DEPARTMENT OF EDUCATION34 CFR Parts 300 and 301 ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES PROGRAM AND PRESCHOOL GRANTS FOR CHILDREN WITHDISABILITIES RIN 1820-AA89 AGENCY: Department of Education ACTION: Final regulations with comments invited SUMMARY: The Secretary issues final regulations for the Assistance to States for the Education of Children withDisabilities Program under Part B of the Individuals with Disabilities Education Act (Part B). The regulations are needed (1) to implement the amendments to Part B that were made by the Handicapped Programs Technical Amendments Act of 1988, the Education of the Handicapped Act Amendments of 1990 (1990 Amendments), the National Literacy Act of 1991, and the Individuals with Disabilities Education Act Amendments of 1991 (1991 Amendments), and (2) to make changes based on the Department’s experience in administering Part B. The Secretary also amends existing regulations to implement the amendments to the Preschool Grants Program under section 619 of the Individuals with Disabilities Education Act that were made by the 1991 Amendments. EFFECTIVE DATE: These regulations take effect either
45 days after publication in the FEDERAL REGISTER or later if the Congress takes certain
adjournments, with the exception of the following sections: Sec. 300.110; Sec.
300.121-300.123; Sec.300.125-300.134; These sections will become effective after the information collection requirements contained in those sections have been submitted by the Department of Education and approved by the Office of Management and Budget under the Paperwork Reduction Act of 1980. If you want to know the effective date of these regulations, call or write the Department of Education contact person. A document announcing the effective date will be published in the FEDERAL REGISTER. FOR FURTHER INFORMATION CONTACT: Thomas B. Irvin, ADDRESSES: All comments should be addressed to: Lucille Sledger, Department of Education, 400 Maryland Avenue, S.W. (Switzer Building, Room 3615), Washington, D.C. 20202-2720. SUPPLEMENTARY INFORMATION: I. Part B Program Part B authorizes formula grants to States and, through the State educational agencies (SEAs), to local educational agencies (LEAs) and intermediate educational units (IEUs) to assist them in meeting the special educational needs of children with disabilities. In order to be eligible for funding under this program, SEAs, LEAs, and IEUs are responsible for ensuring that all children with disabilities have available to them a free appropriate public education (FAPE), and that the procedural protections in Part B and the implementing regulations are extended to these children and their parents. These final regulations implement the changes made to Part B by the Handicapped Programs Technical Amendments Act of 1988, the 1990 Amendments (Pub. L. 101-476, enacted October 30, 1990), the National Literacy Act of 1991 (Pub. L. 102-73, enacted July 25, 1991), and the 1991 Amendments (Pub. L. 102-119, enacted October 7, 1991). In addition, these regulations make changes based on the Department’s experience in administering Part B. On August 19, 1991, the Secretary published a notice of proposed rulemaking (NPRM) for this part in the FEDERAL REGISTER (56 FR 41266). The NPRM proposed to make the following changes to implement the 1990 Amendments: (1) Add "autism" and "traumatic brain injury" as separate disability categories in the definition of children with disabilities, and include definitions of those terms. (2) Delete "in schools" from "social work services in schools" in the list of eligible related services in Sec. 300.13(a) of the current regulations for this part and delete "in schools" from the definition of "social work services in schools" included at Sec. 300.13(b)(11) of the current regulations for this part. (3) Add a definition of "rehabilitation counseling services" to implement the statutory amendment to the definition of "related services" in section 602(a)(17) of the Act. (4) Add the statutory definitions of "assistive technology device" and "assistive technology service" and include a requirement that if a child with a disability requires these devices and services in order to receive FAPE, the public agency must ensure that they are made available. (5) Add provisions on transition services, including (a)a definition of "transition services" in Sec. 300.18; (b) a provision specifying that the public agency must ensure that certain transition services personnel participate in meetings to develop, review, or revise a student’s individualized education program (IEP) if transition services are being considered; © a Note, based on Sec. 300.344(a)(4) of the current regulations, stating that, if appropriate, the public agency must include the student in IEP meetings concerning transition services; (d) a requirement that the content of the IEP must include a statement of needed transition services and of interagency responsibilities or linkages if other State agencies have responsibility for providing or paying for those services; and (e) a provision specifying that if a participating agency fails to provide agreed upon transition services, the public agency must reconvene the IEP team to identify alternative strategies to be implemented to meet the transition objectives in the student’s IEP. (6) Replace the current regulations on the comprehensive system of personnel development (CSPD) in Sec. 300.380-300.387 with new provisions reflecting changes made by the 1990 Amendments, and make other changes to simplify and update the CSPD provisions of the regulations. The NPRM also proposed to make other changes in the current regulations for this part, including (1) deleting the data collection reporting provisions in Sec. 300.124 and portions of Sec. 300.125-300.127 of the current regulations; (2) deleting the current regulation in Sec. 300.382 regarding inservice training, and at Sec. 300.321© prohibiting the use of Part B funds for preservice training; (3) adding a Note following Sec. 300.128 to clarify the responsibility of the SEA and the State’s Part H lead agency for child find activities for infants and toddlers with disabilities if those agencies are different; (4) adding a provision to Sec. 300.504 to clarify the conditions that must be met if a State adds consent requirements beyond those in the Federal regulations; (5) specifying that findings of fact and decisions in due process hearings must be made available to the public, after deleting personally identifiable information; (6) adding aprovision to Sec. 300.510 regarding which officials may not conduct State-level reviews; and (7) transferring requirements on State complaint procedures from the Education Department General Administrative Regulations (EDGAR) (34 CFR Sec. 76.780-76.782) to this part in Sec. 300.660-300.662, and making some modifications to those requirements. These final regulations incorporate technical changes made to Part B, including changes made by the 1990 Amendments, to update the terminology and references used in the current regulations. Examples of these technical changes include: (1) deleting all references to "handicapped children" in the regulations and substituting "children with disabilities;" (2) deleting all references to "annual program plan" and substituting "State plan;" (3) revising the list of other regulations that apply to this program in Sec. 300.3 to include all currently applicable provisions of EDGAR; and (4) abbreviating certain frequently used terms and adding a new note following the heading in Subpart A, "Definitions," to specify that abbreviations will be used in place of certain terms in the regulations (e.g., "IEP" for "individualized education program" and "SEA" for "State educational agency"). These final regulations also implement changes to Part B made by the National Literacy Act, by amending the list of jurisdictions eligible to participate in the Part B program (i.e., by deleting the Trust Territory of the Pacific Islands and adding the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau). In addition, these final regulations incorporate certain technical changes to Part B made by the 1991 Amendments. These changes conform the regulations to the statutory changes and are implemented as final regulations. The Secretary, however, invites comment on these changes and on whether additional regulatory changes are needed with respect to the statutory changes made by the 1991 Amendments. Analysis of Comments and Changes In response to the Secretary’s invitation in the NPRM, 280 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes that have been made in the regulations since publication of the NPRM is published as an appendix to these final regulations. Major Changes in the Regulations The following discussion in section A, Technical Changes, identifies the changes made to reflect statutory amendments to Part B made by the National Literacy Act. Section B, Substantive Changes, identifies all major changes made in the regulations based on the NPRM published on August 19, 1991. Additional changes made in the regulations in this document as a result of the 1991 Amendments are identified separately in section C. A.Technical Changes In accordance with changes made by the National Literacy Act, Sec. 300.700 has been revised to reflect the current names of the successor entities to the Trust Territories of the Pacific Islands. Similarly, Sec. 300.711 (previously numbered Sec. 300.710) now lists the current names of these entities, consistent with a statutory change made by the National Literacy Act as amended by the 1991 Amendments. B.Substantive Changes Below is a summary of the major substantive changes in these final regulations based on the August 19, 1991 NPRM. References to section numbers are to the final regulations. 1.Changes in Subpart A—General The proposed definition of "autism" (Sec. 300.7(b)(1)) has been revised to clarify that the characteristics listed as generally associated with autism are not an exhaustive list of characteristics necessary for a child to be considered as having autism. The proposed definition of "traumatic brain injury" (Sec. 300.7(b)(12)) has been revised to describe this disability category more appropriately, and to clarify that the term "traumatic brain injury" refers to injuries acquired after birth. The proposed definition of "rehabilitation counseling services" (Sec. 300.16(b)(10)) has been revised to change the term "qualified counseling professional" to "qualified personnel." The phrase "in schools" has been retained in the definition of "social work services in schools" (Sec. 300.16(b)(12)), and the phrase "to receive maximum benefit" in the statement concerning mobilizing school and community resources has been changed. The last sentence of the proposed Note following the definition of "transition services" at Sec. 300.18 has been revised to delete the statement that the listed activities are only examples. 2. Changes in Subpart B—State Plans and Local Applications o Proposed Note 2 following Sec. 300.128 ("Identification, location, and evaluation of children with disabilities") has been revised to clarify that where the Part H lead agency is different from the SEA, actual implementation of the child find activities for infants and toddlers with disabilities by the Part H lead agency does not alter or diminish the SEA’s responsibility for ensuring compliance with child find and evaluation requirements. 3. 3. Changes in Subpart C—Services Proposed Sec. 300.308 ("Assistive technology") has been revised to specify that assistive technology devices and services must be provided if required as part of special education under Sec. 300.17, related services under Sec. 300.16, or supplementary aids and services under Sec. 300.550(b)(2). Section 300.344 ("Participants in meetings") has been revised (1) to specify that if a purpose of a student’s IEP meeting is the consideration of transition services to the student, the public agency must invite the student and a representative of any other agency that is likely to be responsible for providing or paying for transition services, and (2) to clarify what the public agency must do if either the student or the agency representative does not attend. Section 300.345 ("Parent participation") has been revised to provide that if a purpose of the IEP meeting is the consideration of transition services, the notice to the parents about the meeting must indicate this purpose and indicate that the student will be invited. Section 300.346 ("Content of IEP") has been revised to specify that the statement of needed transition services in a student’s IEP must include the three areas listed in the definition of "transition services" in Sec. 300.18(b), unless the IEP team determines that services are not needed in one or more of those areas and includes in the IEP a statement to that effect and the basis for making the determination. Proposed Sec. 300.347 ("Agency responsibility for transition services") has been revised (1) to clarify that, if a participating agency does not provide agreed-upon services, the public agency must initiate another IEP meeting "as soon as possible"; (2) to delete the phrase "to be implemented," following "alternative strategies"; and (3) to add "and if necessary, revising the student’s IEP." The proposed provision requiring States to describe procedures for enabling teacher aides to acquire the necessary credentials for teaching special education has been deleted from Sec. 300.381 ("Adequate supply of qualified personnel"). The proposed definition of "regular education personnel," which would have limited the regular education personnel that a State’s continuing education system would need to address, has been deleted from Sec. 300.382 ("Personnel preparation and continuing education"). 4. Changes in Subpart E—Procedural Safeguards Section 300.504 ("Prior notice; parent consent") has been revised (1) to delete the proposed provision requiring States to establish and use informal and formal procedures to deal with parental withholding of consent for services and activities beyond those required in Sec. 300.504(b); and (2) to clarify that if a State has additional parental consent requirements, the State must determine the procedures it will use to ensure that a parent’s failure to consent does not result in a failure to provide FAPE to the child. Proposed Note 3 has been revised to reflect these changes. The preexisting provision concerning the circumstances under which a public agency can condition a benefit on parent consent has been moved and modified to accommodate additional State parent consent provisions. Section 300.510 ("Administrative appeal; impartial review") has been revised to add a new provision requiring the SEA to transmit review findings and decisions to the State advisory panel and to make those findings and decisions available to the public. The proposed provisions regarding the impartiality of State-level review officials have been deleted. 5. Changes in Subpart F- State Administration On July 8, 1992, the Department published final regulations making certain amendments to EDGAR and conforming changes in program regulations (57 FR 30328). That regulatory action removed the State complaint procedures (Sec. 76.780-76.782) from EDGAR and amended Part 300 by adding identical requirements in Sec. 300.670-300.672. These final regulations make changes, as described below, to those regulations based on the comments received on the August 19, 1991 NPRM. The State complaint procedures also are renumbered as Sec. 300.660-300.662. Proposed Sec. 300.660 (Adoption of State complaint procedures) has been revised to clarify that, while the State complaint procedures must provide for filing complaints with the SEA, the SEA may expand its procedures to provide for (1) the filing of a complaint directly with a public agency in lieu of the SEA; and (2) the right to have the SEA review the public agency’s decision on the complaint. Proposed Sec. 300.661 ("Minimum State complaint procedures") has been revised to clarify that a public agency also has the right to request Secretarial review. C. Changes made to Part B by the 1991 Amendments The primary purpose of the 1991 Amendments was to amend and reauthorize Part H of the Act (the Infants and Toddlers with Disabilities program). However, the 1991 Amendments also included revisions to other parts of the Act, including Part B. The following discussion includes descriptions of the revisions to Part B made by the 1991 Amendments that have been incorporated into these final regulations: 1.Permitting children, aged 3-5, with developmental delays to be included by States in the definition of "children with disabilities." The 1991 Amendments revised the definition of "children with disabilities" in section 602(a)(1) of the IDEA. In accordance with that change, Sec. 300.7(b)(2) provides that the term "children with disabilities" may, at a State’s discretion,include children, aged 3-5, (i) who are experiencing developmental delays...and (ii) who, for that reason, need special education and related services." (Throughout this document, age ranges referred to in the text are inclusive.) The legislative history of the 1991 Amendments makes clear that the purpose of permitting a State to include these children in its definition of children with disabilities, "is not to expand or diminish the population of children eligible under Part B, but rather to provide a State with the discretion to ensure that all eligible preschoolers are served and that children are not inappropriately labeled." (House Report No. 102-198, 4 (1991); Senate Report No. 102-84, 15 (1991).) The legislative history further clarifies that, although the 1991 revision to the definition of "children with disabilities" in section 602(a)(1) of the IDEA is comparable to a component of the Part H definition of "infants and toddlers with disabilities," the amendment should not be construed as requiring a State to use the same criteria for children aged 3-5 as it uses for infants and toddlers. A State may develop different or more stringent criteria for children aged 3-5, inclusive, than it uses for infants and toddlers so long as the criteria do not deny eligibility to a child who would otherwise be eligible under other categories included in section 602(a)(1) of the Act. (House Report No. 102-198, 4 (1991); Senate Report No. 102-84, 15 (1991).) 2. Transition of individuals from Part H to Part B. The 1991 Amendments added a new provision at section 613(a)(15) that requires that each State plan set forth policies and procedures relating to the smooth transition for those individuals participating in the early intervention program under Part H who will participate in preschool programs under Part B. This would include a method of ensuring that when a child turns age three an IEP or, if consistent with sections 614(a)(5) and 677(d) of the Act, an individualized family service plan (IFSP) has been developed and is being implemented by the child’s third birthday. This change is reflected in a new Sec. 300.154. 3. Permitting LEAs to use IFSPs for children aged 3-5. To assist in the transition of children from the Part H program to the Part B program, the 1991 Amendments added a provision to section 614(a)(5) to permit LEAs to use IFSPs, in lieu of IEPs, for children with disabilities aged 3-5 if consistent with State policy and with the concurrence of the parents. This change is reflected in revised Sec. 300.343 of the regulations. The Secretary notes that the "content of IFSP" provision in the Part H regulations (34 CFR 303.344) is more detailed than section 677(d) of the Act. States are encouraged to implement the requirements in 34 CFR 303.344 for the IFSPs that they develop and implement for children aged 3-5. 4. Comprehensive system of personnel development (CSPD). Consistent with a revision of section 613(a)(3) made by the 1991 Amendments, Sec. 300.380 of the regulations has been amended to require that a State’s CSPD under Part B be consistent with the CSPD for the Part H program described in Sec. 303.360. (The 1991 Amendments also add a companion provision to the Part H CSPD provision in section 676(b)(8) of the Act.) 5. State administrative set-aside for small States. The 1991 Amendments revised section 611©(2) of the IDEA to increase from $350,000 to $450,000 the minimum amount that each State may reserve from its Part B allocation for administrative expenses. This change is reflected in Sec. 300.620. 6. Part B services for Indian children with disabilities. The 1991 Amendments significantly revised section 611(f), which authorizes payments to the Secretary of the Interior under Part B for the education of certain Indian children with disabilities. Section 300.709 has been revised in its entirety, consistent with the new section 611(f)(1) of the IDEA. Section 300.709 now provides that, subject to meeting the requirements in Sec. 300.260, the Secretary makes payments to the Secretary of the Interior to meet the need for assistance for the education of children with disabilities on reservations, aged 5-21, who are enrolled in elementary and secondary schools for Indian children operated by the Secretary of the Interior, and for Indian students aged 3-5 who are enrolled in programs affiliated with Bureau of Indian Affairs (BIA) schools that are required by the States in which the schools are located to attain or maintain State accreditation and which schools had such accreditation before the enactment of the 1991 Amendments. Previously, the Secretary of the Interior had been responsible for the education of all Indian children with disabilities, aged 3-21, on reservations (1)served by elementary and secondary schools operated by the Department of the Interior, and (2) for whom services were provided through contract with an Indian tribe or organization prior to FY 1989. The amount of payment is one percent of the aggregate amount of funds available to all States for that fiscal year. In accordance with the new section 611(f)(3) of the IDEA, and in light of the revised responsibilities of the Secretary of the Interior for the education of Indian children with disabilities aged 3-21 as specified in section 611(f)(1) of the IDEA, Sec. 300.260 also has been revised. That section identifies the specific provisions of sections 612, 613, and 614 of the IDEA that the Secretary has determined continue to be appropriate to applications from the Secretary of the Interior. Similarly, Sec. 300.263 has been revised to reflect the regulatory requirements that continue to apply to the Secretary of the Interior in the implementation of the program supported by Part B. While the 1991 Amendments limited the responsibilities of the Secretary of the Interior for the education of Indian children with disabilities, it expanded the responsibilities of SEAs for Indian children with disabilities on reservations. Consistent with the requirements of the new section 611(f)(2) of the IDEA, Sec. 300.300 (Timelines for FAPE) has been revised by adding a new paragraph © to specify that, with the exception of children identified in Sec. 300.709(a)(1) and (2), the SEA shall be responsible for ensuring that all of the requirements of Part B are implemented for all children aged 3-21 on reservations. In addition, in accordance with the new section 611(f)(4) of the IDEA, a new Sec. 300.710 has been added to provide that the Secretary make payments to the Secretary of the Interior to be distributed to tribes or tribal organizations to provide for the coordination of assistance for special education and related services for children with disabilities, aged 3-5, on reservations served by elementary and secondary schools for Indian children operated or funded by the Department of the Interior. The amount of the payment is .25 percent of the aggregate amount of funds available to all States under this part for that fiscal year. These funds are to be used for child find, screening, and other procedures for the early identification of children, aged 3-5, parent training, and for direct services. The Secretary believes that those statutory changes resulting from the 1991 Amendments can be effectively implemented by incorporation into existing regulations without additional regulatory guidance. However, if experience in the implementation of these provisions indicates that additional regulatory guidance is needed, the Secretary will undertake additional rulemaking at a future date. II. Preschool Grants Program The Preschool Grants program under section 619 of Part B of the Act provides additional Federal financial assistance to States for providing special education and related services to children with disabilities aged 3-5 and, at a State’s discretion, for providing FAPE to two-year-old children with disabilities who will reach age three during the school year. The Preschool Grants regulations in 34 CFR Part 301 establish the administrative procedures for applying for and distributing Preschool Grants funds. The substantive rights and protections established under Part B of the Act and its implementing regulations at 34 CFR Part 300 apply to 3-5 year old children with disabilities. Therefore, these rights and protections, which include the right to FAPE, placement in the least restrictive environment, and the availability of due process procedures, are not repeated in the Part 301 regulations. The 1991 Amendments included several revisions to section 619. The following is a summary of those revisions: o The 1991 Amendments expanded the age range for which SEAs and LEAs may use Preschool Grants funds to include two-year-old children with disabilities who will reach age three during the school year, whether or not those children are receiving, or have received, services under Part H of the Act. These children are entitled to receive FAPE. The use of Preschool Grants funds to provide FAPE to two-year-old children with disabilities is at a State’s discretion and must be consistent with State policy. This is not a requirement to provide FAPE to all two-year-old children with disabilities who will reach age three during the school year. Rather, this provision increases States’ options for use of Preschool Grants funds to meet the needs of children with disabilities and their families during the transition from early intervention services under Part H of the Act to preschool special education under Part B of the Act. Although children below age 3 cannot be included in the annual Part B child count, States are permitted to use their Part B funds to serve these children. o Part H of the Act does not apply to any two-year-old child with disabilities receiving FAPE, in accordance with Part B of the Act, with Preschool Grants funds. However, Part H of the Act continues to apply to all other two-year-old children with disabilities, including those receiving FAPE with other sources of funds, such as Part B funds under section 611 of the Act. These statutory amendments are incorporated into these final regulations in Sec. 301.1, 301.3, 301.6, 301.10, and 301.30. Waiver of Rulemaking In accordance with section 431(b)(2)(A) of the General Education Provisions Act (20 U.S.C. 1232(b)(2)(A)) and the Administrative Procedure Act (5 U.S.C. 553), it is the practice of the Secretary to offer interested parties the opportunity to comment on all changes proposed to be made in the Department’s regulations. However, since the additional changes made in these final regulations that were not included in the NPRM published for public comment merely incorporate statutory amendments and do not establish new substantive policy, further public comment could have no effect on the content of the final regulations. Therefore, the Secretary has determined under 5 U.S.C. 553(b)(B) that proposed rulemaking on these changes is unnecessary and contrary to public interest. Invitation to comment on provisions added to Part B by the 1991 Amendments Although the Secretary publishes these regulations as final, the Secretary invites comments on whether additional guidance is required with respect to the regulatory changes made to Part 300 and described above that reflect statutory changes made by the 1991 Amendments. In addition, the Secretary invites comments on whether other regulatory changes are desirable to implement the provisions of the 1991 Amendments relating to the transition of children from the Part H program to the Part B program. Interested parties may send comments to Ms. Lucille Sleger at the address given at the beginning of this document until November 30, 1992. All comments submitted in response to this document will be available for public inspection, during and after the comment period, in Room 3615, 300 C Street, S.W., Washington, D.C., between the hours of 8:30 a.m and 4:00 p.m., Monday through Friday of each week, except Federal holidays. Executive Order 12291 These regulations have been reviewed in accordance with Executive Order 12291. They are not classified as major because they do not meet the criteria for major regulations established in the order. Paperwork Reduction Act of 1980 The following sections contain information collection requirements: Sec. 300.110; Sec. 300.121-300.123; Sec. 300.125-300.134; Sec. 300.136; Sec. 300.138-300.141; Sec. 300.144; Sec. 300.146; Sec. 300.148; Sec. 300.149; Sec. 300.152; Sec. 300.153; Sec. 300.180; Sec. 300.192; Sec. 300.220; Sec. 300.222-300.227; Sec. 300.231; Sec. 300.235; Sec. 300.238; Sec. 300.240; Sec. 300.280; Sec. 300.281; Sec. 300.284; Sec. 300.341; Sec. 300.343; Sec. 300.345; Sec. 300.346: Sec. 300.349; Sec. 300.380-300.383; Sec. 300.402; Sec. 300.482; Sec. 300.483; Sec. 300.505; Sec. 300.510; Sec. 300.512; Sec. 300.532; Sec. 300.533; Sec. 300.543; Sec. 300.561-300.563; Sec. 300.565; Sec. 300.569; Sec. 300.571; Sec. 300.572; Sec. 300.574; Sec. 300.575; Sec. 300.589; Sec. 300.600; Sec. 300.653; Sec. 300.660-300.662; Sec. 300.750; Sec. 300.751; and Sec. 300.754. As required by the Paperwork Reduction Act of 1980, the Department of Education will submit a copy of these sections to the Office of Management and Budget (OMB) for its review. (44 U.S.C. 3504(h)) The 50 States, the District of Columbia, Puerto Rico, 7 territories, and the Department of the Interior are eligible to apply for grants under this part. The Department needs and uses information submitted by these entities to determine whether they meet the regulatory requirements listed above. The 60 eligible entities under this program submit triennial State plans in order to receive Part B grant awards. The annual public reporting burden for this information collection for the year of an entity’s submission is estimated at 29 hours, including the time for gathering the data needed, and completing and reviewing the collection of information. Organizations and individuals desiring to submit
comments on the information collection requirements should direct them to the This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR Part 79. The objective of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on the processes developed by State and local governments for coordination and review of proposed Federal financial assistance. In accordance with the order, this document is intended to provide early notification of the Department’s specific plans and actions for this program. List of Subjects in 34 CFR Part 300 Administrative practice and procedures, Education, Education of individuals with disabilities, Grant programs—education, Privacy, Private schools, Reporting and record keeping requirements. List of Subjects in 34 CFR Part 301 Education, Education of children with disabilities, Grant programs—education, Reporting and record keeping requirements. Dated: Lamar Alexander, (Catalog of Federal Domestic Assistance number 84.027, Assistance to States for Education of Children with Disabilities; 84. , Preschool Grants Program) The Secretary amends Title 34 of the Code of Federal Regulations by revising Parts 300 and amending 301 as follows: 1. Part 300 is revised to read as follows: PART 300 -- ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES Subpart A—General PURPOSE, APPLICABILITY, AND REGULATIONS THAT APPLY TO THIS PROGRAM Sec. 300.1 Purpose. The purpose of this part is— (a) To ensure that all children with disabilities have available to them a free appropriate public education that includes special education and related services to meet their unique needs; (b) To ensure that the rights of children with disabilities and their parents are protected; (c) To assist States and localities to provide for the education of all children with disabilities; and (d) To assess and ensure the effectiveness of efforts to educate those children. (Authority: 20 U.S.C. 1401 Note) Sec. 300.2 Applicability to State, local, and private agencies. (a) States. This part applies to each State that receives payments under Part B of the Act. (b) Public agencies within the State. The State plan is submitted by the State educational agency on behalf of the State as a whole. Therefore, the provisions of this part apply to all political subdivisions of the State that are involved in the education of children with disabilities. These would include: (1) The State educational agency; (2 )Local educational agencies and intermediate educational units; (3) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for students with deafness or students with blindness); and (4) State correctional facilities. (c) Private schools and facilities. Each public agency in the State is responsible for ensuring that the rights and protections under this part are given to children referred to or placed in private schools and facilities by that public agency. (See Sec. 300.400-300.402) (Authority: 20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B)) Note: The requirements of this part are binding on each public agency that has direct or delegated authority to provide special education and related services in a State that receives funds under Part B of the Act, regardless of whether that agency is receiving funds under Part B. Sec. 300.3 Regulations that apply. The following regulations apply to this program: (a) 34 CFR Part 76 (State-Administered Programs) except for Sec. 76.780-76.782. (b) 34 CFR Part 77 (Definitions). (c) 34 CFR Part 79 (Intergovernmental Review of Department of Education Programs and Activities). (d) 34 CFR Part 80 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments). (e) 34 CFR Part 81 (General Education Provisions Act - Enforcement). (f) 34 CFR Part 82 (New Restrictions on Lobbying). (g) 34 CFR Part 85 (Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)). (h) 34 CFR Part 86 (Drug-Free Schools and Campuses). (i) The regulations in this part -- 34 CFR Part 300 (Assistance to States for Education of Children with Disabilities). (Authority: 20 U.S.C. 1221e-3(a)(1)) DEFINITIONS Note 1: Definitions of terms that are used throughout these regulations are included in this subpart. Other terms are defined in the specific subparts in which they are used. Below is a list of those terms and the specific sections in which they are defined: Appropriate professional requirements in the State (Sec. 300.153(a)(1)) Average per pupil expenditure in public elementary and secondary schools in the United States (Sec. 300.701©) Consent (Sec. 300.500) Destruction (Sec. 300.560) Direct services (Sec. 300.370(b)(1)) Education records (Sec. 300.560) Evaluation (Sec. 300.500) First priority children (Sec. 300.320(a)) Highest requirements in the State applicable to a specific profession or discipline (Sec. 300.153(a)(2)) Independent educational evaluation (Sec. 300.503(a)(3)(i)) Individualized education program (Sec. 300.340) Participating agency, as used in the IEP requirements in Sec. 300.346 and 300.347 (Sec. 300.340(b)) Participating agency, as used in the confidentiality requirements in Sec. 300.560-300.576 (Sec. 300.560) Party or parties (Sec. 300.584(a)) Personally identifiable (Sec. 300.500) Private school children with disabilities (Sec. 300.450) Profession or discipline (Sec. 300.153(a)(3)) Public expense (Sec. 300.503(a)(3)(ii)) Second priority children (Sec. 300.320(b)) Special definition of "State" (Sec. 300.700) State-approved or recognized certification, licensing, registration, or other comparable requirements (Sec. 300.153(a)(4)) Support services (Sec. 300.370(b)(2)) Note 2: Below are abbreviations for selected terms that are used throughout these regulations: "FAPE" means "free appropriate public education." "IEP" means "individualized education program." "IEU" means "intermediate educational unit." "LEA" means "local educational agency." "LRE" means "least restrictive environment." "SEA" means "State educational agency." As appropriate, each abbreviation is used interchangeably with its nonabbreviated term. Sec. 300.4 Act. As used in this part, "Act" means the Individuals with Disabilities Education Act, formerly the Education of the Handicapped Act. (Authority: 20 U.S.C. 1400) Sec. 300.5 Assistive technology device. As used in this part, "assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of children with disabilities. (Authority: 20 U.S.C. 1401(a)(25)) Sec. 300.6 Assistive technology service. As used in this part, "assistive technology service" means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes— (a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment; (b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities; (c) Selecting, designing, fitting, customizing, adapting, applying, retaining, repairing, or replacing assistive technology devices; (d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (e) Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and (f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of children with disabilities. (Authority: 20 U.S.C. 1401(a)(26)) Note: The definitions of "assistive technology device" and "assistive technology service" used in this part are taken directly from section 602(a)(25)-(26) of the Act, but in accordance with Part B, the statutory reference to "individual with a disability" has been replaced with "child with a disability." The Act’s definitions of "assistive technology device" and "assistive technology service" incorporate verbatim the definitions of these terms used in the Technology-Related Assistance for Individuals with Disabilities Act of 1988. Sec. 300.7 Children with disabilities. (a)(1) As used in this part, the term "children with disabilities" means those children evaluated in accordance with Sec. 300.530-300.534 as having mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, deaf-blindness, or multiple disabilities, and who because of those impairments need special education and related services. (2) The term "children with disabilities" for children aged 3 through 5 may, at a State’s discretion, include children— (i) Who are experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) Who, for that reason, need special education and related services. (b) The terms used in this definition are defined as follows: (1) "Autism" means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has a serious emotional disturbance, as defined in paragraph (b)(9) of this section. (2) "Deaf-blindness" means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. (3) "Deafness" means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance. (4) "Hearing impairment" means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section. (5) "Mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period that adversely affects a child’s educational performance. (6) "Multiple disabilities" means concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which causes such severe educational problems that they cannot be accommodated in special education programs solely for one of the impairments. The term does not include deaf-blindness. (7) "Orthopedic impairment" means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by congenital anomaly (e.g., clubfoot, absence of some member, etc.), impairments caused by disease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures). (8) "Other health impairment" means having limited strength, vitality or alertness, due to chronic or acute health problems such as a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes that adversely affects a child’s educational performance. (9) "Serious emotional disturbance" is defined as follows: (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance— (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors; (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (C) Inappropriate types of behavior or feelings under normal circumstances; (D) A general pervasive mood of unhappiness or depression; or (E) A tendency to develop physical symptoms or fears associated with personal or school problems. (ii) The term includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have a serious emotional disturbance. (10 "Specific learning disability" means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not apply to children who have learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. (11) "Speech or language impairment" means a communication disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a child’s educational performance. (12) "Traumatic brain injury" means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. (13) "Visual impairment including blindness" means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness. (Authority: 20 U.S.C. 1401(a)(1)) Note: If a child manifests characteristics of the disability category "autism" after age 3, that child still could be diagnosed as having "autism" if the criteria in paragraph (b)(1) of this section are satisfied. Sec. 300.8 Free appropriate public education. As used in this part, the term "free appropriate public education" means special education and related services that— (a) Are provided at public expense, under public supervision and direction, and without charge; (b) Meet the standards of the SEA, including the requirements of this part; (c) Include preschool, elementary school, or secondary school education in the State involved; and (d) Are provided in conformity with an IEP that meets the requirements of Sec. 300.340-300.350. (Authority: 20 U.S.C. 1401(a)(18)) Sec. 300.9 Include. As used in this part, the term "include" means that the items named are not all of the possible items that are covered, whether like or unlike the ones named. (Authority: 20 U.S.C. 1417(b)) Sec. 300.10 Intermediate educational unit. As used in this part, the term "intermediate educational unit" means any public authority, other than an LEA, that— (a) Is under the general supervision of an SEA; (b) Is established by State law for the purpose of providing free public education on a regional basis; and (c) Provides special education and related services to children with disabilities within that State. (Authority: 20 U.S.C. 1401(a)(23)) Sec. 300.11 Local educational agency. (a) [Reserved] (b) For the purposes of this part, the term "local educational agency" also includes intermediate educational units. (Authority: 20 U.S.C. 1401(a)(8)) Sec. 300.12 Native language. As used in this part, the term "native language" has the meaning given that term by section 703(a)(2) of the Bilingual Education Act, which provides as follows: The term "native language," when used with reference to an individual of limited English proficiency, means the language normally used by that individual, or in the case of a child, the language normally used by the parents of the child. (Authority: 20 U.S.C. 3283(a)(2); 1401(a)(22)) Note: Section 602(a)(22) of the Act states that the term "native language" has the same meaning as the definition from section 703(a)(2) of the Bilingual Education Act. (The term is used in the prior notice and evaluation sections under Sec. 300.505(b)(2) and Sec. 300.532(a)(1).) In using the term, the Act does not prevent the following means of communication: (1) In all direct contact with a child (including evaluation of the child), communication would be in the language normally used by the child and not that of the parents, if there is a difference between the two. (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). Sec. 300.13 Parent. As used in this part, the term "parent" means a parent, a guardian, a person acting as a parent of a child, or a surrogate parent who has been appointed in accordance with Sec. 300.514. The term does not include the State if the child is a ward of the State. (Authority: 20 U.S.C. 1415) Note: The term "parent" is defined to include persons acting in the place of a parent, such as a grandmother or stepparent with whom a child lives, as well as persons who are legally responsible for a child’s welfare. Sec. 300.14 Public agency. As used in this part, the term "public agency" includes the SEA, LEAs, IEUs, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. (Authority: 20 U.S.C. 1412(2)(B); 1412(6); 1413(a)) Sec. 300.15 Qualified. As used in this part, the term "qualified" means that a person has met SEA approved or recognized certification, licensing, registration, or other comparable requirements that apply to the area in which he or she is providing special education or related services. (Authority: 20 U.S.C. 1417(b)) Sec. 300.16 Related services. (a) As used in this part, the term "related services" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. (b) The terms used in this definition are defined as follows: (1) "Audiology" includes— (i) Identification of children with hearing loss; (ii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing; (iii) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation; (iv) Creation and administration of programs for prevention of hearing loss; (v) Counseling and guidance of pupils, parents, and teachers regarding hearing loss; and (vi) Determination of the child’s need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification. (2) "Counseling services" means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. (3) "Early identification and assessment of disabilities in children" means the implementation of a formal plan for identifying a disability as early as possible in a child’s life. (4) "Medical services" means services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services. (5) "Occupational therapy" includes— (i) Improving, developing or restoring functions impaired or lost through illness, injury, or deprivation; (ii) Improving ability to perform tasks for independent functioning when functions are impaired or lost; and (iii) Preventing, through early intervention, initial or further impairment or loss of function. (6) "Parent counseling and training" means assisting parents in understanding the special needs of their child and providing parents with information about child development. (7) "Physical therapy" means services provided by a qualified physical therapist. (8) "Psychological services" includes— (i) Administering psychological and educational tests, and other assessment procedures; (ii) Interpreting assessment results; (iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning. (iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and (v) Planning and managing a program of psychological services, including psychological counseling for children and parents. (9) "Recreation" includes- (i) Assessment of leisure function; (ii) Therapeutic recreation services; (iii) Recreation programs in schools and community agencies; and (iv) Leisure education. (10) "Rehabilitation counseling services" means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to students with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended. (11) "School health services" means services provided by a qualified school nurse or other qualified person. (12) "Social work services in schools" includes- (i) Preparing a social or developmental history on a child with a disability; (ii) Group and individual counseling with the child and family; (iii) Working with those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school; and (iv) Mobilizing school and community resources to enable the child to learn as effectively as possible in his or her educational program. (13) "Speech pathology" includes- (i) Identification of children with speech or language impairments; (ii) Diagnosis and appraisal of specific speech or language impairments; (iii) Referral for medical or other professional attention necessary for the habilitation of speech or language impairments; (iv) Provision of speech and language services for the habilitation or prevention of communicative impairments; and (v) Counseling and guidance of parents, children, and teachers regarding speech and language impairments. (14) "Transportation" includes- (i) Travel to and from school and between schools; (ii) Travel in and around school buildings; and (iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability. (Authority: 20 U.S.C. 1401(a)(17)) Note: With respect to related services, the Senate Report states: The Committee bill provides a definition of related services, making clear that all such related services may not be required for each individual child and that such term includes early identification and assessment of handicapping conditions and the provision of services to minimize the effects of such conditions. (S. Rep. No. 94-168, p. 12 (1975)) The list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as artistic and cultural programs, and art, music, and dance therapy), if they are required to assist a child with a disability to benefit from special education. There are certain kinds of services that might be provided by persons from varying professional backgrounds and with a variety of operational titles, depending upon requirements in individual States. For example, counseling services might be provided by social workers, psychologists, or guidance counselors, and psychological testing might be done by qualified psychological examiners, psychometrists, or psychologists, depending upon State standards. Each related service defined under this part may include appropriate administrative and supervisory activities that are necessary for program planning, management, and evaluation. Sec. 300.17 Special education. (a)(1) As used in this part, the term "special education" means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including— (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (ii) Instruction in physical education. (2) The term includes speech pathology, or any other related service, if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, and is considered special education rather than a related service under State standards. (3) Vocational education means organized educational programs directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree. (Authority: 20 U.S.C. 1401(16)) (b) The terms in this definition are defined as follows: (1) "At no cost" means that all specially designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program. (2) "Physical education" is defined as follows: (i) The term means the development of- (A) Physical and motor fitness; (B) Fundamental motor skills and patterns; and (C) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). (ii) The term includes special physical education, adaptive physical education, movement education, and motor development. (Authority: 20 U.S.C. 1401(a)(16)) (3) "Vocational education" means organized educational programs offering a sequence of courses that are directly related to the preparation of individuals in paid or unpaid employment in current or emerging occupations requiring other than a baccalaureate or advanced degree. Such programs shall include competency-based applied learning that contributes to an individual’s academic knowledge, higher-order reasoning, and problem-solving skills, work attitudes, general employability skills, and the occupation-specific skills necessary for economic independence as a productive and contributing member of society. Such term also includes applied technology education. (Authority: 20 U.S.C. 1401(16)) Note 1: The definition of special education is a particularly important one under these regulations, since a child does not have a disability under this part unless he or she needs special education. (See the definition of children with disabilities in Sec. 300.7.) The definition of related services (Sec. 300.16) also depends on this definition, since a related service must be necessary for a child to benefit from special education. Therefore, if a child does not need special education, there can be no related services, and the child is not a child with a disability and is therefore not covered under the Act. Note 2: The above definition of vocational education is taken from the Vocational Education Act of 1963, as amended by Public Law 94-482. Under that act, "vocational education" includes industrial arts, and consumer, and homemaking education programs. Sec. 300.18 Transition services. (a) As used in this part, "transition services" means a coordinated set of activities for a student, designed within an outcome-oriented process, that promotes movement from school to post-school activities, including postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. (b) The coordinated set of activities described in paragraph (a) of this section must— (1) Be based on the individual student’s needs, taking into account the student’s preferences and interests; and (2) Include- (i) Instruction; (ii) Community experiences; (iii) The development of employment and other post-school adult living objectives; and (iv) If appropriate, acquisition of daily living skills and functional vocational evaluation. (Authority: 20 U.S.C. 1401(a)(19)) Note: 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. The list of activities in paragraph (b) is not intended to be exhaustive. Subpart B—State Plans and Local Educational Agency Applications STATE PLANS-GENERAL Sec. 300.110 Condition of assistance. In order to receive funds under Part B of the Act for any fiscal year, a State must submit a State plan to the Secretary through its SEA, which plan shall be effective for a period of 3 fiscal years. (Authority: 20 U.S.C. 1231g, 1412, 1413) Sec. 300.111 Contents of plan. Each State plan must contain the provisions required in Sec. 300.121-300.154. (Authority: 20 U.S.C. 1412, 1413) STATE PLANS-CONTENTS Sec. 300.121 Right to a free appropriate public education. (a) Each State plan must include information that shows that the State has in effect a policy that ensures that all children with disabilities have the right to FAPE within the age ranges and timelines under Sec. 300.122. (b) The information must include a copy of each State statute, court order, State Attorney General opinion, and other State documents that show the source of the policy. (c) The information must show that the policy- (1) Applies to all public agencies in the State; (2) Applies to all children with disabilities; (3) Implements the priorities established under Sec. 300.320- 300.324; and (4) Establishes timelines for implementing the policy, in accordance with Sec. 300.122. (Authority: 20 U.S.C. 1412(1), (2)(B), (6); 1413(a)(1)) Sec. 300.122 Timelines and ages for free appropriate public education. (a) General. Each State plan must include in detail the policies and procedures that the State will undertake or has undertaken in order to ensure that FAPE is available for all children with disabilities aged 3 through 18 within the State not later than September 1, 1978, and for all children with disabilities aged 3 through 21 within the State not later than September 1, 1980. (b) Documents relating to timelines. Each State plan must include a copy of each State statute, court order, Attorney General decision, and other State documents that demonstrate that the State has established timelines in accordance with paragraph )a) of this section. (c) Exception. The requirement in paragraph (a) of this section does not apply to a State with respect to children with disabilities aged 3, 4, 5, 18, 19, 20, or 21 to the extent that the requirement would be inconsistent with State law or practice, or the order of any court, respecting public education for one or more of those age groups in the State. (d) Documents relating to exceptions. Each State plan must- (1) Describe in detail the extent that the exception in paragraph (C) of this section applies to the State; and (2) Include a copy of each State law, court order, and other documents that provide a basis for the exception. (Authority: 20 U.S.C. 1412(2)(B)) Sec. 300.123 Full educational opportunity goal. Each State plan must include in detail the policies and procedures that the State will undertake, or has undertaken, in order to ensure that the State has a goal of providing full educational opportunity to all children with disabilities aged birth through 21. (Authority: 20 U.S.C. 1412(2)(A)) Sec. 300.124 [Reserved] Sec. 300.125 Full educational opportunity goal—timetable. Each State plan must contain a detailed timetable for accomplishing the goal of providing full educational opportunity for all children with disabilities. (Authority: 20 U.S.C. 1412(2)(A)) Sec. 300.126 Full educational opportunity goal—facilities, personnel, and services. Each State plan must include a description of the kind and number of facilities, personnel, and services necessary throughout the State to meet the goal of providing full educational opportunity for all children with disabilities. (Authority: 20 U.S.C. 1412(2)(A)) Sec. 300.127 Priorities. Each State plan must include information that shows that- (a) The State has established priorities that meet the requirements of Sec. 300.320-300.324; (b) The State priorities meet the timelines under Sec. 300.122; and (c) The State has made progress in meeting those timelines. (Authority: 20 U.S.C. 1412(3)) Sec. 300.128 Identification, location, and evaluation of children with disabilities. (a) General requirement. Each State plan must include in detail the policies and procedures that the State will undertake, or has undertaken, to ensure that— (1) All children with disabilities, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated; and (2) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services and which children are not currently receiving needed special education and related services. (b) Information. Each State plan must: (1) Designate the State agency (if other than the SEA) responsible for coordinating the planning and implementation of the policies and procedures under paragraph (a) of this section. (2) Name each agency that participates in the planning and implementation and describe the nature and extent of its participation. (3) Describe the extent that- (i) The activities described in paragraph (a) of this section have been achieved under the current State plan; and (ii) The resources named for these activities in that plan have been used. (4) Describe each type of activity to be carried out during the next school year, including the role of the agency named under paragraph (b)(1) of this section, timelines for completing those activities, resources that will be used, and expected outcomes. (5) Describe how the policies and procedures under paragraph (a) of this section will be monitored to ensure that the SEA obtains— (i) The number of children with disabilities within each disability category that have been identified, located, and evaluated; and (ii) Information adequate to evaluate the effectiveness of those policies and procedures. (6) Describe the method the State uses to determine which children are currently receiving special education and related services and which children are not receiving special education and related services. (Authority: 20 U.S.C. 1412(2)©) Note 1: The State is responsible for ensuring that all children with disabilities are identified, located, and evaluated, including children in all public and private agencies and institutions in the State. Collection and use of data are subject to the confidentiality requirements of Sec. 300.560-300.576. Note 2: Under both Parts B and H of the Act, States are responsible for identifying, locating, and evaluating infants and toddlers from birth through 2 years of age who have disabilities or who are suspected of having disabilities. In States where the SEA and the State’s lead agency for the Part H program are different and the Part H lead agency will be participating in the child find activities described in paragraph (a) of this section, the nature and extent of the Part H lead agency’s participation must, under paragraph (b)(2) of this section, be included in the State plan. With the SEA’s agreement, the Part H lead agency’s participation may include the actual implementation of child find activities for infants and toddlers. The use of an interagency agreement or other mechanism for providing for the Part H lead agency’s participation would not alter or diminish the responsibility of the SEA to ensure compliance with all child find requirements, including the requirement in paragraph (a)(1) of this section that all children with disabilities who are in need of special education and related services are evaluated. Sec. 300.129 Confidentiality of personally identifiable information. (a) Each State plan must include in detail the policies and procedures that the State will undertake, or has undertaken, in order to ensure the protection of the confidentiality of any personally identifiable information collected, used, or maintained under this part. (b) The Secretary shall use the criteria in Sec. 300.560-300.576 to evaluate the policies and procedures of the State under paragraph (a) of this section. (Authority: 20 U.S.C. 1412(2)(D); 1417©) Note: The confidentiality regulations were published in the Federal Register in final form on February 27, 1976 (41 FR 8603-8610), and met the requirements of Part B of the Act. Those regulations are incorporated in Sec. 300.560-300.576. Sec. 300.130 Individualized education programs. (a) Each State plan must include information that shows that each public agency in the State maintains records of the IEP for each child with a disabilities, and each public agency establishes, reviews, and revises each program as provided in Sec. 300.340-300.350. (b) Each State plan must include- (1) A copy of each State statute, policy, and standard that regulates the manner in which IEPs are developed, implemented, reviewed, and revised; and (2) The procedures that the SEA follows in monitoring and evaluating those programs. (Authority: 20 U.S.C. 1412(4), 1413(a)(1)) Sec. 300.131 Procedural safeguards. Each State plan must include procedural safeguards that ensure that the requirements of Sec. 300.500-300.514 are met. (Authority: 20 U.S.C. 1412(5)(A)) Sec. 300.132 Least restrictive environment. (a) Each State plan must include procedures that ensure that the requirements of Sec. 300.550-300.556 are met. (b) Each State plan must include the following information: (1) The number of children with disabilities in the State, within each disability category, who are participating in regular education programs, consistent with Sec. 300.550-300.556. (2) The number of children with disabilities who are in separate classes or separate school facilities, or who are otherwise removed from the regular education environment. (Authority: 20 U.S.C. 1412(5)(B)) Sec. 300.133 Protection in evaluation procedures. Each State plan must include procedures that ensure that the requirements of Sec. 300.530-300.534 are met. (Authority: 20 U.S.C. 1412(5)©) Sec. 300.134 Responsibility of State educational agency for all educational programs. (a) Each State plan must include information that shows that the requirements of Sec. 300.600 are met. (b) The information under paragraph (a) of this section must include a copy of each State statute, State regulation, signed agreement between respective agency officials, and any other documents that show compliance with that paragraph. (Authority: 20 U.S.C. 1412(6)) Sec. 300.135 [Reserved] Sec. 300.136 Implementation procedures—State educational agency. Each State plan must describe the procedures the SEA follows to inform each public agency of its responsibility for ensuring effective implementation of procedural safeguards for the children with disabilities served by that public agency. (Authority: 20 U.S.C. 1412(6)) Sec. 300.137 Procedures for consultation. Each State plan must include an assurance that in carrying out the requirements of section 612 of the Act, procedures are established for consultation with individuals involved in or concerned with the education of children with disabilities, including individuals with disabilities and parents of children with disabilities. (Authority: 20 U.S.C. 1412(7)(A)) Sec. 300.138 Other Federal programs. Each State plan must provide that programs and procedures are established to ensure that funds received by the State or any public agency in the State under any other Federal program, including Subpart 2 of Part D of Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965, under which there is specific authority for assistance for the education of children with disabilities, are used by the State, or any public agency in the State, only in a manner consistent with the goal of providing FAPE for all children with disabilities, except that nothing in this section limits the specific requirements of the laws governing those Federal programs. (Authority: 20 U.S.C. 1413(a)(2)) Sec. 300.139 Comprehensive system of personnel development. Each State plan must include the procedures required under Sec. 300.380-300.383. (Authority: 20 U.S.C. 1413(a)(3)) Sec. 300.140 Private schools. Each State plan must include policies and procedures that ensure that the requirements of Sec. 300.400-300.403 and Sec. 300.450- 300.452 are met. (Authority: 20 U.S.C. 1413(a)(4)) Sec. 300.141 Recovery of funds for misclassified children. Each State plan must include policies and procedures that ensure that the State seeks to recover any funds provided under Part B of the Act for services to a child who is determined to be erroneously classified as eligible to be counted under section 611(a) or (d) of the Act. (Authority: 20 U.S.C. 1413(a)(5)) Sec. 300.142-300.143 [Reserved] Sec. 300.144 Hearing on application. Each State plan must include procedures to ensure that the SEA does not take any final action with respect to an application submitted by an LEA before giving the LEA reasonable notice and an opportunity for a hearing under Sec. 76.401(d) of this title. (Authority: 20 U.S.C. 1413(a)(8)) Sec. 300.145 Prohibition of commingling. Each State plan must provide assurance satisfactory to the Secretary that funds provided under Part B of the Act are not commingled with State funds. (Authority: 20 U.S.C. 1413(a)(9)) Note: This assurance is satisfied by the use of a separate accounting system that includes an audit trail of the expenditure of the Part B funds. Separate bank accounts are not required. (See 34 CFR Sec. 76.702 (Fiscal control and fund accounting procedures).) Sec. 300.146 Annual evaluation. Each State plan must include procedures for evaluation at least annually of the effectiveness of programs in meeting the educational needs of children with disabilities, including evaluation of IEPs. (Authority: 20 U.S.C. 1413(a)(11)) Sec. 300.147 State advisory panel. Each State plan must provide that the requirements of Sec. 300.650-300.653 are met. (Authority: 20 U.S.C. 1413(a)(12)) Sec. 300.148 Policies and procedures for use of Part B funds. Each State plan must set forth policies and procedures designed to ensure that funds paid to the State under Part B of the Act are spent in accordance with the provisions of Part B, with particular attention given to sections 611(b), 611(c), 611(d), 612(2), and 612(3) of the Act. (Authority: 20 U.S.C. 1413(a)(1)) Sec. 300.149 Description of use of Part B funds. (a) State allocation. Each State plan must include the following information about the State’s use of funds under Sec. 300.370 and Sec. 300.620: (1) A list of administrative positions, and a description of duties for each person whose salary is paid in whole or in part with those funds. (2) For each position, the percentage of salary paid with those funds. (3) A description of each administrative activity the SEA will carry out during the next school year with those funds. (4) A description of each direct service and each support service that the SEA will provide during the next period covered by the State plan with those funds, and the activities the State advisory panel will undertake during that period with those funds. (b) Local educational agency allocation. Each State plan must include— (1) An estimate of the number and percent of LEAs in the State that will receive an allocation under this part (other than LEAs that submit a consolidated application); (2) An estimate of the number of LEAs that will receive an allocation under a consolidated application; (3) An estimate of the number of consolidated applications and the average number of LEAs per application; and (4) A description of direct services that the SEA will provide under Sec. 300.360. (Authority: 20 U.S.C.1412(6)) Sec. 300.150 State-level nonsupplanting. Each State plan must provide assurance satisfactory to the Secretary that funds provided under this part will be used so as to supplement and increase the level of Federal (other than funds available under this part), State, and local funds—including funds that are not under the direct control of the SEA or LEAs— expended for special education and related services provided to children with disabilities under this part and in no case to supplant those Federal (other than funds available under this part), State, and local funds unless a waiver is granted in accordance with Sec. 300.589. (Authority: 20 U.S.C. 1413(a)(9)) Note: This requirement is distinct from the LEA nonsupplanting provision already contained in these regulations at Sec. 300.230. Under this State-level provision, the State must assure that Part B funds distributed to LEAs and IEUs will be used to supplement and not supplant other Federal, State, and local funds (including funds not under the control of educational agencies) that would have been expended for special education and related services provided to children with disabilities in the absence of the Part B funds. The portion of Part B funds that are not distributed to LEAs or IEUs under the statutory formula (20 U.S.C. 1411(d)) are not subject to this nonsupplanting provision. See 20 U.S.C. 1411©(3). States may not permit LEAs or IEUs to use Part B funds to satisfy a financial commitment for services that would have been paid for by a health or other agency pursuant to policy or practice but for the fact that these services are now included in the IEPs of children with disabilities. (H. R. Rep. No. 860, 99th Cong., 21-22 (1986)) Sec. 300.151 Additional information if the State educational agency provides direct services. If an SEA provides FAPE for children with disabilities or provides them with direct services, its State plan must include the information required under Sec. 300.226, 300.227, 300.231, and 300.235. (Authority: 20 U.S.C. 1413(b)) Sec. 300.152 Interagency agreements. (a) Each State plan must set forth policies and procedures for developing and implementing interagency agreements between— (1) The SEA; and (2) All other State and local agencies that provide or pay for services required under this part for children with disabilities. (b) The policies and procedures referred to in paragraph (a) of this section must— (1) Describe the role that each of those agencies plays in providing or paying for services required under this part for children with disabilities; and (2) Provide for the development and implementation of interagency agreements that— (i) Define the financial responsibility of each agency for providing children with disabilities with FAPE; (ii) Establish procedures for resolving interagency disputes among agencies that are parties to the agreements; and (iii) Establish procedures under which LEAs may initiate proceedings in order to secure reimbursement from agencies that are parties to the agreements or otherwise implement the provisions of the agreements. (Authority: 20 U.S.C. 1413(a)(13)) Sec. 300.153 Personnel standards. (a) As used in this part: (1) "Appropriate professional requirements in the State" means entry level requirements that— (i) Are 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; and (ii) Establish suitable qualifications for personnel providing special education and related services under this part to children and youth with disabilities who are served by State, local, and private agencies (see Sec. 300.2). (2) "Highest requirements in the State applicable to a specific profession or discipline" means the highest entry-level academic degree needed for any State approved or recognized certification, licensing, registration, or other comparable requirements that apply to that profession or discipline. (3) "Profession or discipline" means a specific occupational category that— (i) Provides special education and related services to children with disabilities under this part; (ii) Has been established or designated by the State; and (iii) Has a required scope of responsibility and degree of supervision. (4) "State approved or recognized certification, licensing, registration, or other comparable requirements" means the requirements that a State legislature either has enacted or has authorized a State agency to promulgate through rules to establish the entry-level standards for employment in a specific profession or discipline in that State. (b)(1) Each State plan must include policies and procedures relating to the establishment and maintenance of standards to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained. (2) The policies and procedures required in paragraph (b)(1) of this section must provide for the establishment and maintenance of standards that are consistent with any State approved or recognized certification, licensing, registration, or other comparable requirements that apply to the profession or discipline in which a person is providing special education or related services. (c) To the extent that a State’s standards for a profession or discipline, including standards for temporary or emergency certification, are not based on the highest requirements in the State applicable to a specific profession or discipline, the State plan must include the steps the State is taking and the procedures for notifying public agencies and personnel of those steps and the timelines it has established for the retraining or hiring of personnel to meet appropriate professional requirements in the State. (d)(1) In meeting the requirements in paragraphs (b) and (c) of this section, a determination must be made about the status of personnel standards in the State. That determination must be based on current information that accurately describes, for each profession or discipline in which personnel are providing special education or related services, whether the applicable standards are consistent with the highest requirements in the State for that profession or discipline. (2) The information required in paragraph (d)(1) of this section must be on file in the SEA, and available to the public. (e) In identifying the highest requirements in the State for purposes of this section, the requirements of all State statutes and the rules of all State agencies applicable to serving children and youth with disabilities must be considered. (Authority: 20 U.S.C. 1413(a)(14)) Note: The regulations require that the State use its own existing highest requirements to determine the standards appropriate to personnel who provide special education and related services under this part. The regulations do not require States to set any specified training standard, such as a master’s degree, for employment of personnel who provide services under this part. In some instances, States will be required to show that they are taking steps to retrain or to hire personnel to meet the standards adopted by the SEA that are based on requirements for practice in a specific profession or discipline that were established by other State agencies. States in this position need not, however, require personnel providing services under this part to apply for and obtain the license, registration, or other comparable credential required by other agencies of individuals in that profession or discipline. The regulations permit each State to determine the specific occupational categories required to provide special education and related services and to revise or expand these categories as needed. The professions or disciplines defined by the State need not be limited to traditional occupational categories. Sec. 300.154 Transition of individuals from Part H to Part B. Each State plan must set forth policies and procedures relating to the smooth transition for those individuals participating in the early intervention program under Part H of the Act who will participate in preschool programs assisted under this part, including a method of ensuring that when a child turns age 3 an IEP, or, if consistent with sections 614(a)(5) and 677(d) of the Act, an individualized family service plan, has been developed and implemented by the child’s third birthday. (Authority: 20 U.S.C. 1413(a)(15)) LOCAL EDUCATIONAL AGENCY APPLICATIONS—GENERAL Sec. |