ANALYSIS OF THE PROPOSED IDEA REGULATIONS
STATEMENT OF PURPOSE (Section 601(d)(1)(A); 300.1(a)).
The proposed regulation generally restates the statutory provision regarding the statement of purpose, including the new purpose to prepare them [children with disabilities] for employment and independent living. The Preamble (page 55029) explains that this statutory change represents a significant shift in the emphasis of the Assistance to States programto an outcome oriented approach that focuses on better results for children with disabilities rather than on simply ensuring their access to education. The Note accompanying the regulation emphasizes the importance of independent living and describes the philosophy of independent living.
A. SERIOUSLY EMOTIONALLY DISTURBED (Section 602(3)(A); 300.7(a)(1)). The proposed regulation restates the new statutory requirement that after the first time the term seriously emotionally disturbed appears, hereinafter the reference should be to emotionally disturbed. Note 4 cites to the House Report, which explains that the change is intended to have no substantive or legal significance; rather, is intended strictly to eliminate any pejorative connotation. The House Report also explains that there is no intent to change the definition included in the current regulation. Consistent with this directive, the proposed regulation does not change the definition.
B. DEVELOPMENTALLY DELAYED. (Section 602(3)(B); 300.7(a)(2))
The proposed regulation generally restates the statutory provision authorizing the use of the term developmentally delayed for children aged 3-9, at the discretion of both the SEA and the LEA.
Note 2 explains how the new provision will operate e.g., if the states adopt a definition, LEAs must use the states definition.
Note 3 explains the rationale for the change e.g., not locking young children into a particular category.
C. ATTENTION DEFICIT DISORDER, ATTENTION DEFICIT HYPERACTIVITY DISORDER ( 300.7(a) , Note 5)
The proposed regulation does not add ADD or ADHD to the list of disabilities. However, Note 5 restates the departments long-standing position on inclusion of children with ADD and ADHD under IDEA.
A. DAY (300.8)
The proposed regulation includes the long-standing department interpretation of the term day as meaning calendar day. The definition is included in the proposed regulation because under the new statutory provisions, the term is applied differently under certain provisions, including the use of school days; business days and business days (including any holidays that fall on business days). (Page 55031)
E. GENERAL CURRICULUM (300.12)
The proposed regulation clarifies that the term general curriculum used throughout the statute and proposed regulation means there is a single curriculum that applies to all children within the jurisdiction of the public agency, including nondisabled children and children with disabilities.
Notes accompanying the proposed regulation explain that general curriculum refers to the content of the curriculum, not the settingthe general curriculum could be used in any setting.
F. CHARTER SCHOOLS (300. 17)
A Note is added following the definition of local educational agency to clarify that a public charter school is eligible for part B funds if it meets the definition of the term LEA. The Note also clarifies that if the charter school accepts part B funds, it must comply with all the requirements of part B.
G. RELATED SERVICES (Section 602(22); 300.22(b))
H. PSYCHOLOGICAL SERVICES (300.22(b)(9) AND SOCIAL WORK SERVICES (300.22)(b)(13).
The proposed regulation adds a reference to developing positive intervention strategies to the list of functions performed under psychological services and social work services.
I. SPECIALLY DESIGNED INSTRUCTION (300.24(b)(3))
The term specially designed instruction is defined to mean adapting content, methodology or delivery of instruction to address the unique needs of an eligible child under part B that result from the childs disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children
J. SUPPLEMENTARY AIDS AND SERVICES (Section 602(29); 300.26).
The proposed regulation restates the statutory definitionaids and services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with [provisions concerning least restrictive environment].
A. STATE ELIGIBILITY (Section 612(a),(b), and (c ); 300.110-.113)
Under the old statute, a state was required to meet certain eligibility requirements and submit a state plan as well as comply with periodic resubmission requirements. The proposed regulation restates the revised statutory scheme which is based on a demonstration satisfactory to the Secretary that the State has in effect policies and procedures to ensure that it meets each of the list of conditions. The proposed regulations also provides for the submission of modifications under specified circumstances.
B. FREE APPROPRIATE PUBLIC EDUCATION (FAPE) (Section 612(a)(1)(A); 300.121) AND EXCEPTIONS TO FAPE (Section 612(a)(1)(B); 300.122)
1. Suspension and Expulsion. The proposed regulation restates the new statutory provision and long-standing Department policy that the right to FAPE includes children with disabilities who have been suspended or expelled from school.
2. Turning Three. Note 1 states Department policy regarding obligation to make FAPE available begins no later than the childs third birthday.
3. Advancing from Grade to Grade. Note 2 restates the Departments long- standing policy regarding advancing from grade to grade.
4. Children in Adult Correctional Facilities. The proposed regulation generally restates the statutory exemption from FAPE applicable to students aged 18-21 to the extent that State law does not require that special education and related services under part B be provided to children with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility were not actually identified as being a child with a disability or did not have an IEP under part B. See also Note 2 which cites to the House Report for clarification of congressional intent.
5. Graduation (300.122, Note). The proposed regulation and the accompanying note generally restate the Departments long-standing policy regarding graduation and the right to FAPE.
C. CHILD FIND (Section 612(a)(3); 300.125)
D. LEAST RESTRICTIVE ENVIRONMENT. (Section 612(a)(5); 300.130 (b))
The proposed regulation generally restates the new statutory provision specifying that state funding mechanisms may not result in placements that violate LRE.
The Note cites to a statement in the House Report making it clear that this new requirement does not eliminate the need for the continuum.
E. COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT; PERSONNEL STANDARDS (Section 612 (a)(15); 300.135, 300.136).
F. PERFORMANCE GOALS AND INDICATORS (Section 612(a)(16); 300.137)
The proposed regulation generally restates the new statutory provision requiring states to develop performance goals and indicators for children with disabilities.
G. GENERAL STATE AND DISTRICTWIDE ASSESSMENTS (Section 612(a)(17); 300.138, .139)
H. INTERAGENCY AGREEMENTS (Section 612(a)(12); 300.142)
I. SUSPENSION AND EXPULSION RATES (Section 612(a)(22); 300.146)
The proposed regulation generally restates the new statutory responsibility to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities and, review and if appropriate, revise policies to address problems.
J. STATE LEVEL MAINTENANCE OF EFFORT (Section 612(a)(19); 300.154)
The proposed regulation generally restates the new statutory provision regarding state-level maintenance of effort, under which a state is prohibited from reducing the amount of state financial support for special education and related services below the level of that support for the preceding fiscal year. With respect to the new waiver authority, the proposed regulation also incorporates by reference the new regulatory scheme for securing a waiver under the supplanting provision, described later in the guide.
LOCAL EDUCATIONAL AGENCY ELIGIBILITY
A. ELIGIBILITY, IN GENERAL (Section 613(a); 300.180-.182)
The proposed regulation generally restates the new statutory scheme for demonstrating eligibility for assistance to the satisfaction of the SEA and procedures for submitting modifications.
B. LOCAL MAINTENANCE OF EFFORT (Section 613(a)(2)(A) and (B); 300.231, .232)
The proposed regulation generally restates the new statutory provisions regarding local maintenance of effort and new exceptions i.e., voluntary departure, by retirement or otherwise, or departure for just cause of special education or related services personnel who are replaced by qualified, lower-salaried staff; a decrease in the enrollment of children with disabilities; the termination of the obligation of the agency to provide a program of special education to a child with a disability that is an exceptionally costly program because the child has left the jurisdiction of the agency, has reached the age at which the obligation of the agency to provide FAPE has terminated, or no longer needs the program of special education; or the termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities.. The Notes provide further clarification by making reference to the House Report.
C. TREATMENT OF FEDERAL FUNDS IN CERTAIN FISCAL YEARS (Section 613(a)(2) (c ); 300.233.)
The proposed regulation generally restates the new statutory provision allowing an LEA to treat as local funds up to 20 percent of funds it received under part B for the previous fiscal year when total Federal appropriations for part B exceed $4.1 billion.
The proposed regulation also generally restates the new statutory provision specifying that if an SEA determines that an LEA is not meeting the requirements of part B, the SEA may prohibit the LEA from taking advantage of this provision but only if it is authorized to do so by the State constitution or State statute.
D. SCHOOLWIDE PROJECTS (Section 613(a)(2)(D); 300.234)
The proposed regulation generally restates the new statutory provision authorizing the use of part B funds to support a title I schoolwide project under specified circumstances and specifies the amount of part B funds that may be so used.
E. PERMISSIVE USE OF PART B FUNDS (Section 613(a)(4); 300.235)
F. CHARTER SCHOOLS (Section 613(a)(5), (a)(6), (a)(7), and (f), and (g); 300.241)
The proposed regulation generally restates the new statutory provisions regarding equitable treatment of charter schools by LEAs with respect to serving children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools and provides part B funds to those schools in the same manner as it provides those funds to its other schools.
The Note accompanying the regulation quotes the House Report statement that charter schools must be in full compliance with part B.
G. COORDINATED SERVICE SYSTEM (Section 613(f); 300.244).
The proposed regulation generally restates the new statutory provision authorizing LEAs to use 5% of part B funds for coordinated services.
H. SCHOOL-BASED IMPROVEMENT PLAN (Section 613(g)(1) and (2); 300.245).
The proposed regulation generally restates the new statutory authority authorizing the use of part B funds to be used to develop, implement, and evaluate a school-based improvement plan.
SERVICES (FREE APPROPRIATE PUBLC EDUCATION, FAPE)
A. FAPE, INCLUDING CHILDREN SUSPENDED AND EXPELLED (Section 612(a)(1); 300.300(a))
The proposed regulation restates policy that FAPE includes children who have been suspended or expelled from school (see previous discussion under state eligibility).
B. EXTENDED SCHOOL YEAR SERVICES (300.309).
The proposed regulation generally restates their Departments long-standing policy regarding extended school year services.
C. ADULT CORRECTIONAL FACILITIES (Section 612(a)(1) and 614(d)(6); 300.311)
A. WHEN IEP MUST BE IN EFFECT (Section 614(d)(2)(A) and (B); 300.342)
B. IEP MEETINGS (Section 614(d)(3); 300.343)
The proposed regulation adds a new provision on timelines for IEPs that reflects long-standing Department interpretation. The new provision requires that an offer of services based on an IEP must be made within a reasonable period of time from a public agencys receipt of parent consent to an initial evaluation. See also the Note accompanying the regulation which states that in most cases the timeline should be 60 days.
C. IEP TEAM (Section 614(d); 300.344)
1. 4. Discretion of Parents and Public Agency to Bring Other Individuals. Interpretations of the phrase at the discretion of the parents or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate are set out in Appendix C to the proposed regulations, including interpretations of when it would be appropriate to include related services personnel and limitations on parent and public agency discretion to bring additional individuals.
5. Student Participation In Transition Planning. The current regulation specifies that the student of any age must be invited if a purpose of the meeting will be the consideration of the statement of transition services. The proposed regulation expands the student involvement to include a meeting to discuss transition service needs.
(See also 300.347(b)(1) and note 5.
D. PARENT PARTICIPATION (Section 614(d)(1)(B)(I); 300.345)
The proposed regulation generally retains current policy regarding parent participation and is revised only to reflect notice to students of any age if the purpose of the meeting is to discuss transition needs.
E. DEVELOPMENT, REVIEW, AND REVISION OF THE IEP (Section 614(d)(3), (4)(B), and (e); 300.346)
(a) Consideration by IEP Team. The proposed regulation generally restates the special factors that the IEP team must consider in five specified cases (i.e., a child whose behavior impedes his or her learning or that of others, a child with limited English proficiency, a child who is blind or visually impaired, a child who is deaf or hearing impaired, and whether a child requires assistive technology devices and services.
See also Notes 1, 2, and 3)
(b) Review and Revision of IEP. The proposed regulation specifies that these factors must also be considered in conducting a meeting to review and , if appropriate, revise a childs IEP.
3. Statement in the IEP. The proposed regulation specifies that if the IEP team determines that a child described above needs a particular device or service in order to receive FAPE, the IEP must include a statement to that effect in the childs IEP.
4. Requirements with Respect to Regular Education Teachers. The proposed regulation generally restates the statutory provision that the regular education teacher of a child with a disability must, to the extent appropriate, participate in the development, review, and revision of the childs IEP.
5. Construction Regarding Placement of Information in an IEP. The proposed regulation restates the statutory construction clause specifying that nothing in this section shall be construed to require the IEP team to include information under one component of a childs IEP that is already contained under another component of the childs IEP.
F. CONTENTS OF THE IEP (Section 614(d)(1)(A) and section 614(d)(6)(A)(ii); 300.347).
STATE ADMINISTRATION (Section 611(f)(3); 300.370)
A. AUTHORIZED USES.
The proposed regulation generally restates the statutory provision requiring authorized uses by the SEA of part B funds for state administration, including the addition of uses such as mediation, assisting LEAs in meeting personnel shortages, carrying out activities related to performance goals, and support implementation of the School Improvement Plan, and coordinated services (1 percent), and capacity-building and systemic improvement subgrants to LEAs.
The proposed regulation deletes the matching requirement consistent with the new statutory framework.
COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT (Section 612(a)(14); Section 653 ( c ) (3) (D); 300.380-.382)
A. INCLUSION OF GENERAL EDUCATION PERSONNEL.
The proposed regulation generally restates the new statutory provision including the provision specifying that general education personnel must be included in CSPD.
B. PROMISING PRACTICES.
The proposed regulation restates policy in current law and new statutory framework regarding promising practices, materials, and technologies.
C. JOINT TRAINING OF PARENTS AND PERSONNEL. The proposed regulation restates the new statutory provision specifying that the state will provide for the joint training of parents and special education, related services, and general education personnel.
PLACEMENT BY PARENTS IF FAPE AT ISSUE (Section 612(a)(10) ( C); 300.403)
A. AUTHORITY OF PARENTS TO SEEK REIMBURSEMENT. The proposed regulation generally restates new statutory authority (reflecting long-standing policy) that a court or hearing officer can order reimbursement for the cost of enrollment at private schools without the consent of or referral by the public agency.
B. LIMITATIONS ON REIMBURSEMENT. The proposed regulation generally restates the new statutory authority to reduce or deny reimbursement under specified circumstances (i.e., if at the most recent IEP meeting prior to removal, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency, including stating their concerns and their intent to enroll their child in a private school at public expense; at least 10 business days prior to the removal, the parents did not give written notice to the public agency; or if prior to removal the public agency duly notified the parents of their intention to evaluate the child but the parents did not make the child available for the evaluation; or upon a judicial finding of unreasonableness with respect to actions by the parents).
C. EXCEPTIONS. The proposed regulation generally restates the new statutory provisions specifying exceptions to the notice requirement and authority to limit reimbursement if specified factors are present i.e., the parent is illiterate and cannot write in English, compliance would likely result in physical or serious emotional harm to the child, the school prevented the parent from providing the notice or the parents had not received notice of the requirement that they must provide notice prior to placement in a private school.
DISABLED CHILDREN ENROLLED BY PARENTS IN PRIVATE SCHOOLS
A. CHILD FIND. (Section 612(a)(10)(A)(ii); 300.451)
The proposed regulation generally restates new statutory provision specifying that child find includes children in private schools, including religiously affiliated school children.
B. PROPORTIONALITY (Section 612(a)(10)(A); 300.453).
The proposed regulation generally restates the new statutory authority (restating long-standing Department regulations and interpretations) that private school children are entitled to a proportionate amount of part B funds.
C. NO INDIVIDUAL RIGHT TO SPECIAL EDUCATION AND RELATED SERVICES (Section 612(a)(10)(A); 300.454).
The proposed regulation generally reflects long-standing Department policy that no private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school. The proposed regulation also requires consultation and genuine opportunity for representatives of private school children to be consulted.
D. COMPARABLE SERVICES. (Section 612(a)(10)(A); 300.455)
The proposed regulation restates long-standing Department policy regarding the obligation to ensure that services provided to private school children are comparable in quality to services provided to children with disabilities enrolled in public schools.
E. LOCATION OF SERVICES (Section 612(a)(10)(A); 300.456)
The proposed regulations and the accompanying Note generally restate the new statutory provision and legislative history regarding location of services on the site of the private school.
F. COMPLAINTS, INAPPLICABILITY OF DUE PROCESS HEARINGS (Section 612(a)(10)(A); 300.457)
The proposed regulations specify that the due process procedures do not apply to complaints that an LEA has failed to meet the requirements described above; rather, the state complaint resolution procedures apply to these types of complaints.
DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN
A. GENERAL RESPONSIBILITY OF SEAs (Section 615(a); 300.500)
A note is added to current regulatory framework specifying that a parents revocation of consent is not retroactive in effect.
B. INSPECT AND REVIEW EDUCATIONAL RECORDS, PARENT PARTICIPATION IN MEETINGS (Section 615(b)(1); 300.501(a)).
The proposed regulation generally restates the new statutory provision specifying that parents are members of any group that makes decisions on the educational placement of their child.
C. INDEPENDENT EVALUATIONS (Section 615(b)(1); 300.502)
1. Public Agency Response to Parental Request. The proposed regulation specifies that if a parent requests an independent evaluation, the agency must either insure that it is provided at government expense or initiate a due process hearing.
2. Agency Conditions or Timelines. The proposed regulation specifies that other than a public agencys criteria for an agency-initiated evaluation that apply to independent evaluations, the public agency may not impose conditions or timelines on a parents right to obtain an independent evaluation (see also the Note).
D. PRIOR NOTICE BY THE PUBLIC AGENCY, CONTENT OF NOTICE (Section 615( c ); 300.503)
The proposed regulation specifies, among other things, that the prior written notice must inform parents about state complaint resolutions procedures as an alternative to due process.
E. PROCEDURAL SAFEGUARDS NOTICE (Section 615(d); 300.504)
The proposed regulation generally restates the new statutory provision regarding the procedural safeguards notice.
F. PARENTAL CONSENT (Section 614(a)(1)( C ) and ( c )(3); 300.505)
The changes from current regulations necessitated by changes in the new statute concern the obligation to secure parental consent before re-evaluations are conducted. The proposed regulations specifies that consent is only required if public agency conducts new tests. The proposed regulation also specifies that consent need not be obtained if the public agency has taken reasonable measures to secure consent. Reasonable efforts are consistent with efforts to secure involvement of parents in IEP meetings.
Notes 2 and 3 describe agency options when parents refuse to provide consent.
G. MEDIATION (Section 615(e); 300.506)
1. In General. The proposed regulation generally reflects the new statutory provisions regarding mediation, including the voluntary nature of mediation; mediation may not be used to deny or delay a parents right to a due process hearing; mediation must be conducted by an impartial mediator trained in effective mediation techniques; the State must pay the costs of the mediation; mediation sessions must be scheduled in a timely manner and held in convenient locations; the mediation agreement must be in writing; and the mediation process must be confidential (confidentiality pledge) and may not be used as evidence.
2. Impartiality of the Mediator. The proposed regulation clarifies the criteria for determining whether a mediator is impartial.
3. Meeting to Encourage Mediation. The proposed regulation generally reflects the new statutory provision authorizing a public agency to establish procedures to require parents who elect not to use mediation to meet, at a time and location convenient to the parents with a disinterested party e.g., someone from the parent training and information center to explain the benefits of mediation. The proposed regulations also specify that a public agency may not deny or delay a parents right to a due process hearing if the parent fails to participate in the meeting.
4. Selection of Mediator. Note 1, citing to the House Report, states that if mediators are not selected on a random basis, the parent and public agency must agree on the mediator.
5. Privacy and Confidentiality. Note 2, citing to the House Report explains the relationship between this provision and rights under the Family Education Rights and Privacy Act. Note 2, also citing to the House Report describes an example of a confidentiality pledge.
H. INITIATING A DUE PROCESS HEARING BY A PARENT OR PUBLIC AGENCY (Section 615(b)(6); 300.507(a))
1. Notice. Public agency must inform parents of the availability of mediation whenever a request for due process in made.
2. Due Process Hearing Officer Determination of Whether Issue is New. Note 1 clarifies that a public agency may not deny a parents request for due process, even if it believes the issues raised are not newthe determination of whether an issue is new must be made by the hearing officer.
I. PARENT NOTICE IN A REQUEST FOR DUE PROCESS AND MODEL FORM (Section 615(b)(7( and (8); 300.507 ( c ))
1. Obligation In General. The proposed regulation generally restates the new statutory provision regarding the requirement that the parent of the disabled child or the attorney representing the child must provide notice to the public agency in a request for a due process hearing. Consistent with the new statutory provision, the proposed regulation specifies that the notice must include: the name of the child; the address of the residence of the child; the name of the school the child is attending; and a description of the nature of the problem of the child relating to the proposed initiation or change, including facts relating to the problem and a proposed resolution of the problem to the extent known and available to the parents at the time.
2. Model Form. The proposed regulations generally reflect the new statutory requirement that the SEA develop a model form to assist parents in meeting the notice requirement.
3. Right to Due Process Hearing. The proposed regulation specifies that a public agency may not deny or delay a parents right to a due process hearing for failure to provide the notice.
4. Attorneys Fees. Note 2, quotes the House Report, which restates a new statutory provision specifying that attorneys fees to the lawyers representing prevailing parents may be reduced if the attorney representing the parents failed to provide the appropriate information in the notice.
J. HEARING RIGHTS (Section 615(f)(2) and (h); 300.509)
1. Parents Right to Choose Form of Record. The proposed regulation generally restates the new statutory provision providing parents with the right to choose either a written or electronic version of the record of the hearing and findings of fact and the decision.
2. Disclosure of Evaluations Prior to Hearing. The proposed regulations generally restates the new statutory provision specifying that at least five business days prior to a due process hearing all parties must disclose evaluations completed by that date and recommendations based on the evaluations. The proposed regulation also restates the authority of the hearing officer to bar introduction of such materials if a party fails to meet the timelines.
K. CIVIL ACTIONS. (Section 615 i (2), i(3)(A), 615(l); 300.512)
1. Duties of the Court. The proposed regulation generally restates the provisions in the statute regarding the duties of the court in reviewing due process hearings.
2. Relationship to Section 504 and the ADA. The proposed regulations restate the statutory provision regarding the relationship between IDEA and section 504 and the ADA.
L. ATTORNEYS FEES (Section 615( i) (3)(B); 300.513).
1. In General. The proposed regulation retains the provision in current regulations regarding attorneys fees. The Proposed regulations do not include a full description of the entire provision, including the new provision that attorneys fees may not be awarded relating to any meeting of the IEP team unless such meeting is convened as a result of an administrative proceeding or judicial action or, at the discretion of the state, for a mediation that is conducted prior to the filing of a complaint and the new provision that fees may be reduced if the attorney representing the parents did not provide to the school district the appropriate information in the due process complaint.
2. Use of Part B Funds to Pay for Attorneys. The proposed regulations specify that part B funds may not be used to pay attorneys fees.
3. Hearing Officer Authority to Award Fees. The Note accompanying the proposed regulation provides that States may enact laws that permit hearing officers to award attorneys fees to prevailing parents.
M. PENDENCY, STAY PUT (Section 615(j); 300.514)
1. Exceptions To Stay Put. The proposed regulation generally restates the two limited statutory exceptions to stay put provision--authority of school personnel to change placement of a child who brings a weapon or illegal drugs to school or a school function and the authority of a hearing officer to change a childs placement on a finding that maintaining a child in his or her current placement is substantially likely to result in injury to the child or to others.
2. Proceedings. The proposed regulation interprets the term proceedings to include administrative or judicial proceedings. (300.514(a))
3. Agreement Between the State or Local Educational Agency and the Parents. The proposed regulations specify that if the decision of a hearing officer in a due process hearing or a review official in an administrative appeal agrees with the childs parents that a change in placement is appropriate, that placement must be treated as an agreement between the state or local agency and the parents for purposes of the stay put provision.
4. Change of Placements During Complaint Proceedings. The Note accompanying the proposed regulation specifies that the stay put provision does not permit a childs placement to be changed during a complaint proceeding, unless the parents and agency agree otherwise. While the placement may not be changed, this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.
N. TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY (Section 615(m); 300.517).
The proposed regulation generally restates the new statutory provision authorizing states to provide for the transfer of parental rights at the age of majority and the issuance of a special rule for appointing specified individuals when it is determined that the child does not have the ability to provide informed consent.
A. AUTHORITY OF SCHOOL PERSONNEL
1. 10 School Days (Section 615(k)(1); 300.520(a)(1)). The proposed regulation generally restates the new statutory provision regarding the authority of school personnel to remove a child with a disability from the childs current educational placement for not more than 10 school days (to the extent the alternatives would be applied to children without disabilities). The proposed regulation also specifies, consistent with long-standing Department policy, that during this 10 school day period the public agency need not provide educational services under part B (See also Note 1). Note 2 strongly encourages public agencies to review as soon as possible after the incident the circumstances surrounding the behavior and consider whether the child was receiving appropriate services and whether the behavior could be addressed through minor classroom program modification and whether the IEP team should be reconvened.
2. 45 Days (Section 615(k)(1) and (10); 300.520(a)(2)) . The proposed regulation generally restates the new statutory provision regarding the authority of school personnel to remove a child with a disability from the childs current educational placement for the same amount of time it would remove a nondisabled child but not more than 45 days if the child carries a weapon to school or a school function or the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function.
2. 3. Functional Behavioral Assessments and Behavioral Intervention Plans. (Section 615(k)(1); 300.520(b)) .The proposed regulation generally reflects the new statutory provision requiring an IEP meeting to review a childs behavioral intervention plan or to develop a functional behavioral assessment plan to address that behavior, with several interpretations. Specifically, either before or not later than 10 business days after taking a disciplinary action, if the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the children before the behavior that resulted in the suspension, the agency must convene an IEP meeting to develop an assessment plan and appropriate behavioral interventions to address that behavior OR if the child already has a behavioral intervention plan, the IEP team must review the plan and modify it, as necessary, to address the behavior.
3. The first interpretation by the Department concerns the time period for completing the assessment and behavioral intervention plan. The proposed regulations specifies 10 business days instead of the 10 days specified in the statute. According to the Secretary, this interpretation was made to allow school personnel an adequate amount of time to convene the meeting, while ensuring that it will occur within the window of time during which a child may be removed from the regular placement. (Page 55046).
4. The Secretary also proposes to include an interpretation of the new statutory provision that if the child with a disability is removed from the childs current placement for 10 school days or less in a given school year, and no further removal or disciplinary action is contemplated, the functional behavioral assessment and the behavioral intervention plan need not be conducted (300.520( c )).
B. AUTHORITY OF THE HEARING OFFICER (Section 615(k)(2); 300.521).
The proposed regulation generally reflects the new statutory authority of hearing officers to remove disabled children from their current educational placement under specified circumstances.
Specifically, the proposed regulations provide that a hearing officer may order a change in placement of a child with a disability to an appropriate interim alternative educational placement for not more than 45 days if the hearing officer, in an expedited due process hearing:
-determines that the public agency has demonstrated by substantial evidence (beyond a preponderance of evidence) that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;
-considers the appropriateness of the childs current placement;
-considers whether the public agency has made reasonable efforts to minimize the risk of harm in the childs current placement, including the use of supplementary aids and services, and
-Determines that the interim alternative educational setting meets specified requirements (described below).
C. DETERMINATION OF SETTING (Section 615(k)(3); 300.522)
1. In General. The proposed regulation generally reflects the statutory standards regarding the interim alternative educational setting. Specifically, the proposed regulation provides that the interim alternative educational setting must:
-be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the childs current IEP, that will enable the child to meet the goals set out in that IEP, and
-include services and modifications designed to address the inappropriate behavior or any other behavior that results in the child being removed from the childs current educational placement for more than 10 school days in a school year, so that it does not recur (the bold phrase is an interpretation by the Department).
D. MANIFESTATION DETERMINATION (Section 615(k)(4); 300.523)
1. In General. The proposed regulation generally restates the new statutory provision regarding the manifestation determination and includes in notes statements from the House Report.
2. 10 School Days. The proposed regulation specifies that manifestation reviews must be conducted for an action involving the removal of a child from the childs current educational placement for more than 10 school days in a given school year. In other words, if removal is contemplated for 10 school days or less and no further disciplinary action is contemplated, manifestation determinations need not be conducted (300.523(b)). A review of the relationship between the childs disability and the behavior subject to disciplinary action must be conducted immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made.
3. Conduct of the Review. The proposed regulation generally reflects the new statutory provision regarding the conduct of the manifestation determination. Specifically, the proposed regulation generally provides that an IEP may determine that the behavior was not a manifestation of the childs disability only if the IEP team:
-first considers, in terms of the behavior subject to disciplinary action, all relevant information, including evaluation and diagnostic results (including the results or other relevant information supplied by parents of the child), observations of the child, and the childs IEP and placement and
-then determines that in relationship to the behavior subject to disciplinary action, the childs IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the childs IEP and placement AND the childs disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action AND the childs disability did not impair the ability of the child to control the behavior subject to disciplinary action.
4. Relationship Between Childs Behavior and Failure to Implement. Note 1 quotes the House Report which specifies that where there is a relationship between a childs behavior and the failure of the LEA to provide or implement an IEP or placement the IEP team must conclude that the behavior was a manifestation of the childs disability. The Note cites to the House Report which specifies that such a determination is not required based on technical violations unrelated to the educational/behavior needs of the child.
5. Immediate Steps To Remedy Deficiencies. Note 2 specifies that the LEA must take immediate steps to remedy any deficiencies found in the childs IEP or placement, or their implementation.
6. Meeting to Determine Manifestation. The proposed regulation specifies that the LEA can make the manifestation determination in the same meeting that it conducts a functional behavioral assessment and implements a behavioral intervention plan (300.523(f)).
E. DETERMINATION THAT BEHAVIOR NOT A MANIFESTATION (Section 615(k)(5); 300.524)
1. Use of Disciplinary Procedures Applicable to Nondisabled Children. The proposed regulation generally restates the new statutory provision allowing the use of disciplinary procedures applicable to nondisabled students when it is determined that the behavior was not a manifestation of the childs disability. The proposed regulation also refers to section 612(a)(1) which specifies that the obligation to provide FAPE applies to individuals with disabilities who have been suspended or expelled (300. 524(a))
5. 2. Transfer of Records (300.524(b)). The proposed regulation generally restates the new statutory provision that if the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.
6. 3. Stay Put, Pendency (300.524( c )). The proposed regulations specify that the stay put provision is applicable to challenges regarding manifestation determinations. See also Note following the regulation.
7. 4. Reference to Section 504. The Preamble states: Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability, including disciplining children with disabilities for behavior that is a manifestation of their disability. For example, disciplining a child with a seizure disorder for behavior that results from that disability would violate Section 504. The Secretary invites comments on whether further clarification of this point should be provided in these regulations.
F. PARENT APPEAL. (Section 615(k)(6); 300.525). The proposed regulation generally reflects the new statutory provision regarding parental appeals.
G. PLACEMENT PENDING APPEALS (Section 615(k)(7); 300.526). The proposed regulation generally reflects the new statutory provision regarding placement pending appeals, including placements when it is determined that it is still dangerous to place the child in his or her regular placement.
H. PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES (Section 615(k)(8); 300.527).
The proposed regulation generally reflects the new statutory provision regarding the extent to which a child may assert the protections under part B when the child is not yet determined eligible for special education and related services.
I. EXPEDITED DUE PROCESS PROCEEDINGS (Section 615(k)(2),(6) and (7); 300.528)
1. Timing for the Decision. The proposed regulation specifies that the decision in an expedited due process hearing must be handed down within 10 business days of the request, unless the parents and school officials otherwise agree.
2. Standards. The proposed regulation specifies that the due process hearing generally must meet requirements for due process hearings except the State may reduce certain timelines.
3. Hearing Officer. The proposed regulation specifies that the hearing must be conducted by a hearing officer who satisfies standards of impartiality and competence applicable to hearing officers in general.
4. State Authority to Establish Different Procedures. The proposed regulation specifies that the State may establish different procedural rules for expedited hearings than it has established for due process hearings.
5. Appealability. The proposed regulation specifies that decisions of expedited due process hearings are appealable under a States normal due process appeal process.
J. REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES (Section 615(k)(9); 300.529).
The proposed regulation restates the new statutory provisions regarding referral to and action by law enforcement and judicial authorities and transmittal or records.
Specifically, the proposed regulation states that nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
Specifically, the proposed regulation also states that an agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
PROCEDURES FOR EVALUATION AND DETERMINATON OF ELIGIBILITY (Section 614(a)-(c ); 300,530-543).
The proposed regulation generally reflects the new statutory provisions and current regulations regarding evaluations and determinations of eligibility. Included among the new provisions reflecting statutory changes are the following provisions:
-a child may not be determined to be a child with a disability if the determinant factor for that determination is lack of instruction in reading or math or limited English proficiency (300.534(b);
-a public agency must evaluate a child with a disability before determining that the child is no longer a child with a disability (300.534(c ); and
-reevaluations must be conducted if conditions warrant a reevaluation, or if the childs parent or teacher requests a reevaluation, but at least once every 3 years (300.536)
LEAST RESTRICTIVE ENVIRONMENT (Section 612(a)(5); 300.550-.551)
The proposed regulation generally restates current regulations. A Note is added which states that home instruction is usually appropriate for only a limited number of children, such as children who are medically fragile and are not able to participate in a school setting with other children.
PLACEMENTS (Section 612(a)(5); 300.552)
A. PARENT PARTICIPATION IN PLACEMENT DECISIONS.
The proposed regulation generally restates current regulations and reflects the changes made in the new statute, including the provision specifying that the parents must be included in the group making the placement decision (300.552(a)).
B. IEP TEAM AND PLACEMENTS.
The proposed regulation also makes it clear that the IEP team may also serve as the group making the placement decision (Note 1).
C. POSITIVE BEHAVIORAL INTERVENTIONS. Note 3 states that if IEP teams appropriately consider positive behavioral interventions and supplementary aids and services and if necessary include those services in IEPs, many children who otherwise would be disruptive will be able to participate in regular education classrooms.
TRANSMISSION OF DISCIPLINARY INFORMATION (Section 613(j); 300.576)
The proposed regulation generally restates the new statutory provision regarding disciplinary information, including authorizing states to require LEAs to include in the records of the child with a disability a statement of any current or previous disciplinary action taken against the child and transmit the statement to the same extent that the disciplinary information is included in and transmitted with the student records of nondisabled students.
ENFORCEMENT BY THE DEPARTMENT OF EDUCATION
A. IN GENERAL (300.587(a)). Restates policy in current regulations.
B. TYPES OF ACTIONS (300.587(b)).
The proposed regulation generally restates the options available to the Secretary set out in the new statute, including the option to withhold in whole or in part, refer the matter to the Department of Justice, or take any other enforcement action authorized by law. The Note describes the other enforcement actions authorized by law as including issuance of a complaint to compel compliance through a cease and desist order under 20 U.S.C. 1234e and entering into a compliance agreement to bring a recipient into compliance under 20 U.S.C. 1234f.
C. WITHOHOLDING (Section 300.587( c )).
The proposed regulation generally restates the provisions in current regulations and the statute.
D. REFERRAL TO JUSTICE; OPPORTUNITY TO MEET (Section 300.587(d))
The proposed regulation permits a public agency to meet with the Assistant Secretary for the Office of Special Education and Rehabilitative Services before the Department makes a referral to Justice in order to demonstrate why the Department should not make the referral.
E. DIVIDED STATE AGENCY RESPONSIBILITY (300.587(e))
If responsibility for ensuring compliance with part B for students with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency, other than the SEA, and, if the Secretary finds that the other agency is in noncompliance, the Secretary takes one of the enforcement actions described above except that if the Secretary chooses the withholding option, any reduction or withholding must be proportionate i.e., if 1% of the disabled children are incarcerated in adult prisons and authority has been assigned to the Department of Corrections, only 1% of the part B funds may be withheld.
WAIVER OF SUPPLANTING AND MAINTENANCE OF EFFORT (section 612(a)(18)( C ); Section 612(a)(19)(A); 300.589)
Pursuant to a directive in the new statute, the proposed regulations establish procedures and objective criteria for determining whether and under what circumstances an SEA is eligible for a waiver from the supplanting and maintenance of effort provisions, including consideration of compliance reviews conducted by the Department of Education, consultation with interested organizations in the State, and public hearings.
STATE ADMINISTRATION (Section 611(f)(2), 611(f)(4); 300.602; 300.620-624)
A. CAPS ON FUNDS RETAINED FOR ADMINISTRATION AND OTHER STATE-LEVEL ACTIVITIES (300.602)
The proposed regulation generally reflects new statutory caps on the amount of funds states may retain.
B. USE OF FUNDS FOR STATE ADMINISTRATION (300.620) AND ALLOWABLE COSTS (300.621)
The proposed regulation generally restates current regulations.
C. SUBGRANTS TO LEAS FOR CAPACITY-BUILDING AND IMPROVEMENT (300.622)
The proposed regulation generally reflects the new statutory authority by describing authorized uses for these subgrants.
D. AMOUNTS REQUIRED FOR SUBGRANTS (300.623)
The proposed regulation generally reflects the new statutory authority regarding determining the amount of subgrants for capacity-building. The Note following the regulation explains that these new subgrants to LEAs may vary from year to year and in the year following a year in which subgrants are made, these funds become part of the required flow-through subgrants to all LEAs.
E. STATE DISCRETION IN AWARDING SUBGRANTS (300.624).
The proposed regulation specifies that the SEA may establish priorities in awarding subgrants.
STATE ADVISORY PANEL (Section 612(a)(21); 300.650-.653)
A. SCOPE OF ADVICE (300.650)
A new Note is included to clarify that advice provided by the Council includes situations where the State has divided responsibility for eligible children with disabilities who have been convicted as adults and are incarcerated in adult prisons.
B. MEMBERSHIP (Section 300.651)
The proposed regulation generally reflects the new statutory provision regarding membership, including the new requirement that a majority of Council members be persons with disabilities or parents of children with disabilities.
STATE COMPLAINT PROCEDURES (20 U.S.C. 2831(a); 300.660-.662)
A. DISSIMINATION ABOUT COMPLAINT PROCEDURES (300.660(b)
The proposed regulation revises current regulations to require that States widely disseminate to parents and others information about the States complaint procedures.
B. AUTHORITY TO AWARD COMPENSATORY EDUCATION, IF APPROPRIATE
The Note following 300.660 specifies that in resolving a complaint involving the denial of FAPE, an SEA may award compensatory education, if appropriate.
C. SECRETARIAL REVIEW (300.661)
The proposed regulation deletes the procedure for Secretarial review.
D. RELATIONSHIIP BETWEEN COMPLAINT PROCEDURES AND DUE PROCESS.
Note 1 following 300.661 specifies that if a complaint is received by the SEA that also involves issues subject to a pending due process hearing, the SEA must set-aside issues pending in the due process hearing. Note 2 explains that a hearing decision on a particular issue is binding on the SEA and would satisfy its obligation to resolve the complaint. The SEA must inform the complainant to this determination.
E. TIMING FOR THE FILING OF A COMPLAINT (300.662( c ))
The proposed regulation specifies that a complaint must be received within one year of the alleged violation unless a longer period is reasonable because the violation is continuing or compensatory services are requested for a violation that occurred not more than 3 years prior to the date the complaint received by the SEA.
REPORTS (Section 611 (d) (2), 618( c); 300.750-.756).
The proposed regulations generally reflects the new statutory provision regarding reporting, including the provision requiring the collection and examination of data to determine if significant disproportionality based on race is occurring and requiring review and revision of policies, where necessary.