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

States' Sovereign Immunity and Positive Efforts To Employ and Advance Qualified Individuals With Disabilities (Sec. 300.177)

(originally published on December 1, 2008 – 73 FR 73006; effective date – December 31, 2008)

Comment: A few commenters requested clarification of the term ``positive efforts,'' as it is used in Sec. 300.177(b). One commenter recommended that the regulations clarify that the term ``positive efforts'' includes making reasonable accommodations during the recruitment and interview process, and ensuring that assistive technology devices are provided in the workplace.

Discussion: Consistent with section 606 of the Act, positive efforts must be made to recruit and advance qualified individuals with disabilities in programs assisted under Part B of the Act. We decline to define the term ``positive efforts'' in these regulations because the positive efforts taken by States will vary based on the unique and individual needs of a State and public agency, and those needs may change over time. For example, a public agency's positive efforts might include participating in an employment fair that is targeted at individuals with disabilities, sending vacancy announcements to organizations for individuals with disabilities and ensuring that employees with disabilities are aware of promotion opportunities. As a separate obligation under Section 504, each recipient of assistance must provide reasonable accommodations, which may include assistive technology devices, to each qualified individual with a disability who applies for employment, or is employed in programs assisted under Part B of the Act.

Changes: None.

Comment: One commenter opposed proposed Sec. 300.177 because, according to the commenter, section 606 of the Act is silent on the Department's authority to issue regulations relating to the employment of individuals with disabilities. The commenter argued that doing so would be contrary to Congress' intent, in section 607(a) of the Act, that the Secretary issue regulations only to the extent that such regulations are necessary to ensure compliance with the specific requirements of the IDEA. The commenter further noted that proposed Sec. 300.177(b) is unnecessary because in order to receive a grant under Part B of the IDEA, each State must already have on file with the Department a description of the steps the State proposes to take to ensure equitable access to, and participation in, activities conducted under Part B of the Act, as required by section 427 of the General Education Provisions Act (GEPA).

Another commenter opposed this provision because the changes pertain to employment requirements rather than to the provision of special education. The commenter suggested that the Department provide guidance on this issue rather than include it in the regulations.

Discussion: Section 606 of the Act requires the Secretary to ensure that each recipient of assistance under Part B of the Act makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under the Act. Section 300.177(b), consistent with section 606 of the Act, makes clear that this requirement applies to each recipient of Part B funds, including both SEAs and LEAs. This provision does not replace or contradict protections afforded to individuals with disabilities under other State or Federal laws, including requirements under GEPA, Section 504, Title II of the ADA, and applicable employment laws. Additionally, Sec. 300.177(b) implements statutory provisions; the fact that it addresses employment matters rather than the provision of special education services does not mean that it should not be included in the regulations. The Department therefore declines to adopt the suggestion that this matter be addressed through guidance rather than through the regulations.

Changes: None.

Comment: One commenter questioned whether the Department might add the provision in Sec. 300.177(b) as one of the Secretary's monitoring priorities for reporting by SEAs and LEAs in the SPP and APR.

Discussion: As previously discussed in this preamble, section 616(a)(3) of the Act specifies the Department's IDEA monitoring priorities and requires the Secretary to monitor the States' performance in these priority areas using quantifiable indicators. At this time, the Department does not expect to include an additional indicator to monitor the implementation of the requirements in Sec. 300.177(b).

Changes: None.