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

Subpart F--Monitoring, Enforcement, Confidentiality, and Program Information

Monitoring, Technical Assistance, and Enforcement[select]

State monitoring and enforcement (Sec. 300.600)[select]

Comment: Several commenters recommended modifying Sec. 300.600 to include language from section 616(a)(1) and (a)(3) of the Act to clarify that the Department, like the States, has the authority and obligation to monitor and enforce Part B of the Act. The commenters recommended that the requirements in section 616(a)(1) of the Act be included in the regulations because improving accountability is one of the most important goals of this reauthorization and the Act mandates the Secretary to monitor and enforce the Act.

Discussion: We take the responsibility to monitor and enforce compliance with the Act seriously, but that responsibility comes from the Act, and from the Department's inherent authority to ensure that the laws it is charged with implementing are carried out, and not from these regulations. In general, we do not believe that it is necessary to include language on the responsibility of the Secretary in the regulations, as, under Sec. 300.2, the regulations apply to States that receive payments under Part B of the Act and public agencies of those States, but not to the Department. Information on our monitoring and enforcement activities is available on the Department's Web site at:

http://www.ed.gov/policy/speced/guid/idea/monitor/index.html.

Changes: None.

Comment: Several commenters stated that the monitoring priority areas in section 616(a)(3) of the Act should be included in Sec. 300.600.

Discussion: We agree that the monitoring priority areas in section 616(a)(3) of the Act related to State responsibilities should be included in the regulations because these provisions require each State to monitor its LEAs in each of the monitoring priority areas specified in the Act. Accordingly, we will add further clarification regarding the monitoring priority areas from section 616(a)(3) of the Act in Sec. 300.600.

Changes: A new paragraph (d) has been added to Sec. 300.600 to include the State monitoring priority areas in section 616(a)(3) of the Act.

Comment: One commenter expressed concern that there will be no accountability on the part of States and the Department for complying with the requirements in section 616(a)(1) and (a)(3) of the Act because the regulations do not reflect these requirements.

Discussion: The requirements in section 616(a)(1) of the Act, relating to a State's monitoring responsibilities, are included in the regulations in Sec. 300.600(a). Further, as indicated in the response to the previous comment, a provision regarding the State's responsibility to monitor LEAs located in the State using the indicators in the monitoring priority areas in section 616(a)(3) of the Act has been added in new Sec. 300.600(d). Regarding the Secretary's monitoring responsibility, section 616(a)(1) of the Act is clear that the Secretary must monitor implementation of Part B of the Act through the oversight of States' exercise of general supervision and through the State performance plans. Sections 616(a)(3) and 616(b) further describe the Secretary's responsibilities to monitor States' implementation of Part B of the Act. In addition, note 253-258 of the Conf. Rpt. No. 108-779, p. 232, provides that the Secretary must request such information from States and stakeholders as is necessary to implement the purposes of the Act, including the use of on-site monitoring visits and file reviews to enforce the requirements of the Act. We continue to believe it is unnecessary to include the Secretary's obligations in the regulations. We also do not believe further clarification regarding State accountability is necessary in Sec. 300.600.

Changes: None.

Comment: One commenter noted that Sec. 300.600(c) requires States to use quantifiable indicators and such qualitative indicators as are needed to adequately measure performance in the monitoring priority areas identified in section 616(a)(3) of the Act. The commenter expressed concern that this requirement expands the data collection burden on States and focuses on inputs, processes, and whether certain procedural rights are met, rather than focusing on educational results and outcomes for children with disabilities.

Discussion: Section 300.600 reflects the requirements in the Act and Congress' determination that collection of this data is necessary to fulfill the purposes of the Act. Specifically, section 616(b)(2) of the Act requires each State to develop a State performance plan that includes measurable and rigorous targets for the indicators established under the monitoring priority areas. As directed by section 616(a)(3) of the Act, the Secretary also has established quantifiable indicators in each of the monitoring priority areas listed in the Act and these regulations. These indicators focus on improving educational results and functional outcomes for children with disabilities, and include issues such as the provision of services in the LRE, participation and performance on Statewide assessments, and graduation and dropout rates. In addition, important systemic indicators, such as monitoring, mediation, and child find, are included. More information about State performance plans, the indicators, and the Department's review of the State performance plans is available on the Department's Web site at:

http://www.ed.gov/policy/speced/guid/idea/bapr/index.html.

Changes: None.

Comment: One commenter recommended changing Sec. 300.600 to require States to develop policies and procedures to analyze the performance of each public agency; develop written policies and procedures to guide monitoring activities; and develop and maintain a stakeholder group, which would include public school administrators, advocates, family members, and others, to guide monitoring and enforcement activities.

Discussion: Section 300.149(b), consistent with section 612(a)(11) of the Act, already requires States to have policies and procedures in effect to ensure compliance with the monitoring and enforcement requirements in Sec. Sec. 300.600 through 300.602 and Sec. Sec. 300.606 through 300.608. Sections 300.167 through 300.169, consistent with section 612(a)(21) of the Act, require States to establish and maintain an advisory panel with broad and diverse representation to advise States on, among other things, developing evaluations and corrective action plans to address findings identified in Federal monitoring reports. Accordingly, we do not believe any modification of Sec. 300.600, regarding State monitoring procedures, is necessary.

Changes: None.

Comment: Several commenters recommended modifying Sec. 300.600 to require States to establish a committee, which includes advocates to oversee monitoring and enforcement activities. A number of commenters suggested that this group, at a minimum, include representatives of PTIs; protection and advocacy groups; and parent, disability advocacy, and education organizations.

Several commenters also recommended requiring the advisory committee to provide advice on the development of the State's performance goals and indicators required in Sec. 300.157, the State's performance plan, including measurable and rigorous targets required in Sec. 300.601(a)(1) and (a)(3), the State's report to the public required in Sec. 300.602(b)(2), the State's corrective action or improvement plan under Sec. 300.604(b)(2)(i), and other State monitoring, improvement, and enforcement activities.

Discussion: The State advisory panel, required in Sec. Sec. 300.167 through 300.169, consistent with section 612(a)(21)(A) of the Act, addresses many of the commenters' suggestions. The purpose of the State advisory panel, as stated in Sec. 300.167 and section 612(a)(21)(A) of the Act, is to provide policy guidance to the SEA with respect to special education and related services for children with disabilities. Pursuant to Sec. 300.168 and section 612(a)(21)(B) of the Act, a broad membership is required. The duties of the panel are, among other things, to advise the SEA on unmet needs, evaluations, and corrective action plans to address findings identified in Federal monitoring reports, consistent with Sec. 300.169 and section 612(a)(21)(D) of the Act. However, although we believe that broad stakeholder involvement in the development of the State performance plans and annual performance reports is very important, we decline to regulate that a specific group be involved in their development. We have, however, provided guidance in OSEP's August 9, 2005 memorandum to States, Submission of Part B State Performance Plans and Annual Performance Reports, (OSEP Memo 05-12), located at http://www.ed.gov/policy/speced/guid/idea/bapr/index.html, which directs States to provide information in their State performance plans on how they obtained broad input from stakeholders on the State performance plan. Accordingly, we find it unnecessary to add any further clarification in Sec. 300.600.

Changes: None.

Comment: Some commenters recommended modifying Sec. 300.600(b)(2) to clarify that monitoring and enforcement activities also apply to programs under Part C of the Act. A few commenters suggested clarifying that Part C of the Act should be monitored to evaluate how well it serves infants and toddlers with disabilities and their families.

Discussion: Section 300.600 applies only to Part B of the Act. However, the commenters are correct that the monitoring and enforcement activities in section 616 of the Act also apply to Part C of the Act, as provided in section 642 of the Act. The Department will address this recommendation in the promulgation of regulations implementing Part C of the Act.

Changes: None.

Comment: A few commenters recommended clarifying that the monitoring priority in section 616(a)(3)(A) of the Act, relating to the provision of FAPE in the LRE, should be based on the unique needs of the individual child. One commenter stated that the regulations should stress individualization when determining LRE. This commenter recommended including language from note 89 of the Conf. Rpt. No. 108-779, p. 186, which highlights Congress' intent that each public agency ensure that a "continuum of alternative placements (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions) is available to meet the needs of children with disabilities for special education and related services."

Discussion: Section 300.115, consistent with section 612(a)(5) of the Act, requires each public agency to ensure that a continuum of alternative placements (including instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions) is available to meet the needs of children with disabilities for special education and related services. The LRE provisions are intended to ensure that a child with a disability is served in a setting where the child can be educated successfully and that placement decisions are individually determined based on each child's abilities and needs. We do not believe that the change recommended by the commenter is needed.

Changes: None.

Comment: One commenter recommended changing Sec. 300.600 to specify that the Department's monitoring of States for compliance with the LRE requirements in Sec. Sec. 300.114 through 300.117 include a review of IEPs to determine if: (1) placements were based on the individual unique needs of each child; (2) placements were requested by parents; (3) IEP Teams followed the IEP requirements in Sec. Sec. 300.320 through 300.328; (4) children received the services required to participate and progress in the general curriculum; (5) children are in appropriate environments; and (6) the educational and emotional advancements of children were considered. The commenter recommended adding language to direct individuals who monitor the implementation of the Act to look further than "numbers" when monitoring the LRE requirements.

Discussion: As noted in section 616(a)(1) of the Act, the Secretary monitors implementation of the Act through oversight of States' exercise of general supervision and States' performance plans. Section 616(a)(1) of the Act further states that the Secretary requires States to monitor and enforce the implementation of the Act by LEAs. The activities listed by the commenter are not the type of monitoring activities the Act requires the Secretary to undertake. The commenter's listed activities are more appropriately the responsibilities of States as they monitor the implementation of the Act in their LEAs.

Changes: None.

Comment: One commenter recommended avoiding references to the Act in Sec. Sec. 300.600 through 300.609 when references to the regulations could accomplish the same result.

Discussion: We agree with the commenter and will revise Sec. Sec. 300.600 through 300.609 accordingly.

Changes: We have revised Sec. Sec. 300.600 through 300.609 by replacing statutory citations with relevant regulatory citations, where appropriate.

Comment: One commenter recommended clarifying that racial disproportionality in educational placements falls within the monitoring priority areas for monitoring and enforcement.

Discussion: New Sec. 300.600(d), consistent with section 616(a)(3) of the Act, includes disproportionate representation of racial and ethnic groups in special education and related services (to the extent the representation is the result of inappropriate identification) as a monitoring priority. Because the monitoring priority area clearly refers to disproportionate representation to the extent the representation is a result of inappropriate identification of children with disabilities, and not placement, we do not believe we can include disproportionate representation resulting from educational placement within the scope of this monitoring priority area.

Changes: None.

Comment: One commenter recommended including a requirement in Sec. 300.600(c) that States develop corrective action plans for each LEA monitored to improve performance in the monitoring priority areas. The commenter also suggested requiring that corrective action plans be completed by the State within one year of the monitoring report.

Discussion: Section 300.600(a), consistent with section 616(a)(1)(C) of the Act, requires States to monitor implementation and enforcement of the Act. As discussed elsewhere in this section in response to comments regarding Sec. 300.604 (Enforcement), we have revised Sec. 300.600(a) to identify the specific enforcement actions included in Sec. 300.604 that are appropriate for States to use with LEAs. The new Sec. 300.600(a) identifies specific methods that must be used to ensure correction when an LEA has been determined to need assistance for two consecutive years or to need intervention for three or more consecutive years. For example, Sec. 300.600(a) refers to Sec. 300.604(b)(2)(i), which discusses the preparation of a corrective action or improvement plan. In addition, new Sec. 300.608(b) clarifies that States can use other authority available to them to monitor and enforce the Act. States need the flexibility to select the most appropriate mechanism to ensure correction in a timely manner. Requiring that corrective action plans be developed in every instance is overly prescriptive when there are multiple methods that can be used. Accordingly, we do not think it is necessary to make the change suggested by the commenter.

Changes: None.

State Monitoring and Enforcement (Sec. 300.600) [select]

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

Comment: None.

Discussion: In the course of our internal review of this provision, we noted that Sec. 300.600(e) implied, but did not clearly state, that the one-year timeline for correction begins with the State's identification of the noncompliance.

Changes: We have revised Sec. 300.600(e) to specify that correction of noncompliance must be completed no later than one year after the State's identification of the noncompliance.

Comment: A few commenters acknowledged that there are some areas of noncompliance that can be corrected within one year of identification; however, the commenters expressed concern that the one-year timeline is not realistic for findings of systemic noncompliance in substantive areas such as the provision of FAPE, placement in the least restrictive environment (LRE), and child find. Other commenters requested that proposed Sec. 300.600(e) be revised to reflect ``degrees'' of noncompliance. For example, one commenter suggested that some instances of noncompliance (e.g., those related to a specific child's IEP implementation) should not take one year to correct; whereas instances of noncompliance related to systemic issues may take longer than one year to correct. The commenter also questioned how proposed Sec. 300.600(e) will address situations involving longstanding noncompliance. Lastly, one commenter agreed with the intent of proposed Sec. 300.600(e) but requested that the timeline be modified to allow for exceptions, such as allowing a State to initiate appropriate action to correct noncompliance within one year of identification or as soon as possible thereafter.

Discussion: Section 300.600(e) requires that all noncompliance related to the implementation of Part B of the Act be corrected as soon as possible, and in no case later than one year after the State's identification of the noncompliance. These changes are necessary to ensure that children with disabilities are provided with the FAPE to which they are entitled so that they are able to make progress towards meeting IEP goals and statewide achievement standards.

While we agree with the commenters that some areas of noncompliance are more difficult to correct than others, we do not agree that the timeline should be extended beyond one year. Our experience has been that most States can correct noncompliance, including noncompliance that is spread broadly across a system, in less than one year from identification of the noncompliance. For example, States have required the implementation of short-term correction strategies while they are developing and implementing a plan for long-term change to ensure sustained compliance. An example of a short-term correction strategy coupled with a longer-term change might include contracting with speech therapists to provide the speech pathology services needed by current students while developing an in-district program to support speech pathology assistants to become certified speech language pathologists. Therefore, Sec. 300.600(e) provides an appropriate timeline for correcting noncompliance, including systemic and long-standing noncompliance. In cases where a State is unable to correct noncompliance within one year of identification, as provided in Sec. 300.600(e), a State may enter into a compliance agreement with the Department under section 457 of GEPA (Compliance Agreement), if the Department deems a Compliance Agreement appropriate. The purpose of a Compliance Agreement is to allow a State the time needed to correct long-standing systemic noncompliance and come into full compliance with the applicable requirements of the Federal program as soon as feasible, but not later than three years from the date of the Compliance Agreement. A Compliance Agreement allows a State to continue to receive its grant award under Part B of the Act while it works toward achieving full compliance under the terms of the agreement. Section 300.600(e), when read together with the provisions in section 457 of GEPA, adequately address the commenters' concerns.

We decline to amend the regulations to distinguish between or stratify types of noncompliance. Any noncompliance with the provisions in 34 CFR Part 300 is subject to the provisions in Sec. 300.600(e), and, therefore, must be corrected as soon as possible, and in no case later than one year from identification. However, we do agree with the commenter who suggested that some instances of noncompliance, e.g., those related to child-specific IEP timelines, may be corrected far more quickly than one year from identification. We expect that all noncompliance in those instances will be corrected as soon as possible. We recognize, though, that not all noncompliance can be corrected immediately. In our more than 30 year experience in implementing Part B of the Act, we have found that one year is a reasonable outside time limit for States for correcting noncompliance.

For reasons previously stated in this preamble and because a State must initiate appropriate corrective actions immediately upon the identification of noncompliance, we decline to amend the regulations to allow for exceptions to the timely correction timeline in Sec. 300.600(e) or to indicate that a State must only initiate appropriate action to correct noncompliance within one year or as soon as possible thereafter. The one-year timeline to correct noncompliance will ensure that most cases of noncompliance are corrected in one year or less, thereby facilitating the provision of FAPE to children with disabilities.

Changes: None.

Comment: One commenter expressed concern that proposed Sec. 300.600(e) contradicts the logic of Sec. 300.604(b)(2)(ii), which allows compliance agreements if the Secretary has reason to believe that the State cannot correct the problem within one year. Additionally, the commenter stated that proposed Sec. 300.600(e) will be problematic for data collection and analysis purposes because the strict one-year timeline may impede the SEA's ability to use the most current LEA data in determining whether or not a systemic violation has been corrected. The commenter noted that an SEA could erroneously determine, based on outdated data, that an LEA has corrected its noncompliance, allowing for the continuation of the violation and ultimately poor student outcomes.

Discussion: We do not agree that the provisions in Sec. 300.600(e) contradict the provisions in Sec. 300.604(b)(2)(ii). These two regulatory sections address two separate and distinct processes. While Sec. 300.600(e) addresses the standard for the timely correction of noncompliance, Sec. 300.604(b)(2)(ii) addresses enforcement actions available to the Secretary if the Secretary determines, for three or more consecutive years, that a State needs intervention under Sec. 300.603(b)(1)(iii) in implementing the requirements of Part B of the Act. In situations where the Secretary determines, for three or more consecutive years, that a State needs intervention in implementing the requirements of Part B of the Act, the Secretary may require a State to enter into a Compliance Agreement if the Secretary has reason to believe that the State cannot correct noncompliance that has existed for multiple years, within one year.

We do not agree with the commenter that a one-year timeline will in any way impede the use of data in determining the correction of systemic noncompliance or contribute to diminished student outcomes. Many States collect compliance data using a real-time database. Therefore, correction of systemic noncompliance, or the continuation of noncompliance, can be determined at any time.

Changes: None.

Comment: One commenter stated that there is no statutory authority that requires correction of noncompliance within one year after the State's identification. The commenter further noted that under Indicator 15 in the State Performance Plan (SPP), a State must report on the percentage of noncompliance corrected within one year of identification and for any noncompliance not corrected within one year, the State must describe those actions, including technical assistance and enforcement actions the State has taken. The commenter noted that proposed Sec. 300.600(e) appears to give a State two different policies to follow with respect to noncompliance.

Discussion: Section 612(a)(11) of the Act and Sec. 300.149 require States to ensure that each educational program for children with disabilities administered within the State is under the general supervision of individuals responsible for educational programs for children with disabilities in the SEA. Section 616(a)(1)(C) of the Act and section 441a(b)(3)(A) of GEPA require a State to monitor implementation of Part B of the Act in each of its LEAs. Additionally, Sec. 300.100, consistent with section 612(a) of the Act, requires that all States receiving funds under Part B of the Act provide assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets the requirements of Part B of the Act, including the monitoring and enforcement requirements in Sec. Sec. 300.600 through 300.602 and Sec. Sec. 300.606 through 300.608.

The Act is silent regarding a timeline for correction of noncompliance with the requirements of Part B of the Act. However, the Department recognizes that full, continuous compliance with Part B of the Act may not be possible. Therefore, the Department allows States, through Sec. 300.600(e), a reasonable timeframe for correcting noncompliance; that is, any noncompliance must be corrected as soon as possible and in no case later than one year from identification. It is the Department's position that specifying a one-year timeline for correcting noncompliance is necessary to ensure proper and effective implementation of the requirements of Part B of the Act.

As noted previously, section 616(a)(3) of the Act requires the Secretary to monitor the States, and the States to monitor their LEAs, using quantifiable indicators in several priority areas, including a State's exercise of its general supervisory authority. As required by the Act, the Secretary established 20 indicators to monitor these priority areas.

Indicator 15 in the SPP measures the effectiveness of a State's general supervision by determining the percentage of noncompliance that was corrected within one year of identification. It is the Department's longstanding position, as reflected in Indicator 15 of the SPP, that when a State identifies noncompliance with the requirements of Part B of the Act by its LEAs, the noncompliance must be corrected as soon as possible, and in no case later than one year after the State identifies the noncompliance. The Department has established a target of 100 percent for Indicator 15, meaning States are expected to correct 100 percent of noncompliance as soon as possible, and in no case later than one year. Further, in our experience, when a State makes a good faith effort to correct noncompliance, the needed corrective actions can be accomplished and their effectiveness verified within one year. Finally, we expect that in the limited circumstances where correction does not occur within one year of the State's identification, the State will take specific enforcement actions with the LEA that are designed to achieve compliance. Section 300.600(e) is consistent with the Department's policy and guidance concerning the State's monitoring and enforcement responsibilities under Part B of the Act and the reporting requirements for Indicator 15.

Changes: None.

Comment: One commenter requested that the regulations include a more uniform process for States to follow in making annual determinations on the performance of LEAs because current practice differs from State to State.

Discussion: It is the Department's position that States should have some discretion in making annual determinations on the performance of their LEAs and, therefore, decline to establish, in regulation, a uniform process for making annual determinations under section 616(b)(2)(C)(ii)(I) of the Act. We have advised States that, at a minimum, a State's annual determination process must include consideration of the following: an LEA's performance on all SPP compliance indicators (e.g., Indicators 9, 10, 11, 12, 13, 15, 16, 17, and 20), whether an LEA submitted valid and reliable data for each indicator, LEA-specific audit findings, and any uncorrected noncompliance from any source. Additionally, we have advised States to consider performance on results indicators, such as an LEA's graduation and dropout rates, or the participation rate of students with disabilities in State assessments.

Changes: None.

Comment: One commenter recommended requiring the participation of federally funded Parent Training and Information Centers, Community Parent Resource Centers, Protection and Advocacy Agencies, and parent and advocacy organizations and coalitions in the Federal and State monitoring processes.

Discussion: The Department encourages States to involve all stakeholders, including those noted by the commenter, in monitoring the implementation of Part B of the Act and these regulations. However, regulating, as the commenter requested, is not necessary because the commenter's concern is adequately addressed through other means. The Department engaged a number of stakeholders, including parent and advocacy organizations, in developing the Federal monitoring system, and continues to ensure that States include broad stakeholder input in the development of State targets and improvement activities. Additionally, under Sec. Sec. 300.167 through 300.169, regarding the State Advisory Panel, States must establish and maintain an advisory panel with broad membership for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State. Section 300.169 specifies many duties of the State Advisory Panel, including advising the SEA of unmet needs in the education of children with disabilities within the State, developing corrective action plans to address findings identified in Federal monitoring reports under Part B of the Act, and developing and implementing policies relating to the coordination of services for children with disabilities. All of these activities are integral to the effective ongoing monitoring of the full implementation of Part B of the Act.

Changes: None.

State performance plans and data collection (Sec. 300.601)[select]

Comment: One commenter expressed concern that Sec. 300.601(a)(3) and (b)(1) over-regulate by requiring measurable and rigorous targets beyond those established in the Act. The commenter expressed concern that this would result in additional data collection and analyses and require substantial administrative staff time and additional costs at the State and local levels. The commenter stated that, while the Department may monitor any area and review any data, it is unnecessary to establish additional non-statutory indicators and targets.

Discussion: Section 300.601(a)(3), consistent with section 616(a)(3) of the Act, requires the Secretary to establish indicators to adequately measure performance in the monitoring priority areas. Under section 616(b)(2)(A) of the Act, States are required to establish measurable and rigorous targets for the indicators established under the monitoring priority areas described in section 616(a)(3). The Department established indicators only in the three monitoring priority areas listed in new Sec. 300.600(d), consistent with section 616(a)(3) of the Act. Given that States are required to establish targets for indicators established under the monitoring priority areas and indicators were established only under the three statutory monitoring priority areas, the Secretary is not requiring measurable and rigorous targets in areas beyond those established in the Act. We disagree with the commenter and do not believe the Department has over-regulated in this area.

Changes: None.

Comment: A few commenters recommended changing Sec. 300.601 to specify that States must provide an opportunity for public comment in developing the State performance plan.

Discussion: We agree that the public should be represented in developing State performance plans. In note 253-258 of the Conf. Rpt. No. 108-779, p. 232, Congress stated its expectation that State performance plans, indicators, and targets be developed with broad stakeholder input and public dissemination. OSEP Memo 05-12 requires States to provide information in the overview section of the State performance plan, clarifying how the State obtained broad input from stakeholders on the State performance plan. Furthermore, Sec. Sec. 300.167 through 300.169 clarify the State's responsibility to establish and maintain an advisory panel, whose membership consists of broad and diverse representation, to advise States on many issues, including developing evaluations and reporting on data to the Secretary. Accordingly, we believe that no additional clarification is needed.

Changes: None.

Comment: One commenter expressed concern that the requirement in Sec. 300.601(a)(3) reflects a "one-size-fits-all" approach that is not in the Act because it requires the Secretary to establish indicators for the State performance plan and annual performance reports and requires States to collect data on each of the indicators.

Discussion: Section 616(a)(3) of the Act requires the Secretary to establish quantifiable indicators in each of the monitoring priority areas, and qualitative indicators, as needed, to adequately measure performance. Section 300.601(a) reflects this requirement. The requirement that each State establish measurable and rigorous targets for the indicators established by the Secretary and collect relevant data is set forth in section 616(b)(2)(B) of the Act. We do not agree that this presents a one-size-fits-all approach because States set their own targets for indicators such as graduation, dropout, and performance on assessments, and identify improvement strategies specific to the unique circumstances of their State. In addition, OSEP Memo 05-12 includes the indicators established by the Secretary and also indicates that States have the flexibility to establish their own indicators, in addition to the indicators established by the Secretary.

Changes: None.

Comment: One commenter recommended amending Sec. 300.601 to specify that, as part of the State's performance plan, measurable and rigorous targets are only required for the indicators established by the Secretary and are not required for any additional indicators established by the State.

Discussion: Pursuant to the guidance in OSEP Memo 05-12, the Secretary has established indicators under the three monitoring priority areas in new Sec. 300.600(d), consistent with section 616(a)(3) of the Act. States may choose to add additional indicators if there are other areas the State wishes to improve. If the State adds indicators to the State Performance Plan, the State must include measurable and rigorous targets for each additional indicator because the purpose of the State performance plan is to evaluate the State's efforts to implement the statutory requirements and describe how the State will improve. States are free to have additional indicators that are not included in the State performance plan and these indicators would not need to have measurable and rigorous targets.

Changes: None.

State use of targets and reporting (Sec. 300.602)[select]

Comment: A few commenters recommended modifying Sec. 300.602(b)(1)(A) to require each LEA to work with an LEA monitoring stakeholder advisory committee that would advise the LEA on analyzing and reporting its performance on the targets in the State performance plan and on developing LEA plans. The commenters stated that, at a minimum, the advisory committee should include representatives of parents, disability advocacy groups, and other organizations.

Discussion: There is nothing in section 616 of the Act that requires LEAs to establish local stakeholder groups. Given the wide variation in the size of LEAs across the country and the wide variety of issues facing those LEAs, we do not believe that a Federal requirement is appropriate. States have the discretion to establish (or have their LEAs establish) local advisory groups to advise the LEAs, if they so choose.

Changes: None.

Comment: One commenter recommended modifying Sec. 300.602 to require each State to include LEA corrective action plans (including indicators, targets, findings, and timelines for LEAs to correct any findings) in the State's report to the public on the performance of each LEA in the State on the targets in the State's performance plan.

Discussion: Section 300.602, consistent with section 616(b)(2)(C) of the Act, requires States to report annually on the performance of each LEA against targets in the State performance plan. We believe requiring States to include LEAs' corrective action plans in the States' public reports would create additional burden for States that is not required by the Act.

Changes: None.

Comment: Several commenters recommended revising Sec. 300.602 to specify that the State performance plan and the public report on LEAs' performance must be in language that is accessible to, and understandable by, all interested parties.

Discussion: The Department expects the information that a State reports in its annual performance reports and in the public reports on LEA performance will be made available in an understandable and uniform format across the State, including alternative formats upon request, and, to the extent practicable, in a language that parents understand. We do not believe it is necessary to add a specific requirement to the regulations because other Federal laws and policies already require that information to parents be available in alternative formats and to parents who are limited English proficient. Specifically, Title VI of the Civil Rights Act of 1964 requires SEAs and LEAs to communicate to parents with limited English proficiency what is communicated to parents who are not limited English proficient. Under Title VI, SEAs and LEAs have flexibility in determining what mix of oral and written translation services may be necessary and reasonable for communicating this information. Similarly, Executive Order 13166 requires that recipients of Federal financial assistance take reasonable steps to ensure meaningful access by individuals with limited English proficiency. For individuals with disabilities, title II of the Americans with Disabilities Act requires that State and local governments, and Section 504 of the Rehabilitation Act of 1973 requires that recipients of Federal financial assistance, ensure that their communications with individuals with disabilities are as effective as their communications with others, and that appropriate auxiliary aids and services are available when necessary to ensure effective communication.

Changes: None.

Comment: One commenter suggested that the annual performance report include cross-references or links to the State report card and local report cards on the academic performance of children with disabilities under the ESEA.

Discussion: States may choose, but are not required, to include in the annual performance report the cross-references or links suggested by the commenter. States also may choose, but are not required, to use their ESEA report cards for reporting annually on the performance of LEAs on the indicators in the State performance plan. We do not believe it is appropriate to require States to cross-reference or link to ESEA report cards because it is overly burdensome and may create confusion because the indicators and timeframe for reporting may not be the same between the two reporting systems.

Changes: None.

Comment: One commenter recommended requiring States to post their monitoring reports of LEAs on the States' Web site and make reports on monitoring activities for each LEA available to the public in written format and to the media.

Discussion: States have the discretion to decide how these reports are made available to the public. There is nothing in the Act that requires States to post monitoring reports of LEAs on the States' Web site or through other means. However, States may, if they wish, make such postings.

Changes: None.

Comment: One commenter suggested removing Sec. 300.602(b)(1)(ii), which requires a State to include in its report to the public on the performance of each LEA, the most recent performance data on each individual LEA and the date the data were obtained, if the State collects these data through monitoring or sampling.

Discussion: We believe that the data we are requiring the States to provide under Sec. 300.602(b)(1)(ii) are necessary for the proper implementation of the Act. Providing the most recent LEA performance data and the date the data were obtained will reduce data burden while maintaining the States' accountability for results, specifically related to indicator data that are more difficult to collect because those data are not collected through State-reported data collection systems under section 618 of the Act. However, the proposed regulations were not as clear as they should have been about the conditions under which States may use monitoring and sampling data. Therefore, we are revising Sec. 300.601(b) by adding a new provision that specifies that if the Secretary permits States to collect data on specific indicators through State monitoring or sampling, and a State chooses to collect data on those indicators through State monitoring or sampling, the State must collect data on those indicators on each LEA at least once during the period of the State performance plan. This will require that States collect data to assess each LEA's performance on indicators for which State monitoring or sampling data are permitted during the period of the State performance plan, so that the public will receive specific information about each LEA. We also are revising Sec. 300.602(b)(1)(ii) to make clear that the required information about specific LEAs would only have to be included in the reports to the public on LEA performance required by Sec. 300.602(b)(1)(i)(A), which should prevent this provision from being interpreted to require LEA-specific reporting to the Secretary.

Changes: We have renumbered Sec. 300.601(b)(2) as Sec. 300.601(b)(3) and added a new Sec. 300.601(b)(2) to specify that, if permitted by the Secretary, if a State collects data on an indicator through State monitoring or sampling, the State must collect data on the indicator at least once during the period of the State performance plan. We also have revised Sec. 300.602(b)(1)(ii) to provide a more specific reference to the public report required under Sec. 300.602(b)(1)(i)(A).

Comment: One commenter recommended that Sec. 300.602 specify that data on disproportionality be reported to the public, pursuant to sections 616(b)(2)(C) and 618 of the Act.

Discussion: The provisions in Sec. 300.602 already include the requirement suggested by the commenter. Section 300.602, consistent with section 616(b)(2)(C) of the Act, requires each State to use the targets established in its State performance plan and the monitoring priority areas described in Sec. 300.600(d), to analyze the performance of each LEA in the State, and to report annually to the public on such performance. As described in new Sec. 300.600(d), the monitoring priority areas on which the State will report include the disproportionate representation of racial and ethnic groups in special education and related services, to the extent the disproportionate representation is the result of inappropriate identification. Accordingly, States are required to report this information to the public. States must establish targets on each of the indicators set by the Secretary.

We also note that Sec. 300.642(a), consistent with section 618(b) of the Act, requires that data collected pursuant to section 618 of the Act be reported publicly. These data will include State-level data on the number and percentage of children with disabilities by race and ethnicity on a number of measures, including identification as children with disabilities, placement, graduation and drop-out, and discipline. Accordingly, we do not believe any further changes to the regulations are necessary.

Changes: None.

Timeframe for Public Reporting About LEA Performance Public Reporting and Privacy (Sec. 300.602(b)) [select]

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

Comment: Several commenters requested that we change the public reporting timeline in proposed Sec. 300.602(b)(1)(i)(A). Some of these commenters argued that the Secretary does not have the statutory authority to establish a timeline and that meeting the timeline would be an excessive burden on States. Other commenters agreed with the concept of a timeline and offered suggestions as to what the timeline should be. Some commenters suggested that the regulations allow for State-determined timelines; others recommended timelines ranging from 90 to 120 days following a State's submission of its APR to the Secretary; still others recommended a 60 day timeline beginning with a State's receipt of its annual determination from the Secretary. Commenters stated that a State-determined timeline or a timeline triggered by the State's receipt of it annual determination from the Secretary would allow for a more careful analysis of individual LEA data, thereby ensuring more accurate public reporting on the performance of each LEA.

Discussion: Section 300.602(b)(1)(i)(A) implements section 616(b)(2)(C)(ii)(I) of the Act. Although the Act is silent on the timeline for public reporting, section 607(a) of the Act provides that the Secretary shall issue regulations to the extent that such regulations are necessary to ensure that there is compliance with specific requirements of the Act. We proposed a timeline for public reporting in the NPRM because there was uncertainty in the field about reporting requirements. Specifically, following the publication of the Part B regulations in 2006, the Department received many informal inquiries from SEA personnel and other interested parties regarding the timeline for reporting information to the public about LEAs' performance relative to its State's targets. It is still the Department's position, after consideration of the comments, that establishing a definitive timeline is necessary to ensure that each State provides timely information to the public.

We agree, however, with the commenters who suggested that an extended timeline would allow for more accurate analysis of LEA data, thereby improving the quality of information reported to the public and, ultimately, contributing to improved outcomes for children with disabilities and their families. Additionally, extending the timeline will reduce the burden associated with establishing a timeline for public reporting. Therefore, we have revised the timeline in Sec. 300.602(b)(1)(i)(A) to require a State to report annually on the performance of each LEA located in the State on the targets in the State's SPP as soon as practicable but no later than 120 days following the submission of its APR to the Secretary under Sec. 300.602(b)(2).

Changes: We have replaced the 60 day timeline in Sec. 300.602(b)(2) with the requirement that the State report on the performance of each LEA located in the State on the targets in the State's SPP as soon as practicable but no later than 120 days following the State's submission of its APR to the Secretary.

Comment: One commenter suggested that changes to Sec. 300.602 are not necessary and that issuing administrative guidance on public reporting requirements, including timelines, would be more appropriate.

Discussion: Public accountability is served by requiring States to make the documents referenced in Sec. 300.602(b)(1)(i)(B) available to the public within a specific timeframe. A regulation provides a degree of certainty on the timing of notice to the public that administrative guidance would not. We are aware that a number of States did not post public reports on LEA performance for FFY 2005 year by the time they submitted their APRs on FFY 2006. Therefore, regulatory action, rather than non-regulatory guidance is needed to ensure the proper and effective implementation of the requirements of Part B of the Act.

Changes: None.

Comment: One commenter noted that proposed Sec. 300.602(b)(1)(i)(B) differs from current Sec. 300.602(b) in that it refers to the State's Web site as opposed to the SEA's Web site. This commenter requested that the Department clarify whether the information must be posted on the SEA's or the State's Web site in instances where SEAs have Web sites that are separate from State government Web sites.

Discussion: We agree that the reference in the regulations should be to the SEA's Web site, rather than to the State's Web site, and have made this change.

Changes: Sections 300.602(b)(1)(i)(B) and 300.606 have been revised to require posting on the SEA's Web site, rather than the State Web site.

Comment: Another commenter requested that the Department clarify each State's obligation to make public any former reports on the performance of the LEAs within the State as well as the time frame when this information must be made available to the public.

Discussion: Neither the Act nor the regulations address the public posting of reports on the performance of the LEAs that were issued prior to the promulgation of these regulations. Posting historical documents related to the implementation of the IDEA on an SEA's Web site may be beneficial, but it is not required by the Act or the regulations implementing Part B of the Act. The decision to post historical documents and a timeline for posting these reports and notices would be most appropriately decided by each State.

Changes: None.

Additional Information To Be Made Available to the Public (Sec. 300.602) [select]

Comment: One commenter suggested that the requirement in Sec. 300.602(b)(1)(i)(B) to distribute the State's SPP, the State's APR, and the State's annual reports on the performance of LEAs to the media and public agencies represents an undue paperwork burden on SEAs and would result in the excessive distribution of paper.

Discussion: Neither Sec. 300.602(b)(1)(i)(B) nor section 616(b)(2)(C)(ii)(I) of the Act requires the distribution of paper copies of the SPP and APRs to the media and public agencies. Therefore, we do not agree that implementing this requirement would result in an excessive distribution of paper copies of these reports.

Changes: None.

Secretary's review and determination regarding State performance (Sec. 300.603)[select]

Comment: One commenter expressed concern that the tone and substance of the monitoring and enforcement provisions in Sec. Sec. 300.603 through 300.609, related to approval or disapproval by the Secretary of the State's performance plan and interventions against the SEA, are overly prescriptive and negative. The commenter stated that enforcement provisions applicable to all elementary school and secondary school programs already exist in GEPA.

Discussion: We do not agree that the enforcement provisions are overly prescriptive. These enforcement provisions simply reflect the statutory requirements in section 616(d) and (e) of the Act. These provisions are more specific than the provisions in GEPA.

Changes: None.

Comment: A few commenters recommended including in the regulations the provisions in section 616(c) of the Act, regarding the process the Secretary must follow if the Secretary finds that a State performance plan does not meet the requirements in section 616 of the Act.

Discussion: We believe that the review process spelled out in section 616(c) of the Act is sufficiently clear and that regulations are not necessary. Further, under the statutory framework, the State performance plans were due to the Department by December 3, 2005, and the Department's review of the State performance plans for the six-year period of federal fiscal years 2005 through 2011 has already been completed. Accordingly, we believe it is unnecessary to add further clarification regarding the Secretary's responsibilities in Sec. 300.603.

Changes: None.

Comment: One commenter recommended that the Department's process for approval of targets in State performance plans be rational, consistent, and transparent. For example, the commenter suggested that as the Department responds to and negotiates with a State regarding the State's targets, the process should be open so that States can learn from the Department's discussions with other States.

Discussion: We agree with the commenter. Accordingly, the Department has posted its analyses of each State's performance plan on the Department's Web site at: http://www.ed.gov/fund/data/report/idea/partbspap/index.html. In so doing, the Department's analyses are transparent and provide States with the opportunity to review the Department's responses to other States' performance plans.

Changes: None.

Enforcement (Sec. 300.604)[select]

Comment: A few commenters recommended changing the enforcement requirements in Sec. 300.604 to clarify the actions a State must take relating to enforcement. The commenters stated that it is essential that States understand their explicit authority under the Act to take certain enforcement actions against LEAs if the State is identified as a State that needs assistance, needs intervention, or needs substantial intervention. The commenters stated that some of the enforcement mechanisms available to the Secretary in section 616(e) of the Act, such as requiring entry into a GEPA compliance agreement or referral to the Office of the Inspector General, may have no direct counterpart under State law and therefore, would not be available to States.

Discussion: The Department agrees that it is important to clarify the specific enforcement actions that States must use against an LEA if the LEA is determined to need assistance, intervention, or substantial intervention. We are revising Sec. 300.600(a) to identify the specific enforcement actions identified in Sec. 300.604 that are appropriate for a State, as opposed to the Federal government, to use if it determines that an LEA needs assistance or intervention in implementing the requirements of Part B of the Act.

Changes: We have revised Sec. 300.600(a) to require States to enforce Part B of the Act in accordance with the enforcement mechanisms identified in Sec. 300.604(a)(1) and (a)(3), (b)(2)(i) and (b)(2)(v), and (c)(2).

Comment: One commenter recommended including in Sec. Sec. 300.600 through 300.609 a method for individuals or organizations to inform the Department about compliance issues in their district or State.

Discussion: The Department is committed to obtaining input from individuals and organizations as part of its monitoring process, and has a system for receiving and responding to citizen complaints about LEA and State compliance. However, detailed operational procedures for monitoring State activities are not typically included in regulations. Accordingly, we believe it is unnecessary to provide further clarification regarding specific monitoring procedures in Sec. Sec. 300.600 through 300.609.

Changes: None.

Comment: One commenter recommended clarifying in Sec. 300.604 that withholding State administrative funds would only occur following the Secretary's determination that, for three or more consecutive years, the State needs intervention in implementing the requirements of Part B of the Act.

Discussion: Section 300.604(b)(2)(iii), consistent with section 616(e)(2)(iii) of the Act, clearly delineates that consideration of withholding State administrative funds occurs following a "needs intervention" determination by the Secretary for three or more consecutive years. Therefore, we do not believe it is necessary to add further clarification regarding the withholding of State administrative funds.

Changes: None.

Notifying the Public of Enforcement Actions (Sec. 300.606) [select]

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

Comment: One commenter requested that the Department require SEAs to report to the public any enforcement actions taken against their LEAs pursuant to Sec. 300.604 because doing so would be consistent with publication of enforcement actions against the State by the Secretary of Education.

Discussion: Neither the Act nor these regulations require SEAs to publicly report on enforcement actions taken against LEAs in the State. The decision to report to the public on enforcement actions imposed on an LEA is best left to each State to decide because individual LEA circumstances vary across each State and no one set of requirements is appropriate in every situation. For example, publicly reporting enforcement actions taken against an LEA with limited numbers of children with disabilities would not be appropriate if that public reporting would in any way reveal personally identifiable information of children with disabilities in that LEA. However, in the interest of transparency and public accountability, the Department encourages States, where appropriate, to report to the public on any enforcement actions taken against LEAs under Sec. 300.604.

Changes: None.

Comment: One commenter stated that increasing public accountability is important and requested that the regulations require States and districts to publicly post and make available to the public the Department's SPP/APR determination letters as well as Federal-or State- required corrective actions and enforcement actions.

Discussion: We encourage States to post all information, including corrective actions and enforcement actions related to their SPP/APR, on their Web sites. However, regulating on this issue, as the commenter requested, is not necessary because this information is posted on the Department's Web site when the Department responds to States' SPP/APR submission. These response letters are typically issued in June of each year following the States' submission of their SPP/APR and posted on the Department's Web site at: http://www.ed.gov/fund/data/report/idea/ partbspap/index.html.

Changes: None.

Comment: One commenter requested that the phrase ``proposing to take'' in proposed Sec. 300.606 be clarified or eliminated. The commenter recommended using the language from page 27694 of the NPRM stating that a State must provide public notice when the Secretary ``takes'' an enforcement action as a result of annual determinations under Sec. 300.604.

Discussion: The language in Sec. 300.606 is accurate and we decline to make the requested change for the following reasons. Section 300.606 implements section 616(e)(7) of the Act, and requires a State that has received notice, under section 616(d)(2) of the Act, of a pending enforcement action against the State under section 616(e) of the Act to provide public notice of the pendency of that action. Pursuant to section 616(d)(2)(B) of the Act, a State that has been determined to ``need intervention'' for three consecutive years or ``need substantial intervention'' in implementing the requirements of Part B of the Act, faces enforcement actions and is entitled to reasonable notice and an opportunity for a hearing on such a determination. If a State requests a hearing on a determination, the Department's final determination would not be made until after that hearing. In this situation, the enforcement action also would depend on the outcome of the hearing and final determination. Therefore, in a case such as this, the public must be notified that the Secretary is proposing to take, but has not yet taken, an enforcement action pursuant to Sec. 300.604.

Changes: None.

Comment: One commenter stated that the changes in proposed Sec. 300.606 are unnecessary because current Sec. 300.606 already requires the public to be notified of an action ``taken pursuant to Sec. 300.604.'' The commenter stated that specifying in these regulations that ``public notice'' consists of posting information on a Web site and distributing information to the media and public agencies is unnecessary to ensure compliance with IDEA.

Discussion: We disagree with the commenter. We have received numerous inquiries regarding current Sec. 300.606 and whether this provision requires public notification of each determination of ``needs assistance'', ``needs intervention'' and ``needs substantial intervention'' or whether it merely requires States to notify the public of enforcement actions taken by the Secretary. We intend for Sec. 300.606, as proposed in the NPRM, to clarify the public reporting requirements by indicating that a State must provide public notice of any enforcement action taken by the Secretary pursuant to Sec. 300.604 by posting the notice on the SEA's Web site and distributing the notice to the media and through public agencies. This clarification is further designed to minimize a State's reporting burden while providing the public with appropriate notice of the actions taken by the Secretary as a result of the determinations required by section 616(d) of the Act and Sec. 300.603. For these reasons, we decline to make any regulatory changes based on this comment.

Changes: None.

State enforcement and Rule of construction (Sec. Sec. 300.608 and 300.609)[select]

Comment: One commenter recommended including in Sec. 300.608 a provision that would allow an SEA to use any means authorized by law to effect compliance when it is determined that an LEA is not meeting the requirements of Part B of the Act, including the targets in the State's performance plan.

Discussion: The enforcement scheme outlined in Sec. Sec. 300.600(a), 300.604, and 300.608 represents the minimum steps that a State must take to enforce compliance with the Act. (The minimum enforcement steps the Department must take are specified in Sec. 300.604.) However, we believe that the regulations should be clear that States have the flexibility to use other mechanisms to bring about compliance, just as section 616(g) of the Act and Sec. 300.609 recognize that the Department needs the flexibility to use the authority in GEPA to monitor and enforce the Act, in addition to the enforcement program laid out in section 616(e) of the Act. Therefore, we will add to Sec. 300.608 a new provision noting that States are not restricted from using any other authority available to them to monitor and enforce the Act. Taking steps under any such authority, however, does not relieve a State from complying with the requirements of Sec. Sec. 300.600(a), 300.604, and 300.608(a).

Changes: We have designated proposed Sec. 300.608 as Sec. 300.608(a) and added a new paragraph (b) to specify that States are not restricted from utilizing any other authority available to them to monitor and enforce the Act. We also have clarified in Sec. 300.609 that the reference to "authority under GEPA" includes the provisions of 34 CFR parts 76, 77, 80, and 81, including the imposition of special conditions under 34 CFR 80.12.

Confidentiality of Information[select]

Confidentiality (Sec. 300.610) and Definitions (Sec. 300.611)[select]

Comment: None.

Discussion: Both Sec. Sec. 300.610 and 300.611 contained incorrect references to Sec. 300.628, which does not exist. We have revised those references.

Changes: We have removed the incorrect references to Sec. 300.628 in Sec. Sec. 300.610 and 300.611 and replaced them with references to Sec. 300.627 and Sec. 300.625, respectively.

Notice to parents (Sec. 300.612)[select]

Comment: One commenter stated that Sec. 300.612 exceeds the authority under sections 612(a)(8) and 617(c) of the Act.

Discussion: Proposed Sec. 300.612 incorrectly referenced the requirements in Sec. 300.121. The correct reference is Sec. 300.123, which requires each State to have policies and procedures to ensure that public agencies in the State protect the confidentiality of personally identifiable information. We will make this correction in Sec. 300.612.

With this correction, Sec. 300.612 requires the SEA to give notice to parents that fully informs them about the requirements regarding the confidentiality of personally identifiable information.

We do not agree that Sec. 300.612 exceeds the authority under sections 612(a)(8) and 617(c) of the Act. Section 612(a)(8) of the Act requires agencies in the State to comply with section 617(c) of the Act, and section 617(c) of the Act gives the Secretary the authority to take appropriate measures to protect the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by SEAs and LEAs. This is a longstanding requirement in the regulations that we do not believe should be changed.

Changes: We have changed Sec. 300.612(a) by removing the incorrect reference to Sec. 300.121 and replacing it with a reference to Sec. 300.123.

Comment: One commenter expressed concern that summaries of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information would not be adequate to fully inform parents.

Discussion: Section 300.612(a)(3) is a longstanding requirement that has been in the Part B regulations since they were published in 1977. The Department's experience in administering this program indicates that the requirement to include a summary of policies that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information is an effective way for parents to be informed about these requirements. Parents who desire additional information regarding their rights, consistent with these policies, can request the additional information from the SEA. SEAs are encouraged to comply with such requests without undue delay.

Changes: None.

Comment: One commenter recommended requiring the SEA to post its confidentiality of personally identifiable information notice for parents on the State's Web site.

Discussion: We believe that it is up to each State to determine whether posting this notice on the State's Web site will serve the needs of parents and public agencies in the State. We, therefore, decline to regulate on this matter.

Changes: None.

Amendment of records at parent's request (Sec. 300.618) and Opportunity for a hearing (Sec. 300.619)[select]

Comment: A few commenters requested clarification regarding how parents can register their disagreement with information in their child's record and request that their child's record be changed.

Discussion: Sections 300.618, 300.619, and 300.621 all address the process that parents must use to seek changes in their child's records if they believe the record is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child. When a parent requests that a change be made in the child's record, under Sec. 300.618, agencies must amend the information within a reasonable time or inform parents of the agency's refusal to amend the information and the parent's right to a hearing to challenge the public agency's determination. If parents want to challenge the accuracy of information in the child's education records, they may do so by requesting a hearing under Sec. 300.619 (by contacting the LEA staff member assigned that responsibility). Section 300.621 specifically provides that a hearing held under Sec. 300.619 must be conducted according to the procedures in 34 CFR 99.22. 34 CFR 99.22, in turn, requires a hearing to meet the following minimum requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under Sec. 99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

The parent is not required, under the Act and these regulations, to follow the procedures that are applicable to filing a due process complaint under Sec. Sec. 300.507 through 300.510. This is because the hearing authorized under Sec. 300.619 is for the explicit purpose of giving a parent the opportunity to challenge the information in education records when a parent believes the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child. We do not believe further clarification regarding the specific procedures in Sec. Sec. 300.618 and 300.619 is necessary. The procedures used for these hearings vary from State to State, and we believe it is best to give States the flexibility to develop their own procedures for such hearings, as long as they meet the requirements in Sec. 300.621.

Changes: None.

Consent (Sec. 300.622) [select]

Comment: One commenter suggested requiring schools to obtain parental consent before disclosing personally identifiable information to any party, unless authorized by 34 CFR part 99. Another commenter requested clarification regarding the requirements in Sec. 300.622.

Discussion: We agree that Sec. 300.622 should be revised to more accurately reflect the Department's policies regarding when parental consent is or is not required for disclosures of personally identifiable information to officials of participating agencies, and other individuals and entities. In some instances, current Sec. 300.571 (proposed Sec. 300.622) has been construed to prohibit disclosures without parental consent under this part that would be permitted without parental consent under FERPA. Accordingly, when final regulations for this program were issued in 1999, we amended current Sec. 300.571(a) (proposed Sec. 300.622(a)) to clarify that the release of disciplinary records to law enforcement authorities could occur without parental consent, to the extent that such disclosure was permitted under FERPA. In order to more clearly state the Department's longstanding position that consent is required for disclosures of personally identifiable information to parties, other than officials of participating agencies collecting or using the information under this part, unless the information is contained in education records and the disclosure is allowed without parental consent under 34 CFR part 99, we are reorganizing Sec. 300.622(a).

Under FERPA and Sec. 300.622(a), schools, generally, must have written permission from the parent (or child who has reached the age of majority) in order to release information from a child's education records. However, there are exceptions to this general rule under FERPA that also apply to the records of children with disabilities and permit the release of information from education records without parental consent. Under 34 CFR 99.31(a), schools can disclose education records without consent under the circumstances specified in Sec. 99.31 including if the disclosure meets one or more of the following conditions:

School officials with legitimate educational interests, as determined by the educational agency or institution;

Other schools where the student seeks or intends to enroll, subject to the requirements of Sec. 99.34;

Specified authorized representatives, subject to the requirements of Sec. 99.35, in connection with an audit or evaluation of Federal or State-supported education programs, or compliance with or enforcement of Federal legal requirements which relate to those programs;

Appropriate parties in connection with financial aid to a student for which the student has applied or which the student has received, if necessary for specified purposes;

Organizations conducting certain studies for or on behalf of the school;

Accrediting organizations;

To comply with a judicial order or lawfully issued subpoena;

Appropriate officials in cases of health and safety emergencies; and

State and local authorities, within a juvenile justice system, pursuant to specific State law.

We believe that the changes to Sec. 300.622(a) state more clearly that under Sec. 300.622, disclosures of personally identifiable information from education records of children with disabilities can be made without parental consent if the disclosure without parental consent would be permissible under FERPA. For example, in a situation involving a health emergency, information from a child with a disability's education records could be released to a hospital without parental consent in order to ensure that the child received appropriate emergency health services.

Under proposed Sec. 300.622(b), parental consent is not required for disclosures of personally identifiable information to officials of participating agencies for purposes of carrying out a requirement of this part. This is not a new requirement; proposed Sec. 300.622(b) is the same as current Sec. 300.571(b). However, we believe the requirement should be stated more clearly, and therefore, are changing the language in paragraph (b). We believe that this provision is particularly important to ensure that participating agencies have the information they need to carry out the requirements of this part in an effective manner. For example, if another State agency provides school health services under the Act, consent would not be required for a school nurse to have access to personally identifiable information in a child's education records in order to provide the school health services that are included on the child's IEP.

However, despite the recognition that officials of participating agencies need access to records of children with disabilities to carry out the requirements of this part, there are important privacy concerns that we feel need to be protected in certain specified situations. We believe that parental consent should be required before personally identifiable information can be released to representatives of participating agencies who are likely to provide or pay for transition services in accordance with Sec. 300.321(b)(3). Representatives of these agencies, generally, are invited to participate in a child's IEP meeting because they may be providing or paying for transition services. We do not believe that the representatives of these agencies should have access to all the child's records unless the parent (or the child who has reached the age of majority) gives consent for the disclosure. We are, therefore, adding a new paragraph (b)(2) in Sec. 300.622 to make this clear.

We also believe it is important to be clear about the confidentiality requirements for children who are placed in private schools by their parents, given the significant change in the child find requirements for these children. Under section 612(a)(10)(A)(i)(II) of the Act, child find for these children now is the responsibility of the LEA in which the private school is located and not the child's LEA of residence. We can anticipate situations in which there may be requests for information to be exchanged between the two LEAs, such as when a child is evaluated and identified as a child with a disability by the LEA in which the private school is located and the child subsequently returns to public school in the LEA of residence. We believe under such circumstances parental consent should be required before personally identifiable information is released between officials of the LEA where a private school is located and the LEA of the parent's residence. We believe that consent is important in these situations to protect the privacy of the child and the child's family. Therefore, we are adding a new paragraph (b)(3) to Sec. 300.622 to make this clear.

We are removing the requirement in proposed Sec. 300.622(c) (current Sec. 300.571(c)), which requires the SEA to provide policies and procedures that are used in the event that a parent refuses to provide consent under this section. This is already included in Sec. 300.504(c)(3), which requires the procedural safeguards notice to include, among other things, a full explanation of the parental consent requirements and the opportunity to present and resolve complaints through the due process or State complaint procedures.

Changes: We have reorganized Sec. 300.622 to more accurately reflect the Department's policy regarding when parental consent is and is not required for disclosures of personally identifiable information to officials of participating agencies, and other individuals and entities. We made changes to Sec. 300.622(a) and added a new paragraph (b)(1) to clarify the Department's longstanding policy that consent is required for disclosures of personally identifiable information to parties, unless the interested parties are officials of participating agencies, collecting or using the information under this part, or the information is contained in education records and the disclosure is allowed without parental consent under FERPA. We added a new paragraph (b)(2) to clarify that parental consent is required for the disclosure of information to participating agencies that likely may provide or pay for transition services. We also added a new paragraph (b)(3) to require parental consent for the disclosure of records of parentally placed private school children between LEAs. Finally, we removed the requirement in proposed Sec. 300.622(c) (current Sec. 300.571(c)), because the information is included in Sec. 300.504(c)(3).

Safeguards (Sec. 300.623)[select]

Comment: None.

Discussion: We have corrected the incorrect reference to Sec. 300.121 in the text of this regulation, which should have referred to the State eligibility requirement concerning confidentiality, and not the State eligibility requirement regarding procedural safeguards.

Changes: We have removed the incorrect reference to Sec. 300.121 and replaced it with a reference to Sec. 300.123.

Children's rights (Sec. 300.625) [select]

Comment: One commenter requested clarifying the requirement in Sec. 300.625(a) that children receive privacy rights similar to those received by parents.

Discussion: Section 300.625 is the same as current Sec. 300.574 and has been in the regulations since 1977. It provides that States must have policies and procedures concerning the extent to which children are afforded rights of privacy similar to those of parents, taking into consideration the age of the child and type or severity of disability. It does not require States to grant particular privacy rights to a child in addition to those that apply when the child reaches the age of majority, as specified in paragraphs (b) and (c) of Sec. 300.625. We do not believe further clarification is necessary.

Changes: None.

Comment: A few commenters stated that the notice to transfer parental rights to a child at the age of majority should be provided to the child and parents one year before the child reaches the age of majority.

Discussion: We do not believe this change is necessary because the regulations in Sec. 300.320(c) already address the notification requirement. Specifically, Sec. 300.320(c) requires that, beginning no later than one year before the child reaches the age of majority under State law, the IEP must include a statement that the child has been informed of the child's rights under Part B of the Act, if any, that will transfer to the child on reaching the age of majority under Sec. 300.520. Because the regulations already contain the notice requirement, we do not believe it is necessary to add further clarification of this requirement to Sec. 300.625.

Changes: None.

Enforcement (Sec. 300.626)[select]

Comment: None.

Discussion: This provision, concerning State enforcement, should not refer to Sec. 300.610, which is a requirement that applies to the Secretary.

Changes: We have removed the incorrect reference to Sec. 300.610 and replaced it with a reference to Sec. 300.611.

Annual report of children served--information required in the report (Sec. 300.641)[select]

Comment: A few commenters stated that Sec. 300.641 is inconsistent with the requirement in Sec. 300.111(d), which states that the Act does not require the classification of children by their disability. The commenter noted that it is difficult to comply with the requirements for data collection and analysis without classifying children by their disability.

Discussion: We do not believe there is any inconsistency between the requirements in Sec. 300.641(c) and Sec. 300.111, as suggested by the commenter. Section 300.641(c) addresses counting children who have already been identified as having a disability and is consistent with the requirements in section 618 of the Act. Section 300.111 addresses child find and the determination of a child's eligibility for special education and related services. The Act does not require children to be identified with a particular disability category for purposes of the delivery of special education and related services. In other words, while the Act requires that the Department collect aggregate data on children's disabilities, it does not require that particular children be labeled with particular disabilities for purposes of service delivery, since a child's entitlement under the Act is to FAPE and not to a particular disability label.

Changes: None.

Comment: A few commenters recommended removing Sec. 300.641(c) because States have reporting policies in place that might not be consistent with these new requirements. Numerous commenters stated that LEAs often report children with vision and hearing loss who have an additional disability in the category of multiple disabilities, which has resulted in under-reporting of children who are deaf-blind. The commenters stated that an accurate count of children with deaf-blindness is necessary to ensure that these children receive the specialized communication services they need, and to ensure that a sufficient number of specialists are trained to meet the specialized needs of these children. One commenter stated that a child's secondary disability should not affect the reporting of the child's primary disability. Another commenter suggested referring to deaf-blindness as the primary disability, if a child has multiple disabilities.

Discussion: The reporting requirements in Sec. 300.641(c) are not new. Section 300.641(c) is the same as current Sec. 300.751(e); State reporting policies therefore should already be consistent with these regulations. Section 300.641(d) addresses how States must report a child with a disability who has more than one disability for purposes of the annual report of children served under the Act. Paragraph (d)(1) states that if a child has only two disabilities and those disabilities are deafness and blindness, and the child is not reported as having a developmental delay, that child must be reported under the category of deaf-blindness. Paragraph (d)(2) states that if a child has more than one disability and is not reported as having deaf-blindness or as having a developmental delay, the child must be reported under the category of multiple disabilities. We believe that Sec. 300.641(d) is clear that children with deaf-blindness who have an additional disability must be included in the category of multiple disabilities. To designate deaf-blindness as the primary disability and include children with deaf-blindness who have an additional disability in the category of deaf-blindness would be inconsistent with the requirements in Sec. 300.641(d).

Although we do not believe that any changes to the requirements in Sec. 300.641(d) are necessary, we will review the instructions we provide to States regarding the reporting of children with deaf-blindness who have an additional disability and make any needed clarifications.

Changes: None.

Disproportionality (Sec. 300.646) [select]

Comment: One commenter requested clarification as to whether the determination of disproportionality is based solely on a numerical formula or on district policies, procedures, and practices. One commenter recommended amending the regulations to clarify that the determination of disproportionality is based on a review of LEA policies and procedures, and not just a numerical determination. Another commenter requested a definition of significant disproportionality. Several commenters requested that the regulations clarify that States need only address statistically significant disproportionality based on the use of reliable data.

Discussion: Section 618(d)(1) of the Act is clear that the determination of significant disproportionality by race or ethnicity is based on a collection and examination of data and not on a district's policies, procedures, or practices. This requirement is clearly reflected in Sec. 300.646. We do not believe it is appropriate to change Sec. 300.646 because the commenter's suggestion is inconsistent with the provisions in section 618(d) of the Act.

With respect to the definition of significant disproportionality, each State has the discretion to define the term for the LEAs and for the State in general. Therefore, in identifying significant disproportionality, a State may determine statistically significant levels. The State's review of its constituent LEAs' policies, practices, and procedures for identifying and placing children with disabilities would occur in LEAs with significant disproportionality in identification, placement, or discipline, based on the examination of the data. The purpose of this review is to determine if the policies, practices, and procedures are consistent with the Act. Establishing a national standard for significant disproportionality is not appropriate because there are multiple factors at the State level to consider in making such determinations. For example, States need to consider the population size, the size of individual LEAs, and composition of State population. States are in the best position to evaluate those factors. The Department has provided guidance to States on methods for assessing disproportionality. This guidance can be found at: http://www.ideadata.org/docs/Disproportionality%20Technical%20Assistance%20Guide.pdf.

Changes: None.

Comment: A few commenters suggested adding gender to the analysis of disproportionality. The commenters expressed concern that males are over-identified as children with disabilities.

Discussion: Although States will be collecting data on the gender of children with disabilities for other purposes, the Act does not require an analysis for disproportionality on the basis of gender. We are concerned about increasing the burden on States. Given that there is no statement of congressional intent indicating the need to do this analysis, we do not believe it should be included in the regulations.

Changes: None.

Comment: One commenter expressed concern that the regulations are not consistent with the statutory requirements for data collection on suspension, expulsion, identification, and placement.

Discussion: We disagree with the commenter. The regulations in Sec. 300.646 reflect the requirements in section 618(d) of the Act.

Changes: None.

Comment: Several commenters raised concerns and made recommendations regarding Sec. 300.646(b)(2), which requires the State to require any LEA identified with significant disproportionality to reserve the maximum amount under section 613(f) of the Act for comprehensive, coordinated early intervening services to serve children in the LEA, particularly, but not exclusively children in those groups that were significantly overidentified. A few commenters recommended that LEAs not be required to reserve the maximum amount under section 613(f) of the Act. Several commenters recommended adding language in Sec. 300.646(b)(2) to require LEAs to monitor the effect of early intervening services on disproportionate representation.

Discussion: The requirements in Sec. 300.646(b)(2) follow the specific language in section 616(d) of the Act. To allow LEAs to reserve less than the maximum amount required in section 613(f) of the Act when significant disproportionality is identified would be inconsistent with the Act. Therefore, we do not believe a change in this requirement is appropriate.

As part of the requirements in Sec. Sec. 300.600 through 300.604, States must report annually on indicators in three monitoring priority areas. One of the monitoring priority areas is disproportionality, for which there are two indicators. In addition to annually reviewing State performance on each indicator in each monitoring priority area, the State must review each LEA against indicators established for each monitoring priority area, so the State will be examining data annually to identify any disproportionality. If disproportionality is identified in LEAs, the policies, procedures, and practices of the LEAs will be examined to determine if they are leading to inappropriate identification, and, pursuant to section 618(d)(2)(C) of the Act and Sec. 300.646(b)(3), the LEA will be required to report publicly on the revision of policies, practices, and procedures used in identification or placement. It is, therefore, unnecessary to add a requirement that LEAs monitor the effect of early intervening services on disproportionality because the LEAS will have to continue to publicly report on their revision of policies, practices and procedures until the significant disproportionality in the LEA is eliminated. We believe that the intent of the suggestion will be accomplished through this other requirement.

Changes: None.