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

General (Sec. 300.320(a))

We received numerous comments requesting that we require the IEP to include additional content that is not in the Act. Under section 614(d)(1)(A)(ii)(I) of the Act, the Department cannot interpret section 614 of the Act to require public agencies to include additional information in a child's IEP that is not explicitly required under the Act. Therefore, we generally have not included these comments in our analysis and discussion of Sec. 300.320.

Comment: One commenter requested that Sec. 300.320 refer to a "student with a disability" instead of a "child with a disability."

Discussion: The words "child" and "student" are used interchangeably throughout the Act. The regulations follow the statutory language whenever possible. In Sec. 300.320, we used the term "child with a disability," consistent with section 614(d) of the Act.

Changes: None.

Comment: Many commenters recommended that the regulations include a definition of "functional" as it is used, for example, in "functional performance" in Sec. 300.320(a)(1) and "functional goals" in Sec. 300.320(a)(2). Some commenters suggested defining "functional" as the acquisition of essential and critical skills needed for children with disabilities to learn specific daily living, personal, social, and employment skills, or the skills needed to increase performance and independence at work, in school, in the home, in the community, for leisure time, and for postsecondary and other life long learning opportunities. One commenter recommended that the regulations include examples of functional skills and how functional skills should be measured.

Discussion: It is not necessary to include a definition of "functional" in these regulations because we believe it is a term that is generally understood to refer to skills or activities that are not considered academic or related to a child's academic achievement. Instead, "functional" is often used in the context of routine activities of everyday living. We do not believe it is necessary to include examples of functional skills in the regulations because the range of functional skills is as varied as the individual needs of children with disabilities. We also decline to include examples of how functional skills are measured because this is a decision that is best left to public agencies, based on the needs of their children. However, it should be noted that the evaluation procedures used to measure a child's functional skills must meet the same standards as all other evaluation procedures, consistent with Sec. 300.304(c)(1).

Changes: None.

Comment: One commenter recommended revising Sec. 300.320(a) to state that "an IEP includes" rather than "an IEP must include" in order to reflect the specific language in section 614(d) of the Act. The commenter stated that use of the word "must" limits the contents of an IEP to the items listed in Sec. 300.320(a).

Discussion: The word "must" is used in Sec. 300.320(a) to clarify that an IEP is required to include the items listed in Sec. 300.320(a). We believe it is important to retain this language in Sec. 300.320(a). Under section 614(d)(1)(A)(ii)(I) of the Act, section 614 of the Act cannot be interpreted to require content in the IEP beyond that which is specified in the Act.

Changes: None.

Comment: One commenter requested clarifying the meaning of "appropriate" as used, for example, in Sec. 300.320(a)(1)(ii) to refer to a child's participation in "appropriate" activities.

Discussion: The word "appropriate" in these regulations does not have a different meaning from its common usage. Generally, the word "appropriate" is used to mean "suitable" or "fitting" for a particular person, condition, occasion, or place.

Changes: None.

Comment: Some commenters recommended requiring the IEP to include a statement of the relevant social and cultural background of a child and how those factors affect the appropriate participation, performance, and placement of the child in special education.

Discussion: Section 614(d)(1)(A)(ii)(I) of the Act precludes the Department from interpreting section 614 of the Act to require public agencies to include information in a child's IEP other than what is explicitly required in the Act. Therefore, we cannot require the IEP to include the statement requested by the commenters. However, a child's social or cultural background is one of many factors that a public agency must consider in interpreting evaluation data to determine if a child is a child with a disability under Sec. 300.8 and the educational needs of the child, consistent with Sec. 300.306(c)(1)(i).

Changes: None.

Comment: One commenter stated that adapted physical education should be part of a child's IEP. Another commenter recommended that travel training be required in the IEP.

Discussion: The definition of special education in new Sec. 300.39 (proposed Sec. 300.38) includes adapted physical education and travel training. We do not believe adapted physical education and travel training should be mandated as part of an IEP because, as with all special education and related services, each child's IEP Team determines the special education and related services that are needed to meet each child's unique needs in order for the child to receive FAPE. In addition, section 614(d)(1)(A)(ii)(I) of the Act prohibits the Department from interpreting section 614 of the Act to require public agencies to include information in a child's IEP that is not explicitly required under the Act.

Changes: None.

Comment: One commenter recommended that IEPs include the array of new tools used with nondisabled children, so that children with disabilities have access to the materials they need to progress in the general education curriculum.

Discussion: There is nothing in the Act that requires new tools or the same tools and materials used by nondisabled children to be used with children with disabilities or be specified in children's IEPs. Therefore, we cannot make the requested change because section 614(d)(1)(A)(ii)(I) of the Act prohibits the Department from interpreting section 614 of the Act to require public agencies to include information in a child's IEP that is not explicitly required under the Act. Each child's IEP Team determines the special education and related services, as well as supplementary aids, services, and supports that are needed to meet the child's needs in order to provide FAPE consistent with Sec. 300.320(a)(4) and section 614(d)(1)(A)(i)(IV) of the Act.

Changes: None.