FR Doc 05-11804
[Federal Register: June 21, 2005 (Volume 70, Number 118)]
[Proposed Rules]               
[Page 35781-35892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn05-39]                         
 

[[Page 35781]]
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Part II





Department of Education





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34 CFR Parts 300, 301, and 304



Assistance to States for the Education of Children With Disabilities; 
Preschool Grants for Children With Disabilities; and Service 
Obligations Under Special Education--Personnel Development To Improve 
Services and Results for Children With Disabilities; Proposed Rule


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DEPARTMENT OF EDUCATION

34 CFR Parts 300, 301 and 304

RIN 1820-AB57

 
Assistance to States for the Education of Children With 
Disabilities; Preschool Grants for Children With Disabilities; and 
Service Obligations Under Special Education--Personnel Development To 
Improve Services and Results for Children With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Secretary proposes to amend the regulations governing the 
Assistance to States for Education of Children with Disabilities 
Program, the Preschool Grants for Children With Disabilities Program, 
and Service Obligations under Special Education Personnel Development 
to Improve Services and Results for Children with Disabilities. These 
amendments are needed to implement recently enacted changes made to the 
Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004.

DATES: To be considered, comments must be received at one of the 
addresses provided in the ADDRESSES section no later than 5 p.m. 
Washington, DC Time on September 6, 2005. Comments received after this 
time will not be considered.
    We will hold public meetings about this NPRM. The dates and times 
of the meetings and the cities in which the meetings will take place 
are in Public Meetings under Invitation to Comment elsewhere in this 
preamble.

ADDRESSES: Address all comments about these proposed regulations to 
Troy R. Justesen, U.S. Department of Education, 400 Maryland Avenue, 
SW., Potomac Center Plaza, room 5126, Washington, DC 20202-2641. If you 
prefer to send your comments through the Internet, you may address them 
to us at the U.S. Government Web site: http://www.regulations.gov or you may 

send your Internet comments to us at the following address: 
IDEAComments@ed.gov.
    You must include the term IDEA-Part B in the subject line of your 
electronic message. Please submit your comments only one time, in order 
to ensure that we do not receive duplicate copies.
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget at 
the address listed in the Paperwork Reduction Act section of this 
preamble. You may also send a copy of those comments to the U.S. 
Department of Education (Department) representative named in this 
section.
    All first-class and Priority mail sent to the Department is put 
through an irradiation process, which can result in lengthy delays in 
mail delivery. Please keep this in mind when sending your comments and 
please consider using commercial delivery services or e-mail in order 
to ensure timely delivery of your comments.

FOR FURTHER INFORMATION CONTACT: Troy R. Justesen. Telephone: (202) 
245-7468.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay System (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
provide to reduce the potential costs or increase potential benefits 
while preserving the effective and efficient administration of these 
programs.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 5126, Potomac Center 
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 
a.m. and 4 p.m., Eastern time, Monday through Friday of each week 
except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader, or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Public Meetings

    The dates and cities where the meetings about this NPRM will take 
place are listed below. Each meeting will take place from 1 to 4 p.m. 
and from 5 to 7 p.m.
    Friday, June 17, 2005 in Nashville, TN;
    Wednesday, June 22, 2005 in Sacramento, CA;
    Friday, June 24, 2005 in Las Vegas, NV;
    Monday, June 27, 2005 in New York, NY;
    Wednesday, June 29, 2005 in Chicago, IL;
    Thursday, July 7, 2005 in San Antonio, TX; and
    Tuesday, July 12, 2005 in Washington, DC.
    We provided more specific information on meeting locations in a 
notice published in the Federal Register (70 FR 30917).

Assistance to Individuals With Disabilities at the Public Meetings

    The meeting sites are accessible to individuals with disabilities, 
and sign language interpreters will be available. If you need an 
auxiliary aid or service other than a sign language interpreter (e.g., 
interpreting service such as oral, cued speech, or tactile interpreter, 
assisted listening device, or materials in an alternative format), 
notify the contact person listed in this NPRM at least two weeks before 
the scheduled meeting date. Although we will attempt to meet a request 
we receive after this date, we may not be able to make available the 
requested auxiliary aid or service because of insufficient time to 
arrange it.

Background

    On December 3, 2004, the Individuals with Disabilities Education 
Improvement Act of 2004 was enacted into law as Pub L. 108-446. The 
statute, as passed by Congress and signed by the President, 
reauthorizes and makes significant changes to the Individuals with 
Disabilities Education Act.
    The Individuals with Disabilities Education Act, as amended by the 
Individuals with Disabilities Education Improvement Act of 2004 (Act or 
IDEA), is intended to help children with

[[Page 35783]]

disabilities achieve to high standards--by promoting accountability for 
results, enhancing parental involvement, and using proven practices and 
materials; and, also, by providing more flexibility and reducing 
paperwork burdens for teachers, States, and local school districts. 
Enactment of the new law provides an opportunity to consider 
improvements in the current regulations that would strengthen the 
Federal effort to ensure every child with a disability has available a 
free appropriate public education that--(1) is of high quality, and (2) 
is designed to achieve the high standards reflected in the Elementary 
and Secondary Education Act of 1965, as amended by the No Child Left 
Behind Act of 2001 (NCLB) and its implementing regulations.
    Changes to the current Part B regulations (34 CFR parts 300 and 
301) and Part D regulations (34 CFR part 304) are necessary in order 
for the Department to appropriately and effectively address the 
provisions of the new law and to assist State and local educational 
agencies in implementing their responsibilities under the new law. 
Changes to the current Part C regulations (part 303) also are necessary 
in order for the Department to appropriately and effectively address 
the provisions in Part C of the Act and to assist States in completing 
their responsibilities under the new law. The NPRM for the Part C 
regulations will be published soon.
    On December 29, 2004, the Secretary published a notice in the 
Federal Register requesting advice and recommendations from the public 
on regulatory issues under the Act, and announcing a series of seven 
public meetings during January and February of 2005 to seek further 
input and suggestions from the public for developing regulations based 
on the new statute.
    Over 6000 public comments were received in response to the Federal 
Register notice and at the seven public meetings, including letters 
from parents and public agency personnel, and parent-advocate and 
professional organizations. The comments addressed each major provision 
of the new law (such as discipline procedures, provisions on personnel 
qualifications and highly qualified teachers, provisions related to 
evaluation of children and individualized education programs, 
participation of private school children with disabilities, and 
provisions on early intervening services). These comments were reviewed 
and considered in developing this NPRM. The Secretary appreciates the 
interest and thoughtful attention of the commenters responding to the 
December 29, 2004 notice and participating in the seven public 
meetings.

General Proposed Regulatory Plan and Structure

    In developing this NPRM, we have elected to construct one 
comprehensive, freestanding document that incorporates virtually all 
requirements from the new law along with the applicable regulations, 
rather than publishing a regulation that does not include statutory 
provisions. The rationale for doing this is to create a single 
reference document for parents, State personnel, school personnel, and 
others to use, rather than being forced to shift between one document 
for regulations and a separate document for the statute. This approach 
was used in developing the current regulations. Although this approach 
will result in a larger document, it is our impression that various 
groups strongly support continuing this practice.
    In addition, we have reorganized the regulations by following the 
general order and structure of provisions in the statute, rather than 
using the arrangement of the current regulations. We believe this 
change in organization will be helpful to parents, State and local 
educational agency personnel, and the public both in reading the 
regulations, and in finding the direct link between a given statutory 
requirement and the regulation related to that requirement. Thus, in 
general, the requirements related to a given statutory section (e.g., 
State eligibility in section 612 of the Act) will be included in one 
location (subpart B) and in the same general order as in the statute, 
rather than being spread throughout four or more subparts, as the 
statutory sections are in the current regulations.
    As restructured in this NPRM, the proposed regulations are divided 
into eight major subparts, each of which is directly linked to, and 
comports with, the general order of provisions in a specific section of 
the Act. For example, we have revised subpart G of the regulations to 
include all provisions regarding the allotment and use of funds from 
section 611 of the Act, rather than having those provisions dispersed 
among several different subparts, as they are in the current 
regulations.
    In addition, we have removed part 301 (Preschool Grants for 
Children with Disabilities) from title 34 and placed the Preschool 
Grants provisions from section 619 of the Act into a new subpart H 
under part 300. This restructuring and consolidation of the financial 
requirements from both the statute and regulations into a specific 
location in the regulations should be useful to State and local 
administrators and others in finding the relevant statutory and 
regulatory provisions regarding both the Assistance to States and 
Preschool Grants programs.
    In reviewing the current regulations, we considered their continued 
necessity and relevance in light of a number of factors: Whether 
statutory changes required changes to existing regulations; whether 
changes in other laws, or the passage of time and changed conditions 
rendered the regulations obsolete or unnecessary; whether less 
burdensome alternatives or greater flexibility was appropriate; and 
whether the regulation could be changed in light of section 607(b) of 
the Act (section 607(b) of the Act provides that the Secretary may not 
publish final regulations that would procedurally or substantively 
lessen the protections provided to children with disabilities in the 
regulations that were in effect on July 20, 1983, except to the extent 
that such regulation reflects the clear and unequivocal intent of the 
Congress in legislation). In the following discussion of proposed 
regulatory changes, we identify the changes that would be made to 
existing regulations after consideration of these factors.

Proposed Regulatory Changes

Subpart A--General

Purposes and Applicability
    Proposed Sec.  300.1 would be revised only to add, consistent with 
a change to section 601(d)(1)(A) of the Act, the words ``further 
education'' in paragraph (a).
    Except for the section heading, proposed Sec.  300.2 would be 
unchanged from the existing provision.
    Section 300.3 of the current regulations would be removed as 
unnecessary, because the regulations listed in this section already 
apply, by their own terms, to States and local agencies under Part B of 
the Act.

Definitions Used in This Part

    As in the current regulations, proposed Sec.  300.4 (Act) would 
refer to the Individuals with Disabilities Education Act, as amended.
    Proposed Sec.  300.5 (Assistive technology device) would retain the 
current definition, and include the new language from section 602(1) of 
the Act that the term does not include a medical device that is 
surgically implanted, or the replacement of that device.
    Proposed Sec.  300.6 (Assistive technology service) would be 
consistent with the current regulatory definition of that term.

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    Proposed Sec.  300.7 (Charter school) would define the term to have 
the meaning given that term in section 5210(1) of the Elementary and 
Secondary Education Act of 1965, as amended, 20 U.S.C 6301 et seq. 
(ESEA).
    Proposed Sec.  300.8 (Child with a disability) would make the 
following changes to the current regulatory definition in Sec.  300.7: 
In paragraphs (a)(1) and (a)(2) cross-references to evaluation 
procedures would be updated to reflect the placement of those 
procedures in these proposed regulations. The parenthetical following 
``serious emotional disturbance'' in paragraph (a)(1) would be revised 
to read ``referred to in this part as emotional disturbance.'' The 
cross-reference regarding related services in the definition of special 
education in paragraph (a)(2)(ii) would be updated. In paragraph (b), a 
parenthetical phrase would be added following the reference to children 
aged three through nine to clarify that ``developmental delay'' could 
be used for any subset of that age range, including children three 
through five. This reflects a change in section 602(3)(B) of the Act. 
Paragraph (c)(8) (Orthopedic impairment) would revise current Sec.  
300.7(c)(8) by removing the parenthetical listing of examples, because 
these examples are outdated.
    Finally, in paragraph (c)(10)(i) of proposed Sec.  300.8, which 
contains a definition of the term specific learning disability, the 
word ``the'' would be substituted for ``an'' before the phrase 
``imperfect ability to listen, think, * * *'' reflecting the addition 
of ``the'' in section 602(30)(A) of the Act.
    Proposed Sec.  300.9 would incorporate the regulatory definition of 
Consent that appears in Sec.  300.500(b)(1) of the current regulations. 
The current provision in Sec.  300.8 that cross-references the Sec.  
300.500 definition of consent, would be removed.
    Consistent with section 602(4) of the Act, proposed Sec.  300.10 
would add the new definition of Core academic subjects as that term is 
defined in section 9101 of the ESEA.
    Proposed Sec.  300.11 would revise the definitions of Day; business 
day; school day in current Sec.  300.9 only by updating the cross-
reference to the regulatory requirement in proposed Sec.  300.148(c) 
concerning a limitation on reimbursement for private school placements.
    The regulatory definition of Educational service agency currently 
in Sec.  300.10 would be moved to proposed Sec.  300.12 and revised by 
adding the word ``schools'' after ``public elementary'' in paragraph 
(a)(2) of this section to conform with the language in section 602(5) 
of the Act. In proposed paragraph (c), the provision concerning 
entities that meet the definition of intermediate educational unit in 
section 602(23) of the Act as in effect prior to June 4, 1997 would be 
retained. There are entities still providing special education and 
related services to preschool children with disabilities that meet the 
definition of intermediate educational unit, but may not meet the 
definition of educational service agency because they are not 
responsible for the provision of special education and related services 
provided within public elementary schools of the State.
    Proposed Sec.  300.13 would reflect the definition of Elementary 
school in section 602(6) of the Act, including the new language 
specifying that the term includes a public elementary charter school.
    Proposed Sec.  300.14 would reflect the current statutory 
definition of Equipment and would be substantially the same as Sec.  
300.11 of the current regulations.
    Proposed Sec.  300.15 would incorporate the regulatory definition 
of Evaluation that appears in the current regulations in Sec.  
300.500(b)(2), with the cross-reference to the evaluation procedures 
updated to reflect their placement in these proposed regulations and to 
include the additional procedures regarding specific learning 
disability. The current regulation, regarding evaluation in Sec.  
300.12, which cross-references the definition in current Sec.  300.500, 
would be removed as duplicative and unnecessary.
    Proposed Sec.  300.16 (Excess costs), defined in the current 
regulations in Sec.  300.184, would be revised consistent with changes 
in section 602(8) of the Act. This provision is substantially the same 
as the current definition in Sec.  300.184(b).
    Proposed Sec.  300.17 (free appropriate public education or FAPE) 
would incorporate the provisions of section 602(9) of the Act and be 
the same as the definition in Sec.  300.13 of the current regulations, 
except that Sec.  300.17(d) would be updated to add a cross-reference 
to the individualized education program (IEP) requirements.
    A new definition of highly qualified special education teacher 
would be added in proposed Sec.  300.18, reflecting the addition of a 
definition of this term to the statute in section 602(10) of the Act, 
with the following modifications: Paragraph (a)(1) of this section 
would specify that the term ``highly qualified'' applies only to public 
elementary school and secondary school special education teachers, 
consistent with the definition of that term in section 9101 of the 
ESEA, which is incorporated into the Act and applied to special 
education teachers in section 602(10) of the Act. We do not believe 
that the ``highly qualified'' requirements of the ESEA, or, by 
statutory cross-reference, the Act, were intended to apply to private 
school teachers, even in situations where a child with a disability is 
placed in, or referred to, a private school by a public agency in order 
to carry out the public agency's responsibilities under this part, 
consistent with section 612(a)(10)(B) of the Act and proposed Sec.  
300.146. This issue also is addressed in proposed Sec.  300.156.
    Proposed Sec.  300.18(b)(2) would specify that a teacher 
participating in an alternate route to certification program would be 
considered to be fully certified under certain circumstances. The 
standard to be applied to an alternate route to certification program 
would be the same as for those programs under the regulations 
implementing title I of the ESEA in 34 CFR Sec.  200.56(a)(2)(ii). This 
would provide for consistency in the interpretation and application of 
the alternate route to certification provisions across these programs.
    In proposed Sec.  300.18(b)(3), a provision would be added to 
clarify that a public elementary or secondary school teacher who is not 
teaching a core academic subject would be considered highly qualified 
if the teacher meets the requirements of proposed Sec.  300.18(b)(1) 
and (2). This provision would reflect note 21 in U.S. House of 
Representatives Conference Report No. 108-779, (Conf. Rpt.) that 
special education teachers who are only providing consultative services 
to other teachers who are highly qualified to teach particular academic 
subjects, could be highly qualified by meeting the special education 
qualifications alone. Proposed Sec.  300.18(c)(2) would clarify that 
all special education teachers who are exclusively teaching students 
who are assessed based on alternate academic achievement standards, as 
permitted under the regulations implementing title I of the ESEA, at a 
minimum, have subject matter knowledge at the elementary level or 
above, as determined by the State, needed to effectively teach to those 
standards. Note 21 in the Conf. Rpt. calls for teachers exclusively 
teaching students who are assessed based on alternate academic 
achievement standards above the elementary level to have a high level 
of competency in each of the core academic subjects taught.
    The proposed regulation would not specifically address the use of a 
separate ``high objective uniform State standard of evaluation'' 
(HOUSSE) for special

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education teachers. However, note 21 in the Conf. Rpt. recognized that 
some States have developed HOUSSE standards for special education 
teachers, and indicated that those separate HOUSSE standards should be 
permitted, including single HOUSSE evaluations that cover multiple 
subjects, as long as those adaptations of a State's HOUSSE for use with 
special education teachers would not establish a lesser standard for 
the content knowledge requirements for special education teachers. We 
request comment on whether additional regulatory action is needed on 
this point. Proposed Sec.  300.18(g) would clarify that the 
requirements in proposed Sec.  300.18 regarding highly qualified 
special education teachers do not apply with respect to teachers hired 
by private elementary and secondary schools.
    Proposed Sec.  300.19 would reflect the definition of Homeless 
children added to the statute in section 602(11) of the Act.
    The definition of include in proposed Sec.  300.20 is substantively 
unchanged from the current regulatory provision in Sec.  300.14.
    The proposed definitions of Indian and Indian tribe in Sec.  300.21 
would incorporate the definitions of those terms currently in Sec.  
300.264 and reflect the language in sections 602(12) and 602(13) of the 
Act. The Department of Education seeks comment on the definition of 
Indian tribe because the current definition includes state tribes. The 
Department of the Interior is only authorized to provide services to 
Federally Recognized tribes, therefore, States should provide comments 
on how they would provide these services to State recognized tribes. 
Nothing in this definition is intended to require the BIA to provide 
services or funding to a State Indian tribe for which BIA is not 
responsible.
    The definition of Individualized education program or IEP in 
proposed Sec.  300.22 would incorporate the regulatory definition of 
that term currently in Sec.  300.340(a), and would reflect the language 
in section 602(14) of the Act. The current Sec.  300.15 cross-
referencing the Sec.  300.340 definition would be removed as 
duplicative and unnecessary.
    Proposed Sec.  300.23 (Individualized education program team) would 
be the same as Sec.  300.16 of the current regulations. The definition 
in proposed Sec.  300.24 of Individualized family service plan would be 
the same as the current regulatory definition in Sec.  300.17, except 
that proposed Sec.  300.24 would appropriately refer to the current 
statutory definition of IFSP in section 636 of the Act and not to the 
regulatory definition in 34 CFR 303.340(b).
    Proposed Sec.  300.25 (Infant or toddler with a disability), Sec.  
300.26 (Institution of higher education), and Sec.  300.27 (Limited 
English proficient) would reflect statutory definitions of those terms 
in sections 602(16), 602(17), and 602(18) of the Act, respectively.
    Proposed Sec.  300.28 (Local educational agency or LEA) is 
substantively unchanged from the current regulatory definition in Sec.  
300.18, and would reflect the definition of that term in section 
602(19) of the Act.
    Proposed Sec.  300.29 (Native language) is substantively unchanged 
from the current regulatory definition of that term in Sec.  300.19.
    Proposed Sec.  300.30 (Parent) would revise the current regulatory 
definition of that term in Sec.  300.20 to better reflect the revised 
statutory definition of Parent in section 602(23) of the Act. Proposed 
Sec.  300.30(a)(2) would reflect the provision regarding a State law 
prohibition on when a foster parent can be considered a parent, but 
would add language to recognize that similar restrictions may exist in 
State regulations or in contractual agreements between a State or local 
entity and the foster parent, and should be accorded similar deference. 
Proposed Sec.  300.30(b)(1) would provide that the natural or adoptive 
parent would be presumed to be the parent for purposes of the 
regulations if that person were attempting to act as the parent under 
proposed Sec.  300.30 and more than one person is qualified to act as a 
parent, unless that person does not have legal authority to make 
educational decisions for the child, or there is a judicial order or 
decree specifying some other person to act as the parent under Part B 
of the Act. Proposed Sec.  300.30(b)(2) would provide that if a person 
or persons is specified in a judicial order or decree to act as the 
parent for purposes of Sec.  300.30, that person would be the parent 
under Part B of the Act. Proposed Sec.  300.30(b)(2) would, however, 
exclude an agency involved in the education or care of the child from 
serving as a parent, consistent with the statutory prohibition that 
applies to surrogate parents in sections 615(b)(2) and 639(a)(5) of the 
Act. The provisions in proposed Sec.  300.30(b) should assist schools 
and public agencies in identifying the appropriate person to serve as 
the parent under Part B of the Act, especially in those difficult 
situations in which more than one individual wants to make educational 
decisions.
    Proposed Sec.  300.31 would add a new definition of Parent training 
and information center reflecting section 602(25) of the Act. This term 
would be used in proposed Sec.  300.506.
    Proposed Sec. Sec.  300.32 (Personally identifiable) and 300.33 
(Public agency) are substantively unchanged from current regulatory 
definitions of these terms in Sec.  300.500(b)(3) and Sec.  300.22, 
respectively. We note that throughout these proposed regulations, 
public agency has been used to make clear where the requirements do not 
apply only to States and LEAs.
    The current regulatory definition of Qualified personnel in Sec.  
300.23 would be removed, because personnel qualifications would be 
adequately addressed in proposed Sec.  300.156.
    Proposed Sec.  300.34 (Related services), reflecting changes in 
section 602(26) of the Act, would amend the current regulatory 
definition in Sec.  300.24 in the following ways: In proposed Sec.  
300.34(a) ``interpreting services'' and ``school nurse services 
designed to enable a child with a disability to receive a free 
appropriate public education as described in the IEP of the child'' 
would be added. Proposed Sec.  300.34(b) would be added to address the 
statutory limitation on surgically implanted medical devices. Paragraph 
(b) also would specify that related services would not include the 
costs of maximizing the functioning of a surgically implanted device or 
the maintenance of a surgically implanted device. School districts 
should not be required to bear these costs, which are integral to the 
functioning of the implanted device. Proposed paragraph (c) would 
include new definitions of Interpreting services and School nurse 
services. The list is not intended to be exhaustive and other 
therapies, as well as other services not listed, may be included in a 
child's IEP if the IEP Team determines that a particular service is 
needed for a child to benefit from special education. In all cases 
concerning related services, the IEP Team's determination about 
appropriate services must be reflected in the child's IEP and those 
listed services must be provided in accordance with the IEP at public 
expense and at no cost to the parents. Nothing in the Act or in the 
definition of related services requires the provision of a related 
service to a child unless the child's IEP Team has determined that the 
service is required in order for the child to benefit from special 
education and has included the service on the child's IEP.
    Proposed Sec.  300.35 (Secondary school) would revise the current 
regulatory definition of this term in Sec.  300.25 to add the new 
statutory language specifying

[[Page 35786]]

that the term includes a public secondary charter school.
    Proposed Sec.  300.36 (Services plan) would add a new definition 
that would describe the content, development, and implementation of 
plans for parentally-placed private school children with disabilities 
who have been designated to receive services. The definition would 
cross-reference the specific requirements for the provision of services 
to parentally-placed private school children with disabilities in 
proposed Sec. Sec.  300.132 and 300.137 through 300.139.
    Proposed Sec.  300.37 (Secretary) would reflect the statutory 
definition of that term in section 602(28) of the Act.
    Proposed Sec. Sec.  300.38 (Special education), 300.39 (State), and 
300.41 (Supplementary aids and services) would be substantively 
unchanged from current regulatory provisions in Sec. Sec.  300.26, 
300.27 and 300.28, respectively, except that State would be revised to 
reference an exception when the term is used in subparts G and H of 
these regulations. Proposed Sec.  300.38(b)(5) would revise the 
definition of vocational education in current Sec.  300.26(b)(5) to 
include the definition of vocational and technical education and the 
definition of vocational and technical education in the Carl D. Perkins 
Vocational and Applied Technology Act of 1988, as amended, 20 U.S.C. 
2301, 2302(29) would be added in proposed Sec.  300.38(b)(6).
    Proposed Sec.  300.42 (Transition services) would revise the 
current regulatory definition of the term in Sec.  300.29, reflecting 
new statutory language in section 602(34) of the Act.
    New proposed definitions would be added in Sec. Sec.  300.43 and 
300.44 reflecting the statutory definitions of Universal design and 
Ward of the State, respectively. The definition of Ward of the State 
underscores that the determination of whether a child is a ward of the 
State is limited to applicable State law. Finally, the current list of 
definitions found in the Education Department General Administrative 
Regulations (EDGAR) in Sec.  300.30 would be removed as unnecessary, as 
these definitions already apply by their own terms, except that the 
definition of Secretary in proposed Sec.  300.37 and State educational 
agency in proposed Sec.  300.40, which are included in the current 
EDGAR list, would be included in the proposed regulation because they 
also are defined in section 602(28) and (32) of the Act.

Subpart B--State Eligibility

General
    Revised subpart B would incorporate current provisions from other 
subparts that, under the current regulations, are cross-referenced in 
subpart B. These changes would be consistent with the statutory 
structure. Some of the provisions that are consolidated in proposed 
subpart B would include: certain provisions related to FAPE, currently 
in subpart C; provisions regarding private school children with 
disabilities, currently in subpart D; the least restrictive environment 
(LRE) provisions, currently in subpart E; and the State complaint 
procedures, currently in subpart F.
    Proposed Sec.  300.100 would revise current Sec.  300.110 to 
provide for the submission of a plan that includes assurances related 
to the conditions of eligibility for assistance. The requirement that 
States submit copies of all State statutes, regulations, and other 
documents would be removed from current Sec.  300.110, consistent with 
the changes in Section 612(a) of the Act. Consistent with this 
approach, these proposed regulations would eliminate from the current 
regulations throughout subpart B all provisions requiring that policies 
and procedures be on file with the Secretary.

FAPE Requirements

    Proposed Sec.  300.101 would incorporate the current general FAPE 
provision in Sec.  300.121(a), and would include a reference to the 
SEA's obligation to make FAPE available to children who have been 
suspended or expelled from school, consistent with proposed Sec.  
300.530(d). Consistent with changes to the statute, the current 
provisions in Sec.  300.121(b) regarding submission of State 
documentation, such as statutes and court orders, would be removed. The 
current provisions in Sec.  300.121(c), regarding FAPE beginning at age 
three, generally would be retained. The current provisions in Sec.  
300.121(e), regarding children advancing from grade to grade, also 
would be retained. These provisions provide useful information on 
appropriate implementation of public agency responsibilities under Part 
B. Section 300.121(d) of the current regulations would not be retained 
in these proposed regulations. Instead, the obligation to ensure the 
right to FAPE for children who have been suspended or expelled from 
school would be addressed in proposed Sec.  300.530(d) in subpart E.
    Proposed Sec.  300.102 would retain the current exceptions to FAPE 
in Sec.  300.122. For consistency with the statute, references to 
``students'' would be changed to ``children.'' The proposed regulation 
would contain a new provision regarding children who are eligible for 
services under section 619 of the Act, but who are receiving early 
intervention services under Part C, consistent with the statutory 
language in section 612(a)(1)(c) of the Act. Proposed Sec.  300.102(b) 
also would include a new provision that would require that information 
regarding exceptions to FAPE be current and accurate. This information 
is necessary for the Department to allocate funds accurately among the 
States.

Other FAPE Requirements

    Proposed Sec. Sec.  300.103, 300.104, and 300.105(b), regarding 
methods and payments; residential placement; and proper functioning of 
hearing aids would retain the provisions from Sec. Sec.  300.301 
through 300.303 of the current regulations, respectively. Proposed 
Sec.  300.105(a), regarding assistive technology, would retain the 
provisions in current Sec.  300.308.
    Proposed Sec. Sec.  300.106 through 300.108, regarding extended 
school year services, nonacademic services, and physical education, 
would retain the current provisions in Sec.  300.309, Sec.  300.306, 
and Sec.  300.307, respectively. Proposed Sec.  300.109, regarding a 
full educational opportunity goal, generally would retain the current 
provisions in Sec. Sec.  300.123 and 300.124, but would combine them, 
consistent with section 612(a)(2) of the Act.
    Proposed Sec.  300.110, regarding program options, would retain the 
current provisions in Sec.  300.305.
    Proposed Sec.  300.111, regarding child find, generally would 
retain the current provisions in Sec.  300.125 and, consistent with 
changes in section 612(a)(3) of the Act, would specifically reference 
children who are homeless or are wards of the State. In addition, 
proposed Sec.  300.111(b) would incorporate the provisions related to 
developmental delay currently in Sec.  300.313(a). The proposed 
regulation would remove the current provisions in Sec.  300.313(b) 
regarding use of individual disability categories and Sec.  300.313(c) 
regarding a common definition of developmental delay as they are 
unnecessary. States have the option of using developmental delay and 
other eligibility categories for children with disabilities aged three 
through nine and subsets of that age range and of using a common 
developmental delay definition for Parts B and C of the Act. The 
proposed regulations generally would retain the current provisions in 
Sec.  300.125(a)(2) and (d), regarding other children included in

[[Page 35787]]

child find and the construction of Part B of the Act as not requiring 
that children be classified by their disability, as long as each child 
who needs special education and related services is regarded as having 
a disability under the Act. Consistent with other changes in these 
regulations to remove eligibility documentation requirements, the 
proposed regulation would remove the provision in Sec.  300.125(b) of 
the current regulations that the State must have policies and 
procedures on file with the Secretary. The proposed regulation also 
would remove the provision in Sec.  300.125(c) of the current 
regulations, regarding child find for children from birth through age 
two when the SEA is the lead agency for the Part C program, because 
this is a clarification that does not need to be in the regulations. 
The child find requirement under these regulations has traditionally 
been interpreted to mean identifying and evaluating children from 
birth. While child find under Part C of the Act overlaps, in part, with 
Part B of the Act, the coordination of child find activities under Part 
B and Part C is an implementation matter that would be best left to 
each State. Nothing in the Act prohibits the Part C lead agency's 
participation, with the agreement of the SEA, in the actual 
implementation of child find activities for infants and toddlers with 
disabilities.
    Proposed Sec.  300.112, regarding individualized education programs 
(IEPs), would revise the current provisions in Sec.  300.128 by adding 
an exception that references the requirement in proposed Sec.  
300.300(b)(3)(ii). That exception would provide that if the parent of a 
child with a disability refuses to consent to the initial provision of 
special education and related services, or the parent fails to respond 
to a request to provide consent for the initial provision of special 
education and related services, the public agency is not required to 
convene an IEP meeting to develop an IEP for the child for which the 
public agency requests such consent. Consistent with other changes in 
these proposed regulations, the proposed regulation would remove Sec.  
300.128(b), which requires the State to have policies and procedures on 
file with the Secretary.

Least Restrictive Environment

    Proposed Sec.  300.114, regarding LRE, generally would retain the 
current provisions in Sec.  300.550(b). The proposed regulation would 
remove the documentation requirements of Sec.  300.130(a) and Sec.  
300.550(a) and (b), consistent with other changes in these proposed 
regulations. The current provision related to an assurance regarding a 
State's funding mechanism in Sec.  300.130(b)(2) would be retained in 
proposed Sec.  300.114(b)(1). This section would provide that a State 
funding mechanism must not result in placements that violate the LRE 
provisions and that the State must not use a funding mechanism that 
distributes funds on the basis of the type of setting in which a child 
is served that will result in the failure to provide a child with a 
disability FAPE according to the unique needs of the child, as 
described in the child's IEP. This change is consistent with language 
in section 612(a)(5)(B)(i) of the Act.
    With regard to section 612(a)(5)(B)(i) of the Act, note 89 in the 
Conf. Rpt. states that some States continue to use funding mechanisms 
that provide financial incentives for, and disincentives against, 
certain placements and these new provisions in the statute were added 
to prohibit States from maintaining funding mechanisms that violate 
appropriate placement decisions, not to require States to change 
funding mechanisms that support appropriate placement decisions. Note 
89 of the Conf. Rpt. indicates that it is the intent of the changes to 
section 612(a)(5)(B) of the Act to prevent State funding mechanisms 
from affecting appropriate placement decisions for children with 
disabilities. As also set out in note 89, the law requires 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. The note further explains that State 
funding mechanisms must be in place to ensure funding is available to 
support the requirements of this provision, not to provide an incentive 
or disincentive for placement and that the LRE principle is intended to 
ensure that a child with a disability is served in a setting where the 
child can be educated successfully in the least restrictive setting. 
Proposed paragraph (b)(2) would replace Sec.  300.130(b)(2) and require 
a State that does not have policies and procedures to this effect to 
provide an assurance as soon as feasible to ensure that the mechanism 
does not result in placements that violate the LRE principle. The other 
provisions regarding LRE would be retained with appropriate updating of 
cross-references, as described in the following paragraphs.
    Proposed Sec.  300.115, regarding continuum of placements, would 
retain the language currently in Sec.  300.551. Proposed Sec.  300.116, 
regarding placements, would retain the language currently in Sec.  
300.552, except that paragraph (b)(3) would be revised to clarify that 
a child's placement must be as close as possible to the child's home 
unless the parent agrees otherwise. Finally, Sec.  300.116(c) would be 
revised to require that each public agency ensure that, unless the IEP 
of a child with a disability requires some other arrangement, the child 
is educated in the school he or she would attend if not disabled, 
unless the parent agrees otherwise. This additional language, ``unless 
the parent agrees otherwise,'' in paragraphs (b)(3) and (c) would 
clarify that parents can choose to send their child to a charter 
school, magnet school, or other specialized school without causing a 
violation of the LRE mandate.
    Proposed Sec.  300.117, regarding nonacademic settings, would 
retain the current provisions in Sec.  300.553. Proposed Sec.  300.118, 
regarding children in public or private institutions, would retain the 
current provisions in Sec.  300.554.
    Proposed Sec.  300.119, regarding technical assistance and 
training, would retain the current provisions in Sec.  300.555.
    Proposed Sec.  300.120, regarding LRE monitoring activities, would 
retain the current provisions in Sec.  300.556.

Additional Eligibility Requirements

    Proposed Sec.  300.121, regarding procedural safeguards, would 
retain the current provision in Sec.  300.129(a), but would remove the 
provision in Sec.  300.129(b) regarding having the safeguards on file 
with the Secretary, consistent with statutory changes eliminating 
requirements that States file documentation with the Secretary.
    Proposed Sec.  300.122 would remove the current requirement in 
Sec.  300.126 that evaluation policies and procedures be on file with 
the Secretary, consistent with statutory changes discussed previously. 
Consistent with the provision in section 612(a)(7) of the Act, proposed 
Sec.  300.122 would require that children with disabilities be 
evaluated consistent with the requirements in subpart D of these 
proposed regulations. The relevant requirements are addressed elsewhere 
in this preamble in the discussion of subpart D.
    Proposed Sec.  300.123 would remove the current requirement in 
Sec.  300.127 that policies and procedures related to confidentiality 
be on file with the Secretary and the criteria the Secretary uses to 
evaluate those policies and

[[Page 35788]]

procedures, consistent with statutory changes discussed previously. 
Instead, the proposed regulation would require that public agencies 
comply with subpart F of these regulations relating to the 
confidentiality of records and information. The relevant requirements 
are addressed elsewhere in this preamble in the discussion of subpart 
F.
    Proposed Sec.  300.124, regarding the transition of children from 
the Part C program to preschool programs under Part B, would remove the 
current requirement in Sec.  300.132 that policies and procedures 
related to confidentiality be on file with the Secretary, as discussed 
previously. The proposed regulation generally would retain the other 
provisions of Sec.  300.132. Proposed Sec.  300.124(c) would clarify 
that only affected LEAs must participate in transition planning 
conferences arranged by the designated lead agency under Part C of the 
Act.

Children in Private Schools

    Proposed Sec.  300.129, concerning State responsibilities regarding 
children in private schools, would revise the current requirements in 
Sec.  300.133, by removing the requirement that a State must have on 
file with the Secretary policies and procedures that ensure that the 
requirements of current Sec. Sec.  300.400 through 300.403 and current 
Sec. Sec.  300.460 through 300.462 are met. Proposed Sec.  300.129 
would make clear that the State must have in effect policies and 
procedures that ensure that LEAs and, if appropriate, the SEA, meet the 
private school requirements in proposed Sec. Sec.  300.130 through 
300.148.

Children With Disabilities Enrolled by Their Parents in Private Schools

    Proposed Sec.  300.130, regarding the definition of parentally-
placed private school children with disabilities, would incorporate the 
current provisions in Sec.  300.450.
    Proposed Sec.  300.131, regarding child find for parentally-placed 
private school children with disabilities, generally would retain the 
current requirements in Sec.  300.451, but would clarify, consistent 
with the changes in proposed Sec. Sec.  300.132 and 300.133, that the 
provisions governing parentally-placed private school children with 
disabilities apply to children who are enrolled in private schools 
located in the school district served by the LEA. The new statutory 
requirements in section 612(a)(10)(A)(ii) of the Act should ensure that 
parentally-placed private school children will not be denied the 
opportunity to receive services that would otherwise be available to 
them because of practical obstacles posed when they attend a private 
school located outside their district of residence.
    Proposed regulations in Sec.  300.131(b) through (e) also would 
include new provisions that incorporate the new requirements in section 
612(a)(10)(A)(ii) of the Act, designed to ensure that child find for 
parentally-placed private school children suspected of having 
disabilities is comparable to child find for public school children 
suspected of having disabilities. Proposed Sec.  300.131 would require 
that the participation in child find for parentally-placed private 
school children with disabilities be equitable, the counts be accurate, 
the activities undertaken be similar to child find activities for 
public school children with disabilities, and the period for completion 
of the child find process be comparable to the period for completion 
for public school children with disabilities when a parent consents to 
the evaluation. Similar to the current provision in Sec.  300.453(c), 
and consistent with section 612(a)(10)(A)(ii)(IV) of the Act, proposed 
Sec.  300.131(d) would provide that the costs of carrying out the child 
find requirements for parentally-placed private school children with 
disabilities, including individual evaluations, may not be considered 
in determining whether an LEA has met its obligations under proposed 
Sec.  300.133.
    The proposed regulation would remove current Sec.  300.453(d), 
regarding the permissibility of additional services, as it merely 
provides clarification for which a regulation is not necessary. Nothing 
in the Act prohibits SEAs and LEAs from providing other services to 
parentally-placed private school children with disabilities in addition 
to the services that are required under Part B of the Act.
    Proposed Sec.  300.132(a), regarding the provision of services for 
parentally-placed private school children with disabilities, would 
revise current Sec.  300.452(a) in light of changes in section 
612(a)(10)(A) of the Act, which refers to children ``enrolled in 
private elementary schools and secondary schools in the school district 
served by a local educational agency.'' Therefore, proposed Sec.  
300.132(a) would clarify that the provision of services under the 
proposed regulations refers only to children with disabilities enrolled 
by their parents in private schools located in the school district 
served by the LEA. The proposed regulation also would add a reference 
to the by-pass provisions in proposed Sec. Sec.  300.190 through 
300.198. Proposed Sec.  300.132(b) generally would retain current Sec.  
300.452(b), regarding a services plan for each private school child 
with a disability designated to receive special education and related 
services under Part B. Proposed Sec.  300.132(c) would require each LEA 
to maintain and provide to the SEA records on the number of private 
school children with disabilities evaluated, the number determined to 
be children with disabilities, and the number of private school 
children with disabilities served, consistent with section 
612(a)(10)(A)(i)(V) of the Act.
    Proposed Sec.  300.133, regarding expenditures for providing 
special education and related services to parentally-placed private 
school children with disabilities, would revise current Sec.  
300.453(a), regarding the formula used in determining the proportionate 
amount of expenditures, in light of changes in section 
612(a)(10)(A)(i)(II) of the Act. Proposed Sec.  300.133(a) would 
provide that the calculation of the proportionate amount of funds 
allocated for services for parentally-placed private school children be 
based on the count of parentally-placed private school children 
attending private schools located in the LEA. The proposed regulation 
would establish the formula as the number of children with 
disabilities, ages 3 through 21, who are enrolled by their parents in 
private schools located in the school district served by the LEA, 
divided by the total number of children with disabilities, ages 3 
through 21, in the LEA's jurisdiction. Proposed Sec.  300.133(b) would 
incorporate the provision in section 612(a)(10)(A)(i)(II) of the Act 
regarding a thorough and complete child find process. Proposed Sec.  
300.133(c), regarding child count, generally would retain the current 
provision in Sec.  300.453(b), but for clarity, would use the term 
parentally-placed private school children with disabilities. The 
existing provision in Sec.  300.453(c) would be removed, as similar 
content would be more fully addressed in proposed Sec.  300.131(d). 
Proposed Sec.  300.133(d) would incorporate the statutory provision 
regarding supplementing not supplanting in section 612(a)(10)(A)(i)(IV) 
of the Act.
    Proposed Sec. Sec.  300.134 and 300.135 would incorporate new 
provisions in section 612(a)(10)(A)(iii) and (iv) of the Act, regarding 
timely and meaningful consultation with private school representatives 
and representatives of parents of parentally-placed private school 
children with disabilities, including a discussion of: How parentally-
placed children identified through the child find process can 
meaningfully participate; how, where, and by whom special education and 
related services will be provided; and

[[Page 35789]]

how, if the LEA disagrees with the views of the private school 
officials and the services to be provided, the LEA will provide a 
written explanation of why the LEA chose not to provide services 
directly or through a contract. Proposed Sec.  300.135 would require, 
in accordance with section 612(a)(10)(A)(iv) of the Act, a written 
affirmation signed by the representatives of the participating private 
schools that timely and meaningful consultation has occurred. The 
current provisions in Sec.  300.454(b)(1) through (3), regarding the 
consultation process, would be removed because they were superceded by 
new statutory requirements related to consultation in section 
612(a)(10)(A)(v) of the Act.
    Proposed Sec.  300.136, regarding the right of a private school 
official to submit to the SEA a complaint related to the LEA's 
compliance with the timely and meaningful consultation requirements, 
would incorporate the new provisions in section 612(a)(10)(A)(v) of the 
Act.
    Proposed Sec.  300.137(b) and (c), regarding determination of 
services to parentally-placed private school children with 
disabilities, generally would retain the current provisions in Sec.  
300.454(a), (b)(4), and (c). Proposed Sec.  300.137(a) also would 
include language from current Sec.  300.455(a)(3), providing that a 
parentally-placed private school child with a disability has no 
individual entitlement to receive some or all of the special education 
and related services that the child would receive if enrolled in a 
public school. This is an important clarification of the different 
responsibilities that public schools have for providing special 
education and related services to parentally-placed private school 
children with disabilities. Under the Act, LEAs have an obligation to 
provide the group of parentally-placed private school children with 
disabilities with equitable participation in the services funded with 
Federal IDEA funds. Because Federal funding constitutes only a portion 
of the excess costs of providing special education and related services 
to a child with disabilities, LEAs, in consultation with 
representatives of the private schools, will have to make decisions 
about how best to use the available Federal funds to address the needs 
of the parentally-placed private school children with disabilities as a 
group. In some LEAs, geography, school location, and the needs of the 
parentally-placed private school children with disabilities may make it 
possible for most, or even all of those children to receive some 
services under section 612(a)(10)(A) of the Act. In other cases, the 
Federal funds available may not be sufficient to provide all of these 
children with special education and related services. Decisions about 
how best to use the available Federal funds to ensure equitable 
participation of the group of parentally-placed private school children 
with disabilities are left to LEA personnel, in consultation with the 
private school representatives, who understand what is feasible and 
appropriate in particular situations.
    Proposed Sec.  300.138, regarding equitable services provided to 
parentally-placed private school children with disabilities, would 
retain the current provisions in Sec.  300.455(a)(1) and (2), and (b), 
regarding standards for personnel who provide services to parentally-
placed private school children, different amounts of services that may 
be provided to parentally-placed private school children as compared 
with those provided to children in public schools, and the provision of 
services for each parentally-placed private school child who has been 
designated to receive services in accordance with a services plan. The 
proposed regulation also would include language from section 
612(a)(10)(A)(vi) of the Act, which provides that the special education 
and related services be provided directly by employees of the public 
agency or through contract and that special education and related 
services, including materials and equipment, be secular, neutral and 
nonideological.
    Proposed Sec.  300.139, regarding the location of services and 
transportation, generally would retain the current provisions in Sec.  
300.456 that clarify that LEAs may provide special education and 
related services funded under Part B of the Act on site at the private, 
including religious, schools to the extent consistent with law. It 
should be noted that LEAs should provide such services for parentally-
placed private school children with disabilities on site at their 
school, unless there is a compelling rationale for these services to be 
provided off site.
    Proposed Sec.  300.140, regarding the unavailability of due process 
complaints, except for child find and the availability of State 
complaints, would retain the current provisions in Sec.  300.457. 
Proposed Sec.  300.140(b) would clarify that the State complaint 
procedures would be used to address complaints about the implementation 
of the consultation process in proposed Sec.  300.134. Proposed Sec.  
300.141, regarding the requirement that funds not benefit a private 
school, would retain the current provisions in Sec.  300.459. Proposed 
Sec.  300.142 would combine the requirements of current Sec. Sec.  
300.460 and 300.461 regarding the use of public school personnel and 
private school personnel. Proposed Sec.  300.143, regarding the 
prohibition of separate classes, would retain the requirements in 
current Sec.  300.458.
    Proposed Sec.  300.144 would incorporate provisions in section 
612(a)(10)(A)(vii) of the Act regarding property, equipment, and 
supplies for the benefit of private school children with disabilities 
and would replace the current provisions in Sec.  300.462(a). The 
proposed regulation would retain the current provisions in Sec.  
300.462(b) through (e).

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies

    Proposed Sec. Sec.  300.145, 300.146, and 300.147, regarding 
children with disabilities placed in or referred to private schools by 
public agencies, generally would retain the current provisions in 
Sec. Sec.  300.400, 300.401, and 300.402, which provide that children 
so placed or referred receive special education and related services in 
conformity with an IEP at no cost to the parents. This would be 
consistent with the requirement in section 612(a)(10)(B)(ii) of the 
Act, which provides that the SEA determine whether such private schools 
meet the standards that apply to the SEA and LEAs and that children 
served have all the rights the children would have if served by these 
agencies. Proposed Sec.  300.146(b) would continue to provide that 
publicly-placed children with disabilities be provided an education 
that meets the standards that apply to education provided by the SEA 
and LEAs, including the requirements of part 300, except for the 
requirements of Sec. Sec.  300.18 and 300.156(c). This provision is 
intended to ensure that children with disabilities who are publicly-
placed in or referred to a private school or facility as a means of 
providing these children with special education and related services 
would continue to retain the same right to FAPE that they would have if 
served directly by a public agency. However, because of statutory 
language in the ESEA that the requirements regarding highly qualified 
teachers apply only to public school teachers, as well as related 
language in section 602(10) of the Act and proposed Sec.  300.18, we do 
not read proposed Sec.  300.146(b) as requiring teachers of children 
with disabilities who are placed in or referred to private schools by a 
public agency to meet either the

[[Page 35790]]

``highly qualified teacher'' standard in the ESEA or the ``highly 
qualified special education teacher'' standard in the Act. Proposed 
Sec.  300.147, regarding implementation by the SEA, would incorporate, 
without change, the provisions in current Sec.  300.402.

Children With Disabilities Enrolled by Their Parents in Private Schools 
When FAPE Is at Issue

    Proposed Sec.  300.148, relating to placement of children with 
disabilities in private schools when the provision of FAPE is at issue, 
generally would retain the current provisions in Sec.  300.403(a), (c), 
and (d). Proposed Sec.  300.148 would remove, as unnecessary, language 
currently in Sec.  300.403(b), which provides that disagreements 
regarding the availability of an appropriate program for the child and 
the question of financial responsibility are subject to due process 
procedures. Disputes about these matters would be subject to the due 
process procedures even without this provision, because the central 
issue in such disputes is whether the public agency has made FAPE 
available to the child. Consistent with statutory language, proposed 
Sec.  300.148(b) would include the term ``school'' after 
``elementary.'' Proposed Sec.  300.148(d) would modify current Sec.  
300.403(e), based on the specific provisions in section 
612(a)(10)(C)(IV) of the Act.
    The current provision on documentation of SEA responsibility for 
general supervision in Sec.  300.141(a) and (b) would be removed 
consistent with statutory changes regarding documentation. Proposed 
Sec.  300.149, regarding SEA responsibility for general supervision, 
would replace current Sec.  300.600(a) and incorporate language in 
section 612(a)(11) of the Act to include a new provision referencing 
the requirements of subtitle B of title VII of the McKinney-Vento 
Homeless Assistance Act, 42 U.S.C. 11431. We also are adding a phrase 
to Sec.  300.149(a)(2) to clarify that the SEA is not responsible for 
exercising general supervision for education programs for children with 
disabilities in elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior. Current 
Sec.  300.600(b) also would be removed as a result of statutory changes 
regarding submission of State information.
    New language referencing the State monitoring and enforcement 
responsibilities in proposed Sec. Sec.  300.602 and 300.606 through 
300.608 would be added in Sec.  300.149(b) because State monitoring and 
enforcement are central to the SEA's exercise of general supervision. 
Proposed Sec.  300.149(c) and (d) respectively, would incorporate 
current Sec.  300.600(c), clarifying that Part B does not limit the 
responsibility of agencies other than educational agencies to provide 
or pay for some or all of the cost of FAPE and Sec.  300.600(d), 
regarding the ability of a Governor or other individual to assign to a 
public agency, other than the SEA, responsibility for ensuring that the 
requirements of Part B are met for students with disabilities convicted 
as adults and incarcerated in adult prisons. As a general matter, for 
educational purposes, students who had been enrolled in a BIA funded 
school and are subsequently convicted as an adult and incarcerated in 
an adult prison are the responsibility of the State where the adult 
prison is located. The Secretary is seeking comment on whether further 
clarification on this issue is warranted.
    Proposed Sec.  300.150 would incorporate language from current 
Sec.  300.143 regarding SEA implementation of procedural safeguards, 
with a revision. Consistent with other changes to remove State 
documentation requirements, proposed Sec.  300.150 would require States 
to have policies in effect, rather than on file with the Department. 
The cross-reference also would be updated. Current Sec.  300.145, 
regarding recovery of funds for misclassified children, would be 
removed. Under section 611 of the Act, funds are no longer distributed 
based on a count of the children with disabilities served in a given 
fiscal year.

State Complaint Procedures

    In 1992, the Department moved these procedures into part 300 from 
34 CFR 76.780 through 76.782 based on a decision to place the complaint 
procedures into the specific program regulations to which they relate. 
Proposed Sec.  300.151, regarding the adoption of State complaint 
procedures, would incorporate the current provisions in Sec.  300.660, 
with one substantive change. Proposed Sec.  300.151(b)(1) would remove 
the reference to monetary reimbursement, so as not to imply that 
reimbursement would be appropriate in the majority of State complaints. 
Proposed Sec.  300.152, regarding minimum State complaint procedures, 
would retain the current provisions in Sec.  300.661, with several 
changes. Proposed Sec.  300.152(a)(3) would be added in order to 
incorporate into the State complaint procedures an opportunity for a 
public agency to respond to a complaint, including a chance to make a 
proposal to resolve the complaint, and, with the consent of the parent, 
to engage the parent in mediation or other alternative means of dispute 
resolution. This change would encourage meaningful informal resolution 
of disputes between the parties to the dispute. Proposed Sec.  
300.152(b)(1) would add a provision that would allow extensions of the 
60-day time limit if the parties agree to extend the timelines so that 
they can engage in mediation or other alternative means of dispute 
resolution. This change is intended to support cooperative dispute 
resolution efforts, and not to result in uniform extensions. Proposed 
Sec.  300.152(c)(1) would revise the language in current Sec.  
300.661(c)(1) to provide a simplified process for setting aside 
complaints that also are the subject of a due process hearing, which 
should aid State implementation of the State complaint process. 
Finally, current Sec.  300.661(c)(3) regarding a complaint involving a 
public agency's failure to implement a due process decision would be 
removed. The enforcement and implementation of due process hearing 
decisions are matters in the province of State and Federal courts.
    Proposed Sec.  300.153, regarding the filing of a complaint, would 
retain the current provisions in Sec.  300.662, with some changes. 
Proposed Sec.  300.153(b)(3) and (4) would add new information 
requirements for complaints, similar to the basic notice requirement 
for filing a due process complaint, in order to give the public agency 
the information that would allow it to attempt to resolve the complaint 
at the earliest opportunity. Proposed Sec.  300.153(c) would revise the 
language in current Sec.  300.662(c) to require that the complaint must 
allege a violation that occurred not more than one year prior to the 
date the complaint is received, removing references to longer periods 
for continuing violations and for compensatory services claims, to 
ensure expedited resolution for public agencies and children with 
disabilities. A one-year timeline is reasonable, and will assist in 
smooth implementation of the State complaint procedures. Finally, 
proposed Sec.  300.153(d) would add a new requirement that the party 
filing a complaint forward a copy to the public agency involved at the 
same time as the party files the complaint with the SEA. This will 
ensure that the public agency involved has knowledge of the issues 
raised, and an opportunity to resolve them directly with the 
complaining party.

Methods of Ensuring Services

    Proposed Sec.  300.154, regarding methods of ensuring services, 
generally would retain the current provisions in Sec.  300.142. 
Consistent with changes in section 612(a)(11) of the Act, the proposed 
regulation would clarify in Sec.  300.154(b)(1)(i), that a public 
agency

[[Page 35791]]

may fulfill its obligation to ensure FAPE either directly or through 
contracts or other arrangements pursuant to Sec.  300.154(a) or (c). 
Likewise, the proposed regulation would clarify, in Sec.  
300.154(b)(2), that the LEA or State agency is authorized to claim 
reimbursement and, in Sec.  300.154(c)(3), that other appropriate 
written methods also must be approved by the Secretary. Consistent with 
statutory changes regarding submission of State information, the 
proposed regulation would remove the current regulatory language in 
Sec.  300.142(d), that the State have on file with the Secretary, 
information to demonstrate that the requirements of this regulation are 
met. However, as reflected in proposed Sec.  300.704(a)(3), section 
611(e)(1)(C) of the Act requires that States certify to the Secretary 
that agreements to establish responsibility for services are current 
before the State may expend section 611 funds for State administration.
    Proposed Sec.  300.154(d)(2)(iv) would include a new provision that 
to access the parent's public insurance proceeds, the public agency 
must obtain parental consent, in accordance with proposed Sec.  300.622 
the first time that access is sought, and notify parents that refusal 
to allow access to their public insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents. Under Part B of the Act, special 
education and related services, as well as supplementary aids and 
services and supports that an IEP Team determines a child with a 
disability needs in order to receive FAPE, must be provided at no cost 
to the parents or the child. Use of a parent's insurance often imposes 
costs to the parent that are not, and often cannot be known at the time 
the costs are billed to the insurance provider. Under the Family 
Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA), a 
child's records cannot be released without parental consent, except for 
a few specified exceptions. No FERPA exception permits public agencies 
to release educational records for insurance billing purposes without a 
parent's consent. We must ensure that a parent consents to the release 
of a child's records for that purpose and that the parents are informed 
that refusing to give consent to the release of education records for 
that purpose will not prevent a child from receiving the services that 
are in the child's IEP.
    Proposed Sec.  300.154(e) would retain the current requirements 
regarding children with disabilities who are covered by private 
insurance. Proposed Sec.  300.154(f), (g), and (h), respectively, 
regarding use of Part B funds, proceeds from public and private 
insurance, and construction are essentially the same as paragraphs (g), 
(h), and (i) of Sec.  300.142 of the current regulations.

Additional Eligibility Requirements

    Proposed Sec.  300.155, regarding hearings for LEA eligibility, 
would remove the current requirements in Sec.  300.144 that States have 
procedures on file with the Secretary, but generally would retain the 
requirement that States have procedures to give an LEA notice and an 
opportunity for a hearing prior to a final determination that it is not 
eligible for funds under Part B.
    Current Sec. Sec.  300.135 and 300.136, regarding a comprehensive 
system of personnel development and personnel standards, would be 
removed consistent with the statutory removal of these provisions in 
the Act (see section 612(a)(14) and (15) of the Act in effect before 
December 3, 2004) relating to the comprehensive system of personnel 
development and personnel standards.
    Proposed Sec.  300.156, regarding personnel qualifications, would 
include the statutory provisions related to States' establishment and 
maintenance of personnel qualifications for special education teachers 
that align Part B of the Act with the highly qualified teacher 
provisions in section 1119(a)(2) of the ESEA; and also address 
personnel qualifications for related services providers and 
paraprofessionals. As provided in note 21 of the Conf. Rpt., the 
incorporated provisions require that special education teachers obtain 
full State certification as special education teachers, but it does not 
prevent regular education and other teachers who are highly qualified 
in particular subjects from providing instruction in core academic 
subjects to children with disabilities in those subjects. For example, 
a reading specialist who is highly qualified in reading instruction, 
but who is not certified as a special education teacher, would not be 
prohibited from providing reading instruction to children with 
disabilities. Proposed Sec.  300.156(a) contains the general 
requirement that a State's qualifications ensure that personnel 
carrying out the purposes of part 300 are appropriately and adequately 
prepared and trained, including that those personnel have the content 
knowledge and skills to serve children with disabilities.
    Proposed Sec.  300.156(b) would incorporate the provisions in 
section 612(a)(14)(B) of the Act regarding personnel qualifications for 
related services providers and paraprofessionals. This would include 
the requirement that the State's standards must ensure that related 
services personnel and paraprofessionals meet qualifications that are 
consistent with any State-approved or recognized certification, 
licensing, registration or other comparable requirements for their 
professional discipline. These procedures also must ensure that related 
services personnel who deliver services meet applicable qualification 
standards and have not had certification or licensure requirements 
waived on an emergency, temporary, or provisional basis. Proposed Sec.  
300.156(b) reflects the comment in note 97 of the Conf. Rpt. that the 
current regulations requiring related services providers to meet the 
highest State standard applicable to their profession across all State 
agencies have established an unreasonable standard for SEAs to meet, 
and as a result, have led to a shortage of the availability of related 
services for students with disabilities. Conferees intended for SEAs to 
establish rigorous qualifications for related services providers to 
ensure that students with disabilities receive the appropriate quality 
and quantity of care. SEAs are encouraged to consult with LEAs, other 
State agencies, the disability community, and professional 
organizations to determine the appropriate qualifications for related 
services providers, including the use of consultative, supervisory, and 
collaborative models to ensure that students with disabilities receive 
the services described in their individual IEPs. To that end, proposed 
Sec.  300.156(b)(2)(iii), similar to the current regulation in Sec.  
300.136(f), generally would permit States to allow paraprofessionals 
and assistants who are appropriately trained and supervised to assist 
in providing special education and related services under Part B of the 
Act to children with disabilities.
    Proposed Sec.  300.156(c) would incorporate the new requirement in 
section 612(a)(14)(C) of the Act that all special education teachers be 
highly qualified by the deadline established in the ESEA (the end of 
the 2005-2006 school year). It would also specify that this requirement 
applies only to public school special education teachers, in light of 
the statutory definition of ``highly qualified'' in section 602(10) of 
the Act. Proposed Sec.  300.156(d) would include the statutory 
authorization for a State to adopt a policy requiring LEAs to take 
measurable steps to recruit, hire, train, and retain highly qualified 
personnel.
    Proposed Sec.  300.156(e) would incorporate the language in section 
612(a)(14)(E) of the Act, regarding the

[[Page 35792]]

rule of construction that these provisions do not create a right of 
action on behalf of an individual student for the failure of a 
particular SEA or LEA staff person to be highly qualified or prevent a 
parent from filing a State complaint with the SEA about staff 
qualifications under Sec. Sec.  300.151 through 300.153 of the proposed 
regulations.
    Proposed Sec.  300.157, regarding performance goals and indicators, 
would revise the current Sec.  300.137, consistent with the revised 
provisions in section 612(a)(15) of the Act. Proposed Sec.  
300.157(a)(2) would include a new provision that aligns the goals and 
indicators with the State's definition of adequate yearly progress, 
including progress by children with disabilities, under section 
1111(b)(2)(C) of the ESEA. Proposed Sec.  300.157(a)(3) would retain 
the current provision in Sec.  300.137(b), that public agencies must 
address graduation and dropout rates. In order to conform to the 
language in section 612(a)(15) of the Act, the proposed regulation 
would contain the following changes: proposed Sec.  300.157(a)(4) would 
remove from the current provision in Sec.  300.137(a)(2), the term 
``maximum'' before ``extent appropriate'' and add the word ``any'' 
before ``other goals and standards for all children established by the 
State.'' Likewise, proposed Sec.  300.157(b) would remove from the 
current provision in Sec.  300.137(b), the words appearing after the 
word, ``achieving'' and add, in their place, the words, ``the goals 
described in paragraph (a) of this section, including measurable annual 
objectives for progress by children with disabilities under section 
1111(b)(2)(C)(v)(II)(cc) of the ESEA; and''. Proposed Sec.  300.157(c) 
would change the requirement for reporting to the public and to the 
Secretary in current Sec.  300.137(c) from every two years to annually 
and would provide that elements of the report under section 1111(h) of 
the ESEA may be included in the annual report under Part B of the Act.
    Proposed Sec.  300.160, regarding participation in assessments, 
would replace Sec. Sec.  300.138 and 300.139 of the current regulations 
and would incorporate the changes in section 612(a)(16) of the Act. For 
reasons of burden reduction described throughout this preamble, the 
proposed regulation would remove the current requirement in Sec.  
300.138 that the State have information on file with the Secretary.
    Consistent with language in section 613(a)(16) of the Act, proposed 
Sec.  300.160(a) would add to the current provision in Sec.  300.138(a) 
the word ``all'' before the word ``children'', and before the phrase 
``general State and districtwide assessment programs'' and would 
clarify that this requirement includes assessments described in section 
1111 of the ESEA. Proposed Sec.  300.160(a) also would remove, from the 
current provision in Sec.  300.138(a), ``modifications in 
administration'' and add, in its place, ``alternate assessments'' and 
would add after the word ``necessary'', the words, and ``as indicated 
in their respective IEPs.''
    Proposed Sec.  300.160(b) would require that States, (or, in the 
case of districtwide assessments, LEAs) develop guidelines for 
providing appropriate accommodations in assessments. Proposed Sec.  
300.160(c)(1) would address guidelines for participation in alternate 
assessments for those children who cannot participate in regular 
assessments as indicated in their IEPs. Proposed Sec.  300.160(c)(2) 
would include a provision that, in the case of assessments of student 
academic progress, alternate assessments and guidelines under proposed 
Sec.  300.160(c)(1) are aligned with the State's challenging academic 
content and challenging student academic achievement standards or the 
alternate achievement standards, if adopted under the regulations 
implementing section 1111(b)(1) of the ESEA. Proposed Sec.  
300.160(c)(3) would require that the State conduct the alternate 
assessments described in section 1111(b)(1) of the ESEA.
    Proposed Sec.  300.160(d) would incorporate the requirement in 
section 612(a)(16)(D) of the Act for the SEA, in the case of a 
statewide assessment, and the LEA, in the case of a districtwide 
assessment, to report to the public on the assessment of children with 
disabilities with the same frequency and in the same detail that it 
reports on the assessment of nondisabled children, and replace the 
current requirements in Sec.  300.139.
    Proposed Sec.  300.160(e) would incorporate the new requirement in 
section 612(a)(16)(E) of the Act that the SEA, in the case of statewide 
assessments, and the LEA, in the case of districtwide assessments, to 
the extent possible, use universal design in developing and 
implementing assessments.
    Consistent with section 612(a)(17) of the Act, the current 
provisions in Sec.  300.155, regarding use of funds; Sec.  300.152, 
regarding non-commingling; and Sec.  300.153, regarding State-level 
nonsupplanting, would be combined into proposed Sec.  300.162. The 
proposed regulation generally would retain the requirements that Part B 
funds be expended in accordance with Part B of the Act, that Part B and 
State funds not be commingled, and that Part B funds be used to 
supplement, and in no case to supplant other Federal, State, and local 
funds expended for special education and related services. Consistent 
with statutory changes discussed previously, the proposed regulation 
would eliminate the current provision in Sec.  300.155, that States 
have policies and procedures on file with the Secretary; would replace 
the current provisions in Sec.  300.152(a), that States provide the 
Secretary an assurance; and would replace the current provision in 
Sec.  300.153(a)(2), that the State have information on file with the 
Secretary demonstrating compliance with the use of Part B funds to 
supplement and not supplant, with straightforward statements of the 
statutory requirements. These changes would be consistent with changes 
in section 612(a) of the Act regarding State submission of information. 
Proposed Sec.  300.162(b)(2) would retain the current provision in 
Sec.  300.152(b) clarifying that use of a separate accounting system 
including an audit trail of expenditures of Part B funds would satisfy 
the prohibition on commingling.
    Proposed Sec.  300.162(c)(1) would retain the current provision in 
Sec.  300.153(a)(1), regarding the basic non-supplanting requirement. 
Proposed Sec.  300.162(c)(2) would retain the current provision in 
Sec.  300.153(b), regarding the Secretary's ability to waive, in whole 
or in part, the State-level nonsupplanting requirement if the State 
provides clear and convincing evidence regarding the availability of 
FAPE to all children with disabilities. This waiver would be addressed 
further in proposed Sec.  300.164.
    Proposed Sec.  300.163 generally would retain the current 
provisions in Sec.  300.154, regarding maintenance of State financial 
support. However, consistent with the language in section 612(a) of the 
Act, the proposed regulation would eliminate the provision regarding 
information that States must have on file with the Secretary 
demonstrating, on either a total or per-capita basis, that the State 
will not reduce the amount of State financial support for special 
education and related services for children with disabilities.
    Proposed Sec.  300.164, regarding waiver of the requirement 
regarding supplementing and not supplanting Part B funds, would retain 
the current provisions in Sec.  300.589, except that to reduce 
regulatory burden, proposed Sec.  300.164(c)(4) would reduce the number 
of entities with which a State must consult when determining that FAPE 
is currently available to all

[[Page 35793]]

eligible children with disabilities in the State, and eliminate the 
requirement for a summary of the input of the entities consulted.
    Proposed Sec.  300.165(a) would incorporate the language in section 
612(a)(19) of the Act regarding public participation in the adoption of 
policies and procedures to implement Part B of the Act, which is the 
same as the current provision in Sec.  300.148(a)(1). Current Sec.  
300.148(a)(2) and (b), regarding alternate ways of meeting the public 
participation requirement and the requirement that the State 
documentation be on file with the Secretary, would be removed. The 
current provisions in Sec. Sec.  300.280 through 300.284 regarding 
public participation also would be removed. Removing the requirement 
for States to submit extensive documentation to the Secretary on how 
the public participation requirements are met should reduce regulatory 
burden on States. States are required to comply with the public 
participation requirements of the General Education Provisions Act, in 
20 U.S.C. 1232d(b)(7), as provided for in proposed Sec.  300.165(b), as 
well as State-specific requirements, in adopting policies and 
procedures relating to Part B of the Act, which should provide 
sufficient opportunities for public participation.
    Proposed Sec.  300.166 would incorporate the language in section 
612(a)(20) of the Act, regarding the rule of construction on use of 
Federal funds to satisfy State-mandated funding of obligations to LEAs 
for purposes of complying with proposed Sec. Sec.  300.162 and 300.163.

State Advisory Panel

    Proposed Sec.  300.167, regarding State advisory panels, would 
incorporate the provisions in section 612(a)(21)(A) of the Act and 
would remove from current Sec.  300.650, language regarding information 
on file with the Secretary. The proposed regulation also would remove 
the provision from current Sec.  300.650 permitting modification of 
existing advisory panels to be consistent with section 612(a)(21)(A) of 
the Act.
    Proposed Sec.  300.168, regarding the membership of State advisory 
panels, generally would retain the current provisions in Sec.  300.651. 
In addition, proposed Sec.  300.168(a)(5) and (10), would incorporate 
the statutory references to officials who carry out activities under 
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, 
42 U.S.C. 11431 et seq., and a representative from the State child 
welfare agency responsible for foster care, respectively. Consistent 
with the Act, proposed Sec.  300.168(b) would include a provision in 
the special rule that clarifies that for panel membership a majority of 
the members of the panel must be individuals with disabilities or 
parents of children with disabilities (ages birth through 26).
    Proposed Sec.  300.169, regarding duties of the advisory panel, 
generally would retain the current provisions of Sec.  300.652, except 
that the current language in Sec.  300.652(b), regarding advising on 
eligible students with disabilities in adult prisons, would be removed. 
Given the breadth of its statutory responsibilities, nonstatutory 
mandates on the State advisory panels would be removed.
    To provide greater flexibility for States in the operations of 
advisory panels, the current provision in Sec.  300.653, regarding 
procedures of the advisory panel, would be removed.

Other Provisions Required for State Eligibility

    Proposed Sec.  300.170, regarding suspension and expulsion rates, 
would retain most of the current provisions in Sec.  300.146, but would 
remove the language that the States have information on file with the 
Secretary, consistent with statutory changes on State submission of 
information. In addition, consistent with section 612(a)(22) of the 
Act, proposed Sec.  300.170(b) would replace, from the current Sec.  
300.146(b), ``behavioral interventions'' with ``positive behavioral 
interventions and supports.''
    Proposed Sec.  300.171, regarding the annual description of the use 
of Part B funds, would clarify the current Sec.  300.156(a)(1) that 
addresses the amounts retained for State administration and State-level 
activities, generally would retain the current provisions in Sec.  
300.156(a)(2) and (b), and would remove the current provision in Sec.  
300.156(c) regarding percentages distributed to LEAs since this 
information does not assist the Department in determining whether an 
SEA is complying with Part B of the Act in this regard. Proposed Sec.  
300.171 also would add a new paragraph (c) to clarify that, based on 
section 611(g)(2) of the statute, the provisions of this section do not 
apply to the Virgin Islands, Guam, American Samoa, the Commonwealth of 
the Northern Mariana Islands, and the freely associated States.
    Proposed Sec.  300.172, regarding access to instructional 
materials, would incorporate the new language in section 612(a)(23) of 
the Act regarding the timely provision of instructional materials to 
blind persons or other persons with print disabilities. Proposed Sec.  
300.172 uses ``persons'' to conform to the language in the Act. 
However, in the context of this regulatory provision, ``persons'' means 
``children.'' Proposed Sec.  300.172(a) would repeat the requirement 
from section 612(a)(23)(A) of the Act that the State must adopt the 
National Instructional Materials Accessibility Standard (NIMAS) in a 
timely manner after its publication in the Federal Register by the 
Department. The NIMAS will be the subject of a separate rulemaking 
process. In that proposed rulemaking document, we will propose to add 
the NIMAS to part 300 as an appendix.
    Proposed Sec.  300.172(b) would incorporate the provision in 
section 612(a)(23)(B) of the Act that a State is not required to 
coordinate with the National Instructional Materials Accessibility 
Center (NIMAC) and the requirements that apply if an SEA chooses not to 
coordinate with the NIMAC. Proposed Sec.  300.172(b)(3) would provide 
that nothing in this section would relieve an SEA of its responsibility 
to ensure that children with disabilities who need instructional 
materials in accessible formats, but who do not fall within the 
category of children for whom the SEA may receive assistance from 
NIMAC, receive those instructional materials in a timely manner. Timely 
access to appropriate and accessible instructional materials is an 
inherent component of public agencies' obligations under the Act to 
ensure that FAPE is available for children with disabilities and that 
they participate in the general education curriculum as specified in 
their IEPs. The provisions in section 612(a)(23) of the Act will assist 
SEAs in carrying out that responsibility for most children with 
disabilities who need accessible instructional materials. Section 
674(e)(3)(A) of the Act limits the authority of the NIMAC to provide 
assistance to SEAs and LEAs in acquiring instructional materials for 
children who are blind, have visual disabilities, are unable to read or 
use standard printed materials because of physical limitations, and 
children who have reading disabilities that result from organic 
dysfunction, as provided for in 36 CFR Sec.  701.10(b). Clearly, SEAs 
and LEAs that choose to use the services of the NIMAC will be able to 
assist blind persons or other persons with print disabilities who need 
accessible instructional materials through this mechanism. However, 
SEAs and LEAs still have an obligation to provide accessible 
instructional materials in a timely manner to other children with 
disabilities, who also may need accessible materials even though SEAs

[[Page 35794]]

and LEAs may not receive assistance for these children from NIMAC.
    Proposed paragraph Sec.  .172(c) would incorporate the provision in 
section 612(a)(23)(C) of the Act regarding preparation and delivery of 
files if an SEA chooses to coordinate with the NIMAC.
    In accordance with section 612(a)(23)(D) of the Act, Sec.  
300.172(d) would require an SEA, to the maximum extent possible, to 
collaborate with the State agency responsible for assistive technology 
programs. Proposed Sec.  300.172(e) contains, in accordance with 
section 612(a)(23)(E) of the Act, definitions of blind persons or other 
persons with print disabilities, NIMAC, NIMAS, and specialized formats.
    Proposed Sec.  300.173, regarding State policies and procedures 
designed to prevent inappropriate overidentification and 
disproportionality, would incorporate the new provision in section 
612(a)(24) of the Act. This proposed regulation would require the State 
to have in effect, consistent with section 618(d) of the Act, policies 
and procedures to prevent the inappropriate overidentification or 
disproportionate representation by race and ethnicity of children as 
children with disabilities, including children with disabilities with a 
particular impairment.
    Proposed Sec.  300.174 would incorporate the new provision in 
section 612(a)(25) of the Act and would prohibit State and LEA 
personnel from requiring parents to obtain prescriptions for controlled 
substances for a child as a condition of the child's school attendance, 
the child's receipt of a Part B evaluation, or the child's receipt of 
services. Proposed paragraph Sec.  300.174(b) would contain the 
statutory rule of construction in section 612(a)(25)(B) of the Act and 
would clarify that this provision does not create a Federal prohibition 
against teachers and other school personnel consulting or sharing with 
parents their observations on the student's functional or academic 
performance, and behavior in the classroom or school, or the child's 
possible need for an initial evaluation for special education and 
related services.
    Proposed Sec.  300.175, regarding the SEA as provider of FAPE or 
direct services, generally would retain the current provisions in Sec.  
300.147. The proposed regulation would remove the provision that States 
must have information on file with the Secretary demonstrating that 
they meet these requirements, consistent with statutory changes 
discussed previously.
    Consistent with the statutory changes, proposed Sec.  300.176, 
regarding exceptions for prior State plans and modifications to the 
plans, generally would combine and retain the current provisions in 
Sec. Sec.  300.111 and 300.112, with some minor changes. The date in 
proposed Sec.  300.176(a) would be changed to December 3, 2004, the 
date on which the Act was signed into law. Consistent with the statute, 
proposed Sec.  300.176(b)(1) would revise the current language from 
``State decides are necessary'' to ``State determines necessary.'' 
Consistent with the Act, proposed Sec.  300.176(b)(2) would replace 
references to ``policies and procedures'' with ``application'' and 
``original'' State plan. Consistent with the Act, proposed Sec.  
300.176(c)(1) would reference December 3, 2004, the date on which the 
Act was signed into law.

Department Procedures

    Proposed Sec.  300.178, regarding the Secretary's determination of 
State eligibility to receive a grant, would retain the current 
requirements in Sec. Sec.  300.113(a) and 300.580.
    Proposed Sec.  300.179, regarding notice and hearing before 
determining a State is not eligible to receive a grant, would retain 
the current requirements in Sec. Sec.  300.113(b) and 300.581.
    Proposed Sec.  300.180, regarding the hearing official or panel, 
would retain the current requirements in Sec.  300.582.
    Proposed Sec.  300.181, regarding the hearing procedures, would 
retain the current requirements in Sec.  300.583.
    Proposed Sec.  300.182, regarding the initial and final hearing 
decisions, would retain the current requirements in Sec.  300.584 
except proposed Sec.  300.182(h) would be revised to clarify that the 
Secretary rejects or modifies the initial decision of the Hearing 
Official or Hearing Panel if the Secretary finds that it is clearly 
erroneous.
    Proposed Sec.  300.183, regarding filing requirements, would retain 
the current requirements in Sec.  300.585.
    Proposed Sec.  300.184, regarding judicial review, would retain the 
current requirements in Sec.  300.586.
    Proposed Sec.  300.186, regarding assistance under other Federal 
programs, would incorporate the provisions in section 612(e) of the 
Act. Proposed Sec.  300.186 would clarify the current requirements in 
Sec.  300.601, regarding the relation of Part B to assistance under 
other Federal programs, and would continue to provide that Part B of 
the Act may not be construed to permit a State to reduce or alter 
eligibility for medical or other assistance for children with 
disabilities under titles V and IX of the Social Security Act, but 
would reference ``with respect to the provision of FAPE for children 
with disabilities'' instead of ``services that are part of FAPE.''

By-pass for Children in Private Schools

    The proposed regulations regarding by-pass for children in private 
schools would incorporate changes in section 612(f) of the Act and 
would represent the first amendments to these regulations since they 
were adopted in 1984. Because the statutory changes related to the 
participation of parentally-placed private school children with 
disabilities should make it more likely that these procedures will be 
implemented, these proposed revisions would align the by-pass 
provisions from Part B of the Act with the general by-pass procedures 
in the Department's general administrative regulations in 34 CFR 76.670 
through 76.677 that apply to other Department programs, including 
programs under titles I and IX of the ESEA. This alignment should help 
to ensure consistent implementation of the by-pass provisions 
throughout the Department.
    Proposed Sec.  300.190, regarding the general by-pass provision, 
would revise the current requirements in Sec.  300.480. Consistent with 
changes in section 612(f)(1) of the Act, the proposed regulation would 
retain the current authority for a by-pass and would add additional 
authority in cases where the Secretary determines that an SEA, LEA, or 
other entity has substantially failed or is unwilling to provide for 
equitable participation. The proposed regulation generally would retain 
the current provision in Sec.  300.480(b) regarding waiver of the 
requirements in these proposed regulations governing parentally-placed 
private school children with disabilities.
    Proposed Sec.  300.191, regarding services under a by-pass, 
generally would retain the current provisions in Sec.  300.481, but 
with some exceptions. Proposed Sec.  300.191(a)(1) would replace ``The 
prohibition'' with ``Any prohibition'' and would add ``and'' at the end 
of Sec.  300.191(a)(1). The current provision in Sec.  300.481(a)(3), 
regarding policies and procedures, would be removed consistent with 
other burden reduction changes in these proposed regulations. Proposed 
Sec.  300.191(a) would add ``and, as appropriate, LEA or other public 
agency officials'' and paragraphs (b) and (c)(1) of proposed Sec.  
300.191 would add ``LEA or other public agency.'' These changes are 
necessary to ensure effective implementation of the by-pass provision 
within an affected State because, in general, a by-pass would be 
implemented only in a specific LEA or

[[Page 35795]]

other public agency within the State and not statewide. Thus, the 
change in proposed Sec.  300.191(a) would ensure that the Secretary 
also consults with appropriate agency officials in any affected LEA or 
public agency within the State.
    Proposed Sec.  300.191(c)(1), regarding the calculation of the 
amount per child that is to be paid to providers, would revise the 
current provision in Sec.  300.481(c)(1) to reflect the provision in 
section 612(f)(2)(A) of the Act.
    Proposed Sec. Sec.  300.192 and 300.193, regarding notice of intent 
to implement a by-pass and request to show cause, would retain the 
current provisions in Sec. Sec.  300.482 and 300.483, but would add 
``LEA or other public agency'' for consistency with statutory language.
    Proposed Sec.  300.194, regarding the show cause hearing, would 
retain the current provisions in Sec.  300.484 and would add language 
to address statutory changes and align the proposed regulation with the 
by-pass regulations in 34 CFR 76.673 and 76.674 that apply to other 
Department programs. Proposed Sec.  300.194(a) would add ``LEA or other 
public agency'' to make the provisions consistent with language in 
section 612(f) of the Act. Proposed Sec.  300.194(a)(3) is a new 
provision that would provide an opportunity for an SEA, LEA, or other 
public agency and representatives of private schools to be represented 
by legal counsel and to submit oral or written evidence and arguments. 
Proposed Sec.  300.194(d) would incorporate the by-pass provision in 34 
CFR 76.763(b), and would specify that the designee conducting the 
hearing has no authority to require or conduct discovery. Proposed 
Sec.  300.194(g) would incorporate the by-pass provision in 34 CFR 
76.674(b), and would specify that within 10 days after the hearing, the 
designee indicates that a decision will be issued on the basis of the 
existing record or requests further information from one or more of the 
parties to the hearing.
    Proposed Sec.  300.195, regarding the show cause hearing decision, 
would retain the current provisions in Sec.  300.485 and add language 
to address statutory changes and to align the proposed regulation with 
the by-pass regulations in 34 CFR 76.675. Proposed Sec.  300.195(a)(1) 
would incorporate the 120-day time period for closing the record of the 
hearing from the by-pass provision in 34 CFR 76.675(a)(1). Proposed 
Sec.  300.195(b) would replace the 15-day time period to submit 
comments and recommendations on the designee's decision with the 30-day 
time period consistent with 34 CFR 76.675(b). Proposed Sec.  300.195(c) 
would replace ``SEA'' with ``all parties to the show cause hearing'' in 
order to make the provision consistent with language in section 612(f) 
of the Act.
    Proposed Sec. Sec.  300.196 and 300.197, regarding filing 
requirements and judicial review, would retain the current regulations 
in Sec. Sec.  300.486 and 300.487, respectively.
    Proposed Sec.  300.198, regarding continuation of a by-pass, is a 
new provision that would incorporate the continuation of a by-pass 
requirement in 34 CFR 76.677 and would permit continuation of the by-
pass until the Secretary determines that the SEA, LEA, or other public 
agency will meet the requirements for providing services to private 
school children.
    Proposed Sec.  300.199, regarding State administration, would 
incorporate the requirements in section 608 of the Act requiring that 
rulemaking conducted by the State conform to the purposes of Part B of 
the Act, that States minimize the number of rules, regulations, and 
policies to which LEAs and schools are subject to under the Act, and 
identify in writing any rule, regulation, or policy that is State-
imposed and not required under the Act and its implementing 
regulations.

Subpart C--LEA Eligibility

    Proposed Sec.  300.200 would be similar to the current Sec.  
300.180 regarding the conditions of LEA eligibility, but would be 
revised consistent with the change in section 613(a) of the Act to 
require LEAs to provide assurances, rather than demonstrate, to the 
State that they meet the eligibility conditions. Cross-references to 
those eligibility conditions would be updated.
    Proposed Sec.  300.201, regarding consistency with State policies, 
would be essentially the same as the current Sec.  300.220(a), with 
appropriate updating to reflect the structure of these proposed 
regulations. Current Sec.  300.220(b) concerning policies on file with 
the SEA would be removed in light of the statutory change requiring 
only that an LEA provide assurances regarding its policies and 
procedures.
    Proposed Sec.  300.202 would combine the provisions addressed in 
current Sec. Sec.  300.184(c) and 300.185, regarding excess cost 
requirements, and current Sec.  300.230, regarding use of funds, with 
appropriate updating. Current Sec.  300.184(a) would be removed because 
it is duplicative of the requirement in proposed Sec.  300.202(a)(2) 
that Part B funds must be used only to pay the excess costs of special 
education and related services to children with disabilities. The 
definition of excess costs in the current Sec.  300.184(b) would be 
moved to proposed Sec.  300.16 of subpart A of these proposed 
regulations.
    Proposed Sec.  300.203 would incorporate current Sec.  300.231 on 
LEA maintenance of effort, with appropriate updating to reflect the 
structure of these proposed regulations. The standard for determining 
whether an LEA is complying with the LEA maintenance of effort 
requirement would be in proposed Sec.  300.203(b) and would be 
substantively the same as current Sec.  300.231(c). The language in 
current Sec.  300.231(b) would be removed, based on the statutory 
change requiring LEAs to provide assurances in their applications to 
the State, rather than information that demonstrates their compliance.
    Proposed Sec.  300.204 would replace current Sec.  300.232, 
regarding the exceptions to the LEA maintenance of effort provision, 
with language that more closely reflects the language in section 
613(a)(2)(B) of the Act and clarifies the conditions under which the 
LEA may reduce the level of expenditures under Part B of the Act below 
the level of expenditures for the preceding year. As a result, we would 
remove the provisions in the current Sec.  300.232(a) that limit the 
circumstances under which LEAs may reduce expenditures as a result of 
the voluntary departure of special education personnel only to 
situations in which those departing personnel are replaced with 
qualified, lower-salaried staff. In addition, the requirements that the 
voluntary departures be in conformity with existing board policies, 
collective bargaining agreements, and applicable State statutes would 
be removed. These changes would reduce regulatory burden on school 
districts and provide increased flexibility in funding decisions. 
However, the basic requirement that LEAs must ensure the provision of 
FAPE to eligible children, regardless of the costs, would remain the 
same.
    Proposed Sec.  300.204(e) would add a condition based on section 
611(e)(3) of the Act, regarding the assumption of costs by the high 
cost fund, under which an LEA may reduce its level of expenditures. 
Proposed Sec.  300.204(e) is needed because LEAs should not be required 
to maintain a level of fiscal effort based on costs that are assumed by 
the SEA's high cost fund.
    Section 613(a)(2)(C)(i) of the Act was substantially revised to 
provide an adjustment to local fiscal effort in certain years in place 
of a provision in the prior law that permitted LEAs to use a portion of 
the Federal funds they received as local funds for special education. 
As a result, we would remove the current Sec.  300.233, which

[[Page 35796]]

was based on the prior statutory language, and replace it with proposed 
Sec.  300.205, which is based on the revised statute. Proposed Sec.  
300.205 would add an exception that, if an SEA exercises its authority 
under Sec.  300.230(a), LEAs in the State may not reduce local effort 
under Sec.  300.205 by more than the reduction in the State funds they 
receive. Section 300.230 only applies if an SEA pays or reimburses all 
LEAs in the State 100 percent of the non-Federal share of the costs of 
special education and related services.
    Under proposed Sec.  300.205, in years when the LEA receives an 
allocation of formula funds that exceeds the amount it received in the 
prior year, the LEA would be permitted to reduce the level of its local 
maintenance of effort amount by not more than 50 percent of the 
increase in its section 611 allocation. The LEA would then be required 
to use local funds equal to the reduction to carry out activities 
authorized under the ESEA, as explained in proposed Sec.  300.205(b). 
In subsequent years, an LEA that reduced local fiscal effort in 
accordance with proposed Sec.  300.205(a) would be required to meet 
this lower fiscal effort amount, unless it could again reduce local 
fiscal effort based on proposed Sec.  300.205. Proposed Sec.  
300.205(c) would describe circumstances under which the SEA may 
prohibit an LEA from reducing the level of local expenditure. Proposed 
Sec.  300.205(d) would implement the provision in section 
613(a)(2)(C)(iv) of the Act that provides that the amount of funds 
expended for early intervening services will count toward the maximum 
amount by which an LEA may reduce local maintenance of effort.
    LEAs wanting to exercise the authority in section 613(a)(2)(C)(iv) 
of the Act in conjunction with the authority to use not more than 15 
percent of the LEA's total grant for early intervening services under 
proposed Sec.  300.226 should use caution, however, because as noted in 
proposed Sec. Sec.  300.205(a) and (d), and 300.226(a), the operation 
of the local maintenance of effort reduction provision and the 
authority to use Part B funds for early intervening services under 
section 613(f)(1) of the Act and proposed Sec.  300.226(a) would be 
interconnected. The decisions that an LEA makes about the amount of 
funds that it would use for one purpose would affect the amount that it 
may use for the other. The following examples illustrate how these 
provisions affect one another:

    Example 1: In this example, the amount that is 15 percent of the 
LEA's total grant (see proposed Sec.  300.226(a)), which is the 
maximum amount that the LEA may use for early intervening services 
(EIS), is greater than the amount that may be used for local 
maintenance of effort (MOE) reduction (50 percent of the increase in 
the LEA's grant from the prior year's grant) (see proposed Sec.  
300.205(a)).

    Prior Year's Allocation: $900,000.
    Current Year's Allocation: $1,000,000.
    Increase: $100,000.
    Maximum Available for MOE Reduction: $50,000.
    Maximum Available for EIS: $150,000.
     If the LEA chooses to set aside $150,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $150,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $100,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $100,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $50,000 for EIS, it may 
not reduce its MOE (MOE maximum $50,000 less $50,000 for EIS means $0 
can be used for MOE).
     If the LEA chooses to set aside $30,000 for EIS, it may 
reduce its MOE by $20,000 (MOE maximum $50,000 less $30,000 for EIS 
means $20,000 can be used for MOE).
     If the LEA chooses to set aside $0 for EIS, it may reduce 
its MOE by $50,000 (MOE maximum $50,000 less $0 for EIS means $50,000 
can be used for MOE).

    Example 2: In this example, the amount that is 15 percent of the 
LEA's total grant (see proposed Sec.  300.226(a)), which is the 
maximum amount that the LEA may use for EIS, is less than the amount 
that may be used for MOE reduction (50 percent of the increase in 
the LEA's grant from the prior year's grant) (see proposed Sec.  
300.205(a)).

    Prior Year's Allocation: $1,000,000.
    Current Year's Allocation: $2,000,000.
    Increase: $1,000,000.
    Maximum Available for MOE Reduction: $500,000.
    Maximum Available for EIS: $300,000.
     If the LEA chooses to use no funds for MOE, it may set 
aside $300,000 for EIS (EIS maximum $300,000 less $0 means $300,000 for 
EIS).
     If the LEA chooses to use $100,000 for MOE, it may set 
aside $200,000 for EIS (EIS maximum $300,000 less $100,000 means 
$200,000 for EIS).
     If the LEA chooses to use $150,000 for MOE, it may set 
aside $150,000 for EIS (EIS maximum $300,000 less $150,000 means 
$150,000 for EIS).
     If the LEA chooses to use $300,000 for MOE, it may not set 
aside anything for EIS (EIS maximum $300,000 less $300,000 means $0 for 
EIS).
     If the LEA chooses to use $500,000 for MOE, it may not set 
aside anything for EIS (EIS maximum $300,000 less $500,000 means $0 for 
EIS).
    With regard to the new statutory provision on which proposed Sec.  
300.205 is based, note 122 of the Conf. Rpt. states:

    The Conferees intend for school districts to have meaningful 
flexibility to use local funds that are generated from their 
reduction in the maintenance of effort. The Conferees do not intend 
that school districts have to use these local funds for programs 
exclusively authorized under the Elementary and Secondary Education 
Act of 1965. The conferees recognize that most state and local 
education programs are consistent with the broad flexibility that is 
provided in section 5131 of the Elementary and Secondary Education 
Act of 1965.
    The Conferees intend that in any fiscal year in which the local 
educational agency or State educational agency reduces expenditures 
pursuant to section 613(a)(2)(C) or section 613(j), the reduced 
level of effort shall be considered the new base for purposes of 
determining the required level of fiscal effort for the succeeding 
year.

    In order to effectuate the flexibility in the use of local funds 
suggested by this language, proposed Sec.  300.205(b) would provide 
that the local funds equal to the reduction in local expenditures for 
special education and related services authorized by proposed Sec.  
300.205(a) may be used to carry out activities that could be supported 
with funds under the ESEA regardless of whether the LEA is actually 
using funds under the ESEA for those activities. An LEA can demonstrate 
that it meets the requirements in proposed Sec.  300.205(b) by showing 
that it has expended, for elementary and secondary education, an 
increased amount of local funds equal to the reduction under proposed 
Sec.  300.205(a) when compared to local expenditures for elementary and 
secondary education for the prior year.
    Proposed Sec.  300.206, regarding schoolwide programs under title I 
of the ESEA, would be essentially the same as the current Sec.  
300.234, with appropriate updating.
    Proposed Sec.  300.207, regarding personnel development, would 
reflect the new requirement under section 613(a)(3) of the Act that 
LEAs ensure that all needed personnel be appropriately and adequately 
prepared subject to the requirements that apply to SEAs regarding 
personnel qualifications and requirements under section 2122 of the 
ESEA.
    Current Sec.  300.221 on implementation of the State's 
comprehensive system of personnel development (CSPD) would be removed, 
as section 612(a) of the Act

[[Page 35797]]

no longer requires that a State develop and implement a CSPD.
    Proposed Sec.  300.208 on permissive uses of LEA funds would revise 
the current Sec.  300.235 in the following ways: Paragraph (a)(2) from 
the current Sec.  300.235 would be removed, as the authority to use 
Part B funds to develop and implement an integrated and coordinated 
services system was removed from the statute. Paragraphs (a)(2) and (3) 
of proposed Sec.  300.208 would incorporate the new statutory 
provisions permitting LEAs to use Part B funds for early intervening 
services and to establish and implement cost or risk sharing 
arrangements for high cost special education and related services, 
consistent with section 613(a)(4)(A)(ii) and (iii) of the Act. 
Paragraph (b) of proposed Sec.  300.208 would incorporate the new 
statutory authority for LEAs to use Part B funds for administrative 
case management services related to serving children with disabilities 
in section 613(a)(4)(B) of the Act. Current Sec.  300.235(b) would be 
removed because that information would be conveyed by the introductory 
material in proposed Sec.  300.208(a), with the cross-references 
updated.
    Proposed Sec.  300.209 would revise current Sec.  300.241, 
concerning treatment of charter schools and their students (based on 
changes in section 613(a)(5) of the Act), and would also incorporate 
current Sec.  300.312, regarding children with disabilities in public 
charter schools. Paragraph (a) of proposed Sec.  300.209 would include 
current Sec.  300.312(a), to clarify that children with disabilities 
who attend public charter schools retain all rights afforded under this 
part. Proposed Sec.  300.209(b) would include the provisions from 
section 613(a)(5) of the Act to clarify (in paragraph (b)(1)(i)) that, 
in providing services to children with disabilities attending charter 
schools that are public schools of the LEA, the LEA must provide 
supplementary and related services on site at the charter school to the 
same extent as it does at its other public schools. Paragraph 
(b)(1)(ii) of proposed Sec.  300.209 would specify that an LEA must 
provide funds under Part B of the Act to the LEA's charter schools on 
the same basis as it provides funds to its other schools, including 
proportional distribution based on the relative enrollment of children 
with disabilities, and that it must provide those funds at the same 
time as the LEA distributes funds to its other public schools.
    Proposed Sec.  300.209(b)(2) would include current Sec.  
300.312(c), to provide that if the public charter school is a school of 
an LEA that receives funding under Sec.  300.705 and includes other 
public schools, the LEA is responsible for ensuring that the 
requirements of this part are met (unless State law assigns that 
responsibility to some other entity), and must meet the requirements of 
proposed paragraph (b)(1) of this section.
    Proposed Sec.  300.209(c) would add current Sec.  300.312(b) 
(regarding public charter schools that are LEAs), to specify that a 
charter school covered by this paragraph is responsible for ensuring 
that the requirements of this part are met, unless State law assigns 
that responsibility to some other entity.
    Proposed Sec.  300.209(d) would include current Sec.  300.312(d). 
Paragraph (d)(1) of proposed Sec.  300.209 would provide that if a 
public charter school is not an LEA receiving funding under this part 
or a school that is part of an LEA receiving funding, the SEA is 
responsible for ensuring that the requirements of this part are met. 
Proposed Sec.  300.209(d)(2) would clarify that a State would not be 
precluded from assigning that responsibility to another entity, but the 
SEA must maintain the ultimate responsibility for ensuring compliance 
with this part.
    Proposed Sec.  300.210 would incorporate the new requirement in 
section 613(a)(6) of the Act that not later than two years after the 
date of enactment of the Individuals with Disabilities Education 
Improvement Act of 2004 (that is, not later than December 3, 2006), an 
LEA, when purchasing print instructional materials, must acquire those 
materials in the same manner as an SEA under proposed Sec.  300.172. 
Proposed Sec.  300.210(b)(1) also would make clear that an LEA would 
not be required to coordinate with the NIMAC, and proposed Sec.  
300.210(b)(2) would explain that if it chooses not to so coordinate, 
the LEA would be required to provide an assurance to the SEA that the 
LEA will provide instructional materials to blind and other print 
disabled persons in a timely manner. For the reasons explained 
elsewhere in this preamble under the discussion of proposed Sec.  
300.172, we would add paragraph (b)(3) to proposed Sec.  300.210 
specifying that nothing in proposed Sec.  300.210 would relieve an LEA 
of its obligations to ensure that children with disabilities who need 
instructional materials in accessible formats receive those 
instructional materials in a timely manner, even if it could not obtain 
assistance from NIMAC in doing so.
    Proposed Sec.  300.211 on LEAs providing information to the SEA to 
enable the SEA to carry out its duties under Part B of the Act would be 
essentially the same as the current Sec.  300.240(a), but would be 
appropriately updated. The current Sec.  300.240(b) regarding 
assurances the LEA would have to file with the SEA would be removed as 
unnecessary because that condition would be covered by proposed Sec.  
300.200.
    Proposed Sec.  300.212 on public availability of LEA eligibility 
information would be essentially the same as current Sec.  300.242, but 
with appropriate updating.
    Proposed Sec.  300.213 would reflect the new provision in section 
613(a)(9) of the Act regarding LEA cooperation with the Secretary's 
efforts under section 1308 of the ESEA to ensure the linkage of health 
and educational information pertaining to migratory children among the 
States.
    Proposed Sec.  300.220 on an exception for prior local plans would 
essentially consolidate the requirements in current Sec. Sec.  300.181 
and 300.182. In proposed Sec.  300.220, we use the term ``policies and 
procedures'' in place of the term ``application,'' which is used in 
section 613(b)(2) of the Act because we use the term policies and 
procedures in the current regulation. The statutory authority for 
proposed Sec.  300.220 is not new, and was not changed from prior law.
    Proposed Sec.  300.221 on notification of the LEA or State agency 
if determined ineligible, proposed Sec.  300.222 on LEA and State 
agency compliance determinations, proposed Sec.  300.223 on joint 
establishment of eligibility, and proposed Sec.  300.224 on the 
requirements for establishing joint eligibility are essentially the 
same as current Sec. Sec.  300.181, 300.196, 300.197, 300.190 and 
300.192, respectively, but with appropriate updating.
    The requirements in current Sec.  300.244 regarding permissible use 
of a portion of the LEA's Part B funds on coordinated services systems 
and current Sec. Sec.  300.245 through 300.250 regarding LEA use of 
Part B funds in school based improvement plans would be removed, as the 
statutory authority for those uses has been eliminated.
    Proposed Sec.  300.226 would implement the new authority under 
section 613(f) of the Act, which provides that an LEA may use not more 
than 15 percent of the Part B funds it receives for a fiscal year, less 
certain reductions, if any, to develop and implement coordinated, early 
intervening services for children who have not been identified as 
eligible under the Act but who need additional academic and behavioral 
support to succeed in a general education environment. Paragraph (c) of 
proposed Sec.  300.226 would clarify that nothing in proposed Sec.  
300.226 is construed to either limit or create a right to FAPE

[[Page 35798]]

under Part B of the Act or to delay appropriate evaluation of a child 
suspected of having a disability. We have included the language 
regarding evaluation of children suspected of having a disability in 
proposed Sec.  300.226(c) because we believe it is critical to ensure 
that any child suspected of being a child with a disability is 
evaluated in a timely manner and without any undue or unnecessary 
delay. Proposed paragraph Sec.  300.226(d) would reflect the reporting 
requirement in section 613(f)(4) of the Act. The term ``children'' 
would be used in this provision, in lieu of the statutory term 
``students'' to be consistent throughout part 300. Proposed Sec.  
300.226(e) would implement the provision in section 613(f)(5) of the 
Act that funds to provide early intervening services may be used in 
conjunction with ESEA funds for early intervening services aligned with 
ESEA activities under certain circumstances.
    Proposed Sec.  300.227 would incorporate provisions from the 
regulations in current Sec. Sec.  300.360 and 300.361 on direct 
services by the SEA when an LEA or State agency has not demonstrated 
its eligibility or has failed to apply for funds, is unable to 
establish and maintain programs of FAPE consistent with Part B of the 
Act, is unable or unwilling to be consolidated with one or more LEAs in 
order to establish and maintain programs of FAPE, or has one or more 
children best served by a regional or State program or service delivery 
system. Proposed Sec.  300.227(a)(1) would include the phrase ``or 
elected not to apply for its Part B allotment'' because there could be 
situations in which an LEA chooses not to accept funds under Part B of 
the Act. Finally, proposed Sec.  300.227 would reflect editorial 
changes made to eliminate repetition.
    Proposed Sec.  300.228 on State agency eligibility would be 
essentially the same as current Sec.  300.194, but with the appropriate 
updating of cross-references.
    Proposed Sec.  300.229 regarding disciplinary information would be 
the same as current Sec.  300.576.
    Proposed Sec.  300.230 would incorporate the new provision from 
section 613(i) of the Act on exceptions to SEA maintenance of effort 
requirements for a State for which the amount of the State's allocation 
under section 611 of the Act exceeds the amount available to the State 
for the preceding fiscal year and the State pays or reimburses all LEAs 
in the State, from State revenues, 100 percent of the non-Federal share 
of the costs of special education. Under these conditions, the SEA 
would be permitted to reduce its level of expenditures from State 
sources for the education of children with disabilities by not more 
than 50 percent of the amount of the increase in its section 611 
allocation from the prior fiscal year, unless prohibited from doing so 
by the Secretary, as provided in proposed Sec.  300.230(b). Paragraph 
(e)(2) of proposed Sec.  300.230, which is not in section 613(i) of the 
Act, would specify that if an SEA used its authority to reduce its 
effort under proposed Sec.  300.230, LEAs in the State would not be 
able to reduce local effort under proposed Sec.  300.205 by more than 
the reduction in State funds that they receive. Proposed Sec.  
300.230(e)(2) is necessary to ensure that SEAs and LEAs are not 
independently calculating the reduction in maintenance of effort 
permitted when a State is providing 100 percent of the non-Federal 
share of the costs of special education and related services.

Subpart D--Evaluations, Eligibility Determinations, IEPs, and 
Educational Placements

    The provisions in subpart D of these proposed regulations would 
reflect the requirements of section 614 of the Act. As a result, the 
provisions on parental consent and evaluations and reevaluations 
contained in subpart E of current regulations would be moved to subpart 
D of these proposed regulations. Also, the provisions on IEPs contained 
in subpart C of the current regulations would be renumbered, and in 
some cases, have been moved to subpart D of these proposed regulations.

Parental Consent

    Proposed Sec.  300.300 regarding parental consent for initial 
evaluations, reevaluations, and the initial provision of services would 
replace Sec.  300.505 of the current regulations and would incorporate 
new requirements regarding parental consent contained in section 
614(a)(1)(D) of the Act. Some of the provisions contained in proposed 
Sec.  300.300 would be similar to those contained in Sec.  300.505 of 
the current regulations, but with some differences.
    Proposed Sec.  300.300(a)(1)(i) would incorporate section 
614(a)(1)(D)(i)(I) of the Act, and would provide that with the 
exception of children who are wards of the State, the public agency 
proposing to conduct the evaluation must obtain informed parental 
consent before conducting an initial evaluation of a child to determine 
if the child qualifies as a child with a disability under the Act.
    Proposed Sec.  300.300(a)(1)(ii) would retain the provision in 
Sec.  300.505(a)(2) of the current regulations that consent for the 
initial evaluation may not be construed as consent for the initial 
provision of special education and related services. The proposed 
regulations would use the term ``initial provision'' rather than the 
statutory term ``receipt'' of special education and related services. 
This would make clear that consent does not need to be sought every 
time a particular service is provided to the child. The proposed 
regulation would continue to refer to consent for the initial provision 
of services, in lieu of using the statutory language, which refers to 
``consent for placement for receipt of special education and related 
services.'' This would be consistent with the revised language in 
section 614(a)(1)(D)(i)(I) of the Act and the Department's position 
that placement refers to the provision of special education services 
rather than as a specific place, such as a specific classroom or 
specific school.
    Proposed Sec.  300.300(a)(2)(i), which would incorporate the new 
requirement in section 614(a)(1)(D)(iii) of the Act regarding informed 
parental consent prior to the initial evaluation for wards of the 
State, would set out the general rule that the public agency must make 
reasonable efforts to obtain informed consent from the parent for an 
initial evaluation if the child is a ward of the State and is not 
residing with the parent. Proposed Sec.  300.300(a)(2)(ii) would 
incorporate the language in section 614(a)(1)(D)(iii)(II) of the Act, 
which identifies the exceptions to this general rule. These include 
when the public agency cannot find the parent, despite reasonable 
efforts to do so, when parental rights have been terminated under State 
law, or when parental rights have been subrogated by a judge in 
accordance with State law, and consent has been given by an individual 
appointed by the judge to represent the child. With regard to this last 
exception, note 146(b) of the Conf. Rpt. explains Congressional intent 
that ``* * * in the case of children who are wards of the State, 
consent may be provided by individuals legally responsible for the 
child's welfare or appointed by the judge to protect the rights of the 
child.'' This should ensure that consent for a child who is a ward of 
the State is obtained from an appropriate individual who has the legal 
authority to provide consent.
    Proposed paragraph (a)(3) of Sec.  300.300 would replace Sec.  
300.505(b) of the current regulations and would reflect language in 
section 614(a)(1)(D)(ii) of the Act regarding absence of consent. As 
was true under Sec.  300.505(b) of the current regulations, the 
proposed

[[Page 35799]]

regulations would provide that if a parent does not provide consent or 
if the parent fails to respond to a request for consent, the public 
agency may pursue the initial evaluation of a child by using the 
procedural safeguards in subpart E of these proposed regulations, 
including applicable mediation and due process procedures, except to 
the extent inconsistent with State law. However, consistent with the 
Department's position that public agencies should use their consent 
override procedures only in rare circumstances, proposed Sec.  
300.300(a)(3) would clarify that a public agency is not required to 
pursue an initial evaluation of a child suspected of having a 
disability if the parent does not provide consent for the initial 
evaluation. States and LEAs do not violate their obligation to locate, 
identify, and evaluate children suspected of being children with 
disabilities under the Act if they decline to pursue an evaluation to 
which a parent has failed to consent.
    In addition, paragraph (a)(3) of this section would permit consent 
override only for children who are enrolled in public school or seeking 
to be enrolled in public school. For children who are home schooled or 
placed in a private school by the parents at their own expense, consent 
override is not authorized. The district can always use the override 
procedures to evaluate the child at some future time should the parents 
choose to return their child to public school.
    Of course, public agencies do have an obligation to actively seek 
parental consent to evaluate private school (including home school, if 
considered a private school under State law) children who are suspected 
of being children with disabilities under the Act. However, if the 
parents of a private school child withhold consent for an initial 
evaluation, the public agency would have no authority to conduct an 
evaluation under proposed Sec.  300.131 and no obligation to consider 
that child as eligible for services under proposed Sec. Sec.  300.132 
through 300.144.
    Proposed Sec.  300.300(b)(1), which is essentially the same as, and 
would replace, Sec.  300.505(a)(1)(ii) of the current regulations, 
would incorporate the provision in section 614(a)(1)(D)(i)(II) of the 
Act specifying that the public agency responsible for making FAPE 
available to the child must seek to obtain informed parental consent 
before the initial provision of special education and related services.
    Proposed Sec.  300.300(b)(2) would incorporate the new requirement 
added by section 614(a)(1)(D)(ii)(II) of the Act that prohibits a 
public agency from providing special education and related services by 
using the procedural safeguards in subpart E of these proposed 
regulations if the parents fail to respond or do not provide consent to 
services. We believe that the Act gives parents the ultimate choice as 
to whether their child should receive special education and related 
services, and this proposed regulation would reflect this statutory 
interpretation.
    Proposed Sec.  300.300(b)(3) would incorporate the new provision in 
section 614(a)(1)(D)(ii)(III) of the Act, that relieves public agencies 
of any potential liability for failure to convene an IEP meeting or for 
failure to provide the special education and related services for which 
consent was requested but withheld.
    Proposed Sec.  300.300(c)(1) would reflect the requirement in 
current Sec.  300.505(b)(1)(i) that parental consent be obtained before 
a reevaluation.
    Proposed Sec.  300.300(c)(2) would incorporate the provision in 
Sec.  300.505(c)(1) of the current regulations that informed parental 
consent need not be obtained for a reevaluation if the public agency 
can demonstrate that it has taken reasonable measures to obtain that 
consent and the parent failed to respond.
    However, in lieu of prescribing ``reasonable measures,'' and to 
reduce regulatory burden, Sec.  300.505(c)(2) of the current 
regulations, which refers to the reasonable measures that public 
agencies must use in this situation, would be removed. As a practical 
matter, because public agencies take seriously their obligation to 
obtain parental consent for a reevaluation because of their ongoing 
obligation to ensure the provision of FAPE to eligible students with 
disabilities, they typically would use a number of informal measures to 
obtain such consent. Eliminating the provision currently in Sec.  
300.505(c)(2) from these proposed regulations should give public 
agencies increased flexibility to use the measures they deem reasonable 
and appropriate.
    Proposed paragraph (d)(1) of Sec.  300.300 is the same as Sec.  
300.505(a)(3) of the current regulations and would provide that public 
agencies are not required to obtain parental consent before reviewing 
the existing data as part of an evaluation or reevaluation, or before 
administering a test or evaluation that is administered to all 
children, unless consent is required of parents of all children. 
Proposed paragraph Sec.  300.300(d)(2) is the same as Sec.  300.505(d) 
of the current regulations, regarding additional State consent 
requirements, and would continue to permit a State to maintain such 
requirements, provided its public agencies establish and implement 
effective procedures to ensure that the failure to provide consent does 
not result in the failure to provide FAPE to a child with a disability. 
Proposed Sec.  300.300(d)(3) would incorporate the provision, in Sec.  
300.505(e) of the current regulations, consistent with the Department's 
longstanding policy that a public agency may not use a parent's refusal 
to consent to one service or activity as a basis for denying the child 
any other service, benefit, or activity of the public agency, except as 
required by Part B of the Act.

Evaluations and Reevaluations

    Most of the provisions contained in subpart E of the current 
regulations governing procedures for evaluation and determination of 
eligibility would be moved to subpart D of the proposed regulations. 
Section 300.530 of the current regulations governing the SEA's 
obligation to ensure that LEAs establish and implement conforming 
evaluation procedures would be removed as unnecessary. It is covered 
elsewhere by proposed Sec.  300.122 governing the SEA's 
responsibilities regarding evaluations.
    Proposed Sec.  300.301(a) would incorporate the requirements in 
Sec.  300.531 of the current regulations that a public agency conduct a 
full and individual initial evaluation before the initial provision of 
special education and related services to a child with a disability. 
The cross-references to the regulations governing the initial 
evaluation would be updated. Proposed paragraph (b) of this section 
would incorporate section 614(a)(1)(B) of the Act and would provide 
that, consistent with the parental consent requirements in proposed 
Sec.  300.300, either a parent or a public agency may initiate a 
request for an initial evaluation to determine if a child is a child 
with a disability. This clarification underscores that a public agency 
may only conduct an evaluation of a child subject to the informed 
consent requirements discussed previously.
    Proposed Sec.  300.301(c)(1) would incorporate the new provision in 
section 614(a)(1)(C)(i)(I) of the Act regarding conducting the initial 
evaluation within 60 days of receiving parental consent for the 
evaluation, or within another timeframe if the State establishes a 
timeframe for conducting the initial evaluation. Section 300.343(b) of 
the current regulations requires that the public agency ensure, within 
a reasonable period of time following receipt of parental consent, that 
the child is evaluated, and if found eligible, that special education 
and related

[[Page 35800]]

services are made available to the child. The current regulation does 
not specify a timeframe for conducting the initial evaluation following 
receipt of parental consent.
    Proposed Sec.  300.301(c)(2), regarding procedures for the initial 
evaluation, would incorporate the provision in section 
614(a)(1)(C)(i)(I) of the Act as well as portions of Sec.  
300.320(a)(1) and (2) of the current regulations, and would clarify 
that the initial evaluation must consist of procedures to determine 
whether the child is a child with a disability under Sec.  300.8 and to 
determine the child's educational needs. The remainder of Sec.  300.320 
of the current regulations would be removed as these requirements are 
addressed in proposed Sec. Sec.  300.304 through 300.306.
    Proposed Sec.  300.301(d) would incorporate the new provision in 
section 614(a)(1)(C)(ii) of the Act, which provides an exception to the 
timeframe requirement for conducting the initial evaluation following 
receipt of parental consent and specifies when this exception would 
apply. However, for greater clarity, the proposed regulations would 
reorder the statutory language to make clear that the 60-day timeframe 
or a timeframe established by State law is inapplicable to a public 
agency if the child's parent repeatedly refuses to produce the child 
for an evaluation or the child enrolls in a school after the timeframe 
has commenced for the child's previous public agency to have completed 
an evaluation of the child, and the parent and subsequent public agency 
agree to a specific timeframe by which the evaluation must be 
completed. Proposed Sec.  300.301(d)(2)(ii) would clarify, in 
accordance with section 614(a)(1)(C)(ii) of the Act, that this 
exception would apply only if the subsequent public agency is making 
sufficient progress to ensure a prompt completion of the evaluation and 
the parent and the public agency agree to a specific timeframe when the 
evaluation will be completed.
    Proposed Sec.  300.302 would incorporate the new requirement in 
section 614(a)(1)(E) of the Act to clarify that screening for 
instructional purposes by a teacher or specialist to determine 
appropriate instructional strategies for curriculum implementation is 
not considered an evaluation for eligibility for special education and 
related services, and therefore could occur without obtaining informed 
parental consent for the screening.
    Proposed Sec.  300.303, regarding reevaluations, would incorporate 
section 614(a)(2)(A) of the Act, and would supersede Sec.  300.536 of 
the current regulations, which does not reflect the new requirements 
governing the timing and conduct of reevaluations. Proposed Sec.  
300.303(a) would require a public agency to ensure that a reevaluation 
is conducted in accordance with proposed Sec. Sec.  300.304 through 
300.311 if it determines that the educational or related services 
needs, including the need for improved academic achievement and 
functional performance of the child, would warrant a reevaluation, or 
if the child's parent or teacher requests a reevaluation.
    Under the circumstances set forth in the Act and proposed Sec.  
300.303(a), proposed paragraph (b)(1) of this section would provide 
that the reevaluation occur not more than once a year unless the parent 
and the public agency agree otherwise. Proposed Sec.  300.303(b)(2) 
would continue the general requirement for three-year reevaluations 
from current Sec.  300.536(b), except that in accordance with section 
614(a)(2)(B) of the Act, a parent and a public agency could agree that 
a three-year reevaluation is unnecessary.
    Proposed Sec. Sec.  300.304 and 300.305 would incorporate some of 
the evaluation procedures contained in Sec. Sec.  300.532 and 300.533 
of the current regulations, with appropriate updates to reflect 
statutory changes in section 614(b) of the Act. Proposed Sec.  
300.304(a) would incorporate the new requirement in section 614(b)(1) 
of the Act that the public agency provide notice to the parents of a 
child with a disability, in accordance with Sec.  300.503 of these 
proposed regulations, of any evaluation procedures that the agency 
proposes to conduct. (Under proposed Sec.  300.503(b)(3), public 
agencies are required to include in the prior written notice to parents 
a description of each evaluation procedure, test, record, or report the 
agency used as the basis for the proposal or refusal, not the tests the 
agency would be proposing to conduct.)

Evaluation Procedures

    Proposed Sec.  300.304(b)(1) would incorporate the procedures 
governing conduct of evaluations in section 614(b)(2) of the Act. This 
proposed regulation would replace Sec.  300.532(b)(1) and (2) of the 
current regulations and would require that the public agency use a 
variety of assessment tools and strategies, including information 
provided by the parent, to gather relevant functional, developmental, 
and academic information about the child.
    Proposed Sec.  300.304(b)(2) would incorporate the language from 
Sec.  300.532(f) of the current regulations, based on section 
612(a)(6)(B) of the Act, prohibiting the use of a single measure or 
assessment as the sole criterion for determining whether a child is a 
child with a disability or for determining an appropriate educational 
program for the child.
    Proposed Sec.  300.304(b)(3) would replace Sec.  300.532(i) of the 
current regulations and would require, in accordance with section 
614(b)(2)(c) of the Act, that the public agency, in conducting the 
evaluation, use technically sound instruments that may assess the 
relative contribution of cognitive and behavioral factors, in addition 
to developmental factors.
    Proposed Sec.  300.304(c) would address other evaluation procedures 
and would incorporate the requirements of sections 612(a)(6)(B) and 
614(b)(3) of the Act regarding the use of assessments and other 
evaluation materials. Unlike the current regulations, which refer to 
standardized tests, the proposed regulations would refer to assessments 
and other evaluation materials, which is the terminology used in 
section 614(b)(3) of the Act.
    Proposed Sec.  300.304(c)(1)(i) would incorporate the provision in 
section 612(a)(6)(B) of the Act and continue the longstanding 
requirement that procedures used for evaluation and placement of 
children with disabilities not be discriminatory on a racial or 
cultural basis. This proposed regulation would replace Sec.  
300.532(a)(1)(i) of the current regulations, which contains a similar 
requirement.
    In order to provide information and guidance regarding evaluation 
and assessment in one place, proposed Sec.  300.304(c)(1)(ii) would 
incorporate section 614(b)(3)(A)(ii) of the Act, and also would include 
language from the requirement in section 612(a)(6)(B) of the Act 
regarding the form of assessments and other evaluation materials used 
to assess limited English proficient children under the Act. Based on 
additional clarity provided in the statute, the proposed regulation 
would require public agencies to provide and administer assessments in 
the child's native language, including ensuring that the form in which 
the test is provided or administered is most likely to yield accurate 
information on what the child knows and can do academically, 
developmentally, and functionally, unless it is clearly not feasible to 
provide or administer the assessment in this manner. This proposed 
regulation would replace Sec.  300.532(a)(1)(ii) of the current 
regulations, which contains the general standard for assessing limited 
English proficient children, and provides, in accordance with section 
612(a)(6)(B) of the Act, that the child be assessed in his or her 
native language or

[[Page 35801]]

other mode of communication, unless clearly not feasible to do so.
    Proposed Sec.  300.304(c)(1)(iii) through (v) would incorporate the 
requirements of section 614(b)(3)(A)(iii) through (v) of the Act. This 
proposed regulation would replace similar requirements contained in 
300.532(a)(2)(i) and (ii) of the current regulations. Proposed 
paragraph (c)(1)(iii) would reflect new language in section 
614(b)(3)(A)(iii) of the Act, which requires assessments or measures to 
be used for purposes that are valid and reliable. Current Sec.  
300.532(c)(2), which requires that the evaluation report include a 
description of the extent to which the evaluation varied from standard 
conditions, has been removed from these proposed regulations. This is 
standard test administration practice and need not be repeated in the 
regulations.
    Proposed Sec.  300.304(c)(2) would be substantially the same as 
Sec.  300.532(d) of the current regulations and would reflect the 
longstanding regulatory requirement that assessments and other 
evaluation materials be tailored to address individual educational 
needs, rather than merely designed to provide a single general 
intelligence quotient. Proposed Sec.  300.304(c)(3)(v)(C) would replace 
Sec.  300.532(e) of the current regulations and would reflect the 
longstanding regulatory requirement that assessment selection or 
administration ensures that the assessment results accurately reflect 
the child's aptitude or achievement levels, or whatever other factors 
the assessment purports to measure, not the child's impaired sensory, 
manual, or speaking skills, unless the assessment purports to measure 
those skills.
    Proposed Sec.  300.304(c)(4), which would incorporate section 
614(b)(3)(B) of the Act, would require that the child be assessed in 
all areas related to the suspected disability, and would replace Sec.  
300.532(g) of the current regulations. This proposed section would 
incorporate the longstanding requirement that the child be assessed in 
all areas related to the suspected disability including, if 
appropriate: health, vision, hearing, social and emotional status, 
general intelligence, academic performance, communicative status, and 
motor abilities.
    Proposed Sec.  300.304(c)(5) would incorporate the new requirement 
from section 614(b)(3)(D) of the Act that provides for expeditious 
coordination among school districts to better ensure prompt completion 
of full evaluations for children with disabilities who transfer from 
one public agency to another public agency in the same academic year. 
Section 300.532(h) of the current regulations would be reflected in 
proposed Sec.  300.304(c)(6), and would continue to require that the 
evaluation be sufficiently comprehensive to identify all of the child's 
special education and related services needs, whether or not commonly 
linked to the disability category in which the child is classified. 
With regard to this requirement, note 152 of the Conf. Rpt. states:

    Conferees intend the evaluation process for determining 
eligibility of a child under this Act to be a comprehensive process 
that determines whether the child has a disability, and as a result 
of that disability, whether the child has a need for special 
education and related services. As part of the evaluation process, 
conferees expect the multi-disciplinary evaluation team to address 
the educational needs of the child in order to fully inform the 
decisions made by the IEP Team when developing the educational 
components of the child's IEP. Conferees expect the IEP Team to 
independently review any determinations made by the evaluation team, 
and that the IEP Team will utilize the information gathered during 
the evaluation to appropriately inform the development of the IEP 
for the child.

    Thus, proposed Sec.  300.304(c)(6) would emphasize the direct link 
between the evaluation and the IEP processes and should ensure that the 
evaluation is sufficiently comprehensive to inform the development of 
the child's IEP.
    Proposed Sec.  300.304(c)(7), in accordance with section 614(c) of 
the Act, would replace Sec. Sec.  300.532(j) of the current regulations 
and would continue to require that the public agency use assessment 
tools and strategies providing relevant information that directly 
assists persons in determining the educational needs of the child.
    Proposed Sec.  300.305, which addresses additional requirements for 
evaluations and reevaluations, would combine Sec. Sec.  300.533 and 
300.534(c) of the current regulations. Proposed Sec.  300.305(a)(2) 
would include the language in section 614(c)(1)(B)(i) through (iv) of 
the Act regarding determinations about the child's eligibility under 
this part. Proposed paragraphs (b) through (d) of Sec.  300.305 would 
reflect Sec.  300.533 of the current regulations regarding procedures 
for determining whether additional data are needed as part of the 
initial evaluation or the reevaluation, but with minor modifications to 
incorporate section 614(c)(2) of the Act. For example, in accordance 
with section 614(c)(2) of the Act, proposed paragraph (c) of Sec.  
300.305, regarding source of data, would replace Sec.  300.533(c) of 
the current regulations, regarding need for additional data.
    Proposed Sec.  300.305(e), regarding evaluations before change in 
placement, would replace Sec.  300.534(c) of the current regulations, 
regarding the requirement to conduct an evaluation before determining 
that the child is no longer a child with a disability, as well as the 
exception to that requirement for students who graduate from secondary 
school with a regular high school diploma or who exceed age eligibility 
for FAPE under State law. However, proposed paragraph (e)(3) would 
incorporate the new requirement in section 614(c)(5)(B)(ii) of the Act 
that the public agency provide a summary of academic and functional 
performance, including recommendations to assist the student in meeting 
postsecondary goals, for students whose eligibility terminates because 
of graduation with a regular high school diploma or because of 
exceeding the age eligibility for FAPE under State law.
    Proposed Sec.  300.306, regarding determination of eligibility, 
would replace paragraphs (a) and (b) of Sec. Sec.  300.534 and 300.535 
of the current regulations and would incorporate the language in 
section 614(b)(4) and (5) of the Act, which is substantially the same 
as the language in the current regulations. This proposed regulation 
would provide that, upon completion of the administration of 
assessments and other evaluation measures, a group of qualified 
professionals, including the child's parent, determine whether the 
child is a child with a disability and the educational needs of the 
child. As is true under the current regulation, the public agency would 
be required to provide a copy of the evaluation report to the parent, 
including the documentation of determination of eligibility.
    Proposed section Sec.  300.306(b) would include the provision in 
current Sec.  300.534(b)(2) that makes clear that a child must not be 
determined to be a child with a disability under this part if the 
determinant factor is lack of instruction in reading, lack of 
instruction in math, or limited English proficiency, and the child does 
not otherwise meet the eligibility criteria under 300.8(a).
    Proposed paragraph (c) of Sec.  300.306 would replace Sec.  300.535 
of the current regulations and would incorporate the longstanding 
regulatory requirements that public agencies use a multifactored 
approach in determining eligibility and placement and develop an IEP 
for a child found eligible for services under the Act.

[[Page 35802]]

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities

    Proposed Sec. Sec.  300.307 through 300.311 would revise Sec. Sec.  
300.540 through 300.543 of the current regulations regarding additional 
procedures for evaluating children suspected of having specific 
learning disabilities and would implement the new requirements of 
section 614(b)(6) of the Act. Proposed Sec.  300.307(a) would generally 
require a State to adopt criteria for determining whether a child has a 
specific learning disability (SLD) as defined in proposed Sec.  300.8. 
Specifically, proposed Sec.  300.307(a)(1) would allow States to 
prohibit the use of a severe discrepancy between achievement and 
intellectual ability criterion for determining whether a child has an 
SLD. Proposed Sec.  300.307(a)(2) would make it clear that the State 
may not require LEAs to use a discrepancy model for determining whether 
a child has an SLD. In addition, proposed Sec.  300.307(a)(3) would 
require States to permit a process that examines whether the child 
responds to scientific, research-based intervention as part of the 
evaluation procedures. Proposed Sec.  300.307(a)(4) would allow States 
to permit the use of other alternative procedures for determining 
whether a child has an SLD as defined in Sec.  300.8. Proposed Sec.  
300.307(b) would clarify that a public agency must use State criteria 
in determining whether a child has an SLD.
    Recent consensus reports and empirical syntheses concur in 
suggesting major changes in the approach to the identification of an 
SLD. These reports recommend abandoning the IQ-discrepancy model and 
recommend the use of response to intervention (RTI) models (Donovan & 
Cross, 2002; Lyon et al., 2001; President's Commission on Excellence in 
Special Education, 2002; Stuebing et al., 2002). These reports find 
that SLD is a group of heterogeneous disorders, but recommend changes 
in the seven domains identified in current Sec.  300.541(a)(2) because 
of areas of difficulty for students with SLD that have not been 
identified under current regulations (e.g., reading fluency).
    There are many reasons why use of the IQ-discrepancy criterion 
should be abandoned. The IQ-discrepancy criterion is potentially 
harmful to students as it results in delaying intervention until the 
student's achievement is sufficiently low so that the discrepancy is 
achieved. For most students, identification as having an SLD occurs at 
an age when the academic problems are difficult to remediate with the 
most intense remedial efforts (Torgesen et al., 2001). Not 
surprisingly, the ``wait to fail'' model that exemplifies most current 
identification practices for students with SLD does not result in 
significant closing of the achievement gap for most students placed in 
special education. Many students placed in special education as SLD 
show minimal gains in achievement and few actually leave special 
education (Donovon & Cross, 2002).
    The use of the IQ-discrepancy drives assessment practices for most 
special education services (President's Commission on Excellence in 
Special Education, 2002). Nationwide, virtually every student 
considered for special education eligibility receives IQ tests. This 
practice consumes significant resources, with the average cost of an 
eligibility evaluation running several thousand dollars (MacMillan & 
Siperstein, 2002; President's Commission on Excellence in Special 
Education, 2002). Yet these assessments have little instructional 
relevance and often result in long delays in determining eligibility 
and therefore services.
    Alternative models are possible. The type of model most 
consistently recommended uses a process based on systematic assessment 
of the student's response to high quality, research-based general 
education instruction. The Department strongly recommends that States 
consider including this model in its criteria. Other models focus on 
the assessment of achievement skills identifying SLD by examining the 
strengths and weaknesses in achievement, or simply rely on an absolute 
level of low achievement. These models are directly linked to 
instruction. (Fletcher, et al., 2003). Other models use alternative 
approaches to determining aptitude-achievement discrepancies that do 
not involve IQ, including multiple assessments of cognitive skills. 
However, these models do not identify a unique group of low achievers 
and maintain a focus on assessment as opposed to intervention. In 
considering alternative models for identification, we believe that the 
focus should be on assessments that are related to instruction, and 
that identification should promote intervention. For these reasons, 
models that incorporate response to a research-based intervention 
should be given priority in any effort to identify students with SLD. 
Identification models that incorporate response to intervention 
represent a shift in special education toward the goals of better 
achievement and behavioral outcomes for students identified with SLD 
because the students who are identified under such models are most 
likely to require special education and related services.
    Proposed Sec.  300.308, regarding eligibility group members, would 
revise Sec.  300.540 of the current regulations. Under this proposed 
regulation, the group making the determination of whether a child has 
an SLD would include a special education teacher. Further, this 
proposed regulation would require that the group be collectively 
qualified to conduct individual diagnostic assessments relevant to SLD, 
interpret and apply critical analysis to assessment data, develop 
appropriate educational and transitional recommendations, and deliver 
specifically designed instruction and services to meet the needs of 
students with SLD. It is intended that the group described in proposed 
Sec.  300.308 would serve as the required group under proposed Sec.  
300.306(a)(1).
    The current requirements in Sec.  300.541 permit the group to 
determine that an SLD is present if the child does not achieve 
commensurate with his or her age and ability levels and if the group 
finds a severe discrepancy between achievement and intellectual 
ability. Proposed Sec.  300.309 would address the elements required for 
determining the existence of an SLD and would revise Sec.  300.541 of 
the current regulations in light of the statutory provision in section 
614(b)(6)(A) of the Act, which protects LEAs from being required to use 
a severe discrepancy between intellectual ability and academic 
achievement. Under the proposed regulations, the first element of a 
determination that a child has an SLD is a finding that the child does 
not achieve commensurate with the child's age in one or more of the 
eight specified areas when provided with learning experiences 
appropriate to the child's age.
    The second element for a determination that a child has an SLD is a 
finding that the child failed to make sufficient progress in meeting 
State-approved results when using a response to scientific, research-
based intervention process, or the child exhibits a pattern of 
strengths and weaknesses that the team determines is relevant to the 
identification of an SLD. The pattern of strengths and weaknesses may 
be in performance, achievement, or both or may be in performance, 
achievement, or both relative to intellectual development. Proposed 
Sec.  300.309(a)(3) would incorporate the exclusions from section 
602(30)(C) of the Act and would prohibit the eligibility group from 
finding an SLD if the SLD is primarily

[[Page 35803]]

the result of other visual, hearing, or motor disabilities, of mental 
retardation, of emotional disturbance, or of environmental, cultural, 
or economic disadvantage. These exclusions are in addition to the 
special rule for eligibility determination in section 614(b)(5) of the 
Act and proposed Sec.  300.306(b).
    Proposed Sec.  300.309(b) would require the group to consider 
evidence that the child was provided appropriate instruction prior to, 
or as a part of, the referral process. These requirements would 
emphasize the importance of using high-quality, research-based 
instruction in regular education settings consistent with relevant 
sections of the ESEA, including that the instruction was delivered by 
qualified personnel. Also important is evidence that data-based 
documentation reflecting formal assessment of progress during 
instruction through repeated assessments of achievement at reasonable 
intervals is provided to the parents and documentation that the 
timelines described in proposed Sec. Sec.  300.301 and 300.303 are 
adhered to, unless extended by mutual written agreement of the child's 
parents and a group of qualified professionals as described in Sec.  
300.308. These requirements would be included in Sec.  300.309(c) and 
(d), respectively, of the proposed regulations.
    Proposed Sec.  300.310 would revise Sec.  300.542 of the current 
regulations regarding observation. Proposed Sec.  300.310(a) would 
require that at least one member of the group described in proposed 
Sec.  300.308, other than the child's teacher, who observes the child 
be trained in observation. This should ensure that the group member or 
members conducting the observation know what to look for when they 
observe the child. Proposed Sec.  300.310(a) also would provide 
additional parameters for conducting the observation, and would specify 
that the observation document academic performance and behavior in the 
areas of difficulty. Proposed Sec.  300.310(b) would be substantively 
unchanged from Sec.  300.542(b) of the current regulations.
    Proposed Sec.  300.311, regarding a written report, would revise 
Sec.  300.543 of the current regulations and incorporate much of the 
content of that section. The proposed regulation would remove the 
reference in Sec.  300.543(a)(6) of the current regulation as to 
whether a child has a severe discrepancy between achievement and 
ability that is not correctable without special education and related 
services and the reference in current Sec.  300.543(a)(7) regarding the 
effects of environmental, cultural, and economic disadvantage. This 
language is included in proposed Sec.  300.306. Proposed Sec.  
300.311(a)(5) would require that the report address only whether the 
child does not achieve commensurate with the child's age rather than 
the discrepancy model referred to in current Sec.  300.531(a)(2). The 
proposed regulation also would require that the written report address 
two additional factors: whether there are strengths and weaknesses in 
performance or achievement, or both, or relative to intellectual 
development that require special education and related services; and 
the instructional strategies used and the response to student data 
collected if the response to the scientific, research-based process was 
implemented. These additional provisions should ensure that the report 
is a more useful document for educators in determining the existence of 
an SLD. It is intended that the written report in this section would 
serve as the required evaluation report and documentation of the 
determination of eligibility as required by proposed Sec.  
300.306(a)(2).

Individualized Education Programs

    Proposed Sec. Sec.  300.320 through 300.328 would replace some of 
the provisions in Sec. Sec.  300.340 through 300.350 of the current 
regulations regarding IEPs. Proposed Sec.  300.320 would contain a 
definition of individualized education program or IEP that would 
incorporate the definition in section 614(d)(1)(A)(i) of the Act as 
well as provisions contained in section 614(d)(6) of the Act. This 
definition would replace and expand Sec.  300.340(a) of the current 
regulations, which contains only a brief definition of the term IEP. 
The definition of ``participating agency'' contained in Sec.  
300.340(b) of the current regulations would be removed from these 
proposed regulations as unnecessary. Many of the provisions in the new 
definition of IEP are taken from provisions in Sec. Sec.  300.346 
through 300.347 of the current regulations, but appropriate 
modifications also would be included in this definition to reflect new 
provisions of the Act.
    The first sentence of the definition in Sec.  300.320 would refer 
to the IEP as a written statement for a child with a disability that is 
developed, reviewed, and revised at a meeting in accordance with 
Sec. Sec.  300.320 through 300.324. Proposed paragraph (a)(1) would 
require, in accordance with section 614(d)(1)(A)(i)(I) of the Act, that 
the IEP include a statement of the child's present levels of academic 
achievement and functional performance. This proposed regulation would 
supersede Sec.  300.347(a)(1) of the current regulations, which 
requires that the IEP include a statement of the child's present levels 
of educational performance. Proposed Sec.  300.320(a)(1)(i) would be 
the same as Sec.  300.347(a)(1)(i) of the current regulations, except 
that the phrase used in the Act, ``general education curriculum,'' 
would be substituted for ``general curriculum,'' and the proposed 
regulation would continue to explain, as do the current regulations, 
that the general education curriculum is the same curriculum as for 
nondisabled children. Proposed Sec.  300.320(a)(1)(ii), regarding the 
participation of preschool children in appropriate activities, is the 
same as Sec.  300.347(a)(1)(ii) of the current regulations.
    Proposed Sec.  300.320(a)(2) is similar to Sec.  300.347(a)(2) of 
the current regulations, except for minor language changes from section 
614(d)(1)(A)(i)(II) of the Act. Proposed Sec.  300.320(a)(2)(i)(A) and 
(B) would be the same as Sec.  300.347(a)(2)(i) and (ii) of the current 
regulations.
    Proposed Sec.  300.320(a)(2)(ii) would add a new provision 
consistent with section 614(d)(1)(A)(i)(I)(cc) of the Act that would 
require the IEP to contain a statement of benchmarks or short-term 
objectives for children with disabilities who take alternate 
assessments aligned to alternate achievement standards. In accordance 
with changes made in section 614(d)(1)(A)(i)(III) of the Act, proposed 
Sec.  300.320(a)(3) would replace Sec.  300.347(a)(7) of the current 
regulations, and would require that the IEP include a statement of how 
the child's progress on the annual goals is being measured. In 
accordance with section 614(d)(1)(A)(i)(III) of the Act, proposed Sec.  
300.320(a)(3)(ii) would clarify that periodic progress reports could be 
issued concurrently with quarterly report cards.
    Proposed Sec.  300.320(a)(4) would replace Sec.  300.347(a)(3) of 
the current regulations, and would incorporate the language in section 
614(d)(1)(A)(IV) of the Act regarding a statement of special education 
and related services and supplementary aids and services, based on 
peer-reviewed research, to the extent practicable. Proposed Sec.  
300.320(a)(5), which would require an explanation of the extent, if 
any, to which a child will not participate with nondisabled children in 
the regular class and in other activities, would incorporate current 
Sec.  300.347(a)(4), which is the same as section 614(d)(1)(A)(i)(V) of 
the Act. Proposed Sec.  300.320(a)(6) would replace Sec.  
300.347(a)(5), regarding participation of children with disabilities in 
State and districtwide assessments of student achievement, and would 
incorporate section

[[Page 35804]]

614(d)(1)(A)(VI) of the Act. This section would require that the IEP 
include a statement of any individual appropriate accommodations that 
are necessary to measure the academic achievement and functional 
performance of the child on State and districtwide assessments, 
consistent with proposed Sec.  300.160. If the IEP Team determines that 
the child should take a particular alternate assessment on a particular 
State or districtwide assessment of student achievement, the IEP must 
include a statement of why the child cannot participate in the regular 
assessment and why the particular alternate assessment selected is 
appropriate for the child. Proposed Sec.  300.320(a)(7), regarding the 
projected date for the beginning of services and modifications and the 
anticipated frequency, location, and duration of those services and 
modifications, is the same as Sec.  300.347(a)(6) of the current 
regulations.
    Proposed Sec.  300.320(b) would replace current Sec.  300.347(b), 
regarding transition services, and would incorporate some of the new 
statutory requirements regarding postsecondary goals in section 
614(d)(1)(A)(VIII) of the Act. Beginning with the first IEP in effect 
after the child turns age 16 or younger if determined appropriate, and 
updated annually thereafter, this proposed paragraph would require that 
the IEP include appropriate measurable postsecondary goals based upon 
age appropriate transition assessments related to training, education, 
employment, and, where appropriate, independent living skills, and the 
transition services, including courses of study needed to assist the 
child in reaching those goals. As under the current regulations, 
proposed Sec.  300.320(b) would continue to apply the requirements 
regarding transition services for students younger than age 16, if 
determined appropriate by the IEP Team. However, Sec.  300.347(b)(1) of 
the current regulations, regarding including a statement of transition 
services needs under the applicable components of the student's IEP in 
the IEPs of students beginning at age 14 or younger, would be removed 
from these proposed regulations because it is no longer required under 
the Act. Proposed Sec.  300.320(c) would replace Sec.  300.347(c) of 
the current regulations, regarding transfer of rights, and would 
incorporate section 614(d)(1)(A)(i)(VIII)(cc) of the Act to require 
that beginning not later than one year before the rights transfer, the 
child is informed that his or her rights under Part B will transfer to 
the child upon reaching the age of majority under State law.
    Proposed Sec.  300.320(d) would be based on section 
614(d)(1)(A)(ii) of the Act and Sec.  300.346(e) of the current 
regulations. The first clause would provide that the IEP is not 
required to include additional information beyond what is explicitly 
required under section 614(d) of the Act. The second clause, which is 
the same as Sec.  300.346(e) of the current regulations, would provide 
that this section would not require the IEP to include information 
under one component of the child's IEP that is already contained under 
another component of the IEP.
    Section 300.341 of the current regulations, regarding 
responsibility of the SEA and other public agencies for IEPs, would not 
be retained in these proposed regulations. The statutory authority for 
that section is not based on the IEP provisions in section 614(d) of 
the Act, and the substance of the provision is essentially covered by 
proposed Sec.  300.149, which would address the SEA responsibility for 
general supervision, including responsibility to ensure development and 
implementation of IEPs.
    Proposed Sec.  300.321 would include a requirement regarding the 
composition of the IEP Team, and is substantially the same as Sec.  
300.344 of the current regulations addressing a public agency's 
responsibility to ensure that the IEP Team includes the required 
participants. Proposed Sec.  300.321(a) would replace Sec.  300.344(a) 
of the current regulations. As with the current regulation, proposed 
paragraph (a)(7) would provide that, in accordance with the Act, 
whenever appropriate, the child be a member of the IEP Team.
    Proposed Sec.  300.321(b) would address transition services 
participants and would replace and modify Sec.  300.344(b) of the 
current regulations to reflect changes to the Act's requirements on 
transition services. Proposed Sec.  300.321(b)(1) would provide that 
the child be invited to the IEP meeting if a purpose of the meeting is 
consideration of the child's postsecondary goals and the transition 
services needed to achieve those goals. Proposed Sec.  300.321(b)(2) is 
substantially the same as Sec.  300.344(b)(2) of the current 
regulations, regarding the public agency's obligation to take other 
steps to ensure that the student's preferences and interests are 
considered if the child is unable to attend the meeting. Proposed Sec.  
300.321(b)(3) would replace and modify Sec.  300.344(b)(3)(i) of the 
current regulations and would require, to the extent appropriate, and 
with the consent of the parent or a child who has reached the age of 
majority, that a representative of a participating agency that is 
likely to be responsible for providing or paying for transition 
services be invited to the meeting. Current Sec.  300.344(b)(3)(ii), 
addressing the public agency's obligations to take steps to obtain the 
participation of the other agency in the planning for transition 
services if the other agency does not send a representative, would be 
removed as it is an unnecessary burden. Proposed Sec.  300.321(c), 
regarding determination of knowledge and special expertise of other 
individuals invited by the parent or public agency to be members of the 
IEP Team, is essentially the same as, and would replace, Sec.  
300.344(c) of the current regulations. Proposed Sec.  300.321(d), 
regarding designating a public agency representative, is essentially 
the same as, and would replace, Sec.  300.344(d) of the current 
regulations.
    Proposed Sec.  300.321(e) would add a new provision regarding IEP 
meeting attendance and would incorporate section 614(d)(2)(C) of the 
Act. Proposed Sec.  300.321(e)(1) would specify when a member of the 
IEP Team would not be required to attend the IEP meeting in whole or in 
part. Proposed Sec.  300.321(e)(2) would specify when a member of the 
IEP Team may be excused from attending the IEP meeting in whole or in 
part, subject to the parent's and public agency's written consent to 
the member's excusal, and subject to the member's written submission to 
the parent and public agency of input into the development of the IEP 
prior to the meeting.
    Proposed Sec.  300.321(f) would incorporate a new requirement in 
section 614(d)(2)(D) of the Act for the initial IEP meeting for a child 
who was previously served under Part C of the Act, and would require, 
to ensure the child's smooth transition, that an invitation to that 
meeting, at the request of the parent, be sent to the Part C services 
coordinator or a representative of the Part C system.
    Consistent with the statutory requirement that a parent, as a 
member of the IEP Team, provide significant input into the child's IEP, 
proposed Sec.  300.322 would address parent participation and would 
replace Sec.  300.345 of the current regulations. Proposed Sec.  
300.322(a), regarding notifying the parents of the meeting early enough 
to ensure they will have an opportunity to attend and scheduling the 
meeting at a mutually convenient time and place, would be the same as 
Sec.  300.345(a) of the current regulations. Proposed Sec.  300.322(b), 
regarding information in the notice, would be the

[[Page 35805]]

same as Sec.  300.345(b) of the current regulations, except that 
paragraph (b)(2), regarding notifying a student age 14 or younger about 
an IEP meeting to develop a statement of needed transition services 
would be removed because the participation of a child age 14 or younger 
in the transition services planning process is not required under the 
Act. Proposed Sec.  300.322(b)(1), which would be the same as Sec.  
300.345(b)(1) of the current regulations, would continue to require the 
public agency to notify the parents of the purpose, time, and location 
of the meeting and who will be in attendance, including informing 
parents of the provisions in Sec.  300.322 regarding the participation 
of other individuals with knowledge or special expertise about the 
child. Paragraph (b)(3) of current Sec.  300.345 would be modified, 
would become proposed Sec.  300.322(b)(2) and would require that the 
parent be notified, not later than the first IEP to be in effect when 
the child turns 16, or younger if determined appropriate by the IEP 
Team, if a purpose of the meeting will be the consideration of 
postsecondary goals and transition services for the child. The notice 
would indicate that the agency will invite the child to the meeting and 
also would identify any other agency that will be sending a 
representative to the meeting. Proposed Sec.  300.322(c), regarding 
other methods to ensure parent participation if neither parent can 
attend, would replace Sec.  300.345(c) of the current regulations, and 
would be modified to address the use of other methods, including 
individual or conference telephone calls, subject to Sec.  300.328 of 
the proposed regulations relating to alternative means of meeting 
participation. Proposed Sec.  300.322(d), regarding conducting a 
meeting without a parent in attendance, would replace Sec.  300.345(d) 
of the current regulations, except that the proposed regulation would 
not specify the methods that the public agency must use to keep a 
record of its attempts to convince the parent that he or she should 
attend the meeting. Current section 300.345(e), regarding the use of 
interpreters or other action, as appropriate, would be removed from 
these proposed regulations because public agencies are required by 
other Federal statutes to take appropriate actions to ensure that 
parents who themselves have disabilities and limited English proficient 
parents understand proceedings at the IEP meeting. The other Federal 
statutory provisions that apply in this regard are Section 504 of the 
Rehabilitation Act of 1973 and its implementing regulations in 34 CFR 
Part 104 (prohibiting discrimination on the basis of disability by 
recipients of Federal financial assistance) and title II of the 
Americans With Disabilities Act and its implementing regulations in 28 
CFR Part 35 (prohibiting discrimination on the basis of disability by 
public entities, regardless of receipt of Federal funds), and title VI 
of the Civil Rights Act of 1964 and its implementing regulations in 34 
CFR Part 100 (prohibiting discrimination on the basis of race, color, 
or national origin by recipients of Federal financial assistance).
    Proposed Sec.  300.322(f) would replace Sec.  300.345(f) of the 
current regulations and would continue to require that public agencies 
give a parent a copy of their child's IEP at no cost to the parent.
    Proposed Sec.  300.323 would address when IEPs must be in effect 
and would replace some of the provisions of Sec.  300.342 of the 
current regulations. Proposed Sec.  300.323(a), which is essentially 
the same as Sec.  300.342(a) of the current regulations, would require 
a public agency to ensure that an IEP is in effect for each child with 
a disability at the beginning of each school year. Proposed Sec.  
300.323(b), regarding an IEP or IFSP for children aged three through 
five, would replace and modify Sec.  300.342(c) of the current 
regulations. The proposed regulation would incorporate language in 
section 614(d)(2)(B) of the Act as well as language in section 636 of 
the Act to require the IEP Team to consider an IFSP that contains the 
IFSP content described in section 636 of the Act, and that is developed 
in accordance with Sec.  300.324 of these proposed regulations. Under 
both the Act and the proposed regulations, the IFSP could serve as the 
IEP if consistent with State policy and agreed to by the parent and the 
agency. Proposed Sec.  300.323(b)(1) would specify further that, in 
order for the IFSP to be considered as the IEP, the IFSP must contain 
the IFSP content, including the natural environments statement and an 
educational component that promotes school readiness and incorporates 
pre-literacy, language, and numeracy skills for children with IFSPs who 
are at least three years of age. Proposed Sec.  300.323(b)(2) would be 
consistent with the current regulation in Sec.  300.342(c)(2)(i) and 
(ii) that requires that the child's parents be provided a detailed 
explanation of the differences between an IFSP and an IEP, and written 
informed consent from the parent if the parent chooses an IFSP. 
Proposed Sec.  300.323(c), regarding initial IEPs and provision of 
services, would combine Sec. Sec.  300.342(b)(2)(ii) and 300.343(b)(2) 
of the current regulations and would continue the longstanding 
requirement in Sec.  300.343(b)(2) that an initial IEP be developed 
within 30 days of a determination that the child needs special 
education and related services. However, Sec.  300.342(b)(1)(i) of the 
current regulations, requiring that an IEP be in effect before special 
education and related services are provided to a child, would be 
removed from these proposed regulations. This requirement is covered by 
proposed Sec.  300.323(a), which would require that each public agency 
have an IEP in effect for each child with a disability in the public 
agency's jurisdiction at the beginning of each school year, and by 
section 614(d)(2)(A) of the Act.
    Proposed Sec.  300.323(c)(2) would combine current Sec.  
300.343(b)(2), which requires that a meeting to develop an IEP ``be 
conducted within 30 days of a determination that the child needs 
special education and related services'' with current Sec.  
300.342(b)(1)(ii), which requires an IEP to be ``implemented as soon as 
possible following the meetings described in Sec.  300.343.'' This 
combined language would provide a clearer, more direct, and more 
specific requirement than what is contained in current Sec. Sec.  
300.342((b)(1)(ii) and 300.343(b)(2).
    Proposed Sec.  300.323(d), regarding accessibility of the child's 
IEP to the regular education teacher and others responsible for its 
implementation, would replace Sec.  300.342(b)(2) of the current 
regulations. However Sec.  300.342(b)(3) of the current regulations, 
which requires that each person responsible for implementing the IEP be 
informed of his or her specific responsibilities related to 
implementing the child's IEP, and the specific accommodations, 
modifications and supports that must be provided for the child in 
accordance with the IEP, would be removed from the proposed regulations 
as unnecessary. Public agencies are required to share this information 
with responsible individuals in order to meet their obligations under 
the Act.
    Proposed Sec.  300.323(e) would implement the new requirement in 
section 614(d)(2)(C) of the Act regarding programs for children who 
transfer public agencies within the same academic year. Proposed Sec.  
300.323(e)(1)(i) would implement the Act and the Department's 
longstanding policy regarding students who transfer public agencies 
within the same State. The proposed regulation would require that the 
new school district provide the child with FAPE, including services 
comparable to those described in a previously held IEP until the public 
agency adopts the previously held IEP

[[Page 35806]]

or develops, adopts, and implements a new IEP that is consistent with 
Federal and State law. Proposed Sec.  300.323(e)(1)(ii) would 
incorporate a statutory change that requires, in the case of a child 
who had an IEP in effect and who transfers from a public agency outside 
the State in the same academic year, that the public agency provide the 
child with FAPE, including services comparable to those described in 
the previously held IEP, until the public agency conducts an evaluation 
of the child, if determined necessary by the public agency, and 
develops a new IEP for the child, if appropriate, that is consistent 
with Federal and State law.
    Proposed Sec.  300.323(e)(2) would incorporate the new requirement 
in section 614(d)(2)(C)(ii) of the Act regarding transmittal of 
education records to facilitate the transition of a child who transfers 
public agencies within the same State. It also would address the 
responsibility of the new public agency and previous public agency to 
take reasonable steps regarding making prompt requests for, and 
transmission of, education records consistent with 34 CFR 99.31(a)(2), 
implementing FERPA.
    Paragraph (d) of Sec.  300.342 of the current regulations, 
regarding effective dates for new IEP requirements, is unnecessary and 
would be removed from the proposed regulations. All the IEP 
requirements of Part B of the Act will take effect on July 1, 2005. 
Further, it is not anticipated that public agencies will need 
additional time to implement these new requirements, some of which 
provide additional flexibility to public agencies and parents and 
reduce regulatory burden.

Development of IEP

    Proposed Sec.  300.324 would address the development, review, and 
revision of IEPs. This section would incorporate some requirements 
regarding IEP development, review, and revision, which are currently 
addressed in Sec. Sec.  300.343 and 300.346 of the regulations.
    Proposed Sec.  300.324(a) would incorporate section 614(d)(3)(A) of 
the Act regarding considerations in IEP development. Although most of 
the language from Sec.  300.346(a) of the current regulations would be 
retained, the requirement in Sec.  300.346(a)(1)(iii), regarding 
consideration in IEP development of the child's performance on State or 
districtwide assessments, as appropriate, would be removed. Instead, 
the proposed regulation would include language from section 
614(d)(3)(A)(iv) of the Act regarding consideration of the academic, 
developmental, and functional needs of the child in IEP development. In 
accordance with section 614(d)(3)(B) of the Act, proposed Sec.  
300.324(a)(2), regarding consideration of special factors in IEP 
development, would be substantially the same as, and would replace, 
Sec.  300.346(a)(2) of the current regulations. Proposed Sec.  
300.324(a)(3) would continue to require, in accordance with section 
614(d)(3)(C) of the Act, that the regular education teacher, as a 
member of the IEP Team, to the extent appropriate, participate in IEP 
development in the areas specified in the Act. This proposed regulation 
would replace Sec.  300.346(d) of the current regulations, which 
contains a similar provision regarding the role of the regular 
education teacher in the development, review, and revision of the IEP. 
Because the Act no longer requires the consideration of special factors 
in IEP review and revision, Sec.  300.346(b) of the current regulations 
would be removed. Section 300.346(c) of the current regulations, 
regarding the requirement to include a statement in the child's IEP 
about a child's need for a particular device or service in order to 
receive FAPE, would be removed because it is covered in proposed Sec.  
300.320(a)(4).
    Proposed Sec.  300.324(a)(4) would incorporate section 614(d)(3)(D) 
of the Act and would permit the parent and the public agency to agree 
not to convene an IEP meeting to make changes to the child's IEP after 
the annual IEP meeting for the school year has taken place. Instead, in 
accordance with this new statutory provision, this proposed regulation 
would permit the parent and the public agency to develop a written 
document to amend or modify the child's current IEP without convening 
an IEP meeting.
    To incorporate section 614(d)(3)(E) of the Act, proposed Sec.  
300.324(a)(5) would address consolidation of IEP meetings and would 
require the public agency, to the extent possible, to encourage the 
consolidation of reevaluation meetings and other IEP meetings for the 
child.
    To incorporate section 614(d)(3)(F) of the Act, proposed Sec.  
300.324(a)(6) would permit changes to the IEP to be made either by the 
entire IEP Team, or in accordance with proposed Sec.  300.324(a)(4), by 
amending the IEP, rather than redrafting the entire IEP. This proposed 
paragraph would also provide that a parent who requests a copy of the 
revised IEP with the amendments incorporated must be provided with it.
    Section 300.343(a) of the current regulations, regarding the public 
agency's responsibility to initiate and conduct meetings to develop, 
review, and revise a child's IEP, would be removed because it is 
covered in Sec.  300.320(a) of the proposed regulations. Proposed Sec.  
300.324(b)(1) would address review and revision of IEPs and is 
essentially the same as Sec.  300.343(c) of the current regulations. 
Proposed Sec.  300.324(b)(2) would require the participation of the 
regular education teacher in the review and revision of the child's 
IEP, consistent with proposed Sec.  300.324(a)(3).
    Proposed Sec.  300.324(c), regarding failure to meet transition 
objectives, is essentially the same as, and would replace Sec.  300.348 
of the current regulations. Proposed Sec.  300.324(c)(1) would 
implement section 614(d)(6) of the Act, which requires the public 
agency to reconvene the IEP Team to develop alternative strategies if 
the agency responsible for providing transition services fails to 
provide those services. Proposed Sec.  300.324(c)(2) would continue the 
longstanding regulatory requirement in current Sec.  300.348(b) that a 
participating agency, including a State vocational rehabilitation 
agency, is not relieved of its responsibility to provide or pay for 
transition services that the agency would otherwise provide if the 
student meets the eligibility requirements for those services.
    Proposed Sec.  300.324(d)(1), regarding children with disabilities 
in adult prisons, would conform to section 614(d)(7) of the Act. Unlike 
Sec.  300.347(d) of the current regulations, which merely cross-
references other applicable regulatory requirements, proposed Sec.  
300.324(d)(1) would specify the requirements from which public agencies 
would be exempt with respect to these children. Specifically, public 
agencies would be exempt from the requirements in Sec.  300.160 and 
Sec.  300.320(a)(6), regarding participation in State and districtwide 
assessments, and the requirements in Sec.  300.320(b), regarding 
transition services, which do not apply to children who exceed age 
eligibility under Part B of the Act prior to their release from prison, 
based on their sentence and eligibility for early release.
    Proposed Sec.  300.324(d)(2)(i) would, consistent with section 
614(a)(7) of the Act, continue to permit the IEP Team of a child with a 
disability who is convicted as an adult under State law and 
incarcerated in an adult prison to modify the child's IEP or placement 
if the State has demonstrated a bona fide security or penological 
interest that cannot otherwise be accommodated. Proposed Sec.  
300.324(d)(2)(ii) would continue to provide that the requirements in 
current Sec. Sec.  300.347(d)

[[Page 35807]]

and 300.313, regarding LRE, would not apply to these IEP and placement 
modifications.
    Proposed Sec.  300.325, regarding private school placements by 
public agencies, would be essentially the same as Sec.  300.349 of the 
current regulations, and would implement section 612(a)(10)(B) of the 
Act. The proposed regulation would require that children placed in 
private schools by public agencies receive required special education 
and related services at no cost to the parents in accordance with an 
IEP developed under Part B of the Act. Further, even if the private 
school implements the child's IEP, responsibility for ensuring 
compliance with the Act rests with the SEA and the public agency.
    Section 300.350 of the current regulations, regarding IEP 
accountability, would be removed from the proposed regulations as 
unnecessary. The requirement in Sec.  300.350(a) that each child 
eligible for services under Part B of the Act be provided services in 
accordance with an IEP is unnecessary because entitlement to FAPE under 
the Act includes the provision of special education and related 
services in accordance with an IEP. Paragraph (a)(2) and (b) of Sec.  
300.350 is unnecessary as we believe that other federal laws, such as 
title I of the ESEA, already provide sufficient motivation for agency 
effort to assist children with disabilities in making academic 
progress. Section 300.350(c), regarding accountability, would be 
removed as it merely provides explanatory information.
    Proposed Sec.  300.327, regarding educational placements, would 
replace Sec.  300.501(c)(1) of the current regulations, and would 
continue to require, in accordance with section 614(e) of the Act, that 
each public agency ensure that parents are members of any group that 
makes decisions on the educational placement of their child. Current 
Sec.  300.501(c)(2), regarding other methods to ensure parent 
participation, would be removed from these proposed regulations because 
it is covered by proposed Sec.  300.328.
    Proposed Sec.  300.328 would incorporate section 614(f) of the Act 
and would give a parent and a public agency the option of agreeing to 
use alternative means, such as video conferences and conference calls, 
to meet their obligations for participation in IEP and placement 
meetings and in carrying out administrative matters, such as 
scheduling, exchange of witness lists, and conference calls.

Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children
    Proposed Sec.  300.500 on the responsibility of SEAs and other 
public agencies would include the current regulatory language in Sec.  
300.500(a), appropriately updated. The definitions of the terms 
``consent,'' ``evaluation,'' and ``personally identifiable'' in current 
Sec.  300.500(b) would be moved to subpart A of 34 CFR part 300.
    Proposed Sec.  300.501 concerning the opportunity to examine 
records and parent participation in meetings generally would reflect 
the language in current Sec.  300.501 with appropriate updating of 
cross-references and two substantive changes. First, proposed Sec.  
300.501(c)(4) would not include the current concluding phrase requiring 
that public agencies keep a record of attempts to involve parents in 
placement decisions, including information consistent with the records 
that must be maintained if an IEP meeting is to be held without a 
parent in attendance. The phrase would be removed to provide school 
personnel greater flexibility in how they document attempts to involve 
parents. However, public agencies still must maintain documentation of 
their efforts in this regard. Second, the regulatory requirement in 
current Sec.  300.501(c)(5) would be removed as unnecessarily 
duplicative. The requirement that agencies make reasonable efforts to 
enable parents to understand and participate in discussions about 
placement of their child is inherent in the obligation in proposed 
Sec.  300.501(b)(1) that parents be afforded an opportunity to 
participate in meetings about the identification, evaluation, 
educational placement and provision of FAPE to their child.
    Proposed Sec. 300.502 would incorporate the provisions of the 
current Sec.  300.502, regarding independent educational evaluations, 
with some minor changes. References to hearings throughout would be 
modified to indicate that the hearing involved is a due process 
hearing, or a hearing on a due process complaint. Proposed Sec.  
300.502(c)(2) also would be revised to clarify that the results of a 
parent-initiated independent educational evaluation at public expense 
may be introduced by any party as evidence at a hearing on a due 
process complaint.
    Proposed Sec.  300.503, on prior written notice, would incorporate 
two substantive changes from current Sec.  300.503. First, current 
Sec.  300.503(a)(2) would be removed. It is not necessary to explain in 
the regulation that prior written notice can be provided at the same 
time as parental consent is requested because parental consent cannot 
be obtained without this notice. Second, the elements of the contents 
of the notice would be revised in Sec.  300.503(b) to reflect new 
statutory language in section 615(c)(1) of the Act.
    Proposed Sec.  300.504(a) would be revised consistent with new 
statutory language in section 615(d)(1) of the Act regarding the timing 
of procedural safeguards notices. In addition, proposed Sec.  
300.504(a)(2) would clarify that a procedural safeguards notice must be 
provided upon receipt of the first filing of a State complaint or 
request for a due process hearing in a school year, as opposed to the 
first request at any point in a child's school career. This should aid 
implementation at the school district level without unduly burdening 
school districts, and ensure that parents have information about the 
due process procedures when they are most likely to need it.
    Throughout these proposed regulations we use the term ``due process 
complaint,'' instead of the statutory term ``complaint'' in order to 
provide clarity and reduce confusion between a due process complaint 
and a complaint under the State complaint procedures in Sec. Sec.  
300.660 through 300.662 of the current regulations and provided for in 
these proposed regulations in Sec. Sec.  300.151 through 300.153.
    A new Sec.  300.504(b) would be added concerning Internet posting 
of the procedural safeguards notice, consistent with section 
615(d)(1)(B) of the Act.
    The contents of the procedural safeguards notice would be updated 
in proposed Sec.  300.504(c), reflecting revised statutory language in 
section 615(d)(2) of the Act. The notice also would have to explain the 
differences between the due process complaint and the State complaint 
procedures as provided for in proposed Sec.  300.504(c)(5)(iii). This 
change also should assist in reducing confusion about these 
alternatives. Cross-references would be updated, as appropriate.
    Proposed Sec.  300.505 would incorporate language from section 
615(n) of the Act providing that a parent may elect to receive required 
notices by electronic mail, if the public agency makes that option 
available. Provisions in current Sec.  300.505 concerning parental 
consent would be moved to subpart D of the proposed regulations that 
addresses parental consent in the context of evaluations, reevaluations 
and the initial provision of services to children with disabilities.

[[Page 35808]]

    Proposed Sec.  300.506 would revise the current regulatory language 
on mediation to reflect changes in section 615(e) of the Act. In 
proposed Sec.  300.506(a), new language would be added providing that 
mediation be made available to resolve any dispute, including matters 
that arise before a party has requested a due process hearing. In 
proposed Sec.  300.506(b), language would be added to reflect section 
615(e)(2)(B) of the Act and would provide that public agencies may 
establish procedures to offer parents and schools that choose not to 
use mediation the opportunity to learn about the benefits and use of 
mediation. In addition, proposed Sec.  300.506(b)(3)(ii) would replace 
the current language in Sec.  300.506(b)(2)(ii), regarding party 
involvement in the selection of mediators, with more general language 
providing that the SEA select mediators on a random, rotational, or 
some other impartial basis. Proposed Sec.  300.506(b)(2)(ii) should 
provide SEAs additional flexibility in selecting mediators, while 
ensuring that mediators are impartial. Proposed Sec.  300.506(b)(6), 
(b)(7), and (b)(8) would include new provisions from section 
615(e)(2)(F) and (G) of the Act concerning written agreements when 
mediation results in an agreement to resolve the dispute, and 
confidentiality of mediation agreements. However, each of these 
provisions would clarify that the limitation placed on the use of 
information discussed during mediation as evidence would apply only to 
actions arising out of the same dispute. Without this clarifying 
language, there could be a misperception that the Department would be 
attempting to restrict the powers of State courts. Proposed Sec.  
300.506(b)(9) would be added in light of note 208 of Conf. Rpt. 
indicating the Conference Committee's intention that parties could be 
required to sign confidentiality pledges prior to the commencement of 
mediation, without regard to whether the mediation ultimately resolves 
the dispute.
    Proposed Sec.  300.506(c) would be similar to current Sec.  
300.506(c) concerning requirements for the impartiality of the 
mediator. However, consistent with the language in section 
615(f)(3)(A)(i)(II) regarding due process hearing officers, and the 
Senate Report No. 108-185, p. 37, proposed Sec.  300.506(c)(1) would 
permit employees of LEAs that are not involved in the education or care 
of the child involved in the dispute being mediated to serve as 
mediators. In addition, the cross-references would be updated. Current 
Sec.  300.506(d), regarding a meeting to encourage mediation, would be 
removed, reflecting the change in section 615(e)(2)(B) of the Act.
    Proposed Sec.  300.507(a)(1) would revise the current regulatory 
language regarding initiating a due process hearing on matters relating 
to the identification, evaluation, or educational placement of a child, 
or the provision of FAPE to the child to specify that a party could 
``file a due process complaint,'' as opposed to ``initiate,'' a hearing 
on these matters. This change would be made in light of new language 
concerning the resolution process, particularly in section 615(b)(7)(B) 
of the Act, requiring that a sufficient due process hearing notice be 
provided, and section 615(f)(1)(B) of the Act, requiring that a 
resolution process occur (unless waived by joint agreement of the 
parties) before a hearing will be available. Current Sec.  
300.507(c)(4), regarding a parent's right to a due process hearing for 
failure to provide the requisite notice, would be removed as it is 
inconsistent with the new statutory language requiring that a 
resolution session occur, unless waived by joint agreement of the 
parties. Current Sec.  300.507(a)(2), providing that parents be advised 
of the availability of mediation whenever a hearing is initiated, would 
be removed. Under the proposed regulations, mediation must be available 
to resolve any dispute, not just when a hearing has been requested, as 
was the case under the prior law. In addition, under the new statute, 
additional opportunities will exist to resolve disputes when a hearing 
has been requested, such as through the resolution process. Proposed 
Sec.  300.507(a)(2) would reflect the new requirement in section 
615(b)(6)(B) of the Act concerning the time period for filing a request 
for a due process hearing after the alleged violation has occurred. 
Proposed Sec.  300.507(b) would contain the information currently in 
the regulations in Sec.  300.507(a)(3) on available free or low-cost 
legal or other relevant services, but would be revised to refer to 
``requests a hearing'' as opposed to ``initiates a hearing'' for the 
reasons discussed previously.
    Proposed Sec.  300.508(a), (b), and (c) would incorporate new 
language from section 615(b)(7) of the Act concerning the obligation to 
provide a due process complaint to the other party, the required 
content of the complaint notice, and the requirement that a due process 
hearing may not be held until the party, or the attorney representing 
the party, files the due process complaint. These changes should also 
help clarify that the complaint and complaint notice would be the same 
document, which should aid in smooth implementation of these new 
provisions. Proposed Sec.  300.508(a) and (b) are similar to current 
Sec.  300.507(c)(1) and (2), but would be revised as required by the 
Act. Proposed Sec.  300.508(a)(2) would require that the party 
requesting the hearing forward a copy of the due process complaint to 
the SEA. Proposed Sec.  300.508(c) would address the contents of this 
due process complaint. Proposed Sec.  300.508(d) and (e) would 
incorporate the new language from section 615(c)(2) of the Act 
concerning due process complaint sufficiency and response to a due 
process complaint. Proposed Sec.  300.508(e) would address the public 
agency's responsibility to send a parent a response to the due process 
complaint if the public agency had not sent a prior written notice to 
the parent regarding the subject matter contained in the parent's due 
process complaint. The proposed regulation would outline what 
information must be contained in the response. Proposed Sec.  300.508 
would incorporate but reorder the statutory provisions slightly to 
clarify and provide an organized discussion of each topic.
    Proposed Sec.  300.509 would incorporate the new requirement from 
section 615(b)(8) of the Act that SEAs develop a model form to assist 
parents in filing a due process complaint, including the content of the 
complaint. Proposed Sec.  300.509 also would require States to develop 
model forms for filing State complaints, consistent with the changes 
regarding proposed Sec. Sec.  300.151 through 300.153 discussed 
elsewhere in this preamble. The proposed language would replace the 
current regulatory requirement in Sec.  300.507(c)(3).
    Proposed Sec.  300.510 would incorporate the new requirements 
concerning resolution process from section 615(f)(1)(B) of the Act. 
Proposed Sec.  300.510(a)(1) would clarify that the resolution meeting 
must be held within 15 days of receipt of notice of the due process 
complaint, and prior to the initiation of a due process hearing. 
Proposed Sec.  300.510(a)(4) would be added in light of note 212 of the 
Conf. Rpt. providing that parents and the LEA must determine the 
relevant members of the IEP Team to attend the resolution meeting. 
Proposed Sec.  300.510(b)(2) would clarify that the regulatory timeline 
for issuing a final due process hearing decision begins at the end of 
the new 30-day resolution period that starts when the due process 
complaint is received. This provision is based on the language in 
section 615(f)(1)(B)(ii) of the Act stating that the applicable due 
process timelines commence at the end

[[Page 35809]]

of this 30-day period. Proposed Sec.  300.510(b)(3) would provide, 
however, that the resolution session and due process hearing would be 
delayed until the meeting is held if a parent filing a due process 
complaint fails to participate in the resolution meeting. Proposed 
Sec.  300.510(b)(3) is based on H. Rep. No. 108-77, page 114 that 
provides:

    [If] the parent and the LEA mutually agree that the meeting does 
not need to occur, the resolution session meeting does not need to 
take place. However, unless such an agreement is reached, the 
failure of the party bringing the complaint to participate in the 
meeting will delay the timeline for convening a due process hearing 
until the meeting is held.
    Proposed Sec.  300.510 would incorporate the requirement from 
section 615(f)(1)(B) of the Act regarding the conducting of resolution 
sessions, unless waived by joint agreement of the parties prior to the 
opportunity for an impartial due process hearing.
    Proposed Sec.  300.511(a) and (b) would incorporate the language 
from section 615(f)(1)(A) of the Act regarding impartial due process 
hearings. Proposed Sec.  300.511(b) is the same as the current Sec.  
300.507(b). Proposed Sec.  300.511(c)(1) would incorporate the language 
regarding qualifications of hearing officers from section 615(f)(3)(A) 
of the Act, and would replace current language in Sec.  300.508(a) and 
(b) of the current regulations. Proposed Sec.  300.511(c)(2) and (3) 
would incorporate the regulatory language currently in Sec.  300.508(b) 
and (c) regarding the non-employee status of the hearing officer and 
the requirement for the public agency to keep a list of hearing 
officers and their qualifications. Proposed Sec.  300.511(d), (e) and 
(f) would include the new requirements in section 615(f)(3)(B), (C), 
and (D) of the Act concerning the subject matter of the due process 
hearings, timelines for requesting hearings and exceptions to the 
timelines.
    Proposed Sec.  300.512(a), (b), and (c) would incorporate the due 
process hearing rights addressed in section 615(f)(2) and (h) of the 
Act, and the current regulatory language in Sec.  300.509(a), (b) and 
(c)(1). The language in current Sec.  300.509(c)(2) concerning 
providing the record of the hearing and decision at no cost to the 
parents would be moved to proposed Sec.  300.512(c)(3). Under proposed 
Sec.  300.512(a)(4), parents would have a right to obtain copies of a 
written, or, at the option of the parents, electronic, verbatim record 
of the hearing and copies of findings of fact and decisions, and public 
agencies would remain responsible for ensuring that these rights are 
effectively implemented.
    Proposed Sec.  300.513(a) would reflect the new language in section 
615(f)(3)(E) of the Act concerning the nature of hearing officer 
decisions, including the requirement that decisions be made on 
substantive grounds, standards for when procedural violations can be 
found to deny FAPE, and clarifying that a hearing officer can order an 
LEA to comply with procedural requirements. Proposed Sec.  300.513(b) 
would incorporate the construction clause from section 615(f)(3)(F) of 
the Act, but would clarify that language based on note 225 of the Conf. 
Rpt., which indicates that the statutory reference to a complaint was 
intended to address a State-level administrative appeal process, if 
available in that State. Proposed Sec.  300.513(c) would incorporate 
the requirement from section 615(o) of the Act that nothing prevents a 
parent from filing a separate due process complaint on an issue 
separate from the due process complaint that has already been filed. 
However, note 220 of the Conf. Rpt. states that ``the Conferees intend 
to encourage the consolidation of multiple issues into a single 
complaint where such issues are known at the time of the filing of the 
initial complaint.''
    Proposed Sec.  300.513(d) would incorporate the current regulatory 
language from Sec.  300.509(d) concerning the availability of hearing 
decisions to the public and the State advisory panel, based on section 
615(h)(4) of the Act.
    Proposed Sec.  300.514, on finality of decisions, appeals, and 
impartial reviews, and Sec.  300.515, regarding timelines and 
convenience of hearings, would be the same as current Sec. Sec.  
300.510 and 300.511 respectively, with cross-references updated. 
Proposed Sec.  300.515(a) also would be revised to start the 45-day 
timeline from the expiration of the 30-day period for resolution under 
proposed Sec.  300.510, rather than from the date when the agency 
receives a request for a due process hearing. This change is based on 
new language in section 615(f)(1)(B)(ii) of the Act providing that the 
timelines for due process commence at the expiration of the resolution 
period.
    Proposed Sec.  300.516, on civil actions, would be essentially the 
same as the current Sec.  300.512 with updated references, and one 
substantive change. Specifically, proposed Sec.  300.516(b) would be 
added to reflect the new requirement in section 615(i)(2)(B) of the Act 
that provides for a time limit of 90 days from the date of the final 
State administrative decision to file a civil action, or if the State 
has an explicit time limitation for bringing a civil action under Part 
B of the Act, in the time allowed by that State law.
    Proposed Sec.  300.517, concerning attorneys' fees, would revise 
current Sec.  300.513 to reflect new language in section 615(i)(3)(B) 
through (G) of the Act. Proposed Sec.  300.517(a)(1) would reflect 
changes in section 615(i)(3)(B) of the Act providing that either the 
parents or an SEA or LEA could receive reasonable attorneys' fees in 
appropriate circumstances. Proposed Sec.  300.517(a)(2) would be added 
to reflect the language in section 615(i)(3)(B)(ii) of the Act 
clarifying that the attorneys' fees limitation in the District of 
Columbia Appropriations Act, 2005, P.L. 108-335, would not be affected 
by this regulation. Proposed Sec.  300.517(c)(2)(iii) would be added to 
incorporate language from section 615(i)(3)(D)(iii) of the Act 
providing that attorneys' fees are not available for preliminary 
meetings that are a part of the new resolution proceedings.
    Finally, proposed Sec.  300.517(c)(4)(i) would provide that action 
by either the parent, or the parent's attorney, to unreasonably 
protract the final resolution of the controversy would be a basis to 
reduce the amount of attorneys' fees, consistent with a corresponding 
change in section 615(i)(3)(F)(i) of the Act.
    Proposed Sec.  300.518, concerning the child's status during 
proceedings, would be substantially the same as the current regulation 
in Sec.  300.514, with appropriate updating of cross-references.
    Proposed Sec.  300.519 would revise the current regulation in Sec.  
300.515 concerning surrogate parents in the following ways: In proposed 
Sec.  300.519(a)(2), we would use the statutory word ``locate'' rather 
than the current ``discover the whereabouts'' of the parent. Proposed 
Sec.  300.519(a)(4) would be added to reflect the new language in 
section 615(b)(2)(A)(ii) of the Act requiring that a child's rights be 
protected if the child is an unaccompanied homeless youth as defined 
under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11431 et 
seq. Proposed Sec.  300.519(c) would be added to provide that a judge 
overseeing a child's case could appoint a surrogate if the child were a 
ward of the State, consistent with section 615(b)(2)(A)(i) of the Act. 
Proposed Sec.  300.519 would remove current Sec.  300.515(c)(3) 
regarding the option for a public agency to select as a surrogate an 
employee of a nonpublic agency that only provides noneducational care 
for the child, to ensure that surrogates do not have interests that 
conflict with the interest of the child. Proposed

[[Page 35810]]

Sec.  300.519(f) would be added concerning the potential appointment of 
temporary surrogates for unaccompanied homeless youth based on language 
in note 189 of the Conf. Rpt. providing that:

    The Conferees recognize that, because the parents of homeless 
unaccompanied youth may be unavailable or unwilling to participate 
in the youth's education, homeless unaccompanied youth face unique 
problems in obtaining a free appropriate public education.
    Accordingly, the Conferees intend that the surrogate parent 
process be available for such youth * * * the Conferees intend that 
appropriate staff members of emergency shelters, transitional 
shelters, independent living programs, and street outreach programs 
not be considered to be employees of agencies involved in the 
education or care of youth, for purposes of the prohibition of 
certain agency employees from acting as surrogates for parents * * 
*, provided that such role is temporary until a surrogate can be 
appointed that meets the requirements and such role in no way 
conflicts with, or is in derogation of, the provision of a free 
appropriate public education to these youth.

    Finally, in light of the new requirement in section 615(b)(2)(B) of 
the Act, proposed Sec.  300.519(h) would require that the SEA make 
reasonable efforts to ensure the assignment of a surrogate parent not 
more than 30 days after a public agency determines that a surrogate is 
needed. It is anticipated that only rare situations would cause the 
appointment of a surrogate to take 30 days.
    Proposed Sec.  300.520, concerning the transfer of parental rights 
at the age of majority, would be unchanged from the current regulatory 
language in Sec.  300.517. With regard to the permissive transfer of 
rights to individuals who are in correctional institutions, we would 
not include the reference, from the statute, to Federal correctional 
institutions, as States do not have an obligation to provide special 
education and related services under the Act to individuals in Federal 
facilities.

Discipline Procedures

    The discipline provisions of the regulations would be substantially 
revised or removed, in light of significant changes to section 615(k) 
of the Act. In light of these statutory changes, the current 
regulations in Sec. Sec.  300.520 through 300.528 would be removed. 
Proposed Sec.  300.530(a) would provide that school personnel may 
consider unique circumstances, on a case-by-case basis when deciding 
whether a change in placement, consistent with the requirements of 
proposed Sec.  300.530, would be appropriate for a particular child for 
a violation of a school code of student conduct. This provision would 
be based on statutory language in section 615(k)(1)(A) of the Act, and 
the Conf. Rpt. in notes 237-245, which provides that ``[It] is the 
intent of the Conferees that when a student has violated a code of 
conduct school personnel may consider any unique circumstances on a 
case-by-case basis to determine whether a change of placement for 
discipline purposes is appropriate.'' Proposed Sec.  300.530(b) would 
reflect the language in section 615(k)(1)(B)(1) of the Act, permitting 
school personnel to remove a child with a disability who violates a 
school code of conduct for not more than 10 school days, except that 
the regulatory language would clarify that these removals could be for 
not more than 10 consecutive school days, and that additional removals 
in the same school year would be possible, as long as those removals do 
not amount to a change of placement for the child. It is important for 
purposes of school safety and order to preserve the authority that 
school personnel have under the regulations to be able to remove a 
child for a discipline infraction for a short period of time, even 
though the child may have been removed for more than 10 days in that 
school year, as long as the pattern of removals does not itself 
constitute a change in placement of the child.
    However, because it is also important to preserve the concept from 
the current regulations that discipline not be used as a means of 
disconnecting a child with a disability from education, the requirement 
in proposed Sec.  300.530(b)(2) would provide that a child receive 
educational services consistent with paragraph (d) of Sec.  300.530 
after the first 10 days of removal in a school year.
    Paragraphs (c) and (d)(1) and (2) of proposed Sec.  300.530 would 
incorporate the statutory provisions from section 615(k)(1)(C) and (D) 
of the Act concerning removals for more than 10 school days and the 
provision of services during periods of removal. Proposed Sec.  
300.530(d)(3) would clarify that public agencies need not provide 
services to a child removed for 10 school days or less in a school 
year, as long as the public agency does not provide educational 
services to nondisabled children removed for the same amount of time. 
This is the same policy as in the current regulations in Sec.  
300.121(d)(1).
    Paragraph (d)(4) of proposed Sec.  300.530 would provide that where 
a child has been removed for more than 10 school days in the same 
school year, but not for more than 10 consecutive school days and not a 
change of placement, school personnel, in consultation with at least 
one of the child's teachers, would determine the extent to which 
services are needed, if any, and the location where needed services 
would be provided. We believe that this requirement is important to 
ensure that children with disabilities in this situation receive 
appropriate services, while preserving the flexibility of school 
personnel to move quickly to remove a child when needed and determine 
how best to address the child's needs during these relatively brief 
periods of removal. The consultation by school personnel with at least 
one of the child's teachers does not require that a meeting be held.
    Proposed Sec.  300.530(d)(5) would provide that the child's IEP 
Team determines appropriate services, including the location of 
services when a child is removed for more than 10 consecutive school 
days, or the removal otherwise is a change of placement. We believe 
that in instances of these longer-term removals, the child's IEP Team 
should make the determination of what services are appropriate for the 
child.
    Proposed Sec.  300.530(e) and (f) would incorporate the new 
requirements concerning manifestation determinations from section 
615(k)(1)(E) and (F) of the Act, with one addition. An introductory 
phrase would be included in proposed Sec.  300.530(e)(1) to clarify 
that a manifestation determination would not need to be conducted for 
removals for not more than 10 consecutive school days or that do not 
otherwise constitute a change of placement. This added language is 
consistent with the regulatory policy in current Sec.  300.523(a).
    Proposed Sec.  300.530(g) and (h) would incorporate the 
requirements from section 615(k)(1)(G) and (H) of the Act, which 
address the circumstances under which school personnel can remove a 
child for not more than 45 school days, including the new authority to 
remove a child who has inflicted serious bodily injury upon another 
person while at school, on school premises, or at a school function 
under the jurisdiction of an SEA or LEA. In addition, proposed Sec.  
300.530(h) would contain parental notification requirements. Proposed 
Sec.  300.530(i) would contain definitions drawn from section 615(k)(7) 
of the Act. The Act uses the definition of ``serious bodily injury'' 
from section 1365 of title 18, United States Code (i.e., ``bodily 
injury which involves--(A) a substantial risk of death; (B) extreme 
physical pain; (C) protracted or obvious disfigurement; or (D) 
protracted loss or impairment of the function of a bodily member, 
organ, or mental faculty'').

[[Page 35811]]

    Proposed Sec. Sec.  300.531 and 300.532(a) and (b) reflect the new 
language in section 615(k)(2) and (3) of the Act concerning the 
determination of the interim alternative educational setting by the IEP 
Team, the right to request a hearing to appeal placement and 
manifestation decisions, and the authority of the hearing officer in 
appeals under the discipline procedures. We add proposed Sec.  
300.532(b)(3) to the regulations to clarify that in appropriate 
circumstances, a school district could seek a subsequent hearing to 
continue a child in an interim alternative educational placement if the 
school district believes that the child would be dangerous if returned 
to his or her original placement at the end of a removal that was based 
on a determination that maintaining the child's regular placement was 
substantially likely to result in injury to the child or others. 
Proposed Sec.  300.532(c)(1) would incorporate the statutory right to a 
hearing from section 615(f)(1)(A) of the Act.
    Proposed Sec.  300.532(c)(2) would reflect the language in section 
615(k)(4)(B) of the Act regarding expedited timelines in cases of 
hearings under the discipline procedures. In proposed Sec.  
300.532(c)(3) and (4), we propose shortened timelines for the 
resolution session process in expedited hearings in light of the 
shortened timelines for these expedited hearings under the statute. 
Proposed Sec.  300.532(c)(5) and (6) would repeat language from current 
Sec.  300.528(c) and (d) that provides useful flexibility for States in 
designing their expedited hearing procedures.
    Proposed Sec.  300.533 would address the issue of the child's 
placement during appeals. This section would reflect the language in 
section 615(k)(4)(A) of the Act providing that the child remain in the 
interim alternative educational setting pending the decision of the 
hearing officer or the expiration of the time period provided for 
removals based on a determination that the behavior is not a 
manifestation of the child's disability. We would add, however, in 
proposed Sec.  300.530(g), that this provision also would apply to 
removals of up to 45 school days.
    Proposed Sec.  300.534 concerning, in the context of discipline, 
the protections for children not yet determined eligible for special 
education and related services would replace the current Sec.  300.527, 
and would reflect the new language in section 615(k)(5) of the Act. 
Proposed Sec.  300.535 would be essentially the same as current Sec.  
300.529, and is based on section 615(k)(6) of the Act. Proposed Sec.  
300.536 would include a description of when a change in placement 
occurs because of a disciplinary removal. The concept of change of 
placement under discipline is raised in section 615(k)(1)(A) and 
(k)(3)(B) of the Act, and it is important to have a clear understanding 
of when a change in placement occurs so as to ensure that discipline 
does not effectively result in the cessation of services to a child 
with a disability, in violation of the FAPE requirements in section 
612(a)(1)(A) of the Act. Proposed Sec.  300.536 is similar to current 
Sec.  300.519 but would include the additional provision that the 
child's behavior, if substantially similar to the child's behavior in 
the incidents that resulted in a series of removals, taken 
cumulatively, is a manifestation of the child's disability. This 
addition should assist in the appropriate application of the change in 
placement provisions.

Current Sections Incorporated Elsewhere in This Part

    Current Sec. Sec.  300.530 through 300.543 are incorporated into 
subpart D of these proposed regulations, as appropriate. Current 
Sec. Sec.  300.550 through 300.556 are incorporated into subpart B of 
these proposed regulations, as appropriate. Current Sec. Sec.  300.560 
through 300.577 are incorporated into subpart F of these proposed 
regulations. Current Sec. Sec.  300.580 through 300.586 and Sec.  
300.589 are incorporated in subpart B of these proposed regulations. 
Current Sec.  300.587 is incorporated into subpart F of these proposed 
regulations, as appropriate.

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

Monitoring, Technical Assistance and Enforcement

    Subpart F reflects certain portions of section 616 of the Act that 
address State activities and those activities where the Department must 
establish and enforce particular procedures for withholding actions. 
Proposed Sec.  300.600 would reflect the new provisions of section 
616(a) and (b)(2)(c)(ii) of the Act concerning monitoring and 
enforcement, which sets forth the responsibility of States to monitor 
the implementation of, enforce, and annually report on performance 
under part 300. Proposed Sec.  300.600 would further reflect the new 
statutory requirement that the primary focus of monitoring is on 
improving educational results and functional outcomes for children with 
disabilities. The provisions of current Sec.  300.600 have been moved 
to proposed Sec.  300.149 to follow the order of the Act. Proposed 
Sec.  300.600(c) would reflect new requirements in section 616(a)(3) of 
the Act that States measure performance in monitoring priority areas 
using quantifiable indicators and such qualitative indicators as are 
needed to adequately measure performance. Proposed Sec.  300.600(c) 
clarifies that these indicators are established by the Secretary in the 
context of informing States of what they need to do under the State's 
performance plan.
    Proposed Sec.  300.601 would reflect new statutory language 
requiring States to have a performance plan that evaluates their 
efforts to implement the requirements and purposes of part 300 and 
describes how the State will improve implementation within one year of 
enactment of the Act. Under proposed Sec.  300.601 the plan must 
establish measurable and rigorous targets for the indicators 
established by the Secretary under the priority areas described in 
section 613(a)(3) of the Act and must be submitted to the Secretary for 
approval. Consistent with the new statutory language, proposed Sec.  
300.601 would require States to review their performance plans at least 
once every six years and submit any amendments to the Secretary. The 
proposed regulation also incorporates the statutory requirements from 
section 616(b)(2)(B)(ii) regarding data collection and specifies that 
nothing in these regulations authorizes the development of a nationwide 
database of personally identifiable information on individuals involved 
in studies or other data collections. These provisions are based on 
section 616(b)(1), (2)(A) and (2)(B) of the Act.
    Proposed Sec.  300.601(b)(1) contains language requiring that each 
State must collect valid and reliable information on all the indicators 
in the performance plan concerning the priority areas in section 
616(a)(3) of the Act.
    Proposed Sec.  300.602 would reflect new statutory language from 
section 616(b)(2)(C) of the Act requiring States to use the targets 
established in their performance plans to analyze the performance of 
each LEA. These targets will include the priority areas in section 
616(a)(3) of the Act. Under proposed Sec.  300.602, which largely 
tracks the language in section 616(b)(2)(C) of the Act, States would be 
required to report annually to the public on the performance of each 
LEA in the State on the targets in the performance plan and make the 
performance plan available to the public. Notes 253 through 258 of the 
Conf. Rpt. explain that the expectation is that the State performance 
plans, indicators and targets are to be developed with broad 
stakeholder input

[[Page 35812]]

and public dissemination. Proposed Sec.  300.602(b)(1)(i) would include 
the statutory requirements from section 616(b)(2)(C) of the Act that 
States report annually to the public on the performance of each LEA in 
the State on the targets in the State's performance plan, and make the 
State's performance plan publicly available. Proposed Sec.  
300.602(b)(1)(ii) would add that if the State, in meeting the 
requirements of Sec.  300.602(b)(1)(i), collects performance data 
through State monitoring or sampling, the State must include in its 
report the most recently available performance data on each LEA and the 
date the data were obtained. When appropriate, monitoring or sampling 
can be an effective means of data collection, reduce burden on States, 
and provide meaningful information on LEAs' performance.
    Reflecting new language in section 616(b)(2)(C) of the Act, 
proposed Sec.  300.602(b)(2) also would require each State to report 
annually to the Secretary on the performance of the State under its 
performance plan, but the State would not be required to report to the 
public or the Secretary any information on performance that would 
disclose personally identifiable information about individual children. 
Furthermore, under proposed Sec.  300.602(b)(3), States would not be 
required to report their student data if the available data are 
insufficient to yield statistically reliable information.
    Proposed Sec.  300.603 would reflect new language in section 616(d) 
of the Act requiring the Secretary to review the State's annual 
performance report and based on information in the annual performance 
report, or information obtained through monitoring visits or other 
public information, determine if the State (1) meets the requirements 
and purposes of Part B of the Act, (2) needs assistance in implementing 
the requirements of Part B of the Act, (3) needs intervention in 
implementing the requirements of Part B of the Act, or (4) needs 
substantial intervention in implementing the requirements of Part B of 
the Act. Proposed Sec.  300.603(b)(2) would reflect the language from 
section 616(d)(2)(B) of the Act that would provide States with notice 
and an opportunity for a hearing for determinations under proposed 
Sec.  300.603(b)(1)(iii) and (b)(1)(iv). Proposed Sec.  
300.603(b)(2)(ii) also would clarify that the hearing would consist of 
an opportunity to meet with the Assistant Secretary for the Office of 
Special Education and Rehabilitative Services to demonstrate why the 
Department should not make the determination. We propose this 
regulatory provision because the Department has determined that this 
type of hearing would provide the appropriate amount of process due a 
State prior to one of these determinations. Should specific enforcement 
action subsequently be contemplated, as provided for in section 616(e) 
of the Act, other hearing procedures then may apply, as provided for in 
proposed Sec.  300.604 and in the General Education Provisions Act as 
amended, 20 U.S.C. 1221 et seq. (GEPA), and implementing regulations.
    Proposed Sec.  300.604 (Enforcement) would reflect new requirements 
in section 616(e) of the Act that set forth the various actions the 
Secretary takes with respect to each State's level of compliance as 
determined by the Secretary's review of the state performance reports 
under proposed Sec.  300.603. Thus, if the Secretary determines that a 
State needs assistance, needs intervention, or needs significant 
intervention, there are specific enforcement actions that the Secretary 
may take. For example, if it is determined that a State needs 
substantial intervention, the Secretary takes one or more of the 
actions described in paragraph (c) of proposed Sec.  300.604, including 
recovering funds under section 452 of GEPA, withholding in whole or in 
part any further payments to the State under Part B of the Act, 
referring the case to the Office of the Inspector General at the 
Department of Education, or referring the matter for appropriate 
enforcement action, which may include referral to the Department of 
Justice.
    Under proposed Sec.  300.604(d), the Secretary reports to 
appropriate congressional committees within 30 days of taking 
enforcement action against a State for any of the levels of compliance 
described in the preceding paragraph, describing the specific action 
that has been taken, and the reasons why the action was taken.
    Proposed Sec.  300.605(a), which reflects the language in section 
616(e)(4)(A) of the Act on reasonable notice and the opportunity for a 
hearing prior to a withholding, would essentially be the same as 
current Sec.  300.587(c)(4).
    Proposed Sec.  300.605(b) would reflect new language from section 
616(e)(4)(B) of the Act that, pending the outcome of any hearing to 
withhold payments, the Secretary may do one or both of the following: 
Suspend payments to a recipient or suspend authority of the recipient 
to obligate funds under Part B of the Act provided that the recipient 
has been given reasonable notice and an opportunity to show cause why 
future payments or the authority to obligate Part B funds should not be 
suspended. Proposed Sec.  300.605(c) on the nature of withholding 
actions would reflect the current regulatory provisions in Sec.  
300.587(c)(1) and (c)(2) with minor language revisions to make the 
section consistent with the language in section 616(e)(6) of the Act.
    Proposed Sec.  300.606, on bringing pending withholding actions to 
the attention of the public, would reflect the new language in section 
616(e)(7) of the Act, which is very similar to the language in current 
Sec.  300.587(c)(3), except that section 616(e)(7) of the Act would 
apply to States only and not to SEAs, LEAs, or other agencies.
    Proposed Sec.  300.607 regarding divided State responsibility would 
reflect the regulatory language in current Sec.  300.587(e), which is 
consistent with the language from section 616(h) of the Act.
    Proposed Sec.  300.608 would reflect the new language in section 
616(f) of the Act that requires an SEA to prohibit an LEA from reducing 
the LEA's maintenance of effort under 613(a)(2)(C) if the SEA 
determines that the LEA is not meeting the requirements of Part B of 
the Act, including the targets in the State's performance plan.
    Consistent with the new statutory provisions in section 616(e) of 
the Act, proposed Sec.  300.609 would provide that nothing in the 
proposed regulations restricts the Secretary from utilizing any 
authority under GEPA to monitor and enforce the requirements under the 
Act.

Confidentiality of Information

    Proposed Sec.  300.610 would reflect the provision in section 
617(c) of the Act regarding confidentiality of information. Proposed 
Sec. Sec.  300.611 through 300.627 on the confidentiality of 
information would be the same as current Sec. Sec.  300.560 through 
300.575 and 300.577, with minor updates to cross-references. (Current 
Sec.  300.576 would be addressed in proposed Sec.  300.229.)

Reports--Program Information

    Proposed Sec. Sec.  300.640 through 300.646 on program information 
would substantially reflect the regulatory provisions from current 
Sec. Sec.  300.750 through 300.755, with some changes. Proposed Sec.  
300.640(a) would remove the requirement from current Sec.  300.750 that 
the information required by section 618 of the Act be submitted no 
later than February 1 and would replace it with the requirement that 
the information be submitted at times specified by the Secretary. 
Proposed Sec.  300.640(b) on reporting on forms provided by the 
Secretary would be the same as the

[[Page 35813]]

regulatory language in current Sec.  300.750(b).
    Proposed Sec.  300.641(a) would revise the regulatory provisions in 
current Sec.  300.751 by removing the age spans listed in current Sec.  
300.751(a)(1) through (a)(3). Proposed Sec.  300.641 also would remove 
the requirement from current Sec.  300.751(c) that reports must include 
the number of children with disabilities within each disability 
category. SEAs must specify information required by these regulatory 
provisions on the forms provided by the Secretary pursuant to proposed 
Sec.  300.640(b). Finally, proposed Sec.  300.641(a) would permit 
States to count children with disabilities for purposes of the 
reporting required by proposed Sec.  300.640 on any date between 
October 1 and December 1 of each year. This change will provide States 
greater flexibility in coordinating their IDEA Part B child count date 
with counts they conduct for other State purposes, while providing 
reasonable consistency across States.
    Proposed Sec.  300.641(b), regarding age at count date, would be 
substantially the same as current regulation Sec.  300.751(b), but 
would reflect the revision in the count date proposed in paragraph (a) 
of this section. Proposed Sec.  300.641(c) and (d) would be 
substantially the same as the regulatory provisions in current Sec.  
300.751(e) and (f) regarding how to meet the reporting requirements.
    Proposed Sec.  300.642(a) would reflect the new provisions in 
section 618(b)(1) of the Act requiring each State to report data in a 
manner that does not result in disclosure of personally identifiable 
information. Proposed Sec.  300.642(b) on sampling, which reflects the 
language in section 618(b)(2) of the Act, would be substantially 
unchanged from current Sec.  300.751(d).
    Proposed Sec.  300.643 on certification of the annual report of 
children served is substantially unchanged from current Sec.  300.752.
    Proposed Sec.  300.644 on criteria for counting children in the 
annual report of children served would be substantially unchanged from 
current Sec.  300.753(a). Current 300.753(b) on reporting on children 
receiving special education that is solely funded by the Federal 
government would be removed as unnecessary because the funding formula 
is no longer based on child count. Proposed Sec.  300.644(c) clarifies 
current Sec.  300.753(a)(3) regarding the counting of children enrolled 
by their parents in private schools.
    Proposed Sec.  300.645 on other responsibilities of the SEA related 
to the annual report of children served would be the same as current 
Sec.  300.754.
    Proposed Sec.  300.646(a) would revise the regulatory provisions in 
current Sec.  300.755 on determination of significant 
disproportionality to reflect changes in section 618(d) of the Act. 
Proposed Sec.  300.646(a) would include new language requiring States 
to collect and examine data on disproportionality based on ethnicity as 
well as race. Proposed Sec.  300.646(a) also would require States to 
determine if significant disproportionality is occurring in the State 
as well as within the LEAs of the State. Proposed Sec.  300.646(a)(1) 
and (a)(2) on collecting and examining data related to identification 
of children with disabilities would be the same as the regulatory 
language in current Sec.  300.755(a)(1) and (a)(2). Proposed Sec.  
300.646(a)(3) would reflect the new provisions in section 618(d)(1)(C) 
of the Act requiring States to collect and examine race and ethnicity 
data with respect to the incidence, duration and type of disciplinary 
actions, including suspensions and expulsions.
    Proposed Sec.  300.646(b)(1) concerning the review and revision of 
policies, practices and procedures, which reflects the language in 
section 618(d)(2) of the Act, would be the same as current Sec.  
300.755(b). Proposed Sec.  300.646(b)(2) would incorporate the new 
requirement in section 618(d)(2)(B) of the Act that States must ensure 
that any LEA identified under proposed Sec.  300.646(b)(1) as having 
policies, practices, or procedures that do not comply with Part B of 
the Act reserves the maximum amount of funds under section 613(f) of 
the Act to provide comprehensive coordinated early intervening services 
to children in the LEA, particularly children in those groups that were 
significantly overidentified. Proposed Sec.  300.646(b)(3) would 
incorporate new language from section 618(d)(2)(C) of the Act that 
requires the LEA to report on the revision of policies, practices and 
procedures that do not comply with the Act.

Subpart G: Authorization; Allotment; Use of Funds; Authorization of 
Appropriations

    Proposed subpart G would reflect the provisions in section 611 of 
the Act regarding the Department's allocation of Part B section 611 
funds to States, outlying areas, the freely associated States, and the 
Secretary of the Interior. The proposed title of subpart G, 
``Authorization; Allotment; Use of Funds; Authorization of 
Appropriations,'' would be revised from ``Allocation of Funds; 
Reports'' to reflect the statutory headings listed under section 611 of 
the Act.
    Proposed Sec.  300.700, regarding grants to States, would contain 
the language in current Sec.  300.701 but would be revised to reflect 
the order of, and revisions to, section 611(a) of the Act. Specific 
revisions would include the changes that were made in: (1) Section 
611(a)(1) of the Act to include a reference to freely associated States 
as receiving Part B grants; (2) section 611(a)(2)(A) of the Act to 
clarify that the current definition of the maximum amount a State may 
receive applies for fiscal years 2005 and 2006; and (3) section 
611(a)(2)(B) of the Act to clarify the maximum amount a State may 
receive for fiscal year 2007 and subsequent fiscal years and to allow 
for adjustments described in 611(a)(2)(B)(iii) of the Act. The 
adjustments would be reflected in proposed Sec.  300.700(b)(2)(iii). 
Current Sec.  300.700, regarding the special definition of the term 
State, and current Sec.  300.702, regarding the definition of average 
per-pupil expenditure in public elementary and secondary schools in the 
United States, would not be substantively changed but would be moved to 
proposed Sec.  300.717 to a general ``Definitions'' section for subpart 
G.
    Proposed Sec.  300.701, regarding grants to outlying areas and 
freely associated States, and the Secretary of the Interior, would 
incorporate the language in the current regulations in Sec. Sec.  
300.715(a), 300.717, 300.719, and 300.720, as revised to reflect 
changes in section 611(b) of the Act. Proposed Sec.  300.701 would not 
contain the definition of ``freely associated states'' from section 
611(b)(1)(C) of the Act. The definition of ``freely associated 
states,'' which is substantively unchanged, would be in proposed Sec.  
300.717 in the general ``Definitions'' section for subpart G. As noted 
in the preceding paragraph, current Sec.  300.701, regarding grants to 
States, would be moved to proposed Sec.  300.700, consistent with the 
structure of section 611 of the Act. Proposed Sec.  300.701(a)(1)(ii) 
would clarify the provision in section 611(b)(1)(A)(ii) of the Act that 
requires that, as a condition of receiving a grant under this part, 
each freely associated State must meet the ``applicable requirements of 
Part B of the Act.'' The proposed revision would specify what the 
``applicable requirements'' are, similar to what is done with respect 
to information requirements for the Secretary of the Interior in 
current Sec.  300.260 (proposed Sec.  300.708).
    Proposed Sec.  300.702, regarding technical assistance, would 
contain the language in section 611(c) of the Act, which allows the 
Secretary to reserve Part B funds to support technical

[[Page 35814]]

assistance activities authorized under section 616(i) of the Act.
    Proposed Sec.  300.703, regarding allocations to States, would be 
revised to incorporate the language of current Sec. Sec.  300.703 and 
303.706 through 303.709. The proposed regulation would be revised to 
reflect section 611(d) of the Act, which: (1) Requires the Secretary to 
allocate Part B funds to States after reserving funds for technical 
assistance under section 611(c) of the Act and making payments to 
outlying areas, the freely associated States and the Secretary of 
Interior under section 611(b); (2) removed language regarding interim 
and permanent formulas; and (3) established 1999 as the base year for 
minimum state allocations under section 611(d)(3)(A)(i)(I) and 
(B)(ii)(I) of the Act and calculations of ratable reductions if the 
amount available for allocations to States is less than the amount 
allocated for the preceding fiscal year under section 611(d)(4) of the 
Act.
    Proposed Sec.  300.704, regarding State-level activities, would 
incorporate certain provisions of section 611(e) of the Act regarding 
the use of Part B funds under section 611 of the Act for authorized 
State-level activities. Proposed Sec.  300.704(a)(1) and (2) would 
contain the new maximum amount States and outlying areas may reserve 
for State administration. The proposed regulation would establish 
fiscal year 2004 as the base year for States (as defined under proposed 
Sec.  300.717) and the greater of $35,000 or five percent of the Part B 
grant for outlying areas and would provide for cumulative annual 
adjustments based on the rate of inflation to the maximum amount a 
State may reserve, consistent with section 611(e)(1)(A) and (B) of the 
Act. Proposed Sec.  300.704(a)(3) would contain the new certification 
requirement language in section 611(e)(1)(C) of the Act that prior to 
the expenditure of funds under section 611(e)(1) of the Act, the State 
must certify to the Secretary that the arrangements to establish 
financial responsibility for services pursuant to section 612(a)(12)(A) 
of the Act are current. Proposed Sec.  300.704(a)(4) would contain a 
regulatory provision that would allow SEAs that reserve funds under 
Sec.  300.704(a) to use Part B State administration funds to administer 
Part C of the Act if the SEA is the lead agency designated under Part 
C, consistent with section 611(e)(1)(D) of the Act.
    Proposed Sec.  300.704(b)(1) and (2) would generally reflect and 
clarify the new requirements in section 611(e)(2)(A) of the Act 
regarding the amount of funds that States may reserve for other State-
level activities, depending on the amount they reserve for 
administration and whether they establish a high-cost fund under 
section 611(e)(3) of the Act. Proposed Sec.  300.704(b)(3) would 
incorporate the new provision in section 611(e)(2)(B) of the Act, but 
would clarify that some portion of funds reserved for other State-level 
activities under Sec.  300.704(b)(1) must be used for monitoring, 
enforcement and complaint investigation, and to establish and implement 
the mediation process required under section 615(e) of the Act. 
Proposed Sec.  300.704(b)(3) would not prohibit States from using State 
funds for these monitoring, enforcement, complaint investigation, or 
mediation activities.
    Proposed Sec.  300.704(b)(4) would incorporate section 611(e)(2)(C) 
of the Act, which allows funds reserved for other State-level 
activities under Sec.  300.704(b)(1) to be used for certain authorized 
activities. These activities would include support and direct services, 
paperwork reduction activities and capacity building activities, and 
improving the delivery of services by LEAs, improving the use of 
technology in the classroom and supporting its use, developing and 
implementing postsecondary transition programs, providing technical 
assistance to schools and LEAs identified for improvement under section 
1116 of the ESEA, and assisting LEAs in providing positive behavioral 
interventions and supports and appropriate mental health services for 
children with disabilities and meeting personnel shortages.
    Proposed Sec.  300.704(c) would contain a new provision that 
incorporates the language of section 611(e)(3) of the Act regarding the 
State's option to use ten percent of the amount it reserves for other 
State-level activities under Sec.  300.704(b)(1) for financing an LEA 
high cost fund and would set forth detailed content and timeline 
requirements for the State's plan for the high cost fund. Proposed 
Sec.  300.704(c)(1)(i)(A) would clarify the statutory language by 
providing that these funds would be used by a State to finance the high 
cost fund and to make disbursements from that fund. Proposed Sec.  
300.704(c)(1)(i)(B) and (ii) would reflect the statutory language on 
using the high cost fund to support innovative cost sharing and the 
special definition of LEA that applies in this context. Proposed Sec.  
300.704(c)(2)(i) would generally reflect the language in section 
611(e)(3)(B)(i) of the Act, but also would clarify that the funds 
reserved for the high cost fund are solely for disbursement to the LEAs 
and may not be used for costs associated with establishing, supporting, 
and otherwise administering the high cost fund. This provision also 
would specify that the State may use State administration funds under 
Sec.  300.704(a) for those administrative costs, consistent with the 
language in section 611(e)(3)(B)(i) of the Act.
    Proposed Sec.  300.704(c)(2)(ii) would limit States to not more 
than five percent of the funds they reserve each fiscal year under 
proposed Sec.  300.704(c) to support innovative cost sharing, 
consistent with section 611(e)(3)(B)(ii) of the Act.
    Proposed Sec.  300.704(c)(3) would incorporate the requirements in 
section 611(e)(3)(C) of the Act, regarding the State plan for the high 
cost fund, with one addition. Proposed Sec.  300.704(c)(3)(i)(C) would 
add a requirement that the State plan establish criteria to ensure that 
the placements of children whose costs are supported under the high 
cost fund are made consistent with the LRE requirements. This would 
reinforce that the funds would not be used to encourage inappropriate 
placements outside of the general education environment. Nothing in the 
proposed regulations would prohibit an SEA from using high cost funds 
to support costs of providing appropriate services in a general 
education environment when those costs meet the standard established by 
the State in its State plan. Proposed Sec.  300.704(c)(3)((i)(A)(2) 
would incorporate the requirement in section 611(e)(3)(C)(ii)(I)(bb) of 
the Act that the State must establish a definition of a high need child 
with a disability that, at a minimum, ensures that the cost of the high 
need child with a disability is greater than three times the average 
per pupil expenditure (APPE). Under this provision, a State could, for 
example, establish a definition that ensures that the cost of a high 
need child with a disability is four times greater than the APPE.
    Proposed Sec.  300.704(c)(4) through (c)(6) would incorporate the 
requirements in section 611(e)(3)(D) through (F) of the Act regarding 
disbursements from the fund, legal fees, and assurance of FAPE, with 
two additions. In proposed Sec.  300.704(c)(4)(ii), we would add 
language on appropriate costs to clarify that the costs of room and 
board for a necessary residential placement could be supported by the 
high cost fund. Proposed Sec.  300.704(c)(4)(iii) would provide that 
the funds in the high cost fund would remain under the control of the 
SEA until disbursed, under the State

[[Page 35815]]

plan, to support a specific child, or until reallocated to LEAs in the 
subsequent year. This provision is needed to make clear that these 
funds must be distributed to LEAs under the high cost State plan 
formula.
    Proposed Sec.  300.704(c)(7) through (9) would incorporate the 
provisions of section 611(e)(3)(G) through (I) of the Act regarding the 
special rule for risk pool and high need assistance programs that 
predated the new statute, the effect on Medicaid services, and the 
reallocation of funds remaining at the end of the fiscal year. Proposed 
Sec.  300.704(c)(9) generally would reflect and clarify the requirement 
in section 611(e)(3)(I) of the Act that funds reserved for a high cost 
fund, but not spent in accordance with section 611(e)(3)(D) of the Act 
before the beginning of their last year of availability for obligation, 
must be allocated to LEAs in the same manner as other funds from the 
appropriation for that fiscal year are allocated to LEAs under section 
611(f) of the Act during their final year of availability. States that 
are not reserving funds for the high cost fund, but that offer LEAs 
support for extraordinary expenses for particular children from other 
funds would not need to develop a State plan for a high cost fund under 
the proposed regulations.
    Proposed Sec.  300.704(d) would incorporate the language of section 
611(e)(4) of the Act, which contains the exemptions of funds reserved 
for administration and other State-level activities from Part B's 
commingling and nonsupplanting provisions in sections 612(a)(17)(B) and 
(C) of the Act. Proposed Sec.  300.704(e) would incorporate section 
611(e)(6) of the Act, which allows a State to use funds reserved for 
administration under Sec.  300.704(a)(1) as a result of inflationary 
increases to carry out activities such as providing support and direct 
services, assisting LEAs in providing positive behavioral interventions 
and supports, assisting LEAs in meeting personnel shortages, and 
supporting capacity building, as authorized under Sec.  
300.704(b)(4)(i), (iii), (vii), or (viii). Proposed Sec.  300.704(f) 
would incorporate the new provisions of section 611(e)(7) of the Act 
that allow flexibility in using certain Part B funds (identified in 
sections 611(e)(1)(A), 611(f)(3) and 619(f)(5) of the Act). States may 
use these funds to develop and implement a State policy option that is 
available under section 635(c) of the Act for making Part C early 
intervention services available to children beyond age three who are 
eligible under section 619 under the circumstances set forth under 
proposed Sec.  300.704 and Part C of the Act.
    Proposed Sec.  300.705, regarding subgrants to LEAs, would contain 
the language in current Sec. Sec.  300.711, 300.712, and 300.714 and 
would incorporate section 611(f) of the Act regarding State subgrants 
to LEAs using Part B section 611 funds. Proposed Sec.  300.705(a) would 
specify that LEAs include public charter schools that operate as LEAs, 
consistent with section 611(f)(1) of the Act. The language in current 
Sec.  300.713 regarding former Chapter 1 State agencies would be 
removed as the corresponding statutory provision was also removed. 
Proposed Sec.  300.705(b)(1) and (2) would establish 1999 as the base 
year for allocation to LEAs, consistent with section 611(f)(2)(A) of 
the Act.
    Proposed Sec.  300.706 would contain the language in current Sec.  
300.710 regarding allocations to a State in which a by-pass is 
implemented for parentally-placed private school children with 
disabilities, consistent with section 612(f) of the Act, with cross-
references updated.

Secretary of The Interior--Eligibility

    Proposed Sec. Sec.  300.707 through 300.716 would incorporate and 
update current Sec. Sec.  300.260 through 300.267 and Sec. Sec.  
300.715 through 300.716 based on the requirements in section 611(h) of 
the Act concerning the payment to the Secretary of the Interior.
    Proposed Sec.  300.707(a) would add new definitions of Reservation 
and Tribal governing body of a school to apply for purposes of 
Sec. Sec.  300.707 through 300.716. The term reservation would be 
defined to mean Indian Country under 18 U.S.C. 1151. The term tribal 
governing body of a school would be defined to mean the body or bodies 
of the Indian tribe involved and that represent at least 90 percent of 
the students served by the school. Adding these definitions should 
provide clarity to the responsibilities of the Department of the 
Interior under the IDEA.
    The Department of Education seeks comment on the necessity of 
adding a new definition of LEA for the purposes of regulations related 
to schools operated or funded by the Secretary of the Department of the 
Interior. The Department of Education also seeks comment on the 
necessity of adding a new definition of SEA for the purposes of 
regulations related to schools operated or funded by the Secretary of 
the Department of the Interior.
    Proposed Sec.  300.707(b) would incorporate current Sec.  
300.715(b) and add the new requirement in section 611(h)(1)(A)(i) and 
(ii) of the Act that 80 percent of the amount allotted under section 
611(b)(2) of the Act must be allocated to elementary schools and 
secondary schools operated or funded by the Secretary of the Interior 
by July 1, after the Secretary of the Interior reserves funds for 
administration under proposed Sec.  300.710. The remaining 20 percent 
must be allocated to those schools by September 30. Current Sec.  
300.715(a) is reflected in section 611(b)(2) of the Act and would be 
incorporated in proposed Sec.  300.701(b) to align with the order of 
section 611. Current Sec.  300.715 (c) has been removed from the 
regulations because a State can no longer require a BIA funded school 
to attain or maintain State accreditation. This provision is not 
applicable at this time. Paragraph (c) of proposed Sec.  300.707 would 
reflect the language in section 611(h)(1)(C) of the Act concerning 
children aged 3 through 21 on reservations. This provision would 
replace current Sec.  300.300(c) to align with the order of the 
statute. Under paragraph (c) of proposed Sec.  300.707, with respect to 
all other children aged 3 through 21 on reservations, the SEA of the 
state in which the reservation is located, must ensure that all of the 
requirements of Part B of the Act are implemented. Generally, if the 
reservation were located in more than one State, the State in which the 
student resides would be responsible for ensuring the requirements of 
Part B of the Act are met for that student.
    Proposed Sec.  300.708 would incorporate current Sec.  300.260, 
update references to the eligibility requirements that apply to the 
Secretary of the Interior to reflect the new requirements in the Act, 
and add one new paragraph discussed as follows. Paragraph (a) of 
proposed Sec.  300.708 would modify current Sec.  300.260(a) by 
updating references to section 612 of the Act and adding the new 
requirements in section 612 of the Act that apply to the Secretary of 
the Interior. Paragraph (b) of proposed Sec.  300.708 would incorporate 
current Sec.  300.260(b). Paragraph (c) of proposed Sec.  300.708 would 
incorporate current Sec.  300.260(c) with updated references to section 
613 of the Act. Paragraph (c) of proposed Sec.  300.708 also would 
clarify that references to LEAs in section 613 of the Act that are 
included in proposed Sec.  300.708(c) must be read as references to 
elementary schools and secondary schools for Indian children operated 
or funded by the Secretary of the Interior. Proposed Sec.  300.708 
would add a new paragraph (d) that would reflect the requirements in 
section 611(h)(2)(A) and (F) and section 611(h)(3) of the Act, which 
provide that the monitoring and enforcement requirements in section 616 
of the Act apply to the Secretary of

[[Page 35816]]

the Interior. Paragraph (d) of proposed Sec.  300.708 would also 
clarify that references to LEAs in section 616 of the Act must be read 
as references to elementary schools and secondary schools for Indian 
children operated or funded by the Secretary of the Interior.
    Proposed paragraphs (e) through (j) of proposed Sec.  300.708 would 
incorporate current Sec.  300.260(d) through (i), with cross-references 
updated. Consistent with section 611(h)(3) of the Act, proposed Sec.  
300.708(j) would remove the sentence in current Sec.  300.260(i) that 
section 616(a) of the Act applies to the information described in this 
section. Instead, the proposed regulation would add a sentence 
providing that the Secretary withholds payments under Sec.  300.707 
with respect to the requirements described in this section in the same 
manner as the Secretary withholds payments under section 616(e)(6) of 
the Act.
    Proposed Sec. Sec.  300.709 through 300.710 would incorporate the 
current regulations in Sec. Sec.  300.261 through 300.262 concerning 
public participation and use of Part B funds for administration, with 
cross-references updated.
    Proposed Sec.  300.711 would add a provision that would permit the 
Secretary of the Interior to allow each elementary school and secondary 
school for Indian children operated or funded by the Secretary of the 
Interior to use funds to develop and implement coordinated, early 
intervening services consistent with section 613(f) of the Act.
    Proposed Sec.  300.712 would incorporate the current regulation in 
Sec.  300.716 concerning payments for education and services for Indian 
children with disabilities aged three through five with cross-
references updated.
    Proposed Sec.  300.713 would incorporate the current regulation in 
Sec.  300.263 regarding the plan for coordination of services. This 
provision does not make the BIA responsible for services for children 
with disabilities not enrolled in BIA funded schools. The Department of 
Education seeks comment on the best way to implement section 611(h)(5) 
of the Act for developing a plan for coordination of services on 
reservations. The Department of Education seeks comments on how a plan 
would be developed to cover those reservations where the State provides 
all services and those reservations where the State and BIA provide 
services.
    The proposed regulations would remove current Sec.  300.264, which 
sets out the definition of Indian and Indian tribe. Proposed Sec.  
300.21 would incorporate the definition of Indian and Indian tribe.
    Proposed Sec. Sec.  300.714 through 715 would incorporate current 
Sec. Sec.  300.265 through 300.266 regarding the establishment of the 
advisory board and annual reports.
    Proposed Sec.  300.716 would incorporate current Sec.  300.267 
regarding the regulatory provisions that apply to the Secretary of the 
Interior, with cross-references updated and regulatory provisions added 
that implement the new statutory requirements that apply to the 
Secretary of the Interior.
    Proposed Sec.  300.717 would contain definitions that would be 
substantively unchanged from current regulations and that would apply 
only in subpart G. The defined terms would be: ``freely associated 
States'' (from section 611(b)(1)(C) of the Act), ``outlying areas'' 
(from section 602(22) of the Act), ``State'' (from section 611(g) of 
the Act), and ``Average per-pupil expenditure in public elementary and 
secondary schools in the United States'' (from section 611(g) of the 
Act). The definitions for ``outlying areas,'' ``State,'' and ``Average 
per-pupil expenditure in public elementary and secondary schools in the 
United States'' are contained in current Sec. Sec.  300.718, 300.700, 
and 300.702, respectively.
    Proposed Sec.  300.718, regarding the acquisition of equipment and 
the construction or alteration of facilities, would incorporate the 
requirements of current Sec.  300.756.
    Current requirements in Sec. Sec.  300.750 through 300.755 
regarding State Part B data reporting requirements under section 618 of 
the Act would be moved to proposed Sec. Sec.  300.640 through 300.646 
in subpart F, consistent with the structure of the Act.

Subpart H--Preschool Grants for Children With Disabilities

    Proposed Sec. Sec.  300.800 through 300.818 would reflect an 
overall change in the placement of the Preschool Grants for Children 
with Disabilities Program from current 34 CFR part 301 to subpart H of 
part 300. Proposed Sec. Sec.  300.800 through 300.810 and Sec. Sec.  
300.812 through 300.818 would incorporate current language from 34 CFR 
part 301, but with minor changes to reflect statutory language and the 
structure of the Act. Proposed Sec.  300.811 would be added to clarify 
how the Secretary would make allocations under section 619 of the Act 
for a State in which a by-pass is implemented for parentally-placed 
private school children with disabilities. Proposed Sec.  300.813(b) 
would reflect the statutory change in section 619(e) of the Act that a 
State may use funds reserved for administration for the administration 
of Part C of the Act even if the SEA is not the lead agency under Part 
C of the Act. Proposed Sec.  300.814 would incorporate two new 
substantive amendments from section 619(f) of the Act concerning the 
use of funds reserved for other State-level activities.
    Proposed Sec.  300.800 would reflect the language in section 619(a) 
of the Act describing the general purpose of the program. This 
provision would replace current Sec.  301.1.
    Consistent with a change made in subpart A, the current Sec.  
301.4, regarding applicable regulations, would be removed, as those 
regulations apply by their own terms.
    Proposed Sec.  300.803 would specify the definition of State, which 
would be the same as the definition used in current Sec.  301.5, except 
that it would add the phrase, ``As used in this subpart'' to reflect 
different usages of the term in other subparts. Other definitions in 
current Sec.  301.5 would be removed as unnecessary or as already 
covered in subpart A.
    Proposed Sec.  300.804 would describe a State's eligibility for 
grants under section 619 of the Act, consistent with section 619(b) of 
the Act. This provision would replace current Sec.  301.10.
    Proposed Sec.  300.806, concerning sanctions, would update current 
Sec.  301.12(c) to be consistent with section 681(e) of the Act. 
Paragraphs (a) and (b) of current Sec.  301.12 would be removed. 
Paragraph (a) of current Sec.  301.12 would be reflected in proposed 
Sec.  300.804. Paragraph (b) of current Sec.  301.12 appears in section 
611(d)(2) of the Act and would be incorporated in proposed Sec.  
300.703(b).
    Proposed Sec.  300.807 on allocations to States would amend current 
Sec.  301.20 to reflect changes in the statutory language. Consistent 
with section 619(c)(1) of the Act, proposed Sec.  300.807 would remove 
the phrase, ``After reserving funds for studies and evaluations under 
section 674(e) of the Act.'' Proposed Sec.  300.807 would also update a 
cross-reference to allocations provisions in proposed Sec. Sec.  
300.808 through 300.810.
    Proposed Sec.  300.808 on increases in appropriated funds would 
amend current Sec.  301.21 to reflect changes in statutory language. 
Proposed Sec.  300.808 would also update the cross-references to other 
allocations provisions to be consistent with other proposed 
regulations.
    Proposed Sec.  300.809 on limitations in State allocations would 
update all cross-references to other proposed regulations from those in 
current Sec.  301.22, and make other minor changes to conform to the 
statutory language.

[[Page 35817]]

    Proposed Sec.  300.810 would make minor technical changes to 
current Sec.  301.23 to reflect statutory language, but would retain 
most of the regulatory language on the decrease in funds. However, 
paragraph (b)(2) of current Sec.  301.23 would be removed as 
unnecessary, because it would be incorporated into proposed Sec.  
300.810(b) by adding the words ``or less than'' after ``is equal to'' 
and by substituting ``fiscal year 1997, ratably reduced, if necessary'' 
for ``that year.'' Proposed Sec.  300.810 also would update the cross-
reference to other regulations addressing allocations to States.
    Proposed Sec.  300.811 would be added to clarify how the Secretary 
would make allocations under section 619 of the Act for States in which 
a by-pass is implemented for parentally-placed private school children 
with disabilities, consistent with section 612(f)(2) of the Act.
    Proposed Sec.  300.812 on reservation for State activities would be 
substantively unchanged from current Sec.  301.24, but would make a few 
changes, including updating the cross-references to State 
administration and State-level activities provisions, and substituting 
the word, ``reserve'' for the word ``retain.''
    Proposed Sec.  300.813 on State administration would make technical 
changes to current Sec.  301.25 to conform to revised statutory 
language. Consistent with section 619(e)(2) of the Act, proposed Sec.  
300.813(b) would remove the phrase ``if the SEA is the lead agency for 
the State under that Part'' from current Sec.  301.25(b) to clarify 
that a State may use funds reserved for administration for the 
administration of Part C of the Act even if the SEA is not the lead 
agency under that Part.
    Proposed Sec.  300.814 relating to use of State funds for other 
State-level activities under section 619 of the Act reflects both 
substantive and technical changes to conform current Sec.  301.26 to 
revised language in section 619(f) of the Act. Proposed Sec.  300.814 
would require States to use funds they reserve under Sec.  300.812, but 
do not use for administration under Sec.  300.813, for one or more of 
the activities outlined in Sec.  300.814(a) through (f). Proposed Sec.  
300.814 also would update both the cross-references to other proposed 
regulations (reservation for State activities and State administration) 
and the cross-reference to the applicable sections in the Act.
    Proposed Sec.  300.814(e) would, in conformity with section 
619(f)(5) of the Act, provide that a State may use any funds reserved 
for State activities and not used for administration to provide early 
intervention services in accordance with Part C of the Act to children 
with disabilities who are eligible for services under section 619 of 
the Act, and who previously received services under Part C of the Act, 
until such children enter, or are eligible under State law to enter 
kindergarten.
    Proposed Sec.  300.814(f) would, consistent with section 619(f)(6) 
of the Act, provide that a State that elects to provide early 
intervention services to children eligible under section 619 of the Act 
in accordance with section 635(c) of the Act may use funds reserved for 
State activities and not used for administration, to continue service 
coordination or case management for families who receive services under 
Part C of the Act, consistent with proposed Sec.  300.814(e).
    Proposed Sec.  300.815 on subgrants to LEAs would amend current 
regulatory language in Sec.  301.30 by updating cross-references and by 
making a few technical amendments consistent with statutory language in 
section 619(g)(1) of the Act.
    Proposed Sec.  300.816 on allocations to LEAs would update the 
cross-reference to subgrants to LEAs and would make technical changes 
to current Sec.  301.31, consistent with minor changes to the language 
in section 619(g)(1) of the Act.
    Proposed Sec.  300.817 on reallocation of LEA funds would reflect 
technical changes to current Sec.  301.32 consistent with the statutory 
language in section 619(g)(2) of the Act. The proposed language would 
also be similar to current Sec.  300.32, except that current Sec.  
301.32(b) would be removed. Current Sec.  301.32(b) reflects the 
requirement in section 613(g) of the Act and would be incorporated in 
the proposed Sec.  300.227 consistent with the structure of the Act.
    Proposed Sec.  300.818 would incorporate the statutory language 
from section 619(h) of the Act on the circumstances of Part C 
inapplicability. This provision would replace current Sec.  301.6.

Part 304--Service Obligations Under Special Education--Personnel 
Development To Improve Services and Results for Children With 
Disabilities

    Current Sec. Sec.  304.2, 304.4, and 304.20, all of which refer to 
the personnel preparation grant program generally, would be removed 
because the Department intends for part 304 to focus on the service 
obligation component of the program only and not on the personnel 
preparation grant program generally.
    Proposed Sec.  304.3 would remove the reference to the terms 
defined in 34 CFR part 77 because those definitions apply to all 
personnel preparation grant competitions. Proposed Sec.  304.3(c), 
regarding early intervention services, would change current Sec.  
304.3(b)(2), to clarify that an infant or toddler with a disability, as 
defined in section 632(5) of the Act, includes, at a State's 
discretion, at risk infants and toddlers. In addition, proposed Sec.  
304.3(f) would define the term repayment instead of payback (defined in 
the current Sec.  304.3(b)) to conform to the language used elsewhere 
in this proposed part 304.
    Proposed Sec. Sec.  304.21 and 304.22, regarding allowable costs 
and requirements for grantees in disbursing scholarships, would clarify 
that stipends are not included in the cost of attendance and thus are 
not limited by the cap in proposed 304.22(b), which references Title IV 
of the Higher Education Act of 1965, as amended.
    Proposed Sec.  304.23 would retain the grantee's obligation to 
enter into an agreement with the scholar. However, the requirements 
that the scholar must carry out with respect to the service obligation 
would be moved to proposed Sec.  304.30 to more clearly identify the 
obligations of the scholar. Also, while retaining the requirements that 
the grantee establish exit certification policies and provide necessary 
information and notices to the Secretary, proposed Sec.  304.23 would 
conform these requirements to the new statutory language in section 
662(h)(3) of the Act, which requires that the Secretary, rather than 
grantees, ensure that scholars comply with the service obligation 
requirements.
    Proposed Sec.  304.30 would consolidate all the requirements 
imposed on scholars into one section and eliminate some duplicative 
provisions. Proposed Sec.  304.30 would describe the content of the 
agreement that grantees must enter into with scholars, which is 
contained in the current Sec.  304.23, and the consequences of a 
scholar failing to meet the service obligation requirements, which are 
contained in current Sec.  304.32. Proposed Sec.  304.30(i) would 
require the scholar to provide information to the Secretary, reflecting 
the new language in section 662(h)(3) of the Act, which requires that 
the Secretary rather than grantees ensure that scholars comply with the 
service obligation requirements.
    Proposed Sec.  304.30(e) would clearly state how a scholar could 
satisfy the work obligation through positions in supervision, 
postsecondary faculty, and research. Proposed Sec.  304.30(e) also 
would clarify that a scholar who goes on to receive a more advanced 
degree can satisfy the work obligation requirement for a lesser degree 
in special education by maintaining relevant employment in

[[Page 35818]]

the areas of supervision, postsecondary faculty, or research. Likewise, 
Sec.  304.30(e) would allow a scholar who receives a scholarship from a 
leadership preparation program (for an advanced degree) to satisfy the 
work obligation by providing special education, related services, or 
early intervention services.
    Proposed Sec.  304.31 would reflect the new statutory language in 
section 662(h)(3) of the Act, which requires that the Secretary rather 
than grantees ensure that scholars comply with the service obligation 
requirements. Proposed Sec.  304.31 also would delete the specific 
deferrals in current Sec.  304.31(5) and (6) for scholars with a 
temporary disability that prevents the scholar from working or for 
scholars who are unable to secure employment by reason of care provided 
to a disabled family member. The Department believes that these 
deferrals are inappropriate.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
Summary of Potential Costs and Benefits Costs and Benefits of Statutory 
Changes
    For the information of readers, the following is an analysis of the 
costs and benefits of the most significant statutory changes made by 
the Act that are incorporated into the proposed regulations governing 
the Assistance to States for the Education of Children with 
Disabilities program under Part B of the IDEA. In conducting this 
analysis, the Department examined the extent to which the proposed 
regulations would add to or reduce the costs for public agencies and 
others in relation to the costs of implementing the program regulations 
prior to the enactment of the new statute. Based on this analysis, the 
Secretary has concluded that the statutory changes reflected in these 
proposed regulations would not impose significant net costs in any one 
year, and may result in savings to SEAs and LEAs. An analysis of 
specific provisions follows:
Requirement for State Certification for Highly Qualified Special 
Education Teachers
    Proposed Sec.  300.156(c) would require that persons employed as 
special education teachers in elementary or secondary schools be highly 
qualified as defined in proposed Sec.  300.18 by no later than the end 
of the 2005-2006 school year. Proposed Sec.  300.18(b)(1) would require 
that every public elementary and secondary school special education 
teacher obtain full State certification as a special education teacher 
or pass the State special education teacher licensing examination, and 
hold a license to teach in the State as a special education teacher as 
one of the conditions of being considered highly qualified to teach 
special education. Previously, special education teachers were not 
required by Federal law to be certified as special education teachers 
in their States. The proposed regulation would preclude teachers for 
whom the special education certification or licensure requirements were 
waived on an emergency, temporary, or provisional basis from meeting 
the definition of a highly qualified special education teacher. 
Teachers employed by a public charter school would be exempt from these 
requirements and subject to the requirements for highly qualified 
teachers in their State's public charter school law.
    The impact of the requirement in the proposed regulation that all 
special education teachers have full special education certification by 
the end of the 2005-2006 school year will depend on whether States and 
districts comply with the requirement by helping existing teachers who 
lack certification acquire it, or by hiring new fully-certified 
teachers, or some combination of the two.
    According to State-reported data collected by the Department's 
Office of Special Education Programs, certification or licensure 
requirements have been waived for eight percent of special education 
teachers or approximately 30,000 teachers. If States and districts 
responded to the proposed regulation by hiring certified teachers to 
fill these positions, it would cost well over $1 billion to cover the 
salaries for a single year. (Occupational Employment and Wages Survey, 
November 2003, indicates a median national salary of $42,630 for 
elementary school teachers and $44,920 for secondary school teachers.) 
However, given that the Study of Personnel Needs in Special Education 
(SPENSE) found that in 1999-2000, 12,241 positions for special 
education teachers were left vacant or filled by substitute teachers 
because suitable candidates could not be found, it is unlikely that 
States and districts would be able to meet this requirement through 
hiring.
    The SPENSE study also found that 12 percent of special education 
teachers who lack full certification in their main teaching assignment 
field are fully certified in another State. This means that States 
should be able to certify an estimated 3,600 additional special 
education teachers at relatively little expense through reciprocal 
certification agreements with other States.
    Responses to the 1999-2000 Schools and Staffing Survey indicate 
that nearly 10 percent (approximately 3,000 teachers) of special 
education teachers who lacked full certification, including those 
teaching under provisional, temporary, or emergency certification, were 
enrolled in a program to obtain State certification. If teachers 
already participating in a certification program are presumed to be 
within 10 semester hours of meeting their coursework requirements and 
the estimated cost of a semester hour in a university or college 
program is $200, then it would cost $6 million to help these teachers 
obtain full State certification. If teachers require more than 10 
semester hours to complete their certification programs, they are 
unlikely to obtain certification through coursework by the end of the 
2005-2006 school year.
    States and districts are unlikely to be able to meet the 
requirements of the proposed regulation entirely through reciprocity 
agreements and college and university programs. The above estimates 
involve fewer than 7,000 of the approximately 30,000 teachers who lack 
full certification. Other options States and districts might use to 
certify the more than 23,000 remaining teachers include assessments of 
academic skill and subject matter knowledge and professional 
development. Assessment requirements for special education teachers 
vary across States and teaching assignment fields, but most States 
require at least two subject matter tests, a general test on core 
content knowledge, and a disability-specific test, for special 
education teacher certification. The average cost of each test is $75. 
The SPENSE study found that one-fourth of beginning special education 
teachers who took a certification test reported having to take it more 
than once before passing. If States and districts certified the 
remaining 23,000 teachers through existing assessments and 25 percent 
of the teachers took the tests twice, the cost would be approximately 
$4.3 million.
    Some subset of special education teachers currently teaching 
through waivers will require additional training to obtain special 
education certification. The cost of certifying these teachers will 
depend on State special education certification requirements and the 
types of professional development needed to help these teachers meet 
the requirements. Most studies found that district expenditures for 
professional

[[Page 35819]]

development range from one to four percent of a district's total budget 
or $2,062 per teacher in 2000 dollars. If 18,000 teachers need 
additional training, costing an average expenditure of $2,000 per 
teacher for professional development, the cost of certifying these 
teachers through training would be $36 million.
    Because there is little information available on what would be 
required to implement this proposed regulation and the cost of doing 
so, the Secretary concludes that the cost may be significant given the 
number of special education teachers who lack certification. The 
Secretary further concludes that the benefits of State certification 
may not necessarily outweigh the costs.
    The Secretary believes that teacher certification can be a valuable 
tool in ensuring that teachers have the knowledge and skills they need 
to help students meet high academic standards. Since the highly 
qualified teacher requirements in the No Child Left Behind Act, which 
focus on content knowledge, already applied to special education 
teachers providing instruction in core academic subjects, the benefits 
of requiring special education teachers to also meet State 
certification requirements for special education teachers will largely 
depend on the extent to which these requirements reflect pedagogical 
knowledge and other teacher characteristics that are likely to have a 
positive effect on achievement of students with disabilities. As of 
now, there is a dearth of research showing the relationship between 
special education certification and academic achievement for students 
with disabilities.

Special Education Teachers Teaching To Alternate Achievement Standards

    Section 9101 of the ESEA requires that teachers of a core academic 
subject have full State teacher certification, hold at least a 
bachelor's degree, and be able to demonstrate knowledge of the subject 
matter they teach by the end of the 2005-2006 school year. Elementary 
level teachers may demonstrate subject matter expertise by passing a 
rigorous State test of their subject knowledge and teaching skills in 
reading, writing, mathematics, and other areas of the basic elementary 
school curriculum, but middle or secondary school teachers must 
demonstrate a high level of competence in each of the academic subjects 
that they teach.
    Proposed Sec.  300.18(c) would permit special education teachers 
who teach core academic subjects exclusively to children who are 
assessed against the alternate achievement standards, established under 
34 CFR 200.1(d), to fulfill the highly qualified teacher requirements 
in section 9101(23) of the ESEA as applied to an elementary school 
teacher, or, in the case of instruction above the elementary level, to 
meet the requirements for an elementary school teacher and have subject 
matter knowledge appropriate to the level of instruction being 
provided, including at a minimum, subject matter knowledge at the 
elementary level or above, as determined by the State, needed to 
effectively teach to those standards.
    The cost of demonstrating subject area competence under current law 
depends on the number of special education teachers who teach core 
academic subjects exclusively to children assessed against alternate 
achievement standards, the number of these teachers who already would 
be considered highly qualified under section 9101(23) of the ESEA and 
the number who would not, and the cost of helping special education 
teachers who are not highly qualified meet the highly qualified teacher 
requirements for teaching core academic subjects at the middle and high 
school levels (or replacing them with highly qualified teachers). The 
proposed regulation would generate savings for public agencies to the 
extent that the cost of helping teachers demonstrate subject area 
competence at the elementary level and obtain the knowledge appropriate 
to the level of instruction needed to teach to alternate achievement 
standards is lower than the cost of demonstrating subject matter 
competence at the level (middle or high school) at which they are 
teaching.
    Under 34 CFR 200.1(d), States are permitted to assess up to one 
percent of students against alternate achievement standards. Based on 
projections of school enrollment in 2005-2006 using school enrollment 
data collected by the National Center for Education Statistics (NCES) 
for the 2002-2003 school year, States could assess up to 257,650 
students in the middle and secondary levels (grades 6-12) against 
alternate achievement standards. Based on a typical ratio of one 
teacher for every six students for instruction based on alternate 
achievement standards, as many as 43,000 special education teachers may 
be able to demonstrate that they fulfill the requirements for highly 
qualified teachers in section 9101 of the ESEA by demonstrating subject 
matter knowledge appropriate to the level of instruction being provided 
instead of the student's grade level. The number of affected teachers 
will depend on the extent to which these special education teachers are 
teaching exclusively children assessed against alternate achievement 
standards.
    Although it is difficult to estimate the potential savings from 
this proposed regulation, the Secretary would expect some savings to be 
produced because affected special education teachers would not be 
required to demonstrate the same level of content knowledge as other 
middle and high school teachers of core academic subjects, thereby 
reducing the amount of additional coursework or professional 
development that might have been needed to meet State standards. The 
savings would depend on the gap between what State standards require in 
terms of content knowledge for middle and high school teachers in 
various academic areas and what the affected teachers would have been 
able to demonstrate in the academic subjects they are teaching. Any 
savings will be offset in part by the cost of developing a means for 
the affected teachers to demonstrate subject matter knowledge 
appropriate to the level of instruction being provided. However, this 
cost is not expected to be significant. Since States have already 
developed standards for demonstration of core academic subject 
competence at the elementary level, States would not likely develop 
additional High Objective Uniform State Standards of Evaluation 
(HOUSSE) or subject matter competence evaluations for use with special 
education teachers to comply with the proposed regulation. On balance, 
the Secretary concludes that the proposed regulation could produce 
significant savings without adversely affecting the quality of 
instruction provided to children assessed against alternate achievement 
standards.
Special Education Teachers Teaching Multiple Subjects
    Consistent with current law, proposed Sec.  300.18(d) would permit 
special education teachers who are not new to the profession and teach 
two or more core academic subjects exclusively to children with 
disabilities to demonstrate competence in all the core academic 
subjects that the teacher teaches in the same manner as other teachers, 
including through a single HOUSSE covering multiple subjects. The 
proposed regulation would allow more time (two years after the date of 
employment) for new special education teachers who teach multiple 
subjects and who have met the highly qualified requirements for 
mathematics, language arts, or science to demonstrate competence in 
other core academic

[[Page 35820]]

subjects that they teach, as required by 34 CFR 200.56(c).
    We are unable at this time to estimate the number of new teachers 
who teach two or more core academic subjects exclusively to children 
with disabilities who might be affected by the additional time afforded 
by the proposed regulation. However, the extent of savings would relate 
to the number of subjects taught by teachers of multiple subjects and 
the benefits of enabling the affected teachers to take whatever 
coursework they need to demonstrate competence in those additional 
areas over a longer period of time. Under prior law, public agencies 
might have needed to employ additional teachers (or redeploy some 
existing teachers) in those subject areas in which their newly hired 
teachers could not immediately demonstrate competence. The Secretary 
concludes that the benefits of being able to hire teachers who are 
qualified in at least one subject area outweigh any costs to students 
being taught by teachers who currently do not meet the requirements in 
other areas but are working to demonstrate their knowledge in other 
areas in which they teach.
Limitation on Number of Reevaluations in a Single Year
    Proposed Sec.  300.303(b)(1) would prohibit conducting more than 
one reevaluation in a single year without the agreement of the school 
district and the parent. The current regulations require reevaluations 
when conditions warrant one or at the request of either the child's 
parent or teacher.
    Multiple evaluations in a single year are rare and are conducted in 
instances in which parents are not satisfied with the evaluation 
findings or methodology, children have a degenerative condition that 
affects the special education and related services needed, or very 
young children (ages three through four) are experiencing rapid 
development that may affect the need for services. The proposed 
regulation would not significantly affect the number of evaluations in 
the latter two instances because public agencies and parents are likely 
to agree that multiple evaluations are warranted. These cases, however, 
account for a very small number of the cases in which multiple 
evaluations are conducted each year.
    Because evaluation findings may be used to support complaints, we 
can use data on the number of requests for due process hearings to 
estimate the number of cases in which more than one evaluation in a 
single year would have been conducted because parents were not 
satisfied with the evaluation findings or methodology. Based on data 
from the recent Government Accountability Office (GAO) report, 
``Special Education: Numbers of Formal Disputes Are Generally Low and 
States Are Using Mediation and Other Strategies to Resolve Conflicts'' 
(GAO-03-897), in which States reported receiving 11,068 requests for 
due process hearings during 1999-2000, we estimate that States would 
receive 20 requests for every 10,000 students with disabilities during 
the 2005-2006 school year. Based on the prevalence of complaints by 
parents, we estimate that, of the 1.7 million children estimated to be 
eligible for reevaluation in 2005-2006, multiple evaluations would have 
been requested by parents for an estimated 3,400 children. If we assume 
that these additional evaluations would cost about $1,000 each, public 
agencies could save $3.4 million under the proposed regulation by not 
agreeing to more than one evaluation of children in these instances.
Triennial Evaluations
    The current regulations require a school district to conduct an 
evaluation of each child served under the Act every three years to 
determine, among other things, whether the child is still eligible for 
special education. The current regulations permit the evaluation team 
to dispense with additional tests to determine the child's continued 
eligibility if the team concludes that this information is not needed 
and the parents provide consent. Proposed Sec.  300.303(b)(2) would 
permit districts to dispense with the triennial evaluation altogether 
when the child's parents and the public agency agree that a 
reevaluation is unnecessary. The impact of this change will depend on 
the following factors: the number of children eligible for a 
reevaluation, the cost of the evaluation, and the extent to which 
districts and parents agree to waive reevaluations.
    Published estimates of the cost of multidisciplinary evaluations 
range from $500 to $2,500, but these estimates may overestimate 
potential savings because testing is a significant factor in the cost 
of evaluations, and districts are already permitted to dispense with 
additional testing when extant data are sufficient for reevaluation. 
The extent to which States and districts eliminated unnecessary testing 
during triennial evaluations under the current regulations is unclear, 
but program officers estimate that additional testing or observation by 
a school psychologist is not needed for as many as half of the 
approximately 1.7 million children eligible for triennial evaluations 
each year. In the estimated 850,000 cases in which additional testing 
is not needed, review of the extant data may still be warranted to 
determine if a child still needs special education and related services 
under the Act or to assess whether any additions or modifications to 
the special education and related services being provided are needed to 
help the child meet his or her IEP goals. Even if additions or 
modifications to special education and related services are not likely, 
parents may not want to dispense with the triennial evaluation if they 
believe further information could be gained from the extant data or 
they want to compare their child's progress against his or her previous 
assessments. If parents and the district agree that a reevaluation is 
not needed in 15 percent, or 127,500, of these cases and a reevaluation 
using only extant data would have cost $150, the proposed regulation 
could save $19.125 million.
    These savings would be partially offset by increased administrative 
costs associated with obtaining consent from parents to dispense with 
reevaluation. To estimate the cost of obtaining parental consent, the 
Department assumes that schools could use a standard pre-printed 
document that would take approximately 15 minutes of administrative 
personnel time to fill out and send to parents. In addition, we 
estimate that an average of 2.5 additional written notices or telephone 
calls would be needed to obtain consent, requiring 15 minutes of 
administrative personnel time per additional contact. At an average 
hourly compensation of $24, the cost to public agencies of obtaining 
parental consent would be $2.7 million, resulting in estimated net 
savings to public agencies from the proposed regulation of $16.4 
million.
IEP Team Attendance
    Proposed Sec.  300.321(e)(1) would permit a member of the IEP team 
to be excused from attending an IEP meeting, in whole or in part, if 
the parent of the child with a disability and the public agency agree 
in writing that the member's attendance is not necessary because the 
member's area of the curriculum or related services is not being 
modified or discussed. The current regulations require that all IEP 
meetings include the parents of the child, at least one regular 
education teacher (if the child is, or may be, participating in the 
regular education environment), at least one special education teacher, 
a representative of the public agency, and someone who could interpret 
the instructional implications of the evaluation results (who may be 
one of the other required

[[Page 35821]]

IEP team members). The extent to which public agencies may realize 
savings from the proposed regulation depends on which team members are 
excused from how much of the meeting. If the average IEP meeting lasts 
1.5 hours and requires a half an hour of teacher preparation, then we 
estimate that the opportunity costs for a teacher of attending a 
meeting (based on average compensation per hour of $46.25) would be 
$92.50. If we assume an average of 1.2 IEP meetings are held for each 
of the 6.933 million children with disabilities, then 8.32 million IEP 
meetings will be held in 2005-2006. If one teacher could be excused 
from five percent of these meetings, the proposed regulation could 
result in savings of $38.5 million.
    These savings would be partially offset by increased administrative 
costs associated with obtaining written consent from parents and public 
agency staff. Based on the above estimate of the cost of obtaining 
consent from parents under proposed Sec.  300.303(b)(2), the Department 
estimates that cost to public agencies of obtaining written consent for 
these parents would be $8.7 million, resulting in net savings to public 
agencies from the proposed regulation of $29.8 million.
    Proposed Sec.  300.321(e)(2) would permit members of an IEP team to 
be excused from attending an IEP meeting that involves a modification 
to or discussion of the member's area of the curriculum or related 
service if the parent and the public agency consent in writing to the 
excusal and the member submits written input to the parent and the 
other members of the IEP team prior to the meeting. The proposed change 
is unlikely to generate notable savings because reduced time spent in 
meetings is likely to be offset by the time required to draft written 
input, send it to the parents and other IEP team members, and secure 
the consent of parents and public agency to the excusal. In cases in 
which IEP meetings take longer than the average time of 1.5 hours, 
there are likely to be controversial issues or significant 
modifications to the IEP under discussion. Parents are presumably less 
likely to consent to the excusal of team members in these instances.
Definition of Individualized Education Program
    Proposed Sec.  300.320(a)(2)(i) would require that each IEP include 
a statement of measurable annual goals, including academic and 
functional goals, for the child. The current regulations require that 
each IEP contain benchmarks or short-term objectives for each of the 
annual goals. By eliminating the need to develop benchmarks or short-
term objectives, the proposed regulation could result in teachers 
spending less time on each IEP. Under proposed Sec.  300.320(a)(2)(ii), 
however, IEPs for the estimated 488,000 children with disabilities who 
take alternate assessments aligned to alternate achievement standards 
would still be required to include a statement of benchmarks or short-
term objectives.
    Based on average compensation for teachers of $46.25 per hour, a 
reduction in time as modest as 15 minutes could save approximately 
$11.56 per IEP or $74.5 million total in opportunity costs for teachers 
related to the development of IEPs during the 2005-2006 school year for 
the 6.445 million children with disabilities who do not take alternate 
assessments aligned to alternate achievement standards.
Amendments to an IEP
    When changes to a child's IEP are needed after the annual IEP 
meeting for the school year has been held, proposed Sec.  300.324(a)(4) 
would allow the parent of a child with a disability and the public 
agency to agree to forego a meeting and develop a written document to 
amend or modify the child's current IEP. Under the current regulations, 
the IEP team must be reconvened in order to make amendments to an IEP. 
Based on our estimate of an average of 1.2 IEP meetings per child per 
year, approximately 1.4 million IEP meetings beyond the required annual 
IEP meeting would be held during the 2005-2006 school year. If half of 
these meetings concerned amendments or modifications to an IEP and 
parents and agency representatives agreed to forego a meeting and 
develop a written document in half of these cases, then 346,650 IEP 
meetings would not be needed. The combined opportunity costs for 
personnel participating in a typical IEP meeting are estimated at $297. 
If drafting a written document to amend or modify an IEP is assumed to 
cost half as much as a meeting, then this change could result in 
savings of $51.4 million.
Procedural Safeguards Notice
    Proposed Sec.  300.504(a), which incorporates changes in section 
615(d)(1) of the Act, would require that a copy of the procedural 
safeguards notice be given to parents of children with disabilities 
only once a year, except that a copy must also be given: when an 
initial evaluation or request for an evaluation occurs; the first time 
a due process hearing is requested during a school year; and when a 
parent requests the notice. The prior law required that a copy of the 
procedural safeguards notice be given to the parents upon initial 
referral for an evaluation, each notification of an IEP team meeting, 
each reevaluation of the child, and the registration of each request 
for a due process hearing. Under the proposed regulation, a copy of the 
procedural safeguards notice would no longer have to be given to 
parents upon each notice for an IEP team meeting or every time a 
request for a due process hearing is received. Instead, the document 
only would have to be given to parents once a year, and the first time 
a due process hearing is requested in a year, when a copy of the 
document is specifically requested by a parent, or when an initial 
evaluation or request for a reevaluation occurs.
    To determine the impact of this change, it is necessary to estimate 
the savings created by providing fewer notices to parents who are 
notified about more than one IEP meeting during the year or who file 
more than one request for a due process hearing. Given the small number 
of hearing requests in a year (about 20 per 10,000 children with 
disabilities), our analysis will focus on the number of parents 
involved in more than one IEP meeting. Although we lack detailed data 
on the number of IEP meetings conducted each year, we estimate that 
approximately 6.933 million children with disabilities will be served 
in school year 2005-2006. For the vast majority of these children, we 
believe there will only be one IEP meeting during the year. For 
purposes of estimating an upper limit on savings, if we assume an 
average of 1.2 meetings per year per child, 1.39 million children will 
have two IEP meetings each year and the change reflected in proposed 
Sec.  300.504(a) will result in 1.39 million fewer procedural notices 
provided to parents. While some people may believe this change 
represents a significant reduction in paperwork for schools, the actual 
savings are likely to be minimal given the low cost of producing a 
notice of this size (about 10 pages) and the small amount of 
administrative staff time involved in providing this notice to parents 
(about 10 minutes). Taking all of this into consideration, total 
savings are unlikely to exceed $5 million.
Due Process Request Notices
    Proposed Sec.  300.511(d) would prohibit the party who requested 
the due process hearing from raising issues not raised in the due 
process request notice, unless the other party agrees. Under current 
regulations, there is no prohibition on raising issues at due process 
hearings

[[Page 35822]]

that were not raised in the due process notice.
    By encouraging the party requesting the hearing to clearly identify 
and articulate issues sooner, the proposed regulation could generate 
actual savings by facilitating early resolution of disagreements 
through less costly means, such as mediation or resolution sessions. 
But early identification of issues could come at the cost of more 
extensive involvement of attorneys earlier in the process. At the same 
time, prohibiting the party requesting the hearing from raising new 
issues at the time of the hearing could result in additional complaints 
or protracted conflict and litigation. On balance, net costs or savings 
are not likely to be significant.
    Using data from recent State data collections conducted by the 
Consortium for Appropriate Dispute Resolution in Special Education 
(CADRE), in which States reported receiving 12,914 requests for due 
process hearings during 2000-2001, we estimate that there will be 
approximately 14,031 requests in 2005-2006. Because some parties 
already hire attorneys or consult other resources such as advocates or 
parent training centers to develop the request for due process, the 
Department assumes that only a portion of the requests would be 
affected by this new requirement. Although we have no reliable data on 
average attorneys' fees in due process cases, for purposes of this 
analysis, the Department assumes an hourly rate of $300 as an upper 
limit. The Department further assumes that each instance in which a 
party chooses to hire an attorney sooner as a result of this change 
will involve no more than three additional hours of work. Even if we 
assume that parties requesting the hearing will incur this additional 
cost in the case of 8,000 of the expected requests for due process, the 
total costs would not be significant (less than $8 million), and could 
be outweighed by the benefits of early identification and resolution of 
issues. Although such benefits are largely unquantifiable, early 
identification and resolution of disputes would likely benefit all 
parties involved in disputes.
Resolution Sessions
    Proposed Sec.  300.510 would require the parents, relevant members 
of the IEP team, and a representative of the public agency to 
participate in a resolution session, prior to the initiation of a due 
process hearing, unless the parents and LEA agree to use mediation or 
agree to waive the requirement for a resolution session. The impact of 
this proposed regulation will depend on the following factors: The 
number of requests for due process hearings, the extent to which 
disagreements are already resolved without formal hearings, the 
likelihood that parties will agree to participate in mandatory 
resolution sessions instead of other potentially more expensive 
alternatives to due process hearings (e.g., mediation), and the 
likelihood that parties will avoid due process hearings by reaching 
agreement as a result of mandatory resolution sessions.
    Available data suggest that overall savings are not likely to be 
significant because of the small number of due process requests and the 
extent to which disagreements are already being successfully resolved 
through mediation.
    Based on data reported in a recent CADRE State data collection in 
which States reported receiving 12,914 requests for due process 
hearings during 2000-2001, we estimate that there will be approximately 
14,031 requests for due process hearings in school year 2005-2006. 
Based on data from the same study, we also estimate that the large 
majority of these disagreements will be successfully resolved through 
mediation or dropped. Out of the 12,914 requests for school year 2000-
2001, approximately 5,536 went to mediation and only 3,659 ended up in 
formal hearings. Assuming no change in the use and efficacy of 
mediation, we predict that 6,021 requests would go to mediation in 
school year 2005-2006. We further predict that another 4,035 complaints 
will be dropped, leaving no more than 3,975 requests for due process 
that would require resolution sessions.
    Because of the high cost of due process hearings and the low 
expected cost of conducting a resolution session, there would likely be 
some savings for all parties involved if resolution sessions are 
relatively successful in resolving disagreements. For example, 
California reports an average cost of $18,600 for a due process 
hearing, while Texas reports having spent an average of $9,000 for a 
hearing officer's services. Anticipating that attorneys will 
participate in approximately 40 percent of the predicted 3,945 
resolution sessions (including drafting legally binding agreements when 
parties reach agreement), we expect resolution sessions to cost just 
over twice the average cost of IEP meetings, or approximately $700 per 
session. Even with a very low success rate (eight percent), given the 
expected costs of these sessions compared to the high cost of 
conducting a hearing, all parties involved would likely realize some 
modest savings. However, because disputes that result in formal 
hearings tend to be the most difficult to resolve, we do not expect 
that mandatory resolution sessions will be highly successful in 
resolving such cases. By definition, these are cases in which the 
parties are not amenable to using existing alternatives to formal 
hearings such as mediation. Moreover, assuming an average cost of 
between $10,000 and $20,000 per due process hearing, even if as many as 
20 percent of the 3,975 complaints were successfully resolved through 
resolution sessions, net savings still would not exceed $10 million. 
(Note that it is unclear to what extent data on average mediation and 
due process hearing costs account for LEA opportunity costs (e.g., cost 
per teacher and/or administrator participating). To the extent that 
these data do not reflect the opportunity costs of participating LEA 
officials and staff, we have underestimated the potential savings from 
resolution session).
    Beyond those savings to all parties resulting from reductions in 
the total number of formal hearings, we would also expect some 
additional savings to the extent parties agree to participate in 
resolution sessions instead of mediation, particularly if the 
resolution sessions are as effective as mediation in resolving 
disagreements. However, unlike due process, the expected cost of 
conducting a resolution session ($700 per session) is only somewhat 
less than the cost of a mediation session (between $600 and $1,800 per 
session). Because the cost differential between resolution sessions and 
mediations is relatively small (compared to the difference in cost 
between resolutions sessions and due process hearings) the potential 
for savings generated by parties agreeing to resolution sessions 
instead of mediation is minimal.
    The Secretary concludes that requiring parties to participate in 
resolution sessions prior to due process hearings could generate modest 
savings for all parties to disputes, insofar as mandatory resolution 
sessions could result in fewer due process hearings and may be used as 
a less expensive alternative to mediation.
Manifestation Determination Review Procedures
    Proposed Sec.  300.530(e) and (f) would incorporate the change in 
the statutory standard for conducting manifestation determination 
reviews. Under the prior law, the IEP team could conclude that the 
behavior of a child with a disability was not a manifestation of his or 
her disability only after considering a list of factors, determining 
that the child's IEP

[[Page 35823]]

and placement were appropriate, and that FAPE, supplemental services, 
and behavioral intervention strategies were being provided in a manner 
consistent with the child's IEP. Previous law also required the IEP 
team to consider whether a child's disability impaired his or her 
ability to understand the impact and consequences of the behavior in 
question, and to control such behavior. The new statute eliminated or 
substantially revised these requirements. The proposed regulations 
would simply require IEP teams to review all relevant information in 
the student's file to determine if the conduct in question was caused 
by, or had a direct and substantial relationship to, the child's 
disability, or if the conduct in question was the direct result of the 
LEA's failure to implement the IEP. The purpose of the change in the 
law is to simplify the discipline process and make it easier for school 
officials to discipline children with disabilities when discipline is 
appropriate and justified.
    Because fewer factors would need to be considered during each 
manifestation determination review, the time required to conduct such 
reviews would likely be reduced, and some minimal savings may be 
realized. However, the more significant impact relates to secondary 
effects. Because it would be less burdensome for school personnel to 
conduct manifestation determinations, it is reasonable to expect an 
overall increase in the number of these reviews as school personnel 
take advantage of the streamlined process to pursue disciplinary 
actions against those students with disabilities who commit serious 
violations of student codes of conduct. Even more importantly, the 
changes in the law would make it less difficult for review team members 
to conclude that the behavior in question is not a manifestation of a 
child's disability, enabling school personnel to apply disciplinary 
sanctions in more cases involving children with disabilities.
    We have minimal data on the number of manifestation determination 
reviews being conducted. However, State-reported data for the 2002-2003 
school year suggest that schools are conducting a relatively small 
number of manifestation reviews. According to these data, for every 
1,000 children with disabilities, approximately 11 will be suspended or 
expelled for longer than 10 days during the school year (either through 
a single suspension or as a result of multiple short-term 
suspensions)--the disciplinary action triggering a manifestation 
review. (Please note that we have no way of accurately estimating what 
portion of short-term suspensions that sum to 10 days would be 
determined by school personnel to constitute a change in placement. 
Therefore, we assume, for purposes of this analysis, that 100 percent 
of these instances would require a manifestation review because they 
would be deemed a change in placement). Based on a recent GAO study, 
which concludes there is little difference in how school personnel 
discipline regular and special education students, we assume that under 
previous law, at least 85 percent of manifestation reviews resulted in 
disciplinary actions (e.g., long-term suspensions or expulsion). In 
other words, approximately 15 percent of all manifestation reviews did 
not result in disciplinary action because the behavior in question was 
determined to be a manifestation of the child's disability.
    Without taking into consideration increases in the frequency of 
manifestation reviews, using suspension and expulsion data from 
previous years, we estimate that the total number of manifestation 
reviews in 2005-2006 would be approximately 87,701. If we assume that 
the streamlining reflected in the proposed regulation would produce a 
20 percent increase in the total number of manifestation reviews, we 
predict that 17,540 additional meetings would occur, for a total of 
105,241 meetings.
    Under the proposed regulation, the Secretary also expects an 
increase in the total number of manifestation reviews resulting in 
disciplinary actions, but it is not likely to be a significant 
increase. GAO's finding that there is little practical difference in 
how school personnel disciplined regular and special education students 
under previous law suggests that manifestation reviews are already 
highly likely to result in disciplinary actions.
    The Secretary concludes that the proposed regulation would generate 
some minimal savings from the reduction in time required to conduct the 
manifestation reviews. Schools would also realize some unquantifiable 
benefits related to the increased likelihood that the outcome of the 
review will result in disciplinary action, thereby fostering a school 
environment that is safer, more orderly, and more conducive to 
learning. The Secretary acknowledges that the proposed regulation could 
create additional costs for parents of children who, but for this 
change, would not have been subject to disciplinary removals to the 
extent that such parents disagree with the manifestation determination 
and choose to appeal it. On balance, the Secretary believes that the 
benefits likely to result from this change relating to school safety 
and order outweigh the costs to families.
Authority To Remove Students With Disabilities to Interim Alternative 
Educational Settings
    Proposed Sec. Sec.  300.530(g) through 300.532 would incorporate 
two significant statutory changes relating to the authority of school 
personnel to remove children with disabilities to interim alternative 
educational settings. First, the Act now gives school personnel the 
authority to remove students who have inflicted serious bodily injury 
to interim alternative educational settings. Under previous law, school 
personnel were only authorized to remove students to alternative 
settings for misconduct involving: (1) The use and possession of 
weapons; and (2) the knowing possession, sale, or use of illegal drugs 
or controlled substances. The Act added the commission of serious 
bodily injury to this list. In cases involving serious bodily injury, 
school personnel would be able to unilaterally remove children with 
disabilities to interim alternative educational settings for up to 45 
school days without having to request a hearing officer review of the 
facts to determine whether or not the student is substantially likely 
to harm himself or others. Second, the 45-day rule has changed. Under 
previous law, students could not be removed to interim alternative 
settings for more than 45 days. Now, under the Act, the comparable time 
limitation is 45 school days.
    Although the addition of serious bodily injury significantly 
simplifies the process for removing a student who has engaged in such 
misconduct, the data suggest that the savings from the proposed 
regulation would be minimal. Recent Department of Justice data show 
that ``fighting without a weapon'' is by far the most common type of 
serious misconduct engaged in by all students. However, State-reported 
data suggest that of the 20,000 instances in 2002-2003 in which 
children with disabilities were suspended or expelled for longer than 
10 days, only 1,200 involved serious bodily injury or removal ``by a 
hearing officer for likely injury.'' We estimate that approximately 
6.933 million students with disabilities will be served during the 
2005-2006 school year. Using these data, we project that there would 
have been approximately 1,258 instances in 2005-2006 in which a school 
district might have requested approval from a hearing officer to remove 
a child for inflicting serious

[[Page 35824]]

bodily injury, if the law had not been changed. Taking into account the 
time that would have been spent by both relevant school administrators 
and the hearing officers and their estimated hourly wages (about $125 
per hour for hearing officers and $50 per hour for school 
administrators), we conclude that the unilateral authority afforded 
school officials under the proposed regulation produces only minimal 
savings (less than $1 million).
    A much more significant benefit relates to the enhanced ability of 
school officials to provide for a safe and orderly environment for all 
students in the 1,258 cases in which school officials would have been 
expected to seek and secure hearing officer approval for removing a 
student to an alternative setting and the other cases in which they 
might not have taken such action, but where removal of a student who 
has caused injury is justified and produces overall benefits for the 
school.
    The change in how days are to be counted (e.g., from ``calendar 
days'' under previous law to ``school days'' under the proposed 
regulation) would allow school officials to extend placements in 
alternative settings for approximately two additional weeks. This would 
generate some savings to the extent that it obviates the need for 
school officials to seek hearing officer approval to extend a student's 
placement in an alternative setting.
    While school personnel are not required to use the new authority to 
remove children who have inflicted serious bodily injury or to remove 
children for the total amount of time that is authorized, we 
acknowledge that it would create additional costs for schools that 
choose to take full advantage of this authority because of the added 
costs of providing educational services in an alternative setting. 
Using data from a recent GAO study, we estimate that approximately 
3,000 students will be removed to an alternative interim setting in 
2005-2006 for misconduct involving drugs or weapons and at least 
another 1,258 for misconduct involving serious bodily injury. Although 
we do not have data on the costs of educating these students in an 
alternative setting for 45 school days, the Secretary concludes that 
the costs of doing so would be outweighed by the unquantifiable 
benefits to schools associated with ensuring students a safe and 
orderly environment that is conducive to learning.

Costs and Benefits of Proposed Non-Statutory Regulatory Provisions

    The following is an analysis of the costs and benefits of the 
proposed non-statutory regulatory provisions that includes 
consideration of the special effects these changes may have on small 
entities.
    The proposed regulations would primarily affect SEAs and LEAs, 
which are responsible for carrying out the requirements of Part B of 
the Act as a condition of receiving Federal financial assistance under 
the Act. Some of the proposed changes would also affect children 
attending private schools and consequently indirectly affect private 
schools.
    For purposes of this analysis as it relates to small entities, the 
Secretary has focused on LEAs because these regulations most directly 
affect local public agencies. The analysis uses a definition of small 
school district developed by the NCES for purposes of its recent 
publication, Characteristics of Small and Rural School Districts. In 
that publication, NCES defines a small school district as ``one having 
fewer students in membership than the sum of (a) 25 students per grade 
in the elementary grades it offers (usually K-8) and (b) 100 students 
per grade in the secondary grades it offers (usually 9-12).'' Using 
this definition, approximately 38 percent of the nation's public 
agencies in the 2002-2003 Common Core of Data were considered small and 
served three percent of the Nation's students. Approximately 17 percent 
of students in small districts had IEPs.
    Both small and large districts would be affected economically by 
the proposed regulations, but no data are available to analyze the 
effect on small districts separately. For this reason, this analysis 
assumes that the effect of the proposed regulations on small entities 
would be roughly proportional to the number of children with 
disabilities served by those districts.
    For school year 2005-2006, we project that approximately 48.8 
million children will be enrolled in public elementary and secondary 
schools. Using the NCES definition and assuming that all districts grew 
at the same rate between school year 2002-2003 and 2005-2006, we 
estimate that in the 2005-2006 school year approximately 1.48 million 
children will be enrolled in small districts. Based on the percentage 
of students in small districts with IEPs in 2002-2003, we estimate that 
in the 2005-2006 school year these districts will serve approximately 
251,000 children with disabilities of the 6.9 million children with 
disabilities served nationwide.
    There are many provisions in the proposed regulations that are 
expected to result in economic impacts, both positive and negative. The 
following analysis estimates the impact of the proposed regulations 
that were not required by the Act:

Procedures for Evaluating Children With Specific Learning Disabilities

    Proposed Sec.  300.307(a) would require that States adopt criteria 
for determining whether a child has a specific learning disability. 
Under the proposed regulation, States may not require, but may 
prohibit, that LEAs use criteria based on a severe discrepancy between 
intellectual ability and achievement for determining whether a child 
has a specific learning disability. The proposed regulation would also 
require that criteria adopted by States permit the use of a process 
that determines if the child responds to scientific, research-based 
intervention. States would also be permitted to use other alternative 
procedures to determine if a child has a specific learning disability.
    Before determining that a child has a specific learning disability, 
proposed Sec.  300.309(b) would require that the evaluation team 
consider data that demonstrate that prior to, or as part of the 
referral process, the child received appropriate high-quality, 
research-based instruction in regular education settings and that data-
based documentation of repeated assessments of achievement during 
instruction was provided to the child's parents. If the child had not 
made adequate progress under these conditions after an appropriate 
period of time, the proposed regulation would further require that the 
public agency refer the child for an evaluation to determine if special 
education and related services are needed. Under the proposed 
regulation, the child's parents and the team of qualified 
professionals, described in proposed Sec.  300.308, would be permitted 
to extend the evaluation timelines described in proposed Sec. Sec.  
300.301 through 300.303 by mutual written agreement.
    If the estimated number of initial evaluations each year is 1.7 
million and the percentage of evaluations involving children with 
specific learning disabilities is equivalent to the percentage of all 
children served under Part B of the Act with specific learning 
disabilities, then the proposed regulation would affect approximately 
816,000 evaluations each year. Depending on the criteria adopted by 
their States pursuant to proposed Sec.  300.307(a), public agencies 
could realize savings under the proposed regulation by reducing the 
amount of a school psychologist's time involved in conducting cognitive 
assessments that would have been needed to document

[[Page 35825]]

an IQ discrepancy. However, these savings could be offset by increased 
costs associated with documenting student achievement through regular 
formal assessments of their progress, as required under proposed Sec.  
300.309(b).
    Although the cost of evaluating children suspected of having 
specific learning disabilities might be affected by the proposed 
regulations, the Department expects that the most significant benefits 
of the proposed changes would be achieved through improved 
identification of children suspected of having specific learning 
disabilities. By requiring that States permit alternatives to an IQ-
discrepancy criterion, the proposed regulation would facilitate more 
appropriate and timely identification of children with specific 
learning disabilities, so that they can benefit from research-based 
interventions that have been shown to produce better achievement and 
behavioral outcomes.
    The proposed regulations may impose additional costs on small 
public agencies that lack capacity currently to conduct repeated 
assessments of achievement during instruction and provide parents with 
documentation of the formal assessments of their child's progress. 
These costs are likely to be offset by reduced need for psychologists 
to administer intellectual assessments. To the extent that small 
districts may not employ school psychologists, the proposed criteria 
may alleviate testing burdens felt disproportionately by small 
districts under an IQ discrepancy evaluation model.
Transition Requirements
    Proposed Sec.  300.321(b) would modify current regulations 
regarding transition services planning for children with disabilities 
who are 16 through 21 years old. Public agencies would still be 
required to invite other agencies that are likely to be responsible for 
providing or paying for transition services to the child's IEP meeting. 
If the invited agency does not send a representative, public agencies 
would no longer be required to take additional steps to obtain the 
participation of those agencies in the planning of transition, as 
required under current Sec.  300.344(b)(3)(ii).
    Public agencies would realize savings from the proposed change to 
the extent that they would not have to continue to contact agencies 
that declined to participate in IEP meetings on transition planning. In 
school year 2005-2006, we project that public agencies will conduct 
1,191,218 meetings for students with disabilities who are 16 through 21 
years old. We used data from the National Longitudinal Transition Study 
2 (NLTS2) on school contacts of outside agency personnel to project the 
number of instances in which outside agencies would be invited to IEP 
meetings during the 2005-2006 school year. Based on these data, we 
project that schools will invite 1,490,241 personnel from other 
agencies to IEP meetings for these students during the 2005-2006 school 
year. The NLTS2 also collected data on the percentage of students with 
a transition plan for whom outside agency staff were actively involved 
in transition planning. Based on these data, we project that 436,047 
(29 percent) of the contacts will result in the active participation of 
outside agency personnel in transition planning for students with 
disabilities 16 through 21.
    We base our estimate of the potential savings from the proposed 
change on the projected 1,054,194 (71 percent) instances in which 
outside agencies would not participate in transition planning despite 
school contacts that, under the current regulations, would include both 
an invitation to participate in the child's IEP meeting and additional 
follow-up attempts. If public agencies made only one additional attempt 
to contact the outside agency and each attempt required 15 minutes of 
administrative personnel time, then the proposed change would save $6.3 
million (based on an average hourly compensation for office and 
administrative support staff of $24).
    Studies of best practices conducted by the National Center on 
Secondary Education and Transition indicate that effective transition 
planning requires structured interagency collaboration. Successful 
approaches cited in the studies included memoranda of understanding 
between relevant agencies and interagency teams or coordinators to 
ensure that educators, State agency personnel and other community 
service providers share information with parents and children with 
disabilities. The current regulation focuses on administrative contact 
instead of active strategic partnerships between agencies that 
facilitate seamless transitions for students with disabilities between 
school and adult settings. For this reason, the Department believes 
that the proposed elimination of the non-statutory requirement that 
public agencies make additional attempts to contact other agencies 
would reduce administrative burden and allow public agencies to focus 
their efforts on interagency collaborative transition planning for 
children with disabilities.
2. Clarity of the Regulations
    Executive Order 12866 and the Presidential Memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a number heading; for example, 
Sec.  300.172 Access to instructional materials.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulation easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make this 
proposed regulation easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
impose significant net costs in any one year, and may result in savings 
to SEAs and LEAs.
    The small entities that would be affected by these proposed 
regulations are small local educational agencies (LEAs) receiving 
Federal funds under this program. Both small and large school districts 
will be affected economically by the proposed regulations. The effect 
of the proposed regulations on small entities would be roughly 
proportional to the number of children with disabilities served by 
those districts.
    To the extent that small districts may not employ school 
psychologists, the proposed changes to the procedures for evaluating 
children with specific learning disabilities may alleviate testing 
burdens felt disproportionately by small districts that would no longer 
be required to use a discrepancy model.

[[Page 35826]]

Paperwork Reduction Act of 1995

    These proposed regulations contain information collection 
provisions that are subject to review by OMB under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). A description of these 
provisions is given below with an estimate of the annual recordkeeping 
burden. Included in the estimate is the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
collection of information.
    The Department invites comments on:
     Whether the proposed collections are necessary for the 
proper performance of our functions, including whether the information 
will have practical use;
     The accuracy of our estimate of the burden of the proposed 
collections, including the validity of our methodology and assumptions;
     The quality, usefulness, and clarity of the information we 
collect; and
     Ways to minimize the burden on those who must respond. 
This includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    The proposed IDEA regulation includes 21 information collection 
requirements associated with the following provisions: Proposed 
Sec. Sec.  300.100 through 300.176, Sec.  300.182, Sec.  300.199, 
Sec. Sec.  300.201 through 300.213, Sec.  300.224, Sec.  300.226, 
Sec. Sec.  300.506 through 300.507, Sec.  300.511, Sec. Sec.  300.601 
through 300.602, Sec.  300.640, Sec.  300.704, Sec.  300.804, and 
Sec. Sec.  304.1 through 304.31 In compliance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department has submitted 
the information collections provisions of this proposed rule to OMB for 
review. The Department recognizes that information collection requests 
requiring aggregate data on race and ethnicity do not reflect the 1997 
OMB Standards for Data on Race and Ethnicity. The Department 
anticipates providing guidance to implement those standards in 
forthcoming collections.
    Interested persons are requested to send comments regarding the 
information collections to the Department of Education within 60 days 
after publication of the proposed rule. This comment period does not 
affect the deadline for public comments associated with the proposed 
rule.
    Collection of Information: Annual State Application under Part B of 
the Act. Sec. Sec.  300.100 through 300.176 and Sec.  300.182, and 
Sec.  300.804. Each State is eligible for assistance under Part B of 
the Act for a fiscal year if the State submits a plan that provides 
assurances to the Secretary that the State has in effect policies and 
procedures to ensure that the State meets the eligibility criteria 
under Part B of the Act and these proposed regulations. Under the new 
statute, States will no longer be required to have on file with the 
Secretary policies and procedures to demonstrate to the satisfaction of 
the Secretary that the State meets specific conditions for assistance 
under Part B of the Act. Information collection 1820-0030 has been 
revised to reflect this change in the statute and appropriate proposed 
regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average eight hours for each response for 
57 respondents, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Thus, the total annual reporting and recordkeeping burden for 
information collection 1820-0030 is estimated to be 456 hours. This new 
statutory change will result in a reduction in the burden to States and 
in the overall cost to the Federal Government.
    Under 34 CFR 1320.11, we requested that OMB review information 
collection 1820-0030 on an emergency basis. Although OMB has approved 
this information collection on an emergency basis, we continue to 
invite your comments on this collection.
    Collection of Information: Part B State Performance Plan (SPP) and 
Annual Performance Report (APR). Sec. Sec.  300.601 through 300.602. 
Each State must have in place, not later than one year after the date 
of enactment of the Individuals with Disabilities Education Improvement 
Act of 2004, a performance plan that evaluates the State's efforts to 
implement the requirements and purposes of Part B of the Act and these 
proposed regulations and describe how the State will improve such 
implementation. Each State shall report annually to the public on the 
performance of each LEA located in the State on the targets in the 
State's performance plan. The State must report annually to the 
Secretary on the performance of the State under the State's performance 
plan. A notice was initially published in the Federal Register on March 
8, 2005 giving the public 60 days to comment on this information 
collection (OMB No. 1820-0624). The initial comment period for this 
collection ended on May 9, 2005. Comments regarding this information 
collection are being reviewed and revisions are being made to the 
collection based on the comments received. A second notice will be 
published in the Federal Register notifying the public of an additional 
30-day public comment period. Once the information collection is 
approved, the Department will disseminate the collection instrument to 
the public and collect the required information. If, as a result of the 
final regulations adopted by the Department, additional changes are 
required to the collection, the Department will revise the information 
collection and resubmit the collection for public comment.
    Annual reporting and record keeping burden for this collection of 
information is estimated to average 300 hours for each response for 60 
respondents, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Thus, the total 
annual reporting and recordkeeping burden for information collection 
1820-0624 is estimated to be 18,000 hours.
    Collection of Information: LEA Application under Part B of the Act. 
Sec. Sec.  300.201 through 300.213, Sec.  300.224, and Sec.  300.226. 
Each LEA must submit a plan to the SEA that provides assurances to the 
SEA that the LEA meets each of the conditions in proposed Sec. Sec.  
300.201 through 300.213, if applicable, meets the requirements in Sec.  
300.224, and, if applicable, reports to the SEA on the number of 
children served under proposed Sec.  300.226 and the number of children 
served under Sec.  300.226 who subsequently receive special education 
and related services under Part B of the Act during the preceding two 
year period. Under the new statute, LEAs are no longer required to have 
on file with the SEA information to demonstrate that the agency meets 
such requirements. Information collection 1820-0600 has been revised to 
reflect these changes and the appropriate proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average two hours for each response for 
15,000 respondents, including the time for reviewing the collection of 
information. Thus, the total annual reporting and recordkeeping burden 
for information collection 1820-0600 is estimated to be 30,000 hours.
    Collection of Information: List of Hearing Officers and Mediators. 
Sec. Sec.  300.506(b)(3)(i) and 300.511(c)(3). Each State must maintain 
a list of

[[Page 35827]]

individuals who are qualified mediators and knowledgeable in laws and 
regulations relating to the provision of special education and related 
services. Each public agency must also keep a list of the persons who 
serve as hearing officers. Information collection 1820-0509 has been 
revised to reflect appropriate proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average three hours annually for each of 57 
States and 14,312 public agencies to develop and maintain these lists. 
Thus, the total annual reporting and recordkeeping burden for 
information collection 1820-0509 is estimated to be 43,107 hours.
    Collection of Information: Complaint Procedures. Sec. Sec.  300.151 
through 300.153. Each SEA is required to adopt written procedures for 
resolving any complaint that meets the requirements in these proposed 
regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 10 hours to issue a written 
decision to a complaint. It is estimated there are 1,191 complaints 
resolved annually. Thus, the annual reporting and recordkeeping burden 
for information collection 1820-0599 is estimated to be 11,910 hours.
    Collection of Information: Early Intervening Services Annual 
Report. Sec. Sec.  300.208(a)(2) and 300.226. Each LEA that develops 
and maintains coordinated, early intervening services is required to 
annually report to the SEA on the number of children served through 
early intervening services and the number of children who subsequently 
receive special education and related services under Part B of the Act 
during the preceding two year period. The Secretary has determined that 
it is necessary to require each State to report these data to the 
Secretary to assist in determining that these provisions are properly 
implemented.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 22 hours for each of 5,691 LEAs to 
gather the data needed and prepare information to submit to SEAs. It is 
estimated to average 16 hours annually for each of 60 SEAs to collect, 
review, and maintain data received from LEAs and seven hours for each 
SEA to prepare and report the data to the Secretary. Thus, the total 
annual reporting and recordkeeping burden for this new collection is 
estimated to be 126,582 hours.
    Collection of Information: LEA Consultation with Private School 
Representatives. Sec. Sec.  300.134(e) and 300.135. The LEA is required 
to provide to private school officials a written explanation of the 
reasons why the LEA chose not to provide services directly or through a 
contract and, when timely and meaningful consultation as required under 
Part B of the Act has occurred, the LEA is required to obtain a written 
affirmation signed by the representatives of participating private 
schools and forward the documentation of the consultation process to 
the SEA.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 12 hours for each of 2,849 LEAs to 
obtain a written affirmation and forward documentation to the SEA and 
24 hours for each SEA to review and maintain records. Thus, the total 
annual reporting and recordkeeping burden for this new collection is 
estimated to be 35,556 hours.
    Collection of Information: Private School Complaint of 
Noncompliance with Consultation Requirements. Sec.  300.136. A private 
school official is permitted to submit a complaint to the SEA that the 
LEA did not engage in consultation that was meaningful and timely, or 
did not give due consideration of the private school official. Further, 
a private school official may submit a complaint to the Secretary if 
the official is dissatisfied with the decision of the SEA.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average two hours for each of 200 private 
school officials to submit a complaint to the SEA, two hours for each 
of 30 private school officials to submit a complaint to the Secretary, 
16 hours for each SEA decision rendered for each of 200 complaints, two 
hours for the SEA to forward documentation to the Secretary for each of 
30 complaints, and four hours for each of 200 LEAs to forward 
documentation to the SEA, including the time for reviewing the 
collection of information. Thus, the total annual reporting and 
recordkeeping burden for this new collection is estimated to be 4,520 
total hours.
    Collection of Information: Identification of State-Imposed Rules, 
Regulations, or Policies. Sec.  300.199. Each State that receives funds 
under Part B of the Act must identify in writing to LEAs located in the 
State and the Secretary any rule, regulation, or policy as a State-
imposed requirement that is not required by Part B of the Act and 
Federal regulations.
    It is estimated that 50 States will be required to inform LEAs and 
the Secretary in writing of State-imposed requirements that are not 
required by Federal regulations implementing Part B of the Act. It is 
estimated that it will take respondents 40 hours to identify all State-
imposed requirements and inform LEAs and the Secretary in writing. The 
total annual reporting and recordkeeping burden for this new collection 
is estimated to be 2,000 hours annually.
    Collection of Information: Number of Children with Disabilities 
Enrolled in Private Schools by Their Parents. Sec.  300.132. Each LEA 
is required to maintain in its records and annually provide to the SEA 
the number of children enrolled in private schools by their parents 
that are evaluated by the LEA to determine whether they are children 
with disabilities under Part B of the Act, the number of children 
determined to be children with disabilities under Part B of the Act, 
and the number of children receiving special education and related 
services in accordance with Part B of the Act.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 10 hours for each of 14,229 LEAs to 
maintain a record of the number of children and report the numbers to 
the SEA and 20 hours for each SEA to process, review, and maintain the 
reports. Thus, the total annual reporting and recordkeeping burden for 
this new collection is estimated to be 143,430 hours.
    Collection of Information: State Plan for High Cost Fund. Sec.  
300.704(c)(3)(ii). Any SEA that chooses to reserve funds under Part B 
of the Act shall annually review, and amend as necessary, a State plan 
for the high cost fund.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 40 hours for each response for 40 
respondents, including the time for reviewing the collection of 
information. Thus, the total annual reporting and recordkeeping burden 
for this new collection is estimated to be 1,600 hours.
    Collection of Information: Free and Low-Cost Legal Services. Sec.  
300.507(b). Each public agency must inform the parent of any free or 
low-cost legal or other relevant services available in the area if the 
parent requests the information or the parent or agency requests a 
hearing under Part B of the Act.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 30 minutes for each response for 
13,056 requests, including the time for preparing the information. 
Thus, the total annual reporting and recordkeeping burden for this new 
collection is estimated to be 6,528 hours.
    Collection of Information: Confidentiality Pledge Prior to the

[[Page 35828]]

Commencement of Mediation. Sec.  300.506(b)(9). Parties to mediation 
may be required to sign a confidentiality pledge prior to the 
commencement of mediation to ensure that all discussions that occur 
during mediation remain confidential.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 30 minutes for each response for 
4,668 requests, including the time for preparing the information and 
obtaining the signed pledge. Thus, the total annual reporting and 
recordkeeping burden for this new collection is estimated to be 2,334 
hours.
    Collection of Information: Report of Children with Disabilities 
Receiving Special Education under Part B of the Individuals with 
Disabilities Education Act. Sec.  300.160. Each State that receives 
assistance under Part B of the Act shall provide data each year to the 
Secretary and the public on children with disabilities by race/
ethnicity, disability, gender, and Limited English Proficiency status 
receiving special education and related services in each State.
    Annual reporting and recordkeeping burden for this collection is 
estimated to be 8.5 hours for each of 60 State agencies and 2 hours for 
each of an average of 260 LEAs per State. Thus, the total annual 
reporting and recordkeeping burden for collection 1820-0043 is 31,710.
    Collection of Information: Special Education-Personnel Preparation 
to Improve Services and Results for Children with Disabilities. 
Sec. Sec.  304.1 through 304.31. Individuals who receive a scholarship 
through personnel preparation projects funded under the Act must 
subsequently provide early intervention, special education or related 
services to children with disabilities. These proposed regulations 
would implement requirements governing, among other things, the service 
obligation for scholars, oversight by grantees, repayment of 
scholarship, and procedures for obtaining deferrals or exemptions from 
service or repayment obligations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 4 hours for a grantee to establish 
written agreements and maintain information on each scholarship 
recipient. It is estimated that each of the 375 grantees will establish 
agreements and maintain information for 20 scholars. It is estimated to 
average 2 hours for each of 4,000 scholars to provide information to 
the Secretary of their progress in meeting the service requirement. 
Thus, the total annual reporting burden for collection 1820-0622 is 
38,000 hours.
    Collection of Information: Report of the Participation and 
Performance of Students with Disabilities on State Assessments. Sec.  
300.160(d). Each State (or, in the case of a district-wide assessment, 
the LEA) must report to the public with the same frequency and in the 
same detail as it reports on the assessment of nondisabled children, by 
grade and subject, the number of children with disabilities served 
under part B of the Act that participated in regular assessments; 
regular assessments with accommodations; alternate assessments aligned 
with academic content and achievement standards; and alternate 
assessments aligned with alternate achievement standards, and the 
performance results of children with disabilities on regular 
assessments and on alternate assessments. Information collection 1820-
0659 has been revised to reflect changes in the statute and appropriate 
proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 60 hours for each of 60 State 
agencies, including the time for collecting and aggregating the data 
and reporting data to the Secretary. Thus, the total annual reporting 
and recordkeeping burden for information collection 1820-0659 is 3,600 
hours.
    Collection of Information: Report of Children with Disabilities 
Subject to Disciplinary Removal. Sec.  300.640. Each State must provide 
data to the Secretary and the public by race, ethnicity, limited 
English proficiency status, gender, and disability category on children 
with disabilities who are removed to an interim alternative educational 
setting and the acts or items precipitating those removals. Data must 
also be reported by race, ethnicity, limited English proficiency 
status, gender, and disability category on the number of children with 
disabilities who are subject to long-term suspensions or expulsions. In 
addition, data must be reported on the number and percentage of 
children with disabilities who are removed to alternative educational 
settings or expelled as compared to children without disabilities, and 
on the incidence and duration of disciplinary actions, including 
suspensions of one day or more. Information collection 1820-0621 has 
been revised to reflect the new statutory requirements and the proposed 
regulations.
    Annual reporting and record keeping burden for this collection of 
information is estimated to average 17.5 hours for each of an average 
of 260 LEAs per State to collect, review, and report the data and 74 
hours per State agency (60) to collect, maintain, and report these 
data. Thus, the total annual reporting and recordkeeping burden for 
information collection 1820-0621 for all States (60) is estimated to be 
277,440 hours.
    Collection of Information: Personnel (in Full-time Equivalency of 
Assignments) Employed to Provide Special Education and Related Services 
for Children with Disabilities. Sec.  300.207. Each LEA must ensure 
that all personnel are appropriately and adequately prepared and each 
SEA must establish and maintain qualifications to ensure that personnel 
are appropriately and adequately prepared and trained, including that 
those personnel have the content knowledge and skills to serve children 
with disabilities. To help ensure that these requirements are met, the 
Secretary must collect data that can be used to monitor these 
requirements. Information collection 1820-0518 has been revised to 
reflect the new statutory requirements and the proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 0.5 hours for each of an average of 
260 LEAs per State and 2.5 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0518 for all States is 7,950 hours.
    Collection of Information: Report of Children with Disabilities 
Exiting Special Education. Sec.  300.640. Each State must report to the 
Secretary children by race, ethnicity, limited English proficiency 
status, gender, and disability category, the number of children with 
disabilities aged 14 through 21 who stopped receiving special education 
and related services because of program completion (including 
graduation with a regular secondary school diploma), or other reasons, 
and the reasons why those children stopped receiving special education 
and related services. Information collection 1820-0521 has been revised 
to reflect the new statutory requirements and the proposed regulations.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 6 hours for each of an average of 
260 LEAs per State and 11 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0521 for all States is 94,260 hours.
    Collection of Information: Part B, Individuals with Disabilities 
Education Act Implementation of FAPE Requirements. Sec.  300.640. Each 
State

[[Page 35829]]

must provide to the Secretary and the public data on children with 
disabilities by race, ethnicity, limited English proficiency status, 
gender, and disability category who are receiving a free appropriate 
public education, participating in regular education, in separate 
classes, separate schools or facilities, or public or private 
residential facilities. Information collection 1820-0517 has been 
revised to reflect the new statutory requirement.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 27 hours for each of an average of 
260 LEAs per State and 28 hours for each of 60 State agencies. Thus, 
the total annual reporting and recordkeeping burden for information 
collection 1820-0517 for all States is 422,880 hours.
    Collection of Information: Report of Dispute Resolution Under Part 
B of the Individuals with Disabilities Education Act: Complaints, 
Mediations, and Due Process Hearings. Sec.  300.640. Each State must 
report to the Secretary and the public, the number of due process 
complaints filed under section 615 of the Act and the number of 
hearings conducted; the number of hearings requested under section 
615(k) of the Act and the number of changes in placement ordered as a 
result of those hearings; and the number of mediations held and the 
number of settlement agreements reached through those mediations. This 
new information collection has been developed to reflect the new 
statutory requirement.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to average 70 hours for each of 60 State 
agencies. Thus, the total annual reporting and recordkeeping burden for 
this new information collection is estimated to be 4,200 hours.
    Requests for copies of the submission for OMB review may be 
accessed from http//edicsweb.ed.gov by selecting the ``Browse Pending 
Collections'' link. When you access the information collection, click 
on ``Download Attachments'' to view. Written request for information 
should be addressed to U.S. Department of Education, 400 Maryland 
Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. 
Requests may also be electronically mailed to the Internet address 
OCIO_RIMG@ed.gov or faxed to (202) 245-6621.

    If you want to comment on the information collection requirements, 
please send your comments to Troy R. Justesen, U.S. Department of 
Education, 400 Maryland Avenue, SW., Potomac Center Plaza, room 5126, 
Washington, DC 20202-2641.

Intergovernmental Review

    This program is subject to the Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism by relying on processes developed by State and local 
governments for coordination and review of proposed Federal financial 
assistance.
    This document provides early notification of the Department's 
specific plans and actions for this program.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether these 
proposed regulations would require transmission of information that any 
other agency or authority of the United States gathers or makes 
available.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (PDF) at the following site:  http://www.ed.gov/news/fedregister
.

    To use PDF you must have Adobe Acrobat, which is available free at 
this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO) toll free at 1-800-293-4922; or in the 
Washington, DC area at (202) 512-1530.


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.




  Redesignation Table Showing Each Current Regulatory Section in 34 CFR
         Part 300 and the Corresponding Section in This NPRM \1\
------------------------------------------------------------------------
                                             B. Corresponding section in
   A. Current regulatory section number                 NPRM
------------------------------------------------------------------------
                           Subpart A--General
------------------------------------------------------------------------

300.1 Purposes............................  300.1.
300.2 Applicability of this part to State,  300.2.
 local, and private agencies.
300.3 Regulations that apply..............  Removed.

       Definitions Used in This Part

300.4 Act.................................  300.4.
300.5 Assistive technology device.........  300.5.
300.6 Assistive technology service........  300.6.
300.7 Child with a disability.............  300.8.
300.8 Consent.............................  Removed.
300.9 Day; business day; school day.......  300.11.
300.10 Educational service agency.........  300.12.
300.11 Equipment..........................  300.14.
300.12 Evaluation.........................  Removed.
300.13 Free appropriate public education..  300.17.
300.14 Include............................  300.20.
300.15 Individualized education program...  Removed.
300.16 Individualized education program     300.23.
 team.
300.17 Individualized family service plan.  300.24.
300.18 Local educational agency...........  300.28.
300.19 Native language....................  300.29.
300.20 Parent.............................  300.30.
300.21 Personally identifiable............  Removed.
300.22 Public agency......................  300.33.
300.23 Qualified personnel................  Removed.
300.24 Related services...................  300.34.
300.25 Secondary school...................  300.35.
300.26 Special education..................  300.38.
300.27 State..............................  300.39.
300.28 Supplementary aids and services....  300.41.
300.29 Transition services................  300.42.
300.30 Definitions in EDGAR...............  Removed.
-------------------------------------------

                 Subpart B--State and Local Eligibility
------------------------------------------------------------------------

300.110 Condition of assistance...........  300.100.
300.111 Exception for prior State policies  300.176(a).
 and procedures on file with the Secretary.
300.112 Amendments to State policies and    300.176(b) and (c).
 procedures.
300.113 Approval by the Secretary.........  300.178.
    (a) General.                            ............................
    (b) Notice and hearing before           300.179.
     determining a State is not eligible.
300.121 Free appropriate public education   300.101(a)
 (FAPE).
    (a) General.
    (b) Required information..............  Removed.

[[Page 35830]]


    (c) FAPE for children beginning at age  300.101(b).
     3.
    (d) FAPE for children suspended or      300.530(d)
     expelled from school.
    (e) Children advancing from grade to    300.101(c).
     grade..
300.122 Exception to FAPE for certain ages  300.102.
300.123 Full educational opportunity goal   300.109.
 (FEOG).
300.124 FEOG--timetable...................  300.109.
300.125 Child find........................  300.111(a).
    (a) General requirement...............
    (b) Documents related to child find...  Removed.
    (c) Child find for children from birth  Removed.
     through age 2 when the SEA and lead
     agency for the Part C program are
     different.
    (d) Construction......................  300.111(d).
    (e) Confidentiality of child find data  Removed.
300.126 Procedures for evaluation and       300.122.
 determination of eligibility.
300.127 Confidentiality of personally       300.123.
 identifiable information.
300.128 Individualized education programs.  300.112.
    (a) General
    (b) Required information..............  Removed.
300.129 Procedural safeguards.............  300.121.
300.130 Least restrictive environment.....  300.114.
300.132 Transition of children from Part C  300.124.
 to preschool programs.
300.133 Children in private schools.......  300.129.
300.134 [Reserved]
300.135 Comprehensive system of personnel   Removed.
 development.
300.136 Personnel standards...............  Removed.
300.137 Performance goals and indicators..  300.157.
300.138 Participation in assessments......  300.160.
300.139 Reports relating to assessments...  300.160(d).
300.141 SEA responsibility for general      Removed.
 superision.
300.142 Methods of ensuring services......  300.154.
    (a)-(c); (e)-(i).
    (d) Information.......................  Removed.
300.143 SEA implementation of procedural    300.150.
 safeguards.
300.144 Hearings relating to LEA            300.155.
 eligibility.
300.145 Recovery of funds for               Removed.
 misclassified children.
300.146 Suspension and expulsion rates....  300.170.
300.147 Additional information if SEA       300.175.
 provides direct services.
300.148 Public participation..............  300.165.
    (a) General; exception. (1)
    (2) [Conditions Re-(a)(1)]............  Removed.
    (b) Documentation.....................  Removed.
300.150 State advisory panel..............  Removed.
300.151 [Reserved].
300.152 Prohibition against commingling...  300.162(b).
300.153 State-level nonsupplanting........  300.162(c), 300.164.
300.154 Maintenance of State financial      300.163.
 support.
300.155 Policies and procedures for use of  300.162(a).
 Part B funds.
300.156 Annual description of use of Part   300.171.
 B funds.
    (a)(1)-(2) and (b).
    (a)(3) [Re: % to LEAs]................  Removed.

     LEA and State Agency Eligibility

300.180 Condition of assistance...........  300.200.
300.181 Exception for prior LEA or State    300.220(a).
 agency policies and procedures on file
 with the SEA.
300.182 Amendments to LEA policies and      300.220(b) and (c).
 procedures.
300.184 Excess cost requirement...........  300.202(a)(2).
    (a) General.
    (b) Definition........................  300.16.
    (c) Limitation on use of Part B funds.  300.202(b).
300.185 Meeting the excess cost             300.202(b)(2).
 requirement.
300.190 Joint establishment of eligibility  300.202(b)(3), 300.223.
300.192 Requirements for establishing       300.224.
 eligibility.
300.194 State agency eligibility..........  300.228.
300.196 Notification of LEA or State        300.221.
 agency in case of ineligibility.
300.197 LEA and State agency compliance...  300.222.
300.200 Consistency with State policies.
    (a) General...........................  300.201.
    (b) Policies on file with SEA.........  Removed.
300.221 Implementation of CSPD.
    (a)...................................  300.207.
    (b)...................................  Removed.
300.230 Use of amounts....................  300.202.
300.231 Maintenance of effort.............  300.203.
300.232 Exception to maintenance of effort  300.204.
300.233 Treatment of federal funds in       300.205.
 certain fiscal years.
300.234 Schoolwide programs under title I   300.206.
 of the ESEA.
300.235 Permissive use of funds...........  300.208.
300.240 Information for SEA.
    (a)...................................  300.211.
    (b)...................................  Removed.
300.241 Treatment of charter schools and    300.209.
 their students.
300.242 Public information................  300.212.
300.244 Coordinated services system.......  Removed.
300.245 School-based improvement plan.....  Removed.
300.246 Plan requirements.................  Removed.
300.247 Responsibilities of the LEA.......  Removed.
300.248 Limitation........................  Removed.
300.249 Additional requirements...........  Removed.
300.250 Extension of plan.................  Removed.

         Secretary of the Interior

300.260 Submission of information.........  300.708.
300.261 Public participation..............  300.709.
300.262 Use of Part B funds...............  300.710.
300.263 Plan for coordination of services.  300.713.
300.264 Definitions.......................  300.21.
300.265 Establishment of advisory board...  300.714.
300.266 Annual report by advisory board...  300.715.
300.267 Applicable regulations............  300.716.

           Public Participation

300.280 Public hearings before adopting     Removed.
 State policies and procedures.
300.281 Notice............................  Removed.


[[Continued on page 35831]]


From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]                         
 
[[pp. 35831-35880]] Assistance to States for the Education of Children With 
Disabilities; Preschool Grants for Children With Disabilities; and 
Service Obligations Under Special Education--Personnel Development To 
Improve Services and Results for Children With Disabilities

[[Continued from page 35830]]

[[Page 35831]]


300.282 Opportunity to participate;         Removed.
 comment period.
300.283 Review of public comments before    Removed.
 adopting policies and procedures.
300.284 Publication and availability of     Removed.
 approved policies and procedures.
300.300 Provision of FAPE.................  300.101.
300.301 FAPE--methods and payments........  300.103.
300.302 Residential placement.............  300.104
300.303 Proper functioning of hearing aids  300.105(b).
300.304 Full educational opportunity goal.  300.109.
300.305 Program options...................  300.110.
300.306 Nonacademic services..............  300.107.
300.307 Physical education................  300.108.
300.308 Assistive technology..............  300.105(a).
300.309 Extended school year..............  300.106.
300.311 FAPE requirements for students      300.324(d).
 with disabilities in adult prisons.
300.312 Children with disabilities in       300.209.
 public charter schools.
300.313 Children experiencing               300.111(b).
 developmental delays.
300.320 Initial evaluations...............  300.301.
300.321 Reevaluations.....................  300.303.
300.340 Definitions related to IEPs.......  300.320.
    (a) Individualized education program.
    (b) Participating agency..............  Removed.
300.341 Responsibility of SEA and other     Removed.
 public agencies for IEPs.
300.342 When IEPs must be in effect.......  300.323.
300.343 IEP Meetings......................  300.323(c).
300.344 IEP team..........................  300.321.
300.345 Parent participation..............  300.322.
    (a)-(d) and (f).
    (e) Use of interpreters or other        Removed.
     action as appropriate.
300.346 Development, review, and revision   300.324.
 of IEP.
300.347 Content of IEP....................  300.320.
300.348 Agency responsibilities for         300.324(c).
 transition services.
300.349 Private school placements by        300.325.
 public agencies.
300.350 IEPs-accountability...............  Removed.
300.360 Use of LEA allocation for direct    300.227(a).
 services.
    (a) General
    (b) SEA responsibility if an LEA does   300.227(a)(1).
     not apply for Part B funds.
    (c) SEA administrative procedures.....  300.227(a)(2).
300.361 Nature and location of services...  300.227(b).
300.370 Use of SEA allocations............  300.704.
300.372 Nonapplicability of requirements    300.704(d).
 that prohibit commingling and supplanting
 of funds.
300.380 General CSPD requirements.........  Removed.
300.381 Adequate supply of qualified        Removed.
 personnel.
300.382 Improvement strategies............  Removed.

        Private School Requirements

300.400 Applicability of Sec.   Sec.        300.145.
 300.400-300.402.
300.401 Responsibility of State             300.146.
 educational agency.
300.402 Implementation by State             300.147.
 educational agency.
300.403 Placement of children by parents    300.148.
 if FAPE is at issue.
300.450 Definition of ``private school      300.130.
 children with disabilities''.
300.451 Child find for private school       300.131.
 children with disabilities.
300.452 Provision of services--basic        300.132.
 requirement.
300.453 Expenditures......................  300.133.
300.454 Services determined...............  300.137.
300.455 Services provided.................  300.138
300.456 Location of services;               300.139.
 transportation.
300.457 Complaints........................  300.140.
300.458 Separate classes prohibited.......  300.143.
300.459 Requirement that funds not benefit  300.141.
 a private school.
300.460 Use of public school personnel....  300.142(a).
300.461 Use of private school personnel...  300.142(b).
300.462 Requirements concerning property,   300.144.
 equipment, and supplies for the benefit
 of private school children with
 disabilities.
300.480 By-pass-general...................  300.190.
300.481 Provisions for services under a by- 300.191.
 pass.
300.482 Notice of intent to implement a by- 300.192.
 pass.
300.483 Request to show cause.............  300.193.
300.484 Show cause hearing................  300.194.
300.485 Decision..........................  300.195.
300.486 Filing requirements...............  300.196.
300.487 Judicial review...................  300.197.
-------------------------------------------

                     Subpart E--Procedural Safeguards
------------------------------------------------------------------------

 300.500 General responsibility of public   300.500.
 agencies; definitions.
    (a) Responsibility of SEA and other
     public agencies.
    (b) Definitions.......................  300.9.
    (1) Consent
    (2) Evaluation........................  300.15.
    (3) Personally identifiable...........  300.32.
300.501 Opportunity to examine records;     300.501.
 parent participation in meetings.
300.502 Independent educational evaluation  300.502.
300.503 Prior notice by the public agency;  300.503.
 content of notice.
300.504 Procedural safeguards notice......  300.504.
300.505 Parental consent..................  300.300.
300.506 Mediation.........................  300.506.
300.507 Impartial due process hearing;      300.507, 300.508,
 parent notice.
300.508 Impartial hearing officer.........  300.511(c).
300.509 Hearing rights....................  300.512.
300.510 Finality of decision; appeal;       300.514.
 impartial review.
300.511 Timelines and convenience of        300.515.
 hearings and reviews.
300.512 Civil action......................  300.516.
300.513 Attorneys' fees...................  300.517.
300.514 Child's status during proceedings.  300.518.
300.515 Surrogate parents.................  300.519.

           Discipline Procedures

300.517 Transfer of parental rights at age  300.520.
 of majority.
300.519 Change of placement for             300.536.
 disciplinary removals.
300.520 Authority of school personnel.....  300.530.
300.521 Authority of hearing officer......  300.532(b).
300.522 Determination of setting..........  300.531.

[[Page 35832]]


300.523 Manifestation determination review  300.530(e).
300.524 Determination that behavior was     300.530(c).
 not manifestation of disability.
300.525 Parent appeal.....................  300.532.
300.526 Placement during appeals..........  300.533.
300.527 Protections for children not yet    300.534.
 eligible for special education and
 related services.
300.528 Expedited due process hearings....  300.532(c).
300.529 Referral to and action by law       300.535.
 enforcement and judicial authorities.

       Procedures for Evaluation and
       Determination of Eligibility

300.530 General...........................  300.121.
300.531 Initial evaluation................  300.121, 300.301.
300.532 Evaluation procedures.............  300.304.
300.533 Determination of needed evaluation  300.305.
 data.
300.534 Determination of eligibility......  300.306(a) and (b).
300.535 Procedures for determining          300.306(c).
 eligibility and placement.
300.536 Reevaluation......................  300.303.

   Additional Procedures for Evaluating
      Children With Specific Learning
               Disabilities

300.540 Additional team members...........  300.308.
300.541 Criteria for determining the        300.309.
 existence of a specific learning
 disability.
300.542 Observation.......................  300.310.
300.543 Written report....................  300.311.

       Least Restrictive Environment

300.550 General LRE requirements..........  300.114.
300.551 Continuum of alternative            300.115.
 placements.
300.552 Placements........................  300.116.
300.553 Nonacademic settings..............  300.117.
300.554 Children in public or private       300.118.
 institutions.
300.555 Technical assistance and training   300.119.
 activities.
300.556 Monitoring activities.............  300.120.

      Confidentiality of Information

300.560 Definitions.......................  300.611.
300.561 Notice to parents.................  300.612.
300.562 Access rights.....................  300.613.
300.563 Record of access..................  300.614.
300.564 Records on more than one child....  300.615.
300.565 List of types and locations of      300.616.
 information.
300.566 Fees..............................  300.617.
300.567 Amendment of records at parent's    300.618.
 request.
300.568 Opportunity for a hearing.........  300.619.
300.569 Result of hearing.................  300.620.
300.570 Hearing procedures................  300.621.
300.571 Consent...........................  300.622.
300.572 Safeguards........................  300.623.
300.573 Destruction of information........  300.624.
300.574 Children's rights.................  300.625.
300.575 Enforcement.......................  300.626.
300.576 Disciplinary information..........  300.229.
300.577 Department use of personally        300.627
 identifiable information.

          .Department Procedures

300.580 Determination by the Secretary      300.178.
 that a State is eligible.
300.581 Notice and hearing before           300.179.
 determining that a State is not eligible.
300.582 Hearing official or panel.........  300.180.
300.583 Hearing procedures................  300.181.
300.584 Initial decision; final decision..  300.182.
300.585 Filing requirements...............  300.183.
300.586 Judicial review...................  300.184.
300.587 Enforcement.......................  300.604-300.607
300.589 Waiver of requirement regarding     300.164.
 supplementing and not supplanting with
 Part B funds.
-------------------------------------------

                     Subpart F--State Administration
------------------------------------------------------------------------

 300.600 Responsibility for all             300.149.
 educational programs.
300.601 Relation of Part B to other         300.186.
 Federal programs.
300.602 State-level activities............  Removed.
300.620 Use of funds for State              300.704(a).
 administration.
300.621 Allowable costs...................  300.704(b)(4).
300.622 Subgrants to LEAs for capacity-     Removed.
 building and improvement.
300.623 Amount required for subgrants to    Removed.
 LEAs.
300.624 State discretion in awarding        Removed.
 subgrants.
300.650 Establishment of advisory panels..  300.167.
300.651 Membership........................  300.168.
300.652 Advisory panel functions..........  300.169.
300.653 Advisory panel procedures.........  Removed.
300.660 Adoption of State complaint         300.151.
 procedures.
300.661 Minimum State complaint procedures  300.152.
300.662 Filing a complaint................  300.153.
-------------------------------------------

           Subpart G Allocation of Funds; Reports; Allocations
------------------------------------------------------------------------

 300.700 Special definition of the term     300.717(c).
 ``State''.
300.701 Grants to States..................  300.700.
300.702 Definition........................  300.717(d).
300.703 Allocations to States.............  300.703(a).
300.706 Permanent formula.................  Removed.
300.707 Increase in funds.................  300.703(c)(1).
300.708 Limitation........................  300.703(c)(2), (3).
300.709 Decrease in funds.................  300.703(d).
300.710 Allocation for State in which by-   300.706.
 pass is implemented for private school
 children with disabilities.
300.711 Subgrants to LEAs.................  300.705(a).
300.712 Allocations to LEAs...............  300.705(b).
300.713 Former Chapter 1 State agencies...  Removed.
300.714 Reallocation of LEA funds.........  300.705(c).
300.715(a) and (b) Payments to the          300.707.
 Secretary of the Interior for the
 education of Indian children.
300.715(c) Calculation of number of         Removed.
 children.
300.716 Payments for education and          300.712.
 services for Indian children with
 disabilities aged 3 through 5.
300.717 Outlying areas and freely           300.701.
 associated States.
300.718 Outlying area-definition..........  300.717(b).
300.719 Limitation for freely associated    Removed.
 States.
300.720 Special rule......................  300.701(a)(2).
300.722 Definition........................  300.717(a).

[[Page 35833]]


300.750 Annual report of children served--  300.640.
 report requirement.
300.751 Annual report of children served--  300.641.
 information required in the report.
300.752 Annual report of children served--  300.643.
 certification.
300.753 Annual report of children served--  300.644.
 criteria for counting children.
300.754 Annual report of children served    300.645.
 other responsibilities of the SEA.
300.755 Disproportionality................  300.646.
300.756 Acquisition of equipment;           300.718.
 construction or alteration of facilities.
------------------------------------------------------------------------
\1\ See explanation at the end of this table.

    Explanation of Table: The purpose of this table is to help readers 
find where a given section number in the current regulations (column A 
of Table) is located in this NPRM, as shown under column B. (In 
general, the table does not include any new requirements added by Pub. 
L. 108-446, or any proposed new regulations that would be added.) In 
the Table, if a specific section of the current regulations would be 
removed by the NPRM (e.g., ``Consent'' under current Sec.  300.8, which 
includes a reference to the definition of ``Consent'' in Sec.  
300.500(b)(1)), it would be shown as ``Removed'' under column B. 
However, because the definition of ``consent'' under current Sec.  
300.500(b)(1) would be moved to Subpart A (``Definitions'') of this 
NPRM, its new location (Sec.  300.9) would be shown opposite Sec.  
300.500(b)(1) in column B of the Table.

List of Subjects

34 CFR Part 300

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs--education, Privacy, Private 
schools, Reporting and recordkeeping requirements.

34 CFR Part 301

    Education of individuals with disabilities, Elementary and 
secondary education, Equal educational opportunity, Grant programs--
education, Infants and children, Reporting and recordkeeping 
requirements

34 CFR Part 304

    Service obligations under special education, Personnel development 
to improve services and results for children with disabilities.

    Dated: June 10, 2005.
Margaret Spellings,
Secretary of Education.

    For the reasons discussed in this preamble, the Secretary proposes 
to amend title 34 of the Code of Federal Regulations as follows:
    1. Revise part 300 to read as follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

Subpart A--General

Purposes and Applicability

Sec.
300.1 Purposes.
300.2 Applicability of this part to State and local agencies.

Definitions Used in This Part

300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education teacher.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program team.
300.24 Individualized family service plan.
300.25 Infant and toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Secondary school.
300.36 Services plan.
300.37 Secretary.
300.38 Special education.
300.39 State.
300.40 State educational agency.
300.41 Supplementary aids and services.
300.42 Transition services.
300.43 Universal design.
300.44 Ward of the State.
Subpart B--State Eligibility

General

300.100 Eligibility for assistance.

FAPE Requirements

300.101 Free appropriate public education (FAPE).
300.102 Limitation-Exception to FAPE for certain ages.

Other FAPE Requirements

300.103 FAPE-methods and payments.
300.104 Residential placement.
300.105 Assistive technology; proper functioning of hearing aids.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal (FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs (IEP).
300.113 [Reserved]

Least Restrictive Environment (LRE)

300.114 LRE requirements.
300.115 Continuum of alternative placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private institutions.
300.119 Technical assistance and training activities.
300.120 Monitoring activities.

Additional Eligibility Requirements

300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally identifiable information.
300.124 Transition of children from Part C to preschool programs.
300.125-300.128 [Reserved]

Children in Private Schools

300.129 State responsibility regarding children in private schools.

Children With Disabilities Enrolled by Their Parents in Private Schools

300.130 Definition of parentally-placed private school children with 
disabilities.
300.131 Child find for parentally-placed private school children 
with disabilities.
300.132 Provision of services for parentally-placed private school 
children with disabilities--basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and transportation.
300.140 Due process complaints and State complaints.
300.141 Requirement that funds not benefit a private school.

[[Page 35834]]

300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.

Children With Disabilities in Private Schools Placed or Referred by 
Public Agencies

300.145 Applicability of Sec. Sec.  300.145-300.147.
300.146 Responsibility of State educational agency.
300.147 Implementation by State educational agency.

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

300.148 Placement of children by parents if FAPE is at issue.
300.149 SEA responsibility for general supervision.
300.150 SEA implementation of procedural safeguards.

State Complaint Procedures

300.151 Adoption of State complaint procedures.
300.152 Minimum State complaint procedures.
300.153 Filing a complaint.

Methods of Ensuring Services

300.154 Methods of ensuring services.

Additional Eligibility Requirements

300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.160 Participation in assessments.
300.161 [Reserved]
300.162 Supplementation of State, local, and other Federal funds.
300.163 Maintenance of State financial support.
300.164 Waiver of requirement regarding supplementing and not 
supplanting with Part B funds.
300.165 Public participation.
300.166 Rule of construction.

State Advisory Panel

300.167 State advisory panel.
300.168 Membership.
300.169 Duties.

Other Provisions Required for State Eligibility

300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B funds.
300.172 Access to instructional materials.
300.173 Overidentification and disproportionality.
300.174 Prohibition on mandatory medication.
300.175 SEA as provider of FAPE or direct services.
300.176 Exception for prior State plans.
300.177 [Reserved]

Department Procedures

300.178 Determination by the Secretary that a State is eligible to 
receive a grant.
300.179 Notice and hearing before determining that a State is not 
eligible to receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal programs.

By-Pass for Children in Private Schools

300.190 By-pass--general.
300.191 Provisions for services under a by-pass.
300.192 Notice of intent to implement a by-pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
300.199 State administration.
Subpart C--Local Educational Agency Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in certain fiscal years.
300.206 Schoolwide programs under title I of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory children with disabilities.
300.214-300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency in case of 
ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D--Evaluations, Eligibility Determinations, Individualized 
Education Programs, and Educational Placements

Parental Consent

300.300 Parental consent.

Evaluations and Reevaluations

300.301 Initial evaluations.
300.302 Screening for instructional purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for evaluations and reevaluations.
300.306 Determination of eligibility.

Additional Procedures for Evaluating Children With Specific Learning 
Disabilities.

300.307 Specific learning disabilities.
300.308 Group members.
300.309 Determining the existence of a specific learning disability.
300.310 Observation.
300.311 Written report.

Individualized Education Programs

300.320 Definition of individualized education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.

Development of IEP

300.324 Development, review, and revision of IEP.
300.325 Private school placements by public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting participation.
Subpart E--Procedural Safeguards

Due Process Procedures for Parents and Children

300.500 Responsibility of SEA and other public agencies.
300.501 Opportunity to examine records; parent participation in 
meetings.
300.502 Independent educational evaluation.
300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal; impartial review.
300.515 Timelines and convenience of hearings and reviews.
300.516 Civil action.
300.517 Attorneys' fees.
300.518 Child's status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of majority.
300.521-300.529 [Reserved]

Discipline Procedures

300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not yet eligible for special 
education and related services.
300.535 Referral to and action by law enforcement and judicial 
authorities.
300.536 Change of placement because of disciplinary removals.
300.537-300.599 [Reserved]
Subpart F--Monitoring-Enforcement, Confidentiality, and Program 
Information

Monitoring, Technical Assistance, and Enforcement

300.600 State Monitoring and enforcement.
300.601 State performance plans and data collection.

[[Page 35835]]

300.602 State use of targets and reporting.
300.603 Secretary's review and determination regarding State 
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency responsibility.
300.608 State enforcement.
300.609 Rule of construction.

Confidentiality of Information

300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of information.
300.617 Fees.
300.618 Amendment of records at parent's request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children's rights.
300.626 Enforcement.
300.627 Department use of personally identifiable information.

Reports--Program Information

300.640 Annual report of children served--report requirement.
300.641 Annual report of children served--information required in 
the report.
300.642 Data reporting.
300.643 Annual report of children served--certification.
300.644 Annual report of children served--criteria for counting 
children.
300.645 Annual report of children served--other responsibilities of 
the SEA.
300.646 Disproportionality.
Subpart G--Authorization; Allotment; Use of Funds; Authorization of 
Appropriations
300.700 Grants to States.
300.701 Outlying areas and freely associated States and Secretary of 
the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to local educational agencies.
300.706 Allocation for State in which by-pass is implemented for 
private school children with disabilities.
300.707 Use of amounts by Secretary of the Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of Part B funds of the Act.
300.711 Early intervening services.
300.712 Payments for education and services for Indian children with 
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
300.717 Definitions.
300.718 Acquisition of equipment and construction or alteration of 
facilities.
Subpart H--Preschool Grants for Children With Disabilities
300.800 In general.
300.801-300.802 Reserved
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 Allocation for State in which by-pass is implemented for 
parentally-placed private school children with disabilities.
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to local educational agencies.
300.816 Allocations to local educational agencies.
300.817 Reallocation of local educational agency funds.
300.818 Part C of the Act inapplicable.

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise 
noted.

Subpart A--General

Purposes and Applicability


Sec.  300.1  Purposes.

    The purposes of this part are--
    (a) To ensure that all children with disabilities have available to 
them a free appropriate public education that emphasizes special 
education and related services designed to meet their unique needs and 
prepare them for further education, employment, and independent living;
    (b) To ensure that the rights of children with disabilities and 
their parents are protected;
    (c) To assist States, localities, educational service agencies, and 
Federal agencies to provide for the education of all children with 
disabilities; and
    (d) To assess and ensure the effectiveness of efforts to educate 
children with disabilities.

(Authority: 20 U.S.C. 1400(d))

Sec.  300.2  Applicability of this part to State and local agencies.

    (a) States. This part applies to each State that receives payments 
under Part B of the Act, as defined in Sec.  300.4.
    (b) Public agencies within the State. The provisions of this part--
    (1) Apply to all political subdivisions of the State that are 
involved in the education of children with disabilities, including:
    (i) The State educational agency (SEA).
    (ii) Local educational agencies (LEAs), educational service 
agencies (ESAs), and public charter schools that are not otherwise 
included as LEAs or ESAs and are not a school of an LEA or ESA.
    (iii) Other State agencies and schools (such as Departments of 
Mental Health and Welfare and State schools for children with deafness 
or children with blindness).
    (iv) State and local juvenile and adult correctional facilities; 
and
    (2) Are binding on each public agency in the State that provides 
special education and related services to children with disabilities, 
regardless of whether that agency is receiving funds under Part B of 
the Act.
    (c) Private schools and facilities. Each public agency in the State 
is responsible for ensuring that the rights and protections under Part 
B of the Act are given to children with disabilities--
    (1) Referred to or placed in private schools and facilities by that 
public agency; or
    (2) Placed in private schools by their parents under the provisions 
of Sec.  300.148(b)

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

Definitions Used in This Part


Sec.  300.4  Act.

    Act means the Individuals with Disabilities Education Act, as 
amended.

(Authority: 20 U.S.C. 1400(a))

Sec.  300.5  Assistive technology device.

    Assistive technology device means any item, piece of equipment, or 
product system, whether acquired commercially off the shelf, modified, 
or customized, that is used to increase, maintain, or improve the 
functional capabilities of a child with a disability. The term does not 
include a medical device that is surgically implanted, or the 
replacement of that device.

(Authority: 20 U.S.C. 1401(1))

Sec.  300.6  Assistive technology service.

    Assistive technology service means any service that directly 
assists a child with a disability in the selection, acquisition, or use 
of an assistive technology device. The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a functional evaluation of the child in the child's customary 
environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;

[[Page 35836]]

    (d) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (e) Training or technical assistance for a child with a disability 
or, if appropriate, that child's family; and
    (f) Training or technical assistance for professionals (including 
individuals providing education or rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))

Sec.  300.7  Charter school.

    Charter school has the meaning given the term in section 5210(1) of 
the Elementary and Secondary Education Act of 1965, as amended, 20 
U.S.C. 6301 et seq. (ESEA).
    (Authority: 20 U.S.C. 7221i(1))


Sec.  300.8  Child with a disability.

    (a) General. (1) Child with a disability means a child evaluated in 
accordance with Sec. Sec.  300.304 through 300.311 as having mental 
retardation, a hearing impairment (including deafness), a speech or 
language impairment, a visual impairment (including blindness), a 
serious emotional disturbance (referred to in this part as emotional 
disturbance), an orthopedic impairment, autism, traumatic brain injury, 
an other health impairment, a specific learning disability, deaf-
blindness, or multiple disabilities, and who, by reason thereof, needs 
special education and related services.
    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is 
determined, through an appropriate evaluation under Sec. Sec.  300.304 
through 300.311, that a child has one of the disabilities identified in 
paragraph (a)(1) of this section, but only needs a related service and 
not special education, the child is not a child with a disability under 
this part.
    (ii) If, consistent with Sec.  300.38(a)(2), the related service 
required by the child is considered special education rather than a 
related service under State standards, the child would be determined to 
be a child with a disability under paragraph (a)(1) of this section.
    (b) Children aged three through nine experiencing developmental 
delays. Child with a disability for children aged three through nine 
(or any subset of that age range, including ages three through five), 
may, at the discretion of the State and the LEA and in accordance with 
Sec.  300.111(b), include a child--
    (1) Who is experiencing developmental delays, as defined by the 
State and as measured by appropriate diagnostic instruments and 
procedures, in one or more of the following areas: Physical 
development, cognitive development, communication development, social 
or emotional development, or adaptive development; and
    (2) Who, by reason thereof, needs special education and related 
services.
    (c) Definitions of disability terms. The terms used in this 
definition of a child with a disability are defined as follows:
    (1) Autism means a developmental disability significantly affecting 
verbal and nonverbal communication and social interaction, generally 
evident before age three, that adversely affects a child's educational 
performance. Other characteristics often associated with autism are 
engagement in repetitive activities and stereotyped movements, 
resistance to environmental change or change in daily routines, and 
unusual responses to sensory experiences.
    (i) Autism does not apply if a child's educational performance is 
adversely affected primarily because the child has an emotional 
disturbance, as defined in paragraph (c)(4) of this section.
    (ii) A child who manifests the characteristics of autism after age 
three could be identified as having autism if the criteria in paragraph 
(c)(1)(i) of this section are satisfied.
    (2) Deaf-blindness means concomitant hearing and visual 
impairments, the combination of which causes such severe communication 
and other developmental and educational needs that they cannot be 
accommodated in specia