Federal register 2006

Monday,
August 14, 2006

Part II

Department of
Education
34 CFR Parts 300 and 301
Assistance to States for the Education of
Children With Disabilities and Preschool
Grants for Children With Disabilities;
Final Rule
sroberts on PROD1PC70 with RULES

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46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations

DEPARTMENT OF EDUCATION Special Education Personnel (2) A new § 300.18(e), regarding
Development to Improve Services and separate ‘‘high objective uniform State
34 CFR Parts 300 and 301 Results for Children with Disabilities. In standards of evaluation’’ (HOUSSE), has
RIN 1820–AB57 the preamble to the NPRM, the been added to provide that a State may
Secretary discussed, on pages 35783 develop a separate HOUSSE for special
Assistance to States for the Education through 35819, the changes proposed to education teachers, provided that any
of Children With Disabilities and the regulations for these programs; adaptations of the State’s HOUSSE
Preschool Grants for Children With specifically, the amendments to 34 CFR would not establish a lower standard for
Disabilities part 300, the removal of 34 CFR part 301 the content knowledge requirements for
and relocation of those provisions to special education teachers and meets all
AGENCY: Office of Special Education and subpart H of 34 CFR part 300, and the the requirements for a HOUSSE for
Rehabilitative Services, Department of amendments to 34 CFR part 304. regular education teachers. This
Education. Final regulations for 34 CFR Part provision also clarifies that a State may
ACTION: Final regulations. 304—Special Education-Personnel develop a separate HOUSSE for special
Development to Improve Services and education teachers, which may include
SUMMARY: The Secretary issues final Results for Children with Disabilities single HOUSSE evaluations that cover
regulations governing the Assistance to were published in the Federal Register multiple subjects.
States for Education of Children with (71 FR 32396) on June 5, 2006, and (3) Section 300.18(g) (proposed
Disabilities Program and the Preschool became effective July 5, 2006. § 300.18(f)) (‘‘Applicability of definition
Grants for Children with Disabilities to ESEA requirements; and clarification
Program. These regulations are needed Major Changes in the Regulations
of new special education teacher’’) has
to implement changes made to the The following is a summary of the been revised as follows: (1) The heading
Individuals with Disabilities Education major substantive changes in these final has been revised, and (2) the language
Act, as amended by the Individuals with regulations from the regulations changed to clarify when a special
Disabilities Education Improvement Act proposed in the NPRM (the rationale for education teacher is considered ‘‘new’’
of 2004 (Act or IDEA). each of these changes is discussed in the for some purposes.
DATES: These regulations take effect on Analysis of Comments and Changes (4) Section 300.18(h) (proposed
October 13, 2006. section of this preamble): § 300.18(g)) has been modified to clarify
FOR FURTHER INFORMATION CONTACT: Subpart A—General that the highly qualified special
Alexa Posny, U.S. Department of education teacher requirements also do
Definitions not apply to private school teachers
Education, Potomac Center Plaza, 550
12th Street, SW., Washington, DC • The definition of child with a hired or contracted by LEAs to provide
20202–2641. Telephone: (202) 245– disability in § 300.8 has been revised as equitable services to parentally-placed
7459, ext. 3. follows: private school children with disabilities
If you use a telecommunications (1) Section 300.8(b) (Children aged under § 300.138.
three through nine experiencing • The definition of Indian and Indian
device for the deaf (TDD), you may call
developmental delays) has been tribe in § 300.21 has been changed to
the Federal Relay System (FRS) at 1–
changed to clarify that the use of the clarify that nothing in the definition is
800–877–8339.
Individuals with disabilities may term ‘‘developmental delay’’ is subject intended to indicate that the Secretary
obtain this document in an alternate to the conditions described in of the Interior is required to provide
format (e.g., Braille, large print, § 300.111(b). services or funding to a State Indian
audiotape, or computer diskette) on (2) The definition of other health tribe that is not listed in the Federal
request to the contact person listed impairment in § 300.8(c)(9)(i) has been Register list of Indian entities
under FOR FURTHER INFORMATION changed to add ‘‘Tourette Syndrome’’ to recognized as eligible to receive services
CONTACT. the list of chronic or acute health from the United States, published
problems. pursuant to Section 104 of the Federally
SUPPLEMENTARY INFORMATION: These • The definition of excess costs in Recognized Indian Tribe List Act of
regulations implement changes in the § 300.16 has been revised to clarify that 1994, 25 U.S.C. 479a–1.
regulations governing the Assistance to the computation of excess costs may not • The definition of parent in § 300.30
States for Education of Children with include capital outlay and debt service. has been revised to substitute
Disabilities Program and the Preschool In addition, a new ‘‘Appendix A to Part ‘‘biological’’ for ‘‘natural’’ each time it
Grants for Children with Disabilities 300—Excess Cost Calculation’’ has been appears in the definition, and to add
Program necessitated by the added to provide a description (and an language clarifying that to be considered
reauthorization of the IDEA. With the example) of how to calculate excess a parent under this definition a
issuance of these final regulations, part costs under the Act and these ‘‘guardian’’ must be a person generally
301 has been removed and the regulations. authorized to act as the child’s parent,
regulations implementing the Preschool • The definition of highly qualified or authorized to make educational
Grants for Children with Disabilities special education teacher in § 300.18 decisions for the child.
Program are included under subpart H has been revised, as follows: • The definition of related services in
of these final regulations. (1) Section 300.18(b), regarding § 300.34 has been revised as follows:
On June 21, 2005, the Secretary requirements for highly qualified (1) Section 300.34(a) (General) has
published a notice of proposed special education teachers in general, been modified to (A) add the statutory
rulemaking in the Federal Register (70 has been modified to clarify that, when term ‘‘early identification and
FR 35782) (NPRM) to amend the used with respect to any special assessment of disabilities in children,’’

regulations governing the Assistance to education teacher teaching in a charter which was inadvertently omitted from
States for Education of Children with school, highly qualified means that the the NPRM, (B) combine ‘‘school health
Disabilities Program, the Preschool teacher meets the certification or services’’ and ‘‘school nurse services,’’
Grants for Children with Disabilities licensing requirements, if any, set forth and (C) remove the clause relating to a
Program, and Service Obligations under in the State’s public charter school law. free appropriate public education under


Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46541

‘‘school nurse services’’ because it With the addition of the new children without disabilities in the same
duplicates the clause in § 300.34(c)(13). definition in § 300.35, the definitions in grades.
(2) Section 300.34(b) has been subpart A, beginning with the definition • A new § 300.113, regarding routine
changed to (A) expand the title to read of secondary school, have been checking of hearing aids and external
‘‘Exception; services that apply to renumbered. components of surgically implanted
children with surgically implanted • The definition of special education medical devices, has been added, as
devices, including cochlear implants,’’ in § 300.39 (proposed § 300.38) has been follows:
and (B) clarify, in new paragraph (b)(1), revised to remove the definition of (1) Paragraph (a) of § 300.113 requires
that related services do not include a vocational and technical education that each public agency to ensure that
medical device that is surgically was included in proposed hearing aids worn in school by children
implanted, the optimization of that § 300.38(b)(6). with hearing impairments, including
device’s functioning (e.g., mapping), • The definition of supplementary deafness, are functioning properly.
maintenance of that device, or the (2) A new § 300.113(b)(1) requires
aids and services in § 300.42 (proposed
replacement of that device. each public agency to ensure that the
§ 300.41) has been modified to specify
(3) A new § 300.34(b)(2) has been external components of surgically
that aids, services, and other supports
added to make clear that nothing in implanted medical devices are
are also provided to enable children
paragraph (b)(1) of § 300.34 (A) limits functioning properly. However, new
with disabilities to participate in
the right of a child with a surgically § 300.113(b)(2) has been added to make
implanted device (e.g., a cochlear extracurricular and nonacademic
it clear that, for a child with a surgically
implant) to receive related services, as settings.
implanted medical device who is
listed in § 300.34(a), that are determined Subpart B—State Eligibility receiving special education and related
by the IEP Team to be necessary for the services, a public agency is not
child to receive FAPE; (B) limits the FAPE Requirements
responsible for the post-surgical
responsibility of a public agency to • Section 300.101(c) has been revised maintenance, programming, or
appropriately monitor and maintain to clarify that a free appropriate public replacement of the medical device that
medical devices that are needed to education (FAPE) must be available to has been surgically implanted (or of an
maintain the health and safety of the any individual child with a disability external component of the surgically
child, including breathing, nutrition, or who needs special education and implanted medical device).
operation of other bodily functions, related services, even though the child
while the child is transported to and Least Restrictive Environment
has not failed or been retained in a
from school or is at school; or (C) course, and is advancing from grade to • Section 300.116(b)(3) and (c)
prevents the routine checking of an grade. regarding placements, has been revised
external component of a surgically- • Section 300.102(a)(3), regarding to remove the qualification ‘‘unless the
implanted device to make sure it is exceptions to FAPE, has been changed parent agrees otherwise’’ from the
functioning properly, as required in to clarify that a regular high school requirements that (1) the child’s
§ 300.113(b). diploma does not include an alternative placement be as close as possible to the
(4) The definition of interpreting degree that is not fully aligned with the child’s home, and (2) the child is
services in § 300.34(c)(4) has been State’s academic standards, such as a educated in the school he or she would
changed to clarify that the term includes certificate or a general educational attend if not disabled.
(A) transcription services, such as development credential (GED). • Section 300.117 (Nonacademic
communication access real-time settings) has been changed to clarify that
• Section 300.105, regarding assistive
translation (CART), C-Print, and each public agency must ensure that
technology and proper functioning of
TypeWell for children who are deaf or each child with a disability has the
hearing aids, has been re-titled
hard of hearing, and (B) special supplementary aids and services
‘‘Assistive technology,’’ and proposed
interpreting services for children who determined by the child’s
paragraph (b), regarding the proper
are deaf-blind. individualized education program (IEP)
(5) The definition of orientation and functioning of hearing aids, has been
Team to be appropriate and necessary
mobility services in § 300.34(c)(7) has moved to new § 300.113(a).
for the child to participate with
been changed to remove the term ‘‘travel • Section 300.107(a), regarding nondisabled children in the
training instruction.’’ The term is under nonacademic services, has been revised extracurricular services and activities to
the definition of special education, and to specify the steps each public agency the maximum extent appropriate to the
is defined in § 300.39(b)(4). must take, including the provision of needs of that child.
(6) The definition of school nurse supplementary aids and services
services in 300.34(c)(13) has been determined appropriate and necessary Children With Disabilities Enrolled by
expanded and re-named school health by the child’s IEP Team, to provide Their Parents in Private Schools
services and school nurse services. The nonacademic and extracurricular • Section 300.130 (definition of
expanded definition clarifies that services and activities in the manner parentally-placed private school
‘‘school nurse services’’ are provided by necessary to afford children with children with disabilities) has been
a qualified school nurse, and ‘‘school disabilities an equal opportunity for revised to clarify that the term means
health services’’ may be provided by a participation in those services and children with disabilities enrolled by
qualified school nurse or other qualified activities. their parents in private, including
person. • Proposed § 300.108(a), regarding religious, schools or facilities, that meet
• A definition of scientifically based physical education services, has been the definition of elementary school in
research has been added in new revised to specify that physical § 300.13 or secondary school in

§ 300.35 that incorporates by reference education must be made available to all § 300.36.
the definition of that term from the children with disabilities receiving • A new § 300.131(f), regarding child
Elementary and Secondary Education FAPE, unless the public agency enrolls find for out-of-State parentally-placed
Act of 1965, as amended, 20 U.S.C. 6301 children without disabilities and does private school children with disabilities,
et seq. (ESEA). not provide physical education to has been added to clarify that each LEA



in which private (including religious) find requirements in § 300.131, due process hearings under § 300.507
elementary schools and secondary including the requirements in and §§ 300.530 through 300.532, has
schools are located must include §§ 300.301 through 300.311. been revised to clarify that if a written
parentally-placed private school (2) A new paragraph (b)(2) has been complaint is received that is also the
children who reside in a State other added to provide that any due process subject of a due process hearing under
than the State in which the private complaint regarding the child find §§ 300.507 or 300.530 through 300.532,
schools that they attend are located. requirements (as described in or contains multiple issues of which one
• Section 300.133, regarding § 300.140(b)(1)) must be filed with the or more are part of a due process
expenditures for parentally-placed LEA in which the private school is hearing, the State must set aside any
private school children with disabilities, located and a copy of the complaint part of the complaint that is being
has been revised, as follows: must be forwarded to the SEA. addressed in the due process hearing
(1) A new § 300.133(a)(2)(ii), has been (3) A new § 300.140(c), regarding until the conclusion of the hearing.
added to clarify that children aged three State complaints by private school However, any issue in the complaint
through five are considered to be officials, has been added to clarify that that is not part of the due process
parentally-placed private school (A) any complaint that an SEA or LEA hearing must be resolved using the time
children with disabilities enrolled by has failed to meet the requirements in limit and procedures described
their parents in private, including §§ 300.132 through 300.135 and 300.137 elsewhere in the State complaint
religious, elementary schools, if they are through 300.144 must be filed in procedures. A new paragraph (c)(3) also
enrolled in a private school that meets accordance with the procedures has been added to require SEAs to
the definition of elementary school in described in §§ 300.151 through resolve complaints alleging a public
§ 300.13. 300.153, and (B) a complaint filed by a agency’s failure to implement a due
(2) A new § 300.133(a)(3) has been private school official under process hearing. This is the same
added to specify that, if an LEA has not § 300.136(a) must be filed with the SEA requirement in current § 300.661(c)(3).
expended for equitable services for in accordance with the procedures in • Section 300.153(c), regarding the
parentally-placed private school § 300.136(b). one year time limit from the date the
children with disabilities all of the alleged violation occurred and the date
applicable funds described in Children With Disabilities Enrolled by
Their Parents in Private Schools When the complaint is received in accordance
§ 300.133(a)(1) and (a)(2) by the end of with § 300.151, has been revised by
the fiscal year for which Congress FAPE Is at Issue
removing the exception clause related to
appropriated the funds, the LEA must Section 300.148 Placement of Children complaints covered under
obligate the remaining funds for special by Parents if FAPE Is at Issue § 300.507(a)(2).
education and related services • A new § 300.148(b), regarding
(including direct services) to parentally- Methods of Ensuring Services
disagreements about FAPE, has been
placed private school children with added (from current § 300.403(b)) to • Section 300.154(d), regarding
disabilities during a carry-over period of clarify that disagreements between a children with disabilities who are
one additional year. parent and a public agency regarding covered by public benefits or insurance,
• Section 300.136, regarding the availability of a program appropriate has been revised to clarify that the
compliance related to parentally-placed for a child with a disability, and the public agency must (1) obtain parental
private school children with disabilities, question of financial reimbursement, are consent each time that access to the
has been revised to remove the subject to the due process procedures in parent’s public benefits or insurance is
requirement that private school officials §§ 300.504 through 300.520. sought, and (2) notify parents that
must submit complaints to the SEA refusal to allow access to their public
using the procedures in §§ 300.151 State Complaint Procedures benefits or insurance does not relieve
through 300.153. • Section 300.152(a)(3)(ii) (proposed the public agency of its responsibility to
• Section 300.138(a), regarding the paragraph (a)(3)(B)) has been revised to ensure that all required services are
requirement that services to parentally- clarify that each SEA’s complaint provided at no cost to the parents.
placed private school children with procedures must provide the public
disabilities must be provided by Additional Eligibility Requirements
agency with an opportunity to respond
personnel meeting the same standards to a complaint filed under § 300.153, • Section 300.156(e), regarding
as personnel providing services in the including, at a minimum, an personnel qualifications, has been
public schools, has been modified to opportunity for a parent who has filed revised (1) to add ‘‘or a class of
clarify that private elementary school a complaint and the public agency to students,’’ to clarify that a judicial
and secondary school teachers who are voluntarily engage in mediation action on behalf of a class of students
providing equitable services to consistent with § 300.506. may not be filed for failure of a
parentally-placed private school • Section 300.152(b)(1)(ii), regarding particular SEA or LEA employee to be
children with disabilities do not have to time extensions for filing a State highly qualified, and (2) to substitute
meet the highly qualified special complaint, has been revised to clarify the word ‘‘employee’’ for ‘‘staff person,’’
education teacher requirements in that it would be permissible to extend to be more precise in the rule of
§ 300.18. the 60-day timeline if the parent (or construction in new § 300.18(f)
• Section 300.140, regarding due individual or organization if mediation (proposed § 300.18(e)).
process complaints and State or other alternative means of dispute • Section 300.160 (participation in
complaints, has been revised to make resolution is available to the individual assessments) has been removed, and the
the following changes: or organization under State procedures) section has been designated as
(1) Section 300.140(b)(1) (proposed and the public agency agree to engage in ‘‘Reserved.’’ Participation in

§ 300.140(a)(2)), regarding child find mediation or to engage in other assessments is the subject of a new
complaints, has been changed to clarify alternative means of dispute resolution, notice of proposed rulemaking issued
that the procedures in §§ 300.504 if available in the State. on December 15, 2005 (70 FR 74624) to
through 300.519 apply to complaints • Section 300.152(c), regarding amend the regulations governing
that an LEA has failed to meet the child complaints filed under § 300.152 and programs under Title I of the ESEA and



Part B of the IDEA regarding additional consent from the parent for an initial proposed paragraph (a)(2) of § 300.307
flexibility for States to measure the evaluation. has been redesignated as paragraph
achievement of children with (2) Section 300.300(a)(3), regarding a (a)(1).
disabilities based on modified parent’s failure to provide consent for (2) Section 300.307(a)(2) (proposed
achievement standards. initial evaluation, has been changed to paragraph (a)(3)) has been changed to
clarify, in a new paragraph (a)(3)(ii), that clarify that the criteria adopted by the
Other Provisions Required for State the public agency does not violate its State must permit the use of a process
Eligibility obligation under § 300.111 and based on the child’s response to
• Section 300.172, regarding access to §§ 300.301 through 300.311 if it declines scientific, research-based intervention.
instructional materials, has been to pursue the evaluation. • Section 300.308 (Group members)
revised: (1) To make clear that States (3) Section 300.300(b), regarding has been changed to require the
must adopt the National Instructional parental consent for services, has been eligibility group for children suspected
Materials Accessibility Standard modified by a new paragraph (b)(2) that of having SLD to include the child’s
(NIMAS), published as Appendix C to requires a public agency to make parents and a team of qualified
these final regulations; (2) to establish a reasonable efforts to obtain informed professionals, which must include the
definition of ‘‘timely manner,’’ for consent from the parent for the initial child’s regular teacher (or if the child
purposes of § 300.172(b)(2) and (b)(3) if provision of special education and does not have a regular teacher, a
the State is not coordinating with the related services. regular classroom teacher qualified to
National Instructional Materials Access (4) Section 300.300(c)(1), regarding teach a child of his or her age) or for a
Center (NIMAC), or § 300.172(b)(3) and parental consent for reevaluations, has child of less than school age, an
(c)(2) if the State is coordinating with been modified to clarify that if a parent individual qualified by the SEA to teach
the NIMAC; (3) to add a new refuses to consent to a reevaluation, the a child of his or her age; and at least one
§ 300.172(b)(4) to require SEAs to public agency may, but is not required person qualified to conduct individual
ensure that all public agencies take all to, pursue the reevaluation by using the diagnostic examinations of children,
reasonable steps to provide instructional consent override procedures in such as a school psychologist, speech-
materials in accessible formats to § 300.300(a)(3), and the public agency language pathologist, or remedial
children with disabilities who need does not violate its obligation under reading teacher. These are the same
those instructional materials at the same § 300.111 and §§ 300.301 through requirements in current § 300.540.
time as other children receive 300.311 if it declines to pursue the • Section 300.309 (Determining the
instructional materials; and (4) to add a evaluation or reevaluation. existence of a specific learning
new § 300.172(e)(2) to clarify, that all (5) A new § 300.300(d)(4) has been disability) has been revised, as follows:
added to provide that if a parent of a (1) Paragraph (a) of § 300.309 has been
definitions in § 300.172(e)(1) apply to
child who is home schooled or placed changed (A) to clarify that the group
each State and LEA, whether or not the
in a private school by the parent at the described in 300.306 may determine
State or LEA chooses to coordinate with
parent’s expense, does not provide that a child has a specific learning
the NIMAC.
consent for an initial evaluation or a disability if the child does not achieve
• A new § 300.177 has been added to
reevaluation, or the parent fails to adequately for the child’s age or to meet
include a provision regarding ‘‘States’
respond to a request to provide consent, State-approved grade-level standards in
sovereign immunity.’’ That provision,
the public agency (A) may not use the one or more of eight areas (e.g., oral
which has been added to incorporate
consent override procedures (described expression, basic reading skill, etc.),
the language in section 604 of the Act,
elsewhere in § 300.300), and (B) is not when provided with learning
makes clear that a State that accepts
required to consider the child eligible experiences and instruction appropriate
funds under Part B of the Act waives its
for services under the requirements for the child’s age or State-approved
immunity under the 11th amendment of
relating to parentally-placed private grade-level standards; and (B) to add
the Constitution of the United States
school children with disabilities ‘‘limited English proficiency’’ to the
from suit in Federal court for a violation
(§§ 300.132 through 300.144). other five conditions that could account
of Part B of the Act.
(6) A new § 300.300(d)(5) has been for the child’s learning problems, and
Subpart D—Evaluations, Eligibility added to clarify that in order for a that the group considers in determining
Determinations, Individualized public agency to meet the reasonable whether the child has an SLD.
Education Programs, and Educational efforts requirement to obtain informed (2) Section 300.309(b) has been
Placements parental consent for an initial changed to clarify (A) that, in order to
evaluation, initial services, or a ensure that underachievement in a child
Parental Consent suspected of having an SLD is not due
reevaluation, a public agency must
• Section 300.300, regarding parental document its attempts to obtain parental to lack of appropriate instruction in
consent, has been revised, as follows: consent using the procedures in reading or math, the group must
(1) Paragraph (a) of § 300.300, § 300.322(d). consider, as part of the evaluation
regarding consent for initial evaluation, described in §§ 300.304 through
has been changed to provide that the Additional Procedures for Evaluating 300.306, data that demonstrate that
public agency proposing to conduct an Children With Specific Learning prior to, or as a part of, the referral
initial evaluation to determine if a child Disabilities (SLD) process, the child was provided
qualifies as a child with a disability • Section 300.307 (Specific learning appropriate instruction in regular
must, after providing notice consistent disabilities) has been revised, as education settings, delivered by
with §§ 300.503 and 300.504, obtain follows: qualified personnel, and (B) to replace
informed consent, consistent with (1) Proposed paragraph (a)(1) of (in paragraph (b)(1)) the term ‘‘high

§ 300.9, from the parent of the child § 300.307, which allowed a State to quality research-based instruction’’ with
before conducting the evaluation. A new prohibit the use of a severe discrepancy ‘‘appropriate instruction.’’
paragraph (a)(1)(iii) has been added to between intellectual ability and (3) Section 300.309(c) has been
require a public agency to make achievement for determining if a child changed to provide that the public
reasonable efforts to obtain the informed has an SLD, has been removed, and agency must promptly request parental



consent to evaluate a child suspected of disadvantage, or limited English the provision into three separate
having an SLD who has not made proficiency on the child’s achievement paragraphs (§ 300.323(e), (f), and (g)) for
adequate progress after an appropriate level. purposes of clarity and improved
period of time when provided (4) A new § 300.311(a)(7) has been readability (e.g., transfers within the
appropriate instruction, and whenever a added to provide that if the child has same State, transfers from another State,
child is referred for an evaluation. participated in a process that assesses and transmittal of records); (2) adopt
• Section 300.310, regarding the child’s response to scientific, ‘‘school year’’ in lieu of ‘‘academic
Observation, has been revised, as research-based intervention, the year’’ as the term commonly used by
follows: documentation must include the parents and public agencies; and (3)
(1) Paragraph (a) of proposed instructional strategies used and the adopt other modifiers (e.g., ‘‘new’’ and
§ 300.310 has been revised (A) to student-centered data collected, and ‘‘previous’’) to distinguish between
remove the phrase ‘‘trained in documentation that the child’s parents States and public agencies that are
observation, and (B) to specify that the were notified about (A) the State’s involved in transfers by children with
public agency must ensure that the policies regarding the amount and disabilities.
child is observed in the child’s learning nature of student performance data that • Section 300.324(a)(4), regarding
environment. would be collected and the general changes to an IEP after the annual IEP
(2) A new § 300.310(b) has been education services that would be meeting for a school year, has been
added to require the eligibility group to provided, (B) strategies for increasing restructured into two paragraphs, and a
decide to (A) use information obtained the child’s rate of learning, and (C) the new paragraph (a)(4)(ii) has been added
from an observation in routine parents’ right to request an evaluation. to require the public agency to ensure
classroom instruction and monitoring of that, if changes are made to a child’s IEP
the child’s performance that was done Individualized Education Programs
without an IEP meeting, that the child’s
before the child was referred for an • Section 300.320 (Definition of IEP) IEP Team is informed of the changes.
evaluation, or (B) have at least one has been revised in paragraph (a)(5) to • Section 300.324(b), regarding the
member of the group described in replace ‘‘regular education review and revision of IEPs, has been
§ 300.306(a)(1) conduct an observation environment’’ with ‘‘regular class,’’ in changed to include a new paragraph
of the child’s academic performance in order to be consistent with the language (b)(2), to clarify that, in conducting a
the regular classroom after the child has in the Act. review of a child’s IEP, the IEP Team
been referred for an evaluation and • Section 300.321(e), regarding must consider the same special factors
parental consent is obtained. attendance at IEP Team meetings, has it considered when developing the
Paragraph (b) of proposed § 300.310 been revised to clarify that the excusal child’s IEP.
has been redesignated as new of IEP Team members from attending an
§ 300.310(c). IEP Team meeting under certain Subpart E—Procedural Safeguards
• Section 300.311 (Written report) has circumstances, refers to the IEP Team • Section 300.502, regarding
been renamed ‘‘Specific documentation members in § 300.320(a)(2) through independent educational evaluations,
for the eligibility determination,’’ and (a)(5). has been revised, as follows:
has been revised, as follows: • Section 300.322, regarding parent (1) A new § 300.502(b)(5) has been
(1) Section 300.311(a)(5), regarding participation, has been revised to: (1) added to make clear that a parent is
whether the child does not achieve Include, in § 300.322(d), examples of the entitled to only one independent
commensurate with the child’s age, has records a public agency must keep of its educational evaluation at public
been modified and expanded to add attempts to involve the parents in IEP expense each time the public agency
whether the child does not achieve meetings; (2) add a new § 300.322(e), conducts an evaluation with which the
adequately for the child’s age or to meet which requires the public agency to take parent disagrees.
State-approved grade-level standards whatever action is necessary to ensure (2) Section 300.502(c) has been
consistent with § 300.309(a)(1), and (A) that the parent understands the changed to clarify that if a parent
the child does not make sufficient proceedings of the IEP meeting, obtains an independent evaluation at
progress to meet age or to meet State- including arranging for an interpreter public expense or shares with the public
approved grade-level standards for parents with deafness or whose agency an evaluation obtained at private
consistent with § 300.309(a)(2)(i), or (B) native language is other than English; expense, the public agency must
the child exhibits a pattern of strengths and (3) redesignate paragraph (e) as consider the evaluation, if it meets
and weaknesses in performance, paragraph (f) accordingly. agency criteria, in any decision made
achievement, or both, relative to age, • Section 300.323(d) has been revised with respect to the provision of FAPE to
State-approved grade level standards or to require public agencies to ensure that the child.
intellectual development consistent each regular teacher, special education • Section 300.504 (Procedural
with § 300.309(a)(2)(ii). teacher, related services provider, and safeguards notice) has been revised, as
(2) Proposed § 300.311(a)(6), regarding any other service provider who is follows:
whether there are strengths or responsible for the implementation of a (1) Paragraph (a)(2) of § 300.504 has
weaknesses or both in performance or child’s IEP, is informed of his or her been changed to add that a copy of the
achievement or both relative to specific responsibilities related to procedural safeguards notice must be
intellectual development, has been implementing the child’s IEP and the given upon receipt of the first due
removed. specific accommodations, process complaint under § 300.507 in a
(3) A new § 300.311(a)(6) has been modifications, and supports that must school year, as well as upon receipt of
added to clarify that the documentation be provided for the child in accordance the first State complaint under § 300.151
must include a statement of the with the child’s IEP. These are the same through 300.153.

determination of the group concerning requirements in current (2) A new § 300.504(a)(3) has been
the effects of visual, hearing, or motor § 300.342(b)(3)(i) and (b)(3)(ii). added to provide that the notice must be
disability, mental retardation, emotional • Section 300.323(e), regarding IEPs given to the parents of a child with a
disturbance, cultural factors, for children who transfer public disability in accordance with the
environmental or economic agencies, has been revised to: (1) Divide discipline procedures in § 300.530(h).



• Section 300.506(b), regarding the process complaint or fails to participate under § 300.300(b), then the public
requirements for mediation, has been in the resolution meeting, the parent agency must provide those special
revised by (1) removing the provision may seek the intervention of a hearing education and related services that are
about the ‘‘confidentiality pledge,’’ in officer to begin the due process hearing not in dispute between the parent and
proposed paragraph (b)(9), because it is timelines. the public agency.
no longer required under the Act, and (5) A new § 300.510(c) (Adjustments • Section 300.520(b), regarding a
(2) changing paragraph (b)(8), regarding to the 30-day resolution period) has special rule about the transfer of
the prohibition against using been added that specifies exceptions to parental rights at the age of majority, has
discussions that occur in the mediation the 30-day resolution period (e.g., (A) been revised to more clearly state that
process, to clarify that ‘‘civil both parties agree in writing to waive a State must establish procedures for
proceedings’’ includes any Federal court the resolution meeting; (B) after either appointing the parent of a child with a
or State court of a State receiving the mediation or resolution meeting disability, or if the parent is not
assistance under this part. starts but before the end of the 30-day available, another appropriate
• Section 300.509, regarding model period, the parties agree in writing that individual, to represent the educational
forms to assist parents and public no agreement is possible; or (C) if both interests of the child throughout the
agencies in filing due process parties agree in writing to continue the child’s eligibility under Part B of the Act
complaints and parents and other mediation at the end of the 30-day if, under State law, a child who has
parties in filing State complaints, has resolution period, but later, the parent reached the age of majority, but has not
been revised to add, with respect to due or public agency withdraws from the been determined to be incompetent, can
process complaints, ‘‘public agencies,’’ mediation process). Subsequent be determined not to have the ability to
and with respect to State complaints, paragraphs have been renumbered provide informed consent with respect
‘‘other parties,’’ as well as parents, and accordingly. to the child’s educational program.
to clarify that (1) while each SEA must (6) Paragraph (d)(2) of § 300.510
develop model forms, the SEA or LEA (proposed paragraph(c)(2)), regarding Discipline Procedures
may not require the use of the forms, the enforceability of a written settlement • Section 300.530(d)(1)(i), regarding
and (2) parents, public agencies, and agreement in any State court of services, has been revised to be
other parties may either use the competent jurisdiction or in a district consistent with section 615(k)(1)(D)(i) of
appropriate model form, or another form court of the United States, has been the Act, by adding a reference to the
or other document, so long as the form expanded to add the SEA, if the State FAPE requirements in § 300.101(a).
or document meets, as appropriate, the has other mechanisms or procedures • Section 300.530(d)(4), regarding the
requirements for filing a due process that permit parties to seek enforcement removal of a child with a disability from
complaint or a State complaint. of resolution agreements, pursuant to a the child’s current placement for 10
• Section 300.510 (Resolution new § 300.537. school days in the same school year, has
process) has been revised, as follows: • Section 300.513(a) (Decision of been revised to remove the reference to
(1) Section 300.510(b)(1), regarding hearing officer) has been revised by (1) school personnel, in consultation with
the resolution period, has been changed changing the paragraph title to read at least one of the child’s teachers,
to state that a due process hearing ‘‘may ‘‘Decision of hearing officer on the determining the location in which
occur’’ (in lieu of ‘‘must occur’’) by the provision of FAPE,’’ and (2) clarifying services will be provided.
end of the resolution period, if the that a hearing officer’s determination of • Section 300.530(d)(5), regarding
parties have not resolved the dispute whether a child received FAPE must be removals that constitute a change of
that formed the basis for the due process based on substantive grounds. placement under § 300.536, has been
complaint. • Section 300.515(a), regarding revised to remove the reference to the
(2) A new § 300.510(b)(3) has been timelines and convenience of hearings IEP Team determining the location in
added to provide that, except where the and reviews, has been revised to include which services will be provided.
parties have jointly agreed to waive the a specific reference to the adjusted time • A new § 300.530(e)(3), has been
resolution process or to use mediation periods described in § 300.510(c). added to provide that, if the LEA, the
(notwithstanding § 300.510(b)(1) and • Section 300.516(b), regarding the parent, and members of the child’s IEP
(2)), the failure of a parent filing a due 90-day time limitation from the date of Team determine that the child’s
process complaint to participate in the the decision of the hearing to file a civil behavior was the direct result of the
resolution meeting will delay the action, has been revised to provide that LEA’s failure to implement the child’s
timelines for the resolution process and the 90-day period begins from the date IEP, the LEA must take immediate steps
due process hearing until the meeting is of the decision of the hearing officer or to remedy those deficiencies.
held. the decision of the State review official. • Section 300.530(h), regarding
(3) A new § 300.510(b)(4) has been • Section 300.518 (Child’s status notification, has been changed to
added to provide that if an LEA is during proceedings) has been revised by specify that, on the date on which a
unable to obtain the participation of the adding a new paragraph (c), which decision is made to make a removal that
parent in the resolution meeting after provides that if a complaint involves an constitutes a change in the placement of
reasonable efforts have been made, and application for initial services under a child with a disability because of a
documented using the procedures in this part from a child who is violation of a code of student conduct,
§ 300.322(d), the LEA may, at the transitioning from Part C of the Act to the LEA must notify the parents of that
conclusion of the 30-day resolution Part B and is no longer eligible for Part decision, and provide the parents the
period, request that a hearing officer C services because the child has turned procedural safeguards notice described
dismiss the parent’s due process 3, the public agency is not required to in § 300.504.
complaint. provide the Part C services that the • Section 300.532 (Appeal) has been

(4) A new paragraph (b)(5) of child had been receiving. If the child is revised, as follows:
§ 300.510 has been added to provide found eligible for special education and (1) Paragraph (a) of § 300.532,
that, if the LEA fails to hold the related services under Part B and the regarding the conditions in which the
resolution meeting within 15 days of parent consents to the initial provision parent of a child with a disability or an
receiving notice of a parent’s due of special education and related services LEA may request a hearing, has been


Federal register 2006

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Federal register 2006