportcrimes committed by children withdisabilities to appropriate lawenforcement authorities to the sameextent as they do for crimes committedby nondisabled students. § 300.529.

4. Do the IDEA regulations mean that achild with a disability cannot beremoved from his or her currentplacement for more than ten school daysin a school year?

No. School authorities mayunilaterally suspend a child with adisability from the child’s regularplacement for not more than 10 schooldays at a time for any violation of schoolrules if nondisabled children would besubjected to removal for the sameoffense. They also may implementadditional suspensions of up to tenschool days at a time in that sameschool year for separate incidents ofmisconduct if educational services areprovided for the remainder of theremovals, to the extent required under§ 300.121(d). (See the next questionregarding the provision of educationalservices during periods of removal.)However, school authorities may notremove a child in a series of short-termsuspensions (up to 10 school days at atime), if these suspensions constitute apattern that is a change of placementbecause the removals cumulate to morethan 10 school days in a school year andbecause of factors such as the length ofeach removal, the total amount of timethe child is removed, and the proximityof the removals to one another. But notall series of removals that cumulate tomore than 10 school days in a schoolyear would constitute a pattern under§ 300.519(b).

Of course, in the case of less seriousinfractions, schools can address themisconduct through appropriateinstructional and/or related services,including conflict management,behavior management strategies, andmeasures such as study carrels, time-outs, and restrictions in privileges, solong as they are not inconsistent withthe child’s IEP. If a child’s IEP orbehavior intervention plan addresses aparticular behavior, it generally wouldbe inappropriate to utilize some other



response, such as suspension, to thatbehavior.

5. What must a school district do whenremoving a child with a disability fromhis or her current placement for theeleventh cumulative day in a schoolyear?

Beginning on the eleventh cumulativeday in a school year that a child witha disability is removed from his or hercurrent placement, the school districtmust provide those services that schoolpersonnel (for example, the schooladministrator or other appropriateschool personnel) in consultation withthe child’s special education teacherdetermine to be necessary to enable thechild to appropriately progress in thegeneral curriculum and appropriatelyadvance toward achieving the goals setout in the child’s IEP. School personnelwould determine where those serviceswould be provided. This means that forthe remainder of the removal thatincludes the eleventh day, and for anysubsequent removals, services must beprovided to the extent determinednecessary, while the removal continues.§ 300.121(d)(2) and (3).

Not later than 10 business days afterremoving a child with a disability formore than 10 school days in a schoolyear, the school district must convenean IEP team meeting to develop abehavioral assessment plan if thedistrict has not already conducted afunctional behavioral assessment andimplemented a behavioral interventionplan for the child. If a child with adisability who is being removed for theeleventh cumulative school day in aschool year already has a behavioralintervention plan, the school districtmust convene the IEP team (eitherbefore or not later than 10 business daysafter first removing the child for morethan 10 school days in a school year) toreview the plan and its implementation,and modify the plan and itsimplementation as necessary to addressthe behavior. § 300.520(b).

A manifestation determination wouldnot be required unless the removal thatincludes the eleventh cumulative schoolday of removal in a school year is achange of placement. § 300.523(a).

6. Does the IDEA or its regulations meanthat a child with a disability can neverbe suspended for more than 10 schooldays at a time or expelled for behaviorthat is not a manifestation of his or herdisability?

No. If the IEP team concludes that thechild’s behavior was not a manifestationof the child’s disability, the child can bedisciplined in the same manner asnondisabled children, except that

appropriate educational services mustbe provided. § 300.524(a). This meansthat if nondisabled children are long-term suspended or expelled for aparticular violation of school rules, thechild with disabilities may also be long-term suspended or expelled.Educational services must be providedto the extent the child’s IEP teamdetermines necessary to enable the childto appropriately progress in the generalcurriculum and appropriately advancetoward the goals set out in the child’sIEP. § 300.121(d)(2).

7. Does the statutory language ‘‘carriesa weapon to school or to a schoolfunction’’ cover instances in which thechild acquires a weapon at school?

Yes. Although the statutory language‘‘carries a weapon to school or to aschool function’’ could be viewed asambiguous on this point, in light of theclear intent of Congress in the Act toexpand the authority of schoolpersonnel to immediately addressschool weapons offenses, theDepartment’s opinion is that thislanguage also covers instances in whichthe child is found to have a weapon thathe or she obtained while at school.

Goals 2000: Educate America ActThe Goals 2000: Educate America Act

(Goals 2000) focuses the Nation’seducation reform efforts on the eightNational Education Goals and providesa framework for meeting them. Goals2000 promotes new partnerships tostrengthen schools and expands theDepartment’s capacities for helpingcommunities to exchange ideas andobtain information needed to achievethe goals.

These final regulations address thefollowing National Education Goals:

• All children in America will startschool ready to learn.

• The high school graduation ratewill increase to at least 90 percent.

• All students will leave grades 4, 8,and 12 having demonstratedcompetency in challenging subjectmatter, including English, mathematics,science, foreign languages, civics andgovernment, economics, arts, history,and geography; and every school inAmerica will ensure that all studentslearn to use their minds well, so theymay be prepared for responsiblecitizenship, further learning, andproductive employment in our Nation’smodern economy.

• United States students will be firstin the world in mathematics and scienceachievement.

• Every adult American will beliterate and will possess the knowledgeand skills necessary to compete in a

global economy and exercise the rightsand responsibilities of citizenship.

• Every school in the United Stateswill be free of drugs, violence, and theunauthorized presence of firearms andalcohol and will offer a disciplinedenvironment conducive to learning.

• The Nation’s teaching force willhave access to programs for thecontinued improvement of theirprofessional skills and the opportunityto acquire the knowledge and skillsneeded to instruct and prepare allAmerican students for the next century.

• Every school will promotepartnerships that will increase parentalinvolvement and participation inpromoting the social, emotional, andacademic growth of children.

Executive Order 12866

This is a significant regulatory actionunder section 3(f)(1) of Executive Order12866 and, therefore, these finalregulations have been reviewed by theOffice of Management and Budget inaccordance with that order. Because ithas been determined that theseregulations are economically significantunder the order, the Department hasconducted an economic analysis, whichis provided in Attachment 2. Thisregulation has also been determined tobe a major rule under the SmallBusiness Regulatory EnforcementFairness Act of 1996.

These final regulations implementchanges made to the Individuals withDisabilities Education Act by the IDEAAmendments of 1997 and make otherchanges determined by the Secretary asnecessary for administering thisprogram effectively and efficiently.

The IDEA Amendments of 1997 madea number of significant changes to thelaw. While retaining the basic rights andprotections that have been in the lawsince 1975, the amendmentsstrengthened the focus of the law onimproving results for children withdisabilities. The amendmentsaccomplished this through changes thatpromote the early identification of, andprovision of services to, children withdisabilities, the development ofindividualized education programs thatenhance the participation of childrenwith disabilities in the generalcurriculum, the education of childrenwith disabilities with nondisabledchildren, higher expectations forchildren with disabilities andaccountability for their educationalresults, the involvement of parents intheir children’s education, and reducingunnecessary paperwork and otherburdens to better direct resources toimproved teaching and learning.



All of these objectives are reflected inthese final regulations, which largelyreflect the changes to the statute madeby IDEA Amendments of 1997.

In assessing the potential costs andbenefits—both quantitative andqualitative—of these final regulations,the Secretary has determined that thebenefits of these final regulations justifythe costs.

The Secretary has also determinedthat this regulatory action does notunduly interfere with State, local, andtribal governments in the exercise oftheir governmental functions.

Paperwork Reduction Act of 1995Sections 300.110, 300.121, 300.123–

300.130, 300.133, 300.135–300.137,300.141–300.145, 300.155–300.156,300.180, 300.192, 300.220–300.221,300.240, 300.280–300.281, 300.284,300.341, 300.343, 300.345, 300.347,300.380–300.382, 300.402, 300.482–300.483, 300.503–300.504, 300.506,300.508, 300.510–300.511, 300.532,300.535, 300.543, 300.561–300.563,300.565, 300.569, 300.571–300.572,300.574–300.575, 300.589, 300.600,300.653, 300.660–300.662, 300.750–300.751, 300.754, 303.403, 303.510–303.512, and 303.520 containinformation collection requirements. Asrequired by the Paperwork ReductionAct of 1995 (44 U.S.C. 3507(d)), theDepartment of Education has submitteda copy of these sections to the Office ofManagement and Budget (OMB) for itsreview.

Collection of Information: Assistancefor Education of All Children withDisabilities: Complaint Procedures,§§ 300.600–300.662 and 303.510–303.512. Each SEA is required to adoptwritten procedures for resolving anycomplaint that meets the requirementsin these proposed regulations.

Annual reporting and recordkeepingburden for this collection of informationis estimated to average 10 hours to issuea written decision to a complaint. Thereis an estimated average annual total of1079 complaints submitted forprocessing. Thus, the total annualreporting and recordkeeping burden forthis collection is estimated to be 10,790hours.

Collection of Information: Assistancefor Education of All Children withDisabilities: State Eligibility, §§ 300.110,300.121, 300.123–300.130, 300.133,300.135–300.137, 300.141–300.145,300.155–300.156, 300.280–300.281,300.284, 300.380–300.382, 300.402,300.482–300.483, 300.510–300.511,300.589, 300.600, 300.653, 303.403, and303.520. Each State must have on filewith the Secretary policies andprocedures to demonstrate to the

satisfaction of the Secretary that theState meets the specified conditions forassistance under this part. In the past,States were required to submit Stateplans every three years with one-third ofthe entities submitting plans to theSecretary each year. With the newstatute, States will no longer be requiredto submit State plans. Rather, thepolicies and procedures currentlyapproved by, and on file with, theSecretary that are not inconsistent withthe IDEA Amendments of 1997 willremain in effect unless amended.

Annual reporting and recordkeepingburden for this collection of informationis estimated to average 30 hours for eachresponse for 58 respondents, includingthe time for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, and completing and reviewingthe collection of information. Thus, thetotal annual reporting andrecordkeeping burden for this collectionis estimated to be 1740 hours.

Collection of Information: Assistancefor Education of All Children withDisabilities: LEA Eligibility, §§ 300.180,300.192, 300.220–300.221, 300.240,300.341, 300.343, 300.345, 300.347,500.503–300.504, 300.532, 300.535,300.543, 300.561–300.563, 300.565,300.569, 300.571–300.572, and 300.574–300.575. Each local educational agency(LEA) and each State agency must haveon file with the State educationalagency (SEA) information todemonstrate that the agency meets thespecified requirements for assistanceunder this part. In the past, each LEAwas required to submit a periodicapplication to the SEA in order toestablish its eligibility for assistanceunder this part. Under the new statutorychanges, LEAs are no longer required tosubmit such applications. Rather, thepolicies and procedures currentlyapproved by, and on file with, the SEAthat are not inconsistent with the IDEAAmendments of 1997 will remain ineffect unless amended.

Annual reporting and recordkeepingburden for this collection of informationis estimated to average 2 hours for eachresponse for 15,376 respondents,including the time for reviewinginstructions, searching existing datasources, gathering and maintaining thedata needed, and completing andreviewing the collection of information.Thus, the total annual reporting andrecordkeeping burden for this collectionis estimated to be 30,752 hours. TheSecretary invites comment on theestimated time it will take for LEAs tomeet this reporting and recordkeepingrequirement.

Collection of Information: Assistancefor Education of All Children withDisabilities: List of Hearing Officers andMediators, §§ 300.506 and 300.508.Each State must maintain a list ofindividuals who are qualified mediatorsand knowledgeable in laws andregulations relating to the provision ofspecial education and related services.Each public agency must, also, keep alist of the persons who serve as hearingofficers.

Annual reporting and recordkeepingburden for this collection of informationis estimated to average 25 hours for eachresponse for 58 respondents, includingthe time for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, and completing and reviewingthe collection of information. Thus, thetotal annual reporting andrecordkeeping burden for this collectionis estimated to be 3050 hours.

Collection of Information: Assistancefor Education of All Children withDisabilities: Report of Children andYouth with Disabilities ReceivingSpecial Education, §§ 300.750–300.751,and 300.754. Each SEA must submit anannual report of children served.

Annual reporting and recordkeepingburden for this collection of informationis estimated to average 262 hours foreach response for 58 respondents,including the time for reviewinginstructions, searching existing datasources, gathering and maintaining thedata needed, and completing andreviewing the collection of information.Thus, the total annual reporting andrecordkeeping burden for this collectionis estimated to be 15,196 hours.

Organizations and individualsdesiring to submit comments on theinformation collection requirementsshould direct them to the Office ofInformation and Regulatory Affairs,OMB, room 10235, New ExecutiveOffice Building, Washington, DC 20503;Attention: Desk Officer for U.S.Department of Education.

The Department considers commentsby the public on these proposedcollections of information in—

• Evaluating whether the proposedcollections of information are necessaryfor the proper performance of thefunctions of the Department, includingwhether the information will havepractical utility;

• Evaluating the accuracy of theDepartment’s estimate of the burden ofthe proposed collections of information,including the validity of themethodology and assumptions used;

• Enhancing the quality, usefulness,and clarity of the information to becollected; and



• Minimizing the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother forms of information technology;e.g., permitting electronic submission ofresponses.

OMB is required to make a decisionconcerning the collections ofinformation contained in theseproposed regulations between 30 and 60days after publication of this documentin the Federal Register. Therefore, acomment to OMB is best assured ofhaving its full effect if OMB receives itwithin 30 days of publication. This doesnot affect the deadline for the public tocomment to the Department on theproposed regulations.

Regulatory Flexibility Act CertificationThe Secretary certifies that these final

regulations will not have a significanteconomic impact on a substantialnumber of small entities. The smallentities that would be affected by theseregulations are small local educationalagencies receiving Federal funds underthis program. These regulations wouldnot have a significant economic impacton the small LEAs affected becausethese regulations impose minimalrequirements beyond those that wouldotherwise be required by the statute. Inaddition, increased costs imposed bythese regulations on LEAs are expectedto be offset by savings to be realized byLEAs.

Intergovernmental ReviewThis program is subject to the

requirements of Executive Order 12372and the regulations in 34 CFR part 79.The objective of the Executive order isto foster an intergovernmentalpartnership and a strengthenedfederalism by relying on processesdeveloped by State and localgovernments for coordination andreview of proposed Federal financialassistance.

In accordance with the order, thisdocument is intended to provide earlynotification of the Department’s specificplans and actions for this program.

Assessment of Educational ImpactIn the NPRM published on October

22, 1997, the Secretary requestedcomments on whether the proposedregulations would require transmissionof information that is being gathered byor is available from any other agency orauthority of the United States.

Based on the response to the NPRMand on its own review, the Departmenthas determined that the regulations in

this document do not requiretransmission of information that is beinggathered by or is available from anyother agency or authority of the UnitedStates.

Electronic Access to This Document

Anyone may also view this document,as well as all other Department ofEducation documents published in theFederal Register, in text or portabledocument format (pdf) on the WorldWide Web at either of the followingsites:http://gcs.ed.gov/fedreg.htmhttp://www.ed.gov/news.html

To use the pdf you must have theAdobe Acrobat Reader Program withSearch, which is available free at eitherof the previous sites. If you havequestions about using the pdf, call theU.S. Government Printing Office tollfree at 1–888–293–6498.

Anyone may also view thesedocuments in text copy only on anelectronic bulletin board of theDepartment. Telephone: (202) 219–1511or, toll free, 1–800–222–4922. Thedocuments are located under OptionG—Files/Announcements, Bulletins andPress Releases.

Note: The official version of this documentis the document published in the FederalRegister.

List of Subjects

34 CFR Part 300

Administrative practice andprocedure, Education of individualswith disabilities, Elementary andsecondary education, Equal educationalopportunity, Grant programs—education, Privacy, Private schools,Reporting and recordkeepingrequirements.

34 CFR Part 303

Education of individuals withdisabilities, Grant programs—education, Infants and children,Reporting and recordkeepingrequirements.

Dated: March 4, 1999.Richard W. Riley,Secretary of Education.

(Catalog of Federal Domestic AssistanceNumber: 84.027 Assistance to States for theEducation of Children with Disabilities, and84.181 Early Intervention Program for Infantsand Toddlers with Disabilities)

The Secretary amends Title 34 of theCode of Federal Regulations by revisingpart 300 and amending part 303 asfollows:

1. Part 300 is revised to read asfollows:

PART 300—ASSISTANCE TO STATESFOR THE EDUCATION OF CHILDRENWITH DISABILITIES

Subpart A—General

Purposes, Applicability, and RegulationsThat Apply to This ProgramSec.300.1 Purposes.300.2 Applicability of this part to State,

local, and private agencies.

Definitions Used in This Part300.3 Regulations that apply.300.4 Act.300.5 Assistive technology device.300.6 Assistive technology service.300.7 Child with a disability.300.8 Consent.300.9 Day; business day; school day.300.10 Educational service agency.300.11 Equipment.300.12 Evaluation.300.13 Free appropriate public education.300.14 Include.300.15 Individualized education program.300.16 Individualized education program

team.300.17 Individualized family service plan.300.18 Local educational agency.300.19 Native language.300.20 Parent.300.21 Personally identifiable.300.22 Public agency.300.23 Qualified personnel.300.24 Related services.300.25 Secondary school.300.26 Special education.300.27 State.300.28 Supplementary aids and services.300.29 Transition services.300.30 Definitions in EDGAR.

Subpart B—State and Local Eligibility

State Eligibility—General300.110 Condition of assistance.300.111 Exception for prior State policies

and procedures on file with theSecretary.

300.112 Amendments to State policies andprocedures.

300.113 Approval by the Secretary.300.114—300.120 [Reserved]

State Eligibility—Specific Conditions300.121 Free appropriate public education

(FAPE).300.122 Exception to FAPE for certain ages.300.123 Full educational opportunity goal

(FEOG).300.124 FEOG—timetable.300.125 Child find.300.126 Procedures for evaluation and

determination of eligibility.300.127 Confidentiality of personally

identifiable information.300.128 Individualized education

programs.300.129 Procedural safeguards.300.130 Least restrictive environment.300.131 [Reserved]300.132 Transition of children from Part C

to preschool programs.300.133 Children in private schools.300.134 [Reserved]



300.135 Comprehensive system ofpersonnel development.

300.136 Personnel standards.300.137 Performance goals and indicators.300.138 Participation in assessments.300.139 Reports relating to assessments.300.140 [Reserved]300.141 SEA responsibility for general

supervision.300.142 Methods of ensuring services.300.143 SEA implementation of procedural

safeguards.300.144 Hearings relating to LEA eligibility.300.145 Recovery of funds for misclassified

children.300.146 Suspension and expulsion rates.300.147 Additional information if SEA

provides direct services.300.148 Public participation.300.149 [Reserved]300.150 State advisory panel.300.151 [Reserved]300.152 Prohibition against commingling.300.153 State-level nonsupplanting.300.154 Maintenance of State financial

support.300.155 Policies and procedures for use of

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

funds.

LEA and State Agency Eligibility—General300.180 Condition of assistance.300.181 Exception for prior LEA or State

agency policies and procedures on filewith the SEA.

300.182 Amendments to LEA policies andprocedures.

300.183 [Reserved]300.184 Excess cost requirement.300.185 Meeting the excess cost

requirement.300.186—300.189 [Reserved]300.190 Joint establishment of eligibility.300.191 [Reserved]300.192 Requirements for establishing

eligibility.300.193 [Reserved]300.194 State agency eligibility.300.195 [Reserved]300.196 Notification of LEA or State agency

in case of ineligibility.300.197 LEA and State agency compliance.

LEA and State Agency Eligibility—SpecificConditions300.220 Consistency with State policies.300.221 Implementation of CSPD.300.222—300.229 [Reserved]300.230 Use of amounts.300.231 Maintenance of effort.300.232 Exception to maintenance of effort.300.233 Treatment of federal funds in

certain fiscal years.300.234 Schoolwide programs under title I

of the ESEA.300.235 Permissive use of funds.300.236—300.239 [Reserved]300.240 Information for SEA.300.241 Treatment of charter schools and

their students.300.242 Public information.300.243 [Reserved]300.244 Coordinated services system.

School-Based Improvement Plan300.245 School-based improvement plan.

300.246 Plan requirements.300.247 Responsibilities of the LEA.300.248 Limitation.300.249 Additional requirements.300.250 Extension of plan.

Secretary of the Interior—Eligibility300.260 Submission of information.300.261 Public participation.300.262 Use of Part B funds.300.263 Plan for coordination of services.300.264 Definitions.300.265 Establishment of advisory board.300.266 Annual report by advisory board.300.267 Applicable regulations.

Public Participation

300.280 Public hearings before adoptingState policies and procedures.

300.281 Notice.300.282 Opportunity to participate;

comment period.300.283 Review of public comments before

adopting policies and procedures.300.284 Publication and availability of

approved policies and procedures.

Subpart C—Services


300.300 Provision of FAPE.300.301 FAPE—methods and payments.300.302 Residential placement.300.303 Proper functioning of hearing aids.300.304 Full educational opportunity goal.300.305 Program options.300.306 Nonacademic services.300.307 Physical education.300.308 Assistive technology.300.309 Extended school year services.300.310 [Reserved]300.311 FAPE requirements for students

with disabilities in adult prisons.300.312 Children with disabilities in public

charter schools.300.313 Children experiencing

developmental delays.

Evaluations and Reevaluations

300.320 Initial evaluations.300.321 Reevaluations.300.322—300.324 [Reserved]

Individualized Education Programs

300.340 Definitions related to IEPs.300.341 Responsibility of SEA and other

public agencies for IEPs.300.342 When IEPs must be in effect.300.343 IEP Meetings.300.344 IEP team.300.345 Parent participation.300.346 Development, review, and revision

of IEP.300.347 Content of IEP.300.348 Agency responsibilities for

transition services.300.349 Private school placements by

public agencies.300.350 IEPs—accountability.

Direct Services by the Sea

300.360 Use of LEA allocation for directservices.

300.361 Nature and location of services.300.362—300.369 [Reserved]300.370 Use of SEA allocations.300.371 [Reserved]

300.372 Nonapplicability of requirementsthat prohibit commingling andsupplanting of funds.

Comprehensive System of PersonnelDevelopment (CSPD)

300.380 General CSPD requirements.300.381 Adequate supply of qualified

personnel.300.382 Improvement strategies.300.383—300.387 [Reserved]

Subpart D—Children in PrivateSchools

Children With Disabilities in Private SchoolsPlaced or Referred by Public Agencies

300.400 Applicability of §§ 300.400–300.402.

300.401 Responsibility of State educationalagency.

300.402 Implementation by Stateeducational agency.

Children With Disabilities Enrolled by TheirParents in Private Schools When FAPE is atIssue

300.403 Placement of children by parents ifFAPE is at issue.

Children With Disabilities Enrolled by TheirParents in Private Schools

300.450 Definition of ‘‘private schoolchildren with disabilities.’’

300.451 Child find for private schoolchildren with disabilities.

300.452 Provision of services—basicrequirement.

300.453 Expenditures.300.454 Services determined.300.455 Services provided.300.456 Location of services;

transportation.300.457 Complaints.300.458 Separate classes prohibited.300.459 Requirement that funds not benefit

a private school.300.460 Use of public school personnel.300.461 Use of private school personnel.300.462 Requirements concerning property,

equipment, and supplies for the benefitof private school children withdisabilities.

Procedures for By-Pass

300.480 By-pass—general.300.481 Provisions for services under a by-

pass.300.482 Notice of intent to implement a by-

pass.300.483 Request to show cause.300.484 Show cause hearing.300.485 Decision.300.486 Filing requirements.300.487 Judicial review.

Subpart E—Procedural Safeguards


300.500 General responsibility of publicagencies; definitions.

300.501 Opportunity to examine records;parent participation in meetings.

300.502 Independent educationalevaluation.



300.503 Prior notice by the public agency;content of notice.

300.504 Procedural safeguards notice.300.505 Parental consent.300.506 Mediation.300.507 Impartial due process hearing;

parent notice.300.508 Impartial hearing officer.300.509 Hearing rights.300.510 Finality of decision; appeal;

impartial review.300.511 Timelines and convenience of

hearings and reviews.300.512 Civil action.300.513 Attorneys’ fees.300.514 Child’s status during proceedings.300.515 Surrogate parents.300.516 [Reserved]300.517 Transfer of parental rights at age of

majority.

Discipline Procedures300.519 Change of placement for

disciplinary removals.300.520 Authority of school personnel.300.521 Authority of hearing officer.300.522 Determination of setting.300.523 Manifestation determination

review.300.524 Determination that behavior was

not manifestation of disability.300.525 Parent appeal.300.526 Placement during appeals.300.527 Protections for children not yet

eligible for special education and relatedservices.

300.528 Expedited due process hearings.300.529 Referral to and action by law

enforcement and judicial authorities.

Procedures for Evaluation andDetermination of Eligibility300.530 General.300.531 Initial evaluation.300.532 Evaluation procedures.300.533 Determination of needed

evaluation data.300.534 Determination of eligibility.300.535 Procedures for determining

eligibility and placement.300.536 Reevaluation.

Additional Procedures for EvaluatingChildren With Specific Learning Disabilities300.540 Additional team members.300.541 Criteria for determining the

existence of a specific learning disability.300.542 Observation.300.543 Written report.

Least Restrictive Environment (LRE)300.550 General LRE requirements.300.551 Continuum of alternative

placements.300.552 Placements.300.553 Nonacademic settings.300.554 Children in public or private

institutions.300.555 Technical assistance and training

activities.300.556 Monitoring activities.

Confidentiality of Information300.560 Definitions.300.561 Notice to parents.300.562 Access rights.300.563 Record of access.

300.564 Records on more than one child.300.565 List of types and locations of

information.300.566 Fees.300.567 Amendment of records at parent’s

request.300.568 Opportunity for a hearing.300.569 Result of hearing.300.570 Hearing procedures.300.571 Consent.300.572 Safeguards.300.573 Destruction of information.300.574 Children’s rights.300.575 Enforcement.300.576 Disciplinary information.300.577 Department use of personally

identifiable information.

Department Procedures300.580 Determination by the Secretary that

a State is eligible.300.581 Notice and hearing before

determining that a State is not eligible.300.582 Hearing official or panel.300.583 Hearing procedures.300.584 Initial decision; final decision.300.585 Filing requirements.300.586 Judicial review.300.587 Enforcement.300.588 [Reserved]300.589 Waiver of requirement regarding

supplementing and not supplanting withPart B funds.

Subpart F—State Administration

General300.600 Responsibility for all educational

programs.300.601 Relation of Part B to other Federal

programs.300.602 State-level activities.

Use of Funds300.620 Use of funds for State

administration.300.621 Allowable costs.300.622 Subgrants to LEAs for capacity-

building and improvement.300.623 Amount required for subgrants to

LEAs.300.624 State discretion in awarding

subgrants.

State Advisory Panel300.650 Establishment of advisory panels.300.651 Membership.300.652 Advisory panel functions.300.653 Advisory panel procedures.

State Complaint Procedures300.660 Adoption of State complaint

procedures.300.661 Minimum State complaint

procedures.300.662 Filing a complaint.

Subpart G—Allocation of Funds; Reports

Allocations300.700 Special definition of the term

‘‘State.’’300.701 Grants to States.300.702 Definition.300.703 Allocations to States.300.704–300.705 [Reserved]300.706 Permanent formula.300.707 Increase in funds.

300.708 Limitation.300.709 Decrease in funds.300.710 Allocation for State in which by-

pass is implemented for private schoolchildren with disabilities.

300.711 Subgrants to LEAs.300.712 Allocations to LEAs.300.713 Former Chapter 1 State agencies.300.714 Reallocation of LEA funds.300.715 Payments to the Secretary of the

Interior for the education of Indianchildren.

300.716 Payments for education andservices for Indian children withdisabilities aged 3 through 5.

300.717 Outlying areas and freelyassociated States.

300.718 Outlying area—definition.300.719 Limitation for freely associated

States.300.720 Special rule.300.721 [Reserved]300.722 Definition.

Reports

300.750 Annual report of children served—report requirement.

300.751 Annual report of children served—information required in the report.

300.752 Annual report of children served—certification.

300.753 Annual report of children served—criteria for counting children.

300.754 Annual report of children served—other responsibilities of the SEA.

300.755 Disproportionality.300.756 Acquisition of equipment;

construction or alteration of facilities.Appendix A to Part 300—Notice of

InterpretationAppendix B to Part 300—Index for IDEA—

Part B RegulationsAuthority: 20 U.S.C. 1411–1420, unless

otherwise noted.

Subpart A—General

Purposes, Applicability, andRegulations That Apply to ThisProgram

§ 300.1 Purposes.

The purposes of this part are—(a) To ensure that all children with

disabilities have available to them a freeappropriate public education thatemphasizes special education andrelated services designed to meet theirunique needs and prepare them foremployment and independent living;

(b) To ensure that the rights ofchildren with disabilities and theirparents are protected;

(c) To assist States, localities,educational service agencies, andFederal agencies to provide for theeducation of all children withdisabilities; and

(d) To assess and ensure theeffectiveness of efforts to educatechildren with disabilities.(Authority: 20 U.S.C. 1400 note)



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

(a) States. This part applies to eachState that receives payments under PartB of the Act.

(b) Public agencies within the State.The provisions of this part—

(1) Apply to all political subdivisionsof the State that are involved in theeducation 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 nototherwise included as LEAs or ESAsand are not a school of an LEA or ESA;

(iii) Other State agencies and schools(such as Departments of Mental Healthand Welfare and State schools forchildren with deafness or children withblindness); and

(iv) State and local juvenile and adultcorrectional facilities; and

(2) Are binding on each public agencyin the State that provides specialeducation and related services tochildren with disabilities, regardless ofwhether that agency is receiving fundsunder Part B.

(c) Private schools and facilities. Eachpublic agency in the State is responsiblefor ensuring that the rights andprotections under Part B of the Act aregiven to children with disabilities—

(1) Referred to or placed in privateschools and facilities by that publicagency; or

(2) Placed in private schools by theirparents under the provisions of§ 300.403(c).(Authority: 20 U.S.C. 1412)

§ 300.3 Regulations that apply.The following regulations apply to

this program:(a) 34 CFR part 76 (State-

Administered Programs) except for§§ 76.125–76.137 and 76.650–76.662.

(b) 34 CFR part 77 (Definitions).(c) 34 CFR part 79 (Intergovernmental

Review of Department of EducationPrograms and Activities).

(d) 34 CFR part 80 (UniformAdministrative Requirements for Grantsand Cooperative Agreements to Stateand Local Governments).

(e) 34 CFR part 81 (General EducationProvisions Act—Enforcement).

(f) 34 CFR part 82 (New Restrictionson Lobbying).

(g) 34 CFR part 85 (Government-wideDebarment and Suspension(Nonprocurement) and Government-wide Requirements for Drug-FreeWorkplace (Grants)).

(h) The regulations in this part—34CFR part 300 (Assistance for Educationof Children with Disabilities).

(Authority: 20 U.S.C. 1221e–3(a)(1))

Definitions Used in This Part

§ 300.4 Act.As used in this part, Act means the

Individuals with Disabilities EducationAct (IDEA), as amended.(Authority: 20 U.S.C. 1400(a))

§ 300.5 Assistive technology device.As used in this part, Assistive

technology device means any item,piece of equipment, or product system,whether acquired commercially off theshelf, modified, or customized, that isused to increase, maintain, or improvethe functional capabilities of a childwith a disability.(Authority: 20 U.S.C. 1401(1))

§ 300.6 Assistive technology service.As used in this part, Assistive

technology service means any servicethat directly assists a child with adisability 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 afunctional evaluation of the child in thechild’s customary environment;

(b) Purchasing, leasing, or otherwiseproviding for the acquisition of assistivetechnology devices by children withdisabilities;

(c) Selecting, designing, fitting,customizing, adapting, applying,maintaining, repairing, or replacingassistive technology devices;

(d) Coordinating and using othertherapies, interventions, or serviceswith assistive technology devices, suchas those associated with existingeducation and rehabilitation plans andprograms;

(e) Training or technical assistance fora child with a disability or, ifappropriate, that child’s family; and

(f) Training or technical assistance forprofessionals (including individualsproviding education or rehabilitationservices), employers, or otherindividuals who provide services to,employ, or are otherwise substantiallyinvolved in the major life functions ofthat child.(Authority: 20 U.S.C. 1401(2))

§ 300.7 Child with a disability.(a) General. (1) As used in this part,

the term child with a disability means achild evaluated in accordance with§§ 300.530–300.536 as having mentalretardation, a hearing impairmentincluding deafness, a speech orlanguage impairment, a visualimpairment including blindness, seriousemotional disturbance (hereafter

referred to as emotional disturbance), anorthopedic impairment, autism,traumatic brain injury, an other healthimpairment, a specific learningdisability, deaf-blindness, or multipledisabilities, and who, by reason thereof,needs special education and relatedservices.

(2)(i) Subject to paragraph (a)(2)(ii) ofthis section, if it is determined, throughan appropriate evaluation under§§ 300.530–300.536, that a child has oneof the disabilities identified inparagraph (a)(1) of this section, but onlyneeds a related service and not specialeducation, the child is not a child witha disability under this part.

(ii) If, consistent with § 300.26(a)(2),the related service required by the childis considered special education ratherthan a related service under Statestandards, the child would bedetermined to be a child with adisability under paragraph (a)(1) of thissection.

(b) Children aged 3 through 9experiencing developmental delays. Theterm child with a disability for childrenaged 3 through 9 may, at the discretionof the State and LEA and in accordancewith § 300.313, include a child—

(1) Who is experiencingdevelopmental delays, as defined by theState and as measured by appropriatediagnostic instruments and procedures,in one or more of the following areas:physical development, cognitivedevelopment, communicationdevelopment, social or emotionaldevelopment, or adaptive development;and

(2) Who, by reason thereof, needsspecial education and related services.

(c) Definitions of disability terms. Theterms used in this definition are definedas follows:

(1)(i) Autism means a developmentaldisability significantly affecting verbaland nonverbal communication andsocial interaction, generally evidentbefore age 3, that adversely affects achild’s educational performance. Othercharacteristics often associated withautism are engagement in repetitiveactivities and stereotyped movements,resistance to environmental change orchange in daily routines, and unusualresponses to sensory experiences. Theterm does not apply if a child’seducational performance is adverselyaffected primarily because the child hasan emotional disturbance, as defined inparagraph (b)(4) of this section.

(ii) A child who manifests thecharacteristics of ‘‘autism’’ after age 3could be diagnosed as having ‘‘autism’’if the criteria in paragraph (c)(1)(i) ofthis section are satisfied.



(2) Deaf-blindness means concomitanthearing and visual impairments, thecombination of which causes suchsevere communication and otherdevelopmental and educational needsthat they cannot be accommodated inspecial education programs solely forchildren with deafness or children withblindness.

(3) Deafness means a hearingimpairment that is so severe that thechild is impaired in processinglinguistic information through hearing,with or without amplification, thatadversely affects a child’s educationalperformance.

(4) Emotional disturbance is definedas follows:

(i) The term means a conditionexhibiting one or more of the followingcharacteristics over a long period oftime and to a marked degree thatadversely affects a child’s educationalperformance:

(A) An inability to learn that cannotbe explained by intellectual, sensory, orhealth factors.

(B) An inability to build or maintainsatisfactory interpersonal relationshipswith peers and teachers.

(C) Inappropriate types of behavior orfeelings under normal circumstances.

(D) A general pervasive mood ofunhappiness or depression.

(E) A tendency to develop physicalsymptoms or fears associated withpersonal or school problems.

(ii) The term includes schizophrenia.The term does not apply to childrenwho are socially maladjusted, unless itis determined that they have anemotional disturbance.

(5) Hearing impairment means animpairment in hearing, whetherpermanent or fluctuating, that adverselyaffects a child’s educationalperformance but that is not includedunder the definition of deafness in thissection.

(6) Mental retardation meanssignificantly subaverage generalintellectual functioning, existingconcurrently with deficits in adaptivebehavior and manifested during thedevelopmental period, that adverselyaffects a child’s educationalperformance.

(7) Multiple disabilities meansconcomitant impairments (such asmental retardation-blindness, mentalretardation-orthopedic impairment,etc.), the combination of which causessuch severe educational needs that theycannot be accommodated in specialeducation programs solely for one of theimpairments. The term does not includedeaf-blindness.

(8) Orthopedic impairment means asevere orthopedic impairment that

adversely affects a child’s educationalperformance. The term includesimpairments caused by congenitalanomaly (e.g., clubfoot, absence of somemember, etc.), impairments caused bydisease (e.g., poliomyelitis, bonetuberculosis, etc.), and impairmentsfrom other causes (e.g., cerebral palsy,amputations, and fractures or burns thatcause contractures).

(9) Other health impairment meanshaving limited strength, vitality oralertness, including a heightenedalertness to environmental stimuli, thatresults in limited alertness with respectto the educational environment, that—

(i) Is due to chronic or acute healthproblems such as asthma, attentiondeficit disorder or attention deficithyperactivity disorder, diabetes,epilepsy, a heart condition, hemophilia,lead poisoning, leukemia, nephritis,rheumatic fever, and sickle cell anemia;and

(ii) Adversely affects a child’seducational performance.

(10) Specific learning disability isdefined as follows:

(i) General. The term means a disorderin one or more of the basicpsychological processes involved inunderstanding or in using language,spoken or written, that may manifestitself in an imperfect ability to listen,think, speak, read, write, spell, or to domathematical calculations, includingconditions such as perceptualdisabilities, brain injury, minimal braindysfunction, dyslexia, anddevelopmental aphasia.

(ii) Disorders not included. The termdoes not include learning problems thatare primarily the result of visual,hearing, or motor disabilities, of mentalretardation, of emotional disturbance, orof environmental, cultural, or economicdisadvantage.

(11) Speech or language impairmentmeans a communication disorder, suchas stuttering, impaired articulation, alanguage impairment, or a voiceimpairment, that adversely affects achild’s educational performance.

(12) Traumatic brain injury means anacquired injury to the brain caused byan external physical force, resulting intotal or partial functional disability orpsychosocial impairment, or both, thatadversely affects a child’s educationalperformance. The term applies to openor closed head injuries resulting inimpairments in one or more areas, suchas cognition; language; memory;attention; reasoning; abstract thinking;judgment; problem-solving; sensory,perceptual, and motor abilities;psychosocial behavior; physicalfunctions; information processing; andspeech. The term does not apply to

brain injuries that are congenital ordegenerative, or to brain injuriesinduced by birth trauma.

(13) Visual impairment includingblindness means an impairment invision that, even with correction,adversely affects a child’s educationalperformance. The term includes bothpartial sight and blindness.(Authority: 20 U.S.C. 1401(3)(A) and (B);1401(26))

§ 300.8 Consent.As used in this part, the term consent

has the meaning given that term in§ 300.500(b)(1).(Authority: 20 U.S.C. 1415(a))

§ 300.9 Day; business day; school day.As used in this part, the term—(a) Day means calendar day unless

otherwise indicated as business day orschool day;

(b) Business day means Mondaythrough Friday, except for Federal andState holidays (unless holidays arespecifically included in the designationof business day, as in§ 300.403(d)(1)(ii)); and

(c)(1) School day means any day,including a partial day, that children arein attendance at school for instructionalpurposes.

(2) The term school day has the samemeaning for all children in school,including children with and withoutdisabilities.(Authority: 20 U.S.C. 1221e–3)

§ 300.10 Educational service agency.As used in this part, the term

educational service agency—(a) Means a regional public

multiservice agency—(1) Authorized by State law to

develop, manage, and provide servicesor programs to LEAs; and

(2) Recognized as an administrativeagency for purposes of the provision ofspecial education and related servicesprovided within public elementary andsecondary schools of the State;

(b) Includes any other publicinstitution or agency havingadministrative control and directionover a public elementary or secondaryschool; and

(c) Includes entities that meet thedefinition of intermediate educationalunit in section 602(23) of IDEA as ineffect prior to June 4, 1997.(Authority: 20 U.S.C. 1401(4))

§ 300.11 Equipment.

As used in this part, the termequipment means—

(a) Machinery, utilities, and built-inequipment and any necessary



enclosures or structures to house themachinery, utilities, or equipment; and

(b) All other items necessary for thefunctioning of a particular facility as afacility for the provision of educationalservices, including items such asinstructional equipment and necessaryfurniture; printed, published and audio-visual instructional materials;telecommunications, sensory, and othertechnological aids and devices; andbooks, periodicals, documents, andother related materials.(Authority: 20 U.S.C. 1401(6))

§ 300.12 Evaluation.As used in this part, the term

evaluation has the meaning given thatterm in § 300.500(b)(2).(Authority: 20 U.S.C. 1415(a))

§ 300.13 Free appropriate publiceducation.

As used in this part, the term freeappropriate public education or FAPEmeans special education and relatedservices that—

(a) Are provided at public expense,under public supervision and direction,and without charge;

(b) Meet the standards of the SEA,including the requirements of this part;

(c) Include preschool, elementaryschool, or secondary school educationin the State; and

(d) Are provided in conformity withan individualized education program(IEP) that meets the requirements of§§ 300.340–300.350.(Authority: 20 U.S.C. 1401(8))

§ 300.14 Include.As used in this part, the term include

means that the items named are not allof the possible items that are covered,whether like or unlike the ones named.(Authority: 20 U.S.C. 1221e–3)

§ 300.15 Individualized education program.As used in this part, the term

individualized education program orIEP has the meaning given the term in§ 300.340(a).(Authority: 20 U.S.C. 1401(11))

§ 300.16 Individualized education programteam.

As used in this part, the termindividualized education program teamor IEP team means a group ofindividuals described in § 300.344 thatis responsible for developing, reviewing,or revising an IEP for a child with adisability.(Authority: 20 U.S.C. 1221e–3)

§ 300.17 Individualized family service plan.As used in this part, the term

individualized family service plan or

IFSP has the meaning given the term in34 CFR 303.340(b).(Authority: 20 U.S.C. 1401(12))

§ 300.18 Local educational agency.

(a) As used in this part, the term localeducational agency means a publicboard of education or other publicauthority legally constituted within aState for either administrative control ordirection of, or to perform a servicefunction for, public elementary orsecondary schools in a city, county,township, school district, or otherpolitical subdivision of a State, or for acombination of school districts orcounties as are recognized in a State asan administrative agency for its publicelementary or secondary schools.

(b) The term includes—(1) An educational service agency, as

defined in § 300.10;(2) Any other public institution or

agency having administrative controland direction of a public elementary orsecondary school, including a publiccharter school that is established as anLEA under State law; and

(3) An elementary or secondaryschool funded by the Bureau of IndianAffairs, and not subject to thejurisdiction of any SEA other than theBureau of Indian Affairs, but only to theextent that the inclusion makes theschool eligible for programs for whichspecific eligibility is not provided to theschool in another provision of law andthe school does not have a studentpopulation that is smaller than thestudent population of the LEA receivingassistance under this Act with thesmallest student population.(Authority: 20 U.S.C. 1401(15))

§ 300.19 Native language.

(a) As used in this part, the termnative language, if used with referenceto an individual of limited Englishproficiency, means the following:

(1) The language normally used bythat individual, or, in the case of achild, the language normally used bythe parents of the child, except asprovided in paragraph (a)(2) of thissection.

(2) In all direct contact with a child(including evaluation of the child), thelanguage normally used by the child inthe home or learning environment.

(b) For an individual with deafness orblindness, or for an individual with nowritten language, the mode ofcommunication is that normally used bythe individual (such as sign language,braille, or oral communication).(Authority: 20 U.S.C. 1401(16))

§ 300.20 Parent.(a) General. As used in this part, the

term parent means—(1) A natural or adoptive parent of a

child;(2) A guardian but not the State if the

child is a ward of the State;(3) A person acting in the place of a

parent (such as a grandparent orstepparent with whom the child lives,or a person who is legally responsiblefor the child’s welfare); or

(4) A surrogate parent who has beenappointed in accordance with § 300.515.

(b) Foster parent. Unless State lawprohibits a foster parent from acting asa parent, a State may allow a fosterparent to act as a parent under Part Bof the Act if—

(1) The natural parents’ authority tomake educational decisions on thechild’s behalf has been extinguishedunder State law; and

(2) The foster parent—(i) Has an ongoing, long-term parental

relationship with the child;(ii) Is willing to make the educational

decisions required of parents under theAct; and

(iii) Has no interest that wouldconflict with the interests of the child.(Authority: 20 U.S.C. 1401(19))

§ 300.21 Personally identifiableAs used in this part, the term

personally identifiable has the meaninggiven that term in § 300.500(b)(3).(Authority: 20 U.S.C. 1415(a))

§ 300.22 Public agency.As used in this part, the term public

agency includes the SEA, LEAs, ESAs,public charter schools that are nototherwise included as LEAs or ESAsand are not a school of an LEA or ESA,and any other political subdivisions ofthe State that are responsible forproviding education to children withdisabilities.(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))

§ 300.23 Qualified personnel.As used in this part, the term

qualified personnel means personnelwho have met SEA-approved or SEA-recognized certification, licensing,registration, or other comparablerequirements that apply to the area inwhich the individuals are providingspecial education or related services.(Authority: 20 U.S.C. 1221e–3)

§ 300.24 Related services.(a) General. As used in this part, the

term related services meanstransportation and such developmental,corrective, and other supportive servicesas are required to assist a child with a



disability to benefit from specialeducation, and includes speech-language pathology and audiologyservices, psychological services,physical and occupational therapy,recreation, including therapeuticrecreation, early identification andassessment of disabilities in children,counseling services, includingrehabilitation counseling, orientationand mobility services, and medicalservices for diagnostic or evaluationpurposes. The term also includes schoolhealth services, social work services inschools, and parent counseling andtraining.

(b) Individual terms defined. Theterms used in this definition are definedas follows:

(1) Audiology includes—(i) Identification of children with

hearing loss;(ii) Determination of the range, nature,

and degree of hearing loss, includingreferral for medical or other professionalattention for the habilitation of hearing;

(iii) Provision of habilitativeactivities, such as language habilitation,auditory training, speech reading (lip-reading), hearing evaluation, and speechconservation;

(iv) Creation and administration ofprograms for prevention of hearing loss;

(v) Counseling and guidance ofchildren, parents, and teachersregarding hearing loss; and

(vi) Determination of children’s needsfor group and individual amplification,selecting and fitting an appropriate aid,and evaluating the effectiveness ofamplification.

(2) Counseling services means servicesprovided by qualified social workers,psychologists, guidance counselors, orother qualified personnel.

(3) Early identification andassessment of disabilities in childrenmeans the implementation of a formalplan for identifying a disability as earlyas possible in a child’s life.

(4) Medical services means servicesprovided by a licensed physician todetermine a child’s medically relateddisability that results in the child’s needfor special education and relatedservices.

(5) Occupational therapy—(i) Means services provided by a

qualified occupational therapist; and(ii) Includes—(A) Improving, developing or

restoring functions impaired or lostthrough illness, injury, or deprivation;

(B) Improving ability to perform tasksfor independent functioning if functionsare impaired or lost; and

(C) Preventing, through earlyintervention, initial or furtherimpairment or loss of function.

(6) Orientation and mobilityservices—

(i) Means services provided to blindor visually impaired students byqualified personnel to enable thosestudents to attain systematic orientationto and safe movement within theirenvironments in school, home, andcommunity; and

(ii) Includes teaching students thefollowing, as appropriate:

(A) Spatial and environmentalconcepts and use of informationreceived by the senses (such as sound,temperature and vibrations) to establish,maintain, or regain orientation and lineof travel (e.g., using sound at a trafficlight to cross the street);

(B) To use the long cane tosupplement visual travel skills or as atool for safely negotiating theenvironment for students with noavailable travel vision;

(C) To understand and use remainingvision and distance low vision aids; and

(D) Other concepts, techniques, andtools.

(7) Parent counseling and trainingmeans—

(i) Assisting parents in understandingthe special needs of their child;

(ii) Providing parents withinformation about child development;and

(iii) Helping parents to acquire thenecessary skills that will allow them tosupport the implementation of theirchild’s IEP or IFSP.

(8) Physical therapy means servicesprovided by a qualified physicaltherapist.

(9) Psychological services includes—(i) Administering psychological and

educational tests, and other assessmentprocedures;

(ii) Interpreting assessment results;(iii) Obtaining, integrating, and

interpreting information about childbehavior and conditions relating tolearning;

(iv) Consulting with other staffmembers in planning school programsto meet the special needs of children asindicated by psychological tests,interviews, and behavioral evaluations;

(v) Planning and managing a programof psychological services, includingpsychological counseling for childrenand parents; and

(vi) Assisting in developing positivebehavioral intervention strategies.

(10) Recreation includes—(i) Assessment of leisure function;(ii) Therapeutic recreation services;(iii) Recreation programs in schools

and community agencies; and(iv) Leisure education.(11) Rehabilitation counseling

services means services provided by

qualified personnel in individual orgroup sessions that focus specifically oncareer development, employmentpreparation, achieving independence,and integration in the workplace andcommunity of a student with adisability. The term also includesvocational rehabilitation servicesprovided to a student with disabilitiesby vocational rehabilitation programsfunded under the Rehabilitation Act of1973, as amended.

(12) School health services meansservices provided by a qualified schoolnurse or other qualified person.

(13) Social work services in schoolsincludes—

(i) Preparing a social ordevelopmental history on a child witha disability;

(ii) Group and individual counselingwith the child and family;

(iii) Working in partnership withparents and others on those problems ina child’s living situation (home, school,and community) that affect the child’sadjustment in school;

(iv) Mobilizing school and communityresources to enable the child to learn aseffectively as possible in his or hereducational program; and

(v) Assisting in developing positivebehavioral intervention strategies.

(14) Speech-language pathologyservices includes—

(i) Identification of children withspeech or language impairments;

(ii) Diagnosis and appraisal of specificspeech or language impairments;

(iii) Referral for medical or otherprofessional attention necessary for thehabilitation of speech or languageimpairments;

(iv) Provision of speech and languageservices for the habilitation orprevention of communicativeimpairments; and

(v) Counseling and guidance ofparents, children, and teachersregarding speech and languageimpairments.

(15) Transportation includes—(i) Travel to and from school and

between schools;(ii) Travel in and around school

buildings; and(iii) Specialized equipment (such as

special or adapted buses, lifts, andramps), if required to provide specialtransportation for a child with adisability.(Authority: 20 U.S.C. 1401(22))

§ 300.25 Secondary school.As used in this part, the term

secondary school means a nonprofitinstitutional day or residential schoolthat provides secondary education, asdetermined under State law, except that



it does not include any educationbeyond grade 12.(Authority: 20 U.S.C. 1401(23))

§ 300.26 Special education.(a) General. (1) As used in this part,

the term special education meansspecially designed instruction, at nocost to the parents, to meet the uniqueneeds of a child with a disability,including—

(i) Instruction conducted in theclassroom, in the home, in hospitals andinstitutions, and in other settings; and

(ii) Instruction in physical education.(2) The term includes each of the

following, if it meets the requirementsof paragraph (a)(1) of this section:

(i) Speech-language pathologyservices, or any other related service, ifthe service is considered specialeducation rather than a related serviceunder State standards;

(ii) Travel training; and(iii) Vocational education.(b) Individual terms defined. The

terms in this definition are defined asfollows:

(1) At no cost means that all specially-designed instruction is providedwithout charge, but does not precludeincidental fees that are normallycharged to nondisabled students or theirparents as a part of the regulareducation program.

(2) Physical education—(i) Means the development of—(A) Physical and motor fitness;(B) Fundamental motor skills and

patterns; and(C) Skills in aquatics, dance, and

individual and group games and sports(including intramural and lifetimesports); and

(ii) Includes special physicaleducation, adapted physical education,movement education, and motordevelopment.

(3) Specially-designed instructionmeans adapting, as appropriate to theneeds of an eligible child under thispart, the content, methodology, ordelivery of instruction—

(i) To address the unique needs of thechild that result from the child’sdisability; and

(ii) To ensure access of the child tothe general curriculum, so that he or shecan meet the educational standardswithin the jurisdiction of the publicagency that apply to all children.

(4) Travel training means providinginstruction, as appropriate, to childrenwith significant cognitive disabilities,and any other children with disabilitieswho require this instruction, to enablethem to—

(i) Develop an awareness of theenvironment in which they live; and

(ii) Learn the skills necessary to moveeffectively and safely from place toplace within that environment (e.g., inschool, in the home, at work, and in thecommunity).

(5) Vocational education meansorganized educational programs that aredirectly related to the preparation ofindividuals for paid or unpaidemployment, or for additionalpreparation for a career requiring otherthan a baccalaureate or advanceddegree.(Authority: 20 U.S.C. 1401(25))

§ 300.27 State.As used in this part, the term State

means each of the 50 States, the Districtof Columbia, the Commonwealth ofPuerto Rico, and each of the outlyingareas.(Authority: 20 U.S.C. 1401(27))

§ 300.28 Supplementary aids and services.As used in this part, the term

supplementary aids and services means,aids, services, and other supports thatare provided in regular educationclasses or other education-relatedsettings to enable children withdisabilities to be educated withnondisabled children to the maximumextent appropriate in accordance with§§ 300.550–300.556.(Authority: 20 U.S.C. 1401(29))

§ 300.29 Transition services.(a) As used in this part, transition

services means a coordinated set ofactivities for a student with a disabilitythat—

(1) Is designed within an outcome-oriented process, that promotesmovement from school to post-schoolactivities, including postsecondaryeducation, vocational training,integrated employment (includingsupported employment), continuing andadult education, adult services,independent living, or communityparticipation;

(2) Is based on the individualstudent’s needs, taking into account thestudent’s preferences and interests; and

(3) Includes—(i) Instruction;(ii) Related services;(iii) Community experiences;(iv) The development of employment

and other post-school adult livingobjectives; and

(v) If appropriate, acquisition of dailyliving skills and functional vocationalevaluation.

(b) Transition services for studentswith disabilities may be specialeducation, if provided as speciallydesigned instruction, or related services,

if required to assist a student with adisability to benefit from specialeducation.(Authority: 20 U.S.C. 1401(30))

§ 300.30 Definitions in EDGAR.The following terms used in this part

are defined in 34 CFR 77.1:ApplicationAwardContractDepartmentEDGARElementary schoolFiscal yearGrantNonprofitProjectSecretarySubgrantState educational agency(Authority: 20 U.S.C. 1221e–3(a)(1))

Subpart B—State and Local Eligibility

State Eligibility—General

§ 300.110 Condition of assistance.(a) A State is eligible for assistance

under Part B of the Act for a fiscal yearif the State demonstrates to thesatisfaction of the Secretary that theState has in effect policies andprocedures to ensure that it meets theconditions in §§ 300.121–300.156.

(b) To meet the requirement ofparagraph (a) of this section, the Statemust have on file with the Secretary—

(1) The information specified in§§ 300.121–300.156 that the State usesto implement the requirements of thispart; and

(2) Copies of all applicable Statestatutes, regulations, and other Statedocuments that show the basis of thatinformation.(Authority: 20 U.S.C. 1412(a))

§ 300.111 Exception for prior State policiesand procedures on file with the Secretary.

If a State has on file with theSecretary policies and proceduresapproved by the Secretary thatdemonstrate that the State meets anyrequirement of § 300.110, including anypolicies and procedures filed under PartB of the Act as in effect before June 4,1997, the Secretary considers the Stateto have met the requirement forpurposes of receiving a grant under PartB of the Act.(Authority: 20 U.S.C. 1412(c)(1))

§ 300.112 Amendments to State policiesand procedures.

(a) Modifications made by a State. (1)Subject to paragraph (b) of this section,policies and procedures submitted by aState in accordance with this subpart



remain in effect until the State submitsto the Secretary the modifications thatthe State decides are necessary.

(2) The provisions of this subpartapply to a modification to a State’spolicies and procedures in the samemanner and to the same extent that theyapply to the State’s original policies andprocedures.

(b) Modifications required by theSecretary. The Secretary may require aState to modify its policies andprocedures, but only to the extentnecessary to ensure the State’scompliance with this part, if—

(1) After June 4, 1997, the provisionsof the Act or the regulations in this partare amended;

(2) There is a new interpretation ofthis Act or regulations by a Federalcourt or a State’s highest court; or

(3) There is an official finding ofnoncompliance with Federal law orregulations.(Authority: 20 U.S.C. 1412(c)(2) and (3))

§ 300.113 Approval by the Secretary.

(a) General. If the Secretarydetermines that a State is eligible toreceive a grant under Part B of the Act,the Secretary notifies the State of thatdetermination.

(b) Notice and hearing beforedetermining a State is not eligible. TheSecretary does not make a finaldetermination that a State is not eligibleto receive a grant under Part B of the Actuntil after providing the Statereasonable notice and an opportunityfor a hearing in accordance with theprocedures in §§ 300.581–300.586.(Authority: 20 U.S.C. 1412(d))

§§ 300.114—300.120 [Reserved]

State Eligibility—Specific Conditions

§ 300.121 Free appropriate publiceducation (FAPE).

(a) General. Each State must have onfile with the Secretary information thatshows that, subject to § 300.122, theState has in effect a policy that ensuresthat all children with disabilities aged 3through 21 residing in the State have theright to FAPE, including children withdisabilities who have been suspended orexpelled from school.

(b) Required information. Theinformation described in paragraph (a)of this section must—

(1) Include a copy of each Statestatute, court order, State AttorneyGeneral opinion, and other Statedocuments that show the source of theState’s policy relating to FAPE; and

(2) Show that the policy—(i)(A) Applies to all public agencies in

the State; and

(B) Is consistent with therequirements of §§ 300.300–300.313;and

(ii) Applies to all children withdisabilities, including children whohave been suspended or expelled fromschool.

(c) FAPE for children beginning at age3. (1) Each State shall ensure that—

(i) The obligation to make FAPEavailable to each eligible child residingin the State begins no later than thechild’s third birthday; and

(ii) An IEP or an IFSP is in effect forthe child by that date, in accordancewith § 300.342(c).

(2) If a child’s third birthday occursduring the summer, the child’s IEP teamshall determine the date when servicesunder the IEP or IFSP will begin.

(d) FAPE for children suspended orexpelled from school. (1) A publicagency need not provide services duringperiods of removal under § 300.520(a)(1)to a child with a disability who has beenremoved from his or her currentplacement for 10 school days or less inthat school year, if services are notprovided to a child without disabilitieswho has been similarly removed.

(2) In the case of a child with adisability who has been removed fromhis or her current placement for morethan 10 school days in that school year,the public agency, for the remainder ofthe removals, must—

(i) Provide services to the extentnecessary to enable the child toappropriately progress in the generalcurriculum and appropriately advancetoward achieving the goals set out in thechild’s IEP, if the removal is—

(A) Under the school personnel’sauthority to remove for not more than10 consecutive school days as long asthat removal does not constitute achange of placement under § 300.519(b)(§ 300.520((a)(1)); or

(B) For behavior that is not amanifestation of the child’s disability,consistent with § 300.524; and

(ii) Provide services consistent with§ 300.522, regarding determination ofthe appropriate interim alternativeeducational setting, if the removal is—

(A) For drug or weapons offensesunder § 300.520(a)(2); or

(B) Based on a hearing officerdetermination that maintaining thecurrent placement of the child issubstantially likely to result in injury tothe child or to others if he or sheremains in the current placement,consistent with § 300.521.

(3)(i) School personnel, inconsultation with the child’s specialeducation teacher, determine the extentto which services are necessary toenable the child to appropriately

progress in the general curriculum andappropriately advance toward achievingthe goals set out in the child’s IEP if thechild is removed under the authority ofschool personnel to remove for not morethan 10 consecutive school days as longas that removal does not constitute achange of placement under § 300.519(§ 300.520(a)(1)).

(ii) The child’s IEP team determinesthe extent to which services arenecessary to enable the child toappropriately progress in the generalcurriculum and appropriately advancetoward achieving the goals set out in thechild’s IEP if the child is removedbecause of behavior that has beendetermined not to be a manifestation ofthe child’s disability, consistent with§ 300.524.

(e) Children advancing from grade tograde. (1) Each State shall ensure thatFAPE is available to any individualchild with a disability who needsspecial education and related services,even though the child is advancing fromgrade to grade.

(2) The determination that a childdescribed in paragraph (a)(1) of thissection is eligible under this part, mustbe made on an individual basis by thegroup responsible within the child’sLEA for making those determinations.(Authority: 20 U.S.C. 1412(a)(1))

§ 300.122 Exception to FAPE for certainages.

(a) General. The obligation to makeFAPE available to all children withdisabilities does not apply with respectto the following:

(1) Children aged 3, 4, 5, 18, 19, 20,or 21 in a State to the extent that itsapplication to those children would beinconsistent with State law or practice,or the order of any court, respecting theprovision of public education tochildren in one or more of those agegroups.

(2)(i) Students aged 18 through 21 tothe extent that State law does notrequire that special education andrelated services under Part B of the Actbe provided to students with disabilitieswho, in the last educational placementprior to their incarceration in an adultcorrectional facility—

(A) Were not actually identified asbeing a child with a disability under§ 300.7; and

(B) Did not have an IEP under Part Bof the Act.

(ii) The exception in paragraph(a)(2)(i) of this section does not apply tostudents with disabilities, aged 18through 21, who—

(A) Had been identified as a childwith disability and had receivedservices in accordance with an IEP, but



who left school prior to theirincarceration; or

(B) Did not have an IEP in their lasteducational setting, but who hadactually been identified as a ‘‘child witha disability’’ under § 300.7.

(3)(i) Students with disabilities whohave graduated from high school with aregular high school diploma.

(ii) The exception in paragraph(a)(3)(i) of this section does not apply tostudents who have graduated but havenot been awarded a regular high schooldiploma.

(iii) Graduation from high school witha regular diploma constitutes a changein placement, requiring written priornotice in accordance with § 300.503.

(b) Documents relating to exceptions.The State must have on file with theSecretary—

(1)(i) Information that describes indetail the extent to which the exceptionin paragraph (a)(1) of this sectionapplies to the State; and

(ii) A copy of each State law, courtorder, and other documents that providea basis for the exception; and

(2) With respect to paragraph (a)(2) ofthis section, a copy of the State law thatexcludes from services under Part B ofthe Act certain students who areincarcerated in an adult correctionalfacility.(Authority: 20 U.S.C. 1412(a)(1)(B))

§ 300.123 Full educational opportunitygoal (FEOG).

The State must have on file with theSecretary detailed policies andprocedures through which the State hasestablished a goal of providing fulleducational opportunity to all childrenwith disabilities aged birth through 21.(Authority: 20 U.S.C. 1412(a)(2))

§ 300.124 FEOG—timetable.

The State must have on file with theSecretary a detailed timetable foraccomplishing the goal of providing fulleducational opportunity for all childrenwith disabilities.(Authority: 20 U.S.C. 1412(a)(2))

§ 300.125 Child find.

(a) General requirement. (1) The Statemust have in effect policies andprocedures to ensure that—

(i) All children with disabilitiesresiding in the State, including childrenwith disabilities attending privateschools, regardless of the severity oftheir disability, and who are in need ofspecial education and related services,are identified, located, and evaluated;and

(ii) A practical method is developedand implemented to determine which

children are currently receiving neededspecial education and related services.

(2) The requirements of paragraph(a)(1) of this section apply to—

(i) Highly mobile children withdisabilities (such as migrant andhomeless children); and

(ii) Children who are suspected ofbeing a child with a disability under§ 300.7 and in need of specialeducation, even though they areadvancing from grade to grade.

(b) Documents relating to child find.The State must have on file with theSecretary the policies and proceduresdescribed in paragraph (a) of thissection, including—

(1) The name of the State agency (ifother than the SEA) responsible forcoordinating the planning andimplementation of the policies andprocedures under paragraph (a) of thissection;

(2) The name of each agency thatparticipates in the planning andimplementation of the child findactivities and a description of the natureand extent of its participation;

(3) A description of how the policiesand procedures under paragraph (a) ofthis section will be monitored to ensurethat the SEA obtains—

(i) The number of children withdisabilities within each disabilitycategory that have been identified,located, and evaluated; and

(ii) Information adequate to evaluatethe effectiveness of those policies andprocedures; and

(4) A description of the method theState uses to determine which childrenare currently receiving specialeducation and related services.

(c) Child find for children from birththrough age 2 when the SEA and leadagency for the Part C program aredifferent. (1) In States where the SEAand the State’s lead agency for the PartC program are different and the Part Clead agency will be participating in thechild find activities described inparagraph (a) of this section, adescription of the nature and extent ofthe Part C lead agency’s participationmust be included under paragraph (b)(2)of this section.

(2) With the SEA’s agreement, the PartC lead agency’s participation mayinclude the actual implementation ofchild find activities for infants andtoddlers with disabilities.

(3) The use of an interagencyagreement or other mechanism forproviding for the Part C lead agency’sparticipation does not alter or diminishthe responsibility of the SEA to ensurecompliance with the requirements ofthis section.

(d) Construction. Nothing in the Actrequires that children be classified bytheir disability so long as each childwho has a disability listed in § 300.7and who, by reason of that disability,needs special education and relatedservices is regarded as a child with adisability under Part B of the Act.

(e) Confidentiality of child find data.The collection and use of data to meetthe requirements of this section aresubject to the confidentialityrequirements of §§ 300.560–300.577.(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))

§ 300.126 Procedures for evaluation anddetermination of eligibility.

The State must have on file with theSecretary policies and procedures thatensure that the requirements of§§ 300.530–300.536 are met.(Authority: 20 U.S.C. 1412(a)(6)(B), (7))

§ 300.127 Confidentiality of personallyidentifiable information.

(a) The State must have on file indetail the policies and procedures thatthe State has undertaken to ensureprotection of the confidentiality of anypersonally identifiable information,collected, used, or maintained underPart B of the Act.

(b) The Secretary uses the criteria in§§ 300.560–300.576 to evaluate thepolicies and procedures of the Stateunder paragraph (a) of this section.(Authority: 20 U.S.C. 1412(a)(8))

§ 300.128 Individualized educationprograms.

(a) General. The State must have onfile with the Secretary information thatshows that an IEP, or an IFSP that meetsthe requirements of section 636(d) of theAct, is developed, reviewed, and revisedfor each child with a disability inaccordance with §§ 300.340–300.350.

(b) Required information. Theinformation described in paragraph (a)of this section must include—

(1) A copy of each State statute,policy, and standard that regulates themanner in which IEPs are developed,implemented, reviewed, and revised;and

(2) The procedures that the SEAfollows in monitoring and evaluatingthose IEPs or IFSPs.(Authority: 20 U.S.C. 1412(a)(4))

§ 300.129 Procedural safeguards.(a) The State must have on file with

the Secretary procedural safeguards thatensure that the requirements of§§ 300.500–300.529 are met.

(b) Children with disabilities andtheir parents must be afforded theprocedural safeguards identified inparagraph (a) of this section.



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

§ 300.130 Least restrictive environment.

(a) General. The State must have onfile with the Secretary procedures thatensure that the requirements of§§ 300.550–300.556 are met, includingthe provision in § 300.551 requiring acontinuum of alternative placements tomeet the unique needs of each childwith a disability.

(b) Additional requirement. (1) If theState uses a funding mechanism bywhich the State distributes State fundson the basis of the type of setting wherea child is served, the fundingmechanism may not result inplacements that violate therequirements of paragraph (a) of thissection.

(2) If the State does not have policiesand procedures to ensure compliancewith paragraph (b)(1) of this section, theState must provide the Secretary anassurance that the State will revise thefunding mechanism as soon as feasibleto ensure that the mechanism does notresult in placements that violate thatparagraph.(Authority: 20 U.S.C. 1412(a)(5))

§ 300.131 [Reserved]

§ 300.132 Transition of children from PartC to preschool programs.

The State must have on file with theSecretary policies and procedures toensure that—

(a) Children participating in early-intervention programs assisted underPart C of the Act, and who willparticipate in preschool programsassisted under Part B of the Act,experience a smooth and effectivetransition to those preschool programsin a manner consistent with section637(a)(8) of the Act;

(b) By the third birthday of a childdescribed in paragraph (a) of thissection, an IEP or, if consistent with§ 300.342(c) and section 636(d) of theAct, an IFSP, has been developed and isbeing implemented for the childconsistent with § 300.121(c); and

(c) Each LEA will participate intransition planning conferencesarranged by the designated lead agencyunder section 637(a)(8) of the Act.(Authority: 20 U.S.C. 1412(a)(9))

§ 300.133 Children in private schools.

The State must have on file with theSecretary policies and procedures thatensure that the requirements of§§ 300.400–300.403 and §§ 300.450–300.462 are met.(Authority: 20 U.S.C. 1413(a)(4))


§ 300.135 Comprehensive system ofpersonnel development.

(a) General. The State must have ineffect, consistent with the purposes ofthis part and with section 635(a)(8) ofthe Act, a comprehensive system ofpersonnel development that—

(1) Is designed to ensure an adequatesupply of qualified special education,regular education, and related servicespersonnel; and

(2) Meets the requirements for a Stateimprovement plan relating to personneldevelopment in section 653(b)(2)(B) and(c)(3)(D) of the Act.

(b) Information. The State must haveon file with the Secretary informationthat shows that the requirements ofparagraph (a) of this section are met.(Authority: 20 U.S.C. 1412(a)(14))

§ 300.136 Personnel standards.(a) Definitions. As used in this part—(1) Appropriate professional

requirements in the State means entrylevel requirements that—

(i) Are based on the highestrequirements in the State applicable tothe profession or discipline in which aperson is providing special education orrelated services; and

(ii) Establish suitable qualificationsfor personnel providing specialeducation and related services underPart B of the Act to children withdisabilities who are served by State,local, and private agencies (see § 300.2);

(2) Highest requirements in the Stateapplicable to a specific profession ordiscipline means the highest entry-levelacademic degree needed for any State-approved or -recognized certification,licensing, registration, or othercomparable requirements that apply tothat profession or discipline;

(3) Profession or discipline means aspecific occupational category that—

(i) Provides special education andrelated services to children withdisabilities under Part B of the Act;

(ii) Has been established or designatedby the State;

(iii) Has a required scope ofresponsibility and degree ofsupervision; and

(iv) Is not limited to traditionaloccupational categories; and

(4) State-approved or -recognizedcertification, licensing, registration, orother comparable requirements meansthe requirements that a State legislatureeither has enacted or has authorized aState agency to promulgate throughrules to establish the entry-levelstandards for employment in a specificprofession or discipline in that State.

(b) Policies and procedures. (1)(i) TheState must have on file with the

Secretary policies and proceduresrelating to the establishment andmaintenance of standards to ensure thatpersonnel necessary to carry out thepurposes of this part are appropriatelyand adequately prepared and trained.

(ii) The policies and proceduresrequired in paragraph (b)(1)(i) of thissection must provide for theestablishment and maintenance ofstandards that are consistent with anyState-approved or -recognizedcertification, licensing, registration, orother comparable requirements thatapply to the profession or discipline inwhich a person is providing specialeducation or related services.

(2) Each State may—(i) Determine the specific

occupational categories required toprovide special education and relatedservices within the State; and

(ii) Revise or expand those categoriesas needed.

(3) Nothing in this part requires aState to establish a specified trainingstandard (e.g., a masters degree) forpersonnel who provide specialeducation and related services underPart B of the Act.

(4) A State with only one entry-levelacademic degree for employment ofpersonnel in a specific profession ordiscipline may modify that standard asnecessary to ensure the provision ofFAPE to all children with disabilities inthe State without violating therequirements of this section.

(c) Steps for retraining or hiringpersonnel. To the extent that a State’sstandards for a profession or discipline,including standards for temporary oremergency certification, are not basedon the highest requirements in the Stateapplicable to a specific profession ordiscipline, the State must provide thesteps the State is taking and theprocedures for notifying public agenciesand personnel of those steps and thetimelines it has established for theretraining or hiring of personnel to meetappropriate professional requirementsin the State.

(d) Status of personnel standards inthe State. (1) In meeting therequirements in paragraphs (b) and (c)of this section, a determination must bemade about the status of personnelstandards in the State. Thatdetermination must be based on currentinformation that accurately describes,for each profession or discipline inwhich personnel are providing specialeducation or related services, whetherthe applicable standards are consistentwith the highest requirements in theState for that profession or discipline.

(2) The information required inparagraph (d)(1) of this section must be



on file in the SEA and available to thepublic.

(e) Applicability of State statutes andagency rules. In identifying the highestrequirements in the State for purposesof this section, the requirements of allState statutes and the rules of all Stateagencies applicable to serving childrenwith disabilities must be considered.

(f) Use of paraprofessionals andassistants. A State may allowparaprofessionals and assistants who areappropriately trained and supervised, inaccordance with State law, regulations,or written policy, in meeting therequirements of this part to be used toassist in the provision of specialeducation and related services tochildren with disabilities under Part Bof the Act.

(g) Policy to address shortage ofpersonnel. (1) In implementing thissection, a State may adopt a policy thatincludes a requirement that LEAs in theState make an ongoing good faith effortto recruit and hire appropriately andadequately trained personnel to providespecial education and related services tochildren with disabilities, including, ina geographic area of the State wherethere is a shortage of personnel thatmeet these qualifications, the mostqualified individuals available who aremaking satisfactory progress towardcompleting applicable course worknecessary to meet the standardsdescribed in paragraph (b)(2) of thissection, consistent with State law andthe steps described in paragraph (c) ofthis section, within three years.

(2) If a State has reached itsestablished date under paragraph (c) ofthis section, the State may still exercisethe option under paragraph (g)(1) of thissection for training or hiring allpersonnel in a specific profession ordiscipline to meet appropriateprofessional requirements in the State.

(3)(i) Each State must have amechanism for serving children withdisabilities if instructional needs exceedavailable personnel who meetappropriate professional requirementsin the State for a specific profession ordiscipline.

(ii) A State that continues toexperience shortages of qualifiedpersonnel must address those shortagesin its comprehensive system ofpersonnel development under§ 300.135.(Authority: 20 U.S.C. 1412(a)(15))

§ 300.137 Performance goals andindicators.

The State must have on file with theSecretary information to demonstratethat the State—

(a) Has established goals for theperformance of children withdisabilities in the State that—

(1) Will promote the purposes of thispart, as stated in § 300.1; and

(2) Are consistent, to the maximumextent appropriate, with other goals andstandards for all children established bythe State;

(b) Has established performanceindicators that the State will use toassess progress toward achieving thosegoals that, at a minimum, address theperformance of children withdisabilities on assessments, drop-outrates, and graduation rates;

(c) Every two years, will report to theSecretary and the public on the progressof the State, and of children withdisabilities in the State, toward meetingthe goals established under paragraph(a) of this section; and

(d) Based on its assessment of thatprogress, will revise its Stateimprovement plan under subpart 1 ofPart D of the Act as may be needed toimprove its performance, if the Statereceives assistance under that subpart.(Authority: 20 U.S.C. 1412(a)(16))

§ 300.138 Participation in assessments.The State must have on file with the

Secretary information to demonstratethat—

(a) Children with disabilities areincluded in general State and district-wide assessment programs, withappropriate accommodations andmodifications in administration, ifnecessary;

(b) As appropriate, the State or LEA—(1) Develops guidelines for the

participation of children withdisabilities in alternate assessments forthose children who cannot participatein State and district-wide assessmentprograms;

(2) Develops alternate assessments inaccordance with paragraph (b)(1) of thissection; and

(3) Beginning not later than, July 1,2000, conducts the alternateassessments described in paragraph(b)(2) of this section.(Authority: 20 U.S.C. 1412(a)(17)(A))

§ 300.139 Reports relating toassessments.

(a) General. In implementing therequirements of § 300.138, the SEA shallmake available to the public, and reportto the public with the same frequencyand in the same detail as it reports onthe assessment of nondisabled children,the following information:

(1) The number of children withdisabilities participating—

(i) In regular assessments; and(ii) In alternate assessments.

(2) The performance results of thechildren described in paragraph (a)(1) ofthis section if doing so would bestatistically sound and would not resultin the disclosure of performance resultsidentifiable to individual children—

(i) On regular assessments (beginningnot later than July 1, 1998); and

(ii) On alternate assessments (not laterthan July 1, 2000).

(b) Combined reports. Reports to thepublic under paragraph (a) of thissection must include—

(1) Aggregated data that include theperformance of children withdisabilities together with all otherchildren; and

(2) Disaggregated data on theperformance of children withdisabilities.

(c) Timeline for disaggregation ofdata. Data relating to the performance ofchildren described under paragraph(a)(2) of this section must bedisaggregated—

(1) For assessments conducted afterJuly 1, 1998; and

(2) For assessments conducted beforeJuly 1, 1998, if the State is required todisaggregate the data prior to July 1,1998.(Authority: 20 U.S.C. 612(a)(17)(B))


§ 300.141 SEA responsibility for generalsupervision.

(a) The State must have on file withthe Secretary information that showsthat the requirements of § 300.600 aremet.

(b) The information described underparagraph (a) of this section mustinclude a copy of each State statute,State regulation, signed agreementbetween respective agency officials, andany other documents that showcompliance with that paragraph.(Authority: 20 U.S.C. 1412(a)(11))

§ 300.142 Methods of ensuring services.(a) Establishing responsibility for

services. The Chief Executive Officer ordesignee of that officer shall ensure thatan interagency agreement or othermechanism for interagency coordinationis in effect between eachnoneducational public agency describedin paragraph (b) of this section and theSEA, in order to ensure that all servicesdescribed in paragraph (b)(1) of thissection that are needed to ensure FAPEare provided, including the provision ofthese services during the pendency ofany dispute under paragraph (a)(3) ofthis section. The agreement ormechanism must include the following:

(1) Agency financial responsibility.An identification of, or a method for



defining, the financial responsibility ofeach agency for providing servicesdescribed in paragraph (b)(1) of thissection to ensure FAPE to children withdisabilities. The financial responsibilityof each noneducational public agencydescribed in paragraph (b) of thissection, including the State Medicaidagency and other public insurers ofchildren with disabilities, must precedethe financial responsibility of the LEA(or the State agency responsible fordeveloping the child’s IEP).

(2) Conditions and terms ofreimbursement. The conditions, terms,and procedures under which an LEAmust be reimbursed by other agencies.

(3) Interagency disputes. Proceduresfor resolving interagency disputes(including procedures under whichLEAs may initiate proceedings) underthe agreement or other mechanism tosecure reimbursement from otheragencies or otherwise implement theprovisions of the agreement ormechanism.

(4) Coordination of servicesprocedures. Policies and procedures foragencies to determine and identify theinteragency coordinationresponsibilities of each agency topromote the coordination and timelyand appropriate delivery of servicesdescribed in paragraph (b)(1) of thissection.

(b) Obligation of noneducationalpublic agencies. (1) General. (i) If anypublic agency other than an educationalagency is otherwise obligated underFederal or State law, or assignedresponsibility under State policy orpursuant to paragraph (a) of this section,to provide or pay for any services thatare also considered special education orrelated services (such as, but not limitedto, services described in § 300.5 relatingto assistive technology devices, § 300.6relating to assistive technology services,§ 300.24 relating to related services,§ 300.28 relating to supplementary aidsand services, and § 300.29 relating totransition services) that are necessaryfor ensuring FAPE to children withdisabilities within the State, the publicagency shall fulfill that obligation orresponsibility, either directly or throughcontract or other arrangement.

(ii) A noneducational public agencydescribed in paragraph (b)(1)(i) of thissection may not disqualify an eligibleservice for Medicaid reimbursementbecause that service is provided in aschool context.

(2) Reimbursement for services bynoneducational public agency. If apublic agency other than an educationalagency fails to provide or pay for thespecial education and related servicesdescribed in paragraph (b)(1) of this

section, the LEA (or State agencyresponsible for developing the child’sIEP) shall provide or pay for theseservices to the child in a timely manner.The LEA or State agency may then claimreimbursement for the services from thenoneducational public agency thatfailed to provide or pay for theseservices and that agency shall reimbursethe LEA or State agency in accordancewith the terms of the interagencyagreement or other mechanismdescribed in paragraph (a)(1) of thissection, and the agreement described inparagraph (a)(2) of this section.

(c) Special rule. The requirements ofparagraph (a) of this section may be metthrough—

(1) State statute or regulation;(2) Signed agreements between

respective agency officials that clearlyidentify the responsibilities of eachagency relating to the provision ofservices; or

(3) Other appropriate written methodsas determined by the Chief ExecutiveOfficer of the State or designee of thatofficer.

(d) Information. The State must haveon file with the Secretary information todemonstrate that the requirements ofparagraphs (a) through (c) of this sectionare met.

(e) Children with disabilities who arecovered by public insurance. (1) Apublic agency may use the Medicaid orother public insurance benefitsprograms in which a child participatesto provide or pay for services requiredunder this part, as permitted under thepublic insurance program, except asprovided in paragraph (e)(2) of thissection.

(2) With regard to services required toprovide FAPE to an eligible child underthis part, the public agency—

(i) May not require parents to sign upfor or enroll in public insuranceprograms in order for their child toreceive FAPE under Part B of the Act;

(ii) May not require parents to incuran out-of-pocket expense such as thepayment of a deductible or co-payamount incurred in filing a claim forservices provided pursuant to this part,but pursuant to paragraph (g)(2) of thissection, may pay the cost that the parentotherwise would be required to pay; and

(iii) May not use a child’s benefitsunder a public insurance program if thatuse would—

(A) Decrease available lifetimecoverage or any other insured benefit;

(B) Result in the family paying forservices that would otherwise becovered by the public insuranceprogram and that are required for thechild outside of the time the child is inschool;

(C) Increase premiums or lead to thediscontinuation of insurance; or

(D) Risk loss of eligibility for homeand community-based waivers, based onaggregate health-related expenditures.

(f) Children with disabilities who arecovered by private insurance. (1) Withregard to services required to provideFAPE to an eligible child under thispart, a public agency may access aparent’s private insurance proceeds onlyif the parent provides informed consentconsistent with § 300.500(b)(1).

(2) Each time the public agencyproposes to access the parent’s privateinsurance proceeds, it must—

(i) Obtain parent consent inaccordance with paragraph (f)(1) of thissection; and

(ii) Inform the parents that theirrefusal to permit the public agency toaccess their private insurance does notrelieve the public agency of itsresponsibility to ensure that all requiredservices are provided at no cost to theparents.

(g) Use of Part B funds. (1) If a publicagency is unable to obtain parentalconsent to use the parent’s privateinsurance, or public insurance when theparent would incur a cost for a specifiedservice required under this part, toensure FAPE the public agency may useits Part B funds to pay for the service.

(2) To avoid financial cost to parentswho otherwise would consent to useprivate insurance, or public insurance ifthe parent would incur a cost, thepublic agency may use its Part B fundsto pay the cost the parents otherwisewould have to pay to use the parent’sinsurance (e.g., the deductible or co-payamounts).

(h) Proceeds from public or privateinsurance. (1) Proceeds from public orprivate insurance will not be treated asprogram income for purposes of 34 CFR80.25.

(2) If a public agency spendsreimbursements from Federal funds(e.g., Medicaid) for services under thispart, those funds will not be considered‘‘State or local’’ funds for purposes ofthe maintenance of effort provisions in§§ 300.154 and 300.231.

(i) Construction. Nothing in this partshould be construed to alter therequirements imposed on a StateMedicaid agency, or any other agencyadministering a public insuranceprogram by Federal statute, regulationsor policy under title XIX, or title XXI ofthe Social Security Act, or any otherpublic insurance program.(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and(C); 1401(8))



§ 300.143 SEA implementation ofprocedural safeguards.

The State must have on file with theSecretary the procedures that the SEA(and any agency assigned responsibilitypursuant to § 300.600(d)) follows toinform each public agency of itsresponsibility for ensuring effectiveimplementation of proceduralsafeguards for the children withdisabilities served by that publicagency.

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

§ 300.144 Hearings relating to LEAeligibility.

The State must have on file with theSecretary procedures to ensure that theSEA does not make any finaldetermination that an LEA is noteligible for assistance under Part B ofthe Act without first giving the LEAreasonable notice and an opportunityfor a hearing under 34 CFR 76.401(d).

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

§ 300.145 Recovery of funds formisclassified children.

The State must have on file with theSecretary policies and procedures thatensure that the State seeks to recoverany funds provided under Part B of theAct for services to a child who isdetermined to be erroneously classifiedas eligible to be counted under section611(a) or (d) of the Act.

(Authority: 20 U.S.C. 1221e–3(a)(1))

§ 300.146 Suspension and expulsion rates.

The State must have on file with theSecretary information to demonstratethat the following requirements are met:

(a) General. The SEA examines data todetermine if significant discrepanciesare occurring in the rate of long-termsuspensions and expulsions of childrenwith disabilities—

(1) Among LEAs in the State; or(2) Compared to the rates for

nondisabled children within theagencies.

(b) Review and revision of policies. Ifthe discrepancies described inparagraph (a) of this section areoccurring, the SEA reviews and, ifappropriate, revises (or requires theaffected State agency or LEA to revise)its policies, procedures, and practicesrelating to the development andimplementation of IEPs, the use ofbehavioral interventions, andprocedural safeguards, to ensure thatthese policies, procedures, and practicescomply with the Act.

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

§ 300.147 Additional information if SEAprovides direct services.

(a) If the SEA provides FAPE tochildren with disabilities, or providesdirect services to these children, theagency—

(1) Shall comply with any additionalrequirements of §§ 300.220–300.230(a)and 300.234–300.250 as if the agencywere an LEA; and

(2) May use amounts that areotherwise available to the agency underPart B of the Act to serve those childrenwithout regard to § 300.184 (relating toexcess costs).

(b) The SEA must have on file withthe Secretary information todemonstrate that it meets therequirements of paragraph (a)(1) of thissection.(Authority: 20 U.S.C. 1412(b))

§ 300.148 Public participation.

(a) General; exception. (1) Subject toparagraph (a)(2) of this section, eachState must ensure that, prior to theadoption of any policies and proceduresneeded to comply with this part, thereare public hearings, adequate notice ofthe hearings, and an opportunity forcomment available to the general public,including individuals with disabilitiesand parents of children with disabilitiesconsistent with §§ 300.280–300.284.

(2) A State will be considered to havemet paragraph (a)(1) of this section withregard to a policy or procedure neededto comply with this part if it candemonstrate that prior to the adoptionof that policy or procedure, the policyor procedure was subjected to a publicreview and comment process that isrequired by the State for other purposesand is comparable to and consistentwith the requirements of §§ 300.280–300.284.

(b) Documentation. The State musthave on file with the Secretaryinformation to demonstrate that therequirements of paragraph (a) of thissection are met.(Authority: 20 U.S.C. 1412(a)(20))


§ 300.150 State advisory panel.

The State must have on file with theSecretary information to demonstratethat the State has established andmaintains an advisory panel for thepurpose of providing policy guidancewith respect to special education andrelated services for children withdisabilities in the State in accordancewith the requirements of §§ 300.650–300.653.(Authority: 20 U.S.C. 1412(a)(21)(A))


§ 300.152 Prohibition againstcommingling.

(a) The State must have on file withthe Secretary an assurance satisfactoryto the Secretary that the funds underPart B of the Act are not commingledwith State funds.

(b) The assurance in paragraph (a) ofthis section is satisfied by the use of aseparate accounting system thatincludes an audit trail of theexpenditure of the Part B funds.Separate bank accounts are not required.(See 34 CFR 76.702 (Fiscal control andfund accounting procedures).)(Authority: 20 U.S.C. 1412(a)(18)(B))

§ 300.153 State-level nonsupplanting.(a) General. (1) Except as provided in

§ 300.230, funds paid to a State underPart B of the Act must be used tosupplement the level of Federal, State,and local funds (including funds thatare not under the direct control of theSEA or LEAs) expended for specialeducation and related services providedto children with disabilities under PartB of the Act and in no case to supplantthese Federal, State, and local funds.

(2) The State must have on file withthe Secretary information todemonstrate to the satisfaction of theSecretary that the requirements ofparagraph (a)(1) of this section are met.

(b) Waiver. If the State provides clearand convincing evidence that allchildren with disabilities have availableto them FAPE, the Secretary may waive,in whole or in part, the requirements ofparagraph (a) of this section if theSecretary concurs with the evidenceprovided by the State under § 300.589.(Authority: 20 U.S.C. 1412(a)(18)(c))

§ 300.154 Maintenance of State financialsupport.

(a) General. The State must have onfile with the Secretary information todemonstrate, on either a total or per-capita basis, that the State will notreduce the amount of State financialsupport for special education andrelated services for children withdisabilities, or otherwise made availablebecause of the excess costs of educatingthose children, below the amount of thatsupport for the preceding fiscal year.

(b) Reduction of funds for failure tomaintain support. The Secretaryreduces the allocation of funds undersection 611 of the Act for any fiscal yearfollowing the fiscal year in which theState fails to comply with therequirement of paragraph (a) of thissection by the same amount by whichthe State fails to meet the requirement.

(c) Waivers for exceptional oruncontrollable circumstances. The



Secretary may waive the requirement ofparagraph (a) of this section for a State,for one fiscal year at a time, if theSecretary determines that—

(1) Granting a waiver would beequitable due to exceptional oruncontrollable circumstances such as anatural disaster or a precipitous andunforeseen decline in the financialresources of the State; or

(2) The State meets the standard in§ 300.589 for a waiver of therequirement to supplement, and not tosupplant, funds received under Part B ofthe Act.

(d) Subsequent years. If, for any fiscalyear, a State fails to meet therequirement of paragraph (a) of thissection, including any year for whichthe State is granted a waiver underparagraph (c) of this section, thefinancial support required of the Statein future years under paragraph (a) ofthis section must be the amount thatwould have been required in theabsence of that failure and not thereduced level of the State’s support.

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

§ 300.155 Policies and procedures for useof Part B funds.

The State must have on file with theSecretary policies and proceduresdesigned to ensure that funds paid tothe State under Part B of the Act arespent in accordance with the provisionsof Part B.

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

§ 300.156 Annual description of use ofPart B funds.

(a) In order to receive a grant in anyfiscal year a State must annuallydescribe—

(1) How amounts retained for State-level activities under § 300.602 will beused to meet the requirements of thispart;

(2) How those amounts will beallocated among the activities describedin §§ 300.621 and 300.370 to meet Statepriorities based on input from LEAs;and

(3) The percentage of those amounts,if any, that will be distributed to LEAsby formula.

(b) If a State’s plans for use of itsfunds under §§ 300.370 and 300.620 forthe forthcoming year do not changefrom the prior year, the State maysubmit a letter to that effect to meet therequirement in paragraph (a) of thissection.

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

LEA and State Agency Eeligibility—General

§ 300.180 Condition of assistance.An LEA or State agency is eligible for

assistance under Part B of the Act for afiscal year if the agency demonstrates tothe satisfaction of the SEA that it meetsthe conditions in §§ 300.220–300.250.(Authority: 20 U.S.C. 1413(a))

§ 300.181 Exception for prior LEA or Stateagency policies and procedures on file withthe SEA.

If an LEA or a State agency describedin § 300.194 has on file with the SEApolicies and procedures thatdemonstrate that the LEA or Stateagency meets any requirement of§ 300.180, including any policies andprocedures filed under Part B of the Actas in effect before June 4, 1997, the SEAshall consider the LEA or State agencyto have met the requirement forpurposes of receiving assistance underPart B of the Act.(Authority: 20 U.S.C. 1413(b)(1))

§ 300.182 Amendments to LEA policiesand procedures.

(a) Modification made by an LEA ora State agency. (1) Subject to paragraph(b) of this section, policies andprocedures submitted by an LEA or aState agency in accordance with thissubpart remain in effect until it submitsto the SEA the modifications that theLEA or State agency decides arenecessary.

(2) The provisions of this subpartapply to a modification to an LEA’s orState agency’s policies and proceduresin the same manner and to the sameextent that they apply to the LEA’s orState agency’s original policies andprocedures.

(b) Modifications required by the SEA.The SEA may require an LEA or a Stateagency to modify its policies andprocedures, but only to the extentnecessary to ensure the LEA’s or Stateagency’s compliance with this part, if—

(1) After June 4, 1997, the provisionsof the Act or the regulations in this partare amended;

(2) There is a new interpretation ofthe Act by Federal or State courts; or

(3) There is an official finding ofnoncompliance with Federal or Statelaw or regulations.(Authority: 20 U.S.C. 1413(b))


§ 300.184 Excess cost requirement.(a) General. Amounts provided to an

LEA under Part B of the Act may beused only to pay the excess costs ofproviding special education and relatedservices to children with disabilities.

(b) Definition. As used in this part, theterm excess costs means those costs thatare in excess of the average annual per-student expenditure in an LEA duringthe preceding school year for anelementary or secondary school student,as may be appropriate. Excess costsmust be computed after deducting—

(1) Amounts received—(i) Under Part B of the Act;(ii) Under Part A of title I of the

Elementary and Secondary EducationAct of 1965; or

(iii) Under Part A of title VII of thatAct; and

(2) Any State or local funds expendedfor programs that would qualify forassistance under any of those parts.

(c) LLimitation on use of Part B funds.(1) The excess cost requirementprevents an LEA from using fundsprovided under Part B of the Act to payfor all of the costs directly attributableto the education of a child with adisability, subject to paragraph (c)(2) ofthis section.

(2) The excess cost requirement doesnot prevent an LEA from using Part Bfunds to pay for all of the costs directlyattributable to the education of a childwith a disability in any of the ages 3, 4,5, 18, 19, 20, or 21, if no local or Statefunds are available for nondisabledchildren in that age range. However, theLEA must comply with thenonsupplanting and other requirementsof this part in providing the educationand services for these children.(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))

§ 300.185 Meeting the excess costrequirement.

(a)(1) General. An LEA meets theexcess cost requirement if it has spentat least a minimum average amount forthe education of its children withdisabilities before funds under Part B ofthe Act are used.

(2) The amount described inparagraph (a)(1) of this section isdetermined using the formula in§ 300.184(b). This amount may notinclude capital outlay or debt service.

(b) Joint establishment of eligibility. Iftwo or more LEAs jointly establisheligibility in accordance with § 300.190,the minimum average amount is theaverage of the combined minimumaverage amounts determined under§ 300.184 in those agencies forelementary or secondary schoolstudents, as the case may be.(Authority: 20 U.S.C. 1413(a)(2)(A))

§§ 300.186–300.189 [Reserved]

§ 300.190 Joint establishment of eligibility.(a) General. An SEA may require an

LEA to establish its eligibility jointly



with another LEA if the SEA determinesthat the LEA would be ineligible underthis section because the agency wouldnot be able to establish and maintainprograms of sufficient size and scope toeffectively meet the needs of childrenwith disabilities.

(b) Charter school exception. An SEAmay not require a charter school that isan LEA to jointly establish its eligibilityunder paragraph (a) of this sectionunless it is explicitly permitted to do sounder the State’s charter school statute.

(c) Amount of payments. If an SEArequires the joint establishment ofeligibility under paragraph (a) of thissection, the total amount of funds madeavailable to the affected LEAs must beequal to the sum of the payments thateach LEA would have received under§§ 300.711–300.714 if the agencies wereeligible for these payments.(Authority: 20 U.S.C. 1413(e)(1), and (2))


§ 300.192 Requirements for establishingeligibility.

(a) Requirements for LEAs in general.LEAs that establish joint eligibilityunder this section must—

(1) Adopt policies and proceduresthat are consistent with the State’spolicies and procedures under§§ 300.121–300.156; and

(2) Be jointly responsible forimplementing programs that receiveassistance under Part B of the Act.

(b) Requirements for educationalservice agencies in general. If aneducational service agency is requiredby State law to carry out programsunder Part B of the Act, the jointresponsibilities given to LEAs underPart B of the Act—

(1) Do not apply to the administrationand disbursement of any paymentsreceived by that educational serviceagency; and

(2) Must be carried out only by thateducational service agency.

(c) Additional requirement.Notwithstanding any other provision of§§ 300.190–300.192, an educationalservice agency shall provide for theeducation of children with disabilitiesin the least restrictive environment, asrequired by § 300.130.(Authority: 20 U.S.C. 1413(e)(3), and (4))


§ 300.194 State agency eligibility.Any State agency that desires to

receive a subgrant for any fiscal yearunder §§ 300.711–300.714 mustdemonstrate to the satisfaction of theSEA that—

(a) All children with disabilities whoare participating in programs and

projects funded under Part B of the Actreceive FAPE, and that those childrenand their parents are provided all therights and procedural safeguardsdescribed in this part; and

(b) The agency meets the otherconditions of this subpart that apply toLEAs.(Authority: 20 U.S.C. 1413(i))


§ 300.196 Notification of LEA or Stateagency in case of ineligibility.

If the SEA determines that an LEA orState agency is not eligible under Part Bof the Act, the SEA shall—

(a) Notify the LEA or State agency ofthat determination; and

(b) Provide the LEA or State agencywith reasonable notice and anopportunity for a hearing.(Authority: 20 U.S.C. 1413(c))

§ 300.197 LEA and State agencycompliance.

(a) General. If the SEA, afterreasonable notice and an opportunityfor a hearing, finds that an LEA or Stateagency that has been determined to beeligible under this section is failing tocomply with any requirement describedin §§ 300.220–300.250, the SEA shallreduce or may not provide any furtherpayments to the LEA or State agencyuntil the SEA is satisfied that the LEAor State agency is complying with thatrequirement.

(b) Notice requirement. Any Stateagency or LEA in receipt of a noticedescribed in paragraph (a) of thissection shall, by means of public notice,take the measures necessary to bring thependency of an action pursuant to thissection to the attention of the publicwithin the jurisdiction of the agency.

(c) In carrying out its functions underthis section, each SEA shall considerany decision resulting from a hearingunder §§ 300.507–300.528 that isadverse to the LEA or State agencyinvolved in the decision.(Authority: 20 U.S.C. 1413(d))

LEA and State Agency Eligibility—Specific Conditions

§ 300.220 Consistency with State policies.

(a) General. The LEA, in providing forthe education of children withdisabilities within its jurisdiction, musthave in effect policies, procedures, andprograms that are consistent with theState policies and proceduresestablished under §§ 300.121–300.156.

(b) Policies on file with SEA. The LEAmust have on file with the SEA thepolicies and procedures described inparagraph (a) of this section.

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

§ 300.221 Implementation of CSPD.The LEA must have on file with the

SEA information to demonstrate that—(a) All personnel necessary to carry

out Part B of the Act within thejurisdiction of the agency areappropriately and adequately prepared,consistent with the requirements of§§ 300.380–300.382; and

(b) To the extent the LEA determinesappropriate, it shall contribute to anduse the comprehensive system ofpersonnel development of the Stateestablished under § 300.135.(Authority: 20 U.S.C. 1413(a)(3))

§§ 300.222–300.229 [Reserved]

§ 300.230 Use of amounts.The LEA must have on file with the

SEA information to demonstrate thatamounts provided to the LEA under PartB of the Act—

(a) Will be expended in accordancewith the applicable provisions of thispart;

(b) Will be used only to pay the excesscosts of providing special education andrelated services to children withdisabilities, consistent with §§ 300.184–300.185; and

(c) Will be used to supplement State,local, and other Federal funds and notto supplant those funds.(Authority: 20 U.S.C. 1413(a)(2)(A))

§ 300.231 Maintenance of effort.(a) General. Except as provided in

§§ 300.232 and 300.233, funds providedto an LEA under Part B of the Act maynot be used to reduce the level ofexpenditures for the education ofchildren with disabilities made by theLEA from local funds below the level ofthose expenditures for the precedingfiscal year.

(b) Information. The LEA must haveon file with the SEA information todemonstrate that the requirements ofparagraph (a) of this section are met.

(c) Standard. (1) Except as providedin paragraph (c)(2) of this section, theSEA determines that an LEA complieswith paragraph (a) of this section forpurposes of establishing the LEA’seligibility for an award for a fiscal yearif the LEA budgets, for the education ofchildren with disabilities, at least thesame total or per-capita amount fromeither of the following sources as theLEA spent for that purpose from thesame source for the most recent prioryear for which information is available:

(i) Local funds only.(ii) The combination of State and local

funds.(2) An LEA that relies on paragraph

(c)(1)(i) of this section for any fiscal year



must ensure that the amount of localfunds it budgets for the education ofchildren with disabilities in that year isat least the same, either in total or percapita, as the amount it spent for thatpurpose in—

(i) The most recent fiscal year forwhich information is available, if thatyear is, or is before, the first fiscal yearbeginning on or after July 1, 1997; or

(ii) If later, the most recent fiscal yearfor which information is available andthe standard in paragraph (c)(1)(i) of thissection was used to establish itscompliance with this section.

(3) The SEA may not consider anyexpenditures made from funds providedby the Federal Government for whichthe SEA is required to account to theFederal Government or for which theLEA is required to account to theFederal Government directly or throughthe SEA in determining an LEA’scompliance with the requirement inparagraph (a) of this section.(Authority: 20 U.S.C. 1413(a)(2)(A))

§ 300.232 Exception to maintenance ofeffort.

An LEA may reduce the level ofexpenditures by the LEA under Part Bof the Act below the level of thoseexpenditures for the preceding fiscalyear if the reduction is attributable tothe following:

(a)(1) The voluntary departure, byretirement or otherwise, or departure forjust cause, of special education orrelated services personnel, who arereplaced by qualified, lower-salariedstaff.

(2) In order for an LEA to invoke theexception in paragraph (a)(1) of thissection, the LEA must ensure that thosevoluntary retirements or resignationsand replacements are in full conformitywith:

(i) Existing school board policies inthe agency;

(ii) The applicable collectivebargaining agreement in effect at thattime; and

(iii) Applicable State statutes.(b) A decrease in the enrollment of

children with disabilities.(c) The termination of the obligation

of the agency, consistent with this part,to provide a program of specialeducation to a particular child with adisability that is an exceptionally costlyprogram, as determined by the SEA,because the child—

(1) Has left the jurisdiction of theagency;

(2) Has reached the age at which theobligation of the agency to provideFAPE to the child has terminated; or

(3) No longer needs the program ofspecial education.

(d) The termination of costlyexpenditures for long-term purchases,such as the acquisition of equipment orthe construction of school facilities.(Authority: 20 U.S.C. 1413(a)(2)(B))

§ 300.233 Treatment of Federal funds incertain fiscal years.

(a)(1) Subject to paragraphs (a)(2) and(b) of this section, for any fiscal year forwhich amounts appropriated to carryout section 611 of the Act exceeds$4,100,000,000, an LEA may treat aslocal funds up to 20 percent of theamount of funds it receives under PartB of the Act that exceeds the amount itreceived under Part B of the Act for theprevious fiscal year.

(2) The requirements of §§ 300.230(c)and 300.231 do not apply with respectto the amount that may be treated aslocal funds under paragraph (a)(1) ofthis section.

(b) If an SEA determines that an LEAis not meeting the requirements of thispart, the SEA may prohibit the LEAfrom treating funds received under PartB of the Act as local funds underparagraph (a)(1) of this section for anyfiscal year, but only if it is authorizedto do so by the State constitution or aState statute.(Authority: 20 U.S.C. 1413(a)(2)(C))

§ 300.234 Schoolwide programs under titleI of the ESEA.

(a) General; limitation on amount ofPart B funds used. An LEA may usefunds received under Part B of the Actfor any fiscal year to carry out aschoolwide program under section 1114of the Elementary and SecondaryEducation Act of 1965, except that theamount used in any schoolwideprogram may not exceed—

(1)(i) The amount received by the LEAunder Part B for that fiscal year; dividedby

(ii) The number of children withdisabilities in the jurisdiction of theLEA; and multiplied by

(2) The number of children withdisabilities participating in theschoolwide program.

(b) Funding conditions. The fundsdescribed in paragraph (a) of thissection are subject to the followingconditions:

(1) The funds must be considered asFederal Part B funds for purposes of thecalculations required by §§ 300.230(b)and (c).

(2) The funds may be used withoutregard to the requirements of§ 300.230(a).

(c) Meeting other Part B requirements.Except as provided in paragraph (b) ofthis section, all other requirements ofPart B must be met by an LEA using Part

B funds in accordance with paragraph(a) of this section, including ensuringthat children with disabilities inschoolwide program schools—

(1) Receive services in accordancewith a properly developed IEP; and

(2) Are afforded all of the rights andservices guaranteed to children withdisabilities under the IDEA.(Authority: 20 U.S.C. 1413(a)(2)(D))

§ 300.235 Permissive use of funds.

(a) General. Subject to paragraph (b)of this section, funds provided to anLEA under Part B of the Act may beused for the following activities:

(1) Services and aids that also benefitnondisabled children. For the costs ofspecial education and related servicesand supplementary aids and servicesprovided in a regular class or othereducation-related setting to a child witha disability in accordance with the IEPof the child, even if one or morenondisabled children benefit from theseservices.

(2) Integrated and coordinatedservices system. To develop andimplement a fully integrated andcoordinated services system inaccordance with § 300.244.

(b) Non-applicability of certainprovisions. An LEA does not violate§§ 300.152, 300.230, and 300.231 basedon its use of funds provided under PartB of the Act in accordance withparagraphs (a)(1) and (a)(2) of thissection.(Authority: 20 U.S.C. 1413(a)(4))

§§ 300.236–300.239 [Reserved]

§ 300.240 Information for SEA.

(a) The LEA shall provide the SEAwith information necessary to enablethe SEA to carry out its duties underPart B of the Act, including, withrespect to §§ 300.137 and 300.138,information relating to the performanceof children with disabilitiesparticipating in programs carried outunder Part B of the Act.

(b) The LEA must have on file withthe SEA an assurance satisfactory to theSEA that the LEA will comply with therequirements of paragraph (a) of thissection.(Authority: 20 U.S.C. 1413(a)(6))

§ 300.241 Treatment of charter schoolsand their students.

The LEA must have on file with theSEA information to demonstrate that incarrying out this part with respect tocharter schools that are public schoolsof the LEA, the LEA will—

(a) Serve children with disabilitiesattending those schools in the same



manner as it serves children withdisabilities in its other schools; and

(b) Provide funds under Part B of theAct to those schools in the same manneras it provides those funds to its otherschools.(Authority: 20 U.S.C. 1413(a)(5))

§ 300.242 Public information.The LEA must have on file with the

SEA information to demonstrate to thesatisfaction of the SEA that it will makeavailable to parents of children withdisabilities and to the general public alldocuments relating to the eligibility ofthe agency under Part B of the Act.(Authority: 20 U.S.C. 1413(a)(7))


§ 300.244 Coordinated services system.(a) General. An LEA may not use more

than 5 percent of the amount the agencyreceives under Part B of the Act for anyfiscal year, in combination with otheramounts (which must include amountsother than education funds), to developand implement a coordinated servicessystem designed to improve results forchildren and families, includingchildren with disabilities and theirfamilies.

(b) Activities. In implementing acoordinated services system under thissection, an LEA may carry out activitiesthat include—

(1) Improving the effectiveness andefficiency of service delivery, includingdeveloping strategies that promoteaccountability for results;

(2) Service coordination and casemanagement that facilitate the linkage ofIEPs under Part B of the Act and IFSPsunder Part C of the Act withindividualized service plans undermultiple Federal and State programs,such as title I of the Rehabilitation Actof 1973 (vocational rehabilitation), titleXIX of the Social Security Act(Medicaid), and title XVI of the SocialSecurity Act (supplemental securityincome);

(3) Developing and implementinginteragency financing strategies for theprovision of education, health, mentalhealth, and social services, includingtransition services and related servicesunder the Act; and

(4) Interagency personneldevelopment for individuals working oncoordinated services.

(c) Coordination with certain projectsunder Elementary and SecondaryEducation Act of 1965. If an LEA iscarrying out a coordinated servicesproject under title XI of the Elementaryand Secondary Education Act of 1965and a coordinated services project underPart B of the Act in the same schools,

the agency shall use the amounts under§ 300.244 in accordance with therequirements of that title.(Authority: 20 U.S.C. 1413(f))

School-Based Improvement Plan

§ 300.245 School-based improvementplan.

(a) General. Each LEA may, inaccordance with paragraph (b) of thissection, use funds made available underPart B of the Act to permit a publicschool within the jurisdiction of theLEA to design, implement, and evaluatea school-based improvement plan that—

(1) Is consistent with the purposesdescribed in section 651(b) of the Act;and

(2) Is designed to improve educationaland transitional results for all childrenwith disabilities and, as appropriate, forother children consistent with§ 300.235(a) and (b) in that publicschool.

(b) Authority. (1) General. An SEAmay grant authority to an LEA to permita public school described in § 300.245(through a school-based standing panelestablished under § 300.247(b)) todesign, implement, and evaluate aschool-based improvement plandescribed in § 300.245 for a period notto exceed 3 years.

(2) Responsibility of LEA. If an SEAgrants the authority described inparagraph (b)(1) of this section, an LEAthat is granted this authority must havethe sole responsibility of oversight of allactivities relating to the design,implementation, and evaluation of anyschool-based improvement plan that apublic school is permitted to designunder this section.(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).

§ 300.246 Plan requirements.A school-based improvement plan

described in § 300.245 must—(a) Be designed to be consistent with

the purposes described in section 651(b)of the Act and to improve educationaland transitional results for all childrenwith disabilities and, as appropriate, forother children consistent with§ 300.235(a) and (b), who attend theschool for which the plan is designedand implemented;

(b) Be designed, evaluated, and, asappropriate, implemented by a school-based standing panel established inaccordance with § 300.247(b);

(c) Include goals and measurableindicators to assess the progress of thepublic school in meeting these goals;and

(d) Ensure that all children withdisabilities receive the servicesdescribed in their IEPs.

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

§ 300.247 Responsibilities of the LEA.An LEA that is granted authority

under § 300.245(b) to permit a publicschool to design, implement, andevaluate a school-based improvementplan shall—

(a) Select each school under thejurisdiction of the agency that is eligibleto design, implement, and evaluate theplan;

(b) Require each school selectedunder paragraph (a) of this section, inaccordance with criteria established bythe LEA under paragraph (c) of thissection, to establish a school-basedstanding panel to carry out the dutiesdescribed in § 300.246(b);

(c) Establish—(1) Criteria that must be used by the

LEA in the selection of an eligibleschool under paragraph (a) of thissection;

(2) Criteria that must be used by apublic school selected under paragraph(a) of this section in the establishmentof a school-based standing panel tocarry out the duties described in§ 300.246(b) and that ensure that themembership of the panel reflects thediversity of the community in which thepublic school is located and includes, ata minimum—

(i) Parents of children withdisabilities who attend a public school,including parents of children withdisabilities from unserved andunderserved populations, asappropriate;

(ii) Special education and generaleducation teachers of public schools;

(iii) Special education and generaleducation administrators, or thedesignee of those administrators, ofthose public schools; and

(iv) Related services providers whoare responsible for providing services tothe children with disabilities whoattend those public schools; and

(3) Criteria that must be used by theLEA with respect to the distribution offunds under Part B of the Act to carryout this section;

(d) Disseminate the criteriaestablished under paragraph (c) of thissection to local school district personneland local parent organizations withinthe jurisdiction of the LEA;

(e) Require a public school thatdesires to design, implement, andevaluate a school-based improvementplan to submit an application at thetime, in the manner and accompaniedby the information, that the LEA shallreasonably require; and

(f) Establish procedures for approvalby the LEA of a school-basedimprovement plan designed under PartB of the Act.



(Authority:1413(g)(4))

§ 300.248 Limitation.

A school-based improvement plandescribed in § 300.245(a) may besubmitted to an LEA for approval onlyif a consensus with respect to anymatter relating to the design,implementation, or evaluation of thegoals of the plan is reached by theschool-based standing panel thatdesigned the plan.(Authority: 20 U.S.C. 1413(g)(5))

§ 300.249 Additional requirements.

(a) Parental involvement. In carryingout the requirements of §§ 300.245–300.250, an LEA shall ensure that theparents of children with disabilities areinvolved in the design, evaluation, and,if appropriate, implementation ofschool-based improvement plans inaccordance with this section.

(b) Plan approval. An LEA mayapprove a school-based improvementplan of a public school within thejurisdiction of the agency for a period of3 years, if—

(1) The approval is consistent withthe policies, procedures, and practicesestablished by the LEA and inaccordance with §§ 300.245–300.250;and

(2) A majority of parents of childrenwho are members of the school-basedstanding panel, and a majority of othermembers of the school-based standingpanel that designed the plan, agree inwriting to the plan.(Authority: 20 U.S.C. 1413(g)(6))

§ 300.250 Extension of plan.

If a public school within thejurisdiction of an LEA meets theapplicable requirements and criteriadescribed in §§ 300.246 and 300.247 atthe expiration of the 3-year approvalperiod described § 300.249(b), theagency may approve a school-basedimprovement plan of the school for anadditional 3-year period.(Authority: 20 U.S.C. 1413(g)(7))

Secretary of the Interior—Eligibility

§ 300.260 Submission of information.

The Secretary may provide theSecretary of the Interior amounts under§ 300.715(b) and (c) for a fiscal year onlyif the Secretary of the Interior submitsto the Secretary information that—

(a) Meets the requirements of section612(a)(1), (3)—(9), (10)(B), (C), (11)—(12), (14)—(17), (20), (21) and (22) of theAct (including monitoring andevaluation activities);

(b) Meets the requirements of section612(b) and (e) of the Act;

(c) Meets the requirements of section613(a)(1), (2)(A)(i), (6), and (7) of theAct;

(d) Meets the requirements of this partthat implement the sections of the Actlisted in paragraphs (a)–(c) of thissection;

(e) Includes a description of how theSecretary of the Interior will coordinatethe provision of services under Part B ofthe Act with LEAs, tribes and tribalorganizations, and other private andFederal service providers;

(f) Includes an assurance that thereare public hearings, adequate notice ofthe hearings, and an opportunity forcomment afforded to members of tribes,tribal governing bodies, and affectedlocal school boards before the adoptionof the policies, programs, andprocedures described in paragraph (a) ofthis section;

(g) Includes an assurance that theSecretary of the Interior will provide theinformation that the Secretary mayrequire to comply with section 618 ofthe Act, including data on the numberof children with disabilities served andthe types and amounts of servicesprovided and needed;

(h)(1) Includes an assurance that theSecretary of the Interior and theSecretary of Health and Human Serviceshave entered into a memorandum ofagreement, to be provided to theSecretary, for the coordination ofservices, resources, and personnelbetween their respective Federal, State,and local offices and with the SEAs andLEAs and other entities to facilitate theprovision of services to Indian childrenwith disabilities residing on or nearreservations.

(2) The agreement must provide forthe apportionment of responsibilitiesand costs, including child find,evaluation, diagnosis, remediation ortherapeutic measures, and (ifappropriate) equipment and medical orpersonal supplies, as needed for a childwith a disability to remain in a schoolor program; and

(i) Includes an assurance that theDepartment of the Interior willcooperate with the Department in itsexercise of monitoring and oversight ofthe requirements in this section and§§ 300.261–300.267, and anyagreements entered into between theSecretary of the Interior and otherentities under Part B of the Act, and willfulfill its duties under Part B of the Act.Section 616(a) of the Act applies to theinformation described in this section.(Authority: 20 U.S.C. 1411(i)(2))

§ 300.261 Public participation.In fulfilling the requirements of

§ 300.260 the Secretary of the Interior

shall provide for public participationconsistent with §§ 300.280–300.284.(Authority: 20 U.S.C. 1411(i))

§ 300.262 Use of Part B funds.

(a) The Department of the Interiormay use five percent of its paymentunder § 300.715(b) and (c) in any fiscalyear, or $500,000, whichever is greater,for administrative costs in carrying outthe provisions of this part.

(b) Payments to the Secretary of theInterior under § 300.716 must be used inaccordance with that section.(Authority: 20 U.S.C. 1411(i))

§ 300.263 Plan for coordination ofservices.

(a) The Secretary of the Interior shalldevelop and implement a plan for thecoordination of services for all Indianchildren with disabilities residing onreservations covered under Part B of theAct.

(b) The plan must provide for thecoordination of services benefiting thesechildren from whatever source,including tribes, the Indian HealthService, other BIA divisions, and otherFederal agencies.

(c) In developing the plan, theSecretary of the Interior shall consultwith all interested and involved parties.

(d) The plan must be based on theneeds of the children and the systembest suited for meeting those needs, andmay involve the establishment ofcooperative agreements between theBIA, other Federal agencies, and otherentities.

(e) The plan also must be distributedupon request to States, SEAs and LEAs,and other agencies providing services toinfants, toddlers, and children withdisabilities, to tribes, and to otherinterested parties.(Authority: 20 U.S.C. 1411(i)(4))

§ 300.264 Definitions.

(a) Indian. As used in this part, theterm Indian means an individual who isa member of an Indian tribe.

(b) Indian tribe. As used in this part,the term Indian tribe means any Federalor State Indian tribe, band, rancheria,pueblo, colony, or community,including any Alaska Native village orregional village corporation (as definedin or established under the AlaskaNative Claims Settlement Act).(Authority: 20 U.S.C. 1401(9) and (10))

§ 300.265 Establishment of advisoryboard.

(a) To meet the requirements ofsection 612(a)(21) of the Act, theSecretary of the Interior shall establish,not later than December 4, 1997 under



the BIA, an advisory board composed ofindividuals involved in or concernedwith the education and provision ofservices to Indian infants, toddlers, andchildren with disabilities, includingIndians with disabilities, Indian parentsof the children, teachers, serviceproviders, State and local educationalofficials, representatives of tribes ortribal organizations, representativesfrom State Interagency CoordinatingCouncils under section 641 of the Act inStates having reservations, and othermembers representing the variousdivisions and entities of the BIA. Thechairperson must be selected by theSecretary of the Interior.

(b) The advisory board shall—(1) Assist in the coordination of

services within the BIA and with otherlocal, State, and Federal agencies in theprovision of education for infants,toddlers, and children with disabilities;

(2) Advise and assist the Secretary ofthe Interior in the performance of theSecretary’s responsibilities described insection 611(i) of the Act;

(3) Develop and recommend policiesconcerning effective inter- and intra-agency collaboration, includingmodifications to regulations, and theelimination of barriers to inter- andintra-agency programs and activities;

(4) Provide assistance anddisseminate information on bestpractices, effective programcoordination strategies, andrecommendations for improvededucational programming for Indianinfants, toddlers, and children withdisabilities; and

(5) Provide assistance in thepreparation of information requiredunder § 300.260(g).(Authority: 20 U.S.C. 1411(i)(5))

§ 300.266 Annual report by advisoryboard.

(a) General. The advisory boardestablished under § 300.265 shallprepare and submit to the Secretary ofthe Interior and to the Congress anannual report containing a descriptionof the activities of the advisory board forthe preceding year.

(b) Report to the Secretary. TheSecretary of the Interior shall makeavailable to the Secretary the reportdescribed in paragraph (a) of thissection.(Authority: 20 U.S.C. 1411(i)(6)(A))

§ 300.267 Applicable regulations.

The Secretary of the Interior shallcomply with the requirements of§§ 300.301–300.303, 300.305–300.309,300.340–300.348, 300.351, 300.360–300.382, 300.400–300.402, 300.500–

300.586, 300.600–300.621, and 300.660–300.662.(Authority: 20 U.S.C. 1411(i)(2)(A))

Public Participation

§ 300.280 Public hearings before adoptingState policies and procedures.

Prior to its adoption of State policiesand procedures related to this part, theSEA shall—

(a) Make the policies and proceduresavailable to the general public;

(b) Hold public hearings; and(c) Provide an opportunity for

comment by the general public on thepolicies and procedures.(Authority: 20 U.S.C. 1412(a)(20))

§ 300.281 Notice.(a) The SEA shall provide adequate

notice to the general public of the publichearings.

(b) The notice must be in sufficientdetail to inform the general publicabout—

(1) The purpose and scope of the Statepolicies and procedures and theirrelation to Part B of the Act;

(2) The availability of the Statepolicies and procedures;

(3) The date, time, and location ofeach public hearing;

(4) The procedures for submittingwritten comments about the policiesand procedures; and

(5) The timetable for submitting thepolicies and procedures to the Secretaryfor approval.

(c) The notice must be published orannounced—

(1) In newspapers or other media, orboth, with circulation adequate to notifythe general public about the hearings;and

(2) Enough in advance of the date ofthe hearings to afford interested partiesthroughout the State a reasonableopportunity to participate.(Authority: 20 U.S.C. 1412(a)(20))

§ 300.282 Opportunity to participate;comment period.

(a) The SEA shall conduct the publichearings at times and places that affordinterested parties throughout the State areasonable opportunity to participate.

(b) The policies and procedures mustbe available for comment for a period ofat least 30 days following the date of thenotice under § 300.281.(Authority: 20 U.S.C. 1412(a)(20))

§ 300.283 Review of public commentsbefore adopting policies and procedures.

Before adopting the policies andprocedures, the SEA shall—

(a) Review and consider all publiccomments; and

(b) Make any necessary modificationsin those policies and procedures.(Authority: 20 U.S.C. 1412(a)(20))

§ 300.284 Publication and availability ofapproved policies and procedures.

After the Secretary approves a State’spolicies and procedures, the SEA shallgive notice in newspapers or othermedia, or both, that the policies andprocedures are approved. The noticemust name places throughout the Statewhere the policies and procedures areavailable for access by any interestedperson.(Authority: 20 U.S.C. 1412(a)(20))

Subpart C—Services


§ 300.300 Provision of FAPE.(a) General. (1) Subject to paragraphs

(b) and (c) of this section and § 300.311,each State receiving assistance underthis part shall ensure that FAPE isavailable to all children withdisabilities, aged 3 through 21, residingin the State, including children withdisabilities who have been suspended orexpelled from school.

(2) As a part of its obligation underparagraph (a)(1) of this section, eachState must ensure that the requirementsof § 300.125 (to identify, locate, andevaluate all children with disabilities)are implemented by public agenciesthroughout the State.

(3)(i) The services provided to thechild under this part address all of thechild’s identified special education andrelated services needs described inparagraph (a) of this section.

(ii) The services and placementneeded by each child with a disabilityto receive FAPE must be based on thechild’s unique needs and not on thechild’s disability.

(b) Exception for age ranges 3–5 and18–21. This paragraph provides therules for applying the requirements inparagraph (a) of this section to childrenwith disabilities aged 3, 4, 5, 18, 19, 20,and 21 within the State:

(1) If State law or a court orderrequires the State to provide educationfor children with disabilities in anydisability category in any of these agegroups, the State must make FAPEavailable to all children with disabilitiesof the same age who have that disability.

(2) If a public agency provideseducation to nondisabled children inany of these age groups, it must makeFAPE available to at least aproportionate number of children withdisabilities of the same age.

(3) If a public agency provideseducation to 50 percent or more of its



children with disabilities in anydisability category in any of these agegroups, it must make FAPE available toall its children with disabilities of thesame age who have that disability. Thisprovision does not apply to childrenaged 3 through 5 for any fiscal year forwhich the State receives a grant undersection 619(a)(1) of the Act.

(4) If a public agency provideseducation to a child with a disability inany of these age groups, it must makeFAPE available to that child andprovide that child and his or her parentsall of the rights under Part B of the Actand this part.

(5) A State is not required to makeFAPE available to a child with adisability in one of these age groups if—

(i) State law expressly prohibits, ordoes not authorize, the expenditure ofpublic funds to provide education tonondisabled children in that age group;or

(ii) The requirement is inconsistentwith a court order that governs theprovision of free public education tochildren with disabilities in that State.

(c) Children aged 3 through 21 onIndian reservations. With the exceptionof children identified in § 300.715(b)and (c), the SEA shall ensure that all ofthe requirements of Part B of the Act areimplemented for all children withdisabilities aged 3 through 21 onreservations.(Authority: 20 U.S.C. 1412(a)(1),1411(i)(1)(C), S. Rep. No. 94—168, p. 19(1975))

§ 300.301 FAPE—methods and payments.(a) Each State may use whatever State,

local, Federal, and private sources ofsupport are available in the State tomeet the requirements of this part. Forexample, if it is necessary to place achild with a disability in a residentialfacility, a State could use jointagreements between the agenciesinvolved for sharing the cost of thatplacement.

(b) Nothing in this part relieves aninsurer or similar third party from anotherwise valid obligation to provide orto pay for services provided to a childwith a disability.

(c) Consistent with §§ 300.342(b)(2)and 300.343(b), the State must ensurethat there is no delay in implementinga child’s IEP, including any case inwhich the payment source for providingor paying for special education andrelated services to the child is beingdetermined.(Authority: 20 U.S.C. 1401(8), 1412(a)(1))

§ 300.302 Residential placement.If placement in a public or private

residential program is necessary to

provide special education and relatedservices to a child with a disability, theprogram, including non-medical careand room and board, must be at no costto the parents of the child.(Authority: 20 U.S.C. 1412(a)(1),1412(a)(10)(B))

§ 300.303 Proper functioning of hearingaids.

Each public agency shall ensure thatthe hearing aids worn in school bychildren with hearing impairments,including deafness, are functioningproperly.(Authority: 20 U.S.C. 1412(a)(1))

§ 300.304 Full educational opportunitygoal.

Each SEA shall ensure that eachpublic agency establishes andimplements a goal of providing fulleducational opportunity to all childrenwith disabilities in the area served bythe public agency.(Authority: 20 U.S.C. 1412(a)(2)

§ 300.305 Program options.

Each public agency shall take steps toensure that its children with disabilitieshave available to them the variety ofeducational programs and servicesavailable to nondisabled children in thearea served by the agency, including art,music, industrial arts, consumer andhomemaking education, and vocationaleducation.(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))

§ 300.306 Nonacademic services.

(a) Each public agency shall take stepsto provide nonacademic andextracurricular services and activities inthe manner necessary to afford childrenwith disabilities an equal opportunityfor participation in those services andactivities.

(b) Nonacademic and extracurricularservices and activities may includecounseling services, athletics,transportation, health services,recreational activities, special interestgroups or clubs sponsored by the publicagency, referrals to agencies thatprovide assistance to individuals withdisabilities, and employment ofstudents, including both employment bythe public agency and assistance inmaking outside employment available.(Authority: 20 U.S.C. 1412(a)(1))

§ 300.307 Physical education.

(a) General. Physical educationservices, specially designed if necessary,must be made available to every childwith a disability receiving FAPE.

(b) Regular physical education. Eachchild with a disability must be afforded

the opportunity to participate in theregular physical education programavailable to nondisabled childrenunless—

(1) The child is enrolled full time ina separate facility; or

(2) The child needs specially designedphysical education, as prescribed in thechild’s IEP.

(c) Special physical education. Ifspecially designed physical education isprescribed in a child’s IEP, the publicagency responsible for the education ofthat child shall provide the servicesdirectly or make arrangements for thoseservices to be provided through otherpublic or private programs.

(d) Education in separate facilities.The public agency responsible for theeducation of a child with a disabilitywho is enrolled in a separate facilityshall ensure that the child receivesappropriate physical education servicesin compliance with paragraphs (a) and(c) of this section.(Authority: 20 U.S.C. 1412(a)(25),1412(a)(5)(A))

§ 300.308 Assistive technology.(a) Each public agency shall ensure

that assistive technology devices orassistive technology services, or both, asthose terms are defined in §§ 300.5–300.6, are made available to a child witha disability if required as a part of thechild’s—

(1) Special education under § 300.26;(2) Related services under § 300.24; or(3) Supplementary aids and services

under §§ 300.28 and 300.550(b)(2).(b) On a case-by-case basis, the use of

school-purchased assistive technologydevices in a child’s home or in othersettings is required if the child’s IEPteam determines that the child needsaccess to those devices in order toreceive FAPE.(Authority: 20 U.S.C. 1412(a)(12)(B)(i))

§ 300.309 Extended school year services.(a) General. (1) Each public agency

shall ensure that extended school yearservices are available as necessary toprovide FAPE, consistent withparagraph (a)(2) of this section.

(2) Extended school year servicesmust be provided only if a child’s IEPteam determines, on an individual basis,in accordance with §§ 300.340–300.350,that the services are necessary for theprovision of FAPE to the child.

(3) In implementing the requirementsof this section, a public agency maynot—

(i) Limit extended school yearservices to particular categories ofdisability; or

(ii) Unilaterally limit the type,amount, or duration of those services.



(b) Definition. As used in this section,the term extended school year servicesmeans special education and relatedservices that—

(1) Are provided to a child with adisability—

(i) Beyond the normal school year ofthe public agency;

(ii) In accordance with the child’s IEP;and

(iii) At no cost to the parents of thechild; and

(2) Meet the standards of the SEA.(Authority: 20 U.S.C. 1412(a)(1))


§ 300.311 FAPE requirements for studentswith disabilities in adult prisons.

(a) Exception to FAPE for certainstudents. Except as provided in§ 300.122(a)(2)(ii), the obligation tomake FAPE available to all childrenwith disabilities does not apply withrespect to students aged 18 through 21to the extent that State law does notrequire that special education andrelated services under Part B of the Actbe provided to students with disabilitieswho, in the last educational placementprior to their incarceration in an adultcorrectional facility—

(1) Were not actually identified asbeing a child with a disability under§ 300.7; and

(2) Did not have an IEP under Part Bof the Act.

(b) Requirements that do not apply.The following requirements do notapply to students with disabilities whoare convicted as adults under State lawand incarcerated in adult prisons:

(1) The requirements contained in§ 300.138 and § 300.347(a)(5)(i) (relatingto participation of children withdisabilities in general assessments).

(2) The requirements in § 300.347(b)(relating to transition planning andtransition services), with respect to thestudents whose eligibility under Part Bof the Act will end, because of their age,before they will be eligible to bereleased from prison based onconsideration of their sentence andeligibility for early release.

(c) Modifications of IEP or placement.(1) Subject to paragraph (c)(2) of thissection, the IEP team of a student witha disability, who is convicted as anadult under State law and incarceratedin an adult prison, may modify thestudent’s IEP or placement if the Statehas demonstrated a bona fide security orcompelling penological interest thatcannot otherwise be accommodated.

(2) The requirements of §§ 300.340(a)and 300.347(a) relating to IEPs, and300.550(b) relating to LRE, do not apply

with respect to the modificationsdescribed in paragraph (c)(1) of thissection.(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))

§ 300.312 Children with disabilities inpublic charter schools.

(a) Children with disabilities whoattend public charter schools and theirparents retain all rights under this part.

(b) If the public charter school is anLEA, consistent with § 300.17, thatreceives funding under §§ 300.711–300.714, that charter school isresponsible for ensuring that therequirements of this part are met, unlessState law assigns that responsibility tosome other entity.

(c) If the public charter school is aschool of an LEA that receives fundingunder §§ 300.711–300.714 and includesother public schools—

(1) The LEA is responsible forensuring that the requirements of thispart are met, unless State law assignsthat responsibility to some other entity;and

(2) The LEA must meet therequirements of § 300.241.

(d)(1) If the public charter school isnot an LEA receiving funding under§§ 300.711–300.714, or a school that ispart of an LEA receiving funding under§§ 300.711–300.714, the SEA isresponsible for ensuring that therequirements of this part are met.

(2) Paragraph (d)(1) of this sectiondoes not preclude a State from assigninginitial responsibility for ensuring therequirements of this part are met toanother entity; however, the SEA mustmaintain the ultimate responsibility forensuring compliance with this part,consistent with § 300.600.(Authority: 20 U.S.C. 1413(a)(5))

§ 300.313 Children experiencingdevelopmental delays.

(a) Use of term developmental delay.(1) A State that adopts the termdevelopmental delay under § 300.7(b)determines whether it applies tochildren aged 3 through 9, or to a subsetof that age range (e.g., ages 3 through 5).

(2) A State may not require an LEA toadopt and use the term developmentaldelay for any children within itsjurisdiction.

(3) If an LEA uses the termdevelopmental delay for childrendescribed in § 300.7(b), the LEA mustconform to both the State’s definition ofthat term and to the age range that hasbeen adopted by the State.

(4) If a State does not adopt the termdevelopmental delay, an LEA may notindependently use that term as a basis

for establishing a child’s eligibilityunder this part.

(b) Use of individual disabilitycategories. (1) Any State or LEA thatelects to use the term developmentaldelay for children aged 3 through 9 mayalso use one or more of the disabilitycategories described in § 300.7 for anychild within that age range if it isdetermined, through the evaluationconducted under §§ 300.530–300.536,that the child has an impairmentdescribed in § 300.7, and because of thatimpairment needs special education andrelated services.

(2) The State or LEA shall ensure thatall of the child’s special education andrelated services needs that have beenidentified through the evaluationdescribed in paragraph (b)(1) of thissection are appropriately addressed.

(c) Common definition ofdevelopmental delay. A State may adopta common definition of developmentaldelay for use in programs under Parts Band C of the Act.(Authority: 20 U.S.C. 1401(3)(A) and (B))

Evaluations and Reevaluations

§ 300.320 Initial evaluations.

(a) Each public agency shall ensurethat a full and individual evaluation isconducted for each child beingconsidered for special education andrelated services under Part B of theAct—

(1) To determine if the child is a‘‘child with a disability’’ under § 300.7;and

(2) To determine the educationalneeds of the child.

(b) In implementing the requirementsof paragraph (a) of this section, thepublic agency shall ensure that—

(1) The evaluation is conducted inaccordance with the proceduresdescribed in §§ 300.530–300.535; and

(2) The results of the evaluation areused by the child’s IEP team in meetingthe requirements of §§ 300.340–300.350.(Authority: 20 U.S.C. 1414(a), (b), and (c))

§ 300.321 Reevaluations.

Each public agency shall ensurethat—

(a) A reevaluation of each child witha disability is conducted in accordancewith § 300.536; and

(b) The results of any reevaluationsare addressed by the child’s IEP teamunder §§ 300.340–300.349 in reviewingand, as appropriate, revising the child’sIEP.(Authority: 20 U.S.C. 1414(a)(2))



§§ 300.322–300.324 [Reserved]

Individualized Education Programs

§ 300.340 Definitions related to IEPs.

(a) Individualized education program.As used in this part, the termindividualized education program orIEP means a written statement for achild with a disability that is developed,reviewed, and revised in a meeting inaccordance with §§ 300.341–300.350.

(b) Participating agency. As used in§ 300.348, participating agency means aState or local agency, other than thepublic agency responsible for astudent’s education, that is financiallyand legally responsible for providingtransition services to the student.(Authority: 20 U.S.C. 1401(11),1412(a)(10)(B))

§ 300.341 Responsibility of SEA and otherpublic agencies for IEPs.

(a) The SEA shall ensure that eachpublic agency—

(1) Except as provided in §§ 300.450–300.462, develops and implements anIEP for each child with a disabilityserved by that agency; and

(2) Ensures that an IEP is developedand implemented for each eligible childplaced in or referred to a private schoolor facility by the public agency.

(b) Paragraph (a) of this sectionapplies to—

(1) The SEA, if it is involved inproviding direct services to childrenwith disabilities, in accordance with§ 300.370(a) and (b)(1); and

(2) Except as provided in § 300.600(d),the other public agencies described in§ 300.2, including LEAs and other Stateagencies that provide special educationand related services either directly, bycontract, or through other arrangements.(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))

§ 300.342 When IEPs must be in effect.

(a) General. At the beginning of eachschool year, each public agency shallhave an IEP in effect for each child witha disability within its jurisdiction.

(b) Implementation of IEPs. Eachpublic agency shall ensure that—

(1) An IEP—(i) Is in effect before special education

and related services are provided to aneligible child under this part; and

(ii) Is implemented as soon aspossible following the meetingsdescribed under § 300.343;

(2) The child’s IEP is accessible toeach regular education teacher, specialeducation teacher, related serviceprovider, and other service providerwho is responsible for itsimplementation; and

(3) Each teacher and providerdescribed in paragraph (b)(2) of thissection is informed of—

(i) His or her specific responsibilitiesrelated to implementing the child’s IEP;and

(ii) The specific accommodations,modifications, and supports that mustbe provided for the child in accordancewith the IEP.

(c) IEP or IFSP for children aged 3through 5. (1) In the case of a child witha disability aged 3 through 5 (or, at thediscretion of the SEA a 2-year-old childwith a disability who will turn age 3during the school year), an IFSP thatcontains the material described insection 636 of the Act, and that isdeveloped in accordance with§§ 300.341–300.346 and §§ 300.349–300.350, may serve as the IEP of thechild 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.(2) In implementing the requirements

of paragraph (c)(1) of this section, thepublic agency shall—

(i) Provide to the child’s parents adetailed explanation of the differencesbetween an IFSP and an IEP; and

(ii) If the parents choose an IFSP,obtain written informed consent fromthe parents.

(d) Effective date for newrequirements. All IEPs developed,reviewed, or revised on or after July 1,1998 must meet the requirements of§§ 300.340–300.350.(Authority: 20 U.S.C. 1414(d)(2)(A) and (B),Pub. L. 105–17, sec. 201(a)(2)(A), (C)

§ 300.343 IEP meetings.(a) General. Each public agency is

responsible for initiating andconducting meetings for the purpose ofdeveloping, reviewing, and revising theIEP of a child with a disability (or, ifconsistent with § 300.342(c), an IFSP).

(b) Initial IEPs; provision of services.(1) Each public agency shall ensure thatwithin a reasonable period of timefollowing the agency’s receipt of parentconsent to an initial evaluation of achild—

(i) The child is evaluated; and(ii) If determined eligible under this

part, special education and relatedservices are made available to the childin accordance with an IEP.

(2) In meeting the requirement inparagraph (b)(1) of this section, ameeting to develop an IEP for the childmust be conducted within 30-days of adetermination that the child needsspecial education and related services.

(c) Review and revision of IEPs. Eachpublic agency shall ensure that the IEPteam—

(1) Reviews the child’s IEPperiodically, but not less than annually,to determine whether the annual goalsfor the child are being achieved; and

(2) Revises the IEP as appropriate toaddress—

(i) Any lack of expected progresstoward the annual goals described in§ 300.347(a), and in the generalcurriculum, if appropriate;

(ii) The results of any reevaluationconducted under § 300.536;

(iii) Information about the childprovided to, or by, the parents, asdescribed in § 300.533(a)(1);

(iv) The child’s anticipated needs; or(v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1),1414(d)(4)(A))

§ 300.344 IEP team.(a) General. The public agency shall

ensure that the IEP team for each childwith a disability includes—

(1) The parents of the child;(2) At least one regular education

teacher of the child (if the child is, ormay be, participating in the regulareducation environment);

(3) At least one special educationteacher of the child, or if appropriate, atleast one special education provider ofthe child;

(4) A representative of the publicagency who—

(i) Is qualified to provide, or supervisethe provision of, specially designedinstruction to meet the unique needs ofchildren with disabilities;

(ii) Is knowledgeable about thegeneral curriculum; and

(iii) Is knowledgeable about theavailability of resources of the publicagency;

(5) An individual who can interpretthe instructional implications ofevaluation results, who may be amember of the team described inparagraphs (a)(2) through (6) of thissection;

(6) At the discretion of the parent orthe agency, other individuals who haveknowledge or special expertiseregarding the child, including relatedservices personnel as appropriate; and

(7) If appropriate, the child.(b) Transition services participants.

(1) Under paragraph (a)(7) of thissection, the public agency shall invite astudent with a disability of any age toattend his or her IEP meeting if apurpose of the meeting will be theconsideration of—

(i) The student’s transition servicesneeds under § 300.347(b)(1);

(ii) The needed transition services forthe student under § 300.347(b)(2); or

(iii) Both.(2) If the student does not attend the

IEP meeting, the public agency shall



take other steps to ensure that thestudent’s preferences and interests areconsidered.

(3)(i) In implementing therequirements of § 300.347(b)(2), thepublic agency also shall invite arepresentative of any other agency thatis likely to be responsible for providingor paying for transition services.

(ii) If an agency invited to send arepresentative to a meeting does not doso, the public agency shall take othersteps to obtain participation of the otheragency in the planning of any transitionservices.

(c) Determination of knowledge andspecial expertise. The determination ofthe knowledge or special expertise ofany individual described in paragraph(a)(6) of this section shall be made bythe party (parents or public agency) whoinvited the individual to be a memberof the IEP.

(d) Designating a public agencyrepresentative. A public agency maydesignate another public agencymember of the IEP team to also serve asthe agency representative, if the criteriain paragraph (a)(4) of this section aresatisfied.(Authority: 20 U.S.C. 1401(30),1414(d)(1)(A)(7), (B))

§ 300.345 Parent participation.

(a) Public agency responsibility—general. Each public agency shall takesteps to ensure that one or both of theparents of a child with a disability arepresent at each IEP meeting or areafforded the opportunity to participate,including—

(1) Notifying parents of the meetingearly enough to ensure that they willhave an opportunity to attend; and

(2) Scheduling the meeting at amutually 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, andlocation of the meeting and who will bein attendance; and

(ii) Inform the parents of theprovisions in § 300.344(a)(6) and (c)(relating to the participation of otherindividuals on the IEP team who haveknowledge or special expertise aboutthe child).

(2) For a student with a disabilitybeginning at age 14, or younger, ifappropriate, the notice must also—

(i) Indicate that a purpose of themeeting will be the development of astatement of the transition servicesneeds of the student required in§ 300.347(b)(1); and

(ii) Indicate that the agency will invitethe student.

(3) For a student with a disabilitybeginning at age 16, or younger, ifappropriate, the notice must—

(i) Indicate that a purpose of themeeting is the consideration of neededtransition services for the studentrequired in § 300.347(b)(2);

(ii) Indicate that the agency will invitethe student; and

(iii) Identify any other agency thatwill be invited to send a representative.

(c) Other methods to ensure parentparticipation. If neither parent canattend, the public agency shall use othermethods to ensure parent participation,including individual or conferencetelephone calls.

(d) Conducting an IEP meetingwithout a parent in attendance. Ameeting may be conducted without aparent in attendance if the publicagency is unable to convince the parentsthat they should attend. In this case thepublic agency must have a record of itsattempts to arrange a mutually agreedon time and place, such as—

(1) Detailed records of telephone callsmade or attempted and the results ofthose calls;

(2) Copies of correspondence sent tothe parents and any responses received;and

(3) Detailed records of visits made tothe parent’s home or place ofemployment and the results of thosevisits.

(e) Use of interpreters or other action,as appropriate. The public agency shalltake whatever action is necessary toensure that the parent understands theproceedings at the IEP meeting,including arranging for an interpreterfor parents with deafness or whosenative language is other than English.

(f) Parent copy of child’s IEP. Thepublic agency shall give the parent acopy of the child’s IEP at no cost to theparent.(Authority: 20 U.S.C. 1414(d)(1)(B)(i))

§ 300.346 Development, review, andrevision of IEP.

(a) Development of IEP. (1) General. Indeveloping each child’s IEP, the IEPteam, shall consider—

(i) The strengths of the child and theconcerns of the parents for enhancingthe education of their child;

(ii) The results of the initial or mostrecent evaluation of the child; and

(iii) As appropriate, the results of thechild’s performance on any generalState or district-wide assessmentprograms.

(2) Consideration of special factors.The IEP team also shall—

(i) In the case of a child whosebehavior impedes his or her learning orthat of others, consider, if appropriate,

strategies, including positive behavioralinterventions, strategies, and supports toaddress that behavior;

(ii) In the case of a child with limitedEnglish proficiency, consider thelanguage needs of the child as thoseneeds relate to the child’s IEP;

(iii) In the case of a child who is blindor visually impaired, provide forinstruction in Braille and the use ofBraille unless the IEP team determines,after an evaluation of the child’s readingand writing skills, needs, andappropriate reading and writing media(including an evaluation of the child’sfuture needs for instruction in Braille orthe use of Braille), that instruction inBraille or the use of Braille is notappropriate for the child;

(iv) Consider the communicationneeds of the child, and in the case of achild who is deaf or hard of hearing,consider the child’s language andcommunication needs, opportunities fordirect communications with peers andprofessional personnel in the child’slanguage and communication mode,academic level, and full range of needs,including opportunities for directinstruction in the child’s language andcommunication mode; and

(v) Consider whether the childrequires assistive technology devicesand services.

(b) Review and Revision of IEP. Inconducting a meeting to review, and, ifappropriate, revise a child’s IEP, the IEPteam shall consider the factorsdescribed in paragraph (a) of thissection.

(c) Statement in IEP. If, in consideringthe special factors described inparagraphs (a)(1) and (2) of this section,the IEP team determines that a childneeds a particular device or service(including an intervention,accommodation, or other programmodification) in order for the child toreceive FAPE, the IEP team mustinclude a statement to that effect in thechild’s IEP.

(d) Requirement with respect toregular education teacher. The regulareducation teacher of a child with adisability, as a member of the IEP team,must, to the extent appropriate,participate in the development, review,and revision of the child’s IEP,including assisting in the determinationof—

(1) Appropriate positive behavioralinterventions and strategies for thechild; and

(2) Supplementary aids and services,program modifications or supports forschool personnel that will be providedfor the child, consistent with§ 300.347(a)(3).



(e) Construction. Nothing in thissection shall be construed to require theIEP team to include information underone component of a child’s IEP that isalready contained under anothercomponent of the child’s IEP.(Authority: 20 U.S.C. 1414(d)(3) and (4)(B)and (e))

§ 300.347 Content of IEP.(a) General. The IEP for each child

with a disability must include—(1) A statement of the child’s present

levels of educational performance,including—

(i) How the child’s disability affectsthe child’s involvement and progress inthe general curriculum (i.e., the samecurriculum as for nondisabled children);or

(ii) For preschool children, asappropriate, how the disability affectsthe child’s participation in appropriateactivities;

(2) A statement of measurable annualgoals, including benchmarks or short-term objectives, related to—

(i) Meeting the child’s needs thatresult from the child’s disability toenable the child to be involved in andprogress in the general curriculum (i.e.,the same curriculum as for nondisabledchildren), or for preschool children, asappropriate, to participate inappropriate activities; and

(ii) Meeting each of the child’s othereducational needs that result from thechild’s disability;

(3) A statement of the specialeducation and related services andsupplementary aids and services to beprovided to the child, or on behalf of thechild, and a statement of the programmodifications or supports for schoolpersonnel that will be provided for thechild—

(i) To advance appropriately towardattaining the annual goals;

(ii) To be involved and progress in thegeneral curriculum in accordance withparagraph (a)(1) of this section and toparticipate in extracurricular and othernonacademic activities; and

(iii) To be educated and participatewith other children with disabilities andnondisabled children in the activitiesdescribed in this section;

(4) An explanation of the extent, ifany, to which the child will notparticipate with nondisabled children inthe regular class and in the activitiesdescribed in paragraph (a)(3) of thissection;

(5)(i) A statement of any individualmodifications in the administration ofState or district-wide assessments ofstudent achievement that are needed inorder for the child to participate in theassessment; and

(ii) If the IEP team determines that thechild will not participate in a particularState or district-wide assessment ofstudent achievement (or part of anassessment), a statement of—

(A) Why that assessment is notappropriate for the child; and

(B) How the child will be assessed;(6) The projected date for the

beginning of the services andmodifications described in paragraph(a)(3) of this section, and the anticipatedfrequency, location, and duration ofthose services and modifications; and

(7) A statement of—(i) How the child’s progress toward

the annual goals described in paragraph(a)(2) of this section will be measured;and

(ii) How the child’s parents will beregularly informed (through such meansas periodic report cards), at least asoften as parents are informed of theirnondisabled children’s progress, of—

(A) Their child’s progress toward theannual goals; and

(B) The extent to which that progressis sufficient to enable the child toachieve the goals by the end of the year.

(b) Transition services. The IEP mustinclude—

(1) For each student with a disabilitybeginning at age 14 (or younger, ifdetermined appropriate by the IEPteam), and updated annually, astatement of the transition service needsof the student under the applicablecomponents of the student’s IEP thatfocuses on the student’s courses ofstudy (such as participation inadvanced-placement courses or avocational education program); and

(2) For each student beginning at age16 (or younger, if determinedappropriate by the IEP team), astatement of needed transition servicesfor the student, including, ifappropriate, a statement of theinteragency responsibilities or anyneeded linkages.

(c) Transfer of rights. In a State thattransfers rights at the age majority,beginning at least one year before astudent reaches the age of majorityunder State law, the student’s IEP mustinclude a statement that the student hasbeen informed of his or her rights underPart B of the Act, if any, that willtransfer to the student on reaching theage of majority, consistent with§ 300.517.

(d) Students with disabilitiesconvicted as adults and incarcerated inadult prisons. Special rules concerningthe content of IEPs for students withdisabilities convicted as adults andincarcerated in adult prisons arecontained in § 300.311(b) and (c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and(d)(6)(A)(ii))

§ 300.348 Agency responsibilities fortransition services.

(a) If a participating agency, otherthan the public agency, fails to providethe transition services described in theIEP in accordance with § 300.347(b)(1),the public agency shall reconvene theIEP team to identify alternativestrategies to meet the transitionobjectives for the student set out in theIEP.

(b) Nothing in this part relieves anyparticipating agency, including a Statevocational rehabilitation agency, of theresponsibility to provide or pay for anytransition service that the agency wouldotherwise provide to students withdisabilities who meet the eligibilitycriteria of that agency.(Authority: 20 U.S.C. 1414(d)(5);1414(d)(1)(A)(vii))

§ 300.349 Private school placements bypublic agencies.

(a) Developing IEPs. (1) Before apublic agency places a child with adisability in, or refers a child to, aprivate school or facility, the agencyshall initiate and conduct a meeting todevelop an IEP for the child inaccordance with §§ 300.346 and300.347.

(2) The agency shall ensure that arepresentative of the private school orfacility attends the meeting. If therepresentative cannot attend, the agencyshall use other methods to ensureparticipation by the private school orfacility, including individual orconference telephone calls.

(b) Reviewing and revising IEPs. (1)After a child with a disability enters aprivate school or facility, any meetingsto review and revise the child’s IEP maybe initiated and conducted by theprivate school or facility at thediscretion of the public agency.

(2) If the private school or facilityinitiates and conducts these meetings,the public agency shall ensure that theparents and an agency representative—

(i) Are involved in any decision aboutthe child’s IEP; and

(ii) Agree to any proposed changes inthe IEP before those changes areimplemented.

(c) Responsibility. Even if a privateschool or facility implements a child’sIEP, responsibility for compliance withthis part remains with the public agencyand the SEA.(Authority: 20 U.S.C. 1412(a)(10)(B))

§ 300.350 IEP—accountability.(a) Provision of services. Subject to

paragraph (b) of this section, eachpublic agency must—



(1) Provide special education andrelated services to a child with adisability in accordance with the child’sIEP; and

(2) Make a good faith effort to assistthe child to achieve the goals andobjectives or benchmarks listed in theIEP.

(b) Accountability. Part B of the Actdoes not require that any agency,teacher, or other person be heldaccountable if a child does not achievethe growth projected in the annual goalsand benchmarks or objectives. However,the Act does not prohibit a State orpublic agency from establishing its ownaccountability systems regardingteacher, school, or agency performance.

(c) Construction—parent rights.Nothing in this section limits a parent’sright to ask for revisions of the child’sIEP or to invoke due process proceduresif the parent feels that the effortsrequired in paragraph (a) of this sectionare not being made.(Authority: 20 U.S.C. 1414(d)); Cong. Rec. atH7152 (daily ed., July 21, 1975))

Direct Services by the Sea

§ 300.360 Use of LEA allocation for directservices.

(a) General. An SEA shall use thepayments that would otherwise havebeen available to an LEA or to a Stateagency to provide special education andrelated services directly to children withdisabilities residing in the area servedby that local agency, or for whom thatState agency is responsible, if the SEAdetermines that the LEA or Stateagency—

(1) Has not provided the informationneeded to establish the eligibility of theagency under Part B of the Act;

(2) Is unable to establish and maintainprograms of FAPE that meet therequirements of this part;

(3) Is unable or unwilling to beconsolidated with one or more LEAs inorder to establish and maintain theprograms; or

(4) Has one or more children withdisabilities who can best be served by aregional or State program or service-delivery system designed to meet theneeds of these children.

(b) SEA responsibility if an LEA doesnot apply for Part B funds. (1) If an LEAelects not to apply for its Part Ballotment, the SEA must use those fundsto ensure that FAPE is available to alleligible children residing in thejurisdiction of the LEA.

(2)(i) If the local allotment is notsufficient to meet the purpose describedin paragraph (b)(1) of this section, theSEA must ensure compliance with§§ 300.121(a) and 300.300(a).

(ii) Consistent with § 300.301(a), the[State; SEA] may use whatever fundingsources are available in the State toimplement paragraph (b)(2)(i) of thissection.

(c) SEA administrative procedures. (1)In meeting the requirements inparagraph (a) of this section, the SEAmay provide special education andrelated services directly, by contract, orthrough other arrangements.

(2) The excess cost requirements of§§ 300.184 and 300.185 do not apply tothe SEA.(Authority: 20 U.S.C. 1413(h)(1))

§ 300.361 Nature and location of services.The SEA may provide special

education and related services under§ 300.360(a) in the manner and at thelocation it considers appropriate(including regional and State centers).However, the manner in which theeducation and services are providedmust be consistent with therequirements of this part (including theLRE provisions of §§ 300.550–300.556).(Authority: 20 U.S.C. 1413(h)(2))

§§ 300.362–300.369 [Reserved]

§ 300.370 Use of SEA allocations.(a) Each State shall use any funds it

retains under § 300.602 and does notuse for administration under § 300.620for any of the following:

(1) Support and direct services,including technical assistance andpersonnel development and training.

(2) Administrative costs of monitoringand complaint investigation, but only tothe extent that those costs exceed thecosts incurred for those activities duringfiscal year 1985.

(3) To establish and implement themediation process required by§ 300.506, including providing for thecosts of mediators and supportpersonnel.

(4) To assist LEAs in meetingpersonnel shortages.

(5) To develop a State ImprovementPlan under subpart 1 of Part D of theAct.

(6) Activities at the State and locallevels to meet the performance goalsestablished by the State under § 300.137and to support implementation of theState Improvement Plan under subpart 1of Part D of the Act if the State receivesfunds under that subpart.

(7) To supplement other amountsused to develop and implement aStatewide coordinated services systemdesigned to improve results for childrenand families, including children withdisabilities and their families, but not toexceed one percent of the amountreceived by the State under section 611

of the Act. This system must becoordinated with and, to the extentappropriate, build on the system ofcoordinated services developed by theState under Part C of the Act.

(8) For subgrants to LEAs for thepurposes described in § 300.622 (localcapacity building).

(b) For the purposes of paragraph (a)of this section—

(1) Direct services means servicesprovided to a child with a disability bythe State directly, by contract, orthrough other arrangements; and

(2) Support services includesimplementing the comprehensivesystem of personnel development under§§ 300.380–300.382, recruitment andtraining of mediators, hearing officers,and surrogate parents, and publicinformation and parent trainingactivities relating to FAPE for childrenwith disabilities.

(c) Of the funds an SEA retains underparagraph (a) of this section, the SEAmay use the funds directly, or distributethem to LEAs on a competitive, targeted,or formula basis.(Authority: 20 U.S.C. 1411(f)(3))


§ 300.372 Nonapplicability of requirementsthat prohibit commingling and supplantingof funds.

A State may use funds it retains under§ 300.602 without regard to—

(a) The prohibition on commingling offunds in § 300.152; and

(b) The prohibition on supplantingother funds in § 300.153.(Authority: 20 U.S.C. 1411(f)(1)(C))

Comprehensive System of PersonnelDevelopment (CSPD)

§ 300.380 General CSPD requirements.(a) Each State shall develop and

implement a comprehensive system ofpersonnel development that—

(1) Is consistent with the purposes ofthis part and with section 635(a)(8) ofthe Act;

(2) Is designed to ensure an adequatesupply of qualified special education,regular education, and related servicespersonnel;

(3) Meets the requirements of§§ 300.381 and 300.382; and

(4) Is updated at least every five years.(b) A State that has a State

improvement grant has met therequirements of paragraph (a) of thissection.(Authority: 20 U.S.C. 1412(a)(14))

§ 300.381 Adequate supply of qualifiedpersonnel.

Each State must include, at least, ananalysis of State and local needs for



professional development for personnelto serve children with disabilities thatincludes, at a minimum—

(a) The number of personnelproviding special education and relatedservices; and

(b) Relevant information on currentand anticipated personnel vacanciesand shortages (including the number ofindividuals described in paragraph (a)of this section with temporarycertification), and on the extent ofcertification or retraining necessary toeliminate these shortages, that is based,to the maximum extent possible, onexisting assessments of personnel needs.(Authority: 20 U.S.C. 1453(b)(2)(B))

§ 300.382 Improvement strategies.Each State must describe the

strategies the State will use to addressthe needs identified under § 300.381.These strategies must include how theState will address the identified needsfor in-service and pre-servicepreparation to ensure that all personnelwho work with children withdisabilities (including both professionaland paraprofessional personnel whoprovide special education, generaleducation, related services, or earlyintervention services) have the skillsand knowledge necessary to meet theneeds of children with disabilities. Theplan must include a description of howthe State will—

(a) Prepare general and specialeducation personnel with the contentknowledge and collaborative skillsneeded to meet the needs of childrenwith disabilities including how theState will work with other States oncommon certification criteria;

(b) Prepare professionals andparaprofessionals in the area of earlyintervention with the contentknowledge and collaborative skillsneeded to meet the needs of infants andtoddlers with disabilities;

(c) Work with institutions of highereducation and other entities that (onboth a pre-service and an in-servicebasis) prepare personnel who work withchildren with disabilities to ensure thatthose institutions and entities developthe capacity to support qualityprofessional development programs thatmeet State and local needs;

(d) Work to develop collaborativeagreements with other States for thejoint support and development ofprograms to prepare personnel forwhich there is not sufficient demandwithin a single State to justify supportor development of a program ofpreparation;

(e) Work in collaboration with otherStates, particularly neighboring States,to address the lack of uniformity and

reciprocity in credentialing of teachersand other personnel;

(f) Enhance the ability of teachers andothers to use strategies, such asbehavioral interventions, to address theconduct of children with disabilitiesthat impedes the learning of childrenwith disabilities and others;

(g) Acquire and disseminate, toteachers, administrators, school boardmembers, and related servicespersonnel, significant knowledgederived from educational research andother sources, and how the State will, ifappropriate, adopt promising practices,materials, and technology;

(h) Recruit, prepare, and retainqualified personnel, includingpersonnel with disabilities andpersonnel from groups that are under-represented in the fields of regulareducation, special education, andrelated services;

(i) Insure that the plan is integrated,to the maximum extent possible, withother professional development plansand activities, including plans andactivities developed and carried outunder other Federal and State laws thataddress personnel recruitment andtraining; and

(j) Provide for the joint training ofparents and special education, relatedservices, and general educationpersonnel.(Authority: 20 U.S.C. 1453 (c)(3)(D))

§§ 300.383–300.387 [Reserved]

Subpart D—Children in PrivateSchools

Children With Disabilities in PrivateSchools Placed or Referred by PublicAgencies

§ 300.400 Applicability of §§ 300.400–300.402.

Sections 300.401–300.402 apply onlyto children with disabilities who are orhave been placed in or referred to aprivate school or facility by a publicagency as a means of providing specialeducation and related services.(Authority: 20 U.S.C. 1412(a)(10)(B))

§ 300.401 Responsibility of Stateeducational agency.

Each SEA shall ensure that a childwith a disability who is placed in orreferred to a private school or facility bya public agency—

(a) Is provided special education andrelated services—

(1) In conformance with an IEP thatmeets the requirements of §§ 300.340–300.350; 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 andLEAs (including the requirements ofthis part); and

(c) Has all of the rights of a child witha disability who is served by a publicagency.(Authority: 20 U.S.C. 1412(a)(10)(B))

§ 300.402 Implementation by Stateeducational agency.

In implementing § 300.401, the SEAshall—

(a) Monitor compliance throughprocedures such as written reports, on-site visits, and parent questionnaires;

(b) Disseminate copies of applicablestandards to each private school andfacility to which a public agency hasreferred or placed a child with adisability; and

(c) Provide an opportunity for thoseprivate schools and facilities toparticipate in the development andrevision of State standards that apply tothem.(Authority: 20 U.S.C. 1412(a)(10)(B))

Children With Disabilities Enrolled byTheir Parents in Private Schools WhenFAPE Is at Issue

§ 300.403 Placement of children byparents if FAPE is at issue.

(a) General. This part does not requirean LEA to pay for the cost of education,including special education and relatedservices, of a child with a disability ata private school or facility if that agencymade FAPE available to the child andthe parents elected to place the child ina private school or facility. However, thepublic agency shall include that child inthe population whose needs areaddressed consistent with §§ 300.450–300.462.

(b) Disagreements about FAPE.Disagreements between a parent and apublic agency regarding the availabilityof a program appropriate for the child,and the question of financialresponsibility, are subject to the dueprocess procedures of §§ 300.500–300.517.

(c) Reimbursement for private schoolplacement. If the parents of a child witha disability, who previously receivedspecial education and related servicesunder the authority of a public agency,enroll the child in a private preschool,elementary, or secondary schoolwithout the consent of or referral by thepublic agency, a court or a hearingofficer may require the agency toreimburse the parents for the cost of thatenrollment if the court or hearing officerfinds that the agency had not madeFAPE available to the child in a timelymanner prior to that enrollment and thatthe private placement is appropriate. A



parental placement may be found to beappropriate by a hearing officer or acourt even if it does not meet the Statestandards that apply to educationprovided by the SEA and LEAs.

(d) Limitation on reimbursement. Thecost of reimbursement described inparagraph (c) of this section may bereduced or denied—

(1) If—(i) At the most recent IEP meeting that

the parents attended prior to removal ofthe child from the public school, theparents did not inform the IEP team thatthey were rejecting the placementproposed by the public agency toprovide FAPE to their child, includingstating their concerns and their intent toenroll their child in a private school atpublic expense; or

(ii) At least ten (10) business days(including any holidays that occur on abusiness day) prior to the removal of thechild from the public school, theparents did not give written notice tothe public agency of the informationdescribed in paragraph (d)(1)(i) of thissection;

(2) If, prior to the parents’ removal ofthe child from the public school, thepublic agency informed the parents,through the notice requirementsdescribed in § 300.503(a)(1), of its intentto evaluate the child (including astatement of the purpose of theevaluation that was appropriate andreasonable), but the parents did notmake the child available for theevaluation; or

(3) Upon a judicial finding ofunreasonableness with respect toactions taken by the parents.

(e) Exception. Notwithstanding thenotice requirement in paragraph (d)(1)of this section, the cost ofreimbursement may not be reduced ordenied for failure to provide the noticeif—

(1) The parent is illiterate and cannotwrite in English;

(2) Compliance with paragraph (d)(1)of this section would likely result inphysical or serious emotional harm tothe child;

(3) The school prevented the parentfrom providing the notice; or

(4) The parents had not receivednotice, pursuant to section 615 of theAct, of the notice requirement inparagraph (d)(1) of this section.(Authority: 20 U.S.C. 1412(a)(10)(C))

Children With Disabilities Enrolled byTheir Parents in Private Schools

§ 300.450 Definition of ‘‘private schoolchildren with disabilities.’’

As used in this part, private schoolchildren with disabilities means

children with disabilities enrolled bytheir parents in private schools orfacilities other than children withdisabilities covered under §§ 300.400–300.402.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.451 Child find for private schoolchildren with disabilities.

(a) Each LEA shall locate, identify,and evaluate all private school childrenwith disabilities, including religious-school children residing in thejurisdiction of the LEA, in accordancewith §§ 300.125 and 300.220. Theactivities undertaken to carry out thisresponsibility for private schoolchildren with disabilities must becomparable to activities undertaken forchildren with disabilities in publicschools.

(b) Each LEA shall consult withappropriate representatives of privateschool children with disabilities on howto carry out the activities described inparagraph (a) of this section.(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))

§ 300.452 Provision of services—basicrequirement.

(a) General. To the extent consistentwith their number and location in theState, provision must be made for theparticipation of private school childrenwith disabilities in the program assistedor carried out under Part B of the Actby providing them with specialeducation and related services inaccordance with §§ 300.453–300.462.

(b) SEA Responsibility—services plan.Each SEA shall ensure that, inaccordance with paragraph (a) of thissection and §§ 300.454–300.456, aservices plan is developed andimplemented for each private schoolchild with a disability who has beendesignated to receive special educationand related services under this part.(Authority: 20 U.S.C. 1412(a)(10)(A)(i))

§ 300.453 Expenditures.(a) Formula. To meet the requirement

of § 300.452(a), each LEA must spend onproviding special education and relatedservices to private school children withdisabilities—

(1) For children aged 3 through 21, anamount that is the same proportion ofthe LEA’s total subgrant under section611(g) of the Act as the number ofprivate school children with disabilitiesaged 3 through 21 residing in itsjurisdiction is to the total number ofchildren with disabilities in itsjurisdiction aged 3 through 21; and

(2) For children aged 3 through 5, anamount that is the same proportion ofthe LEA’s total subgrant under section619(g) of the Act as the number of

private school children with disabilitiesaged 3 through 5 residing in itsjurisdiction is to the total number ofchildren with disabilities in itsjurisdiction aged 3 through 5.

(b) Child count. (1) Each LEA shall—(i) Consult with representatives of

private school children in deciding howto conduct the annual count of thenumber of private school children withdisabilities; and

(ii) Ensure that the count is conductedon December 1 or the last Friday ofOctober of each year.

(2) The child count must be used todetermine the amount that the LEAmust spend on providing specialeducation and related services to privateschool children with disabilities in thenext subsequent fiscal year.

(c) Expenditures for child find maynot be considered. Expenditures forchild find activities described in§ 300.451 may not be considered indetermining whether the LEA has metthe requirements of paragraph (a) of thissection.

(d) Additional services permissible.State and local educational agencies arenot prohibited from providing servicesto private school children withdisabilities in excess of those requiredby this part, consistent with State law orlocal policy.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.454 Services determined.

(a) No individual right to specialeducation and related services. (1) Noprivate school child with a disabilityhas an individual right to receive someor all of the special education andrelated services that the child wouldreceive if enrolled in a public school.

(2) Decisions about the services thatwill be provided to private schoolchildren with disabilities under§§ 300.452–300.462, must be made inaccordance with paragraphs (b), and (c)of this section.

(b) Consultation with representativesof private school children withdisabilities. (1) General. Each LEA shallconsult, in a timely and meaningfulway, with appropriate representatives ofprivate school children with disabilitiesin light of the funding under § 300.453,the number of private school childrenwith disabilities, the needs of privateschool children with disabilities, andtheir location to decide—

(i) Which children will receiveservices under § 300.452;

(ii) What services will be provided;(iii) How and where the services will

be provided; and(iv) How the services provided will be

evaluated.



(2) Genuine opportunity. Each LEAshall give appropriate representatives ofprivate school children with disabilitiesa genuine opportunity to express theirviews regarding each matter that issubject to the consultation requirementsin this section.

(3) Timing. The consultation requiredby paragraph (b)(1) of this section mustoccur before the LEA makes anydecision that affects the opportunities ofprivate school children with disabilitiesto participate in services under§§ 300.452–300.462.

(4) Decisions. The LEA shall make thefinal decisions with respect to theservices to be provided to eligibleprivate school children.

(c) Services plan for each child servedunder §§ 300.450–300.462. If a childwith a disability is enrolled in areligious or other private school andwill receive special education or relatedservices from an LEA, the LEA shall—

(1) Initiate and conduct meetings todevelop, review, and revise a servicesplan for the child, in accordance with§ 300.455(b); and

(2) Ensure that a representative of thereligious or other private school attendseach meeting. If the representativecannot attend, the LEA shall use othermethods to ensure participation by theprivate school, including individual orconference telephone calls.(Authority: 1412(a)(10)(A))

§ 300.455 Services provided.

(a) General. (1) The services providedto private school children withdisabilities must be provided bypersonnel meeting the same standardsas personnel providing services in thepublic schools.

(2) Private school children withdisabilities may receive a differentamount of services than children withdisabilities in public schools.

(3) No private school child with adisability is entitled to any service or toany amount of a service the child wouldreceive if enrolled in a public school.

(b) Services provided in accordancewith a services plan. (1) Each privateschool child with a disability who hasbeen designated to receive servicesunder § 300.452 must have a servicesplan that describes the specific specialeducation and related services that theLEA will provide to the child in light ofthe services that the LEA hasdetermined, through the processdescribed in §§ 300.453–300.454, it willmake available to private schoolchildren with disabilities.

(2) The services plan must, to theextent appropriate—

(i) Meet the requirements of § 300.347,with respect to the services provided;and

(ii) Be developed, reviewed, andrevised consistent with §§ 300.342–300.346.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.456 Location of services;transportation.

(a) On-site. Services provided toprivate school children with disabilitiesmay be provided on-site at a child’sprivate school, including a religiousschool, to the extent consistent withlaw.

(b) Transportation. (1) General. (i) Ifnecessary for the child to benefit fromor participate in the services providedunder this part, a private school childwith a disability must be providedtransportation—

(A) From the child’s school or thechild’s home to a site other than theprivate school; and

(B) From the service site to the privateschool, or to the child’s home,depending on the timing of the services.

(ii) LEAs are not required to providetransportation from the child’s home tothe private school.

(2) Cost of transportation. The cost ofthe transportation described inparagraph (b)(1)(i) of this section may beincluded in calculating whether theLEA has met the requirement of§ 300.453.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.457 Complaints.

(a) Due process inapplicable. Theprocedures in §§ 300.504–300.515 donot apply to complaints that an LEA hasfailed to meet the requirements of§§ 300.452–300.462, including theprovision of services indicated on thechild’s services plan.

(b) Due process applicable. Theprocedures in §§ 300.504–300.515 doapply to complaints that an LEA hasfailed to meet the requirements of§ 300.451, including the requirements of§§ 300.530–300.543.

(c) State complaints. Complaints thatan SEA or LEA has failed to meet therequirements of §§ 300.451–300.462may be filed under the procedures in§§ 300.660–300.662.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.458 Separate classes prohibited.

An LEA may not use funds availableunder section 611 or 619 of the Act forclasses that are organized separately onthe basis of school enrollment orreligion of the students if—

(a) The classes are at the same site;and

(b) The classes include studentsenrolled in public schools and studentsenrolled in private schools.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.459 Requirement that funds notbenefit a private school.

(a) An LEA may not use fundsprovided under section 611 or 619 ofthe Act to finance the existing level ofinstruction in a private school or tootherwise benefit the private school.

(b) The LEA shall use funds providedunder Part B of the Act to meet thespecial education and related servicesneeds of students enrolled in privateschools, but not for—

(1) The needs of a private school; or(2) The general needs of the students

enrolled in the private school.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.460 Use of public school personnel.

An LEA may use funds availableunder sections 611 and 619 of the Actto make public school personnelavailable in other than publicfacilities—

(a) To the extent necessary to provideservices under §§ 300.450–300.462 forprivate school children with disabilities;and

(b) If those services are not normallyprovided by the private school.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.461 Use of private school personnel.

An LEA may use funds availableunder section 611 or 619 of the Act topay for the services of an employee ofa private school to provide servicesunder §§ 300.450–300.462 if—

(a) The employee performs theservices outside of his or her regularhours of duty; and

(b) The employee performs theservices under public supervision andcontrol.(Authority: 20 U.S.C. 1412(a)(10)(A))

§ 300.462 Requirements concerningproperty, equipment, and supplies for thebenefit of private school children withdisabilities.

(a) A public agency must keep title toand exercise continuing administrativecontrol of all property, equipment, andsupplies that the public agency acquireswith funds under section 611 or 619 ofthe Act for the benefit of private schoolchildren with disabilities.

(b) The public agency may placeequipment and supplies in a privateschool for the period of time needed forthe program.

(c) The public agency shall ensurethat the equipment and supplies placedin a private school—



(1) Are used only for Part B purposes;and

(2) Can be removed from the privateschool without remodeling the privateschool facility.

(d) The public agency shall removeequipment and supplies from a privateschool if—

(1) The equipment and supplies areno longer needed for Part B purposes; or

(2) Removal is necessary to avoidunauthorized use of the equipment andsupplies for other than Part B purposes.

(e) No funds under Part B of the Actmay be used for repairs, minorremodeling, or construction of privateschool facilities.(Authority: 20 U.S.C. 1412(a)(10)(A))

Procedures for By-Pass

§ 300.480 By-pass—general.(a) The Secretary implements a by-

pass if an SEA is, and was on December2, 1983, prohibited by law fromproviding for the participation of privateschool children with disabilities in theprogram assisted or carried out underPart B of the Act, as required by section612(a)(10)(A) of the Act and by§§ 300.452–300.462.

(b) The Secretary waives therequirement of section 612(a)(10)(A) ofthe Act and of §§ 300.452–300.462 if theSecretary implements a by-pass.(Authority: 20 U.S.C. 1412(f)(1))

§ 300.481 Provisions for services under aby-pass.

(a) Before implementing a by-pass, theSecretary consults with appropriatepublic and private school officials,including SEA officials, in the affectedState to consider matters such as—

(1) The prohibition imposed by Statelaw that results in the need for a by-pass;

(2) The scope and nature of theservices required by private schoolchildren with disabilities in the State,and the number of children to be servedunder the by-pass; and

(3) The establishment of policies andprocedures to ensure that private schoolchildren with disabilities receiveservices consistent with therequirements of section 612(a)(10)(A) ofthe Act and §§ 300.452–300.462.

(b) After determining that a by-pass isrequired, the Secretary arranges for theprovision of services to private schoolchildren with disabilities in the State ina manner consistent with therequirements of section 612(a)(10)(A) ofthe Act and §§ 300.452–300.462 byproviding services through one or moreagreements with appropriate parties.

(c) For any fiscal year that a by-passis implemented, the Secretary

determines the maximum amount to bepaid to the providers of services bymultiplying—

(1) A per child amount that may notexceed the amount per child providedby the Secretary under Part B of the Actfor all children with disabilities in theState for the preceding fiscal year; by

(2) The number of private schoolchildren with disabilities (as defined by§§ 300.7(a) and 300.450) in the State, asdetermined by the Secretary on the basisof the most recent satisfactory dataavailable, which may include anestimate of the number of those childrenwith disabilities.

(d) The Secretary deducts from theState’s allocation under Part B of the Actthe amount the Secretary determines isnecessary to implement a by-pass andpays that amount to the provider ofservices. The Secretary may withholdthis amount from the State’s allocationpending final resolution of anyinvestigation or complaint that couldresult in a determination that a by-passmust be implemented.(Authority: 20 U.S.C. 1412(f)(2))

§ 300.482 Notice of intent to implement aby-pass.

(a) Before taking any final action toimplement a by-pass, the Secretaryprovides the affected SEA with writtennotice.

(b) In the written notice, theSecretary—

(1) States the reasons for the proposedby-pass in sufficient detail to allow theSEA to respond; and

(2) Advises the SEA that it has aspecific period of time (at least 45 days)from receipt of the written notice tosubmit written objections to theproposed by-pass and that it mayrequest in writing the opportunity for ahearing to show cause why a by-passshould not be implemented.

(c) The Secretary sends the notice tothe SEA by certified mail with returnreceipt requested.(Authority: 20 U.S.C. 1412(f)(3)(A))

§ 300.483 Request to show cause.

An SEA seeking an opportunity toshow cause why a by-pass should not beimplemented shall submit a writtenrequest for a show cause hearing to theSecretary.(Authority: 20 U.S.C. 1412(f)(3))

§ 300.484 Show cause hearing.

(a) If a show cause hearing isrequested, the Secretary—

(1) Notifies the SEA and otherappropriate public and private schoolofficials of the time and place for thehearing; and

(2) Designates a person to conduct theshow cause hearing. The designee mustnot have had any responsibility for thematter brought for a hearing.

(b) At the show cause hearing, thedesignee considers matters such as—

(1) The necessity for implementing aby-pass;

(2) Possible factual errors in thewritten notice of intent to implement aby-pass; and

(3) The objections raised by publicand private school representatives.

(c) The designee may regulate thecourse of the proceedings and theconduct of parties during the pendencyof the proceedings. The designee takesall steps necessary to conduct a fair andimpartial proceeding, to avoid delay,and to maintain order.

(d) The designee may interpretapplicable statutes and regulations, butmay not waive them or rule on theirvalidity.

(e) The designee arranges for thepreparation, retention, and, ifappropriate, dissemination of the recordof the hearing.(Authority: 20 U.S.C. 1412(f)(3))

§ 300.485 Decision.(a) The designee who conducts the

show cause hearing—(1) 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 eachparty by certified mail with returnreceipt requested.

(b) Each party may submit commentsand recommendations on the designee’sdecision to the Secretary within 15 daysof the date the party receives thedesignee’s decision.

(c) The Secretary adopts, reverses, ormodifies the designee’s decision andnotifies the SEA of the Secretary’s finalaction. That notice is sent by certifiedmail with return receipt requested.(Authority: 20 U.S.C. 1412(f)(3))

§ 300.486 Filing requirements.(a) Any written submission under

§§ 300.482–300.485 must be filed byhand-delivery, by mail, or by facsimiletransmission. The Secretary discouragesthe use of facsimile transmission fordocuments longer than five pages.

(b) The filing date under paragraph (a)of this section is the date the documentis—

(1) Hand-delivered;(2) Mailed; or(3) Sent by facsimile transmission.(c) A party filing by facsimile

transmission is responsible forconfirming that a complete and legiblecopy of the document was received bythe Department.



(d) If a document is filed by facsimiletransmission, the Secretary or thehearing officer, as applicable, mayrequire the filing of a follow-up hardcopy by hand-delivery or by mail withina reasonable period of time.

(e) If agreed upon by the parties,service of a document may be madeupon the other party by facsimiletransmission.(Authority: 20 U.S.C. 1412(f)(3))

§ 300.487 Judicial review.If dissatisfied with the Secretary’s

final action, the SEA may, within 60days after notice of that action, file apetition for review with the UnitedStates Court of Appeals for the circuit inwhich the State is located. Theprocedures for judicial review aredescribed in section 612(f)(3)(B)–(D) ofthe Act.(Authority: 20 U.S.C. 1412(f)(3)(B)–(D))

Subpart E—Procedural Safeguards


§ 300.500 General responsibility of publicagencies; definitions.

(a) Responsibility of SEA and otherpublic agencies. Each SEA shall ensurethat each public agency establishes,maintains, and implements proceduralsafeguards that meet the requirements of§§ 300.500–300.529.

(b) Definitions of ‘‘consent,’’‘‘evaluation,’’ and ‘‘personallyidentifiable.’’ As used in this part —

(1) Consent means that —(i) The parent has been fully informed

of all information relevant to the activityfor which consent is sought, in his orher native language, or other mode ofcommunication;

(ii) The parent understands and agreesin writing to the carrying out of theactivity for which his or her consent issought, and the consent describes thatactivity and lists the records (if any) thatwill be released and to whom; and

(iii)(A) The parent understands thatthe granting of consent is voluntary onthe part of the parent and may berevoked at anytime.

(B) If a parent revokes consent, thatrevocation is not retroactive (i.e., it doesnot negate an action that has occurredafter the consent was given and beforethe consent was revoked).

(2) Evaluation means procedures usedin accordance with §§ 300.530–300.536to determine whether a child has adisability and the nature and extent ofthe special education and relatedservices that the child needs; and

(3) Personally identifiable means thatinformation includes—

(i) The name of the child, the child’sparent, or other family member;

(ii) The address of the child;(iii) A personal identifier, such as the

child’s social security number orstudent number; or

(iv) A list of personal characteristicsor other information that would make itpossible to identify the child withreasonable certainty.(Authority: 20 U.S.C. 1415(a))

§ 300.501 Opportunity to examine records;parent participation in meetings.

(a) General. The parents of a childwith a disability must be afforded, inaccordance with the procedures of§§ 300.562–300.569, an opportunity to—

(1) Inspect and review all educationrecords with respect to—

(i) The identification, evaluation, andeducational placement of the child; and

(ii) The provision of FAPE to thechild; and

(2) Participate in meetings withrespect to —

(i) The identification, evaluation, andeducational placement of the child; and

(ii) The provision of FAPE to thechild.

(b) Parent participation in meetings.(1) Each public agency shall providenotice consistent with § 300.345(a)(1)and (b)(1) to ensure that parents ofchildren with disabilities have theopportunity to participate in meetingsdescribed in paragraph (a)(2) of thissection.

(2) A meeting does not includeinformal or unscheduled conversationsinvolving public agency personnel andconversations on issues such as teachingmethodology, lesson plans, orcoordination of service provision ifthose issues are not addressed in thechild’s IEP. A meeting also does notinclude preparatory activities thatpublic agency personnel engage in todevelop a proposal or response to aparent proposal that will be discussed ata later meeting.

(c) Parent involvement in placementdecisions. (1) Each public agency shallensure that the parents of each childwith a disability are members of anygroup that makes decisions on theeducational placement of their child.

(2) In implementing the requirementsof paragraph (c)(1) of this section, thepublic agency shall use proceduresconsistent with the proceduresdescribed in § 300.345(a) through (b)(1).

(3) If neither parent can participate ina meeting in which a decision is to bemade relating to the educationalplacement of their child, the publicagency shall use other methods toensure their participation, including

individual or conference telephonecalls, or video conferencing.

(4) A placement decision may bemade by a group without theinvolvement of the parents, if the publicagency is unable to obtain the parents’participation in the decision. In thiscase, the public agency must have arecord of its attempt to ensure theirinvolvement, including information thatis consistent with the requirements of§ 300.345(d).

(5) The public agency shall makereasonable efforts to ensure that theparents understand, and are able toparticipate in, any group discussionsrelating to the educational placement oftheir child, including arranging for aninterpreter for parents with deafness, orwhose native language is other thanEnglish.(Authority: 20 U.S.C. 1414(f), 1415(b)(1))

§ 300.502 Independent educationalevaluation.

(a) General. (1) The parents of a childwith a disability have the right underthis part to obtain an independenteducational evaluation of the child,subject to paragraphs (b) through (e) ofthis section.

(2) Each public agency shall provideto parents, upon request for anindependent educational evaluation,information about where anindependent educational evaluationmay be obtained, and the agency criteriaapplicable for independent educationalevaluations as set forth in paragraph (e)of this section.

(3) For the purposes of this part—(i) Independent educational

evaluation means an evaluationconducted by a qualified examiner whois not employed by the public agencyresponsible for the education of thechild in question; and

(ii) Public expense means that thepublic agency either pays for the fullcost of the evaluation or ensures that theevaluation is otherwise provided at nocost to the parent, consistent with§ 300.301.

(b) Parent right to evaluation at publicexpense. (1) A parent has the right to anindependent educational evaluation atpublic expense if the parent disagreeswith an evaluation obtained by thepublic agency.

(2) If a parent requests anindependent educational evaluation atpublic expense, the public agency must,without unnecessary delay, either—

(i) Initiate a hearing under § 300.507to show that its evaluation isappropriate; or

(ii) Ensure that an independenteducational evaluation is provided atpublic expense, unless the agency



demonstrates in a hearing under§ 300.507 that the evaluation obtainedby the parent did not meet agencycriteria.

(3) If the public agency initiates ahearing and the final decision is that theagency’s evaluation is appropriate, theparent still has the right to anindependent educational evaluation, butnot at public expense.

(4) If a parent requests anindependent educational evaluation, thepublic agency may ask for the parent’sreason why he or she objects to thepublic evaluation. However, theexplanation by the parent may not berequired and the public agency may notunreasonably delay either providing theindependent educational evaluation atpublic expense or initiating a dueprocess hearing to defend the publicevaluation.

(c) Parent-initiated evaluations. If theparent obtains an independenteducational evaluation at privateexpense, the results of the evaluation—

(1) Must be considered by the publicagency, if it meets agency criteria, inany decision made with respect to theprovision of FAPE to the child; and

(2) May be presented as evidence at ahearing under this subpart regardingthat child.

(d) Requests for evaluations byhearing officers. If a hearing officerrequests an independent educationalevaluation as part of a hearing, the costof the evaluation must be at publicexpense.

(e) Agency criteria. (1) If anindependent educational evaluation isat public expense, the criteria underwhich the evaluation is obtained,including the location of the evaluationand the qualifications of the examiner,must be the same as the criteria that thepublic agency uses when it initiates anevaluation, to the extent those criteriaare consistent with the parent’s right toan independent educational evaluation.

(2) Except for the criteria described inparagraph (e)(1) of this section, a publicagency may not impose conditions ortimelines related to obtaining anindependent educational evaluation atpublic expense.(Authority: 20 U.S.C. 1415(b)(1))

§ 300.503 Prior notice by the publicagency; content of notice.

(a) Notice. (1) Written notice thatmeets the requirements of paragraph (b)of this section must be given to theparents of a child with a disability areasonable time before the publicagency—

(i) Proposes to initiate or change theidentification, evaluation, or

educational placement of the child orthe provision of FAPE to the child; or

(ii) Refuses to initiate or change theidentification, evaluation, oreducational placement of the child orthe provision of FAPE to the child.

(2) If the notice described underparagraph (a)(1) of this section relates toan action proposed by the public agencythat also requires parental consentunder § 300.505, the agency may givenotice at the same time it requestsparent consent.

(b) Content of notice. The noticerequired under paragraph (a) of thissection must include—

(1) A description of the actionproposed or refused by the agency;

(2) An explanation of why the agencyproposes or refuses to take the action;

(3) A description of any other optionsthat the agency considered and thereasons why those options wererejected;

(4) A description of each evaluationprocedure, test, record, or report theagency used as a basis for the proposedor refused action;

(5) A description of any other factorsthat are relevant to the agency’sproposal or refusal;

(6) A statement that the parents of achild with a disability have protectionunder the procedural safeguards of thispart and, if this notice is not an initialreferral for evaluation, the means bywhich a copy of a description of theprocedural safeguards can be obtained;and

(7) Sources for parents to contact toobtain assistance in understanding theprovisions of this part.

(c) Notice in understandablelanguage. (1) The notice required underparagraph (a) of this section must be—

(i) Written in languageunderstandable to the general public;and

(ii) Provided in the native language ofthe parent or other mode ofcommunication used by the parent,unless it is clearly not feasible to do so.

(2) If the native language or othermode of communication of the parent isnot a written language, the publicagency shall take steps to ensure—

(i) That the notice is translated orallyor by other means to the parent in hisor her native language or other mode ofcommunication;

(ii) That the parent understands thecontent of the notice; and

(iii) That there is written evidencethat the requirements in paragraphs(c)(2) (i) and (ii) of this section havebeen met.(Authority: 20 U.S.C. 1415(b)(3), (4) and (c),1414(b)(1))

§ 300.504 Procedural safeguards notice.(a) General. A copy of the procedural

safeguards available to the parents of achild with a disability must be given tothe parents, at a minimum—

(1) Upon initial referral for evaluation;(2) Upon each notification of an IEP

meeting;(3) Upon reevaluation of the child;

and(4) Upon receipt of a request for due

process under § 300.507.(b) Contents. The procedural

safeguards notice must include a fullexplanation of all of the proceduralsafeguards available under §§ 300.403,300.500–300.529, and 300.560–300.577,and the State complaint proceduresavailable under §§ 300.660–300.662relating to—

(1) Independent educationalevaluation;

(2) Prior written notice;(3) Parental consent;(4) Access to educational records;(5) Opportunity to present complaints

to initiate due process hearings;(6) The child’s placement during

pendency of due process proceedings;(7) Procedures for students who are

subject to placement in an interimalternative educational setting;

(8) Requirements for unilateralplacement by parents of children inprivate schools at public expense;

(9) Mediation;(10) Due process hearings, including

requirements for disclosure ofevaluation results andrecommendations;

(11) State-level appeals (if applicablein that State);

(12) Civil actions;(13) Attorneys’ fees; and(14) The State complaint procedures

under §§ 300.660–300.662, including adescription of how to file a complaintand the timelines under thoseprocedures.

(c) Notice in understandablelanguage. The notice required underparagraph (a) of this section must meetthe requirements of § 300.503(c).(Authority: 20 U.S.C. 1415(d))

§ 300.505 Parental consent.(a) General. (1) Subject to paragraphs

(a)(3), (b) and (c) of this section,informed parent consent must beobtained before—

(i) Conducting an initial evaluation orreevaluation; and

(ii) Initial provision of specialeducation and related services to a childwith a disability.

(2) Consent for initial evaluation maynot be construed as consent for initialplacement described in paragraph(a)(1)(ii) of this section.



(3) Parental consent is not requiredbefore—

(i) Reviewing existing data as part ofan evaluation or a reevaluation; or

(ii) Administering a test or otherevaluation that is administered to allchildren unless, before administrationof that test or evaluation, consent isrequired of parents of all children.

(b) Refusal. If the parents of a childwith a disability refuse consent forinitial evaluation or a reevaluation, theagency may continue to pursue thoseevaluations by using the due processprocedures under §§ 300.507–300.509,or the mediation procedures under§ 300.506 if appropriate, except to theextent inconsistent with State lawrelating to parental consent.

(c) Failure to respond to request forreevaluation. (1) Informed parentalconsent need not be obtained forreevaluation if the public agency candemonstrate that it has taken reasonablemeasures to obtain that consent, and thechild’s parent has failed to respond.

(2) To meet the reasonable measuresrequirement in paragraph (c)(1) of thissection, the public agency must useprocedures consistent with those in§ 300.345(d).

(d) Additional State consentrequirements. In addition to the parentalconsent requirements described inparagraph (a) of this section, a State mayrequire parental consent for otherservices and activities under this part ifit ensures that each public agency in theState establishes and implementseffective procedures to ensure that aparent’s refusal to consent does notresult in a failure to provide the childwith FAPE.

(e) Limitation. A public agency maynot use a parent’s refusal to consent toone service or activity under paragraphs(a) and (d) of this section to deny theparent or child any other service,benefit, or activity of the public agency,except as required by this part.(Authority: 20 U.S.C. 1415(b)(3);1414(a)(1)(C) and (c)(3))

§ 300.506 Mediation.(a) General. Each public agency shall

ensure that procedures are establishedand implemented to allow parties todisputes involving any matter describedin § 300.503(a)(1) to resolve the disputesthrough a mediation process that, at aminimum, must be available whenevera hearing is requested under §§ 300.507or 300.520–300.528.

(b) Requirements. The proceduresmust meet the following requirements:

(1) The procedures must ensure thatthe mediation process—

(i) Is voluntary on the part of theparties;

(ii) Is not used to deny or delay aparent’s right to a due process hearingunder § 300.507, or to deny any otherrights afforded under Part B of the Act;and

(iii) Is conducted by a qualified andimpartial mediator who is trained ineffective mediation techniques.

(2)(i) The State shall maintain a list ofindividuals who are qualified mediatorsand knowledgeable in laws andregulations relating to the provision ofspecial education and related services.

(ii) If a mediator is not selected on arandom (e.g., a rotation) basis from thelist described in paragraph (b)(2)(i) ofthis section, both parties must beinvolved in selecting the mediator andagree with the selection of theindividual who will mediate.

(3) The State shall bear the cost of themediation process, including the costsof meetings described in paragraph (d)of this section.

(4) Each session in the mediationprocess must be scheduled in a timelymanner and must be held in a locationthat is convenient to the parties to thedispute.

(5) An agreement reached by theparties to the dispute in the mediationprocess must be set forth in a writtenmediation agreement.

(6) Discussions that occur during themediation process must be confidentialand may not be used as evidence in anysubsequent due process hearings or civilproceedings, and the parties to themediation process may be required tosign a confidentiality pledge prior to thecommencement of the process.

(c) Impartiality of mediator. (1) Anindividual who serves as a mediatorunder this part—

(i) May not be an employee of—(A) Any LEA or any State agency

described under § 300.194; or(B) An SEA that is providing direct

services to a child who is the subject ofthe mediation process; and

(ii) Must not have a personal orprofessional conflict of interest.

(2) A person who otherwise qualifiesas a mediator is not an employee of anLEA or State agency described under§ 300.194 solely because he or she ispaid by the agency to serve as amediator.

(d) Meeting to encourage mediation.(1) A public agency may establishprocedures to require parents who electnot to use the mediation process tomeet, at a time and location convenientto the parents, with a disinterestedparty—

(i) Who is under contract with aparent training and information centeror community parent resource center inthe State established under section 682

or 683 of the Act, or an appropriatealternative dispute resolution entity;and

(ii) Who would explain the benefits ofthe mediation process, and encouragethe parents to use the process.

(2) A public agency may not deny ordelay a parent’s right to a due processhearing under § 300.507 if the parentfails to participate in the meetingdescribed in paragraph (d)(1) of thissection.(Authority: 20 U.S.C. 1415(e))

§ 300.507 Impartial due process hearing;parent notice.

(a) General. (1) A parent or a publicagency may initiate a hearing on any ofthe matters described in § 300.503(a)(1)and (2) (relating to the identification,evaluation or educational placement ofa child with a disability, or theprovision of FAPE to the child).

(2) When a hearing is initiated underparagraph (a)(1) of this section, thepublic agency shall inform the parentsof the availability of mediationdescribed in § 300.506.

(3) The public agency shall inform theparent of any free or low-cost legal andother relevant services available in thearea if—

(i) The parent requests theinformation; or

(ii) The parent or the agency initiatesa hearing under this section.

(b) Agency responsible for conductinghearing. The hearing described inparagraph (a) of this section must beconducted by the SEA or the publicagency directly responsible for theeducation of the child, as determinedunder State statute, State regulation, ora written policy of the SEA.

(c) Parent notice to the public agency.(1) General. The public agency musthave procedures that require the parentof a child with a disability or theattorney representing the child, toprovide notice (which must remainconfidential) to the public agency in arequest for a hearing under paragraph(a)(1) of this section.

(2) Content of parent notice. Thenotice required in paragraph (c)(1) ofthis section must include—

(i) The name of the child;(ii) The address of the residence of the

child;(iii) The name of the school the child

is attending;(iv) A description of the nature of the

problem of the child relating to theproposed or refused initiation orchange, including facts relating to theproblem; and

(v) A proposed resolution of theproblem to the extent known andavailable to the parents at the time.



(3) Model form to assist parents. EachSEA shall develop a model form toassist parents in filing a request for dueprocess that includes the informationrequired in paragraphs (c)(1) and (2) ofthis section.

(4) Right to due process hearing. Apublic agency may not deny or delay aparent’s right to a due process hearingfor failure to provide the notice requiredin paragraphs (c)(1) and (2) of thissection.(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7),(b)(8), (e)(1) and (f)(1))

§ 300.508 Impartial hearing officer.(a) A hearing may not be conducted—(1) By a person who is an employee

of the State agency or the LEA that isinvolved in the education or care of thechild; or

(2) By any person having a personalor professional interest that wouldconflict with his or her objectivity in thehearing.

(b) A person who otherwise qualifiesto conduct a hearing under paragraph(a) of this section is not an employee ofthe agency solely because he or she ispaid by the agency to serve as a hearingofficer.

(c) Each public agency shall keep alist of the persons who serve as hearingofficers. The list must include astatement of the qualifications of each ofthose persons.(Authority: 20 U.S.C. 1415(f)(3))

§ 300.509 Hearing rights.(a) General. Any party to a hearing

conducted pursuant to §§ 300.507 or300.520–300.528, or an appealconducted pursuant to § 300.510, hasthe right to—

(1) Be accompanied and advised bycounsel and by individuals with specialknowledge or training with respect tothe problems of children withdisabilities;

(2) Present evidence and confront,cross-examine, and compel theattendance of witnesses;

(3) Prohibit the introduction of anyevidence at the hearing that has notbeen disclosed to that party at least 5business days before the hearing;

(4) Obtain a written, or, at the optionof the parents, electronic, verbatimrecord of the hearing; and

(5) Obtain written, or, at the option ofthe parents, electronic findings of factand decisions.

(b) Additional disclosure ofinformation. (1) At least 5 business daysprior to a hearing conducted pursuant to§ 300.507(a), each party shall disclose toall other parties all evaluationscompleted by that date andrecommendations based on the offering

party’s evaluations that the partyintends to use at the hearing.

(2) A hearing officer may bar anyparty that fails to comply withparagraph (b)(1) of this section fromintroducing the relevant evaluation orrecommendation at the hearing withoutthe consent of the other party.

(c) Parental rights at hearings. (1)Parents involved in hearings must begiven the right to—

(i) Have the child who is the subjectof the hearing present; and

(ii) Open the hearing to the public.(2) The record of the hearing and the

findings of fact and decisions describedin paragraphs (a)(4) and (a)(5) of thissection must be provided at no cost toparents.

(d) Findings and decision to advisorypanel and general public. The publicagency, after deleting any personallyidentifiable information, shall —

(1) Transmit the findings anddecisions referred to in paragraph (a)(5)of this section to the State advisorypanel established under § 300.650; and

(2) Make those findings and decisionsavailable to the public.(Authority: 20 U.S.C. 1415(f)(2) and (h))

§ 300.510 Finality of decision; appeal;impartial review.

(a) Finality of decision. A decisionmade in a hearing conducted pursuantto §§ 300.507 or 300.520–300.528 isfinal, except that any party involved inthe hearing may appeal the decisionunder the provisions of paragraph (b) ofthis section and § 300.512.(Authority: 20 U.S.C. 1415(i)(1)(A))

(b) Appeal of decisions; impartialreview. (1) General. If the hearingrequired by § 300.507 is conducted by apublic agency other than the SEA, anyparty aggrieved by the findings anddecision in the hearing may appeal tothe SEA.

(2) SEA responsibility for review. Ifthere is an appeal, the SEA shallconduct an impartial review of thehearing. The official conducting thereview shall—

(i) Examine the entire hearing record;(ii) Ensure that the procedures at the

hearing were consistent with therequirements of due process;

(iii) Seek additional evidence ifnecessary. If a hearing is held to receiveadditional evidence, the rights in§ 300.509 apply;

(iv) Afford the parties an opportunityfor oral or written argument, or both, atthe discretion of the reviewing official;

(v) Make an independent decision oncompletion of the review; and

(vi) Give a copy of the written, or, atthe option of the parents, electronic

findings of fact and decisions to theparties.

(c) Findings and decision to advisorypanel and general public. The SEA,after deleting any personally identifiableinformation, shall—

(1) Transmit the findings anddecisions referred to in paragraph(b)(2)(vi) of this section to the Stateadvisory panel established under§ 300.650; and

(2) Make those findings and decisionsavailable to the public.

(d) Finality of review decision. Thedecision made by the reviewing officialis final unless a party brings a civilaction under § 300.512.(Authority: 20 U.S.C. 1415(g); H. R. Rep. No.94–664, at p. 49 (1975))

§ 300.511 Timelines and convenience ofhearings and reviews.

(a) The public agency shall ensurethat not later than 45 days after thereceipt of a request for a hearing—

(1) A final decision is reached in thehearing; and

(2) A copy of the decision is mailedto each of the parties.

(b) The SEA shall ensure that not laterthan 30 days after the receipt of arequest for a review—

(1) A final decision is reached in thereview; and

(2) A copy of the decision is mailedto each of the parties.

(c) A hearing or reviewing officer maygrant specific extensions of time beyondthe periods set out in paragraphs (a) and(b) of this section at the request of eitherparty.

(d) Each hearing and each reviewinvolving oral arguments must beconducted at a time and place that isreasonably convenient to the parentsand child involved.(Authority: 20 U.S.C. 1415)

§ 300.512 Civil action.(a) General. Any party aggrieved by

the findings and decision made under§§ 300.507 or 300.520–300.528 whodoes not have the right to an appealunder § 300.510(b), and any partyaggrieved by the findings and decisionunder § 300.510(b), has the right to bringa civil action with respect to thecomplaint presented pursuant to§ 300.507. The action may be brought inany State court of competentjurisdiction or in a district court of theUnited States without regard to theamount in controversy.

(b) Additional requirements. In anyaction brought under paragraph (a) ofthis section, the court—

(1) Shall receive the records of theadministrative proceedings;

(2) Shall hear additional evidence atthe request of a party; and



(3) Basing its decision on thepreponderance of the evidence, shallgrant the relief that the court determinesto be appropriate.

(c) Jurisdiction of district courts. Thedistrict courts of the United States havejurisdiction of actions brought undersection 615 of the Act without regard tothe amount in controversy.

(d) Rule of construction. Nothing inthis part restricts or limits the rights,procedures, and remedies availableunder the Constitution, the Americanswith Disabilities Act of 1990, title V ofthe Rehabilitation Act of 1973, or otherFederal laws protecting the rights ofchildren with disabilities, except thatbefore the filing of a civil action underthese laws seeking relief that is alsoavailable under section 615 of the Act,the procedures under §§ 300.507 and300.510 must be exhausted to the sameextent as would be required had theaction been brought under section 615of the Act.(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and1415(l))

§ 300.513 Attorneys’ fees.(a) In any action or proceeding

brought under section 615 of the Act,the court, in its discretion, may awardreasonable attorneys’ fees as part of thecosts to the parents of a child with adisability who is the prevailing party.

(b)(1) Funds under Part B of the Actmay not be used to pay attorneys’ feesor costs of a party related to an actionor proceeding under section 615 of theAct and subpart E of this part.

(2) Paragraph (b)(1) of this sectiondoes not preclude a public agency fromusing funds under Part B of the Act forconducting an action or proceedingunder section 615 of the Act.

(c) A court awards reasonableattorney’s fees under section 615(i)(3) ofthe Act consistent with the following:

(1) Determination of amount ofattorneys’ fees. Fees awarded undersection 615(i)(3) of the Act must bebased on rates prevailing in thecommunity in which the action orproceeding arose for the kind andquality of services furnished. No bonusor multiplier may be used in calculatingthe fees awarded under this subsection.

(2) Prohibition of attorneys’ fees andrelated costs for certain services. (i)Attorneys’ fees may not be awarded andrelated costs may not be reimbursed inany action or proceeding under section615 of the Act for services performedsubsequent to the time of a written offerof settlement to a parent if—

(A) The offer is made within the timeprescribed by Rule 68 of the FederalRules of Civil Procedure or, in the caseof an administrative proceeding, at any

time more than 10 days before theproceeding begins;

(B) The offer is not accepted within 10days; and

(C) The court or administrativehearing officer finds that the relieffinally obtained by the parents is notmore favorable to the parents than theoffer of settlement.

(ii) Attorneys’ fees may not beawarded relating to any meeting of theIEP team unless the meeting isconvened as a result of anadministrative proceeding or judicialaction, or at the discretion of the State,for a mediation described in § 300.506that is conducted prior to the filing ofa request for due process under§§ 300.507 or 300.520–300.528.

(3) Exception to prohibition onattorneys’ fees and related costs.Notwithstanding paragraph (c)(2) of thissection, an award of attorneys’ fees andrelated costs may be made to a parentwho is the prevailing party and whowas substantially justified in rejectingthe settlement offer.

(4) Reduction of amount of attorneys’fees. Except as provided in paragraph(c)(5) of this section, the court reduces,accordingly, the amount of theattorneys’ fees awarded under section615 of the Act, if the court finds that—

(i) The parent, during the course ofthe action or proceeding, unreasonablyprotracted the final resolution of thecontroversy;

(ii) The amount of the attorneys’ feesotherwise authorized to be awardedunreasonably exceeds the hourly rateprevailing in the community for similarservices by attorneys of reasonablycomparable skill, reputation, andexperience;

(iii) The time spent and legal servicesfurnished were excessive consideringthe nature of the action or proceeding;or

(iv) The attorney representing theparent did not provide to the schooldistrict the appropriate information inthe due process complaint inaccordance with § 300.507(c).

(5) Exception to reduction in amountof attorneys’ fees. The provisions ofparagraph (c)(4) of this section do notapply in any action or proceeding if thecourt finds that the State or local agencyunreasonably protracted the finalresolution of the action or proceeding orthere was a violation of section 615 ofthe Act.(Authority: 20 U.S.C. 1415(i)(3)(B)–(G))

§ 300.514 Child’s status duringproceedings.

(a) Except as provided in § 300.526,during the pendency of anyadministrative or judicial proceeding

regarding a complaint under § 300.507,unless the State or local agency and theparents of the child agree otherwise, thechild involved in the complaint mustremain in his or her current educationalplacement.

(b) If the complaint involves anapplication for initial admission topublic school, the child, with theconsent of the parents, must be placedin the public school until thecompletion of all the proceedings.

(c) If the decision of a hearing officerin a due process hearing conducted bythe SEA or a State review official in anadministrative appeal agrees with thechild’s parents that a change ofplacement is appropriate, thatplacement must be treated as anagreement between the State or localagency and the parents for purposes ofparagraph (a) of this section.(Authority: 20 U.S.C. 1415(j))

§ 300.515 Surrogate parents.

(a) General. Each public agency shallensure that the rights of a child areprotected if—

(1) No parent (as defined in § 300.20)can be identified;

(2) The public agency, afterreasonable efforts, cannot discover thewhereabouts of a parent; or

(3) The child is a ward of the Stateunder the laws of that State.

(b) Duty of public agency. The duty ofa public agency under paragraph (a) ofthis section includes the assignment ofan individual to act as a surrogate forthe parents. This must include amethod—

(1) For determining whether a childneeds a surrogate parent; and

(2) For assigning a surrogate parent tothe child.

(c) Criteria for selection of surrogates.(1) The public agency may select asurrogate parent in any way permittedunder State law.

(2) Except as provided in paragraph(c)(3) of this section, public agenciesshall ensure that a person selected as asurrogate—

(i) Is not an employee of the SEA, theLEA, or any other agency that isinvolved in the education or care of thechild;

(ii) Has no interest that conflicts withthe interest of the child he or sherepresents; and

(iii) Has knowledge and skills thatensure adequate representation of thechild.

(3) A public agency may select as asurrogate a person who is an employeeof a nonpublic agency that onlyprovides non-educational care for thechild and who meets the standards in



paragraphs (c)(2)(ii) and (iii) of thissection.

(d) Non-employee requirement;compensation. A person who otherwisequalifies to be a surrogate parent underparagraph (c) of this section is not anemployee of the agency solely becausehe or she is paid by the agency to serveas a surrogate parent.

(e) Responsibilities. The surrogateparent may represent the child in allmatters relating to—

(1) The identification, evaluation, andeducational placement of the child; and

(2) The provision of FAPE to thechild.(Authority: 20 U.S.C. 1415(b)(2))

§ 300.516 [Reserved].

§ 300.517 Transfer of parental rights at ageof majority.

(a) General. A State may provide that,when a student with a disability reachesthe age of majority under State law thatapplies to all students (except for astudent with a disability who has beendetermined to be incompetent underState law)—

(1)(i) The public agency shall provideany notice required by this part to boththe individual and the parents; and

(ii) All other rights accorded toparents under Part B of the Act transferto the student; and

(2) All rights accorded to parentsunder Part B of the Act transfer tostudents who are incarcerated in anadult or juvenile, State or localcorrectional institution.

(3) Whenever a State transfers rightsunder this part pursuant to paragraph(a)(1) or (a)(2) of this section, the agencyshall notify the individual and theparents of the transfer of rights.

(b) Special rule. If, under State law, aState has a mechanism to determine thata student with a disability, who hasreached the age of majority under Statelaw that applies to all children and hasnot been determined incompetent underState law, does not have the ability toprovide informed consent with respectto his or her educational program, theState shall establish procedures forappointing the parent, or, if the parentis not available another appropriateindividual, to represent the educationalinterests of the student throughout thestudent’s eligibility under Part B of theAct.(Authority: 20 U.S.C. 1415(m))

Discipline Procedures

§ 300.519 Change of placement fordisciplinary removals.

For purposes of removals of a childwith a disability from the child’s currenteducational placement under

§§ 300.520–300.529, a change ofplacement occurs if—

(a) The removal is for more than 10consecutive school days; or

(b) The child is subjected to a seriesof removals that constitute a patternbecause they cumulate to more than 10school days in a school year, andbecause of factors such as the length ofeach removal, the total amount of timethe child is removed, and the proximityof the removals to one another.(Authority: 20 U.S.C. 1415(k))

§ 300.520 Authority of school personnel.

(a) School personnel may order—(1)(i) To the extent removal would be

applied to children without disabilities,the removal of a child with a disabilityfrom the child’s current placement fornot more than 10 consecutive schooldays for any violation of school rules,and additional removals of not morethan 10 consecutive school days in thatsame school year for separate incidentsof misconduct (as long as thoseremovals do not constitute a change ofplacement under § 300.519(b));

(ii) After a child with a disability hasbeen removed from his or her currentplacement for more than 10 school daysin the same school year, during anysubsequent days of removal the publicagency must provide services to theextent required under § 300.121(d); and

(2) A change in placement of a childwith a disability to an appropriateinterim alternative educational settingfor the same amount of time that a childwithout a disability would be subject todiscipline, but for not more than 45days, if—

(i) The child carries a weapon toschool or to a school function under thejurisdiction of a State or a localeducational agency; or

(ii) The child knowingly possesses oruses illegal drugs or sells or solicits thesale of a controlled substance while atschool or a school function under thejurisdiction of a State or localeducational agency.

(b)(1) Either before or not later than 10business days after either first removingthe child for more than 10 school daysin a school year or commencing aremoval that constitutes a change ofplacement under § 300.519, includingthe action described in paragraph (a)(2)of this section—

(i) If the LEA did not conduct afunctional behavioral assessment andimplement a behavioral interventionplan for the child before the behaviorthat resulted in the removal described inparagraph (a) of this section, the agencyshall convene an IEP meeting to developan assessment plan.

(ii) If the child already has abehavioral intervention plan, the IEPteam shall meet to review the plan andits implementation, and, modify theplan and its implementation asnecessary, to address the behavior.

(2) As soon as practicable afterdeveloping the plan described inparagraph (b)(1)(i) of this section, andcompleting the assessments required bythe plan, the LEA shall convene an IEPmeeting to develop appropriatebehavioral interventions to address thatbehavior and shall implement thoseinterventions.

(c)(1) If subsequently, a child with adisability who has a behavioralintervention plan and who has beenremoved from the child’s currenteducational placement for more than 10school days in a school year is subjectedto a removal that does not constitute achange of placement under § 300.519,the IEP team members shall review thebehavioral intervention plan and itsimplementation to determine ifmodifications are necessary.

(2) If one or more of the teammembers believe that modifications areneeded, the team shall meet to modifythe plan and its implementation, to theextent the team determines necessary.

(d) For purposes of this section, thefollowing definitions apply:

(1) Controlled substance means a drugor other substance identified underschedules I, II, III, IV, or V in section202(c) of the Controlled Substances Act(21 U.S.C. 812(c)).

(2) Illegal drug—(i) Means a controlled substance; but(ii) Does not include a substance that

is legally possessed or used under thesupervision of a licensed health-careprofessional or that is legally possessedor used under any other authority underthat Act or under any other provision ofFederal law.

(3) Weapon has the meaning given theterm ‘‘dangerous weapon’’ underparagraph (2) of the first subsection (g)of section 930 of title 18, United StatesCode.(Authority: 20 U.S.C. 1415(k)(1), (10))

§ 300.521 Authority of hearing officer.A hearing officer under section 615 of

the Act may order a change in theplacement of a child with a disability toan appropriate interim alternativeeducational setting for not more than 45days if the hearing officer, in anexpedited due process hearing—

(a) Determines that the public agencyhas demonstrated by substantialevidence that maintaining the currentplacement of the child is substantiallylikely to result in injury to the child orto others;



(b) Considers the appropriateness ofthe child’s current placement;

(c) Considers whether the publicagency has made reasonable efforts tominimize the risk of harm in the child’scurrent placement, including the use ofsupplementary aids and services; and

(d) Determines that the interimalternative educational setting that isproposed by school personnel who haveconsulted with the child’s specialeducation teacher, meets therequirements of § 300.522(b).

(e) As used in this section, the termsubstantial evidence means beyond apreponderance of the evidence.(Authority: 20 U.S.C. 1415(k)(2), (10))

§ 300.522 Determination of setting.(a) General. The interim alternative

educational setting referred to in§ 300.520(a)(2) must be determined bythe IEP team.

(b) Additional requirements. Anyinterim alternative educational settingin which a child is placed under§§ 300.520(a)(2) or 300.521 must—

(1) Be selected so as to enable thechild to continue to progress in thegeneral curriculum, although in anothersetting, and to continue to receive thoseservices and modifications, includingthose described in the child’s currentIEP, that will enable the child to meetthe goals set out in that IEP; and

(2) Include services and modificationsto address the behavior described in§§ 300.520(a)(2) or 300.521, that aredesigned to prevent the behavior fromrecurring.(Authority: 20 U.S.C. 1415(k)(3))

§ 300.523 Manifestation determinationreview.

(a) General. If an action iscontemplated regarding behaviordescribed in §§ 300.520(a)(2) or 300.521,or involving a removal that constitutesa change of placement under § 300.519for a child with a disability who hasengaged in other behavior that violatedany rule or code of conduct of the LEAthat applies to all children—

(1) Not later than the date on whichthe decision to take that action is made,the parents must be notified of thatdecision and provided the proceduralsafeguards notice described in§ 300.504; and

(2) Immediately, if possible, but in nocase later than 10 school days after thedate on which the decision to take thataction is made, a review must beconducted of the relationship betweenthe child’s disability and the behaviorsubject to the disciplinary action.

(b) Individuals to carry out review. Areview described in paragraph (a) of thissection must be conducted by the IEP

team and other qualified personnel in ameeting.

(c) Conduct of review. In carrying outa review described in paragraph (a) ofthis section, the IEP team and otherqualified personnel may determine thatthe behavior of the child was not amanifestation of the child’s disabilityonly if the IEP team and other qualifiedpersonnel—

(1) First consider, in terms of thebehavior subject to disciplinary action,all relevant information, including —

(i) Evaluation and diagnostic results,including the results or other relevantinformation supplied by the parents ofthe child;

(ii) Observations of the child; and(iii) The child’s IEP and placement;

and(2) Then determine that—(i) In relationship to the behavior

subject to disciplinary action, thechild’s IEP and placement wereappropriate and the special educationservices, supplementary aids andservices, and behavior interventionstrategies were provided consistent withthe child’s IEP and placement;

(ii) The child’s disability did notimpair the ability of the child tounderstand the impact andconsequences of the behavior subject todisciplinary action; and

(iii) The child’s disability did notimpair the ability of the child to controlthe behavior subject to disciplinaryaction.

(d) Decision. If the IEP team and otherqualified personnel determine that anyof the standards in paragraph (c)(2) ofthis section were not met, the behaviormust be considered a manifestation ofthe child’s disability.

(e) Meeting. The review described inparagraph (a) of this section may beconducted at the same IEP meeting thatis convened under § 300.520(b).

(f) Deficiencies in IEP or placement. If,in the review in paragraphs (b) and (c)of this section, a public agencyidentifies deficiencies in the child’s IEPor placement or in theirimplementation, it must take immediatesteps to remedy those deficiencies.(Authority: 20 U.S.C. 1415(k)(4))

§ 300.524 Determination that behavior wasnot manifestation of disability.

(a) General. If the result of the reviewdescribed in § 300.523 is adetermination, consistent with§ 300.523(d), that the behavior of thechild with a disability was not amanifestation of the child’s disability,the relevant disciplinary proceduresapplicable to children withoutdisabilities may be applied to the childin the same manner in which they

would be applied to children withoutdisabilities, except as provided in§ 300.121(d).

(b) Additional requirement. If thepublic agency initiates disciplinaryprocedures applicable to all children,the agency shall ensure that the specialeducation and disciplinary records ofthe child with a disability aretransmitted for consideration by theperson or persons making the finaldetermination regarding the disciplinaryaction.

(c) Child’s status during due processproceedings. Except as provided in§ 300.526, § 300.514 applies if a parentrequests a hearing to challenge adetermination, made through the reviewdescribed in § 300.523, that the behaviorof the child was not a manifestation ofthe child’s disability.(Authority: 20 U.S.C. 1415(k)(5))

§ 300.525 Parent appeal.

(a) General. (1) If the child’s parentdisagrees with a determination that thechild’s behavior was not a manifestationof the child’s disability or with anydecision regarding placement under§§ 300.520–300.528, the parent mayrequest a hearing.

(2) The State or local educationalagency shall arrange for an expeditedhearing in any case described inparagraph (a)(1) of this section if ahearing is requested by a parent.

(b) Review of decision. (1) Inreviewing a decision with respect to themanifestation determination, thehearing officer shall determine whetherthe public agency has demonstrated thatthe child’s behavior was not amanifestation of the child’s disabilityconsistent with the requirements of§ 300.523(d).

(2) In reviewing a decision under§ 300.520(a)(2) to place the child in aninterim alternative educational setting,the hearing officer shall apply thestandards in § 300.521.(Authority: 20 U.S.C. 1415(k)(6))

§ 300.526 Placement during appeals.

(a) General. If a parent requests ahearing or an appeal regarding adisciplinary action described in§ 300.520(a)(2) or 300.521 to challengethe interim alternative educationalsetting or the manifestationdetermination, the child must remain inthe interim alternative educationalsetting pending the decision of thehearing officer or until the expiration ofthe time period provided for in§ 300.520(a)(2) or 300.521, whicheveroccurs first, unless the parent and theState agency or local educational agencyagree otherwise.


March 12, 1999 federal register · Federal Register/Vol. 64, No. 48/Friday, March 12, 1999/Rules...

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