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U.S. Department of Education: Promoting Educational Excellence for all Americans

Subpart B--State Eligibility

FAPE Requirements[select]

Section 300.101(c) has been revised to clarify that a free appropriate public education (FAPE) must be available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade.

Section 300.102(a)(3), regarding exceptions to FAPE, has been changed to clarify that a regular high school diploma does not include an alternative degree that is not fully aligned with the State's academic standards, such as a certificate or a general educational development credential (GED).

Section 300.105, regarding assistive technology and proper functioning of hearing aids, has been re-titled "Assistive technology," and proposed paragraph (b), regarding the proper functioning of hearing aids, has been moved to new Sec. 300.113(a).

Section 300.107(a), regarding nonacademic services, has been revised to specify the steps each public agency must take, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

Proposed Sec. 300.108(a), regarding physical education services, has been revised to specify that physical education must be made available to all children with disabilities receiving FAPE, unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

A new Sec. 300.113, regarding routine checking of hearing aids and external components of surgically implanted medical devices, has been added, as follows:

(1) Paragraph (a) of Sec. 300.113 requires each public agency to ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(2) A new Sec. 300.113(b)(1) requires each public agency to ensure that the external components of surgically implanted medical devices are functioning properly. However, new Sec. 300.113(b)(2) has been added to make it clear that, for a child with a surgically implanted medical device who is receiving special education and related services, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

Least Restrictive Environment[select]

Section 300.116(b)(3) and (c) regarding placements, has been revised to remove the qualification "unless the parent agrees otherwise" from the requirements that (1) the child's placement be as close as possible to the child's home, and (2) the child is educated in the school he or she would attend if not disabled.

Section 300.117 (Nonacademic settings) has been changed to clarify that each public agency must ensure that each child with a disability has the supplementary aids and services determined by the child's individualized education program (IEP) Team to be appropriate and necessary for the child to participate with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child.

Children With Disabilities Enrolled by Their Parents in Private Schools[select]

Section 300.130 (definition of parentally-placed private school children with disabilities) has been revised to clarify that the term means children with disabilities enrolled by their parents in private, including religious, schools or facilities, that meet the definition of elementary school in Sec. 300.13 or secondary school in Sec. 300.36.

A new Sec. 300.131(f), regarding child find for out-of-State parentally-placed private school children with disabilities, has been added to clarify that each LEA in which private (including religious) elementary schools and secondary schools are located must include parentally-placed private school children who reside in a State other than the State in which the private schools that they attend are located.

Section 300.133, regarding expenditures for parentally-placed private school children with disabilities, has been revised, as follows:

(1) A new Sec. 300.133(a)(2)(ii), has been added to clarify that children aged three through five are considered to be parentally-placed private school children with disabilities enrolled by their parents in private, including religious, elementary schools, if they are enrolled in a private school that meets the definition of elementary school in Sec. 300.13.

(2) A new Sec. 300.133(a)(3) has been added to specify that, if an LEA has not expended for equitable services for parentally-placed private school children with disabilities all of the applicable funds described in Sec. 300.133(a)(1) and (a)(2) by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services (including direct services) to parentally-placed private school children with disabilities during a carry-over period of one additional year.

Section 300.136, regarding compliance related to parentally-placed private school children with disabilities, has been revised to remove the requirement that private school officials must submit complaints to the SEA using the procedures in Sec. Sec. 300.151 through 300.153.

Section 300.138(a), regarding the requirement that services to parentally-placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, has been modified to clarify that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements in Sec. 300.18

Section 300.140, regarding due process complaints and State complaints, has been revised to make the following changes:

(1) Section 300.140(b)(1) (proposed Sec. 300.140(a)(2)), regarding child find complaints, has been changed to clarify that the procedures in Sec. Sec. 300.504 through 300.519 apply to complaints that an LEA has failed to meet the child find requirements in Sec. 300.131, including the requirements in Sec. Sec. 300.301 through 300.311.

(2) A new paragraph (b)(2) has been added to provide that any due process complaint regarding the child find requirements (as described in Sec. 300.140(b)(1)) must be filed with the LEA in which the private school is located and a copy of the complaint must be forwarded to the SEA.

(3) A new Sec. 300.140(c), regarding State complaints by private school officials, has been added to clarify that (A) any complaint that an SEA or LEA has failed to meet the requirements in Sec. Sec. 300.132 through 300.135 and 300.137 through 300.144 must be filed in accordance with the procedures described in Sec. Sec. 300.151 through 300.153, and (B) a complaint filed by a private school official under Sec. 300.136(a) must be filed with the SEA in accordance with the procedures in Sec. 300.136(b).

Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE is at Issue[select]

Sec. 300.148 Placement of children by parents if FAPE is at issue.

A new Sec. 300.148(b), regarding disagreements about FAPE, has been added (from current Sec. 300.403(b)) to clarify that disagreements between a parent and a public agency regarding the availability of a program appropriate for a child with a disability, and the question of financial reimbursement, are subject to the due process procedures in Sec. Sec. 300.504 through 300.520.

State Complaint Procedures[select]

Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B)) has been revised to clarify that each SEA's complaint procedures must provide the public agency with an opportunity to respond to a complaint filed under Sec. 300.153, including, at a minimum, an opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with Sec. 300.506.

Section 300.152(b)(1)(ii), regarding time extensions for filing a State complaint, has been revised to clarify that it would be permissible to extend the 60-day timeline if the parent (or individual or organization if mediation or other alternative means of dispute resolution is available to the individual or organization under State procedures) and the public agency agree to engage in mediation or to engage in other alternative means of dispute resolution, if available in the State.

Section 300.152(c), regarding complaints filed under Sec. 300.152 and due process hearings under Sec. 300.507 and Sec. Sec. 300.530 through 300.532, has been revised to clarify that if a written complaint is received that is also the subject of a due process hearing under Sec. Sec. 300.507 or 300.530 through 300.532, or contains multiple issues of which one or more are part of a due process hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not part of the due process hearing must be resolved using the time limit and procedures described elsewhere in the State complaint procedures. A new paragraph (c)(3) also has been added to require SEAs to resolve complaints alleging a public agency's failure to implement a due process hearing. This is the same requirement in current Sec. 300.661(c)(3).

Section 300.153(c), regarding the one year time limit from the date the alleged violation occurred and the date the complaint is received in accordance with Sec. 300.151, has been revised by removing the exception clause related to complaints covered under Sec. 300.507(a)(2).

Methods of Ensuring Services[select]

Section 300.154(d), regarding children with disabilities who are covered by public benefits or insurance, has been revised to clarify that the public agency must (1) obtain parental consent each time that access to the parent's public benefits or insurance is sought, and (2) notify parents that refusal to allow access to their public benefits or insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

Additional Eligibility Requirements[select]

Section 300.156(e), regarding personnel qualifications, has been revised (1) to add "or a class of students," to clarify that a judicial action on behalf of a class of students may not be filed for failure of a particular SEA or LEA employee to be highly qualified, and (2) to substitute the word "employee" for "staff person," to be more precise in the rule of construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)).

Participation in Assessments (Sec. 300.160)[select]

Section 300.160(b)(2), regarding accommodation guidelines that a State must develop, has been revised to clarify that the State guidelines must (A) identify the accommodations for each assessment that do not invalidate the score; and (B) instruct IEP Teams to select, for each assessment, only those accommodations that do not invalidate the score.

Proposed Sec.300.160(c), which would have required a State that has adopted modified academic achievement standards to have guidelines for the participation of students with disabilities in assessments based on those standards, has been removed. With the clarification in Sec.200.6(a)(3) that assessments based on modified academic achievement standards are alternate assessments, proposed Sec.300.160(c) is redundant with new Sec.300.160(c) (proposed Sec.300.160(d)).

Proposed Sec.300.160(d)(1), which requires a State (or in the case of a district-wide assessment, an LEA) to develop and implement alternate assessments and guidelines for children who cannot participate in regular assessments, even with accommodations, has been redesignated as new Sec.300.160(c)(1).

Proposed Sec.300.160(d)(2)(ii), which would have required a State to measure the achievement of children based on alternate academic achievement standards if a State has adopted those standards, has been changed by replacing ``alternate academic achievement standards'' with ``modified academic achievement standards,'' and clarifying that modified academic achievement standards are permitted for children who meet the State's criteria under Sec. 200.1(e)(2). Proposed Sec.300.160(d)(2)(ii) has been redesignated as Sec.300.160(c)(2)(ii).

A new Sec.300.160(c)(2)(iii) has been added, providing that, if a State has adopted alternate academic achievement standards, the State must measure the achievement of children with the most significant cognitive disabilities against those standards.

A new paragraph (d) has been added, requiring a State to provide IEP Teams with a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on modified or alternate academic achievement standards, including any effects of State or local policies on the student's education resulting from taking an alternate assessment based on alternate or modified academic achievement standards (such as whether only satisfactory performance on a regular assessment would qualify a student for a regular high school diploma).

A new paragraph (e) has been added, requiring a State to ensure that parents of a student selected to be assessed based on alternate or modified academic achievement standards are informed that their child's achievement will be measured based on alternate or modified academic achievement standards.

Proposed Sec.300.160(e), regarding reports on the assessment of students with disabilities, has been redesignated as Sec.300.160(f) and changed as follows:

(1) Proposed paragraph (e)(1) in Sec.300.160, which requires a State to report on the number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations that did not result in an invalid score, has been redesignated as Sec.300.160(f)(1).

(2) Proposed paragraph (e)(2) in Sec.300.160 has been redesignated as Sec.300.160(f)(2) and revised to require a State to report on the number of children participating in alternate assessments based on grade-level academic achievement standards.

(3) Proposed paragraph (e)(3) in Sec.300.160, which requires a State to report on the number of children with disabilities who are assessed based on alternate academic achievement standards, has been changed to require a State to report on the number of children with disabilities, if any, who are assessed based on modified academic achievement standards. The regulatory reference to alternate assessments based on alternate academic achievement standards has been deleted and proposed Sec.300.160(e)(3) has been redesignated as Sec.300.160(f)(3).

(4) Proposed paragraph (e)(4) in Sec.300.160, which requires a State to report on the number of children with disabilities who are assessed based on modified academic achievement standards, has been changed to require a State to report on the number of children with disabilities, if any, who are assessed based on alternate academic achievement standards. The regulatory reference to modified academic achievement standards has been deleted and proposed Sec.300.160(e)(4) has been redesignated as Sec.300.160(f)(4).

(5) Proposed paragraph (e)(5) in Sec.300.160, which required a State to report on the performance results of children with disabilities on regular assessments and on alternate assessments, has been clarified by specifically identifying alternate assessments based on grade-level academic achievement standards; alternate assessments based on modified academic achievement standards; and alternate assessments based on alternate academic achievement standards. It also has been revised to require that performance results for children with disabilities be compared to the achievement of all students, including children with disabilities. Proposed Sec. 300.160(e)(5) has been redesignated as Sec. 300.160(f)(5).

Proposed Sec. 300.160(f), regarding universal design, has been redesignated as Sec. 300.160(g).

Other Provisions Required for State Eligibility[select]

Section 300.172, regarding access to instructional materials, has been revised: (1) to make clear that States must adopt the National Instructional Materials Accessibility Standard (NIMAS), published as Appendix C to these final regulations; (2) to establish a definition of "timely manner," for purposes of Sec. 300.172(b)(2) and (b)(3) if the State is not coordinating with the National Instructional Materials Access Center (NIMAC), or Sec. 300.172(b)(3) and (c)(2) if the State is coordinating with the NIMAC; (3) to add a new Sec. 300.172(b)(4) to require SEAs to ensure that all public agencies take all reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials; and (4) to add a new Sec. 300.172(e)(2) to clarify, that all definitions in Sec. 300.172(e)(1) apply to each State and LEA, whether or not the State or LEA chooses to coordinate with the NIMAC.

A new Sec. 300.177 has been added to include a provision regarding "States' sovereign immunity." That provision, which has been added to incorporate the language in section 604 of the Act, makes clear that a State that accepts funds under Part B of the Act waives its immunity under the 11th amendment of the Constitution of the United States from suit in Federal court for a violation of Part B of the Act.