home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
AOL File Library: 3,701 to 3,800
/
aol-file-protocol-4400-3701-to-3800.zip
/
AOLDLs
/
Health and Fitness
/
ADHD_ Attention Deficit Info
/
ADHDOM.exe
/
94-142.TXT
next >
Wrap
Text File
|
1990-11-06
|
296KB
|
5,694 lines
Public Law 94-142
EDUCATION
34
Code of Federal Regulation
Part 300
Revised as of July 1, 1987
Containing A Codification of Documents
of General Applicability
and Future Effect
Chapter III -- Office of Special Education and Rehabilitation Services
PART 300 -- ASSISTANCE TO STATES FOR EDUCATION OF HANDICAPPED CHILDREN
Subpart A -- General
PURPOSE, APPLICABILITY, AND GENERAL PROVISIONS REGULATIONS
Sec.
300.1 Purpose.
300.2 Applicability to State, local, and private agencies.
300.3 Regulations that apply to assistance to States for education of
handicapped children.
300.4 Free appropriate public education.
300.5 Handicapped children.
300.6 Include.
300.7 Intermediate educational unit.
300.8 Local educational agency.
300.9 Native language.
300.10 Parent.
300.11 Public Agency.
300.12 Qualified.
300.13 Related services.
300.14 Special education.
Subpart B -- State Annual Program Plans and Local Applications
ANNUAL PROGRAM PLANS -- GENERAL
300.110 Condition of assistance.
300.111 Contents of plan.
ANNUAL PROGRAM PLANS -- CONTENTS
300.121 Right to free appropriate public education.
300.122 Timeliness and ages for free appropriate public education.
300.123 Full educational opportunity goal.
300.124 Full educational opportunity goal -- data requirement.
300.125 Full educational opportunity goal -- timetable.
300.126 Full educational opportunity goal -- facilities, personnel, and
services.
300.127 Priorities.
300.128 Identification, location, and evaluation of handicapped children.
300.129 Confidentiality of personally identifiable information.
300.130 Individualized education programs.
300.131 Procedural safeguards.
300.132 Least restrictive environment.
300.133 Protection in evaluation procedures.
300.134 Responsibility of State educational agency for all educational
programs.
300.135 [Reserved]
300.136 Implementation procedures -- State educational agency.
300.137 Procedures for consultation.
300.138 Other Federal programs.
300.139 Comprehensive system of personnel development.
300.140 Private schools.
300.141 Recovery of funds for misclassified children.
300.142 -300.143 [Reserved]
300.144 Hearing on application.
300.145 Prohibition of commingling.
300.146 Annual Evaluation.
300.147 State advisory panel.
300.148 Policies and procedures for use of Part B funds.
300.149 Description of use of Part B funds.
300.150 [Reserved]
300.151 Additional information if the State educational agency provides direct
services.
LOCAL EDUCATIONAL AGENCY APPLICATIONS -- GENERAL
300.180 Submission of application.
300.181 [Reserved]
300.182 The excess cost requirement.
300.183 Meeting the excess cost requirement.
300.184 Excess costs -- computation of minimum amount.
300.185 Computation of excess costs -- consolidated application.
300.186 Excess costs -- limitation on use of Part B funds.
300.190 Consolidated applications.
300.191 [Reserved]
300.192 State regulation of consolidated applications.
300.193 State educational agency approval; disapproval.
300.194 Withholding.
LOCAL EDUCATIONAL AGENCY APPLICATIONS -- CONTENTS
300.220 Child identification.
300.221 Confidentiality of personally identifiable information.
300.222 Full educational opportunity goal; timetable.
300.223 Facilities, personnel, and services.
300.224 Personnel development.
300.225 Priorities.
300.226 Parent involvement.
300.227 Participation in regular education programs.
300.228 [Reserved]
300.229 Excess cost.
300.230 Nonsupplanting.
300.231 Comparable services.
300.232 -- 300.234 [Reserved]
300.235 Individualized education program.
300.236 [Reserved]
300.237 Procedural safeguards.
300.238 Use of Part B funds.
300.239 [Reserved]
300.240 Other requirements.
APPLICATION FROM SECRETARY OF INTERIOR
300.260 Submission of annual application; approval.
300.261 Public participation.
300.263 Applicable regulations.
PUBLIC PARTICIPATION
300.280 PUBLIC hearings before adopting an annual program plan.
300.281 Notice.
300.282 Opportunity to participate; comment period.
300.283 Review of public comments before adopting plan.
300.284 Publication and availability of application plan.
Subpart C -- Services
FREE APPROPRIATE PUBLIC EDUCATION
300.300 Timeliness for free appropriate public education.
300.301 Free appropriate public education -- methods and payments.
300.302 Residential placement.
300.303 Proper functioning of hearing aids.
300.304 Full educational opportunity goal.
300.305 Program options.
300.306 Nonacademic services.
300.307 Physical education.
PRIORITIES IN THE USE OF PART B FUNDS
300.320 Definitions of "first priority children" and "second priority
children."
300.321 Priorities.
300.322 First priority children -- school year 1977-1978.
300.323 Services to other children.
300.324 Application of local educational agency to use funds for the second
priority.
INDIVIDUAL EDUCATION PROGRAMS
300.340 Definition.
300.341 State educational agency responsibility.
300.342 When individualized education programs must be in effect.
300.343 Meetings.
300.344 Participants in meetings.
300.345 Parent participation.
300.346 Content of individualized education program.
300.347 Private school placements.
300.348 Handicapped children in parochial or other private schools.
300.349 Individualized education program -- accountability.
DIRECT SERVICE BY THE STATE EDUCATIONAL AGENCY
300.360 Use of local educational agency allocation for direct services.
300.361 Nature and location of services.
300.370 Use of State educational agency allocation for direct and support
services.
300.371 State matching.
300.372 Applicability of nonsupplanting requirement.
COMPREHENSIVE SYSTEM OF PERSONAL DEVELOPMENT
300.380 Scope of system.
300.381 Participation of other agencies and institutions.
300.382 Inservice training.
300.383 Personnel development plan.
300.384 Dissemination.
300.385 Adoption of educational practices.
300.386 [Reserved]
300.387 Technical assistance to local educational agencies.
Subpart D -- Private Schools
HANDICAPPED CHILDREN IN PRIVATE SCHOOLS PLACED OR REFERRED BY PUBLIC AGENCIES
300.400 Applicability of Sec. 300.401 -- 300.403.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.
300.403 Placement of children by parents.
HANDICAPPED CHILDREN IN PRIVATE SCHOOLS NOT PLACED OR REFERRED BY PUBLIC
AGENCIES.
300.450 Definition of "private school handicapped children."
300.451 State educational agency responsibility.
300.452 Local educational agency responsibility.
PROCEDURES FOR BY-PASS
300.480 By-pass-general.
300.481 Provisions for services under a by-pass.
DUE PROCESS PROCEDURES
300.482 Notice of intent to implement a by-pass.
300.483 Request to show cause.
300.484 Show cause hearing.
300.485 Decision.
300.486 Judicial review.
Subpart E -- Procedural Safeguards
DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN
300.500 Definitions of "consent", "evaluation", and "personally identifiable"
300.501 General responsibility of public agencies
300.502 Opportunity to examine records.
300.503 Independent educational evaluation.
300.504 Prior notice parent consent.
300.505 Content of notice.
300.506 Impartial due process hearing.
300.507 Impartial hearing officer.
300.508 Hearing rights.
300.509 Hearing decision: appeal.
300.510 Administrative appeal: impartial review.
300.511 Civil action.
300.512 Timeliness and convenience of hearings and reviews.
300.513 Child's status during proceedings.
300.514 Surrogate parents.
PROTECTION IN EVALUATION PROCEDURES
300.530 General.
300.531 Preplacement evaluation.
300.532 Evaluation procedures.
300.533 Placement procedures.
300.534 Reevaluation.
ADDITIONAL PROCEDURES FOR EVALUATING SPECIFIC LEARNING DISABILITIES
300.540 Additional team members.
300.541 Criteria for determining the existence of a specific learning
disability.
300.542 Observation.
300.543 Written report.
LEAST RESTRICTIVE ENVIRONMENT
300.550 General.
300.551 Continuum of alternative placements.
300.552 Placements.
300.553 Nonacademic settings.
300.554 Children in public or private institutions.
300.555 Technical assistance and training activities.
300.556 Monitoring activities.
CONFIDENTIALLY OF INFORMATION
300.560 Definitions.
300.561 Notice to parents.
300.562 Access rights.
300.563 Record of access.
300.564 Records on more than one child.
300.565 List of types and locations of information.
300.566 Fees.
300.567 Amendment of records at parent's request.
300.568 Opportunity for a hearing.
300.569 Result of hearing.
300.570 Hearing procedures.
300.571 Consent.
300.572 Safeguards.
300.573 Destruction of information.
300.574 Children's rights.
300.575 Enforcement.
300.576 Department.
DEPARTMENT PROCEDURES
300.580 [Reserved]
300.581 Disapproval of a State plan.
300.582 Content of notice.
300.583 Hearing Official or Panel.
300.584 Hearing procedures.
300.585 Initial decision; final decision
300.586 Judicial review.
300.587-300.588 [Reserved]
Subpart F -- State Administration
STATE EDUCATIONAL AGENCY RESPONSIBILITIES: GENERAL
300.600 Responsibility for all educational programs.
USE OF FUNDS
300.620 Federal funds for State administration.
300.621 Allowable costs.
STATE ADVISORY PANEL
300.650 Establishment.
300.651 Membership.
300.652 Advisory panel functions.
300.653 Advisory panel procedures.
Subpart G -- Allocation of Funds; Reports
ALLOCATIONS
300.700 Special definition of the term State.
300.701 State entitlement; formula.
300.702 Limitations and exclusions.
300.703 Ratable reductions.
300.704 Hold harmless provision.
300.705 Within-State distribution; Fiscal year 1978.
300.706 Within-State distribution; Fiscal year 1979 and after.
300.707 Local educational agency entitlements; formula.
300.708 Reallocation of local educational agency funds.
300.709 Payments to Secretary of Interior.
300.710 Entitlements to jurisdictions.
REPORTS
300.750 Annual report of children served--report requirement.
300.751 Annual report of children served--information required in the report.
300.752 Annual report of children served--certification.
300.753 Annual report of children served--criteria for counting children.
300.754 Annual report of children served--other responsibilities of the State
educational agency.
APPENDIX A -- [RESERVED]
APPENDIX B -- INDEX TO PART 300
(20 U.S.C. 1411-1420) unless otherwise noted.
SOURCE: 42 FR 42476. Aug 23, 1977, unless otherwise noted. Redesigned at
45 FR 77368. Nov. 21, 1980.
Subpart A -- General
PURPOSE APPLICABILITY, AND GENERAL PROVISIONS REGULATIONS
SEC 300.1 Purpose.
The purpose of this part is:
(a) To insure that all handicapped children have available to
them a free appropriate public education which includes
special education and related services to meet their unique
needs,
(b) To insure that the rights of handicapped children and their
parents are protected,
(c) To assist States and localities to provide for the children,
and
(d) To assess and insure the effectiveness of efforts to educate
those children.
(20 U.S.C. 1401 Note)
SEC. 300.2 Applicability to State, local, and private agencies.
(a) States.
This part applies to each State which receives payments under
Part B of the Education of the Handicapped Act.
(b) Public agencies within the State.
The annual program plan is submitted by the State educational
agency on behalf of the State as a whole. Therefore, the
provisions of this part apply to all political subdivisions
of the State that are involved in the education of
handicapped children. These would include:
(1) The State educational agency,
(2) local Educational units,
(3) other State agencies and schools (such as Departments of
Mental Health and Welfare and State schools for the deaf
or blind), and
(4) State correctional facilities.
(c) Private schools and facilities.
Each public agency in the State is responsible for insuring
that the rights and protections under this part are given to
children referred to or placed in private schools and
facilities by that public agency.
(See Sections 300.400-300.403)
(20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B))
Comment.
The requirements of this part are binding on each public agency that has
direct or delegated authority to provide special education and related
services in a State that receives funds under part B of this Act,
regardless of whether that agency is receiving funds under part B.
SEC. 300.3 Regulations that apply to assistance to States for education of
handicapped children.
(a) Regulations.
The following regulations apply to this program of Assistance
to States for Education of Handicapped Children.
(1) The Education Department General Administrative
Regulations (EDGAR) in 34 CFR Part 76 (State-Administered
Programs) and Part 77 (Definitions).
(2) The regulations in this Part 300.
(b) How to use regulations; how to apply for funds.
The "Introduction to Regulations of the Department" at the
beginning of EDGAR includes general information to assist in:
(1) Using regulations that apply to Department programs; and
(2) Applying for assistance under a Department program.
(20 U.S.C. 121e-3(a)(1))
DEFINITIONS
Comment. Definitions of terms that are used throughout these regulations
are included in this subpart. Other terms are defined in the specific
subparts in which they are used. Below is a list of those terms and the
specific sections and subparts in which they are defined:
Consent (Sec. 300.500 of Subpart E)
Destruction (Sec. 300.560 of Subpart E)
Direct services (Sec. 300.370 (b)(1) of Subpart C)
Evaluation (Sec. 300.500 of Subpart E)
First priority children (Sec. 300.320(a) of Subpart C)
Independent educational evaluation (Sec. 300.503 of Subpart E)
Individualized education program. (Sec. 300.340 of Subpart C)
Participating agency (Sec. 300.560 of Subpart E)
Personally identifiable (Sec. 300.500 of Subpart E)
Private school handicapped children (Sec. 300.450 of Subpart D)
Public Expense (Sec. 300.503 of Subpart E)
Second priority children (Sec. 300.320(b) of Subpart C)
Special definition of "State" (Sec. 300.700 of Subpart G)
Support services (Sec. 300.370(b)(2) of Subpart C)
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.4 Free appropriate public education.
As used in this part, the term "free appropriate public
education" means special education and related services which:
(a) Are provided at public expense, under public supervision and
direction, and without charge.
(b) Meet the standards of the State educational agency, including
the requirements of this part,
(c) Include preschool, elementary school, or secondary school
education in the State involved, and
(d) Are provided in conformity with an individualized education
program which meets the requirements under SEC 300.340-
300.349 of Subpart C.
(20 U.S.C. 1401(18))
SEC. 300.5 (a) As used in this part, the term "handicapped children" means
those children evaluated in accordance with SEC. 300.350-
300.534 as being mentally retarded, hard of hearing, deaf,
speech impaired, visually handicapped, seriously emotionally
disturbed, orthopedically impaired, other health impaired,
deaf-blind, multi-handicapped, or as having specific learning
disabilities, who because of those impairments needs special
education and related services.
(b) The terms used in this definition are defined as follows:
(1) "Deaf" means a hearing impairment which is so severe that
the child is impaired in processing linguistic
information through hearing, with or without
amplification, which adversely affects educational
performance.
(2) "Deaf-blind" means concomitant hearing and visual
impairments, the combination of which causes such severe
communication and other developmental and educational
problems that they cannot be accommodated in special
education programs solely for deaf or blind children.
(3) "Hard of Hearing" means a hearing impairment, whether
permanent or fluctuating, which adversely affects a
child's educational performance but which is not included
under the definition of "deaf" in this section.
(4) "Mentally retarded" means significantly subaverage
general intellectual functioning existing concurrently
with deficits in adaptive behavior and manifested during
the developmental period, which adversely affects a
child's educational performance.
(5) "Multihandicapped" means concomitant impairments (such as
mentally retarded--blind, mentally retarded--
orthopedically impaired, etc.), the combination of which
causes such severe educational problems that they cannot
be accommodated in special education programs solely for
one of the impairments. The term does not include deaf-
blind children.
(6) "Orthopedically impaired" means a severe orthopedic
impairment which adversely affects a child's educational
performance. The term includes impairments caused by
congenital anomaly (e.g., clubfoot, absence of some
member, etc.), impairments caused by disease (e.g.
poliomyelitis, bone tuberculosis, etc.), and impairments
from other causes (e.g., cerebral palsy, amputations, and
fractures or burns which cause contractures.)
(7) "Other health impaired" means
(i) having an autistic condition which is manifested by
severe communication and other developmental and
educational problems; or
(ii) having limited strength, vitality or alertness, due
to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis,
asthma, sickle cell anemia, hemophilia, epilepsy,
lead poisoning, leukemia, or diabetes, which
adversely affects a child's educational performance.
(8) "Seriously emotionally disturbed" is defined as follows:
(i) The term means a condition exhibiting one or more of
the following characteristics over a long period of
time and to a marked degree, which adversely affects
educational performance:
(A) An inability to learn which cannot be explained
by intellectual, sensory, or health factors;
(B) An inability to build or maintain satisfactory
interpersonal relationships with peers and
teachers;
(C) Inappropriate types of behavior or feelings under
normal circumstance;
(D) A general pervasive mood of unhappiness or
depression; or
(E) A tendency to develop physical symptoms or fears
associated with personal or school problems.
(ii) The term includes children who are schizophrenic. The
term does not include children who are socially
maladjusted, unless it is determined that they are
seriously emotionally disturbed.
(9) "Specific learning disability" means a disorder in one or
more of the basic psychological processes involved in
understanding or in using language, spoken or written,
which may manifest itself in an imperfect ability to
listen, think, speak, read, write, spell, or to do
mathematical calculations. The term includes such
conditions as perceptual handicaps, brain injury, minimal
brain disfunction, dyslexia, and developmental aphasia.
The term does not include children who have learning
problems which are primarily the result of visual,
hearing, or motor handicaps, of mental retardation of
emotional disturbances or of environmental, cultural, or
economic disadvantage.
(10) "Speech impaired" means a communication disorder such as
stuttering, impaired articulation, a language impairment,
or a voice impairment, which adversely affects a child's
educational performance.
(11) "Visually handicapped" means a visual impairment which,
even with correction, adversely affects the child's
educational performance. The term includes both
partially seeing and blind children.
(20 U.S.C. 1401(1),(15))
[42 FR 42476, Aug. 23, 1977, as amended at 42 FR 65083, Dec. 29, 1977.
Redesignated at 45 FR 77368, Nov. 21, 1980, and further amended at 46 FR
3866, Jan. 16, 1981]
SEC. 300.6
Include.
As used in this part, the term "include" means that the items
named are not all of the possible items that are covered, whether
like or unlike the ones named.
(20 U.S.C. 1417(b))
SEC. 300.7 Intermediate educational unit.
As used in this part, the term "intermediate educational unit"
means any public authority, other than a local educational
agency, which:
(a) Is under the general supervision of a State educational
agency;
(b) Is established by State law for the purpose of providing free
public education on a regional basis; and
(c) Provides special education and related services to
handicapped children within that State.
(20 U.S.C. 1401 (22))
SEC. 300.8 Local education agency.
(a) [Reserved]
(b) For the purposes of this part, the term "local educational
agency" also includes intermediate educational units.
(20 U.S.C. 1401(8))
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr.3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.9 Native language.
As used in this part, the term "native language" has the meaning
given that term by section 703(a)(2) of the Bilingual Education
Act, which provides as follows:
The term "native language", when used with reference to a person
of limited English-speaking ability, means the language normally
used by that person, or in the case of child, the language
normally used by the parents of the child.
(20 U.S.C. 880-b1(a)(2); 1401(21))
Comment. Section 602(21) of the Education of the Handicapped Act states
that the term "native language" has the same meaning as the definition
from the Bilingual Education Act. (The term is used in the prior notice
and evaluation sections under Sec. 300.505(b)(2) and Sec. 300.532(a)(1)
of Subpart E.) In using the term, the Act does not prevent the following
means of communication:
(1) In all direct contact with a child (including evaluation of
the child), communication would be that normally used by the
child and not that of the parents, if there is a difference
between the two.
(2) If a person is deaf or blind, or has no written language, the
mode of communication would be that normally used by the
person (such as sign language, braille, or oral
communication).
SEC. 300.10 Parent.
As used in this part, the term "parent" means a parent, a
guardian, a person acting as a parent of a child, or a surrogate
parent who has been appointed in accordance with SEC. 300.514.
The term does not include the State if the child is a ward of the
State. Comment. The term "parent" is defined to include persons
acting in the place of a parent, such as a grandmother or
stepparent with whom a child lives, as well as persons who are
legally responsible for a child's welfare.
(20 U.S.C. 1415)
Comment. The term "parent" is defined to include persons acting in the
place of a parent, such as a grandmother or stepparent with whom a child
lives, as well as persons who are legally responsible for a child's
welfare.
SEC. 300.11 Public agency.
As used in this part, the term "public agency" includes the State
educational agency, local educational agencies, intermediate
educational units, and any other political subdivision of the
State which are responsible for providing education to
handicapped children.
(20 U.S.C 1412(2)(B); 1412(6); 1413(a))
SEC. 300.12 Qualified.
As used in this part, the term "qualified" means that a person
has met State educational agency approved or recognized
certification, licensing, registration, or other comparable
requirements which apply to the area in which he or she is
providing special education or related services.
(20 U.S.C. 1417(b))
SEC. 300.13 Related services.
(a) As used in this part, the term "related services" means
transportation and such developmental, corrective, and other
supportive services as are required to assist a handicapped
child to benefit from special education, and includes speech
pathology and audiology, psychological services, physical and
occupational therapy, recreation, early identification and
assessment of disabilities in children, counseling services,
and medical services for diagnostic or evaluation purposes.
The term also includes school health services, social work
services in schools, and parent counseling and training.
(b) The terms used in this definition are defined as follows:
(1) "Audiology" includes:
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of
hearing loss, including referral for medical or other
professional attention for the habilitation of
hearing;
(iii) Provision of habilitative activities, such as
language habilitation, auditory training, speech
reading (lipreading), hearing evaluation, and speech
conservation;
(iv) Creation and administration of programs for
prevention of hearing loss;
(v) Counseling and guidance of pupils, parents, and
teachers regarding hearing loss; and
(vi) Determination of the child's need for group and
individual amplification, selecting and fitting an
appropriate aid, and evaluating the effectiveness of
amplification.
(2) "Counseling services" means services provided by
qualified social workers, psychologists, guidance
counselors, or other qualified personnel.
(3) "Early identification" means the implementation of a
formal plan for identifying a disability as early as
possible in a child's life.
(4) "Medical services" means services provided by a licensed
physician to determine a child's medically related
handicapping condition which results in the child's need
for special education and related services.
(5) "Occupational therapy" includes:
(i) Improving, developing or restoring functions impaired
or lost through illness, injury, or deprivation;
(ii) Improving ability to perform tasks for independent
functioning when functions are impaired or lost; and
(iii) Preventing, through early intervention, initial or
further impairment or loss of function.
(6) "Parent counseling and training" means assisting parents
in understanding the special needs of their child and
providing parents with information about child
development.
(7) "Physical therapy" means services provided by a qualified
physical therapist.
(8) "Psychological services" include:
(i) Administering psychological and educational tests,
and other assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information
about child behavior and conditions relating to
learning.
(iv) Consulting with other staff members in planning
school programs to meet the special needs of children
as indicated by psychological tests, interviews, and
behavioral evaluations; and
(v) Planning and managing a program of psychological
services, including psychological counseling for
children and parents.
(9) "Recreation" includes:
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community
agencies; and
(iv) Leisure Education.
(10) "School health services" means services provided by a
qualified school nurse or other qualified person.
(11) "Social work services in schools" include:
(i) Preparing a social or developmental history on a
handicapped child;
(ii) Group and individual counseling with the child and
the family;
(iii) Working with those problems in a child's living
situation (home, school, and community) that affect
the child's adjustment in school; and
(iv) Mobilizing school and community resources to enable
the child to receive maximum benefit from his or her
educational program.
(12) "Speech pathology" includes:
(i) Identification of children with speech or language
disorders;
(ii) Diagnosis and appraisal of specific speech or
language disorders;
(iii) Referral for medical or other professional attention
necessary for the habilitation of speech or language
disorders;
(iv) Provisions of speech and language services for the
habilitation or prevention of communicative
disorders; and
(v) Counseling and guidance of parents, children, and
teachers regarding speech and language disorders.
(13) "Transportation" includes:
(i) Travel to and from school between schools,
(ii) Travel in and around school buildings, and
(iii) Specialized equipment (such as special or adapted
buses, lifts, and ramps), if required to provide
special transportation for a handicapped child.
(20 U.S.C. 1401 (17))
Comment.
With respect to related services, the Senate Report states:
The Committee bill provides a definition of "related services" making
clear that all such related services may not be required for each
individual child and that such term includes early identification and
assessment of handicapping conditions and the provisions of services to
minimize the efforts of such conditions.
(Senate Report No. 94-168, p. 12 (1975))
The list of related services is not exhaustive and may include other
developmental, corrective, or supportive services (such as artistic and
cultural programs , and art, music, and dance therapy), if they are
required to assist a handicapped child to benefit from special education.
There are certain kinds of services which might be provided by persons
from varying professional backgrounds and with a variety of operational
titles, depending upon requirements in individual States. For example,
counseling services might be provided by social workers, psychologists,
or guidance counselors; and psychological testing might be done by
qualified psychologists, depending upon State standards. Each related
service defined under this part may include appropriate administrative
and supervisory activities that are necessary for program planning,
management, and evaluation.
SEC. 300.14 Special Education.
(a) (1) As used in this part, the term "special education" means
specially designed instruction, at no-cost to the parent,
to meet the unique needs of a handicapped child,
including classroom instruction, instruction in physical
education, home instruction, and instruction in hospitals
and institutions.
(2) The term includes speech pathology, or any other related
service, if the service consists of specially designed
instruction, at no cost to the parents, to meet the
unique needs of a handicapped child, and is considered
"special education" rather than a "related service" under
State standards.
(3) The term also includes vocational education if it
consists of specially designed instruction, at no cost to
the parents, to meet the unique needs of a handicapped
child.
(b) The terms in this definition are defined as follows:
(1) "At no cost" means that all specially designed
instruction is provided without charge, but does nor
preclude incidental fees which are normally charged to
non-handicapped students or their parents as a part of
the regular education program.
(2) "Physical education" is defined as follows:
(i) The term means the development of:
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and
group games and sports (including intramural and
lifetime sports.)
(ii) The term includes special physical education, adapted
physical education, movement education, and motor
development.
(20 U.S.C. 1401(16))
(3) "Vocational education" means organized educational
programs which are directly related to the preparation
of individuals for paid or unpaid employment, or for
additional preparation for a career requiring other than
a baccalaureate or advanced degree.
(20 U.S.C. 1401 (16))
Comment. (1) The definition of "special education" is a particularly
important one under these regulations, since a child is not
handicapped unless he or she needs special education. (See
the definition of "handicapped children" in SEC. 300.5) The
definition of related services" (Sec. 300.13) also depends
on this definition, since a related service must be
necessary for a child to benefit from special education.
Therefore, if a child does not need special education, there
can be no "related services," and the child (because not
"handicapped") is not covered under the Act.
(2) The above definition of vocational education is taken from
the Vocational Education Act of 1963, as amended by Pub. L.
94-482. Under this Act, "vocational education" includes
industrial arts and consumer and homemaking education
programs.
Subpart B -- State Annual Program Plans and Local Applications
ANNUAL PROGRAM PLANS -- GENERAL
SEC. 300.110 Condition of assistance.
In order to receive funds under Part B of the Act for any fiscal
year, a State must submit an annual program plan to the Secretary
through its State educational agency.
(20 U.S.C. 1232c(b), 1412, 1413)
SEC. 300.111 Contents of plan.
Each annual program plan must contain the provisions required in
this subpart.
(20 U.S.C. 1412, 1413, 1232c(b))
ANNUAL PROGRAM PLANS -- CONTENTS
SEC. 300.121 Right to a free appropriate public education.
(a) Each annual program plan must include information which shows
the State has in effect a policy which insures that all
handicapped children have the right to a free appropriate
public education within the ranges and timelines under Sec.
300.122.
(b) The information must include a copy of each State statute,
court order, State Attorney General opinion, and other State
document that shows the source of the policy.
(c) The information must show that the policy:
(1) Applies to all public agencies in the State;
(2) Applies to all handicapped children;
(3) Implements the priorities established under Sec.
300.127(a)(1) of the subpart; and
(4) Establishes timelines for implementing the policy, in
accordance with Sec. 300.122.
(20 U.S.C. 1412(1)(2)(B), (6); 1413(a)(3))
SEC. 300.122 Timeliness and ages for free appropriate public education.
(a) General. Each annual program plan must include in detail the
policies and procedures which the State will undertake or has
undertaken in order to insure that a free appropriate public
education is available for all handicapped children aged
three through eighteen within the State not later than
September 1, 1980.
(b) Documents relating to timeliness. Each annual program plan
must include a copy of each statute, court order, attorney
general decision, and other State document which demonstrates
that the State has established timelines in accordance with
paragraph (a) of this section.
(c) Exception. The requirement in paragraph (a) of this section
does not apply to a State with respect to handicapped
children aged three, four, five, eighteen, nineteen, twenty,
or twenty-one to the extent that the requirement would be
inconsistent with State law or practice, or the order of any
court, respecting public education for one or more of those
age groups in the State.
(d) Documents relating to exceptions. Each annual program plan
must:
(1) Describe in detail the extent to which the exception in
paragraph (c) of this section applies to the State, and
(2) Include a copy of each State law, court order, and other
document which provides a basis for the exception.
(20 U.S.C. 1412(2)(B))
SEC. 300.123 Full educational opportunity goal.
Each annual program plan must include in detail the policies and
procedures which the State will undertake, or has taken, in order
to insure that the State has a goal of providing full educational
opportunity to all handicapped children aged birth through
twenty-one.
(20 U.S.C. 1412(2)(A))
SEC. 300.124 Full educational opportunity goal -- data requirement.
Beginning with school year 1978-1979, each annual program plan
must contain the following information:
(a) The estimated number of handicapped children who need special
education and related services.
(b) For the current school year:
(1) The number of handicapped children aged birth through
two, who are receiving special education and related
services; and
(2) The number of handicapped children:
(i) Who are receiving a free appropriate public
education,
(ii) Who need, but are not receiving a free appropriate
public education,
(iii) Who are enrolled in public and private institutions
who are receiving a free appropriate public
education, and
(iv) Who are enrolled in public and private institutions
and are not receiving a free appropriate public
education.
(c) The estimated numbers of handicapped children who are
expected to receive special education and related services
during the next school year.
(d) A description of the basis used to determine the data
required under this section.
(e) The data required by paragraphs (a), (b), and (c) of this
section must be provided: (1) For each disability category
(except for children aged birth through two), and
(2) For each of the following age ranges: birth through two,
three through five, six through seventh, and eighteen
through twenty-one.
(20 U.S.C. 1412(2)(A))
Comment. In Part B of the Act, the term "disability" is used
interchangeably with "handicapping condition". For consistency in this
regulation, a child with a "disability" means a child with one of the
impairments listed in the definition of "handicapped children in Sec.
300.5, if the child needs special education because of the impairment.
In essence, there is a continuum of impairments. When an impairment is
of such a nature that a child needs special education, it is referred to
as a disability, in these regulations, and the child is a "handicapped"
child. States should note that data required under this section are not
to be transmitted to the Secretary in personally identifiable form.
Generally, except for such purposes as monitoring and auditing, neither
the States nor the Federal Government should have to collect data under
this part in personally identifiable form.
SEC. 300.125 Full educational opportunity goal -- timetable.
(a) General requirement. Each annual program plan must contain a
detailed timetable for accomplishing the goal of providing
full educational opportunity of all handicapped children.
(b) Content of timetable.
(1) The timetable must indicate what percent of the total
estimated number of handicapped children the State
expects to have full educational opportunity in each
succeeding school year.
(2) The data required under this paragraph must be provided:
(i) For each disability category (except for children
aged birth through two), and
(ii) For each of the following age ranges: birth through
two, three through five, six through seventeen, and
eighteen through twenty-one.
(20 U.S.C. 1412(2)(A))
SEC. 300.126 Full educational opportunity goal -- facilities, personnel, and
services.
(a) General requirement. Each annual program plan must include a
description of the kind and number of facilities, personnel,
and services necessary throughout the State to meet the goal
of providing full educational opportunity for all handicapped
children. The State educational agency shall include the data
required under paragraph (b) of this section and whatever
additional data are necessary to meet the requirement.
(b) Statistical description. Each annual program plan must
include the following data:
(1) The number of additional special class teachers, resource
room teachers, and intinerant or consultant teachers
needed for each disability category and the number of
each of these who are currently employed in the State.
(2) The number of other additional personnel needed, and the
number currently employed in the State, including school
psychologists, school social workers, occupational
therapists, physical therapists, home-hospital teachers,
speech-language pathologists, audiologists, teacher
aides, vocational education teachers, work study
coordinators, physical education teachers, therapeutic
recreation specialists, diagnostic personnel,
supervisors, and other instructional and non-
instructional staff.
(3) The total number of personnel reported under paragraphs
(b)(1) and (2) of this section, and the salary costs of
those personnel.
(4) The number and kind of facilities needed for handicapped
children and the number and kind currently in use in the
State, including regular classes serving handicapped
children, self-contained classes on a regular school
campus, resource rooms, private special education day
schools, private education residential schools, public
special education residential schools, hospital programs,
occupational therapy facilities, physical therapy
facilities, public sheltered workshops, private sheltered
workshops, and other type of facilities.
(5) The total number of transportation units needed for
handicapped children, the number of transportation units
designed for handicapped children which are in use in the
State, and the number of handicapped children who use
these units to benefit from special education.
(c) Data categories. The data required under paragraph (b) of
this section must be provided as follows:
(1) Estimates for serving all handicapped children who
require special education and related services.
(2) Current year data, based on the actual numbers of
handicapped children receiving special education and
related services (as reported under Subpart G), and
(3) Estimates for the next school year.
(d) Rationale. Each annual program plan must include a
description of the means used to determine the number and
salary costs of personnel.
(20 U.S.C. 1412(2)(A))
SEC. 300.127 Priorities.
(a) General requirement. Each annual program plan must include
information which shows that:
(1) The State has established priorities which meet the
requirements under Sections 300.320-300.324 of Subpart C.
(2) The State priorities meet the timelines under SEC.
300.122 of this subpart, and
(3) The State has made progress in meeting those timelines.
(b) Child data.
(1) Each annual program plan must show the number of
handicapped children known by the State to be in each of
the first two priority groups named in SEC. 300.321 of
Subpart C:
(i) By disability category, and
(ii) By the age ranges in SEC. 300.124(e)(2) of this
subpart.
(c) Activities and resources. Each annual program plan must show
for each of the first two priority groups:
(1) The programs, services, and activities that are being
carried out in the State.
(2) The Federal, State, and local resources that have been
committed during the current school year, and
(3) The programs, services, activities, and resources that
are to be provided during the next school year.
(20 U.S.C. 1412(3))
SEC. 300.128 Identification, location, and evaluation of handicapped children.
(a) General requirement. Each annual program plan must include in
detail the policies and procedures which the State will
undertake or has undertaken to insure that:
(1) All children who are handicapped, regardless of the
severity of their handicap, and who are in need of
special education and related services are identified,
located, and evaluated; and
(2) A practical method is developed and implemented to
determine which children are currently receiving needed
special education and related services and which children
are not currently receiving needed special education and
related services.
(b) Information. Each annual program plan must:
(1) Designate the State agency (if other than State
educational agency) responsible for coordinating the
planning and implementation of the policies and
procedures under paragraph (a) of this section;
(2) Name each agency that participates in the planning and
implementation and describe the nature and extent of its
participation;
(3) Describe the extent to which:
(i) The activities described in paragraph (a) of this
section have been achieved under the current annual
program plan, and
(ii) The resources named for these activities in that plan
have been used;
(4) Describe each type of activity to be carried out during
the next school year, including the role of the agency
named under paragraph (b)(1) of this section, timelines
for completing those activities, resources that will be
used, and expected outcomes;
(5) Describe how the policies and procedures under paragraph
(a) of this section will be monitored to insure that the
State educational agency obtains:
(i) The number of handicapped children within each
disability category that have been identified,
located, and evaluated, and
(ii) Information adequate to evaluate the effectiveness of
those polices and procedures; and
(6) Describe the method the State uses to determine which
children are currently receiving special education and
related services and which children are not receiving
special education and related services.
(20 U.S.C. 1412(2)(C))
Comment. The State is responsible for insuring that all handicapped
children are identified, located, and evaluated, including children in
all public and private agencies and institutions in the State.
Collection and use of data are subject to the confidentiality
requirements in Sections 300.560-300.576.
SEC. 300.129 Confidentiality of personally identifiable information.
(a) Each annual program plan must include in detail the policies
and procedures which the State will undertake or has
undertaken in order to insure the protection of the
confidentiality of any personally identifiable information
collected, used, or maintained under this part.
(b) The Secretary shall use the criteria in Sections 300.560-
300.576 of Subpart E to evaluate the policies and procedures
of the State under paragraph (a) of this section.
(20 U.S.C. 1412(2)(D); 1417(c))
Comment. The confidentiality regulations were published in the FEDERAL
REGISTER in final form on February 27, 1976 (41 FR 8603-8610), and met
the requirements of Part B of the Act, as amended by Pub. L. 94-142.
Those regulations are incorporated in Sections 300.560-300.576 of
Subpart E.
SEC. 300.130 Individualized education programs.
(a) Each annual program plan must include information which shows
that each public agency in the State maintains records of the
individualized education program for each handicapped child,
and each public agency establishes, reviews, and revises each
program as provided in Subpart C.
(b) Each annual program plan must include:
(1) A copy of each State statute, policy, and standard that
regulates the manner in which individualized education
programs are developed, implemented, reviewed, and
revised, and
(2) The procedures which the State educational agency follows
in monitoring and evaluating those programs.
(20 U.S.C. 1412(4))
SEC. 300.131 Procedural safeguards.
(a) Each annual program plan must include procedural safeguards
which insure that the requirements in Sections 300.500-
300.514 of Subpart E are met.
(20 U.S.C. 1412(5)(A))
SEC. 300.132 Least restrictive environment.
(a) Each annual program plan must include procedures which insure
that the requirements in Sections 300.550-300.556 of Subpart
E are met.
(b) Each annual program plan must include the following
information:
(1) The number of handicapped children in the State, within
each disability category, who are participating in
regular education programs consistent with Sections
300.550-300.556 of Subpart E.
(2) The number of handicapped children who are in separate
classes or otherwise removed from the regular education
environment.
(20 U.S.C. 1412(5)(B))
SEC. 300.133 Protection in evaluation procedures.
Each annual program plan must include procedures which insure
that the requirements in Sections 300.530-300.534 of Subpart E
are met.
(20 U.S.C. 1412(5)(C))
SEC. 300.134 Responsibility of State educational agency for all educational
programs.
(a) Each annual program plan must include information which shows
that the requirements in Section 300.600 of Subpart F are
met.
(b) The information under paragraph (a) of this section must
include a copy of each State statute, State regulation,
signed agreement between respective agency officials, and any
other document that shows compliance with that paragraph.
(20 U.S.C. 1412(6))
SEC. 300.135 [Reserved]
SEC. 300.136 Implementation procedures -- State educational agency.
Each annual program plan must describe the procedures the State
educational agency follows to inform each public agency of its
responsibility for insuring effective implementation of
procedural safeguards for the handicapped children served by that
public agency.
(20. U.S.C. 1412(6))
SEC. 300.137 Procedures for consultation.
Each annual program plan must include an assurance that in
carrying out the requirements of section 612 of the Act,
procedures are established for consultation with individuals
involved in or concerned with the education of handicapped
children, including handicapped individuals and parents of
handicapped children.
(20 U.S.C. 1412 (7)(A))
SEC. 300.138 Other Federal programs.
Each annual program plan must provide that programs and
procedures are established to insure that funds received by the
State or any public agency in the State under any other Federal
program, including section 121 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 241e-2), section 305(b)(8) of
that Act (20 U.S.C. 844a(b)(8)) or Title IV-C of that Act (20
U.S.C. 1831). and section 110(a) of the Vocational Education
Act of 1963, under which there is specific authority for
assistance for the education of handicapped children, are used by
the State, or any public agency in the State, only in a manner
consistent with the goal of providing free appropriate public
education for all handicapped children, except that nothing in
this section limits the specific requirements of the laws
governing those Federal programs.
(20 U.S.C. 1413(a)(2))
SEC. 300.139 Comprehensive system of personnel development.
Each annual program plan must include the material required under
sections 300.380-300.387 of Subpart C.
(20 U.S.C. 1413(a)(3))
SEC. 300.140 Private schools.
Each annual program plan must include policies and procedures
which insure that the requirements of Subpart D or met.
(20 U.S.C. 1413(a)(4))
SEC. 300.141 Recovery of funds for misclassified children.
Each annual program plan must include policies and procedures
which insure that the State seeks to recover any funds provided
under Part B of the Act for services to a child who is determined
to be erroneously classified as eligible to be counted under
section 611(a) or (d) of the Act.
(20 U.S.C. 1413(a)(5))
SEC. 300.142-300.143 [Reserved]
SEC. 300.144 Hearing on application.
Each annual program plan must include procedures to insure that
the State educational agency does not take any final action with
respect to an application submitted by a local educational agency
before giving the local educational agency reasonable notice and
an opportunity for a hearing.
(20 U.S.C. 1413(a)(8))
SEC. 300.145 Prohibition of commingling.
Each annual program plan must provide assurance satisfactory to
the Secretary that funds provided under Part B of the Act are not
commingled with State funds.
(20 U.S.C. 1413(a)(9))
Comment. This assurance is satisfied by the use of a separate accounting
system that includes an "audit trail" of the expenditure of the Part B
funds. Separate bank accounts are not required. (See 34 CFR 76, Subpart
F (Cash Depositories))
SEC. 300.146 Annual evaluation.
Each annual program plan must include procedures for evaluation
at least annually of the effectiveness of the programs in meeting
the educational needs of handicapped children, including
evaluation of individualized education programs.
(20 U.S.C. 1413(a)(11))
SEC. 300.147 State advisory panel.
Each annual program plan must provide that the requirements of
Sections 300.650-300.653 of Subpart F are met.
(20 U.S.C. 1413(a)(12))
SEC. 300.148 Policies and procedures for use of Part B funds.
Each annual program plan must set forth policies and procedures
designed to insure that funds paid to the State under Part B of
the Act are spent in accordance with the provisions of Part B,
with particular attention given to sections 611(b), 611(c),
611(d), 612(2), and 612(3) of the Act.
(20 U.S.C. 1413(a)(1))
SEC. 300.149 Description of use of Part B funds.
(a) State allocation. Each annual program plan must include the
following information about the State's use of funds under
Section 300.370 of Subpart C and Section 300.620 of Subpart
F:
(1) A list of administrative positions, and a description of
duties for each person whose salary is paid in whole or
in part with those funds.
(2) For each position, the percentage of salary paid with
those funds.
(3) A description of each administrative activity the State
educational agency will carry out during the next school
year with those funds.
(4) A description of each direct service and each support
service which the State educational agency will provide
during he next school year with those funds, and the
activities the State advisory panel will undertake during
that period with those funds.
(b) Local educational agency allocation. Each annual program plan
must include:
(1) An estimate of the number and percent of local
educational agencies in the State which will receive an
allocation under this part (other than local educational
agencies which submit a consolidated application),
(2) An estimate of the number of local educational agencies
which will receive an allocation under a consolidation
application,
(3) An estimate of the number of consolidated applications
and the average number of local educational agencies per
application, and
(4) A description of direct services the State educational
agency will provide under Sec. 300.360 of Subpart C.
(20 U.S.C. 1232c(b)(1)(B)(ii))
SEC. 300.150 [Reserved]
SEC. 300.151 Additional information if the State educational agency provides
direct services.
If a State educational agency provides free appropriate public
education for handicapped children or provides them with direct
services, its annual program plan must include the information
required under Sections 300.226-300.228, 300.231, and 300.235.
(20 U.S.C. 1413(b))
LOCAL EDUCATIONAL AGENCY
APPLICATIONS -- GENERAL
SEC. 300.180 Submission of application.
In order to receive payments under Part B of the Act for any
fiscal year a local educational agency must submit an application
to the State educational agency.
(20 U.S.C. 1414(a))
SEC. 300.181 [Reserved]
SEC. 300.182 The excess cost requirement.
A local educational agency may only use funds under Part B of the
Act for the excess costs of providing special education and
related services for handicapped children.
(20 U.S.C. 1414 (a)(1), (a)(2)(B)(i))
SEC. 300.183 Meeting the excess cost requirement.
(a) A local educational agency meets the excess cost requirement
if it has on the average spent at least the amount determined
under Sec. 300.184 for the education of each of its
handicapped children. This amount may not include capital
outlay or debt service.
(20 U.S.C. 1402(20); 1414(a)(1))
Comment. The excess cost requirement means that the local educational
agency must spend a certain minimum amount for the education of its
handicapped children before Part B funds are used. This insures that
children served with Part B funds have at least the same average amount
spent on them, from sources other than Part B, as do the children in the
school district taken as a whole.
The minimum amount that must be spent for the education of handicapped
children is computed under a statutory formula. Section 300.184
implements this formula and gives step-by-step method to determine the
minimum amount. Excess costs are those costs of special education and
related services which exceed the minimum amount. Therefore, if a local
educational agency can show that it has (on the average) spent the
minimum amount for the education of each of its handicapped children, it
has met the excess cost requirement, and all additional costs are excess
costs. Part B funds can then be used to pay for these additional costs,
subject to the other requirements of Part B (priorities, etc.). In the
"Comment" under Sec. 300.184, there is an example of how the minimum
amount is computed.
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.184 Excess costs -- computation of minimum amount.
The minimum average amount a local educational agency must spend
under Sec. 300.183 for the education of each of its handicapped
children is computed as follows:
(a) Add all expenditures of the local educational agency in the
preceding school year, except capital outlay and debt
service:
(1) For elementary school students, if the handicapped child
is an elementary school student, or
(2) For secondary school students, if the handicapped child
is a secondary school student.
(b) From this amount, subtract the total of the following amounts
spent for elementary school students or for secondary school
students, as the case may be:
(1) Amounts the agency spent in the preceding school year
from funds awarded under Part B of the Act and Titles I
and VII of the Elementary and Secondary Education Act of
1965, and
(2) Amounts from State and local funds which the agency spent
in the preceding school year for:
(i) Programs for handicapped children,
(ii) Programs to meet the special educational needs of
educationally deprived children, and
(iii) Programs of bilingual education for children with
limited English speaking ability.
(c) Divide the result under paragraph (b) of this section by the
average number of students enrolled in the agency in the
preceding school year:
(1) In its elementary schools, if the handicapped child is an
elementary student, or
(2) In its secondary schools, if the handicapped child is a
secondary student.
(20 U.S.C. 1414(a)(1))
Comment. The following is an example of how a local educational agency
might compute the average minimum amount it must spend for the education
of each of its handicapped children, under Sec. 300.183. This example
follows the formula in Sec. 300.184. Under the statute and regulations,
the local educational agency must make one computation for handicapped
children in its elementary schools and a separate computation for
handicapped children in its secondary schools. The computation for
handicapped elementary school students would be done as follows:
a. First, the local educational agency must determine its total amount of
expenditures for elementary school students from all sources -- local,
State, and Federal (including Part B) -- in the preceding school year.
Only capital outlay and debt service are excluded.
Example: A local educational agency spent the following amounts last
year for elementary school students (including its
handicapped elementary school students):
(1) From local tax funds............. $2,750,000
(2) From State funds................. 7,000,000
(3) From Federal funds............... 750,000
-----------
10,500,000
Of this total, $500,000 was for capital outlay and debt
service relating to the education of elementary school
students. This must be subtracted from total expenditures:
10,500,000
-500,000
-------------------------------------------------
Total expenditures for elementary
school students (less capital outlay
and debt service) = 10,000,000
b. Next, the local educational agency must subtract amounts spent for:
(1) Programs for handicapped children;
(2) Programs to meet the special educational needs of educationally
deprived children; and
(3) Programs of bilingual education for children with limited English
speaking ability.
These are funds which the local educational agency actually spent, nor
funds received last year bit carried over for the current school year.
Example: The local educational agency spent the following amounts for
elementary school students last year:
(1) From funds under Title I of the
Elementary and Secondary Education
Act of 1965........................ $300,000
(2) From a special State program for
educationally deprived children.... 200,000
(3) From a grant under Part B.......... 200,000
(4) From State funds for the education
of handicapped children............ 500,000
(5) From locally-funded program for
handicapped children............... 250,000
(6) From a grant for a bilingual
education program under Title VII
of the Elementary and Secondary
Education Act of 1965.............. 150,000
----------
Total....................... 1,600,000
(A local educational agency would also include any other
funds it spent from Federal, State, or local sources for the
three basic purposes: Handicapped children, educationally
deprived children, and bilingual education for children with
limited English speaking ability.) This amount is subtracted
from the local educational agency's total expenditure for
elementary school students computed above:
$10,000,000
-1,600,000
-------------
8,400,000
c. The local educational agency next must divide by the average number of
students enrolled in the elementary schools of the agency last year
(including its handicapped students).
Example: Last year, an average of 7,000 students were enrolled in the
agency's elementary schools. This must be divided into the
amount computed under the above paragraph:
$8,400,000/7,000 students = $1,200/student
This figure is in the minimum amount the local educational
agency must spend (on the average) for the education of each
of its handicapped students. Funds under Part B may be used
only for costs over and above this minimum. In this example,
if the local educational agency has 100 handicapped
elementary school students, it must keep records adequate to
show that it has spent at least $120,000 for the education of
those students (100 students times $1,200/student), not
including capital outlay and debt service. This $120,000 may
come from any funds except funds under Part B, subject to any
legal requirements that govern the use of those other funds.
If the local educational agency has handicapped secondary
school students, it must so the same computation for them.
However the amounts used in the computation would be those
the local educational agency spent last year for the
education of secondary school students, rather than for
elementary school students.
SEC. 300.185 Computation of excess costs -- consolidated application.
The minimum average amount under Sec. 300.183 where two or more
local educational agencies submit a consolidated application, is
the average of the combined minimum average amounts determined
under Sec. 300.184 in those agencies for elementary or secondary
school students, as the case may be.
(20 U.S.C. 1414(a)(1))
SEC. 300.186 Excess costs -- limitation on use of Part B funds.
(a) The excess cost requirement prevents a local educational
agency from using funds provided under Part B of the Act to
pay for all of the costs directly attributable to the
education of a handicapped child, subject to paragraph (b) of
this section.
(b) The excess cost requirement does not prevent a local
educational agency from using Part B funds to pay for all of
the costs directly attributable to the education of a
handicapped child in any of the age ranges three, four, five,
eighteen, nineteen, twenty, or twenty-one, if no local or
State funds are available for non-handicapped children in
that range. However, the educational agency must comply with
the non-supplanting and other requirements of this part in
providing the education and services.
(20 U.S.C. 1402(20); 1414(a)(1))
SEC. 300.190 Consolidated applications.
(a) [Reserved]
(b) Required applications. A State educational agency may require
local educational agencies to submit a consolidated
application for payments under Part B of the Act if the State
educational agency determines that an individual application
submitted by a local educational agency will be disapproved
because:
(1) The agency's entitlement is less than the $7,500 minimum
required by section 611(c)(4)(A)(i) of the Act (Sec
300.360(a)(1) of Subpart C); or
(2) The agency is unable to establish and maintain programs
of sufficient size and scope to effectively meet the
educational needs of handicapped children.
(c) Size and scope of program. The State educational agency shall
establish standards and procedures for determinations under
paragraph (b)(2) of this section.
(20 U.S.C. 1414(c)(1))
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.191 [Reserved]
SEC. 300.192 State regulation of consolidated applications.
(a) The State educational agency shall issue regulations with
respect to consolidated applications submitted under this
part.
(b) The State educational agency's regulations must:
(1) Be consistent with section 612 (1)-(7) and section 613(a)
of the Act, and
(2) Provide participating local educational agencies with
joint responsibilities for implementing programs
receiving payments under this part.
(20 U.S.C. 1414(c)(2)(B))
(c) If an intermediate educational unit is required under State
law to carry out this part, the joint responsibilities given
to local educational agencies under paragraph (b)(2) of the
section so not apply to the administration and disbursement
of any payments received by the intermediate educational
unit. Those administrative responsibilities must be carried
out exclusively by the intermediate educational unit.
(20 U.S.C. 1414(c)(2)(C))
SEC. 300.193 State educational agency approval; disapproval.
(a)-(b) [Reserved]
(c) In carrying out its functions under this section, each State
educational agency shall consider any decision resulting from
hearing under Sections 300.506-300.513 of Subpart E which is
adverse to the local educational agency involved in the
decision.
(20 U.S.C. 1414(b)(3))
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.194 Withholding.
(a) If a State educational agency, after giving reasonable notice
and an opportunity for a hearing to a local educational
agency in the administration of an application approved by
the State educational agency has failed to comply with any
requirement in the application, the State educational agency,
after giving notice to the local educational agency, shall:
(1) Make no further payments to the local educational agency
until the State educational agency is satisfied that
there is no longer any failure to comply with the
requirement; or
(2) Consider its decision in its review of any application
made by the local educational agency under Sec. 300.180;
(3) Or both;
(b) Any local educational agency receiving a notice from a State
educational agency under paragraph (a) of this section is
subject to the public notice provision in Sec. 300.592.
(20 U.S.C. 1414(b)(2))
LOCAL EDUCATIONAL AGENCY
APPLICATIONS -- CONTENTS
SEC. 300.220 Child identification.
Each application must include procedures which insure that all
children residing within the jurisdiction of the local
educational agency who are handicapped, regardless of the
severity of their handicap, and who are in need of special
education and related services are identified, located, and
evaluated, including a practical method of determining which
children are currently receiving needed special education and
related services and which children are not currently receiving
needed special education and related services.
(20 U.S.C. 1414(a)(1)(A))
Comment. The local educational agency is responsible for insuring that
all handicapped children within its jurisdiction are identified, located,
and evaluated, including children in all public and private agencies and
institutions within that jurisdiction.
Collection and use of data are subject to the confidentiality
requirements in sections 300.560-300,576 of Subpart E.
SEC. 300.221 Confidentiality of personally identifiable information.
Each application must include policies and procedures which
insure that the criteria in Sections 300.560-300.574 of Subpart E
are met.
(20 U.S.C. 1414(a)(1)(B))
SEC. 300.222 Full educational opportunity goal; timetable.
Each application must:
(a) Include a goal of providing full educational opportunity to
all handicapped children, aged birth through 21, and
(b) Include a detailed timetable for accomplishing the goal.
(20 U.S.C. 1414(a)(1)(C)(D))
SEC. 300.223 Facilities, personnel, and services.
Each application must provide a description of the kind and
number of facilities, personnel, and services necessary to meet
the goal in Sec. 300.222.
(20 U.S.C. 1414(a)(1)(E))
SEC. 300.224 Personnel development.
Each application must include procedures for the implementation
and use of the comprehensive system of personnel development
established by the State educational agency under Sec. 300.140.
(20 U.S.C. 1414(a)(1)(C)(i))
SEC. 300.225 Priorities.
Each application must include priorities which meet the
requirements of Sections 300.320-300.324.
(20 U.S.C. 1414(a)(1)(C)(ii))
SEC. 300.226 Parent involvement.
Each application must include procedures to insure that, in
meeting the goal under Sec. 300.222, the local educational agency
makes provision for participation of and consultation with
parents or guardians of handicapped children.
(20 U.S.C. 1414(a)(1)(C)(iii))
SEC. 300.227 Participation in regular education programs.
(a) Each application must include procedures to insure that to
the maximum extent practicable, and consistent with Section
300.550-300.553 of Subpart E, the local educational agency
provides special services to enable handicapped children to
participate in regular educational programs.
(b) Each application must describe:
(1) The types of alternative placements that are available
for handicapped children, and
(2) The number of handicapped children within each disability
category who are served in each type of placement.
(20 U.S.C. 1414(a)(1)(C)(iv))
SEC. 300.228 [Reserved]
SEC. 300.229 Excess cost.
Each application must provide assurance satisfactory to the State
educational agency that the local educational agency uses funds
provided under Part B of the Act only for costs which exceed the
amount computed under Sec. 300.184 and which are directly
attributable to the education of handicapped children.
(20 U.S.C. 1414(a)(2)(B))
SEC. 300.230 Nonsupplanting.
(a) Each application must provide assurance satisfactory to the
State educational agency that the local educational agency
uses funds provided under Part B of the Act to supplement
and, to the extent practicable, increase the level of State
and local funds expended for the education of handicapped
children, and in no case to supplant those State and local
funds.
(b) To meet the requirement in paragraph (a) of this section:
(1) The total amount or average per capita amount of State
and local school funds budgeted by the local educational
agency for expenditures in the current fiscal year for
the education of handicapped children must be at least
equal to the total amount or average per capita amount of
State and local school funds actually expended for the
education of handicapped children in the most recent
preceding fiscal year for which the information is
available. Allowance may be made for:
(i) Decreases in enrollment of handicapped children; and
(ii) Unusually large amounts of funds expended for such
long-term purposes as the acquisition of equipment
and the construction of school facilities; and
(2) The local educational agency must not use Part B funds to
displace State or local funds for any particular cost.
(20 U.S.C. 1414(a)(2)(B))
Comment. Under statutes such as Title I of the Elementary and Secondary
Education Act of 1965, as amended, the requirement is to not supplant
funds the "would" have been expended if the Federal funds were not
available. The requirement under Part B, however, is to not supplant
funds which have been "expended." This use of the past tense suggests
that the funds referred to are those which the State and local agency
actually spent at some time before the use of the Part B funds.
Therefore, in judging compliance with this requirement, the Secretary
looks to see if Part B funds are used for any costs which were previously
paid for with State or local funds. The nonsupplanting requirement
prohibits a local educational agency from supplanting State and local
funds with Part B funds on either an aggregate basis or for a given
expenditure. This means that if an LEA spent $100,000 for special
education in FY 1977, it must budget at least $100,000 in FY 1978, unless
one of the conditions in Sec. 300.230(b)(1) applies. Whether a local
educational agency supplants with respect to a particular cost would
depend on the circumstances of the expenditure. For example, if a
teacher's salary has been switched from local funding to Part B funding,
this would appear to be supplanting. However, if that teacher was taking
over a different position (such as a resource room teacher, for example),
it would not be supplanting. Moreover, it might be important to consider
whether the particular action of a local educational agency led to an
increase in services for handicapped children over that which previously
existed. The intent of the requirement is to insure that Part B funds are
used to increase State and local efforts and are not used to take their
place. Compliance would be judged with this aim in mind. The supplanting
requirement is not intended to inhibit better services to handicapped
children.
SEC. 300.231 Comparable services.
(a) Each application must provide assurance satisfactory to the
State educational agency that the local educational agency
meets the requirements of this section.
(b) A local educational agency may not use funds under Part B of
this Act to provide services to handicapped children unless
the agency uses State and local funds to provide services to
those children which, taken as a whole, are at least
comparable to services provided to other handicapped children
in that local educational agency.
(c) Each local educational agency shall maintain records which
show that the agency meets the requirement in paragraph (b)
of this section.
(20 U.S.C. 1414(a)(2)(C))
Comment. Under the "comparability" requirement, if State and local funds
are used to provide certain services, those services must be provided
with State and local funds to all handicapped children in the local
educational agency who need them. Part B funds may then be used to
supplement existing services, or to provide additional services to meet
special needs. This of course, is subject to the other requirements of
the Act, including the priorities under Sections 300.320-300.324.
SEC. 300.232-300.234 [Reserved]
SEC> 300.235 Procedural safeguards.
Each application must provide assurance satisfactory to the State
educational agency that the local educational agency has
procedural safeguards which meet the requirements of Sections
300.500-300.514 of Subpart E.
(20 U.S.C. 1414(a)(7))
SEC. 300.238 Use of Part B funds.
Each application must describe how the local educational agency
will use the funds under Part B of the Act during the next school
year.
(20 U.S.C. 1414(a))
SEC. 300.239 [Reserved]
SEC. 300.240 Other Requirements.
Each local application must include additional procedures and
information which the State educational agency may require in
order to meet the State annual program plan requirements under
Sections 300.120-300.151.
(20 U.S.C. 1414(a)(6))
APPLICATION FROM SECRETARY OF
INTERIOR
SEC. 300.260 Submission of annual application; approval.
In order to receive payments under this part, the Secretary of
Interior shall submit an annual application which:
(a) Meets applicable requirements of section 614(a) of the Act;
(b) Includes monitoring procedures which are consistent with Sec.
300.601; and
(c) Includes other material as agreed to by the Secretary and the
Secretary of Interior.
(20 U.S.C. 1411(f))
SEC. 300.261 Public participation.
In development of the application for the Department of Interior,
the Secretary of Interior shall provide for public participation
consistent with Sections 300.280-300.284.
(20 U.S.C. 1411(f))
SEC. 300.262 Use of Part B funds.
(a) The Department of Interior may use five percent of its
payments in any fiscal year, or $200,000, whichever is
greater, for administrative costs in carrying out the
provisions of this part.
(b) The remainder of the payments to the Secretary of the
Interior in any fiscal year must be used in accordance with
the priorities under Sections 300.320-300.324 of Subpart C.
(20 U.S.C. 1411(f))
[42 FR 42476, Aug, 23 1977. Redesignated at 45 FR 77368, Nov. 21, 1980
and amended at 51 FR 19311, May 28, 1986]
SEC. 300.263 Applicable regulations.
The Secretary of the Interior shall comply with the requirements
under Subparts C, E, and F.
(20 U.S.C. 1411(f)(2))
PUBLIC PARTICIPATION
SEC. 300.280 Public hearings before adopting an annual program plan.
(a) Prior to its adoption of an annual program plan, the State
educational agency shall:
(1) Make the plan available to the general public.
(2) Hold public hearings, and
(3) Provide an opportunity for comment by the general public
on the plan.
(20 U.S.C. 1412(7))
SEC. 300.281 Notice.
(a) The State educational agency shall provide notice to the
general public of the public hearings.
(b) The notice must be in sufficient detail to inform the public
about:
(1) The purpose and scope of the annual program plan and its
relation to Part B of the Education of the Handicapped
Act,
(2) The availability of the annual program plan,
(3) The date, time, and location of each public hearing,
(4) The procedures for submitting written comments about the
plan, and
(5) The timetable for developing the final plan and
submitting it to the Secretary for approval.
(c) The notice must be published or announced:
(1) In newspapers or other media, or both, with circulation
adequate to notify the general public about the hearings,
and
(2) Enough in advance of the date of the hearings to afford
interested parties throughout the State a reasonable
opportunity to participate.
(20 U.S.C. 1412(7))
SEC. 300.282 Opportunity to participate; comment period.
(a) The State educational agency shall conduct the public
hearings at times and places that afford interested parties
throughout the State a reasonable opportunity to participate.
(b) The plan must be available for comment for a period of at
least 30 days following the date of the notice under Sec.
300.281.
(20 U.S.C. 1412(7))
SEC. 300.283 Review of public comments before adopting plan.
Before adopting its annual program plan, the State educational
agency shall:
(a) Review and consider all public comments, and
(b) Make any necessary modifications in the plan.
(20 U.S.C. 1412(7))
SEC. 300.284 Publication and availability of approved plan.
After the Secretary approves an annual program plan, the State
educational agency shall give notice in newspapers or other
media, or both, that the plan is approved. The notice must name
places throughout the State where the plan is available for
access by any interested person.
(20 U.S.C. 1412(7))
Subpart C -- Services
FREE APPROPRIATE PUBLIC EDUCATION
SEC. 300.300 Timeliness for free appropriate public education.
(a) General. Each State shall insure that free appropriate public
education that is available to all handicapped children aged
three through eighteen with the State not later than
September 1, 1978, and to all handicapped children aged three
through twenty-one within the State not later than
September 1, 1980.
(b) Age ranges 3-5 and 18-21. This paragraph provides rules for
applying the requirement in paragraph (a) of this section to
handicapped children aged three, four, five, eighteen,
nineteen, twenty, and twenty-one:
(1) If State law or a court order requires the State to
provide education for handicapped children in any
disability category in any of these age groups, the State
must make a free appropriate public education available
to all handicapped children of the same age who have
disability.
(2) If a public agency provides education to non-handicapped
children in any of these age groups, it must make a free
appropriate public education available to at least a
proportionate number of handicapped children of the same
age.
(3) If a public agency provides education to 50 percent or
more of its handicapped children in any disability
category in any of these age groups, it must make a free
appropriate public education available to all of its
handicapped children of the same age who have that
disability.
(4) If a public agency provides education to a handicapped
child in any of these age groups, it must make a free
appropriate public education available to that child and
provide that child and his or her parents all of the
rights under Part B of the Act and this part.
(5) A State is not required to make a free appropriate public
education available to a handicapped child in one of
these age groups if:
(i) State law expressly prohibits, or does not authorize,
the expenditure of public funds to provide education
to nonhandicapped children in that age group; or
(ii) The requirement is inconsistent with a court order
which governs the provision of free public education
to handicapped children in that State.
(20 U.S.C. 1412(2)(B); Sen. Rept. No. 94-168 p. 19 (1975))
Comment.
1. The requirement to make free appropriate public education available
applies to all handicapped children within the State who are in the
age ranges required under Sec. 300.300 and who need special education
and related services. This includes handicapped children already in
school and children with less severe handicaps. who are not covered
under the priorities under Sec. 300.321.
2. In order to be in compliance with Sec. 300.300, each State must insure
that the requirement to identify, locate, and evaluate all handicapped
children is fully implemented by public agencies throughout the State.
This means that before September 1, 1978, every child who has been
referred or is on a waiting list for evaluation (including children in
school as well as those not receiving an education) must be evaluated
in accordance with Sections 300.530-300.533 of Subpart E. If, as a
result of the evaluation, it is determined that a child needs special
education and related services, an individualized education program
must be developed for the child by September 1, 1978, and all other
applicable requirements of this part must be met.
3. The requirement to identify, locate, and evaluate handicapped children
(commonly referred to as the "child find system") was enacted on
August 21, 1974, under Pub. L. 93-380. While each State needed time to
establish and implement its child find system, the four year period
between August 21, 1974, and September 1, 1978, is considered to be
sufficient to insure that the system is fully operational and
effective on a Statewide basis.
Under the statute, the age range for the child find requirement (0-21)
is greater than the mandated age range for providing free appropriate
public education (FAPE). One reason for the broader age requirement
under "child find" is to enable States to be aware of and plan for
younger children who will require special education and related
services. It also ties in with the full educational opportunity goal
requirement, which has the same age range as child find. Moreover,
while a State is not required to provide "FAPE" to handicapped
children below the age ranges mandated under Sec. 300.300, the State
may, at its discretion, extend services to those children, subject to
the requirements on priorities under Sections 300.320-300.324.
SEC. 300.301 Free appropriate public education -- methods and payments.
(a) Each State may use whatever State, local, Federal, and
private sources of support are available in the State to meet
the requirements of this part. For example, when it is
necessary to place a handicapped child in a residential
facility, a State could use joint agreements between the
agencies involved for sharing the cost of that placement.
(b) Nothing in this part relieves an insurer or similar third
party from an otherwise valid obligation to provide or pay
for services provided to a handicapped child.
(20 U.S.C. 1401 (18); 1412(2)(B))
SEC. 300.302 Residential placement.
If placement in a public or private residential program is
necessary to provide special education and related services to a
handicapped child, the program, including non-medical care and
room and board, must be at no cost to the parents of the child.
(20 U.S.C. 1412(2)(B); 1413(a)(4)(B))
SEC. 300.303 Proper functioning of hearing aids.
Each public agency shall insure that the hearing aids worn by
deaf and hard of hearing children in school are functioning
properly.
(20 U.S.C. 1412(2)(B))
Comment. The report of the House of Representatives on the 1978
appropriation bill includes the following statement regarding hearing
aids:
In its report on the 1976 appropriation bill the Committee expressed
concern about the condition of hearing aids worn by children in public
schools. A study done at the Committee's direction by the Bureau of
Education for the Handicapped reveals that up to one-third of the hearing
aids are malfunctioning. Obviously, the Committee expects the Office of
Education will ensure that hearing impaired school children are receiving
adequate professional assessment, follow-up and services.
(House Report No. 95-381, p. 67 (1977))
SEC. 300.304 Full educational opportunity goal.
(a) Each State educational agency shall insure that each public
agency establishes and implements a goal of providing full
educational opportunity to all handicapped children in the
area served by the public agency.
(b) Subject to the priority requirements under Sections 300.320-
300.324, a State or local educational agency may use Part B
funds to provide facilities, personnel, and services
necessary to meet the full educational opportunity goal.
(20 U.S.C. 1412(2)(A); 1414(a)(1)(C))
Comment. In meeting the full educational opportunity goal, the Congress
also encouraged local educational agencies to include artistic and
cultural activities in programs supported under this part, subject to the
priority requirements under Sections 300.320-300.324. This point is
addressed in the following statements from the Senate Report on Pub. L.
94-142.
The use of the arts as a teaching tool for the handicapped has long been
recognized as a viable, effective way not only of teaching special
skills, but also of reaching youngsters who had otherwise been
unteachable. The Committee envisions that programs under this bill could
well include an arts component and, indeed, urges that local educational
agencies include the arts in programs for the handicapped funded under
this Act. Such a program could cover both appreciation of the arts by the
handicapped youngsters, and the utilization of the arts as a teaching
tool per se.
Museum settings have often been another effective tool for teaching of
handicapped children. For example, the Brooklyn Museum has been a leader
in developing exhibits utilizing the heightened tactile sensory skill of
the blind, therefore, in light of the national policy concerning the use
of museums in federally supported education programs enunciated in the
Education Amendments of 1974, the Committee also urges local educational
agencies to include museums in programs for the handicapped funded under
this Act.
(Senate Report No. 94-168, p. 13 (1975))
SEC. 300.305 Program options.
Each public agency shall take steps to insure that its
handicapped children have available to them the variety of
educational programs and services available to non-handicapped
children in the area served by the agency, including art, music,
industrial arts, consumer and homemaking education, and
vocational education.
(20 U.S.C. 1412(2)(A); 1414(a)(1)(C))
Comment. The above list of program options is not exhaustive, and could
include any program or activity in which nonhandicapped students
participate. Moreover, vocational education programs must be specially
designed if necessary to enable a handicapped student to benefits fully
from those programs; and the set-aside funds under the Vocational
Education Act of 1963, as amended by Pub. L. 94-482, may be used for this
purpose. Part B funds may also be used, subject to the priority
requirements under Section 300.320-300.324.
SEC. 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic
and extracurricular services and activities in such manner as
is necessary to afford handicapped children an equal
opportunity for participation in those services and
activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation,
health services, recreational activities, special interest
groups or clubs sponsored by the public agency, referrals to
agencies which provide assistance to handicapped persons, and
employment of students, including both employment by the
public agency and assistance in making outside employment
available.
(20. U.S.C. 1412(2)(A); 1414(a)(1)(C))
SEC. 300.307 Physical education.
(a) General. Physical education services, specially designed if
necessary, must be made available to every handicapped child
receiving a free appropriate public education.
(b) Regular physical education. Each handicapped child must be
afforded the opportunity to participate in the regular
physical education program available to non-handicapped
children unless:
(1) The child is enrolled full time in a separate facility;
or
(2) The child needs specially designed physical education, as
prescribed in the child's individualized education
program.
(c) Special physical education. If specially designed physical
education is prescribed in a child's individualized
education program, the public agency responsible for the
education of that child shall provide the services directly,
or make arrangements for it to be provided through other
public or private programs.
(d) Education in separate facilities.
The public agency responsible for the education of a
handicapped child who is enrolled in a separate facility
shall insure that the child receives appropriate physical
education services in compliance with paragraphs (a) and (c)
of this section.
(20 U.S.C. 1401(16); 1412(5)(B); 1414(a)(6))
Comment. The Report of the House of Representatives on Pub. L. 94-142
includes the following statement regarding physical education:
Special education as set forth in the Committee bill includes instruction
in physical education which is provided as a matter of course to all non-
handicapped children enrolled in public elementary and secondary schools.
The Committee is concerned that although these services are available to
and required of all children in our school systems, they are often viewed
as a luxury for handicapped children.
* * * * * *
The Committee expects the Commissioner of Education to take whatever
action is necessary to assure that physical education services are
available to all handicapped children, and has specifically included
physical education within the definition of special education to make
clear that the Committee expects such services, specially designed where
necessary, to be provided as an integral part of the educational program
of every handicapped child.
(House Report No. 94-332, p.9 (1975))
PRIORITIES IN THE USE OF PART B
FUNDS
SEC. 300.320 Definitions of "first priority children" and "second priority
children."
For the purpose of Sections 300.321-300.324, the term:
(a) "First priority children" means handicapped children who:
(1) Are in an age group for which the State must make
available free appropriate public education under Sec.
300.300; and
(2) Are not receiving any education.
(b) "Second priority children" means handicapped children, within
each disability, with the most severe handicaps who are
receiving an inadequate education.
(20 U.S.C. 1412(3))
Comment. After September 1, 1978, there should be no second priority
children, since States must insure, as a condition of receiving Part B
funds for fiscal year 1979, that all handicapped children will have
available a free appropriate public education by that date.
NOTE: The term "free appropriate public education," as defined in Sec.
300.4 of Subpart A, means "special education and related services which
* * * are provided in conformity with an individualized education program
* * *."
New "First priority children" will continue to be found by the State
after September 1, 1978 through on-going efforts to identify, locate, and
evaluate all handicapped children.
SEC. 300.321 Priorities.
(a) Each State and local educational agency shall use funds
provided under Part B or the Act in the following order of
priorities:
(1) To provide free appropriate public education to first
priority children, including the identification,
location, and evaluation of first priority children.
(2) To provide free appropriate public education to second
priority children, including the identification,
location, and evaluation of second priority children.
(3) To meet the other requirements in this part.
(b) The requirements of paragraph (a) of this section do not
apply to funds which the State uses for administration under
Sec. 300.620.
(20 U.S.C. 1411(b)(1)(B), (b)(2)(B), (c)(1)(B), (c)(2)(A)(i))
(c) State and local educational agencies may not use funds under
Part B of the Act for preservice training.
(20 U.S.C. 1413(a)(3); Senate Report No. 94-168, p. 34 (1975))
Comment. Note that a State educational agency as well as local
educational agencies must use Part B funds (except the portion used for
State administration) for the priorities. A State may have to set aside a
portion of its Part B allotment to be able to serve newly identified
first priority children.
After September 1, 1978, Part B funds may be used:
(1) To continue supporting child identification, location, and evaluation
activities;
(2) To provide free appropriate public education to newly identified
first priority children;
(3) To meet the full educational opportunities goal required under Sec.
300.304, including employing additional personnel and providing
inservice training, in order to increase the level, intensity and
quality of services provided to individual handicapped children; and
(4) To meet the other requirements of Part B.
SEC. 300.322 First priority children -- school year 1977 - 1978.
(a) In school year 1977 - 1978, if a major component of a first
priority child's proposed educational program is not
available (for example, there is no qualified teacher), the
public agency responsible for the child's education shall:
(1) Provide an interim program of services for the child; and
(2) Develop an individualized education program for full
implementation no later than September 1, 1978.
(b) A local educational agency may use Part B funds for training
or other support services in school year 1977 - 1978 only if
all of its first priority children have available to them at
least an interim program of services.
(c) A State educational agency may use Part B funds for training
of other support services in school year 1977 - 1978 only if
all first priority children in the State have available to
them at least an interim program of services.
(20 U.S.C. 1411 (b), (c))
Comment. This provision is intended to make clear that a State or local
educational agency may not delay placing a previously unserved (first
priority) child until it has, for example, implemented an inservice
training program. The child must be placed. After the child is in at
least an interim program, the State or local educational agency may use
Part B funds for training or other support services needed to provide
that child with a free appropriate public education.
SEC. 300.323 Services to other children.
If a State or a local educational agency is providing free
appropriate public education to all of its first priority
children, that State or agency may use funds provided under Part
B of the Act:
(a) To provide free appropriate public education to handicapped
children who are not receiving any education and who are in
the age groups not covered under Sec. 300.300 in that State;
or
(b) To provide free appropriate public education to second
priority children; or
(c) Both.
(20 U.S.C. 1411 (b)(1)(B), (b)(2)(B), (c)(2)(A)(ii))
SEC. 300.324 Application of local educational agency to use funds for the
second priority.
A local educational agency may use funds provided under Part B of
the Act for second priority children, if it provides assurance
satisfactory to the State educational agency in its application
(or an amendment to its application):
(a) That all first priority children have a free appropriate
public education available to them;
(b) That the local educational agency has a system for the
identification, location, and evaluation of handicapped
children, as described in its application; and
(c) That whenever a first priority child is identified, located,
and evaluated, the local educational agency makes available a
free appropriate public education to the child.
(20 U.S.C. 1411 (b)(1)(B), (c)(1)(B); 1414(a)(1)(C)(ii))
INDIVIDUALIZED EDUCATION PROGRAMS
SEC. 300.340 Definition.
As used in this part, the term "individualized education program:
means a written statement for a handicapped child that is
developed and implemented in accordance with Sections 300.341-
300.349.
(20 U.S.C. 1401(19))
SEC. 300.341 State educational agency responsibility.
(a) Public agencies. The State educational agency shall insure
that each public agency develops and implements an
individualized education program for each of its handicapped
children.
(b) Private schools and facilities. The State educational agency
shall insure that an individualized education program is
developed and implemented for each handicapped child who:
(1) Is placed in or referred to a private school or facility
by a public agency; or
(2) Is enrolled in a parochial or other private school and
receives special education or related services from a
public agency.
(20 U.S.C. 1412(4), (6); 1413(a)(4)))
Comment. This section applies to all public agencies, including other
State agencies (e.g., departments of mental health and welfare), which
provide special education to a handicapped child either directly, by
contract or through other arrangements. Thus, if a State welfare agency
contracts with a private school or facility to provide special education
to a handicapped child, that agency would be responsible for insuring
that an individualized education program is developed for the child.
SEC. 300.342 When individualized education programs must be in effect.
(a) On October 1, 1977, and at the beginning of each school year
thereafter, each public agency shall have in effect an
individualized education program for every handicapped child
who is receiving special education from that agency.
(b) An individualized education program must:
(1) Be in effect before special education and related
services are provided to a child; and
(2) Be implemented as soon as possible following the meetings
under Sec. 300.343.
(20 U.S.C. 1412 (2)(B), (4), (6); 1414(a)(5); Pub. L. 94-142, Sec. 8(c)
(1975))
Comment. Under paragraph (b)(2), it is expected that a handicapped
child's individualized education program (IEP) will be implemented
immediately following the meeting under Sec. 300.343. An exception to
this would be (1) when the meetings occur during the summer or a vacation
period, or (2) where there are circumstances which require a short delay
(e.g., working out transportation arrangements). However, there can be no
undue delay in providing special education and related services to the
child.
SEC. 300.343 Meetings.
(a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing,
and revising a handicapped child's individualized education
program.
(b) Handicapped children currently served. If the public agency
has determined that a handicapped child will receive special
education during school year 1977-1978, a meeting must be
held early enough to insure that an individualized education
program is developed by October 1, 1977.
(c) Other handicapped children. For a handicapped child who is
not included under paragraph (b) of this action, a meeting
must be held within thirty calendar days of a determination
that the child needs special education and related services.
(d) Review. Each public agency shall initiate and conduct
meetings to periodically review each child's individualized
education program and if appropriate revise its provisions. A
meeting must be held for this purpose at least once a year.
(20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5))
Comment. The dates on which agencies must have individualized education
programs (IEPs) in effect are specified in Sec. 300.342 (October 1, 1977,
and the beginning of each school year thereafter). However, except for
new handicapped children (i.e., those evaluated and determined to need
special education after October 1, 1977), the timing of meetings to
develop, review, and revise IEPs is left to the discretion of each
agency.
In order to have IEPs in effect by the dates in Sec. 300.342, agencies
could hold meetings at the end of the school year or during the summer
preceding those dates. In meeting the October 1, 1977 timeline, meetings
could be conducted up through the October 1 date. Thereafter, meetings
may be held any time throughout the year, as long as IEPs are in effect
at the beginning of each school year.
The statute requires agencies to hold a meeting at least once a year in
order to review, and if appropriate revise, each child's IEP. The timing
of those meetings could be on the anniversary date of the last IEP
meeting on the child, but this is left to the discretion of the agency.
SEC. 300.344 Participants in meetings.
(a) General. The public agency shall insure that each meeting
includes the following participants:
(1) A representative of the public agency, other than the
child's teacher, who is qualified to provide, or
supervise the provision of, special education.
(2) The child's teacher.
(3) One or both of the child's parents, subject to Sec.
300.345.
(4) The child, where appropriate.
(5) Other individuals at the discretion of the parent or
agency.
(b) Evaluation personnel. For a handicapped child who has been
evaluated for the first time, the public shall insure:
(1) That a member of the evaluation team participates in the
meeting; or
(2) That the representative of the public agency, the child's
teacher, or some other person is present at the meeting,
who is knowledgeable about the evaluation procedures used
with the child and is familiar with the results of the
evaluation.
(20 U.S.C. 1401(19); 1412 (2)(B), (4), (6); 1414(a)(5))
Comment.
1. In deciding which teacher will participate in meetings on a child's
individualized education program, the agency may wish to consider the
following possibilities:
(a) For a handicapped child who is receiving special education, the
"teacher" could be the child's special education teacher. If the
child's handicap is a speech impairment, the "teacher" could be
the speech-language pathologist.
(b) For a handicapped child who is being considered for placement in
special education, the "teacher" could be the child's regular
teacher, or a teacher qualified to provide education in the type
of program in which the child may be placed, or both.
(c) If the child is not in school or has more than one teacher, the
agency may designate which teacher will participate in the
meeting.
2. Either the teacher or the agency representative should be qualified in
the area of the child's suspected disability.
3. For a child whose primary handicap is a speech impairment, the
evaluation personnel participating under paragraph (b)(1) of this
section would normally be the speech-language pathologist.
SEC. 300.345 Parent participation.
(a) Each public agency shall take steps to insure that one or
both of the parents of the handicapped child are present at
each meeting or are afforded the opportunity to participate,
including:
(1) Notifying parents of the meeting early enough to insure
that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and
place.
(b) The notice under paragraph (a)(1) of this section must
indicate the purpose, time, and location of the meeting, and
who will be in attendance.
(c) If neither parent can attend, the public agency shall use
other methods to insure parent participation, including
individual or conference telephone calls.
(d) A meeting may be conducted without a parent in attendance if
the public agency is unable to convince the parents that they
should attend. In this case the public agency must have a
record of its agreed on time and place such as:
(1) Detailed records of telephone calls made or attempted and
the results of those calls.
(2) Copies of correspondence sent to the parents and any
responses received, and
(3) Detailed records of visits made to the parent's home or
place of employment and the results of those visits.
(e) The public agency shall take whatever action is necessary to
insure that the parent understands the proceedings at a
meeting, including arranging for an interpreter for parents
who are deaf or whose native language is other than English.
(f) The public agency shall give the parent, on request, a copy
of the individualized education program.
(20 U.S.C. 1401(19); 1412 (2)(B), (4), (6); 1414(a)(5))
Comment. The notice in paragraph (a) could also inform parents that they
may bring other people to the meeting. As indicated in paragraph (c), the
procedure used to notify parents (whether oral or written or both) is
left to the discretion of the agency, but the agency must keep a record
of its efforts to contact parents.
SEC. 300.346 Content of individualized education program.
The individualized education program for each child must include:
(a) A statement of the child's present levels of educational
performance;
(b) A statement of annual goals, including short term
instructional objectives;
(c) A statement of the specific special education and related
services to be provided to the child, and the extent to which
the child will be able to participate in regular educational
programs;
(d) The projected dates for initiation of services and the
anticipated duration of the services; and
(e) Appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis,
whether the short term instructional objectives are being
achieved.
(20 U.S.C. 1401(19); 1412 (2)(B), (4), (6); 1414(a)(5); Senate Report No.
94-168, p. 11 (1975))
SEC. 300.347 Private school placements.
(a) Developing individualized education programs.
(1) Before a public agency places a handicapped child in, or
refers a child to, a private school or facility, the
agency shall initiate and conduct a meeting to develop an
individualized education program for the child in
accordance with Sec. 300.343.
(2) The agency shall insure that a representative of the
private school facility attends the meeting. If the
representative cannot attend, the agency shall use other
methods to insure participation by the private school or
facility, including individual or conference telephone
calls.
(3) The public agency shall also develop an individualized
educational program for each handicapped child who was
placed in a private school or facility by the agency
before the effective date of these regulations.
(b) Reviewing and revising individualized education programs.
(1) After a handicapped child enters a private school or
facility, any meetings to review and revise the child's
individualized education program may be initiated and
conducted by the private school facility at the
discretion of the public agency.
(2) If the private school or facility initiates and conducts
these meetings, the public agency representative:
(i) Are involved in any decision about the child's
individualized education program; and
(ii) Agree to any proposed changes in the program before
those changes are implemented.
(c) Responsibility. Even if a private school or facility
implements child's individualized education program,
responsibility for compliance with this part remains with the
public agency and the State educational agency.
(20 U.S.C. 1413(a)(4)(B))
SEC. 300.348 Handicapped children in parochial or other private schools.
If a handicapped child is enrolled in a parochial or other
private school and receives special education or related services
from a public agency shall:
(a) Initiate and conduct meetings to develop, review, and revise
and individualized education program for the child, in
accordance with Sec. 300.343; and
(b) Insure that a representative of the parochial or other
private school attends each meeting. In the representative
cannot attend, the agency shall use other methods to insure
participation by the private school, including individual
conference telephone calls.
(20 U.S.C. 1413(a)(4)(A))
SEC. 300.349 Individualized education program -- accountability.
Each public agency must provide special education and related
services to a handicapped child in accordance with an
individualized education program. However, Part B of the Act does
not require that any agency, teacher, or other person be held
accountable if a child does not achieve goals and objectives.
(20 U.S.C. 1412(2)(B); 1414(a) (5), (6); Cong. Rec. at H7152 (daily ed.,
July 21, 1975))
Comment. This section is intended to relieve concerns that the
individualized education program constitutes a guarantee by the public
agency and the teacher that a child will section does not relieve
agencies and teachers from making good faith efforts to assist the child
in achieving the objectives and goals listed in the individualized
education program. Further, the section does not limit a parent's right
to complain and ask for revisions of the child's program, or to invoke
due process procedures, if the parent feels that these efforts are not
being made.
DIRECT SERVICE BY THE STATE
EDUCATIONAL AGENCY
SEC. 300-360 Use of local educational agency allocation for direct services.
(a) A State educational agency may not distribute funds to a
local educational agency, and shall use those funds to insure
the provision of a free appropriate public education to
handicapped children residing in the area served by the local
educational agency, in any fiscal year:
(1) Is entitled to less than $7,500 for that fiscal year
(beginning with fiscal year 1979);
(2) Does not submit an application that meets the
requirements of Sections 300.220-300.240;
(3) Is unable or unwilling to establish and maintain programs
of free appropriate public education;
(4) Is unable or unwilling to be consolidated with other
local educational agencies in order to establish and
maintain those programs; or
(5) Has one or more handicapped children who can best be
served by a regional or State center designed to meet the
needs of those children.
(b) In meeting the requirements of paragraph (a) of this section,
the State educational agency may provide special education
and related services directly, by contract, or through other
arrangements.
(c) The excess cost requirements under Sections 300.182-300.186
do not apply to the State educational agency.
(20 U.S.C. 1411(c)(4); 1413(b); 1414(d))
Comment. Section 300.360 is a combination of three provisions in the
statute (Sections 611(c)(4), 613(b), and 614(d)). This section focuses
mainly on the State's administration and use of local entitlements under
Part B.
The State educational agency, as a recipient of Part B funds is
responsible for insuring that all public agencies in the State comply
with the provisions of the Act, regardless of whethwe they receive Part B
funds. If a local educational agency elects not to apply for its Part B
entitlement, the State would be required to use those funds to insure
that a free appropriate public education (FAPE) is made available to
children residing in the area served by that local agency. However, if
the local entitlement is not sufficient for this purpose, assitinal State
or local funds would have to be expended in order to insure that "FAPE"
and the other requirements of the Act are met.
Moreover, if the local educational agency id the recipient of any other
Federal funds, it would have to be in compliance with Subpart D of the
regulations for section 504 of the Rehabilitation Act of 1973 (34 CFR
Part 104). It should be noted that the term "FAPE" has different meanings
under Part B and section 504. For example, under Part B, "FAPE" is a
statutory term which requires special education and related services to
be provided in accordance with an individualized education program (IEP).
However, under section 504, each recipient must provide an education
which includes services that are : designed to meet individual
educational needs of handicapped persons as adequately as the needs of
nonhandicapped persons are met * * *" Those regulations state that
implementation of an IEP, in accordance with Part B, is one means of
meeting the "FAPE" requirement.
SEC. 300.361 Nature and location of services.
The State educational agency may provide special education and
related services under Sec. 300.360(a) in the manner and at the
location it considers appropriate. However, the manner in which
the education and services are provided must be consistent with
the requirements of this part (including the least restrictive
environment provisions in Sections 300.550-300.556 of Subpart E).
(20 U.S.C. 1414(d))
SEC. 300.370 Use of State educational agency allocation for direct and support
services.
(a) The State shall use the portion of its allocation it does not
use for administration to provide support services and direct
services in accordance with the priority requirements under
Sections 300.320-300.324.
(b) For the purposes of paragraph (a) of this section:
(1) "Direct services" means services provided to a
handicapped child by the State directly, by contract, or
through other arrangements.
(2) "Support services" includes implementing the
comprehensive system of personnel development under
Sections 300.380-300.388, recruitment and training of
hearing officers and surrogate parents, and public
information and parent training activities relating to a
free appropriate public education for handicapped
children.
(20 U.S.C. 1411(b)(2), (c)(2))
SEC. 300.371 State matching.
Beginning with the period July 1, 1978 - June 30, 1979, and for
each following year, the funds that a State uses for direct and
support services under Sec. 300.370 must be matched on a program
basis by the State from funds other than Federal funds. This
requirement does not apply to funds that the State uses under
Sec. 300.360.
(20 U.S.C. 1411(c)(2)(B), (c)(4)(B))
Comment. The requirement in Sec. 300.371 would be satisfied if the State
can document that amount of State can document that the amount of State
funds expended for each major program area (e.g., the comprehensive
system of personnel development) is at least equal to the expenditure of
Federal funds in that program area.
SEC. 300.372 Applicability of nonsupplanting requirement.
Beginning with funds appropriated for Fiscal Year 1979 and for
each following Fiscal Year, the requirement in section 613(a)(9)
of the Act, which prohibits supplanting with Federal funds, does
not apply to funds that the State uses from its allocation under
Sec. 300.706(a) of Subpart G for administration, direct
services, or support services.
(20 U.S.C. 1411(c)(3))
COMPREHENSIVE SYSTEM OF PERSONNEL
DEVELOPMENT
SEC. 300.380 Each annual program plan must include a description of programs
and procedures for the development and implementation of a
comprehensive system of personnel development which includes:
(a) The inservice training of general and special educational
instructional, related services, and support personnel;
(b) Procedures to insure that all personnel necessary to carry
out the purposes of the Act are qualified (as defined in Sec.
300.12 of Subpart A) and that activities sufficient to carry
out this personnel development plan are scheduled; and
(c) Effective procedures for acquiring and disseminating to
teachers and administrators of programs for handicapped
children significant information derived from educational
research, demonstration, and similar projects, and for
adopting, where appropriate, promising educational practices
and materials developed through those projects.
(20 U.S.C. 1413(a)(3))
SEC. 300.381 Participation of other agencies and institutions.
(a) The State educational agency must insure that all public and
private institutions of higher education, and other agencies
and organizations (including representatives of handicapped,
parent, and other advocacy organizations) in the State which
have an opportunity to participate fully in the development,
review, and annual updating of the comprehensive system of
personnel development.
(b) The annual program plan must describe the nature and extent
of participation under paragraph (a) of this section and must
describe responsibilities of the State educational agency,
local educational agencies, public and private institutions
of higher education, and other agencies:
(1) With respect to the comprehensive system as a whole, and
(2) With respect to the personnel development plan under Sec.
300.383
(20 U.S.C. 1412(7)(A); 1413(a)(3))
SEC. 300.382 Inservices training.
(a) As used in this section, "inservices training" means any
training other than that received by an individual in a full-
time program which leads to a degree.
(b) Each annual program plan must provide that the State
educational agency:
(1) Conducts an annual needs assessment to determine if a
sufficient number of qualified personnel are available in
the State; and
(2) Initiates inservice personnel development programs based
on the assessed needs of State-wide significance related
to the implementation of the Act.
(c) Each annual program plan must include the results of the
needs assessment under paragraph (b)(1) of this section,
broken out by need for new personnel and need for retrained
personnel.
(d) The State educational agency may enter into contracts with
institutions of higher education, local educational agencies
or other advocacy organizations (which may include parent,
handicapped, or other advocacy organizations), to carry out:
(1) Experimental or innovative personnel development
programs;
(2) Development or modification of instructional materials;
and
(3) Dissemination of significant information derived from
educational research and demonstration projects.
(e) Each annual program plan must provide that the State
educational agency insures that ongoing inservice training
programs are available to all personnel who are engaged in
the education of handicapped children, and that these
programs include:
(1) The use of incentives which insure participation by
teachers (such as released time, payment for
participation, options for academic credit, salary step
credit, certification renewal, or updating professional
skills);
(2) The involvement of local staff; and
(3) The use of innovative practices which have been found to
be effective.
(f) Each annual program plan must:
(1) Describe the process used in determining the inservice
training needs of personnel engaged in the education of
handicapped children;
(2) Identify the areas in which training is needed (such as
individualized education programs, non-discriminatory
testing, least restrictive environment, procedural
safeguards, and surrogate parents);
(3) Specify the groups requiring training (such as special
teachers, regular teachers, teachers, administrators,
psychologists, speech-language pathologists,
audiologists, physical education teachers, therapeutic
recreation specialists, physical therapists, occupational
therapists, medical personnel, parents, volunteers,
hearing officers, and surrogate parents);
(4) Describe the content and nature of training for each area
under paragraph (f)(2) of this section;
(5) Describe how the training will be provided in terms of
(i) geographical scope (such as Statewide, regional, or
local), and
(ii) Staff training source (such as college and university
staffs, State and local educational agency personnel,
and non-agency personnel);
(6) Specify:
(i) The funding sources to be used, and
(ii) The time frame for providing it; and
(7) Specify procedures for effective evaluation of the extent
to which program objectives are met.
(20 U.S.C. 1413(a)(3))
SEC. 300.383 Personnel development plan.
Each annual program plan must:
(a) Include a personnel development plan which provides a
structure for personnel planning and focuses on perservice
and inservice education needs:
(b) Describe the results of the needs assessment under
Sec. 300.382
(c) Identify the target populations for personnel development,
including general education and special education
instructional and administrative personnel, support
personnel, and other personnel (such as paraprofessionals,
parents, surrogate parents, and volunteers).
(20 U.S.C. 1413(a)(3))
SEC. 300.384 Dissemination.
(a) Each annual program plan must include a description of the
State's procedures for acquiring, reviewing, and
disseminating to general and special educational
instructional and support personnel, administrators of
programs for handicapped children, and other interested
agencies and organizations (including parent, handicapped,
and other advocacy organizations) significant information and
promising practices derived from educational research,
demonstration, and other projects.
(b) Dissemination includes:
(1) Making those personnel, administrators, agencies, and
organizations aware of information and practices;
(2) Training designed to enable the establishment of
innovative programs and practices targeted on identified
local needs; and
(3) Use of instructional materials and other media for
personnel development and instructional programming.
(20 U.S.C. 1413(a)(3))
SEC. 300.385 Adoption of educational practices.
(a) Each annual program plan must provide for a statewide system
designed to adopt, where appropriate, promising educational
practices and materials proven effective through research and
demonstration.
(b) Each annual program plan must provide for thorough
reassessment of educational practices used in the State.
(c) Each annual program plan must provide for the identification
of State, local, and regional resources (human and material)
which will assist in meeting the State's personnel
preparation needs.
(20 U.S.C. 1413(a)(3))
SEC. 300.386 [Reserved]
SEC. 300.387 Technical assistance to local educational agencies.
Each annual program plan must include a description of technical
assistance that the State educational agency gives local
educational agencies in their implementation of the State's
comprehensive system of personnel development.
(20 U.S.C. 1413(a)(3))
Subpart D -- Private Schools
HANDICAPPED CHILDREN IN PRIVATE SCHOOLS
PLACED OR REFERRED BY PUBLIC AGENCIES
SEC. 300.400 Applicability of Sections 300.401-300.403.
Sections 300.401-300.403 apply only to handicapped children who
are or have been placed in or referred to a private school or
facility by a public agency as a means of providing special
education and related services.
(20 U.S.C. 1413(a)(4)(B))
SEC. 300.401 Responsibility of State educational agency.
Each State educational agency shall insure that a handicapped
child who is placed in or referred to a private school or
facility by a public agency:
(a) Is provided special education and related services:
(1) In conformance with an individualized education program
which meets the requirements under Sections 300.340-
300.349 of Subpart C;
(2) At no cost to the parents; and
(3) At a school or facility which meets the standards that
apply to State and local educational agencies (including
the requirements in this part);
(b) Has all of the rights of handicapped child who is served by a
public agency.
(20 U.S.C. 1413(a)(4)(B))
SEC. 300.402 Implementation by State educational agency.
In implementing Sec. 300.401, the State educational agency shall:
(a) Monitor compliance through procedures such as written
reports, onsite visits, and parent questionnaires;
(b) Disseminate copies of applicable standards to each private
school and facility to which a public agency has referred or
placed a handicapped child; and
(c) Provide an opportunity for those private schools and
facilities to participate in the development and revision of
State standards which apply to them.
(20 U.S.C. 1413(a)(4)(B))
SEC. 300.403 Placement of children by parents.
(a) If a handicapped child has available free appropriate public
education and the parents choose to place the child in a
private school or facility, the public agency is not required
by this part to pay for the child's education at the private
school or facility. However, the public agency shall make
services available to the child as provided under Sections
300.450-300.460.
(b) Disagreements between a parent and a public agency regarding
the availability of a program appropriate for the child, and
the question of financial responsibility, are subject to the
due process procedures under Sections 300.500-300.514 of
Subpart E.
(20 U.S.C. 1412 (2)(B); 1415)
HANDICAPPED CHILDREN IN PRIVATE SCHOOLS
NOT PLACED OR REFERRED BY PUBLIC AGENCIES
SEC. 300.450 Definition of "private school handicapped children."
As used in this part, "private school handicapped children" means
handicapped children enrolled in private schools or facilities
other than handicapped children covered under Sections 300.400-
300.402.
(20 U.S.C. 1413(a)(4)(A))
[49 FR 48526, Dec. 12, 1984]
SEC. 300.451 State educational agency responsibility.
The State educational agency shall insure that --
(a) To the extent consistent with their number and location in
the State, provision is made for the participation of private
school handicapped children in the program assisted or
carried out under this part by providing them with special
education and related services; and
(b) The requirements in 34 CFR 76.651-76.663 of EDGAR are met.
(20 U.S.C. 1413(a)(4)(A))
[45 FR 22531, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.452 Local educational agency responsibility.
(a) Each local educational agency shall provide special education
and related services designed to meet the needs of private
school handicapped children residing in the jurisdiction of
the agency.
(Sec. 1413(a)(4)(A); 1414(a)(6))
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 22531, Apr. 3, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
PROCEDURES FOR BY-PASS
SEC. 300.480 By-pass-general.
(a) The Secretary implement a by-pass if a State educational
agency is, and was on December 2, 1983, prohibited by law
from providing for the participation of private school
handicapped children in the program assisted or carried out
under this part, as required by section 613(a)(4)(A) of the
Act and by Sections 300.451-300.452.
(b) The Secretary waives the requirement of section 613(a)(4)(A)
of the Act and of sections 300.451-300.452 if the Secretary
implements a by-pass.
(20 U.S.C. 1413(d)(1))
[49 FR 48526, Dec. 12, 1984]
SEC. 300.481 Provisions for service under a by-pass.
(a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including
State educational agency officials, in the affected State to
consider matters such as--
(1) The prohibition imposed by State law which results in the
need for a by-pass;
(2) The scope and nature of the services required by private
school handicapped children in the State, and the number
of children to be served under the by-pass; and
(3) The establishment of policies and procedures to ensure
that private school handicapped children receive services
consistent with the requirements of section 613(a)(4)(A)
of the Act, sections 300.451-300.452, and 34 CFR 76.651-
76.662.
(b) After determining that a by-pass is required, the Secretary
arranges for the provision of services to private school
handicapped children in the State in a manner consistent with
the requirements of section 613(a)(4)(A) of the Act and
section 300.451-300.452 by providing services through one or
more agreements with appropriate parties.
(c) For any fiscal year in which a by-pass is implemented, the
Secretary determines the maximum amount to be paid to the
providers of services by multiplying--
(1) A per child amount, which may not exceed the amount per
child provided by the Secretary under this part for all
handicapped children in the State for the preceeding
fiscal year; by
(2) The number of private school handicapped children (as
defined by sections 300.5(a) and 300.450) in the State,
as determined by the Secretary on the basis of the most
recent satisfactory data available, which may include an
estimate of the number of those handicapped children.
(d) The Secretary deducts from the State's allocation under this
part the amount the Secretary determines is necessary to
implement a by-pass and pays that amount to the provider of
services. The Secretary may withhold this amount from the
State's allocation pending final resolution of any
investigation or complaint that could result in a
determination that a by-pass must be implemented.
(20 U.S.C. 1413(d)(2))
[49 FR 48526, Dec. 12, 1984]
DUE PROCESS PROCEDURES
SOURCE: Sections 300.482 through 300.486 appear at 49 FR 48526, Dec. 12,
1984, unless otherwise noted.
SEC. 300.482 Notice of intent to implement a by-pass.
(a) Before taking any final action to implement a by-pass, the
Secretary provides the affected State educational agency with
written notice.
(b) In the written notice, the Secretary--
(1) States the reasons for the proposed by-pass in sufficient
detail to allow the State educational agency to respond:
(2) Advises the State educational agency that it has a
specific period of time (at least 45 days) from receipt
of the written notice to submit written objections to the
proposed by-pass and that it may request in writing the
opportunity for a hearing to show cause why a by-pass
should not be implemented.
(c) The Secretary sends the notice to the State educational
agency by certified mail with return receipt requested.
(20 U.S.C. 1413(d)(3)(A))
SEC. 300.483 Request to show cause.
A State educational agency seeking an opportunity to show cause
why a by-pass should not be implemented shall submit a written
request for a show cause hearing to the Secretary.
(20 U.S.C. 1413(d)(3)(A))
SEC. 300.484 Show cause hearing.
(a) If a show cause hearing is requested, the Secretary--
(1) Notifies the State educational agency and othe
appropriate public and private school officials of the
time and place for the hearing; and
(2) Designates a person to conduct the show cause hearing.
The designee must not have any responsibility for the
matter brought for a hearing.
(b) At the show cause hearing, the designee considers matters
such as--
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent
to implement a by-pass; and
(3) The objections raised by public and private school
representatives.
(c) The designee may regulate the course of the proceedings and
the conduct of parties during the pendency of the
proceedings. The designee takes all steps necessary to
conduct a fair and impartial proceeding, to avoid delay, and
to maintain order, including procedures such as those
established in 34 CFR 78.61(a), Authority and Responsiblities
of Panels.
(d) The designee may interpret applicable statutes and
regulations, but may not waive them or rule on their
validity.
(e) The designee arranges for the preparation, rentention, and,
if appropriate, dissemination of the record of the hearing.
(20 U.S.C. 1413(d)(3)(A))
SEC. 300.485 Decision.
(a) The designee who conducts the show cause hearing--
(1) Issues a written decision which includes a statement of
findings; and
(2) Submits a copy of the decision to the Secretary and sends
a copy to each party by certified mail with return
receipt requested.
(b) Each party may submit comments and recommendations on the
designee's decision to the Secretary within 15 days of the
date the party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies the State educational agency of the
Secretary's final action. That notice is sent by certified
mail with return receipt requested.
(20 U.S.C. 1413(d)(3)(A))
SEC. 300.486 Judicial review.
If Dissatisfied with the Secretary's final action, the State
educational agency may, within 60 days after notice of that
action, file a petition for review with the United States court
of appeals for the circuit in which the State is located. The
procedures for judicial review are described in section
613(d)(3)(B)-(D) of the Act.
(20 U.S.C. 1413(d)(3)(B)-(D))
Subpart E -- Procedural Safeguards
DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN
SEC. 300.500 Definitions of "consent", "evaluation", and "personally
identifiable".
As used in this part: "Consent" means that:
(a) The parent has been fully informed of all information
relevant to the activity for which consent is sought, in his
or her native language, or other mode of communication;
(b) The parent understands and agrees in writing to the carrying
out of the activity for which his or her consent is sought,
and the consent describes that activity and lists the records
(if any) which will be released and to whom; and
(c) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any
time.,
"Evaluation" means procedures used in accordance with Sections
300.530-300.534 to determine whether a child id handicapped and
the nature and extent of the special education and related
services that the child needs. The term means procedures used
selectively with an individual child and does not include basic
tests administered to or procedures used with all children in a
school, grade, or class.
"Personally identifiable" means that information includes:
(a) The name of the child, the child's parent, or other family
member;
(b) The address of the child;
(c) A personal identifier, such as the child's social security
number or student number; or
(d) A list of personal characteristics or other information which
would make it possible to identify the child with reasonable
certainty.
(20 U.S.C. 1415, 1417(c))
SEC. 300.501 General responsibility of public agencies.
Each State educational agency shall insure that each public
agency establishes and implements procedural safeguards which
meet the requirements of Sections 300.500-300.514.
(20 U.S.C. 1415(a))
SEC. 300.502 Opportunity to examine records.
The parents of a handicapped child shall be afforded, in
accordance with the procedures in Sections 300.562-300.569 an
opportunity to inspect and review all education records with
respect to:
(a) The identification, evaluation, and educational placement of
the child, and
(b) The provision of a free appropriate public education to the
child.
(20 U.S.C. 1415 (b)(1)(A))
SEC 300.503 Independent educational evaluation.
(a) General.
(1) The parents of a handicapped child have the right under
this part to obtain an independent educational evaluation
of the child, subject to paragraphs (b) through (e) of
this section.
(2) Each public agency shall provide to parents, on request,
information about where an independent educational
evaluation may be obtained.
(3) For the purposes of the part:
(i) "Independent educational evaluation" means an
evaluation conducted by a qualified examiner who is
not employed by the public agency responsible for the
education of the child in question.
(ii) "Public expense" means that the public agency either
pays for the full cost of the evaluation or insures
that the evaluation if otherwise provided at no cost
to the parent, consistent with Sec. 300.301 of Subpart
C.
(b) Parent right to evaluation at public expense.
A parent has the right to an independent educational
evaluation at public expense if the parent disagrees with an
evaluation obtained by the public agency. However, the public
agency may initiate a hearing under Sec. 300.506 of this
subpart to show that its evaluation is appropriate. If the
final decision is that the evaluation is appropriate, the
parent still has the right to an independent educational
evaluation, but not at public expense.
(c) Parent initiated evaluations. If the parent obtains an
independent educational evaluation at private expense, the
results of the evaluation:
(1) Must be considered by the public agency in any decision
made with respect to the provision of a free appropriate
public education to the child, and
(2) May be presented as evidence at a hearing under this
subpart regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as
part of a hearing, the cost of the evaluation must be at
public expense.
(e) Agency criteria. Whenever an independent evaluation is at
public expense, the criteria under which the evaluation is
obtained, including the location of the evaluation and the
qualifications of the examiner, must be the same as the
criteria which the public agency uses when it initiates an
evaluation.
(20 U.S.C. 1415(b)(1)(A))
SEC. 300.504 Prior notice; parent consent.
(a) Notice. Written notice which meets the requirements under
Sec. 300.505 must be given to the parents of a handicapped
child a reasonable time before the public agency:
(1) Proposes to initiate or change the identification,
evaluation, or educational placement of the child or the
provision of a free appropriate public education to the
child, or
(2) Refuses to initiate or change the identification,
evaluation, or educational placement of the child or the
provision of a free appropriate public education to the
child.
(b) Consent.
(1) Parental consent must be obtained before:
(i) Conducting a preplacement evaluation; and
(ii) Initial placement of a handicapped child in a program
providing special education and related services.
(2) Except for preplacement evaluation and initial placement,
consent may not be required as a condition of any benefit
to the parent or child.
(c) Procedures where parent refuses consent.
(1) Where State law requires parental consent before a
handicapped child is evaluated or intially provided
special education and related services, State procedures
govern the public agency in overriding a parent's refusal
to consent.
(2) (i) Where there is no State law requiring consent before
a handicapped child is evaluated or initially
provided special education and related services, the
public agency may use the hearing procedures in
Sections 300.506-300.508 to determine if the child
may be evaluated or initially provided special
education and related services without parental
consent.
(ii) If the hearing officer upholds the agency, the agency
may evaluate or initially provide special education
and related services to the child without the
parent's consent, subject to the parent's rights
under Sections 300.510-300.513.
(20 U.S.C.1415(b)(1)(C), (D))
Comment.
1. Any changes in a child's special education program, after the initial
placement, are not subject to parental consent under Part B, but are
subject to the prior notice requirement in paragraph (a) and the
individualized education program requirements in Subpart C.
2. Paragraph (c) means that where State law requires parental consent
before evaluation or before special education and related services are
initially provided, and the parent refuses (or otherwise withholds)
consent, State procedures, such as obtaining a court order authorizing
the public agency to conduct the evaluation or provide the education
and related services, must be followed.
If however, there is no legal requirement for consent outside of these
regulations, the public agency may use the due process procedures under
this subpart to obtain a decision to allow the valuation or services
without parental consent. The agency must notify the parent of its
actions, and the parent has appeal rights as well as rights at the
hearing itself.
SEC. 300.505 Content of notice.
(a) The notice under Sec. 300.504 must include:
(1) A full explanation of all of the procedural safeguards
available to the parents under Subpart E;
(2) A description of the action proposed or refused by the
agency, an explanation of why the agency proposes or
refudes to take the action, and a description of any
options the agency considered and the reasons why those
options were rejected;
(3) A description of each evaluation procedure, test, record,
or report the agency uses as a basis for the proposal or
refusal; and
(4) A description of any other factors which are relevant to
the agency's proposal or refusal.
(b) The notice must be:
(1) Written in language understandable to the general public,
and
(2) Provided in the native language of the parent or other
mode of communication used by the parent, unless it is
clearly not feasible to do so.
(c) If the native language or other mode of communication of the
parent is not a written language, the State or local
educational agency shall take steps to insure:
(1) That the notice is translated orally or by other means to
the parent in his or her native language or other mode of
communication;
(2) That the parent understands the content of the notice,
and
(3) That there is written evidence that the requirements in
paragraphs (c) (1) and (2) of this section have been met.
(20 U.S.C. 1415(b)(1)(D))
SEC. 300.506 Impartial due process hearing.
(a) A parent or a public educational agency may initiate a
hearing on any of the matters described in Sec. 300.504(a)
(1) and (2).
(b) The hearing must be conducted by the State educational agency
or the public agency directly responsible for the education
of the child, as determined under State statute, State
regulation, or a written policy of the State educational
agency.
(c) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area
if:
(1) The public requests the information; or
(2) The parent or the agency initiates a hearing under this
section.
(20 U.S.C. 1416(b)(2))
Comment. Many States have pointed to the success of using mediation as an
intervening step prior to conducting a formal due process hearing.
Although the process of mediation is not required by the statute or these
regulations, an agency may wish to suggest mediation in disputes
concerning the identification, evaluation, and educational placement of
handicapped children, and the provision of a free appropriate public
education to those children. Mediations have been conducted by members
of State educational agencies or local educational agency personnel who
were not previously involved in the particular case. In many cases,
mediation leads to resolution of differences between parents and agencies
without the development of an adversarial relationship and with minimal
emotional stress. However, mediation may not be used to deny or delay a
parent's rights under this subpart.
SEC. 300.507 Impartial hearing officer.
(a) A hearing may not be conducted:
(1) By a person who is an employee of a public agency which
is involved in the education or care of the child, or
(2) By any person having a personal or professional interest
which would conflict with his or her objectivity in the
hearing.
(b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the
agency solely because he or she is paid by the agency to
serve as a hearing officer.
(c) Each public agency shall keep a list of the persons who serve
as hearing officers. The list must include a statement of the
qualifications of each of those persons.
(20 U.S.C. 1414(b)(2))
SEC. 300.508 Hearing rights.
(a) Any party to a hearing has the right to:
(1) Be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the
problems of handicapped children;
(2) Present evidence and confront, cross-examine, and compel
the attendance of witnesses;
(3) Prohibit the introduction of any evidence at a hearing
that has not been disclosed to that party at least five
days before the hearing;
(4) Obtain a written or electronic verbatim record of the
hearing;
(5) Obtain written findings of fact and decisions. (The
public agency shall transmit those findings and
decisions, after deleting any personally identifiable
information, to the State advisory panel established
under Subpart F).
(b) Parents involved in hearings must be given the right to:
(1) Have the child who is the subject of the hearing present;
and
(2) Open the hearing to the public.
(20 U.S.C. 1415(d))
SEC. 300-509 Hearing decision: appeal.
A decision made in a hearing conducted under this subpart is
final, unless a party to the hearing appeals the decision under
Sec. 300.510 or Sec. 300.511.
(20 U.S.C. 1415(c))
SEC. 300-510 Administrative appeal; impartial review.
(a) If the hearing is conducted by a public agency other than the
State educational agency, any party aggrieved by the findings
and decision in the hearing may appeal to the State
educational agency.
(b) If there is an appeal, the State educational agency shall
conduct an impartial review of the hearing. The official
conducting the review shall:
(1) Examine the entire hearing record;
(2) Insure that the procedures at the hearing were consistent
with the requirements of due process;
(3) Seek additional evidence if necessary. If a hearing is
held to receive additional evidence, the rights in Sec.
300.508 apply.
(4) Afford the parties an opportunity for oral or written
argument, or both, at the discretion of the reviewing
official;
(5) Make an independent decision on completion of the review;
and
(6) Give a copy of written findings and decision to the
parties.
(c) The decision made by the reviewing official is final, unless
a party brings civil action under Sec. 300.512.
(20 U.S.C. 1415 (c), (d); H. Rep. No. 94-664. at p.49 (1975))
Comment.
1. The State educational agency may conduct its review either directly or
through another State agency acting on its behalf. However, the State
educational agency remains responsible for the final decision on
review.
2. All parties have the right to continue to be represented by counsel at
the State administrative review level, whether or not the reviewing
official determines that a further hearing is necessary. If the
reviewing official decides to hold a hearing to receive additional
evidence, the other rights in Sec. 300.508, relating to hearings, also
apply.
SEC. 300.511 Civil action.
Any party aggrieved by the findings and decision made in a
hearing who does not have the right to appeal under Sec. 300.510
of this subpart, and any party aggrieved by the decision of a
reviewing officer under Sec. 300.510 has the right to bring a
civil action under section 615(e)(2) of the Act.
(20 U.S.C. 1415)
SEC. 300.512 Timeliness and convenience of hearings and reviews.
(a) The public agency shall insure that not later than 45 days
after the receipt of request for a hearing:
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The State educational agency shall endure that not later than
30 days after the receipt of a request for a review:
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions
of time beyond the periods set out in paragraphs (a) and (b)
of this section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place which is reasonably convenient
to the parents and child involved.
(20 U.S.C. 1415)
SEC. 300.513 Child's status during proceedings.
(a) During the pendency of any administrative or judicial
proceeding regarding a complaint, unless the public agency
and the parents of the child agree otherwise, the child
involved in the complaint must remain in his or her present
educational placement.
(b) If the complaint involves an application for initial
admission to public school, the child, with the consent of
the parents, must be placed in the public school program
until the completion of all the proceedings.
(20 U.S.C. 1415(e)(3))
Comment. Section 300.513 does not permit a child's 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
prelude the agency from using its normal procedures for dealing with
children who are endangering themselves or others.
SEC. 300.514 Surrogate parents.
(a) General. Each public agency shall insure that the rights of a
child are protected when:
(1) No parent (as defined in Sec. 300.10) can be identified;
(2) The public agency, after reasonable efforts, cannot
discover the whereabouts of a parent; or
(3) The child is a ward of the State under the laws of that
State.
(b) Duty of public agency. The duty if a public agency under
paragraph (a) of this section includes the assignment of an
individual to act as a surrogate for the parents. This must
include a method
(1) for determining whether a child needs a surrogate parent,
and
(2) for assigning a surrogate parent to the child.
(c) Criteria for selection of surrogates.
(1) The public agency may select a surrogate parent in any
way permitted under State law.
(2) Public agencies shall insure that a person selected as a
surrogate:
(i) Has no interest that conflicts with the interest of
the child he or she represents; and
(ii) Has knowledge and skills, that insure adequate
representation of the child.
(d) Non-employee requirement; compensation.
(1) A person assigned as a surrogate may not be an employee
of a public agency which is involved in the education or
care of the child.
(2) A person who otherwise qualifies to be a surrogate parent
under paragraphs (c) and (d)(1) of this section, is not
an employee of the agency solely because he or she is
paid by the agency to serve as a surrogate parent.
(e) Responsibilities. The surrogate parent may represent the
child in all matters relating to:
(1) The identification, evaluation, and educational placement
of the child, and
(2) The provision of a free appropriate public education to
the child.
(20 U.S.C. 1415(b)(1)(B))
PROTECTION IN EVALUATION
PROCEDURES
SEC. 300.530 General.
(a) Each State educational agency shall insure that each public
agency establishes and implements procedures which meet the
requirements of Sections 300.530-300.534.
(b) Testing and evaluation materials and procedures used for the
purposes of evaluation and placement of handicapped children
must be selected and administered so as not to be racially or
culturally discriminatory.
(20 U.S.C. 1412(5)(C))
SEC. 300.531 Preplacement evaluation.
Before any action is taken with respect to the initial placement
of a handicapped child in a special education program, a full and
individual evaluation of the child's educational needs must be
conducted in accordance with the requirements of Sec. 300.532.
(20 U.S.C. 1412(5)(C))
SEC. 300.532 Evaluation procedures.
State and local educational agencies shall insure, at a minimum,
that
(a) Tests and other evaluation materials:
(1) Are provided and administered n the child's native
language or other mode of communication, unless it is
clearly not feasible to do so;
(2) Have been validated for the specific purpose for which
they are used; and
(3) Are administered by trained personnel in conformance with
the instructions provided by their producer;
(b) Tests and other evaluation materials include those tailored
to assess specific areas of educational need and not merely
those which are designed to provide a single general
intelligence quotient;
(c) Tests are selected and administered so as best to ensure that
when impaired sensory, manual, or speaking skills, the test
results accurately reflect the child's aptitude or
achievement level or whatever other factors the test purports
to measure, rather than reflecting the child's impaired
sensory, manual, or speaking skills (except where those
skills are the factors which the test purports to measure);
(d) No single procedure is used as the sole criterion for
determining an appropriate educational program for a child;
and
(e) The evaluation is made by a multidisciplinary team or group
of persons, including at least one teacher or other
specialist with knowledge in the area of suspected
disability.
(f) The child is assessed in all areas related to the suspected
disability, including, where appropriate, health, vision,
hearing, social and emotional status, general intelligence,
academic performance, communicative status, and motor
abilities.
(20 U.S.C. 1412(5)(C)
Comment. Children who have a speech impairment as their primary handicap
may not need a complete battery of assessments (e.g., psychological,
physical, or adaptive behavior). However, a qualified speech-language
pathologist would
(1) evaluate each speech impaired child using procedures that are
appropriate for the diagnosis and appraisal of speech and language
disorders, and
(2) where necessary, make referrals for additional assessments needed to
make an appropriate placement decision.
SEC. 300.533 Placement procedures.
(a) In interpreting evaluation data and in making placement
decisions, each public agency shall:
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations,
physical condition, social or cultural background, and
adaptive behavior;
(2) Insure that information obtained from all of these sources
is documented and carefully considered;
(3) Insure that the placement decision is made by a group of
persons, including persons knowledgeable about the child,
the meaning of the evaluation data, and the placement
options; and
(b) If a determination is made that a child is handicapped and
needs special education and related services, an
individualized educational program must be developed for the
child in accordance with Sections 300.340-300.349 of Subpart
C.
(20 U.S.C. 1412(5)(C); 1414(a)(5))
Comment. Paragraph (a)(1) includes a list of examples of sources that may
be used by a public agency in making placement decisions. The agency
would not have to use all the sources in every instance. The point of the
requirement is to insure that more than one source is used in
interpreting evaluation data and in making placement decisions. For
example, while all of the named sources would have to be used for a child
whose suspected disability is mental retardation, they would not be
necessary for certain other handicapped children, such as a child who has
severe articulation disorder as his primary handicap. For such a child,
the speech-language pathologist, in complying with the multisource
requirement, might use
(1) a standardized test of articulation, and
(2) observation of the child's articulation behavior in conversational
speech.
SEC. 300.534 Reevaluation.
Each State and local educational agency insure:
(a) That each handicapped child's individualized education
program is reviewed in accordance with Sections 300.340-
300.349 of Subpart C, and
(b) That an evaluation of the child, based on procedures which
meet the requirements under Sec. 300.532, is conducted every
three years or more frequently if conditions warrant or if
the child's parent or teacher requests an evaluation.
(20 U.S.C. 1412(5)(c))
ADDITIONAL PROCEDURES FOR EVALUATING
SPECIFIC LEARNING DISABILITIES
SEC. 300.540 Additional team members.
In evaluating a child suspected of having a specific learning
disability, in addition to the requirements of Sec. 300.532, each
public agency shall include on the multidisciplinary evaluation
team:
(a) (1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or
her age; or
(3) For a child of less than school age, an individual
qualified by the State educational agency to teach a
child of his or her age; and
(b) At least one person qualified to conduct individual
diagnostic examinations of children, such as a school
psychologist, speech-language pathologist, or remedial
reading teacher.
(20 U.S.C. 1411 note)
[42FR 65083, Dec. 29, 1977. Redesignated at 45 FR 77368, Nov. 21 1980]
SEC. 300.541 Criteria for determining the existence of a specific learning
disability.
(a) A team may determine that a child has a specific learning
disability if:
(1) The child does not achieve commensurate with his or her
age and ability levels in one or more of the areas listed
in paragraph (a)(2) of this section, when provided with
learning experiences appropriate for the child's age and
ability levels; and
(2) The team finds that a child has a severe discrepancy
between achievement and intellectual ability in one or
more of the following areas:
(i) Oral expression;
(ii) Listening comprehension;
(iii) Written expression;
(iv) Basic reading skill;
(v) Reading comprehension;
(vi) Mathematics calculation; or
(vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific
learning disability if the severe discrepancy between ability
and achievement is primarily the result of:
(1) A visual, hearing, or motor handicap;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(20 U.S.C. 1411 note)
[42 FR 65083, Dec. 29, 1977. Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.542 Observation.
(a) At least one team member other than the child's regular
teacher shall observe the child's academic performance in the
regular classroom setting.
(b) In the case of a child of less than school age or out of
school, a team member shall observe the child in an
environment appropriate for a child of that age.
(20 U.S.C. 1411 note)
[42 FR 65083, Dec. 29, 1977. Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.543 Written report.
(a) The team shall prepare a written report of the results of the
evaluation.
(b) The report must include a statement of:
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
(3) The relevant behavior noted during the observation of the
child;
(4) The relationship of that behavior to the child's academic
functioning;
(5) The educationally relevant medical findings, if any;
(6) Whether there is a severe discrepancy between achievement
and ability which is not correctable without special
education and related services; and
(7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
(c) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or
her conclusion, the team member must submit a separate
statement presenting his or her conclusions.
(20 U.S.C. 1411 note)
[42 FR 65083, Dec. 29, 1977. Redesignated at 45 FR 77368, Nov. 21, 1980]
LEAST RESTRICTIVE ENVIRONMENT
SEC. 300.550 General.
(a) Each State educational agency shall insure that each public
agency establishes and implements procedures which meet the
requirements of Sections 300.550-300.556.
(b) Each public agency shall insure:
(1) That to the maximum extent appropriate, handicapped
children, including children in public or private
institutions or other care facilities, are educated with
children who are not handicapped, and
(2) That special classes, separate schooling or other removal
of handicapped children from the regular educational
environment occurs only when the nature or severity of
the handicap is such that education in regular classes
with the use of supplementary aids and services cannot be
achieved satisfactorily.
(20 U.S.C. 1412(5)(B); 1414(a)(1)(C)(iv))
SEC. 300.551 Continuum of alternative placement.
(a) Each public agency shall insure that a continuum of
alternative placements is available to meet the needs of
handicapped children for special education and related
services.
(b) The continuum required under paragraph (a) of this section
must:
(1) Include the alternative placements listed in the
definition of special education under Sec. 300.13 of
Subpart A (instruction in regular classes, special
classes, special schools, home instruction, and
instruction in hospitals and institutions), and
(2) Make provisions for supplementary services (such as
resource room or itinerant instruction) to be provided in
conjunction with regular class placement.
(20 U.S.C. 1412(5)(B))
SEC. 300.552 Placements.
Each public agency shall insure that:
(a) Each handicapped child's educational placement:
(1) Is determined at least annually,
(2) Is based on his or her individualized education program,
and
(3) Is as close as possible to the child's home;
(b) The various alternative placements included under Sec.
300.551 are available to the extent necessary to implement
the individualized education program for each handicapped
child;
(c) Unless a handicapped child's individualized education program
requires some other arrangement, the child is educated in the
school which he or she would attend if not handicapped; and
(d) In setting the least restrictive environment, consideration
is given to any potential harmful effect on the child or on
the quality of services which he or she needs.
(20 U.S.C. 1412(5)(B))
Comment. Section 300.552 includes some of the main factors which must be
considered in determining the extent to which a handicapped child can be
educated with children who are not handicapped. The overriding rule in
this section is that placement decisions must be made on an individual
basis. The section also requires each agency to have various alternative
placements available in order to insure that each handicapped child
receives an education which is appropriate to his or her individual
needs. The analysis of the regulations for Section 504 of the
Rehabilitation Act of 1973 (34 CFR Part 104 -- Appendix, Paragraph 24)
includes several points regarding educational placements of handicapped
children which are pertinent to this section:
1. With respect to determining proper placements, the analysis states:
"* * * It should be stressed that, where a handicapped child is so
disruptive in a regular classroom that the education of other students
is significantly impaired, the needs of the handicapped child cannot
be met in that environment. Therefore regular placement would not be
appropriate to his or her needs * * *."
2. With respect to placing a handicapped child in an alternate setting,
the analysis states that among the factors to be considered in placing
a child is the need to place the child as close to home as possible.
Recipients are required to take this factor into account in making
placement decisions. The parent's right to challenge the placement of
their child extends not only to placement in special classes or
separate schools, but also to placement in a distant school,
particularly in a residential program. An equally appropriate
education program may exist closer to home; and this issue may be
raised by the parent under the due process provisions of this subpart.
SEC. 300.553 Nonacademic settings.
In providing or arranging for the provision of nonacademic and
extracurricular services and activities, including meals. recess
periods, and the services and activities set forth in Sec.
300.306 of Subpart C, each public agency shall insure that each
handicapped child participates with nonhandicapped children in
those services and activities to the maximum extent appropriate
to the needs of that child.
(20 U.S.C. 1412(5)(B))
Comment. Section 300.553 is taken from a new requirement in the final
regulations for Section 504 of the Rehabilitation Act of 1973. With
respect to this requirement, the analysis of the Section 504 Regulations
includes the following statement: "[A new paragraph] specifies that
handicapped children must also be provided nonacademic services in as
integrated a setting as possible. This requirement is especially
important for children whose educational needs necessitate their being
solely with other handicapped children during most of each day. To the
maximum extent appropriate, children in residential settings are also to
be provided opportunities for participation with other children." (34 CFR
Part 104 --Appendix, Paragraph 24.)
SEC. 300.554 Children in public or private institutions.
Each state educational agency shall make arrangements with public
and private institutions (such as a memorandum of agreement or
special implementation procedures) as may be necessary to insure
the Sec. 300.550 is effectively implemented.
(20 U.S.C. 1412(5)(B))
Comment. Under section 612(5)(B) of the statute, the requirement to
educate handicapped children with nonhandicapped children also applies to
children in public and private institutions or other care facilities.
Each State educational agency must insure that each applicable agency and
institution in the State implements this requirement. Regardless of other
reasons for institutional placement, no child in an institution who is
capable of education in a regular public school setting may be denied
access to an education in that setting.
SEC. 300.555 Technical assistance and training activities.
Each State educational agency shall carry out activities to
insure that teachers and administrators in all public agencies:
(a) Are fully informed about their responsibilities for
implementing Sec. 300.550, and
(b) Are provided with technical assistance and training necessary
to assist them in this effort.
(20 U.S.C. 1412(5)(B))
SEC. 300.556 Monitoring activities.
(a) The State educational agency shall carry out activities to
insure that Sec. 300.550 is implemented by each public
agency.
(b) If there is evidence that a public agency makes placements
that are inconsistent with Sec. 300.550 of this subpart, the
State educational agency:
(1) Shall review the public agency's justification for its
actions, and
(2) Shall assist in planning and implementing any necessary
corrective action.
(20 U.S.C. 1412(5)(B))
CONFIDENTIALITY OF INFORMATION
SEC. 300.560 Definitions.
As used in this subpart:
"Destruction" means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
"Education records" means the type of records covered under the
definition of "education records" in part 99 of this title (the
regulations implementing the Family Educational Rights and
Privacy Act of 1974).
"Participating agency" means any agency or institution which
collects, maintain, or uses personally identifiable information,
or from which information is obtained, under this part.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.561 Notice to parents.
(a) The State educational agency shall give notice which is
adequate to fully inform parents about the requirements under
Sec. 300.128 of Subpart B, including:
(1) A description of the extent to which the notice is given
in the native languages of the various population groups
in the State;
(2) A description of the children on whom personally
identifiable information is maintained, the methods the
State intends to use in gathering the information
(including the sources from whom information is
gathered), and the uses to be made of the information;
(3) A summary of the policies and procedures which
participating agencies must follow regarding storage,
disclosure to third parties, retention, and destruction
of personally identifiable information; and
(4) A description of all of the rights of parents and
children regarding this information, including the rights
under section 438 of the General Education Provisions Act
and Part 99 of this title (the Family Educational Rights
and Privacy Act of 1974, and implementing regulations).
(b) Before any major identification, location, or evaluation
activity, the notice must be published or announced in
newspapers or other media, or both, with circulation adequate
to notify parents throughout the State of the activity.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.562 Access rights.
(a) Each participating agency shall permit parents to inspect and
review any education records relating to their children which
are collected, maintained, or used by the agency under this
part. The agency shall comply with a request without
unnecessary delay and before any meeting regarding an
individualized education program or hearing relating to the
identification, evaluation, or placement of the child, and in
no case more than 45 days after the request has been made.
(b) The right to inspect and review education records under this
section includes:
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations
of the records;
(2) The right to request that the agency provide copies of
the records containing the information if failure to
provide those copies would effectively prevent the parent
from exercising the right to inspect and review the
records; and
(3) The right to have a representative of the parent inspect
and review the records.
(c) An agency may presume that the parent has authority to
inspect and review records relating to his or her child
unless the agency has been advised that the parent does not
have the authority under applicable State law governing such
matters as guardianship, separation, and divorce.
(20 U.S.C. 1412(2)(D)); 1417(c))
SEC. 300.563 Record of access.
Each participating agency shall keep a record of parties
obtaining access to education records collected, maintained, or
used under this part (except access by parents and authorized
employees of the participating agency), including the name of the
party, the date access was given, and the purpose for which the
party is authorized to use the records.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.564 Records on more than one child.
If any education record includes information on more than one
child, the parents of those children shall have the right to
inspect and review only the information relating to their child
or to be informed of that specific information.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.565 List of types and locations of information.
Each participating agency shall provide parents on request a list
of the types and locations of education records collected,
maintained, or used by the agency.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.566 Fees.
(a) A participating education agency may charge a fee for copies
of records which are made for parents under this part if the
fee does not effectively prevent the parents from exercising
their right to inspect and review those records.
(b) A participating agency may not charge a fee to search for or
to retrieve information under this part.
(20. U.S.C. 1412(2)(D); 1417(c))
SEC. 300.567 Amendment of records at parent's request.
(a) A parent who believes that information in education records
collected, maintained, or used under this part is inaccurate
or misleading or violates the privacy or other rights of the
child, may request the participating agency which maintains
the information to amend the information.
(b) The agency shall decide whether to amend the information in
accordance with the request within a reasonable period of
time of receipt of the request.
(c) If the agency decides to refuse to amend the information in
accordance with the request it shall inform the parent of the
refusal, and advise the parent of the tight to a hearing
under Sec. 300.568.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.568 Opportunity for a hearing.
The agency shall, on request, provide an opportunity for a
hearing to challenge information in education records to insure
that it is not inaccurate, misleading, or otherwise in violation
of the privacy or other rights of the child.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.569 Result of hearing.
(a) If, as a result of the hearing, the agency decides that the
information is inaccurate, misleading or otherwise in
violation of the privacy or other rights of the child, it
shall amend the information accordingly and so inform the
parent in writing.
(b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in
violation of the privacy of other rights of the child, it
shall inform the parent of the right to place in the records
it maintains on the child a statement commending on the
information or setting forth any reasons for disagreeing with
the decision of the agency.
(c) Any explanation placed in the records of the child under this
section must:
(1) Be maintained by the agency as part of the records of the
child as long as the record or contested portion is
maintained by the agency; and
(2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation
must also be disclosed to the party.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.570 Hearing Procedures.
A hearing held under Sec. 300.568 of this subpart must be
conducted according to the procedures under Sec. 99.22 of this
title.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.571 Consent.
(a) Parental consent must be obtained before personally
identifiable information is:
(1) Disclosed to anyone other than officials of participating
agencies collecting or using the information under this
part, subject to paragraph (b) of this section; or
(2) Used for any other purpose other than meeting a
requirement under this part.
(b) An educational agency or institution subject to Part 99 of
this title may not release information from education records
to participating agencies without parental consent unless
authorized to do so under Part 99 of this title.
(c) The State educational agency shall include policies and
procedures in its annual program plan which are used in the
event that a parent refuses to provide consent under this
section.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.572 Safeguards.
(a) Each participating agency shall protect the confidentiality
of personally identifiable information at collection,
storage, disclosure, and destruction stages.
(b) One official at each participating agency shall assume
responsibility for insuring the confidentiality of any
personally identifiable information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding
the State's policies and procedures under Sec. 300.129 of
Subpart B and Part 99 of this title.
(d) Each participating agency shall maintain, for public
inspection, a current listing of the names and positions of
those employees within the agency who may have access to
personally identifiable information.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.573 Destruction of information.
(a) The public agency shall inform parents when personally
identifiable information collected, maintained, or used under
this part is no longer needed to provide educational services
to the child.
(b) The information must be destroyed at the request of the
parents. However, a permanent record of a student's name,
address, and phone number, his or her grades, attendance
record, classes attended, grade level completed, and year
completed may be maintained without time limitation.
(20 U.S.C. 1412(2)(D); 1417(c))
Comment. Under Sec. 300.573, the personally identifiable information on a
handicapped child may be retained permanently unless the parents request
that it be destroyed. Destruction of records is the best protection
against improper and unauthorized disclosure. However, the records may be
needed for other purposes. In informing parents about their rights under
this section, the agency should remind them that the records may be
needed by the child or the parents for social security benefits or other
purposes. If the parents request that the information be destroyed, the
agency may retain the information in paragraph (b).
SEC. 300.574 Children's rights.
The State educational agency shall include policies and
procedures in its annual program plan regarding the extent to
which children are afforded rights of privacy similar to those
afforded to parents, taking into consideration the age of the
child and type or severity of disability.
(20 U.S.C. 1412(2)(D); 1417(c))
Comment. Note that under the regulations for the Family Educational
Rights and Privacy Act (45 CFR 99.4(a)), the rights of parents regarding
education records are transferred to the student at age 18.
SEC. 300.575 Enforcement.
The State educational agency shall describe in its annual program
plan the policies and procedures, including sanctions, which the
State uses to insure that its policies and procedures are
followed and that the requirements of the Act and regulations in
this part are met.
(20 U.S.C. 1412(2)(D); 1417(c))
SEC. 300.576 Department.
If the Department or its authorized representatives collect any
personally identifiable information regarding handicapped
children which is not subject to 5 U.S.C. 552a (The Privacy Act
of 1974), the Secretary shall apply the requirements of 5 U.S.C.
section 552a (b) (1)-(2), (4)-(11); (c); (d); (e)(1); (2);
(3)(A), (B) and (D), (5)-(10); (h); (m); and (n), and the
regulations implementing those provisions in Part 5b of this
title.
(20 U.S.C. 1412(2)(D); 1417(c))
DEPARTMENT PROCEDURES
SEC. 300.580 [Reserved]
SEC. 300.581 Disapproval of a State plan.
Before disapproving a State plan, the Secretary gives the State
educational agency written notice and an opportunity for a
hearing.
(20 U.S.C. 1413(c))
[51 FR 17905, May 15, 1986)
SEC. 300.582 Content of notice.
(a) In the written notice, the Secretary --
(1) States the basis on which the Secretary proposes to
disapprove the State plan;
(2) May describe possible options for resolving the issues;
(3) Advises the State educational agency that it may request
a hearing and that the request for a hearing and that the
request for a hearing must be made not later than 30
calendar days after it receives the notice of proposed
disapproval; and
(4) Provides information about the procedures followed for a
hearing.
(b) The Secretary sends the written notice to the State
educational agency by certified mail with return receipt
requested.
(20 U.S.C. 1413(c))
[51 FR 17905, May, 1986]
SEC. 300.583 Hearing official or panel.
(a) If the State educational agency requests a hearing, the
Secretary designates one or more individuals, either from the
department or elsewhere, not responsible for or connected
with the administration of the program under this part, to
conduct a hearing.
(b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing
Official of the Hearing Panel. If one individual is
designated, that individual is the Hearing Official.
(c) If the State has an appeal pending with the Education Appeal
Board on a matter arising out of the same State plan, or on
the same issue arising from a prior plan, the State may
contest the disapproval of its plan before the Education
Appeal Board in accordance with 34 CFR Part 78.
(20 U.S.C. 1413(c))
[51 FR 17905, May 15, 1986]
SEC 300.584 Hearing procedures.
(a) As used in Sections 300.581-300.586 the term "party" or
"parties" means the following:
(1) A State educational agency that requests a hearing
regarding the proposed disapproval of its State plan
under this part.
(2) The Department of Education official who administers the
program of financial assistance under this part.
(3) A person, group or agency with an interest in and having
relevant information about the case who has applied for
and been granted leave to intervene by the Hearing
Official or Panel.
(b) Within 15 calendar days after receiving a request for a
hearing, the Secretary designates a Hearing Official or Panel
and notifies the parties.
(c) The Hearing Official or Panel may regulate the course of
proceedings and the conduct of the parties during the
procedures. The Hearing Official or Panel takes all steps
necessary to conduct a fair and impartial proceeding, to
avoid delay, and to maintain order, including the following:
(1) The Hearing Official or Panel may hold conferences or
other types of appropriate proceedings to clarify,
simplify, or define the issues or to consider other
matters that may aid in the disposition of the case.
(2) The Hearing Official or Panel may schedule a prehearing
conference of the Hearing Official or Panel and parties.
(3) Any party may request the Hearing Official or Panel to
schedule a prehearing or other conference. The Hearing
Official or Panel decides whether a conference is
necessary and notifies all parties.
(4) At a prehearing or other conference the Hearing Official
or Panel and the parties may consider subjects such as --
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and
stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral
argument should be held;
(v) Setting dates for--
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the
need for oral argument or evidentiary hearing;
(C) Further proceedings before the Hearing Official
or Panel (including an evidentiary hearing or
oral argument, if either is scheduled);
(D) Requesting the names of witnesses each part
wishes to present at an evidentiary hearing and
estimation of time for each presentation; or
(E) Completion of the review and initial decision of
the Hearing Official or Panel.
(5) A prehearing or other conference held under paragraph
(b)(4) of this section may be conducted by telephone
conference call.
(6) At a prehearing or other conference, the parties shall be
prepared to discuss the subjects listed in paragraph
(b)(4) of this section.
(7) Following a prehearing or other conference the Hearing
Official or Panel may issue a written statement
describing the issues raised, the action taken, and the
stipulations and agreements reached by the parties.
(d) The Hearing Official or Panel may require parties to state
their positions and to provide all or part of the evidence in
writing.
(e) The Hearing Official or Panel may require parties to present
testimony through affidavits and to conduct cross-examination
through interogatories.
(f) The Hearing Official or Panel may direct the parties to
exchange relevant documents or information and lists of
witnesses, and to send copies to the Hearing Official or
Panel.
(g) The Hearing Official or Panel may receive, rule on, exclude,
or limit evidence at any stage of the proceedings.
(h) The Hearing Official or Panel may rule on motions and other
issues at any stage of the proceedings.
(i) The Hearing Official or Panel may examine witnesses.
(j) The Hearing Official or Panel may set reasonable time limits
for submission of written documents.
(k) The Hearing Official or Panel may refuse to consider
documents or other submissions if they are not submitted in a
timely manner unless good cause is shown.
(l) The Hearing Official or Panel may interpret applicable
statutes and regulations but may not waive them or rule on
their validity.
(m) (1) The parties shall present their positions through briefs
and the submission of other documents and may request an
oral argument or evidentiary hearing. The Hearing
Official or Panel shall determine whether an oral
argument or an evidentiary hearing is needed to clarify
the positions of the parties.
(2) The Hearing Official or Panel gives each party an
opportunity to be represented by counsel.
(n) If the Hearing Official or Panel determines that an
evidentiary hearing would materially assist the resolution of
the matter, the Hearing Official or Panel gives each party,
in addition to the opportunity to be represented by counsel -
(1) An opportunity to present witnesses on the party's
behalf; and
(2) An opportunity to cross-examine witnesses either orally
or with written questions.
(o) The Hearing Official or Panel accepts any evidence that it
finds is relevant and material to the proceedings and is not
unduly repetitious.
(p) (1) The Hearing Official or Panel --
(i) Arranges for the preparation of a transcript of each
hearing;
(ii) Retains the original transcript as part of the record
of the hearing; and
(iii) Provides one copy of the transcript to each party.
(2) Additional copies of the transcript are available on
request and with payment of the reproduction fee.
(q) Each party shall file with the Hearing Official or Panel all
written motions, briefs, and other documents and shall at the
same time provide a copy to the other parties to the
proceedings.
(20 U.S.C. 1413(c))
[51 FR 17905, May 15, 1986]
SEC. 300.585 Initial decision; final decision.
(a) The Hearing Official or Panel prepares an initial written
decision which addresses each of the points in the notice
sent by the Secretary to the State educational agency under
Sec. 300.582.
(b) The initial decision of a Panel is made by a majority of
Panel members.
(c) The Hearing Official or Panel mails by certified mail with
return receipt requested a copy of the initial decision to
each party (or to the party's counsel) and to the Secretary,
with a notice stating that each party has an opportunity to
submit written comments regarding the decision to the
Secretary.
(d) Each party may file comments and recommendations on the
initial decision with the Hearing Official or Panel within 15
calendar days of the date the party receives the Panel's
decision.
(e) The Hearing Official or Panel sends a copy of a party's
initial comments and recommendations to the other parties by
certified mail with return receipt requested. Each party may
file responsive comments and recommendations with the Hearing
Official or Panel within seven calendar days of the date the
party receives the initial comments and recommendations.
(f) The Hearing Official or Panel forwards the parties' initial
and responsive comments on the initial decision to the
Secretary who reviews the initial decision and issues a final
decision.
(g) The initial decision of the Hearing Official or Panel becomes
the final decision of the Secretary unless, within 25
calendar days after the end of the time for receipt of
written comments, the Secretary informs the Hearing Official
or Panel and the parties to a hearing in writing that the
decision is being further reviewed for possible modification.
(h) The Secretary may reject or modify the initial decision of
the Hearing Official or Panel if the Secretary finds that it
is clearly erroneous.
(i) The Secretary conducts the review based on the initial
decision, the written record, the Hearing Official's or
Panel's proceedings, and written comments. The Secretary may
remand the matter for further proceedings.
(j) The Secretary issues the final decision within 30 calendar
days after notifying the Hearing Official or Panel that the
initial decision is being further reviewed.
[51 FR 17906, May 15, 1986]
SEC. 300.386 Judicial review.
If a State is dissatisfied with the Secretary's final action with
respect to its State plan, the State may, within 60 calendar days
after notice of that action, file a petition for review with the
United States court of appeals for the circuit in which the State
is located.
(20 U.S.C. 1416(b)(1))
[51 FR 17906, May 15, 1986]
SEC. 300.587 - 300.588 [Reserved]
SEC. 300.389 Waiver of requirement regarding supplementing and supplanting
with Part B funds.
(a) Under sections 613(a)(9)(B) and 614(a)(2)(B)(ii) of the Act,
State and local educational agencies must insure that Federal
funds provided under Part B of the Act are used to supplement
the level of State and local funds expended for the education
of handicapped children, and in no case to supplant those
State and local funds. Beginning with funds appropriated for
fiscal year 1979 and for each following fiscal year, the
nonsupplanting requirement only applies to funds allocated to
local educational agencies. (See Sec. 300.372.)
(b) If the State provides clear and convincing evidence that all
handicapped children have available to them a free
appropriate public education, the Secretary may waive in part
the requirement under sections 613(a)(9)(B) and
614(a)(2)(B)(ii) of the Act if the Secretary concurs with the
evidence provided by the State.
(c) If a State wishes to request a waiver, it must inform the
Secretary in writing. The Secretary then provides the State
with a finance and membership report form which provides the
basis for the request.
(d) In its request for a waiver, the State shall include the
results of a special study made by the State to obtain
evidence of the availability of a free appropriate public
education to all handicapped children. The special study must
include statements by a representative sample of
organizations which deal with handicapped children, and
parents and teachers of handicapped children, relating to the
following areas:
(1) The adequacy and comprehensiveness of the State's system
for locating, identifying, and evaluating handicapped
children, and
(2) The cost to parents, if any, for education for children
enrolled in public and private day schools, and in public
and private residential schools and institutions, and
(3) The adequacy of the State's due process procedures.
(e) In its request for a waiver, the State shall include finance
data relating to the availability of a free appropriate
public education for all handicapped children, including:
(1) The total current expenditures for regular education
programs and special education programs by function and
by source of funds (State, local and Federal) for the
previous school year, and
(2) The full-time equivalent membership of students enrolled
in regular programs and in special programs in the
previous school year.
(f) The Secretary considers the information which the State
provides under paragraph (d) and (e) of this section, along
with any additional information he may request, or obtain
through on-site reviews of the State's education programs and
records, to determine if all children have available to them
a free appropriate public education, and if so, the extent of
the waiver.
(g) The State may request a hearing with regard to any final
action by the Secretary under this section.
(20 U.S.C. 1411(c)(3); 1413(a)(9)(B))
[42 FR 42476, Aug. 23, 1977. Redesignated at 45 FR 77368, Nov. 21, 1980
and amended at 51 FR 17906, May 15, 1986]
Subpart F -- State Administration
STATE EDUCATIONAL AGENCY
RESPONSIBILITIES: GENERAL
SEC. 300.600 Responsibility for all educational programs.
(a) The State educational agency is responsible for insuring:
(1) That the requirements of this part are carried out; and
(2) That each educational program for handicapped children
administered within the State, including each program
administered by any other public agency:
(i) Is under the general supervision of the persons
responsible for educational programs for handicapped
children in the State educational agency, and
(ii) Meets education standards of the State educational
agency (including the requirements of this part).
(b) The State must comply with paragraph (a) of this section
through State statute, State regulation, signed agreement
between respective agency officials, or other documents.
(20 U.S.C. 1412(6))
Comment. The requirement in Sec. 300.600(a) is taken essentially verbatim
from section 612(6) of the statute and reflects the desire of the
Congress for a central point of responsibility and accountability in the
education of handicapped children within each State. With respect to
State educational agency responsibility, the Senate Report on Pub. L.
94-142 includes the following statements:
This provision is included specifically to assure a single line
of responsibility with regard to the education of handicapped children,
and to assure that in the implementation of all provisions of this Act
and in carrying out the right to education for handicapped children, the
State educational agency shall be the responsible agency * * *.
Without this requirement, there is an abdication of
responsibility for the education of handicapped. Presently, in many
States, responsibility is divided, depending upon age of the handicapped
child, sources of funding, and type of services delivered. While the
Committee understands that different agencies may, in fact, deliver
services, the responsibility must remain in a central agency overseeing
the education of handicapped children, so that failure to deliver
services or the violation of the rights of handicapped children is
squarely the responsibility of one agency. (Senate Report No. 94-168, p.
24 (1975))
In meeting the requirements of this section, there are a number
of acceptable options which may be adopted, including the following:
(1) Written agreements are developed between respective State agencies
concerning State educational agency standards and monitoring. These
agreements are binding on the local or regional counterparts of each
State agency.
(2) The Governor's Office issues an administrative directive
establishing the State educational agency responsibility.
(3) State law, regulation, or policy designates the State educational
agency as responsible for establishing standards for all educational
programs for the handicapped and includes responsibility for
monitoring.
(4) State law mandates that the State educational agency is responsible
for all educational programs.
USE OF FUNDS
SEC. 300.620 Federal funds for State administration.
A State may use five percent of the total State allotment in any
fiscal year under Part B of the Act, or $350,000, whichever is
greater, for administrative costs related to carrying out
sections 612 and 613 of the Act. However, this amount cannot be
greater than twenty-five percent of the State's total allotment
for the fiscal year under Part B of the Act.
(20 U.S.C. 1411(b), (c))
[51 FR 19311, May 28, 1986]
SEC. 300.621 Allowable costs.
(a) The State educational agency may use funds under Sec. 300.620
of this subpart for:
(1) Administration of the annual program plan and for
planning at the State level, including planning, or
assisting in the planning, of programs or projects for
the education of handicapped children;
(2) Approval, supervision, monitoring, and evaluation of the
effectiveness of local programs and projects for the
education of handicapped children;
(3) Technical assistance to local educational agencies with
respect to the requirements of this part;
(4) Leadership services for the program supervision and
management of special education activities for
handicapped children; and
(5) Other State leadership activities and consultative
services.
(b) The State educational agency shall use the remainder of its
funds under Sec. 300.620 in accordance with Sec. 300.370 of
Subpart C.
(20 U.S.C. 1411(b), (c))
STATE ADVISORY PANEL
SEC. 300.650 Establishment.
(a) Each State shall establish, in accordance with the provisions
of this subpart, a State advisory panel on the education of
handicapped children.
(b) The advisory panel must be appointed by the Governor or any
other official authorized under State law to make those
appointments.
(c) If a State has an existing advisory panel that can perform
the functions in Sec. 300.652, the State may modify the
existing panel so that it fulfills all of the requirements of
this subpart, instead of establishing a new advisory panel.
(20 U.S.C. 1413(a)(12))
SEC. 300.651 Membership.
(a) The membership of the State advisory panel must be composed
of persons involved in or concerned with the education of
handicapped children. The membership must include at least
one person representative of each of the following groups:
(1) Handicapped individuals.
(2) Teachers of handicapped children.
(3) Parents of handicapped children.
(4) State and local educational officials.
(5) Special education program administrators.
(b) The State may expand the advisory panel to include additional
persons in the groups listed in paragraph (a) of this section
and representatives of other groups not listed.
(20 U.S.C. 1413(a)(12))
Comment. The membership of the State advisory panel, as listed in
paragraphs (a) (1)-(5), is required in section 613(a)(12) of the Act.
As indicated in paragraph (b), the composition of the panel and the
number of members may be expanded at the discretion of the State. In
adding to the membership, consideration could be given to having:
(1) An appropriate balance between professional groups and consumers
(i.e., parents, advocates, and handicapped individuals);
(2) Broad representation within the consumer-advocate groups, to insure
that the interests and points of view of various parents, advocates
and handicapped individuals are appropriately represented;
(3) Broad representation within professional groups (e.g., (a) regular
education personnel, (b) special educators, including teachers,
teacher trainers, and administrators, who can properly represent
various dimensions in the education of handicapped children, and (c)
appropriate related services personnel); and
(4) Representatives from other State advisory panels (such as vocational
education).
If a State elects to maintain a small advisory panel (e.g., 10-15
members), the panel itself could take steps to insure that it (1)
consults with and receives inputs from various consumer and special
interest professional groups, and (2) establishes committees for
particular short-term purposes composed of representatives from those
input groups.
SEC. 300.652 Advisory panel functions.
The State advisory panel shall:
(a) Advise the State educational agency of unmet needs within the
State in the education of handicapped children;
(b) Comment publicly on the State annual program plan and rules
or regulations proposed for issuance by the State regarding
the education of handicapped children and the procedures for
distribution of funds under this part; and
(c) Assist the State in developing and reporting such information
and evaluations as may assist the Secretary in the
performance of his responsibilities under section 618.
(20 U.S.C. 1413(a)(12))
SEC. 300.653 Advisory panel procedures.
(a) The advisory panel shall meet as often as necessary to
conduct its business.
(b) By July 1 of each year, the advisory panel shall submit an
annual report of panel activities and suggestions to the
State educational agency. This report must be made available
to the public in a manner consistent with other public
reporting requirements under this part.
(c) Official minutes must be kept on all panel meetings and shall
be made available to the public on request.
(d) All advisory panel meetings and agenda items must be publicly
announced prior to the meeting, and meetings must be open to
the public.
(e) Interpreters and other necessary services must be provided at
panel meetings for panel members or participants. The State
may pay for these services from funds under Sec. 300.620.
(f) The advisory panel shall serve without compensation but the
State must reimburse the panel for reasonable and necessary
expenses for attending meetings and performing duties. The
State may use funds under Sec. 300.620 for this purpose.
Subpart G -- Allocation of Funds;
Reports
ALLOCATIONS
SEC. 300.700 Special definition of the term State.
For the purposes of Sec. 300.701, Sec. 300.702, and Sections
300.704-300.708, the term "State" does not include Guam, American
Samoa, the Virgin Islands, and the Trust Territory of the Pacific
Islands.
(20 U.S.C. 1411(a)(2))
SEC. 300.701 State entitlement; formula.
(a) The maximum amount of the grant to which a State is entitled
under section 611 of the Act in any fiscal year is equal to
the number of handicapped children aged three through 21 in
the State who are receiving special education and related
services, multiplied by the applicable percentage, under
paragraph (b) of this section, of the average per pupil
expenditure in public elementary and secondary schools in the
United States.
(b) For the purposes of the formula in paragraph (a) of this
section, the applicable percentage of the average per pupil
expenditure in public elementary and secondary schools in the
United States for each fiscal year is:
(1) 1978 -- 5 percent,
(2) 1979 -- 10 percent,
(3) 1980 -- 20 percent,
(4) 1981 -- 30 percent, and
(5) 1982, and for each fiscal year after 1982, 40 percent.
(20 U.S.C. 1411(a)(1))
(c) For the purposes of this section, the average per pupil
expenditure in public elementary and secondary schools in the
United States, means the aggregate expenditures during the
second fiscal year preceding the fiscal year for which the
computation id made (or if satisfactory data for that year
are not available at the time of computation, then during the
most recent preceding fiscal year for which satisfactory data
are available) of all local educational agencies in the
United States (which, for the purpose of this section, means
fifty States and the District of Columbia), plus any direct
expenditures by the State for operation of those agencies
(without regard to the source of funds from which either of
those expenditures are made), divided by the aggregate number
of children in average daily attendance to whom those
agencies provided free public education during that preceding
year.
(20 U.S.C. 1411(a)(4))
SEC. 300.702 Limitations and exclusions.
(a) In determining the amount of a grant under Sec. 300.701 of
this subpart, the secretary may not count:
(1) Handicapped children in a State to the extent that the
number of those children is greater than 12 percent of
the number of all children aged five through 17 in the
State; and
(2) [Reserved]
(3) Handicapped children who are counted under section 121 of
the Elementary and Secondary Education Act of 1965.
(b) For the purposes of paragraph (a) of this section, the number
of children aged five through 17 in any State shall be
determined by the Secretary on the basis of the most recent
satisfactory data available to him.
(20 U.S.C. 1411(a)(5))
[42 FR 42476, Aug. 23, 1977, as amended at 42 65083, Dec. 29, 1977.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.703 Ratable reductions.
(a) General. If the sums appropriated for any fiscal year for
making payments to States under section 611 of the Act are
not sufficient to which all States are entitled to receive
for that fiscal year, the maximum amount which all States are
entitled to receive for that fiscal year shall be ratably
reduced. In case additional funds become available for
making payments for any fiscal year during which the
preceding sentence is applicable, those reduced amounts shall
be increased on the same basis they were reduced.
(20 U.S.C. 1411(g)(1))
(b) Reporting dates for local educational agencies and
reallocations.
(1) In any fiscal year in which the State entitlements have
been ratably reduced, and in which additional funds have
not been made available to pay in full the total of the
amounts under paragraph (a) of this section, the State
educational agency shall report to the State the amount
of funds available to it under this part which it
estimates it will expend.
(2) The amounts available under paragraph (a)(1) of this
section, or any amount which would be available to any
other local educational agency if it were to submit an
application meeting the requirements of this part, which
the State educational agency determines will not be used
for the period of its availability, shall be available
for allocation to those local educational agencies, in
the manner provided in Sec 300.707, which the State
educational agency determines will need and be able to
use additional funds to carry out approved programs.
(20 U.S.C. 1411(g)(2))
SEC. 300.704 Hold harmless provision.
No State shall receive less than the amount it received under
Part B of the Act for fiscal year 1977.
(20 U.S.C. 1411(a)(1))
SEC. 300.705 Allocation for State in which bypass is implemented for private
school handicapped children.
In determining the allocation under Sections 300.700-300.703 of a
State in which the Secretary will implement a by-pass for private
school handicapped children under Sections 300.451-300.486, the
Secretary includes in the State's child count --
(a) For the first year of a by-pass, the actual or estimated
number of private school handicapped children (as defined in
Sections 300.5(a) and 300.450 in the State, as of the
preceding December 1; and
(b) For succeeding years of a by-pass, the number of private
school handicapped children who received special education
and related services under the by-pass in the preceding year.
(20 U.S.C. 1411(a)(1)(A), 1411(a)(3), 1413(d))
[49 FR 48526, Dec. 12, 1984]
SEC. 300.706 Within-State distribution: Fiscal year 1979 and after.
Of the funds received under Sec. 300.701 by any State for fiscal
year 1979, and for each fiscal year after year 1979:
(a) 25 percent may be used by the State in accordance with Sec.
300.620 of Subpart F and Sec 300.370 of Subpart C, and
(b) 75 percent shall be distributed to the local educational
agencies in the State in accordance with Sec. 300.707.
(20 U.S.C. 1411(c)(1))
SEC. 300.707 Local educational agency entitlements; formula.
From the total amount of funds available to all local educational
agencies, each local educational agency is entitled to an amount
which bears the same ratio to the total amount as the number of
handicapped children aged three through 21 in that agency who are
receiving special education and related services bears to the
aggregate number of handicapped children aged three through 21
receiving special education and related services on all local
educational agencies which apply to the State educational agency
for funds under Part B of the Act.
(20 U.S.C. 1411(d))
SEC. 300.708 Reallocation of local educational agency funds.
If a State educational agency determines that a local educational
agency is adequately providing free appropriate public education
to all handicapped children residing in the area served by the
local agency with State and local funds otherwise available to
the local agency, the State educational agency may reallocate
funds (or portions of those funds which are not required to
provide special education and related services) made available to
the local agency under Sec. 300.707, to other local educational
agencies within the State which are not adequately providing
special education and related services to all handicapped
children residing in the areas served by the other local
educational agencies.
(20 U.S.C. 1414(e))
SEC. 300.709 Payments to Secretary of Interior.
(a) The Secretary id authorized to make payments to the Secretary
of the Interior according to the need for that assistance for
the education of handicapped children on reservations
serviced by elementary and secondary schools operated for
Indian children by the Department of the Interior.
(b) The amount of those payments for any fiscal year shall not
exceed one percent of the aggregate amounts available to all
States for that fiscal year under Part B of the Act.
(20 U.S.C. 1411(f)(1))
SEC. 300.710 Entitlements to jurisdictions.
(a) The jurisdictions to which this section applies are Guam,
American Samoa, the Virgin Islands, and the Trust Territory
of the Pacific Islands.
(b) Each jurisdiction under paragraph (a) of this section id
entitled to a grant for the purposes set forth in section
601(c) of the Act. The amount to which those jurisdictions
are so entitled for any fiscal year shall not exceed an
amount equal to 1 percent of the aggregate of the amounts
available to all States under this part for that fiscal year.
Funds appropriated for those jurisdictions shall be allocated
proportionately among them on the basis of the number of
children aged three through twenty-one in each jurisdiction.
However, no jurisdiction shall receive less than $150,000,
and other allocations shall be ratably reduced if necessary
to insure that each jurisdiction receives at least that
amount.
(c) The amount expended for administration by each jurisdiction
under this section shall not exceed 5 percent of the amount
allotted to the jurisdiction for any fiscal year, or $35,000,
whichever is greater.
(20 U.S.C. 1411(e))
REPORTS
SEC. 300.750 Annual report of children served -- report requirement.
(a) The State educational agency shall report to the Secretary no
later than February 1 of each year the number of handicapped
children aged three through 21 residing in the State who are
receiving special education and related services.
(20 U.S.C. 1411(a)(3))
(b) The State educational agency shall submit the report on forms
provided by the Secretary.
(20 U.S.C. 1411(a)(3))
Comment. It is very important to understand that this report and the
requirements that relate to it are solely for allocation purposes, The
population of children the State may count for allocation purposes may
differ from the population of children to whom the State must make
available a free appropriate public education. For example, while section
611(a)(5) of the Act limits the number of children who may be counted for
allocation purposes to 12 percent of the general school population aged
five through seventeen, a State might find that 14 percent (or some other
percentage) of its children are handicapped. In that case, the State must
make free appropriate public education available to all of those
handicapped children.
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 7551, Feb. 4, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980]
SEC. 300.751 Annual report of children served -- information required in the
report.
(a) In its report, the State educational agency shall include a
table which shows:
(1) The number of handicapped children receiving special
education and related services on December 1 of that
school year;
(2) The number of those handicapped children within each
disability category, as defined in the definition of
"handicapped children" in Sec. 300.5 of Subpart A; and
(3) The number of those handicapped children aged three
through twenty-one for each year of age (three, four,
five, etc.). For fiscal year 1985, a State educational
agency that does not currently collect information in
this manner may report the number of those handicapped
children within each of the following age groups:
(i) Three through five.
(ii) Six through eleven.
(iii) Twelve through seventeen.
(iv) Eighteen through twenty-one.
(b) For the purpose of this part, a child's age is the child's
actual age on the date of the child count: December 1.
(c) The State educational agency may not report a child under
more than one disability category.
(d) If a handicapped child has more than one disability, the
State educational agency shall report that child in
accordance with the following procedure:
(1) A child who is both deaf and blind must be reported as
"deaf-blind."
(2) A child who has more than one disability (other than a
deaf-blind child) must be reported as "multihandicapped."
(The information collection requirements contained in paragraphs (a)(3)
and (b) were approved by the Office of Management and Budget under
control number 1820-0043)
(20 U.S.C. 1411(a)(3); 1411(a)(5)(A)(ii): 1418(b))
[42 FR 42476, Aug. 23, 1977, as amended at 45 FR 7551, Feb. 4, 1980.
Redesignated at 45 FR 77368, Nov. 21, 1980; 49 FR 48525, Dec 12, 1984]
SEC. 300.752 Annual report of children served -- certification.
The State educational agency shall include in its report a
certification signed by an authorized official of the agency that
the information provided is an accurate and unduplicated count of
handicapped children receiving special education and related
services on the dates in question.
(20 U.S.C. 1411(a)(3); 1417(b))
SEC. 300.753 Annual report of children served -- criteria for counting
children.
(a) The State educational agency may include handicapped children
in its report who are enrolled in a school or program which
is operated or supported by a public agency, and which
either:
(1) Provides them with both special education and related
services; or
(2) Provides them only with special education if they do not
related services to assist them in benefitting from that
special education.
(b) The State educational agency may not include handicapped
children in its report who:
(1) Are not enrolled in school or program operated or
supported by a public agency;
(2) Are not provided special education that meets State
standards;
(3) Are not provided with a related service that they need to
assist them in benefitting from special education;
(4) Are counted by a State agency under section 121 of the
Elementary and Secondary Education Act of 1965, as
amended; or
(5) Are receiving special education funded solely by the
Federal Government. However, the State may count children
covered under Sec. 300.186 of Subpart B.
(20 U.S.C. 1411(a)(3); 1417(b))
Comment.
1. Under paragraph (a), the State may count handicapped children in a
Head Start or other preschool program operated or supported by a
public agency if those children are provided special education that
meets States standards.
2. "Special education," by statutory definition, must be at no cost to
parents. As of September 1, 1978, under the free appropriate public
education requirement, both special education and related services
must be at no cost to parents.
There may be some situations, however, where a child receives special
education from a public source at no cost, but whose parents pay for
the basic or regular education. This child may be counted. The
Department expects that there would only be limited situations where
special education would be clearly separate from regular education --
generally, where speech therapy is the only special education required
by the child. For example, the child might be in a regular program in
a parochial or other private school but receiving speech therapy in a
program funded by the local educational agency. Allowing these
children to be counted will provide incentives (in addition to
complying with the legal requirement in section 613(a)(4)(A) of the
Act regarding private schools) to public agencies to provide services
to children in private schools, since funds are generated in part on
the basis of the number of children provided special education and
related services. Agencies should understand, however, that where a
handicapped child is placed in or referred to a public or private
school for educational purposes, special education includes the entire
educational program to the child. In that case, parents may not be
charged for any part of the child's education.
A State may not count Indian children on or near reservations and
children on military facilities if it provides them no special
education. If a State or local educational agency is responsible for
serving these children, and does provide them special education and
related services, they may be counted.
SEC. 300.754 Annual report of children served -- other responsibilities of the
State educational agency.
In addition to meeting the other requirements in this subpart,
the State educational agency shall:
(a) Establish procedures to be used by local educational agencies
and other educational institutions in counting the number of
handicapped children receiving special education and related
services;
(b) Set dates by which those agencies and institutions must
report to the State educational agency to insure that the
State complies with Sec. 300.750(a);
(c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency
and institution, and prepare the reports required under this
subpart; and
(e) Insure that the documentation is maintained which enables the
State and the Secretary to audit the accuracy of the count.
(20 U.S.C. 1411(a)(3); 1417(b))
Comment. States should note that the data required in the annual report
of children served are not to be transmitted to the Secretary in
personally identifiable form. States are encouraged to collect these data
in non-personally identifiable form.
APPENDIX A - [RESERVED]
APPENDIX B -- INDEX TO PART 300
ADMINISTRATION
See: Monitoring.
Annual program plan requirements -- Sections 300.112; 300.134; 300.138;
300.141; 300.142; 300.145.
Certification of State authority -- Sec. 300.112.
Direct Service by State educational agency -- Sec. 300.360
Local application requirements -- Sections 300.228; 300.236; 300.240
Local education agency definition -- Sec. 300.8.
State administration -- Subpart F.
ADVISORY PANEL (STATE)
Annual program plan requirement -- Sec. 300.147
General requirements -- Sections 300.650 - 300.653.
ALLOCATIONS
Annual program plan condition of assistance -- Sec. 300.110.
Application by local agency condition of assistance -- Sec. 300.180.
Consolidated applications -- Sec. 300.191.
Count of children -- See Reports.
Interior Department for Indian children -- Sec. 300.709.
Local agency allocation -- See Reports.
Formula -- Sections 300.705-300.707.
Reallocation -- Sec. 300.708.
Use by State -- Sec. 300.360.
Outlaying areas -- Sec. 300.710.
Recovery for misclassified children -- Sec. 300.141.
State allocation:
Formula -- Sections 300.701-300.703; 300.705-300.706.
Hold harmless -- Sec. 300.704.
Use for administration -- Sections 300.620-300.621.
Use of -- See other headings.
Withholding -- See: Hearings.
From the local agency -- Sec. 300.194.
From the State -- Sections 300.590-300.593.
ANNUAL PROGRAM PLAN
Approval; disapproval -- Sec. 300.113.
Certification -- Sec. 300.112.
Condition of assistance to State -- Sec. 300.110.
Contents -- Sections 300.111; 300.112; 300.120-300.151
Effective period -- Sec. 300.114.
General requirements -- Sections 300.110-300.114.
Public participation -- See: Public Participation
Submission by State -- Sec. 300.110.
APPLICABILITY OF REGULATIONS -- Sec. 300.2
APPLICATION BY LOCAL AGENCY
Annual program plan requirement -- Sec. 300.144.
Approval or disapproval by State educational agency -- Sections 300.193;
300.360.
Second priority children -- amendment of application -- Sec. 300.324.
Submission by local agency -- Sec. 300.180.
Condition of assistance to local agency -- Sec. 300.180.
Consolidated application -- Sections 300.190-300.192.
Context -- Sections 300.220-300.240.
Excess costs -- See: Excess Costs.
Public participation -- See: Public Participation.
AUDITS
See: Monitoring.
COMPLAINTS
State educational agency procedures -- Sec. 300.602.
See: Hearings.
COMPARABLE SERVICES
Local application requirement -- Sec. 300.231.
CONSENT
Defined -- Sec. 300.500
Disclosure of information -- Sec. 300.571.
Initial placement -- Sec. 300.504(b).
Placement status during a proceeding -- Sec. 300.513.
Preplacement evaluation of child -- Sec. 300.504(b).
CONFIDENTIALITY OF INFORMATION
Annual program plan requirement -- Sec. 300.129.
Definitions -- Sec. 300.560.
General requirements -- Sections 300.560-300.572.
Local application requirements -- Sec. 300.221.
CONSOLIDATED APPLICATIONS
See: Application By Local Agency.
COUNT OF CHILDREN
Annual report of children served -- Sections 300.750-300.754.
Allocations:
State entitlement -- Section 300.701-300.702.
Local educational agency entitlement -- Sec. 300.707.
Outlaying areas entitlements -- Sec. 300.710.
DEFINITIONS -- Sections 300.4-300.15
DUE PROCESS
See: Confidentiality of Information.
Evaluation.
Hearings.
Notice.
Procedures for parents and children -- Sections 300.500-300.514.
EDUCATION
See: Free Appropriate Public Education.
Full Educational Opportunity Goal.
Individualized Education Program.
Personnel Development.
Physical Education.
Special Education.
Related Services.
EVALUATION
Advisory panel function -- Sec. 300.652.
Annual program plan requirements -- Sections 300.128; 300.133; 300.146.
Education programs -- Sec. 300.146
Handicapped children:
Consent required for -- Sec. 300.504.
Defined -- Sec. 300.500.
Hearings -- See: Hearings.
Independent educational evaluation -- Sec. 300.503.
Information on achievement -- Sec. 300.232.
Notice required -- Sections 300.504-300.505
Protection -- Sections 300.129, 300.133, 300.221, 300.530-300.534.
State responsibility -- Sec. 300.128.
Hearing aids -- Sec. 300.303.
Individualized education programs -- Sec. 300.146.
Personnel development -- Sec. 300.386.
Private school children service needs -- Sec. 300.453.
State educational agency activities -- Sections 300.146; 300.601.
Training -- See: Personnel development, this heading.
EXCESS COSTS
Generally -- Sections 300.182-300.186.
Local application requirement -- Sec. 300.229
Not applicable to State educational agency -- Sec. 300.360.
FREE APPROPRIATE PUBLIC EDUCATION
See: Individualized Education Programs.
Related Services.
Special Education.
Time Limits and Timetables.
Annual program plan requirements -- Sections 300.121-300.122.
Defined -- Sec. 300.4.
Generally -- Sections 300.300-300.303; 300.307.
Initiation or change -- See: Notice.
State practice exception -- Sec. 300.300.
State use of local agency's allocation -- Sec. 300.360.
Priorities -- Sections 300.320-300.324.
FULL EDUCATIONAL OPPORTUNITY GOAL
Annual program plan requirements -- Sections 300.123-300.126.
General requirements -- Sections 300.304-300.306.
Local application requirements -- Sections 300.222-300.223.
HANDICAPPED CHILDREN
Defined -- Sec. 300.5.
Rights
See: Confidentiality of Information.
Due Process.
Evaluation.
Free Appropriate Public Education.
Hearing.
Identification, Location, Evaluation.
Individualized Education program.
Least Restrictive Environment.
Notice.
Private School Children.
Special Education.
Related Services.
HEARINGS
Disapproval of annual program plan -- Sec. 300.113.
Disapproval of local application -- Sec. 300.194.
Department procedures -- Sections 300.580-300.593.
Parents and children:
Identification, evaluation, placement -- Sections 300.506-300.514.
Confidentiality of information -- Sections 300.568-300.570.
Public hearings before adopting annual program plan -- Sections 300.280-
300.284.
Withholding payments from a State -- Sec. 300.590.
IDENTIFICATION, LOCATION, EVALUATION
See: Evaluations.
Annual program plan requirement -- Sec. 300.128.
Local application requirement -- Sec. 300.220.
Private school children -- Sec. 300.453.
INDIAN CHILDREN
Application from Secretary of Interior -- Sections 300.260-300.263.
Count -- Sec. 300.753.
Payments to Secretary of Interior -- Sec. 300.709.
INDIVIDUALIZED EDUCATION PROGRAM
Accountability -- Sec. 300.349.
Annual program plan requirement -- Sec. 300.130.
Content -- Sec. 300.346.
Defined -- Sec. 300.340.
Effective dates -- Sec. 300.342.
First priority children -- Sec. 300.322.
Free appropriate public education definition -- Sec. 300.4.
General requirements -- Sections 300.340-300.349.
Least restrictive environment -- Sec. 300.552.
Local application requirement -- Sec. 300.235.
Meetings -- Sections 300.343-300.345.
Parent participation -- Sec. 300.344.
Placement -- Sections 300.533; 300.552.
Private school children -- Sections 300.347-300.248; 300.401.
Reevaluation -- Sec. 300.534.
LEAST RESTRICTIVE ENVIRONMENT
Annual program plan requirement -- Sec. 300.132.
General requirements -- Sections 300.550-300.556.
Local application requirement -- Sec. 300.227.
Nature and location of State services -- Sec. 300.361.
Nonacademic services and settings -- Sections 300.306; 300.553.
Physical education -- Sec. 300.307.
Placement decisions -- Sections 300.513; 300.533.
Program options -- Sec. 300.305.
MATCHING -- Sec. 300.371
MONITORING
Annual program plan requirements -- Sections 300.128(b)(5); 300.130(b)(2);
300.135.
Auditing count of children served -- Sec. 300.754.
Confidentiality of information -- Sec. 300.575.
Individualized education programs -- Sec. 300.130(b)(2).
Least restrictive environment -- Sec. 300.556.
Private school children -- Sec. 300.402(a).
State educational agency responsibility -- Sec. 300.530.
NONDISCRIMINATION
Annual program requirement -- Sec 300.150.
Evaluation materials and procedures -- Sec. 300.530.
Local application requirement -- Sec. 300.239.
Nonacademic services -- Sec. 300.306.
Private school children -- Sec. 300.458.
Program options -- Sec. 300.305.
Testing materials and procedures -- Sec. 300.530.
NOTICE
Confidentiality of Information -- Sections 300.561, 300.573.
Individualized education program meeting -- Sec. 300.345.
Initiation or change of identification, evaluation, placement, or free
appropriate public education -- Sections 300.504-300.505.
Notice of opportunity for a hearing -- See: Hearings.
Notice of procedural safeguards -- Sec. 300.505.
Public notice of withholding payments -- Sec. 300.592.
PERSONNEL DEVELOPMENT
Annual program plan requirement -- Sec. 300.139.
Comprehensive system of personnel development -- Sections 300.380-300.387.
Included in State support services -- Sec. 300.370.
Least restrictive environment -- Sec. 300.555.
Local application requirement -- Sec. 300.224.
Personnel needs -- Sections 300.126; 300.223.
Trained personnel for evaluation materials -- Sec. 300.532.
Training regarding confidentiality of information -- Sec. 300.572.
Use of Part B funds for training -- Sections 300.321, 300.322.
PHYSICAL EDUCATION
Included in special education -- Sec. 300.14.
Required -- Sec. 300.307.
PLACEMENTS
See: Evaluation.
Least Restrictive Environment.
Private Schools.
PRIORITIES
See: Evaluation.
Identification, Location, Evaluation.
Annual program plan requirement -- Sec. 300.127.
Definitions:
First priority children -- Sec. 300.320(a).
Second priority children -- Sec. 300.320(b).
General requirements -- Sections 300.320-300.324.
Local application requirement -- Sec. 300.225.
State direct and support services -- Sec. 300.370.
PRIVATE SCHOOL CHILDREN
Annual program plan requirement -- Sec. 300.140.
Confidentiality of information -- Sec. 300.506.
Cost of residential placement. -- Sec. 300.302.
Handicapped children placed or referred by public agencies -- Sections
300.400-300.403.
Handicapped children not placed or referred by public agencies -- Sections
300.450-300.460.
Individualized education program -- Sections 300.347-300.348.
Least restrictive environment -- Sec. 300.554.
Part B applicability to private schools -- Sec. 300.2.
Physical education -- Sec. 300.307.
PROCEDURAL SAFEGUARDS
See: Complaints.
Consent.
Hearings.
Notice.
Surrogate Parents.
Annual program plan requirements -- Sections 300.131; 300.136.
Local application requirement -- Sec. 300.237.
PUBLIC PARTICIPATION
See: Hearings.
Annual program plan requirements -- Sections 300.120; 300.137; 300.280-
300.284.
Local application requirements Sections 300.226; 300.234.
Secretary of Interior application -- Sec. 300.261.
State advisory panel -- Sections 300.650-300.654.
RECORDS
See: Confidentiality of Information.
Annual program plan requirement -- Sec. 300.143.
Comparable services -- Sec. 300.231.
Count of children served -- Sec. 300.754.
Excess costs -- Sec. 300.183.
Individualized education programs -- Sec. 300.130.
Local application requirement -- Sec. 300.233.
Parents may examine -- Sections 300.502; 300.562.
Parents not participating in meetings -- Sec. 300.345.
RELATED SERVICES
See: Free Appropriate Public Education.
Individualized Education Program.
Defined -- Sec. 300.13.
REPORTS
Annual report of children served -- Sections 300.750-300.754.
Local application requirements -- Sections 300.232; 300.233.
State advisory panel -- Sec. 300.652.
SPECIAL EDUCATION
See: Free Appropriate Public Education.
Individualized Education Program.
Defined -- Sec. 300.14.
STATE ADVISORY PANEL
Annual Program plan requirement -- Sec. 300.147.
General requirements -- Sections 300.650-300.653.
STATE DIRECT AND SUPPORT SERVICES
Annual program plan requirement -- Sec. 300.51.
General requirements -- Sections 300.360-300.372.
SUPPLANTING
Applicability to State educational agency -- Sec. 300.372.
Local application requirement -- Sec. 300.230.
Private schools -- Sec. 300.460.
Waiver of requirement -- Sec. 300.589.
SURROGATE PARENTS
Definition of parent -- Sec 300.10.
Duty of public agency to assign -- Sec. 300.514.
Responsibilities -- Sec. 300.514.
Selection -- Sec. 300.514.
TESTING
See: Evaluation.
TIME LIMITS AND TIMETABLES
Annual program plan effective period -- Sec. 300.114.
Evaluation of educational programs -- Sec. 300.146.
Free appropriate public education -- Sections 300.122; 300.300.
Full educational opportunity goal -- Sections 300.125; 300.222.
Hearing decisions -- Sections 300.512; 300,583.
Individualized education programs -- Sections 300.342; 300.343.
Public participation in the annual program plan -- Sections 300.280-300.284.
Reevaluation -- Sec. 300.534.
Report of children served -- Sections 300.750-300.754.
State monitoring of public agencies -- Sec. 300.601.
State review of hearing decision -- Sec. 300.512.
TRAINING
See: Personnel Development.
USE OF PART B FUNDS
Allocation formulas:
Consolidated applications -- Sections 300.190-300.191.
Entitlements -- Sections 300.700-300.710.
Annual program plan requirements -- Sections 300.148; 300.149.
Department of the Interior (Indian children) -- Sec. 300.262.
Excess costs -- Sections 300.182-300.186.
Local application requirement -- Sec. 300.238.
State and local educational agencies:
Free appropriate public education -- Sections 300.301-300.302.
Full educational opportunity goal -- Sec. 300.304(b).
Priorities -- Sections 300.320-300.324.
Private school children -- Sections 300.450-300.460.
State educational agencies:
Allowable costs -- Sec. 300.621.
Federal funds for State administration -- Sec. 300.620.
Matching -- Sec. 300.371.
State advisory panel -- Sec. 300.652.
Use of local allocation for direct services -- Sections 300.360-300.361.
Use of State educational agency allocation for direct and support services
-- Sec. 300.370
Supplanting -- Sections 300.230; 300.372; 300.589.
Training -- See: Personnel Development.
This document was typed into data by Rick Catania.
It is available for downloading from The Special Needs BBS.
Data Line: (219) 659-0112 300-2400 Baud
