[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12505-12554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-14]
[[pp. 12505-12554]] Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities
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BILLING CODE 4000-01-C
PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES
2. The authority citation for part 303 continues to read as
follows:
Authority: 20 U.S.C. 1431-1445, unless otherwise noted.
Sec. 303.1 [Amended]
3. Section 303.1 is amended by removing the word ``program'' in
paragraph (a), and adding, in its place, ``system.''
Sec. 303.4 [Amended]
4. Section 303.4 is amended by revising the authority citation to
read as follows:
(Authority: 20 U.S.C. 1419(h))
5. Section 303.5 is amended by adding ``, and'' at the end of
paragraph (a)(1)(vi), by revising paragraph (a)(3), and by revising the
authority citation to read as follows:
Sec. 303.5 Applicable regulations.
* * * * *
(a) * * *
(3) The following regulations in 34 CFR part 300 (Assistance to
States for the Education of Children with Disabilities Program):
Secs. 300.560-300.577, and Secs. 300.580-300.585.
* * * * *
(Authority: 20 U.S.C. 1401, 1416, 1417)
Secs. 303.6, 303.12, and 303.18 [Amended]
6. The note preceding Sec. 303.6 and following the heading
``Definitions'' is amended by removing the phrase ``'natural
environments'' in Sec. 303.12(b)(2)'' and adding, in its place,
```natural environments' in Sec. 303.18''.
7. Section 303.10 is revised to read as follows:
Sec. 303.10 Developmental delay.
As used in this part, ``developmental delay,'' when used with
respect to an individual residing in a State, has the meaning given to
that term under Sec. 303.300.
(Authority: 20 U.S.C. 1432(3))
Sec. 303.12 [Amended]
8. Section 303.12(d)(11) is amended by removing the reference to
``Sec. 303.22'' and by adding in its place ``Sec. 303.23''.
9. Section 303.19 is revised to read as follows:
Sec. 303.19 Parent.
(a) General. As used in this part, ``parent'' means--
(1) A natural or adoptive parent of a child;
(2) A guardian;
(3) A person acting in the place of a parent (such as a grandparent
or stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare); or
(4) A surrogate parent who has been assigned in accordance with
Sec. 303.406.
(b) Foster parent. Unless State law prohibits a foster parent from
acting as a parent, a State may allow a foster parent to act as a
parent under Part C of the Act if--
(1) The natural parents' authority to make the decisions required
of parents under the Act has been extinguished under State law; and
(2) The foster parent--
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the decisions required of parents under the
Act; and
(iii) Has no interest that would conflict with the interests of the
child.
(Authority: 20 U.S.C. 1401(19), 1431-1445)
10. Section 303.100 is amended by revising paragraph (d)(2) to read
as follows:
Sec. 303.100 Conditions of assistance.
* * * * *
(d) * * *
(2) A new interpretation is made of the Act by a Federal court or
the State's highest court; or
* * * * *
Sec. 303.140 [Amended]
11. In Sec. 303.140 paragraph (b) is amended by adding the words,
``in the State'' after ``services are available to all infants and
toddlers with disabilities''.
Sec. 303.145 [Amended]
12. Section 303.145 is amended by revising the heading for
paragraph (c) to
[[Page 12536]]
read ``Maintenance and implementation activities''; and by removing the
words ``planning, developing'' in paragraph (c)(1), and adding, in
their place, ``maintaining''. 3. Section 303.344 is amended by adding
``and'' after ``Sec. 303.12(b)'' in paragraph (d)(1)(ii), and by
revising paragraph (h)(1) to read as follows:
Sec. 303.344 Content of an IFSP.
* * * * *
(h) Transition from Part C services. (1) The IFSP must include the
steps to be taken to support the transition of the child, in accordance
with Sec. 303.148, to--
(i) Preschool services under Part B of the Act, to the extent that
those services are appropriate; or
(ii) Other services that may be available, if appropriate.
* * * * *
14. Section 303.403 is amended by removing the word ``and'' at the
end of paragraph (b)(2); by revising paragraph (b)(3); by adding a new
paragraph (b)(4); and by revising the authority citation to read as
follows:
Sec. 303.403 Prior notice; native language.
* * * * *
(b) * * *
(3) All procedural safeguards that are available under
Secs. 303.401-303.460 of this part; and
(4) The State complaint procedures under Secs. 303.510-303.512,
including a description of how to file a complaint and the timelines
under those procedures.
* * * * *
(Authority: 20 U.S.C. 1439(a)(6) and (7))
15. Section 303.510 is revised to read as follows:
Sec. 303.510 Adopting complaint procedures.
(a) General. Each lead agency shall adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that any public agency
or private service provider is violating a requirement of Part C of the
Act or this Part by--
(i) Providing for the filing of a complaint with the lead agency;
and
(ii) At the lead agency's discretion, providing for the filing of a
complaint with a public agency and the right to have the lead agency
review the public agency's decision on the complaint; and
(2) Widely disseminating to parents and other interested
individuals, including parent training centers, protection and advocacy
agencies, independent living centers, and other appropriate entities,
the State's procedures under Secs. 303.510-303.512.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which it finds a failure to provide appropriate services,
a lead agency, pursuant to its general supervisory authority under Part
C of the Act, must address:
(1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child and the child's family;
and
(2) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.
(Authority: 20 U.S.C. 1435(a)(10))
16. Section 303.511 is revised to read as follows:
Sec. 303.511 An organization or individual may file a complaint.
(a) General. An individual or organization may file a written
signed complaint under Sec. 303.510. The complaint must include--
(1) A statement that the State has violated a requirement of part C
of the Act or the regulations in this part; and
(2) The facts on which the complaint is based.
(b) Limitations. The alleged violation must have occurred not more
than one year before the date that the complaint is received by the
public agency unless a longer period is reasonable because--
(1) The alleged violation continues for that child or other
children; or
(2) The complainant is requesting reimbursement or corrective
action for a violation that occurred not more than three years before
the date on which the complaint is received by the public agency.
(Authority: 20 U.S.C. 1435(a)(10))
17. Section 303.512 is revised to read as follows:
Sec. 303.512 Minimum State complaint procedures.
(a) Time limit, minimum procedures. Each lead agency shall include
in its complaint procedures a time limit of 60 calendar days after a
complaint is filed under Sec. 303.510(a) to--
(1) Carry out an independent on-site investigation, if the lead
agency determines that such an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part C of the Act or of this Part; and
(4) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the lead agency's final decision.
(b) Time extension; final decisions; implementation. The lead
agency's procedures described in paragraph (a) of this section also
must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if exceptional circumstances exist with respect to a
particular complaint; and
(2) Include procedures for effective implementation of the lead
agency's final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section, and due process hearings
under Sec. 303.420. (1) If a written complaint is received that is also
the subject of a due process hearing under Sec. 303.420, or contains
multiple issues, of which one or more are part of that hearing, the
State must set aside any part of the complaint that is being addressed
in the due process hearing until the conclusion of the hearing.
However, any issue in the complaint that is not a part of the due
process action must be resolved within the 60-calendar-day timeline
using the complaint procedures described in paragraphs (a) and (b) of
this section.
(2) If an issue is raised in a complaint filed under this section
that has previously been decided in a due process hearing involving the
same parties--
(i) The hearing decision is binding; and
(ii) The lead agency must inform the complainant to that effect.
(3) A complaint alleging a public agency's or private service
provider's failure to implement a due process decision must be resolved
by the lead agency.
(Authority: 20 U.S.C. 1435(a)(10))
18. Section 303.520 is amended by adding a new paragraph (d); and
revising the authority citation to read as follows:
Sec. 303.520 Policies related to payment for services.
* * * * *
(d) Proceeds from public or private insurance. (1) Proceeds from
public or
[[Page 12537]]
private insurance are not treated as program income for purposes of 34
CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds
(e.g., Medicaid) for services under this part, those funds are not
considered State or local funds for purposes of the provisions
contained in Sec. 303.124.
(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10))
(Note: This attachment will not be codified in the Code of Federal
Regulations.)
Attachment 1--Analysis of Comments and Changes
The following is an analysis of the significant issues raised by
the public comments received on the NPRM published on October 22, 1997
(62 FR 55026), and a description of the changes made in the proposed
regulations since publication of the NPRM.
Except for relevant general comments relating to the overall NPRM,
which are discussed at the beginning of this analysis, specific
substantive issues are discussed under the subpart and section of the
regulations to which they pertain. References to subparts and section
numbers in this attachment are to those contained in the final
regulations.
This analysis generally does not address--
(a) Minor changes, including technical changes, made to the
language published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority;
(c) The organizational structure of these regulations and the
extent to which statutory language is used; and
(d) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that lie within the purview of State
and local decision-makers.
General Comments
Comment: Some commenters stated that the notes in the regulations
are extremely important because they provide additional information and
clarification. Other commenters expressed concerns about the extensive
use of notes throughout the NPRM and raised questions about their legal
status. Several of the commenters stated that the number of notes
should be dramatically reduced because they go well beyond
clarification, creating a new interpretation that differs from the
statutory language.
Many of the commenters stated that any note that is intended to be
a requirement should be incorporated into the text of the regulations.
Some of the commenters felt that all other notes that are not
requirements should be deleted or otherwise moved to a nonregulatory
format, such as a technical assistance document. Other commenters
indicated that notes should be used only for guidance and examples, or
clarifying information, including appropriate references to recent
legislative history.
Discussion: In light of the comments received, certain changes with
respect to notes in these final regulations are appropriate and should
be made. The Department does not regulate by notes. Therefore, the
substance of any note that should be a requirement should be
incorporated into the text of the regulations. Information that was
contained in a note that provides meaningful guidance is reflected in
the discussion of the relevant section of these regulations in this
Attachment so that the public will have access to the information.
Information in any note that is not considered to be useful should
simply be removed.
Changes: Consistent with the above discussion, all notes have been
removed as notes from these final regulations. The substance of any
note considered to be a requirement has been added to the text of the
regulations. Information in any note considered to provide clarifying
information or useful guidance has been incorporated into the
discussion of the applicable comments in this Attachment or, as
appropriate, in Appendix A (Notice of Interpretation on IEPs). Notes
that are no longer relevant have simply been deleted. A table is
included in attachment 3 that describes the disposition of all notes in
the NPRM.
Comment: A few commenters stated that the NPRM should have focused
only on implementing the IDEA Amendments of 1997, and expressed concern
that it was used to regulate on subjects addressed in previous policy
letters that should be published separately for public comment. These
commenters stated that the attempt to bring forward in the NPRM policy
letters that interpret prior law is inappropriate because the new law
has a goal of including children with disabilities in the general
curriculum and improving results for these children, in contrast to the
focus in prior law of simply providing disabled children access to
public schools.
Discussion: Publishing a separate NPRM on longstanding policy
letters is not in the best interests of the general public because it
would impose an added burden on the reviewers and would be inefficient,
ineffective, and very costly. In fact, by incorporating the positions
taken in these policy letters into the NPRM, they already have been
subjected to the public comment process. It also would be confusing
both to parents and public agencies if the longstanding policy
interpretations were not included in these final regulations, because
it would imply that the provisions were no longer in effect. Moreover,
it is important for parents, public agency staff, and others to be able
to review all proposed changes to the regulations at one time and in a
single context.
Although the new amendments place greater emphasis on the
participation of disabled children in the general curriculum and on
ensuring better results for these children, the essential rights and
protections in prior law, including the concept of the least
restrictive environment have been retained under the IDEA Amendments of
1997, and, in many respects, have been strengthened. Many of the
interpretations of prior law--including those relating to the rights
and protections afforded under the law--continue to be relevant to
implementing Part B. Therefore, it would be inappropriate to exclude
them from the final regulations.
Changes: None.
Comment: Some commenters stated that, in the preamble to the NPRM,
the characterization of prior law as focusing simply on ensuring access
to education is a misstatement and should be deleted. The commenters
indicated that the courts have traditionally acknowledged that disabled
children were entitled to participate fully in all educational programs
and services available to all other students, and added that a correct
interpretation of prior law is necessary because of pending and new
court cases.
Discussion: The broader interpretation of prior law raised by
commenters is the correct one. That characterization is reflected in
the definition of FAPE (that, among other things, FAPE includes
preschool, elementary, or secondary school education in the State), and
in the provisions under Secs. 300.304 (Full educational opportunity
goal) and 300.305 (Program options). The statement in the preamble,
however, was reflective of the status of the education of disabled
children prior to 1975--in which approximately one million of those
children were excluded from public education, and of the evolution of
the program over a 22-year period.
Experience and research over that period have demonstrated that, as
reflected in the statutory findings, the education of disabled children
can be
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more effective by having higher expectations for those children, and
ensuring their access to the general curriculum, as well as other
findings (see section 601(c)(5) of the Act). Therefore, it is correct
to state that the 1997 amendments place greater emphasis on a results-
oriented approach related to improving educational results for disabled
children than was true under prior law.
Changes: None.
Comment: Commenters requested clarification relating to the
``reserved'' sections in the regulations, and indicated that if
regulatory language is inserted into those reserved sections, the
inserted language should be subjected to the same field input process
that was used for the rest of the regulations.
Discussion: The reserved sections are simply placeholders for
future regulations, if further regulations become necessary. Any
regulations that would be added to those reserved sections in the
future would be subject to notice and comment in accordance with the
Department's rulemaking procedures. These procedures include a 90-day
public comment period as required by section 607(a) of the Act.
Changes: None.
Subpart A
Purposes (Sec. 300.1)
Comment: Some commenters requested that Sec. 300.1 be amended to
include the new purposes under sections 601(d)(2) of the Act (relating
to the early intervention program for infants and toddlers with
disabilities under Part C of the Act), and 601(d)(3) (relating to
ensuring that educators and parents have the tools necessary to improve
educational results for children with disabilities).
Some commenters expressed their support of the emphasis on
independent living and preparation for employment in the Act and
regulations. A few commenters stated that the note following Sec. 300.1
(that includes the definition of ``independent living'' from the
Rehabilitation Act of 1973), sets forth the spirit of these
regulations. Other commenters requested that the note be revised to
clarify that the purpose of the note is not to disturb the longstanding
understanding of FAPE for children with disabilities, and that
maximization of educational services is not required under Part B.
Several commenters recommended that the note be deleted. Some of
these commenters stated that it is misleading and confusing to include
the purposes of other statutes in these regulations, that it implies
that school districts are responsible for some rehabilitation services,
and that ``independent living'' is a term of art, and not just an
educational enterprise.
Discussion: Section 300.1 includes the statutory purposes that are
specifically related to the Assistance for Education of All Children
with Disabilities Program under Part B of the Act and to these
regulations, which are codified at 34 CFR Part 300. Therefore, the list
of statutory purposes contained in Sec. 300.1 should be retained.
Although statutory purposes relating to Part C have not been
included in these regulations, these purposes were included as part of
the regulations in 34 CFR Part 303 implementing Part C published in the
Federal Register on April 14, 1998 (63 FR 18289). In addition, although
the second purpose in section 601(d)(3) of the Act is relevant to the
successful implementation of these regulations, (i.e., ensuring that
educators and parents have the tools necessary to improve educational
results for children with disabilities) this statutory purpose is
directed at the discretionary programs under Part D of the Act, and not
to the requirements under Part B.
Independent living is an important concept in the education of
children with disabilities, as set forth in Sec. 300.1(a). However,
because the note goes beyond the stated purposes of these regulations
and focuses on a provision from another law, it is confusing, and the
note should be deleted.
Changes: The note following Sec. 300.1 has been deleted. A
discussion of independent living has been incorporated into Appendix A
with respect to transition services.
Applicability to State, Local, and Private Agencies (Sec. 300.2)
Comment: A few commenters recommended that charter schools be
included in the list of public agencies to which these regulations
apply, because these schools are sometimes treated by State law as
political subdivisions, and, thus, would be subject to the requirements
of these regulations. Other commenters emphasized the importance of
clarifying the formal obligations of agencies other than educational
agencies, particularly with respect to mental health services.
Discussion: Because of the increasing attention that charter
schools are receiving, it is appropriate to specifically clarify that
under the statute public charter schools that are not otherwise already
included as LEAs or ESAs and are not a school of an LEA or ESA in the
list of political subdivisions that are subject to the requirements of
these regulations. Charter schools are also addressed in other sections
of these regulations (see analysis of comments under Secs. 300.18,
300.22, 300.241, and 300.312).
A change is not necessary to address responsibility of an agency
other than an educational agency for services necessary for ensuring a
free appropriate public education including mental health services.
Section 300.142 addresses interagency agreements and the requirements
of section 612(a)(12) of the Act regarding methods of ensuring
services. See discussion of Sec. 300.142 in this Analysis.
In light of the general decision to remove all notes from these
final regulations, the note following this section of the NPRM should
be deleted. The substance of this note, regarding the applicability of
these regulations to each public agency that has direct or delegated
authority to provide special education and related services in a State
receiving Part B funds, regardless of that agency's receipt of Part B
funds, should be incorporated into the text of this regulation.
Changes: Section 300.2 has been amended by redesignating the
existing paragraph (b) as paragraph (b)(1), by adding public charter
schools that are not otherwise included as LEAs or ESAs and are not a
school of an LEA or ESA to the list of entities to which these
regulations apply, and by removing the note to this section of the NPRM
and adding the substance of that note as paragraph (b)(2) of this
section.
Definitions--General Comments
Comment: Commenters recommended that the final regulations should
(1) include a master list of all terms used in these regulations and
the specific section in which each term is defined; (2) add other
relevant statutory terms in the IDEA that were omitted from the NPRM
(e.g., institution of higher education, nonprofit, parent organization,
parent training and information center, and SEA etc.); (3) update
Sec. 300.28 to add ``elementary school,'' ``nonprofit,'' and ``SEA'' to
the list of relevant terms defined in the Education Department General
Administrative Regulations (EDGAR); (4) define terms used in two or
more subparts of these regulations, such as consent, direct services,
evaluation, personally identifiable, private school children with
disabilities, and public expense; and (5) that the master list of
definitions in note 1 to this section of the NPRM was not complete
because it omitted the definitions of the thirteen terms defined within
the definition of
[[Page 12539]]
``child with a disability,'' the fifteen terms defined within the
definition of ``related services,'' and the four terms defined within
the definition of ``special education.''
Some commenters requested that the following definitions be
deleted: ``comparable services'' (Sec. 300.455); ``extended school
year'' (Sec. 300.309); ``meetings'' (Sec. 300.501); and ``financial
costs'' (Sec. 300.142(e)), because none of the terms is defined in the
statute, and the regulations should not exceed the statute. Other
commenters recommended adding definitions of ``change of placement;''
``competent eighteen year old;'' ``developmental delay;'' ``school
day;'' ``extra curricular activities;'' ``functional behavioral
assessment;'' ``impeding behavior;'' ``other agency personnel;''
``paraprofessional;'' ``positive behavior support or intervention
plan;'' and ``positive behavioral intervention strategies.''
A few commenters expressed concern with the use of ``adversely
affects educational performance'' throughout Sec. 300.7(b) as
potentially limiting the services that are provided to disabled
children, especially those children who are academically gifted but who
still need transition services to postsecondary education, and
recommended that a definition of this term be added to the regulations.
Discussion: It would make the regulations more useful to parents
and others by: (1) Adding to Subpart A the definitions of terms of
general applicability (e.g., consent, evaluation, and personally
identifiable) that are used in two or more subparts of these final
regulations, and (2) adding to Sec. 300.30, previously Sec. 300.28 of
the NPRM, relevant terms used in these regulations that are defined in
EDGAR (e.g., elementary school, secondary school, nonprofit, and State
educational agency).
It also would make the regulations more useful to include an
alphabetical master list of the definitions of terms used in this part,
and the specific section in which each term is defined, including terms
of general applicability (e.g., FAPE and IEP), terms used in a single
section or subpart (e.g., ``illegal drug'' and ``weapon''), and
individual terms used in the definitions of ``child with a
disability,'' ``related services,'' and ``special education.'' These
regulations should include an index that identifies the key terms used
in the regulations and lists the specific section in which each term is
used; and the master list of definitions of the terms should be
included in the index.
A definition of the term ``parent training and information center''
should not be added, but the statutory definition of that term in
section 602(21) of the Act is referenced in the sections of these
regulations that use the term (Sec. 300.506(d)(1)(i) (relating to
mediation) and Sec. 300.589(c)(4) (relating to waiver of the
nonsupplanting requirement)), and the term ``parent training centers'',
which has been dropped from Sec. 300.660(b), would be replaced by a
reference to the statutory term.
The disposition of the terms defined in Secs. 300.142(e), 300.309,
300.455, and 300.501 of the NPRM is addressed in each of the pertinent
sections of this attachment.
With respect to the term ``adversely affects educational
performance,'' in order for a child to be eligible for services under
Part B, the child must meet the two-pronged test established under
Sec. 300.7(a), which reflects the statutory definition in section
602(3) of the Act. This means that the child has one of the listed
conditions that adversely affects educational performance, and who,
because of that condition, needs special education and related
services. Revising this language in the manner suggested by commenters
could result in an unwarranted expansion of eligibility under Part B.
It should be pointed out that a child who is academically gifted but
who may not be progressing at the rate desired is not automatically
eligible under Part B. Neither is the child automatically ineligible.
Rather, determinations as to a child's eligibility for services under
Part B must be made on a case-by-case basis in accordance with
applicable evaluation procedures.
In light of the general decision to remove all notes from these
final regulations, Notes 1 and 2 following the subheading
``Definitions'' and immediately preceding Sec. 300.5 in the NPRM should
be deleted. Note 1 listed the terms defined in specific sections of the
NPRM. As stated earlier in this discussion, those terms should be
included in a master list of definitions in a newly-created index to
these final regulations. Note 2 contained abbreviations of common terms
used in these regulations (e.g. the use of ``FAPE'' for ``free
appropriate public education''). In lieu of listing those abbreviations
in a note, each term should be included parenthetically in the text of
the regulations as that term appears; and, thereafter, either the
abbreviation or the full term may be used interchangeably, depending on
the context in which it is used.
Changes: References to the terms defined in Sec. 300.500--
``consent,'' ``evaluation,'' and ``personally identifiable''--have been
added as Secs. 300.8, 300.12, and 300.21 of these final regulations.
Relevant terms from EDGAR referenced throughout these regulations have
been added to Sec. 300.30. Notes 1 and 2 immediately preceding
Sec. 300.5 have been removed. An index to these regulations have been
added as a new Appendix B, and a master list of the definitions of all
terms used in this part has been included in the index under the
heading ``Definitions of terms used under this part.'' The
abbreviations listed in Note 2 have been included in the text of the
regulations, as described in the above discussion.
Assistive Technology Devices and Services (Secs. 300.5 and 300.6)
Comment: Some commenters recommended that assistive technology
devices and services be listed as a related service under Sec. 300.22,
as well as defined separately under Secs. 300.5 and 300.6. Some
commenters also recommended changes that would alter the statutory
definitions of these terms. A few commenters requested that Secs. 300.5
and 300.6 be amended to add language clarifying that assistive
technology devices and services are only required for a disabled child
if necessary for the child to benefit from special education. A few
commenters stated that the regulations should clarify public agency
responsibility for providing personal devices, such as eyeglasses,
hearing aids, braces and medication, while other commenters recommended
that the regulations make explicit that public agencies are not
responsible for providing personally-prescribed devices under these
regulations. Commenters also requested that the regulations include
examples of assistive technology devices for children, including a
range of high to low technology devices, such as postural supports,
mobility aids, and positioning equipment. Commenters also requested
clarification on how school districts draw distinctions between a
child's need for an assistive technology device and a parent's desire
for the child to have the newest and best device on the market.
Discussion: As stated in the note following Sec. 300.6 of the NPRM,
the definitions of ``Assistive technology device'' and ``Assistive
technology service'' in sections 602(1) and 602(2) of the Act are
substantially identical to the definitions of those terms used in the
Technology-Related Assistance for Individuals with Disabilities Act of
1988, as amended (Tech Act). Since
[[Page 12540]]
Sec. Sec. 300.5-300.6 essentially adopt the statutory definitions of
these terms, no changes to these statutory definitions should be made
in these final regulations. However, consistent with Part B, the words
``child with a disability'' were substituted for the statutory
reference to individual with a disability found in the definitions
contained in the Tech Act. In addition, in light of the general
decision not to use notes in these final regulations, the note to
Sec. 300.6 of the NPRM should be removed.
Section 300.308 of these regulations specifies that an assistive
technology device or service is only required if it is determined,
through the IEP process, to be (1) special education, as defined in
Sec. 300.26, (2) related services, as defined in Sec. 300.24, or (3)
supplementary aids and services, as defined in Sec. 300.28. No further
clarification should be provided, and references to Sec. 300.308 should
not be included in the definitions of ``related services'' under
Sec. 300.24 or ``special education'' under Sec. 300.26. Section 300.308
is sufficient to explain how a determination about a child's need for
an assistive technology device or service is made.
As a general matter, public agencies are not responsible for
providing personal devices, such as eyeglasses or hearing aids or
braces, that a disabled child requires regardless of whether he or she
is attending school. However, if a child's IEP team specifies that a
child requires a personal device in order to receive FAPE, the public
agency must provide the device at no cost to the child's parents.
Consistent with section 612(a)(12) of the Act, public agencies that are
otherwise obligated under Federal or State law or assigned
responsibility under State policy or interagency agreement or other
mechanisms to provide or pay for any services that are also considered
special education or related services, including devices that are
necessary for ensuring FAPE, must fulfill that obligation or
responsibility, either directly or through contract or other
arrangement.
Regarding responsibilities relative to medication under Sec. 300.5,
medication is an excluded ``medical service,'' and is not the
responsibility of a public agency under these regulations; therefore,
the change suggested by commenters is not warranted.
Further examples of assistive technology are not necessary within
these regulations. Because the definitions of assistive technology
devices and services have been included in these regulations for over
five years and have been included in the Tech Act since 1988, most
public agencies should be informed about those devices and services for
purposes of implementing these regulations. Examples of assistive
technology devices and services and other relevant information may be
available through one of the technical assistance providers funded by
the National Institute on Disability and Rehabilitation Research in the
Office of Special Education and Rehabilitative Services (OSERS) or
other technical assistance providers funded by OSERS.
Changes: The note following Sec. 300.6 has been removed.
Comment: Some commenters asked for clarification that (1) the
statutory provision encompasses both a child's own assistive technology
needs (e.g., electronic note takers, cassette recorders, and speech
synthesizers), as well as access to general technology used by all
students, (2) a child with a disability may take assistive technology
devices home for use on homework and other assignments, as well as for
use in the community, and (3) school districts have continuing
responsibility for installation, repair, and maintenance of devices.
These commenters added that in order to fully benefit from assistive
technology, children with disabilities must be able to use it on all
school-work assignments, whether done in the classroom or at home or in
the community; and LEAs must ensure that children, their teachers, and
other personnel receive the necessary in-service instruction on the
operation and maintenance of technology. Other commenters requested
that the final regulations specify in the text of the regulations or in
a note (1) the right of children with disabilities to take devices home
or to other settings, as needed, and (2) the issue of ownership and
responsibility.
Discussion: The provision of assistive technology devices and
services is limited to those situations in which they are required in
order for a disabled child to receive FAPE. However, subject to this
limitation, commenters are correct that (1) ``assistive technology''
encompasses both a disabled child's own personal needs for assistive
technology devices (e.g., electronic note-takers, cassette recorders,
etc), as well as access to general technology devices used by all
students, and (2) if an eligible child is unable, without a specific
accommodation, to use a technology device used by all students, the
agency must ensure that the necessary accommodation is provided.
Further, commenters are correct that LEAs must ensure that students,
their teachers, and other personnel receive the necessary in-service
instruction on the operation and maintenance of technology.
Finally, Sec. 300.308 of these final regulations should be amended
to clarify that, on a case-by-case basis, the use of school-purchased
assistive technology devices in a child's home or in other settings is
required if the child's IEP team determines that the child needs to
have access to those devices in order to receive FAPE. The assistive
technology devices that are necessary to ensure FAPE must be provided
at no cost to the parents, and the parents cannot be charged for normal
use, and wear and tear. However, while ownership of the device in these
circumstances would remain with the public agency, State law, rather
than Part B, generally would govern whether parents are liable for
loss, theft, or damage due to negligence or misuse of publicly owned
equipment used at home or in other settings in accordance with a
child's IEP.
Changes: No change has been made to this section in response to
these comments. However, Sec. 300.308 has been amended, consistent with
the above discussion.
Child With a Disability (Sec. 300.7)
Comment: A number of commenters requested that the definition of
developmental delay be consistent across both Part B and the early
intervention program under Part C. The commenters stated that defining
the term consistently across all age ranges will help to avoid
confusion, enhance transition, and conform to diagnostic procedures.
Other commenters requested that States not be allowed to establish
their own definitions of developmental delay because of the risk of
inequitable services across State lines.
Several commenters requested that children with sensory
disabilities (such as deafness or blindness) not be included under the
developmental delay designation, because a sensory disability is a
permanent condition and not a delay. Some commenters requested that
LEAs be required to justify, through assessment and elimination of
specific disabilities, why a child is identified as developmentally
delayed. One of the commenters stated that LEAs must be required to
include assessment of uneven patterns of development as part of the
determination of developmental delay, and added that developmental
delay should be utilized for individual cases where the child's
disability cannot be identified, although delays are manifested in the
child.
[[Page 12541]]
A few commenters recommended that the regulations make clear that
(1) the broad definition of developmental delay must not be used to
deny proper evaluations, and (2) a full, comprehensive evaluation of
each child must be conducted in all areas of suspected disability so
that the child's particular educational and other disability-related
needs can be effectively addressed.
Some commenters disagreed with the language in Note 2 prohibiting
States that have adopted developmental delay from requiring LEAs to
also adopt the provision, since LEAs, as agents of the State, may be
directed by the State to enforce what the State has adopted. Other
commenters recommended that the regulations make clear that an LEA is
not required to indicate why a child is in a developmental delay
category rather than in a disability category, and that an LEA is not
required to categorize the child as having one of the thirteen
disabilities before using the developmental delay designation.
Discussion: The term ``developmental delay'' is a statutory term
that is included in both Parts B and C of the Act. A definition of
developmental delay, substantially similar to the definition in
Sec. 300.7(a)(2) of the NPRM, should be retained in these final
regulations. Because of the numerous questions raised by commenters
about the application of this definition, it is determined that a new
paragraph describing requirements governing the use of the
developmental delay designation should be added to these final
regulations as Sec. 300.313. In light of these changes, the definition
of ``developmental delay'' would be placed in paragraph (b) of
Sec. 300.7 of these final regulations, and paragraph (b) of this
section of the NPRM would be redesignated as a new paragraph (c).
Also, in light of the general decision not to use notes in these
final regulations, Notes 2 and 3 following this section of the NPRM
should be removed, and the substance of these notes would be
incorporated into the new Sec. 300.313. This new section will (1) set
out the requirements for States and LEAs in using the developmental
delay designation; (2) clarify that States and LEAs may use the
developmental delay designation for any child who has an identifiable
disability, provided all of the child's identified needs are addressed;
and (3) clarify that a State may, but is not required to, adopt a
common definition of developmental delay for Parts B and C.
States electing to adopt the term developmental delay are not
prohibited from also continuing to use the disability categories in
Sec. 300.7(a) and (c) for those children who have been evaluated in
accordance with Secs. 300.530-300.536 as having one of the listed
disabilities and who because of that disability need special education
and related services. Although States traditionally have had the
authority to require LEAs to adopt State policies, new section
602(3)(B) of the Act, unlike the provision in prior law, provides that
implementation of the provision related to serving children under the
developmental delay designation is at the discretion of both the State
and the LEA. New Sec. 300.313 reflects this statutory change.
Under the statute, States also have the discretion to apply the
term developmental delay to children who have an identified sensory
disability (such as deafness or blindness) or any other permanent
condition (such as a significant cognitive disability), or to use the
specific categories. However, States must ensure that children with
sensory impairments or other permanent conditions are evaluated in all
areas of suspected disability, and that the educational and other
disability-related needs of these children identified through
applicable evaluation procedures are appropriately addressed.
It is important to ensure that the broad definition of
developmental delay is not used to deny children proper evaluations. In
all cases, evaluations must be sufficiently comprehensive to ensure
that children's needs are appropriately identified. The provisions in
Secs. 300.530-300.536 of these regulations should ensure that
evaluations of children in States and LEAs that use the developmental
delay designation are sufficiently comprehensive to address the full
range of these children's needs. It would not be appropriate to require
public agencies to justify why a child is identified as developmental
delay rather than under one of the other disability designations in
these regulations.
Changes: Section 300.7 has been amended by adding a new paragraph
(a)(2) to clarify that if a child has one of the disabilities listed in
paragraph (a) of this section but only needs a related service and not
special education that child is not a child with a disability under
this part, unless the related service is considered special education
rather than a related service under State standards. Paragraph (a)(2)
of the NPRM has been redesignated as paragraph (b) of these final
regulations, entitled ``children aged three through nine experiencing
developmental delays,'' which incorporates the definition in
Sec. 300.7(a)(2)(i) and (ii) of the NPRM; and a new Sec. 300.313 has
been added that clarifies the circumstances under which the DD
designation is used, reflecting the substance of proposed
Sec. 300.7(a)(2)(iii) and Notes 2 and 3 to this section of the NPRM.
Notes 2 and 3 to this section of the NPRM have been deleted. Paragraph
(b) of the NPRM has been redesignated as paragraph (c) in these final
regulations.
Comment: A variety of comments proposing various changes in
definitions was received regarding the terms ``deaf-blindness,''
``emotional disturbance,'' ``hearing impairment,'' ``multiple
disability,'' ``speech or language impairment,'' ``mental
retardation,'' ``orthopedic impairment,'' ``specific learning
disability,'' ``traumatic brain injury,'' and ``visual impairment
including blindness.'' Other commenters supported the existing
definitions but suggested some modifications. Some commenters stated
that the term deaf-blindness, as defined in the NPRM, mistakenly labels
these children's disability as causing educational problems as if the
child is a burden to the system. These commenters requested that the
definition be amended to replace ``problems'' with ``needs''. The
commenters made the same statement with respect to the term ``multiple
disability.''
Discussion: In light of the general decision not to use notes in
these final regulations, Note 1 to this section of the NPRM should be
removed. While the characteristics of ``autism'' are generally evident
before age three, a child who manifests characteristics of the category
``autism'' after age three still can be evaluated as having autism, if
the criteria in the definition are satisfied. Because of the importance
of this clarification, the definition of autism in Sec. 300.7(c)(1)
should be amended to incorporate the substance of Note 1 to this
section of the NPRM. While there is merit to many of the proposed
changes to definitions and terms, modifications to the substance of
existing definitions should be subject to further review and discussion
before changes are proposed. For example, as indicated in the preamble
to the NPRM (62 FR 55026-55048 (Oct 22, 1997)), the Department plans to
carefully review research findings, expert opinion, and practical
knowledge over the next several years to determine whether changes
should be proposed to the procedures for evaluating children suspected
of having specific learning disabilities. Any changes to the definition
of this term should also be considered in light of that review.
[[Page 12542]]
As indicated in the NPRM, no substantive changes are made to the
definition of the term ``emotional disturbance'' in Sec. 300.7(c)(4).
With respect to the use of the term ``emotional disturbance'' instead
of ``serious emotional disturbance,'' the Senate and House committee
reports on Pub. L. No. 105-17 include the following statement:
The Committee wants to make clear that changing the terminology
from ``serious emotional disturbance'' to ``serious emotional
disturbance [hereinafter referred to as `emotional disturbance']''
in the definition of a ``child with a disability'' is intended to
have no substantive or legal significance. It is intended strictly
to eliminate the pejorative connotation of the term ``serious.'' It
should in no circumstances be construed to change the existing
meaning of the term under 34 CFR Sec. 300.7(b)(9) as promulgated
September 29, 1992. (S. Rep. No. 105-17, p. 7; H.R. Rep. No. 105-95,
p. 86 (1997).)
In light of the general decision not to use notes in these final
regulations, Note 4 to this section of the NPRM should be removed. In
response to suggestions of commenters, the definitions of deaf-
blindness and multiple disability should be revised to eliminate the
negative connotation of the language in the current definitions, and
the word ``needs'' should replace the word ``problems.'' However, these
changes, in no way, are intended to alter which children are considered
eligible under these categories.
Changes: Note 1 to this section of the NPRM has been removed, and
the definition of ``autism'' in Sec. 300.7(c)(1) of these final
regulations has been amended to specify that if a child manifests
characteristics of ``autism'' after age three, the child could be
diagnosed as having ``autism'' if the criteria in the definition of
``autism'' are satisfied. The definitions of deaf-blindness and
multiple disability have been revised to replace ``problems'' with
``needs.''
Note 4 to this section of the NPRM has been removed, and the
substance of Note 4 is reflected in the above discussion.
Comment: A large number of commenters expressed support for
retaining Note 5, and agreed with the clarification that attention
deficit disorder (ADD) and attention deficit hyperactivity disorder
(ADHD) are conditions that may make a child eligible under Sec. 300.7.
As an alternative, these and other commenters suggested that ADD/ADHD
be listed as examples of conditions that could make a child eligible
under the ``other health impairment'' category at Sec. 300.7(c)(9). A
few commenters requested that ADD/ADHD be specified as a separate
disability category under these regulations. Many of these commenters,
parents of children with ADD/ADHD, described the tremendous problems
they have had, and are having, in obtaining appropriate services for
their children. Of particular concern to these commenters was that ADD/
ADHD is not expressly listed in the regulations; additionally,
commenters were concerned that discussing ADD/ADHD in a note would not
be adequate. One commenter noted that the regulations should clarify
that a disabled child needs only one, not two, disabilities in order to
be eligible under these regulations. A few commenters recommended that
schools not require an additional evaluation for a child with ADD/ADHD
under other health impairment once the child has been diagnosed and has
qualified under another disability category, noting that schools have
placed burdens on children and their families by requesting that ADD/
ADHD be re-diagnosed by using different procedural qualification
requirements when the child with ADD/ADHD moves from one qualifying
category (such as learning disabilities or emotional disturbance) to
the other health impairment category.
Other commenters requested that Note 5 be deleted because it
exceeds statutory authority and would increase the regulatory burden on
LEAs by giving the false impression that children with ADD/ADHD are
automatically protected by the IDEA Amendments of 1997. Some of these
commenters stated that children with ADD/ADHD may be eligible for
services under the Act, and, if they are eligible, are receiving
services, but added that it is not appropriate to enumerate in the Act
or regulations all conditions, e.g., Tourette's Syndrome, that may
qualify children for special education and related services. Other
commenters indicated that the definition of ADD/ADHD is so vague it
fits all children, and added that the most damaging potential abuse
comes from over-identification of poor and minority children who will
get the label and the reduced expectations that accompany it. Some
commenters stated that the discussion in Note 5 of ``limited
alertness'' as ``heightened alertness'' is exceptionally loose and
could result in the largest expansion of eligible children in IDEA
history.
Several commenters stated that the diagnosis of ADHD/ADHD does not
require a medical evaluation if the disability is diagnosed by a school
or licensed psychologist, and the need for special education is
determined through the eligibility process in Secs. 300.534-300.535. A
suggestion was made by commenters that the regulations emphasize that
educational impact must be the basis for determining eligibility of
those children for special education because, according to commenters,
at least 25 percent of the children referred for evaluation, who had
been diagnosed medically as ADD/ADHD, were experiencing few, if any,
educational problems at the time of their referrals.
Discussion: Note 5 following Sec. 300.7 was included in the NPRM to
reflect the Department's longstanding policy memorandum relating to the
eligibility of children with ADD/ADHD. However, although some of the
commenters who favor deleting Note 5 indicate that some children with
ADD/ADHD are receiving services under these regulations, experience and
the numerous comments received have demonstrated that the Department's
policy is not being fully and effectively implemented.
It is important to take steps to ensure that children with ADD/ADHD
who meet the criteria under Part B receive special education and
related services in the same timely manner as other children with
disabilities. Therefore, the definition of ``other health impairment''
at Sec. 300.7(c)(9) of these final regulations should be amended to add
ADD/ADHD to the list of conditions that could render a child eligible
under this definition, and the list of conditions in Sec. 300.7(c)(9)
should be rearranged in alphabetical order. Following the phrase
``limited strength, vitality or alertness,'' and prior to the phrase,
``that adversely affects educational performance,'' the words
``including a child's heightened alertness to environmental stimuli
that results in limited alertness with respect to the educational
environment'' should be added.
These changes are needed to clarify the applicability of the
``other health impairment'' definition to children with ADD/ADHD. The
clarification with respect to ``limited strength, vitality, or
alertness'' is essential because many children with ADD/ADHD actually
experience heightened alertness to environmental stimuli, which results
in limited alertness with respect to their educational environment. In
light of these regulatory changes, Note 5 to this section of the NPRM
should be removed as a note, and other portions of Note 5 are reflected
in the following discussion. A child with ADD/ADHD may be eligible
under Part B if the child's condition meets one of the disability
categories described in Sec. 300.7, and because of that disability, the
child needs special education and related services. Children with ADD/
[[Page 12543]]
ADHD are a very diverse group; some children with ADD/ADHD who are
eligible under Part B meet the criteria for ``other health
impairments.'' Those children would be classified as eligible for
services under the ``other health impairments'' category if (1) the
ADD/ADHD is determined to be a chronic health problem that results in
limited alertness, that adversely affects educational performance, and
(2) special education and related services are needed because of the
ADD/ADHD. All children with ADD/ADHD clearly are not eligible to
receive special education and related services under these regulations,
just as all children who have one of the other conditions listed under
the other health impairment category are not necessarily eligible
(e.g., children with a heart condition, asthma, diabetes, and rheumatic
fever).
Some children with ADD/ADHD may be eligible under other categories,
such as ``emotional disturbance'' (Sec. 300.7(c)(4)) or ``specific
learning disability'' (Sec. 300.7(c)(10)) if they meet the criteria
under those categories. Regardless of what disability designation is
attached, children with ADD/ADHD meeting the criteria for any of the
listed disabilities under these regulations must receive the
specialized instruction and related services designed to address their
individualized needs arising from the ADD/ADHD. No child is eligible
for services under the Act merely because the child is identified as
being in a particular disability category. Children identified as ADD/
ADHD are no different, and are eligible for services only if they meet
the criteria of one of the disability categories in Part B, and because
of their impairment, need special education and related services.
Other children with ADD/ADHD may have a diagnosed medical condition
(and need medication) but may not require any special education or
otherwise be eligible under these regulations. These children may be
covered by the requirements of section 504 of the Rehabilitation Act of
1973 (Section 504) and its implementing regulation in 34 CFR Part 104.
With respect to commenters' suggestions that the diagnosis of ADD/
ADHD does not require a medical evaluation if the disability is
diagnosed by a school or licensed psychologist, a change is not needed
in these regulations. Also, it would not be appropriate to make a
change to respond to commenters' suggestion that a medical evaluation
is required for a child with ADD/ADHD to establish eligibility under
the other health impairment category. Part B does not require that a
particular type of evaluation be conducted to establish any child's
eligibility under these regulations; rather, the evaluation
requirements in Secs. 300.530-300.536 are sufficiently comprehensive to
support individualized evaluations on a case-by-case basis, including
the use of professional staff appropriately qualified to conduct the
evaluations deemed necessary for each child.
In accordance with these procedures, if a determination is made
that a medical evaluation is required in order to determine whether a
child with ADD/ADHD is eligible for services under Part B, such an
evaluation must be conducted at no cost to the parents. In all
instances, as is true for all children who may be eligible for services
under Part B, each child with ADD/ADHD who is suspected of having a
disability must be assessed in all areas related to the suspected
disability, including, if appropriate, health, vision, hearing, social
and emotional status, general intelligence, academic performance,
communicative status, and motor abilities. (Sec. 300.532(g)).
There is no requirement under these regulations that a medical
evaluation be conducted to accomplish these assessments. Even if a
State requires that a medical evaluation be included as part of all
evaluations to determine eligibility for the other health impairment
category, it must also ensure that any necessary evaluations by other
professionals, such as psychologists, are conducted and considered as
part of the eligibility determination process. Whether or not public
agencies will be required to conduct an additional evaluation for a
child with ADD/ADHD under other health impairment once the child has
been evaluated and has qualified under another disability category will
depend on whether sufficient evaluation information exists to enable
school district officials to ensure, consistent with Sec. 300.532(g),
that each child is assessed in all areas of suspected disability.
Because these determinations will necessarily depend on the
individual needs of the child and the circumstances surrounding the
evaluation, a change is not needed.
With respect to the concern of commenters that the most damaging
potential abuse from the definition will be the over-identification of
poor and minority children, there is no indication that children from
minority backgrounds have been disproportionately identified as ADD/
ADHD even as the numbers of children in this category have increased.
Further, the definition of ADD/ADHD is not so loose that it could
result in the largest expansion of eligible children in IDEA history.
As previously stated, many children with ADD/ADHD are not eligible
under Part B. If appropriate evaluations are conducted in accordance
with Secs. 300.530-300.536, the result of the evaluations should be the
inclusion of only those children with ADD/ADHD who are eligible for,
and have an entitlement to, special education and related services
under Part B.
Changes: The definition of ``other health impairment'' at
Sec. 300.7(c)(9) has been amended to add ADD/ADHD to the list of
conditions that could render a child eligible under this definition,
and the list of conditions in Sec. 300.7(c)(9) has been rearranged in
alphabetical order. Following the phrase ``limited strength, vitality,
or alertness,'' and prior to the phrase, ``that adversely affects
educational performance,'' the words ``including a child's heightened
alertness to environmental stimuli that results in limited alertness
with respect to the educational environment'' have been added to
clarify the applicability of the other health impairment definition to
children with ADD/ADHD. Note 5 to this section of the NPRM has been
removed.
Day; Business Day; School Day (Sec. 300.9)
Comment: Some commenters indicated support for the definition of
``day'' as written. Many commenters requested that the term be revised
to define ``school day'' and ``business day,'' since these are key
terms that are used throughout the Act and regulations. Some of the
commenters recommended similar definitions of the terms, ``school day''
and ``business day'' (e.g., ``school day'' means days when children are
attending school and ``business day'' means days when a school is open
for business and administrative personnel are working). One definition
proposed by commenters included staff development day as a school day.
Several commenters asked when a partial day might be considered a
``day,'' if inservice or staff development days are considered business
days, and what holidays are to be used, as school districts and States
vary in this regard. Other commenters requested that there be no
reference to ``calendar day'' or ``day,'' but that instead the
definitions of ``school day'' and ``business day'' be incorporated into
these regulations. Some of the commenters indicated that the use of
``calendar day'' can place an impractical time standard on school
systems when
[[Page 12544]]
actions are required and a school may not be open for business.
Discussion: It is necessary, to avoid confusion and ensure clarity,
to amend the definition of ``day'' to include definitions of both
``school day'' and ``business day.'' Both ``school day'' and ``business
day'' are used to implement new provisions added by Pub. L. 105-17: The
term ``school day'' is used only with respect to discipline procedures
and appears in Secs. 300.121(c)(1) and (c)(2), and 300.520(a)(1) and
(c). The term ``business day'' is used in Secs. 300.509(b) (Additional
disclosure of information requirement); 300.520(b) (Authority of school
personnel); and 300.528(a)(1) (Expedited due process hearing). In
addition, the phrase ``business days (including holidays that fall on a
business day)'' is used in Sec. 300.403(d)(1)(ii) (Placement of
children by parents in a private school or facility if FAPE is at
issue.)
``School day'' means any day that children are in attendance at
school for instructional purposes. If children attend school for only
part of a school day and are released early (e.g., on the last day
before Christmas or summer vacation) that day would be considered to be
a school day. However, it is expected that the term ``school day,''
including partial school day, has the same meaning for all children in
school, including children with and without disabilities.
The term ``business day'' is used in the statute and regulations in
relation to actions by school personnel and parents. While school
personnel could reasonably be expected to know when administrative
staff are working, very often this information is not readily available
to parents, nor is it likely to be consistent from one LEA to another,
or from the SEA to an LEA. If ``business day'' were interpreted to be
days when school offices are open and administrative staff are working,
it could actually be impossible for parents to know with any certainty
the date in advance of a due process hearing on which they would have
to share evidence to be introduced at the hearing with the other party
to the hearing (see Sec. 300.509). Therefore, this term is interpreted
to be a commonly understood measure of time, Monday through Friday
except for Federal and State holidays, unless holidays are specifically
included, as in Sec. 300.403(d)(1)(ii).
Including definitions of ``school day'' and ``business day'' will
reduce confusion about the meaning of these terms and should facilitate
meeting the various timelines in the Act and regulations.
The definition of ``day,'' while that term was not previously
defined in the regulations, represents the Department's longstanding
interpretation that the term ``day'' means calendar day. (See, e.g.,
NPRM published August 4, 1982, 47 FR 33836-33840 describing the 30-day
time line from determination of eligibility to initial IEP meeting as
``30 calendar days.'') This interpretation is consistent with
generally-recognized authority on statutory interpretation. (See
Sutherland Stat. Const. Sec. 33.12 (5th Ed.)). In addition, the statute
itself uses three different terms, ``day,'' ``business day,'' and
``school day,'' so it would be inappropriate to interpret ``day'' to be
the same as either ``business day'' or ``school day.''
Finally, altering the interpretation of ``day'' from the
longstanding interpretation as ``calendar day'' would raise significant
concerns about compliance with the terms of section 607(b) of the Act,
especially as to timelines that affect the rights of parents and
children with disabilities such as (1) the timeline in Sec. 300.343
(relating to holding an initial IEP meeting for a child), and (2) the
procedural safeguards in Subpart E, including Sec. 300.509(a)(3)
(hearing rights--timeline for disclosure of evidence); Sec. 300.511(a)
and (b) (timelines for hearings and reviews); and Sec. 300.562(a)
(access rights relating to records).
There also are other provisions in these regulations that include
timelines that have always been interpreted to be calendar day
timelines--including the (1) 30-day public comment period in
Sec. 300.282, (2) by-pass procedures under Subpart D, (3) notice and
hearing procedures in Secs. 300.581-300.586 that the Department uses
before determining that a State is not eligible under Part B, and (4)
60-day timeline under the State complaint procedures in Sec. 300.661.
The majority of those timelines have been in effect since 1977, and, in
light of the clear distinction in the IDEA Amendments of 1997 between
days, school days, and business days, there is no basis for changing
other timelines in the regulations.
Changes: The name of the section in the NPRM has been changed to
``Day; business day; school day'' in these final regulations.
Definitions of ``school day'' and ``business day'' have been added to
reflect the above discussion.
Educational Service Agency (Sec. 300.10)
Comment: None.
Discussion: The definition of ``educational service agency'' in
Sec. 300.10 of these final regulations adopts the statutory definition
of this term in section 602(4) of the Act. This definition replaces the
definition of the term ``intermediate educational unit'' (IEU) in
Sec. 300.8 of the current regulations. The use of the term
``educational service agency'' was not intended to exclude those
entities that were considered IEUs under prior law. This interpretation
is supported by the legislative history, which makes explicit that most
definitions in prior law have been retained, and, where appropriate,
updated. S. Rep. No. 105-17 at 6., and H.R. Rep. No. 105-95 at 86. With
respect to ``educational service agency,'' the Reports explain that
this definition has been updated ``to reflect the more contemporary
understanding of the broad and varied functions of such agencies.'' Id.
Although there were no comments regarding this definition, the
application of the term ``educational service agency'' to entities
covered under the definition of IEU in prior law has been questioned.
The definition of IEU did not refer explicitly to public elementary and
secondary schools. However, the definition of ``educational service
agency'' makes specific references to an entity's administrative
control over public elementary and secondary school. This definition
could be misinterpreted as excluding from the educational service
agency definition those entities in States that serve preschool-aged
children with disabilities but do not have administrative control and
direction over a public elementary or secondary school. Therefore, to
avoid any confusion about the use of this new terminology, a statement
should be added to the definition to clarify that the term
``educational service agency'' includes entities that meet the
definition of IEU in section 602(23) of IDEA as in effect prior to June
4, 1997.
Changes: Consistent with the above discussion, a statement has been
added at the end of the definition to clarify that the definition of
``educational service agency'' includes entities that meet the
definition of IEU in section 602(23) of IDEA as in effect prior to June
4, 1997.
Equipment (Sec. 300.11)
Comment: One comment stated that the reference to ``books,
periodicals, documents, and other related materials'' be deleted from
Sec. 300.10(b) because materials and equipment are accounted for
differently in the budget. A few commenters recommended that the
definition of ``equipment'' be amended to add that (1) any
instructional or related materials be provided in accessible formats,
as appropriate; and
[[Page 12545]]
(2) any technological aids and services be accessible.
Discussion: The definition of ``equipment'' is a standard statutory
definition that is used in most elementary and secondary education
programs funded by the Department. Therefore, efficient administration
of Federal programs would not be served by revising the definition in
the ways suggested by the commenters. In appropriate situations, public
agencies are required by section 504 of the Rehabilitation Act of 1973
and title II of the Americans with Disabilities Act (ADA) to ensure
that instructional or related materials are provided in accessible
formats and that technological aids and services are accessible to
students with disabilities or can be made accessible, to afford
students with disabilities an equal opportunity to participate in their
programs.
Changes: None.
General Curriculum
Comment: Several commenters indicated support for the definition of
``general curriculum,'' and for the note clarifying that the term
relates to the content of the curriculum and not the setting in which
it is used. Some commenters stated that, as written, the definition
should preclude any likelihood of the ``general curriculum'' being
identified with the ``low'' track.
Some commenters recommended that the substance of the note be
integrated into the definition or made other suggestions to strengthen
the idea that the general curriculum applies to children with
disabilities wherever they are educated. Other commenters disputed that
there is a ``general curriculum,'' pointing to the variety of common
courses offered by many school districts, the need of some children for
a functional life-skills curriculum or the needs of students in
alternative programs (e.g., moderate disabilities, significant or
profound, autism, etc.) who may be pursuing an alternative certificate
rather than a diploma. Other commenters requested that the definition
be dropped from the final regulations, because it (1) sets a dangerous
precedent for the Federal government to dictate what the general
curriculum should be in each school, and (2) violates the General
Education Provisions Act.
Discussion: The concept of ``general curriculum'' in these
regulations plays a crucial role in meeting the requirements of the
Act. The IDEA Amendments of 1997 place significant emphasis on the
participation of children with disabilities in the general curriculum
as a key factor in ensuring better results for these children.
The definition in Sec. 300.12 would not have imposed a national
curriculum, but only clarified what the statutory term ``general
curriculum'' means. As the term is used throughout the Act and
congressional report language, the clear implication is that, in each
State or school district, there is a ``general curriculum'' that is
applicable to all children. A major focus of the Act--especially with
respect to the new IEP provisions--is ensuring that children with
disabilities are able to be involved in and progress in the ``general
curriculum.'' For example, the Senate and House committee reports on
Pub. L. No. 105-17 state that--
[t]he new focus is intended to produce attention to the
accommodations and adjustments necessary for disabled children to
have access to the general education curriculum and the special
services which may be necessary for appropriate participation in
particular areas of the curriculum due to the nature of the
disability. (S. Rep. No. 105-17, p. 20; H.R. Rep. No. 105-95, p. 100
(1997)).
Even as school systems offer more choices to students, there still
is a common core of subjects and curriculum areas that is adopted by
each LEA or schools within the LEA, or, where applicable, the SEA, that
applies to all children within each general age grouping from preschool
through secondary school. Appropriate access to the general curriculum
must be provided. The development and implementation of IEPs for each
child with a disability must be based on having high, not low,
expectations for the child.
In light of the concerns of the commenters and the principle of
regulating only to the extent necessary, proposed Sec. 300.12 should be
removed from the final regulations. Instead the regulations should
emphasize the importance of the ``general curriculum'' concept in the
IEP provision under which the term is used.
Changes: The definition of ``general curriculum'' in Sec. 300.12 of
the NPRM and the note following that section of the NPRM have been
deleted. The term is explained where it is used in Sec. 300.347 and in
Appendix A regarding IEP requirements.
Individualized Education Program Team (Sec. 300.16)
Comment: None.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following this section of the NPRM
should be removed. However, it is important to clarify that the IEP
team may also serve as the placement team.
Changes: The note following this section of the NPRM has been
removed.
Local Educational Agency (Sec. 300.18)
Comment: A number of commenters expressed concern about the note on
public charter schools following Sec. 300.17 of the NPRM, stating that
it provides an inadequate and too limited explanation of the
responsibilities of those schools under these regulations (i.e., it
focuses only on public charter schools that are ``LEAs'' under State
law and excludes public charter schools that are defined by State law
as being part of an LEA).
Some of the commenters requested that the note be modified to
clarify that public charter schools must comply with these regulations
whether or not they receive Part B funds. Commenters believe that this
clarification is particularly important because, according to the
commenters, services to disabled children in some public charter
schools have been dismantled, and parents have been asked to waive
their children's rights under Part B as a condition of enrollment in
the schools.
Other commenters requested that the note be dropped and that
Sec. 300.241 (Treatment of public charter schools and their students)
clarify that all charter schools must comply with the requirements of
Part B of the Act. The commenters added that this action would
consolidate all public charter school requirements into one regulatory
provision. A few commenters requested that the regulations include a
provision requiring that LEAs in which charter schools are physically
located describe to the State how they will ensure that children with
disabilities receive special education and related services under this
part, even when the charter school is not otherwise under the
jurisdiction of the LEA.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following Sec. 300.17 of the NPRM
should be removed. However, it should be pointed out that the proposed
note was inadequate and did not provide a full explanation of the
responsibilities of public charter schools under these regulations.
In light of concerns raised about how public charter schools could
meet their obligations to disabled students under Part B and obtain
access to Part B funds for disabled students enrolled in their schools,
two important provisions were included in the IDEA Amendments of 1997
at section 613(a)(5) and (e)(1)(B).
Some public charter schools can be LEAs if, under State law, they
meet the
[[Page 12546]]
Part B definition of LEA. As a result of section 613(e)(1)(B) of the
Act, public charter schools that are LEAs may not be required to apply
for Part B funds jointly with other LEAs, unless explicitly permitted
to do so under the State charter school statute. However, in many
instances, charter schools are schools within LEAs. If this is so,
section 613(a)(5) of the Act provides that the LEA of which the public
charter school is a part must serve those disabled students attending
public charter schools in the same manner as it serves students with
disabilities in its other public schools and must provide Part B funds
to charter schools in the same manner that it provides Part B funds to
other public schools.
Still, in other instances, due to the provisions in States' charter
school statutes, some public charter schools are not considered LEAs or
a school within an LEA. In such instances, the SEA would have ultimate
responsibility for ensuring that Part B requirements are met.
Regardless of whether a public charter school receives Part B funds,
the requirements of Part B are fully applicable to disabled students
attending those schools. The legislative history of the IDEA Amendments
of 1997 makes explicit that Congress ``expects that public charter
schools will be in full compliance with Part B.'' See S. Rep. No. 105-
17 at 17; H.R. Rep. No. 105-95 at 97.
Therefore, based on the concerns expressed by commenters and for
the reasons clarified in the above discussion, it is determined that
(1) the definition of LEA should be amended to clarify that the term
``LEA'' includes a public charter school established as an LEA under
State law; (2) the provision in Sec. 300.241 (Treatment of charter
schools and their students) should be retained in these final
regulations; and (3) a new Sec. 300.312, entitled ``Children with
disabilities in public charter schools,'' should be added to these
final regulations.
The new section makes clear that children with disabilities and
their parents retain all rights under these regulations and that
compliance with Part B is required regardless of whether a public
charter school receives Part B funds. Thus, charter school personnel,
for example, may not ask parents to waive their disabled child's right
to FAPE in order to enroll their child in the charter school. This new
section also would address the responsibilities of (1) public charter
schools that are LEAs, (2) LEAs if a charter school is a school in the
LEA, and (3) the SEA if a charter school is not an LEA or a school in
an LEA.
Changes: The note has been removed. The definition of LEA has been
amended by adding after ``secondary school'' the words ``including a
public charter school that is established as an LEA under State law.''
A new Sec. 300.312 has been added to further address the treatment of
charter schools.
Native Language (Sec. 300.19)
Comment: Some commenters requested that, in item (1) under the
note, the Department change ``child'' to ``student''; add ``combination
of languages'' used by the student; and add ``in the home and learning
environments.'' A few commenters requested additional specificity in
item 2 to clarify that the mode of communication used should be that
used by the individual.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following Sec. 300.18 of the NPRM
should be removed. However, it is critical that public agencies take
the necessary steps to ensure that the needs of disabled children with
limited English proficiency (LEP) are adequately addressed. The term
``native language'' is used in the prior notice, procedural safeguards
notice, and evaluation sections: Secs. 300.503(c), 300.504(c), and
300.532(a)(1)(ii).
In light of concerns of commenters and the need to ensure that the
full range of the needs of children with disabilities whose native
language is other than English is appropriately addressed, the
definition of ``native language'' in the NPRM should be expanded in
these final regulations to clarify that (1) in all direct contact with
the child (including evaluation of the child), communication would be
in the language normally used by the child and not that of the parents,
if there is a difference between the two; and (2) for individuals with
deafness or blindness, or for individuals with no written language, the
mode of communication would be that normally used by the individual
(such as sign language, Braille, or oral communication).
These changes to the regulatory definition of ``native language''
should enhance the chances of school personnel being able to
communicate effectively with a LEP child in all direct contact with the
child, including evaluation of the child.
Changes: The definition of ``native language'' in the NPRM has been
amended to reflect the concepts contained in the note following that
definition, and the note has been removed.
Parent (Sec. 300.20)
Comment: Several commenters indicated that (1) based on the
definition of ``parent'' in the NPRM, States would be required to
change their laws to include foster parents under the State definition
of ``parent,'' and (2) language should be added to the NPRM so that
foster parents can serve as parents, unless prohibited from doing so
under State law.
These and other commenters also requested that
(1) the language in the note be included in the text of the
regulations;
(2) a provision be added to the effect that the public agency must
continue to afford the natural parents all protections of this part if
their rights to make educational decisions have not been extinguished,
even if the child does not live with the natural parents and even if
other persons appear to be acting as the child's parents;
(3) the legal parent have the authority, not a grandparent or other
person, unless parental authority is extinguished;
(4) ``legal'' be added in front of ``guardian''; and
(5) all references to ``parent'' in these regulations be changed to
``the child's parent.'' Some commenters felt that the note created a
problem for school districts because a situation often arises where a
child is living with a person acting as a parent, while the natural
parents are still involved and have not had their rights terminated,
and requested clarification for school districts in these situations.
Discussion: States should not have to amend their laws relating to
parents in order to treat ``foster parents'' as parents. Therefore,
conditional language in this regard is necessary if State law prohibits
a foster parent from acting as a parent. This change would accomplish
the intended effect of the provision (i.e., acknowledging that in some
instances foster parents may be recognized as ``parents'' under the
Act) without adding any burden to individual States whose State
statutory provisions relating to parents expressly exclude foster
parents.
In light of the general decision not to use notes in these final
regulations, the note following this section of the NPRM should be
removed, but the substance of the note on foster parents should be
added to the text of the regulations. Under these regulations, the term
``parent'' is defined to include persons acting in the place of a
parent, such as a grandparent or stepparent with whom the child lives,
as well as persons who are legally responsible for a child's
[[Page 12547]]
welfare, and, at the discretion of the State, a foster parent who meets
the requirements in paragraph (b) of this section. Commenters' concerns
related to ensuring that the rights of natural parents are protected in
a case in which a disabled child is living with a person acting as a
parent, or providing that the parent retain authority even if a child
is living with a grandparent, raise questions that the Department has
traditionally held best to be left to each State to decide as a matter
of family law.
It is not necessary to add ``legal'' before the word ``guardian''
since the statute regarding the term ``parent'' at section 602(19)(A)
merely notes that it includes a legal guardian. A legal guardian would
be considered to meet the regulatory definition of ``parent''. The
regulatory definition of ``parent'' has always included more than just
the term identified in the statute. An inclusive definition of parent
benefits public agencies by reducing the instances in which the agency
will have to bear the expense of providing and appointing a surrogate
parent (see Sec. 300.515) and benefits children with disabilities by
enhancing the possibility that a person with ongoing day-to-day
involvement in the life of the child and personal concerns for the
child's interests and well-being will be able to act to advance the
child's interests under the Act.
Regarding the use of the reference to the child's parent, no change
is needed since it is implicit that the rights under Part B are
afforded to a child with a disability and his or her parents, as
defined under these regulations.
Changes: The note following the definition of ``parent'' in the
NPRM has been removed; and the substance of the note has been reflected
in the above discussion. The definition of ``Parent'' in these final
regulations has been amended to permit States in certain circumstances
to use foster parents as parents under the Act without amending
relevant State statutes.
Public Agency (Sec. 300.22)
Comment: Some commenters requested that the definition of ``public
agency'' be amended to include ``charter schools'' that are created
under State law and are the recipients of public funds, because as
proposed, a public agency would not include any charter school that is
not an LEA or most of the nation's existing charter schools. Other
commenters stated that, in order to support the provision on assistive
technology under Sec. 300.308, the definition of ``public agency'' must
be amended to include other State agencies, since the proposed
definition of ``public agency'' includes only the SEA, not other State
agencies which arguably could be used to try to circumvent financial
responsibility based on this omission.
Discussion: Public charter schools that are not otherwise included
as LEAs or ESAs and are not a school of an LEA or ESA should be added
to the definition of ``public agencies'' in order to ensure that all
public entities responsible for providing education to children with
disabilities are covered. However, the definition of ``public agency''
should not be amended to address financial responsibility for assistive
technology. If another State agency is responsible for providing
education to children with disabilities, it is already included in the
definition of ``public agency.'' Other State agencies, not responsible
for educating children with disabilities, should not be held to the
requirements imposed on public agencies by these regulations because
they are not agencies with educational responsibilities.
Changes: Public charter schools as discussed previously has been
added to the list of examples of a ``public agency'' in Sec. 300.22.
Qualified Personnel (Sec. 300.23)
Comment: Numerous commenters stated that the definition of
``qualified'' should be renamed ``qualified personnel,'' updated to the
highest standard, and should be cross-referenced to the exception to
the maintenance of effort provision'' in the regulations. Some
commenters requested that the definition be changed to link the term
``qualified'' to the statutory and regulatory provisions on personnel
standards, i.e., the SEA standards that are consistent with any State
approved or recognized certification, licensing, registration, or other
comparable requirements based on the highest requirements in the State
applicable to the profession or discipline in which a person is
providing special education or related services. These commenters also
stated that the more detailed definition is important to ensure that,
under the exception to maintenance of effort in Sec. 300.232, qualified
lower-salaried staff who replace higher-salaried staff have met the
highest requirements in the State consistent with Sec. 300.136.
Other commenters, with similar recommendations, requested that the
name of the section be changed to ``Qualified professionals and
qualified personnel,'' and that a note be added to explain the basis
and importance of qualified professionals. Several commenters requested
that the definition be amended to require that personnel providing
services to limited English proficient students meet SEA requirements
for bilingual specialists in the language of the child or student.
Some commenters requested that the regulations be clarified to
address qualifications for interpreters serving children who are deaf
or have hearing impairments.
Discussion: It is appropriate to change the title of this section
of these final regulations to ``qualified personnel.'' This change is
consistent with the importance of ensuring that all providers of
special education and related services, including interpreters, meet
State standards and Part B requirements.
In order for interpreters to provide appropriate instruction or
services to children with disabilities who require an interpreter in
order to receive FAPE, States must ensure that these individuals meet
appropriate State qualification standards.
It is not necessary to refer to Sec. 300.136, as the definition
already specifies that the person must meet State-approved or
recognized requirements. Section 300.232 (exception to maintenance of
effort), uses the term ``qualified'' in referring to the replacement of
higher-salaried personnel by qualified lower-salaried personnel.
Therefore it would be unnecessary and redundant to include a reference
to that section.
The definition of ``qualified personnel'' is sufficiently broad to
encompass the qualifications of bilingual specialists, and no further
changes are required in this definition.
Changes: The name of this section has been changed to ``Qualified
personnel,'' and a corresponding reference to ``qualified personnel''
has been included in the text of the definition.
Related Services (Sec. 300.24)
Comment: A number of comments were received relating to the general
definition of ``related services'' under Sec. 300.22(a) of the NPRM,
and to Note 1 following that section of the NPRM. These comments
included revising Sec. 300.22(a) consistent with the definition in the
statute, and adding services to the definition of related services; for
example, assistive technology devices and services, school nursing
services, travel training, and educational interpreter services. Some
of these commenters stated that interpreter services are of utmost
importance for deaf students to succeed in the educational setting and
are essential for hearing impaired students to function in the
mainstream. A few
[[Page 12548]]
commenters requested that ``qualified sign language interpreting'' be
added, including the definition of the term from the ADA.
One commenter stated that a note should be added that related
services not only can be used to ameliorate the disability but also to
work toward independence and employability.
Several commenters recommended that changes be made in Note 1. Some
of the commenters expressed concern about adding additional services
(travel training, nutrition services, and independent living services)
to an already lengthy list of services. Some commenters requested that
the note be deleted because it is too expansive, or that the
parenthetical phrase in the first paragraph be dropped because the
listing is confusing without some further explanation or clarification.
One comment stated that the menu of related services suggests that a
disabled child might need all of the listed services. Other commenters
stated that inclusion of terms such as dance therapy and nutrition is
confusing, and that further clarification is needed as to how they are
``related'' to the student's access to special education and to making
progress in the general curriculum.
Some commenters requested that ``artistic and cultural programs''
be deleted from the parenthetical statement in Note 1, stating (for
example) that (1) these programs are areas of the curriculum and not
related services (i.e., they are not necessary for a child to benefit
from special education), and (2) ensuring that disabled children have
an equal opportunity to participate in the type of cultural activities
available to all children is different than considering those programs
to be a related service ``therapy'' that implies specific certification
requirements in many sectors.
A number of commenters requested that the statement that
psychological testing might be done by qualified psychological
examiners, psychometrists, or psychologists depending on State
standards be deleted from the second paragraph of Note 1. One comment
stated that there is no national standard for this role, and thus it
conflicts with evaluation requirements and personnel standards. Other
commenters recommended that the third paragraph in Note 1 be amended to
provide that the activities do not act to reduce the amount of the
service specified by any child's IEP as necessary for FAPE.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 1 following this section of the NPRM
should be removed, but the substance of the note is reflected in the
following discussion. All related services may not be required for each
individual child. As under prior law, the list of related services is
not exhaustive and may include other developmental, corrective, or
supportive services (such as artistic and cultural programs, art,
music, and dance therapy) if they are required to assist a child with a
disability to benefit from special education in order for the child to
receive FAPE. Therefore, if it is determined through the Act's
evaluation and IEP requirements that a child with a disability requires
a particular supportive service in order to receive FAPE, regardless of
whether that service is included in these regulations, that service can
be considered a related service under these regulations, and must be
provided at no cost to the parents.
The IEP process in Secs. 300.340-300.350, and the evaluation
requirements in Secs. 300.530-300.536, are designed to ensure that each
eligible child under Part B receives only those related services that
are necessary to assist the child to benefit from special education,
and there is nothing in these regulations that would require every
disabled child to receive all related services identified in the
regulations, as suggested by some commenters.
Commenters' suggestions that the second paragraph of Note 1 to this
section of the NPRM is no longer needed should be addressed. The
statement in Note 1--that ``psychological testing might be done by
qualified psychological examiners, psychometrists, or psychologists
depending on State standards''--should not be retained, since States
must establish their own qualification standards for persons providing
special education and related services. Therefore, State standards
would govern which individuals should administer these tests,
consistent with Part B evaluation requirements.
As stated in the discussion under Secs. 300.5 and 300.6 of this
analysis, assistive technology devices and services may already be
considered a related service. Therefore, it is not necessary to add
assistive technology devices and services to the list of related
services defined in this section. Second, because ``school health
services'' is currently defined as services provided by a ``qualified
school nurse'' or other qualified person, there is no reason to address
further the issue of ``school nurses'' or school nursing services.
Third, although interpreter services for children with hearing
impairments are not specifically mentioned in the definition of related
services, those services have been provided under these regulations
since the initial regulations for Part B were issued in 1977. (See also
discussion under Qualified personnel).
Regarding commenters' suggestions that related services are
required not only to ameliorate the disability but to provide
preparation for employment, a change is not needed. The Act's
transition services requirements are sufficiently broad to facilitate
effective movement from school to post-school activities, and if deemed
appropriate by the IEP team, these transition services could be
identified as related services for an individual student.
Changes: Note 1 following the definition of ``related services'' in
the NPRM has been removed.
Comment: A number of commenters requested changes in the
definitions of specific terms defined in the definition of ``related
services,'' as follows:
Some commenters recommended that the definition of ``audiology'' be
modified to include functions that are not contained in the current
definition. Some commenters requested that the definition of
``occupational therapy'' be amended to add language to ensure that
occupational therapy services are provided by qualified occupational
therapists or occupational therapy assistants to ensure that those
services can assist children to participate in the general curriculum,
and achieve IEP/IFSP goals.
A number of commenters recommended that the final regulations
clarify that orientation and mobility services may be required by
children with other disabilities, and that the services may be provided
by personnel with different qualifications other than those serving
persons who are blind or visually impaired. Other commenters requested
that (1) the term ``qualified personnel'' should be deleted because
using this term in this definition creates personnel problems for rural
areas and for many urban settings, that orientation and mobility
personnel are not used for all purposes listed, and not every State has
a classification called orientation and mobility specialist; and (2)
the option of providing orientation and mobility services in a
student's home would apply to students who may not be home-schooled and
would violate the least restrictive environment requirements of the
Act.
Several comments were also received on Note 2 (relating to
orientation and mobility services and travel training). Some commenters
requested that travel training be added as a separate related service
with its own definition. The definition would be based on, or
[[Page 12549]]
incorporate, the language from Note 2 relating to travel training.
Other commenters suggested that it would be more accurate to refer to
this type of training as mobility training.
A number of commenters requested that Note 2 be deleted because it
was too expansive. Other commenters stated that (1) all references to
travel training be dropped, since the term is not defined or even
mentioned in the statute; (2) Note 2 expands services beyond the
statute and will make orientation and mobility services extremely
expensive and adversarial by requiring new personnel that are not
available in rural areas and many urban areas; (3) Note 2 should not
require a deliverable standard against which a school system might be
held liable; and (4) travel training may be appropriate for other
children with disabilities, but orientation and mobility specialists
are not the personnel to provide these services.
With respect to parent counseling and training, commenters
recommended that (1) the title be changed to ``Parental training''
because the definition describes training, and schools cannot counsel
parents as a related service; and (2) a training element be added at
the end of the definition, to provide for assisting parents to acquire
the necessary skills to help support the implementation of their
child's IEP or IFSP. Other commenters proposed a specific definition of
parent counseling and training that would emphasize helping parents to
acquire the necessary skills to support the implementation of their
child's IEP or IFSP. Another commenter recommended adding a note that
training may include training in sign language or other forms of
communication.
Several commenters requested that the definition of ``school health
services'' at Sec. 300.22(b)(12) of the NPRM be expanded to
specifically include health care services that are not curative or
treatment oriented, such as suctioning, gastronomy, tube feeding, blood
sugar testing, catheterization, and administration of medication.
A few commenters requested that the definition of ``school health
services'' be amended to add the three-part test adopted by the United
States Supreme Court in Irving Independent School District v. Tatro,
484 U.S. 883 (1984). In Tatro, the Court stated that services affecting
both the educational and health needs of a child must be provided under
IDEA if: (1) The child is disabled so as to require special education;
(2) the service is necessary to assist a disabled child to benefit from
special education (thus, services which could be provided outside the
school day need not be provided by the school, regardless of how easily
a school could provide them); and (3) a nurse or other qualified person
who is not a physician can provide the service. The commenters believe
that by stating the Tatro holding in the regulation, longstanding
Department policy would be formalized and litigation would decrease.
Other commenters requested that the regulations clarify that
specialized school health services should not be improperly or
dangerously performed by individuals who lack the requisite training
and supervision.
Discussion: The definition of ``audiology'' should not be amended
since the changes suggested by commenters are more than technical
changes, and thus would require further study and regulatory review.
However, in response to suggestions of commenters, it is appropriate to
modify the definition of ``occupational therapy'' to make it clear that
this term encompasses services provided by a qualified occupational
therapist. This makes the definition generally consistent with the
other related service definitions. It is not necessary to incorporate
the term ``certified occupational therapy assistant,'' because the
option of using paraprofessionals and assistants to assist in the
provision of services under these regulations is addressed in
Sec. 300.136(f).
As stated by the commenters, some children with disabilities other
than visual impairments need travel training if they are to safely and
effectively move within and outside their school environment, but these
students (e.g., children with significant cognitive disabilities) do
not need orientation and mobility services as that term is defined in
these regulations. ``Orientation and mobility services'' is a term of
art that is expressly related to children with visual impairments, and
includes services that must be provided by qualified personnel who are
trained to work with those children. No further changes to the
definition of ``orientation and mobility services'' are needed, since
the definition as written does not conflict with the Act's least
restrictive environment requirements.
For some children with disabilities, such as children with
significant cognitive disabilities, ``travel training'' is often an
integral part of their special educational program in order for them to
receive FAPE and be prepared for post-school activities such as
employment and independent living. Travel training is important to
enable students to attain systematic orientation to and safe movement
within their environment in school, home, at work and in the community.
Therefore, the definition of ``special education'' should be amended to
include a provision relating to the teaching of travel training, as
appropriate, to children with significant cognitive disabilities, and
any other disabled children who require such services. The regulations
should not substitute the term ``mobility training,'' since the
legislative history (S. Rep. No. 105-17, p. 6; H.R. Rep. No. 105-95, p.
86) recognizes that ``orientation and mobility'' services are generally
recognized as for blind children while children with other disabilities
may need travel training. In light of this regulatory change, Note 2
following this section of the NPRM should be removed.
The definition of ``parent counseling and training'' should be
changed to recognize the more active role acknowledged for parents
under the IDEA Amendments of 1997 as participants in the education of
their children. Parents of children with disabilities are very
important participants in the education process for their children.
Helping them gain the skills that will enable them to help their
children meet the goals and objectives of their IEP or IFSP will be a
positive change for parents, will assist in furthering the education of
their children, and will aid the schools as it will create
opportunities to build reinforcing relationships between each child's
educational program and out-of-school learning.
For these reasons, the definition of ``parent counseling and
training'' should be changed to include helping parents to acquire the
necessary skills that will allow them to support the implementation of
their child's IEP or IFSP. This change is in no way intended to
diminish the services that were available to parents under the prior
definition in these regulations.
It is not necessary to modify the definition of ``school health
services'' in the NPRM to add more specificity because the current
definition requires provision of health services, including those
addressed by the comments, if they can be provided by a qualified nurse
or other qualified individual who is not a physician, and the IEP team
determines that any or all of the services are necessary for a child
with a disability to receive FAPE. The commenters' description of the
holding in the Tatro decision is consistent with the Department's
longstanding interpretation regarding school health services.
[[Page 12550]]
In any case, the list of examples of related services in
Sec. 300.22 is not exhaustive, and other types of services not
specifically mentioned may be required related services based on the
needs of an individual child. The only type of service specifically
excluded from ``related services'' are medical services that are not
for diagnostic and evaluation purposes. ``Medical services,'' has
always been defined by the regulations as services provided by a
physician. The regulations already make clear that providers of school
health services, as is the case for providers of special education and
related services in general, must be qualified consistent with
Secs. 300.23 and 300.136 of these regulations.
Changes: Consistent with the above discussion, the definitions of
``occupational therapy'' at Sec. 300.24(b)(5) of these final
regulations and ``parent counseling and training'' at Sec. 300.24(b)(7)
of these final regulations have been revised; Note 2 has been deleted;
and a reference to travel training has been added under Sec. 300.26
(Special education).
Comment: Numerous comments were received relating to
``psychological services.'' Many of these comments addressed the role
of school psychologists under this part (e.g., stating that a
psychologist should be a member of the evaluation team, be involved in
IEP meetings, and conduct behavioral assessments). A few commenters
recommended that ``other mental health services'' be added at the end
of proposed Sec. 300.22(b)(9)(v), stating that this would ensure that
schools use, and families have access to, a variety of strategies and
interventions that go beyond psychological counseling. The commenters
added that children and families have been denied these necessary
mental health services because these services are not specifically
stated.
Some commenters expressed concern about the provision in the NPRM
that designated school psychologists and school social workers as the
personnel responsible for assisting in the development of positive
behavioral interventions and strategies for IEP goal development. These
commenters stated that, although psychologists and school social
workers may participate in actions relating to student behavior, this
function is too critical to be listed under a specific category of
related services. A few of these commenters stated that specifically
linking development of positive behavioral interventions and strategies
could be interpreted narrowly and result in excluding a broad array of
other professionals (such as school counselors and teachers) who may
know the students best. A number of commenters favored retaining the
provision in the NPRM. One commenter recommended that the regulations
be clarified to include an explicit ban on the use of aversive behavior
management strategies under this part.
A few commenters requested that the definition of ``recreation'' in
proposed Sec. 300.22(b)(10) be eliminated. One commenter indicated that
the definition will overreach the intent of IDEA. Others stated that
(1) the services listed would add costs to IDEA as well as
administrative burden because those services would be difficult to
arrange and schedule, and (2) participation in community-based
recreation is a family responsibility. A few commenters requested that
the definition of rehabilitation counseling be amended to add that
counseling should be provided on the basis of individual need and not
on a specific disability category. The commenters stated that because
vocational rehabilitation was provided under the transition grants for
students with significant disabilities, some school systems consider
vocational rehabilitation for these students only.
Some commenters also recommended that the definition of ``social
work services in schools'' be broadened to include individual and group
counseling and other mental health services. A few commenters requested
that proposed Sec. 300.22(b)(13)(iii) be revised to require that school
social work services include working in partnership with parents on
those problems in a child's living situation (home, school and
community) that affect the child's adjustment in school. Other
commenters requested that a new paragraph (vi) be added to the list of
functions relating to working with classrooms of children to help
students with disabilities develop or improve social skills, self
esteem, and self confidence. (See also the comment and discussion under
``psychological services'' related to the role of psychologists and
social workers in the development of positive behavioral interventions
and strategies for IEP goal development.)
One commenter recommended that the function ``Provision of speech
and language services for the habilitation or prevention of
communication impairments'' be deleted from proposed
Sec. 300.22(b)(14)(iv), because it includes vague language, making the
program more litigious and more difficult to administer.
Discussion: The definition of ``psychological services'' in the
NPRM is sufficiently broad to enable psychologists to be involved in
the majority of activities described by commenters, and, therefore, the
definition should not be revised to add other, more specific functions.
Nor is there a need to make substantive changes to the definition
of ``social work services in schools.'' Although psychologists (and
school social workers) may be involved in assisting in the development
of positive behavioral interventions, there are many other appropriate
professionals in a school district who might also play a role in that
activity. The standards for personnel who assist in the development of
positive behavioral interventions will vary depending on the
requirements of the State. Including the development of positive
behavioral interventions in the descriptions of potential activities
under social work services in schools and psychological services
provide examples of the types of personnel who assist in this activity.
These examples of personnel who may assist in this activity are not
intended to imply either that school psychologists and social workers
are automatically qualified to perform these duties or to prohibit
other qualified personnel from serving in this role, consistent with
State requirements.
Regarding the comment requesting clarification to impose a ban on
aversive behavior under this part, the new requirements in section
614(d)(3)(B)(i) of the Act are sufficient to address this concern by
strengthening the ability of the IEP team to address the need for
positive behavioral interventions in appropriate situations. Under
these new requirements, the IEP team must ``consider, if appropriate,
including in the IEP of a student whose behavior impedes his or her
learning or that of others, strategies, including positive behavioral
interventions, strategies, and supports to address that behavior.''
These new requirements are sufficiently broad to address the
commenter's concerns. In meeting their obligations under section
614(d)(3)(B)(i) of the Act, public agencies must ensure that qualified
personnel are used, and may select from a variety of staff for this
purpose.
The definition of ``social work services in schools'' should not be
expanded to include group counseling and other mental health services,
since under the definition as written, social workers could provide
these services if doing so would be consistent with State standards and
the students required such services in order to receive FAPE. However,
the technical change in Sec. 300.22(b)(13)(iii) should be made to
clarify that school social workers work
[[Page 12551]]
in partnership with parents and others on those problems in a child's
living situation (home, school, and community) that affect the child's
adjustment in school. The current definition is sufficiently broad to
enable school social workers to help disabled students work on social
skills.
Recreation should not be deleted from the list of related services.
This is a statutory provision that has been defined in the regulations
since 1977.
The commenters' request relating to ``rehabilitation counseling''
(i.e., to add clarification that it should be provided based on
individual need) is generally the case with all related services.
Adding a specific limitation to rehabilitation counseling could
inappropriately suggest that other services are to be provided without
regard to individual need.
The definition of ``speech-language pathology services'' should not
be revised. This is a longstanding definition that is useful to
qualified speech-language pathologists who provide services to children
with disabilities under these regulations.
Changes: A technical change has been made to the definition of
``social work services in schools.''
Comment: A few commenters supported Note 3 (relating to the use of
paraprofessionals). Some commenters recommended that the note be
amended by requiring proper training and supervision in the areas in
which paraprofessionals are providing services.
Commenters also stated that the regulations must (1) ensure parents
know which services are provided by paraprofessionals; (2) clarify the
service limitations of paraprofessionals; (3) prohibit any independent
development, substantive modification or unapproved provision of
services independent of the supervising related services professional;
(4) ensure that paraprofessionals are not used for IEP decision-making
activities or development or revisions of the child's interventions or
IEP; and (5) ensure these precautions are part of the policy
requirements of Sec. 300.136(f).
Other commenters requested that paraprofessionals who assist in
providing speech-language pathology services must be supervised by a
person who meets the highest requirements in the State for that
discipline.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 3 following this section should be
removed. When paraprofessionals are used to assist in the provision of
special education and related services under these regulations, they
must be appropriately trained and supervised in accordance with State
standards. Since concerns raised by commenters about the use of
paraprofessionals and assistants are addressed in the analysis of
comments under Sec. 300.136(f) of this attachment, it is not necessary
to make further changes to this section.
Changes: Note 3 to this section of the NPRM has been removed.
Comment: Several comments were received on Note 4 relating to the
definition of ``transportation.'' Some commenters recommended that the
note be revised to include accommodations to achieve integrated
transportation, including providing appropriate training to
transportation providers, such as bus drivers, and including the use of
aids.
A few commenters stated that the second sentence in Note 4 implies
that there is no limit to the adaptations that a school must make to
bus equipment to afford a disabled child an opportunity to ride the
regular bus. The commenters added that (1) the IEP team must retain the
authority to determine the appropriate mode of transportation based on
child's needs and financial and logistical burdens of various options,
and (2) as with other related services, transportation must only be
provided to assist a child with disabilities to benefit from special
education.
A number of commenters stated that transportation accommodations
are an LRE issue and, as such, should be determined by each child's IEP
team. These commenters added that accommodations also should be
addressed through section 504 and the ADA, and recommended that the
note be deleted. Another commenter recommended the need to clarify
public agency responsibility to provide necessary transportation to
disabled children even if that transportation is not provided to
nondisabled children.
Other commenters also recommended that Note 4 be deleted. One
commenter stated that the note goes beyond the statute and adds costs
in an outrageous extension of Federal authority. Another commenter
stated that the note could lead school districts to conclude that they
had to buy specialized equipment (e.g., lifts) for even more of their
buses in order to provide integrated transportation, a concept found
nowhere in the Act.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 4 to this section of the NPRM should be
deleted. In response to concerns of commenters, each disabled child's
IEP team must be able to determine the appropriate mode of
transportation for a child based on the child's needs. That team makes
all other decisions relating to the provision of special education and
related services; and transportation is a specific statutory service
listed in the definition of related services.
It is assumed that most children with disabilities will receive the
same transportation provided to nondisabled children, unless the IEP
team determines otherwise. However, for some children with
disabilities, integrated transportation may not be achieved unless
needed accommodations are provided to address each child's unique
needs. If the IEP team determines that a disabled child requires
transportation as a related service in order to receive FAPE, or
requires accommodations or modifications to participate in integrated
transportation with nondisabled children, the child must receive the
necessary transportation or accommodations at no cost to the parents.
This is so, even if no transportation is provided to nondisabled
children.
As with other provisions in these regulations relating to qualified
personnel, all personnel who provide required services under this part,
including bus drivers, must be appropriately trained.
Changes: Note 4 to this section of the NPRM has been removed, the
substance of Note 4 is reflected in the above discussion, and it is
further discussed in Appendix A of these final regulations.
Special Education (Sec. 300.26)
Comment: Some commenters requested that, in implementing the IEP
for disabled students in school-funded placements outside of the school
district, the cost of trips, phone calls, and other expenses incurred
by parents should be covered. Some commenters stated that they are not
reimbursed for official long-distance phone calls made regarding their
child's needs or for trips to attend special IEP meetings. According to
a commenter, one district will pay for the cost of driving the student
to school, but not for the cost of the return trip of the parents.
Several commenters requested that the definition of ``physical
education'' in proposed Sec. 300.24(b)(2)(ii) be amended to change
``adaptive'' to ``adapted,'' because the term was used in the original
regulations, and no rationale has been provided for changing it.
Some commenters expressed support for the definition of ``specially
designed instruction'' as written, while other
[[Page 12552]]
commenters expressed support with modification. Other commenters took
exception to the definition, characterizing it as overly prescriptive.
Other commenters recommended dropping the reference to methodology,
citing case law and the legislative history in support of their view
that methodology should not be included in this definition.
A few commenters stated that the definition of ``vocational
education'' in proposed Sec. 300.24(a)(3) was not complete, and
requested that it be amended to comply with the definition in the Carl
D. Perkins Vocational and Applied Technology Education Act. Other
commenters objected to including ``vocational education'' within the
definition of ``special education,'' asserting that there is no
statutory authority to do so. Other commenters recommended that some
minor modifications be made to the current definition.
A few commenters requested that the regulations clarify the
difference between accommodations that do not change the content of the
curriculum and modifications that do change it. Other commenters
requested that access to the general curriculum be to the maximum
extent appropriate for the child. A few commenters recommended adding
clarifying language to accommodate the distinction between providing
disabled students with a meaningful opportunity to meet the standards
and actually meeting the standards, and stated that the Act recognizes
this distinction by referencing involvement and progress in the general
curriculum.
Some commenters supported the note to proposed Sec. 300.24 (that a
related services provider may be a provider of specially designed
instruction if State law permits). Other commenters stated that the
note should be deleted to eliminate the possibility that individuals
may interpret it to mean that the term ``child with a disability,'' as
defined under proposed Sec. 300.7, might include children who need only
a related service.
Discussion: It is not necessary to revise the definition of ``at no
cost'' under paragraph (b)(1) of this section, since that definition
already addresses the comment relating to the cost of trips, phone
calls, and other expenses incurred by parents of disabled children when
those children are placed outside the school district by a public
agency. If the school district places the child, and the IEP team
determines that the costs of phone calls and trips are relevant to the
student's receipt of FAPE, the public agency placing the child would be
expected to pay for such expenses.
Paragraph (b)(2) concerning ``physical education'' should be
amended to substitute the word ``adapted'' for the word ``adaptive,''
since this is the term that was in the original regulations.
With regard to the definition of ``specially designed
instruction,'' some changes should be made. The committee reports to
Pub. L. 105-17 make clear that specific day-to-day adjustments in
instructional methods and approaches are not normally the sort of
change that would require action by an IEP team. Requiring an IEP to
include such a level of detail would be overly-prescriptive, impose
considerable unnecessary administrative burden, and quite possibly be
seen as encouraging disputes and litigation about rather small and
unimportant changes in instruction. There is, however, a reasonable
distinction to be drawn between a mode of instruction, such as cued
speech, which would be the basis for the goals, objectives, and other
elements of an individual student's IEP and should be reflected in that
student's IEP, and a day-to-day teaching approach, i.e., a lesson plan,
which would not be intended to be included in a student's IEP.
Case law recognizes that instructional methodology can be an
important consideration in the context of what constitutes an
appropriate education for a child with a disability. At the same time,
these courts have indicated that they will not substitute a parentally-
preferred methodology for sound educational programs developed by
school personnel in accordance with the procedural requirements of the
IDEA to meet the educational needs of an individual child with a
disability.
In light of the legislative history and case law, it is clear that
in developing an individualized education there are circumstances in
which the particular teaching methodology that will be used is an
integral part of what is ``individualized'' about a student's education
and, in those circumstances will need to be discussed at the IEP
meeting and incorporated into the student's IEP. For example, for a
child with a learning disability who has not learned to read using
traditional instructional methods, an appropriate education may require
some other instructional strategy.
Other students' IEPs may not need to address the instructional
method to be used because specificity about methodology is not
necessary to enable those students to receive an appropriate education.
There is nothing in the definition of ``specially designed
instruction'' that would require instructional methodology to be
addressed in the IEPs of students who do not need a particular
instructional methodology in order to receive educational benefit. In
all cases, whether methodology would be addressed in an IEP would be an
IEP team decision.
Other changes to the definition of ``specially designed
instruction'' are not needed. The distinction between accommodations
that change the general curriculum and those that do not, as one
commenter requests, would be difficult to make because of the
individualized nature of these determinations. Regardless of the
reasons for the accommodation or modification, it must be provided if
necessary to address the special educational needs of an individual
student.
The words ``maximum extent appropriate'' should not follow the
reference to participation in the general curriculum, because such a
qualification would conflict with the Act's IEP requirements and the
unequivocal emphasis on involvement and progress of students with
disabilities in the general curriculum, regardless of the nature or
significance of the disability.
The term ``vocational education'' in paragraph (b)(5) should not be
amended to conform to the definition in the Carl D. Perkins Vocational
and Applied Technology Education Act. The definition of ``vocational
education'' in the proposed regulations should be retained in these
final regulations since it reflects the definition of that term
contained in the original regulations for this program published in
1977. While the regulatory definition includes all of the activities in
the Perkins Act definition, the substitution of the definition from the
Perkins Act would be too limiting since that definition would not
encompass those activities included in the current definition. The
inclusion of ``vocational education'' in the definition of ``special
education'' is needed to ensure that students with disabilities receive
appropriate, individually-designed vocational educational services to
facilitate transition from school to post-school activities.
In light of the general decision not to use notes in these final
regulations, the note following this section of the NPRM should be
removed. The removal of this note, however, should not be construed as
altering eligibility requirements under these regulations--namely (1) a
child is an eligible child with a disability under Part B if the child
has a covered impairment and requires special education by reason of
the
[[Page 12553]]
impairment; and (2) a child with a disability can receive a related
service only if that service is required to assist the child to benefit
from special education. However, consistent with Sec. 300.26(a)(2), any
related service that is considered special education rather than a
related service under State standards may be considered as special
education. A provision has been added under the definition of ``child
with a disability'' to reflect this concept.
Changes: Paragraph (a)(2) has been amended to add travel training
to the elements contained in the definition of ``special education,''
and a separate definition of travel training has been added to
paragraph (b)(4) as discussed in this attachment under Sec. 300.24.
Paragraph (b)(2) concerning physical education has been revised to
substitute the word ``adapted'' for the word ``adaptive.'' Paragraph
(b)(3) has been revised to make clear that adaptations to instruction,
in the form of specially designed instruction, are made as appropriate
to the needs of the child. The note following this section of the NPRM
has been removed, and the substance of the note is reflected in the
above discussion.
Supplementary Aids and Services (Sec. 300.28)
Comment: A few commenters supported the definition of
``supplementary aids and services,'' as written. Some commenters
requested that the regulations define the term ``educationally related
setting,'' and that examples of supplementary aids and services be
included. Another commenter recommended that the definition be amended
to state that related services could be considered supplementary aids
and services. Other commenters recommended that assistive technology be
considered in the same context as supplementary aids and services.
Discussion: It is not necessary to define the terms used in this
definition. As stated in the analysis of comments relating to
Secs. 300.5 and 300.6 (assistive technology devices and services),
assistive technology devices and services are already recognized as
supplementary aids and services. Under IDEA, aids, supports and
services would be considered during the IEP meeting and if determined
appropriate by the IEP team would be integrated under the appropriate
components of the IEP. Further, with respect to the language about
``related services,'' a change is not needed. If a disabled child
requires a related service in the regular classroom, that related
service must be provided, and there is no reason to identify that
service as a supplementary aid or service.
Changes: None.
Transition Services (Sec. 300.29)
Comment: Many commenters supported the transition services
definition in these regulations, but recommended that the definition be
amended to include, in paragraph (1)(c)(vi), self-advocacy, career
planning, and career guidance. This comment also emphasized the need
for coordination between this provision and the Perkins Act to ensure
that students with disabilities in middle schools will be able to
access vocational education funds.
One commenter recommended that the definition of ``transition
services'' either be narrowed to post-school transition or that other
transitions, such as transition from Part C to Part B, be defined
elsewhere in these regulations.
Discussion: The Act's ``transition services'' definition should be
retained as written. In light of the general decision not to use notes
in these final regulations, the note following this section of the NPRM
should be removed. It is important to clarify that transition services
for students with disabilities may be special education if they are
provided as specially designed instruction, or related services, if
they are required to assist a student with a disability to benefit from
special education, and that the list of activities in the definition is
not intended to be exhaustive.
Additional examples of transition services are not needed because
the current definition is sufficiently broad to encompass these
activities. Nor is it necessary to amend the definition to reference
the Perkins Act, since, under current law, students with disabilities,
including those in middle schools, can participate in these Federally-
funded programs, and must be provided necessary accommodations to
ensure their meaningful participation.
Further, the definition of ``transition services'' should not be
narrowed or expanded to include other transitions, because to do so
could be inconsistent with congressional intent that public agencies
provide students with disabilities the types of needed services to
facilitate transition from school to post-school activities.
Changes: The note following this section of the NPRM has been
removed, and the substance of the note has been added as a new
paragraph (b).
Subpart B
Condition of Assistance (Sec. 300.110)
Comment: A few commenters stated that the proposed regulations at
Secs. 300.110-300.113, as written, would not ensure that States meet
the requirements of section 612(a) and (c) of the Act.
Discussion: It is appropriate to amend Sec. 300.110 to more
explicitly state what is required for compliance with these provisions.
Changes: Section 300.110 has been amended, as noted in the above
discussion.
Free Appropriate Public Education (Sec. 300.121)
(For a brief overview of the changes made regarding the discipline
sections of these regulations, please refer to the preamble.)
Comment: A few commenters asked that the regulations be amended to
adopt a ``no cessation of services'' policy, under which students with
disabilities would be entitled to receive FAPE even during periods of
less than ten days of suspension in a given school year. Some of these
commenters stated that there is no basis to assume that Congress did
not mean what is explicitly stated in section 612(a)(1)(A) of the Act--
that all children are entitled to FAPE, including children who have
been suspended or expelled from school.
A few commenters expressed support for the proposed language which
defines the term ``children with disabilities who have been suspended
or expelled from school'' as meaning children with disabilities who
have been removed from their current educational placement for more
than 10 school days in a given school year, but asked that the
regulations clarify that the 10 school days are cumulative, not
consecutive.
Several commenters recommended deleting the phrase ``in a given
school year,'' stating that the statute allows school personnel to
suspend a disabled child for not more than ten consecutive school days
without the provision of educational services, and that there is no
statutory basis for defining 10 school days to be within a given year.
A number of commenters supported the proposed ``11th day'' rule (i.e.,
that the right to FAPE for disabled children who have been suspended or
expelled begins on the eleventh school day in a school year that they
are removed from their current educational placement). Other commenters
recommended deleting proposed Sec. 300.121(c)(2). Some of these
commenters stated that they agreed with the Supreme Court decision in
Honig versus Doe and with the Department's
[[Page 12554]]
long-standing interpretation of the Act--that a pattern of suspensions
would constitute a change in placement, but objected to the regulations
defining when the ``11th day'' occurs.
One commenter asked whether the provisions of proposed
Sec. 300.121(c) would apply if a child's disability is not related to
the behavior in question. Some commenters were concerned that the
standard from Sec. 300.522 would be unwieldy for short-term suspensions
or should be modified to permit different services for children
suspended or expelled for behavior determined not to be a manifestation
of their disability. Another commenter recommended strengthening the
language of Sec. 300.121 to ensure that the SEA is responsible for
ensuring the provision of FAPE for children who are suspended or
expelled.
Discussion: Section 612(a)(1)(A) of the Act now makes explicit that
FAPE must be available to children with disabilities who are suspended
or expelled, in light of the adverse impact a cessation of educational
services can have on a child with disabilities ability to achieve in
school and to become a self-supporting adult who is contributing to our
society. The Act, however, should not be read to always require the
provision of services when a child is removed from school for just a
few days. School officials need some reasonable degree of flexibility
when dealing with children with disabilities who violate school conduct
rules, and interrupting a child's participation in education for up to
10 school days over the course of a school year, when necessary and
appropriate to the circumstances, does not impose an unreasonable
limitation on a child with disabilities right to FAPE.
On the other hand, at some point repeated exclusions of a child
with disabilities from the educational process will have a deleterious
effect on the child's ability to succeed in school and to become a
contributing member of society. The law ensures that even children with
disabilities who are engaged in what objectively can be identified as
dangerous acts, such as carrying a weapon to school, must receive
appropriate services. (See sections 615(k)(1)(A)(ii) and 615(k)(2)).
Therefore, it is reasonable that children with disabilities who
have been repeatedly suspended for more minor violations of school
codes not suffer greater consequences from exclusions from school than
children who have committed the most significant offenses. For these
reasons, once a child with a disability has been removed from school
for more than 10 school days in a school year, it is reasonable for
appropriate school personnel (if the child is to be removed for 10
school days or less, or the child's IEP team, if the child is to be
suspended or expelled for behavior that is not a manifestation of the
child's disability) to make informed educational decisions about
whether and the extent to which services are needed to enable the child
to make appropriate educational progress in the general curriculum and
toward the goals of the child's IEP.
The change of placement rules referred to in the Supreme Court's
decision in Honig v. Doe, which is based on the Department's long-
standing interpretation of what is now section 615(j) of the Act, are
addressed in the discussion of comments received under Sec. 300.520 in
this attachment, and changes are made in these final regulations as a
result of those comments. However, determining whether a change of
placement has occurred does not answer the question of at what point
exclusion from educational services constitutes a denial of FAPE under
section 612(a)(1)(A) of the Act.
With regard to the standard for services that must be provided to
children with disabilities who have been suspended or expelled from
school, the statute at section 615(k)(3) specifically addresses only
the services to be provided to children who have been placed in interim
alternative educational settings under sections 615(k)(1)(A)(ii) and
615(k)(2) (Secs. 300.520(a)(2) and 300.521), which contemplate
situations in which children are removed for up to 45 days, without
regard to whether the behavior is or is not a manifestation of the
child's disabilities.
In light of the comments received, the regulation would be revised
to recognize that the extent to which services would need to be
provided and the amount of service that would be necessary to enable a
child with a disability to meet the same general standard of
appropriately progressing in the general curriculum and advancing
toward achieving the goals on the child's IEP may be different if the
child is going to be out of his or her regular placement for a short
period of time. For example, a one or two day removal of a child who is
performing at grade level may not need the same kind and amount of
service to meet this standard as a child who is out of his or her
regular placement for 45 days under Sec. 300.520(a)(2) or Sec. 300.521.
Similarly, if the child is suspended or expelled for behavior that is
not a manifestation of his or her disability, it may not make sense to
provide services in the same way as when the child is in an interim
alternative educational setting.
As part of its general supervision responsibility under
Sec. 300.600, each SEA must ensure compliance with all Part B
requirements, including the requirements of Sec. 300.121(d) regarding
FAPE for children who are removed from their current educational
placement for more than ten school days in a given school year.
Changes: The regulation has been revised to provide that when a
child with a disability who has been removed from his or her current
educational placement for more than 10 school days in a school year is
subjected to a subsequent removal for not more than 10 school days at a
time and when a child with a disability is suspended or expelled for
behavior that is not a manifestation of the child's disability, the
public agency must provide services to the extent necessary to enable
the child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals in the child's IEP.
In the case of a child who is removed pursuant to
Sec. 300.520(a)(1) for 10 school days or less at a time, this
determination is made by school personnel, in consultation with the
child's special education teacher. In the case of a child whose removal
constitutes a change of placement for behavior that is not a
manifestation of the child's disability pursuant to Sec. 300.524, this
determination is made by the child's IEP team.
The regulation has also been revised to clarify that if a child is
removed by school personnel for a weapon or drug offense under
Sec. 300.520(a)(2) or by a hearing officer based on a determination of
substantial likelihood of injury under Sec. 300.521, the public agency
provides services as specified in Sec. 300.522.
Comment: Some commenters expressed support for Note 1 (which
clarifies the responsibility of public agencies to make FAPE available
to children with disabilities beginning no later than their third
birthday) and recommended that the substance of the note be
incorporated into the text of the regulations. A few commenters
suggested revising Note 1 to clarify that children with disabilities
whose third birthday occurs during the summer are not entitled to
receive special education and related services until school starts for
the fall term.
Discussion: The responsibility of public agencies to make FAPE
available to children with disabilities beginning no later than their
third birthday means that an IEP (or an IFSP consistent with
Sec. 300.342) has been developed and is
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