A User's Guide To The 1999 IDEA Regulations

Prepared By:
Robert Silverstein, J.D.
Director, The Center For The Study And Advancement
Of Disability Policy In The School Of Public Health And Health Services

And

Associate Professor Of Health Services Management And Policy In The School Of Public Health And Health Services

And

Associate Professor Of Health Care Sciences In The School Of Medicine And Health Sciences, The George Washington University Medical Center

March 18, 1999, Revised May 7, 1999

This Guide was supported by a generous grant from The Joseph P. Kennedy, Jr. Foundation and additional support from: The Public Welfare Foundation, The Peter L. Buttenwieser Fund of the Tides Foundation, Mr. and Mrs. Justin Dart, Fenmore R. Seton, The American Occupational Therapy Association, Inc., The Bernard L. Schwartz Foundation, Inc., Glaxo Wellcome, Inc., Josiah Macy Jr. Foundation, Kaleidoscope, American Speech-Language-Hearing Association, The Nancy Lurie Marks Family Foundation, The Philanthropic Collaborative, Inc., and The ADA G. Halbreich Revocable Trust.

This Guide may be reproduced for noncommercial use without prior permission if the author Robert Silverstein and the Center for the Study and Advancement of Disability Policy (CSADP) at The George Washington University School of Public Health and Health Services are cited.

Table Of Contents: A User's Guide To The 1999 Idea Regulations

Introduction
Purpose Of The Memorandum , i
About The Author , iii
About The Center , iv

Analysis

Statement Of Purpose , 1
Definitions , 1

Child With A Disability, In General, 1
Autism, 1
Seriously Emotionally Disturbed, 1
Developmental Delay, 1
Other Health Impaired, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, 2
Day; Business Day; School Day, 2
General Curriculum, 2
Charter Schools, 2
Native Language, 2
Parent, 3
Public Agency, 3
Related Services, 3
1. Orientation And Mobility , 3
2. Parent Counseling And Training, 3
3. Psychological Services, 3
4. Transportation, 3
5. List Of Related Services Not Exhaustive, 4
6. Special Education, 4
7. Supplementary Aids And Services, 4
8. Transition Services, 4

State Eligibility, 4

State Eligibility , 4
Free Appropriate Public Education (FAPE) And Exceptions To FAPE, 5
1. Suspension And Expulsion, 5
2. Turning Three, 6
3. Advancing From Grade To Grade, 6
4. Children In Adult Correctional Facilities, 6
5. Graduation, 7
Child Find, 7
1. Highly Mobile Students, 7
2. Advancing From Grade To Grade, 7
3. Private School Children, 7
4. Child Find For Children Birth To Two, 7
5. Classification On The Basis Of Disability Not Required, 7
Least Restrictive Environment, 8
Comprehensive System Of Personnel Development; Personnel Standards, 8
1. Personnel Standards, 8
2. Promising Practices, 8
3. Paraprofessionals, 8
4. Good Faith Efforts, 8
Performance Goals And Indicators, 8
General State And Districtwide Assessments, 9
1. In General, 9
2. Small Percentage Need Alternative Assessments, 9
3. Reports, 9
Interagency Agreements, 9
1. In General, 9
2. Public Insurance, 10
3. Private Insurance, 10
4. Use Of Part B Funds To Pay For Services, 10
5. Program Income, 10
Suspension And Expulsion Rates, 10
State Level Maintenance Of Effort, 11

Local Educational Agency Eligibility, 11

Eligibility, In General, 11
Local Maintenance Of Effort, 11
Treatment Of Federal Funds In Certain Fiscal Years, 12
Schoolwide Programs, 12
Permissive Use Of Part B Funds, 12
1. Benefits To Non-Disabled Children In The Regular Class, 12
2. Integrated And Coordinated Services, 13
3. Effect Of Using Permissive Use Option, 13
Charter Schools, 13
Coordinated Service System, 13
School-Based Improvement Plan, 13

Services (Free Appropriate Public Education, FAPE), 13

FAPE, Including Children Suspended And Expelled, 13
Child Find, 13
Services And Placements Based On Needs, Not Disability Category, 13
FAPE (Methods And Payments), 14
Residential Placement, 14
Assistive Technology, 14
Extended School Year Services, 14
Adult Correctional Facilities, 14
1. Exception To The FAPE Requirement For Certain 18-21 Year Olds in Adult Correctional Facilities, 14
2. Inapplicability Of General Assessment Requirements, 15
3. Inapplicability Of Transition Planning Provisions, 15
4. Modifications Of IEP Or Placement, 15
Charter Schools, 15
Children Experiencing Developmental Delay, 15

Individualized Education Programs (IEPs), 16

When IEP Must Be In Effect, 16
1. IEP In Effect Before Services Provided, 16
2. Implementation Of IEPs, 16
3. Use Of IFSPs In Lieu Of IEPs For Children Aged 3-5, 16
4. Effective Date, 16
IEP Meetings, 16
IEP Team, 17
1. In General, 17
2. Inclusion Of Regular Education Teacher, 17
3. Discretion Of Parents And Public Agency To Bring Other Individuals, 17
4. Student Participation In Transition Planning, 17
Parent Participation, 17
Development, Review, And Revision Of The IEP, 17
1. Consider Strengths Of Child And Concerns Of Parents, 18
2. Special Factors, 18
  1. Consideration By IEP Team, 18
  2. Review And Revision Of IEP, 18
3. Statement In The IEP, 18
4. Requirements With Respect To Regular Education Teachers, 18
5. Construction Clause Regarding Placement Of Information In An IEP, 18
Contents Of The IEP, 19
1. In General, 19
2. Transition Needs And Services, 19
3. Transfer Of Rights, 20
4. Students With Disabilities Convicted As Adults And Incarcerated In Adult Prisons, 20
Agency Responsibility For Transition Services, 20
Private School Placements By Public Agencies And IEPs For Parentally Placed Children In Private Schools, 20
IEP Accountability, 20

State Administration , 20

Authorized Uses, 20
Matching, 21

Comprehensive System Of Personnel Development , 21

Inclusion Of General Education Personnel, 21
Promising Practices, 21
Joint Training Of Parents And Personnel, 21

Children With Disabilities In Private Schools Placed Or Referred By Public Agencies, 21
Placement By Parents If FAPE At Issue, 21

Authority Of Parents To Seek Reimbursement, 21
Limitations On Reimbursement, 22
Exceptions, 22

Children With Disabilities Enrolled By Parents In Private Schools, 22

Child Find , 22
Provision Of Services - Basic Requirement, 22
Proportionality, 23
No Individual Right To Special Education And Related Services, 23
Services Provided, 23
Location Of Services, 24
Complaints, Inapplicability Of Due Process Hearings, 24

Due Process Procedures For Parents And Children , 24

General Responsibility Of Seas, 24
Inspect And Review Educational Records, Parent Participation In Meetings, 24
1. Opportunity To Inspect And Review Applies To Placements, 24
2. Notice Of Meetings, 24
3. "Meeting" Explained, 24
4. Parents Involvement In Placement Decisions, 24
Independent Evaluations, 25
1. Public Agency Response To Parental Request, 25
2. Agency Conditions Or Timelines, 25
Prior Notice By The Public Agency, Content Of Notice, 25
Procedural Safeguards Notice, 25
Parental Consent, 26
Mediation, 26
1. In General, 26
2. Impartiality And Selection Of The Mediator, 26
3. Meeting To Encourage Mediation, 26
4. Confidentiality, 27
Initiating A Due Process Hearing By A Parent Or Public Agency, 27
1. Notice, 27
2. Due Process Hearing Officer Determination Of Whether Issue Is New, 27
Parent Notice In A Request For Due Process And Model Form, 27
1. Obligation In General, 27
2. Model Form, 27
3. Right To Due Process Hearing, 27
Hearing Rights, 28
1. Parents Right To Choose Form Of Record, 28
2. Disclosure Of Evaluations Prior To Hearing, 28
Civil Actions, 28
1. Duties Of The Court, 28
2. Relationship To Section 504 And The ADA, 28
Attorneys Fees, 28
1. In General, 28
2. Use Of Part B Funds To Pay For Attorneys, 28
3. Hearing Officer Authority To Award Fees, 28
Pendency, Stay Put, 28
1. Exceptions To Stay Put, 28
2. Agreement Between The State Or Local Educational Agency And The Parents, 29
Transfer Of Parental Rights At Age Of Majority, 29

Discipline Procedures , 29

Change In Placement, 29
Authority Of School Personnel, 29
1. 10 School Days, 29
2. Misconduct Relating To Weapons And Drugs, 30
3. Functional Behavioral Assessments And Behavioral Intervention Plans, 30
Authority Of The Hearing Officer, 30
Determination Of Setting, 31
1. In General, 31
2. Additional Requirements, 31
Manifestation Determination, 31
1. In General, 31
2. Conduct Of The Review, 32
3. Decision, 32
4. Immediate Steps To Remedy Deficiencies, 32
5. Meeting To Determine Manifestation, 32
Determination That Behavior Not A Manifestation, 33
1. Use Of Disciplinary Procedures Applicable To Nondisabled Children, 33
2. Transfer Of Records, 33
3. Stay Put, Pendency, 33
4. Reference To Section 504, 33
Parent Appeal, 33
Placement Pending Appeals, 34
Protections For Children Not Yet Eligible For Special Education And Related Services, 34
Expedited Due Process Proceedings, 34
1. Timing For The Decision, 34
2. Standards, 34
3. Hearing Officer, 35
4. State Authority To Establish Different Procedures, 35
5. Appealability, 35
Referral To And Action By Law Enforcement And Judicial Authorities, 35

Procedures For Evaluation And Determination Of Eligibility, 35

Initial Evaluation, 35
Evaluation Procedures, 35
Determination Of Needed Evaluation Data, 36
Determination Of Eligibility, 36
Procedures For Determining Eligibility And Placement, 37
Reevaluation, 37

Least Restrictive Environment, 37
Placements, 37

Parent Participation In Placement Decisions, 38
IEP Team And Placements, 38

Transmission Of Disciplinary Information , 38
Enforcement By The Department Of Education, 38

In General, 38
Types Of Actions, 38
Withholding, 38
Referral To Justice; Opportunity To Meet, 38
Divided State Agency Responsibility, 39

Waiver Of Supplanting And Maintenance Of Effort, 39
State Administration, 39

Caps On Funds Retained For Administration And Other State-Level Activities, 39
Use Of Funds For State Administration And Allowable Costs, 39
Subgrants To Leas For Capacity-Building And Improvement, 39
Amounts Required For Subgrants, 40
State Discretion In Awarding Subgrants, 40

State Advisory Panel , 40

Scope Of Advice, 40
Membership, 40

State Complaint Procedures, 40

Dissemination About Complaint Procedures, 40
Remedies For Denial Of Appropriate Services, 40
Secretarial Review, 40
Relationship Between Complaint Procedures And Due Process, 40
Timing For The Filing Of A Complaint, 41

Reports , 41

Purpose Of The Guide

On February 20, 1997, a congressional bipartisan, bicameral "working group" was established to develop a bill reauthorizing the Individuals With Disabilities Education Act (IDEA). This "working group" included representatives from the U.S. Department of Education, and the following congressional offices: Senators Harkin, Kennedy, Dodd, Jeffords, Coats, and Frist, and Congressman Goodling, Riggs, Castle, Martinez, Scott, and Miller. The facilitator of the group was David Hoppe, the Majority Leader Lott's chief of staff.

After 7 weeks of marathon negotiations, an agreement was reached on all outstanding issues. On May 13, the House of Representatives considered and passed H.R. 5 (House Report No. 105-95) by a vote of 420-3. On the following day the Senate passed S. 717, the companion, identical bill (Senate Report No. 105-17) by a vote of 98-1. The President signed the House bill into law on June 4, 1997 (Public Law 105-17).

On October 22, 1997, the U.S. Department of Education published a Notice of Proposed Rulemaking 62 Federal Register 55026-55135. The Department requested that comments be received on or before January 20, 1998.

Following publication of the proposed regulation, the Department held seven public hearings around the country. The Department received nearly 6,000 written comments.

On March 12, 1999, the Department published the final regulations in the Federal Register. The final regulation (hereinafter referred to as "the revised regulation" or the "regulation") is composed of eight discrete parts:

Preamble
Regulations for part B (Part 300)
Appendix A (Notice of Interpretation on IEPs)
Appendix B - Index to Part B Regulations
Attachment 1 - Analysis of comments and changes (hereinafter referred to as "Analysis")
Attachment 2 - Assessment of costs and benefits
Attachment 3 - Table Showing Disposition of NPRM Notes in Final Regulations
Conforming Regulations for the Part C Early Interventions Program

The purpose of this Guide is to provide a "user friendly" tool for understanding the major new policies included in these revised regulations.

Framework. The Guide uses the Department's framework set out in the revised regulation for conducting the analysis. Thus, the major headings refer to sections in the regulation e.g., statement of purpose, definitions, etc.

Scope. The Guide highlights the major changes to the prior regulation (i.e., the regulation in effect prior to the publication in the Federal Register of the revised regulations on March 12, 1999). There are three basic sources of changes included in the regulations that are referenced to in the Guide.

The first and most important category of changes includes references to the new statute. To the extent the revised regulation simply restates or reflects the new statute, the Guide includes a phrase such as "the revised regulation regarding...generally restates/reflects the new statutory provision." If the revised regulation includes an interpretation of the new statutory provision, the Guide simply states that the "revised regulation specifies..."

The second category of changes includes references to the legislative history, usually the House Report. These references are generally set out in Analysis accompanying a revised regulation.

The third category of changes to a prior regulation incorporates existing policy interpretations that are currently set out in notes, correspondence, or policy memos. The Guide identifies these additions by using phrases such as "the revised regulation includes long-standing Department policy regarding..."

The Guide generally does not reference revised regulations that simply restate policies set out in the prior regulation or only include technical or minor changes.

About The Author:

Robert Silverstein, J.D. Director of The Center for the Study and Advancement of Disability Policy at The George Washington University School of Public Health and Health Services. Mr. Silverstein is an associate professor of Health Services Management and Policy in the School of Public Health and Health Services and Associate Professor of Health Care Sciences in the School of Medicine and Health Sciences. Mr. Silverstein is also serving as The Kennedy Senior Scholar in Mental Retardation.

Mr. Silverstein is known nationally for his work in the area of disability policy. As staff director and chief counsel for the Subcommittee on Disability Policy of the Committee on Labor and Human Resources, U. S. Senate (1987-1997) and counsel to the Subcommittee on Select Education of the Committee on Education and Labor, U.S. House of Representatives (1985-1987), he was a behind-the-scenes architect of more than 20 enacted disability-related bills (including the Americans with Disabilities Act, the early intervention program for infants and toddlers with disabilities and their families and the 1997 Amendments to IDEA) and numerous disability-related amendments to other bills concerning health, education, welfare, job training, and civil rights.

Prior to working on Capitol Hill, Mr. Silverstein was co-founder of a law firm that focused on public policy analyses for Federal, State, and local officials and representation of persons with disabilities and their families. He was also the staff director of a congressionally-mandated study of title I of the Elementary and Secondary Education Act at the National Lawyers Committee for Civil Rights Under Law.

Mr. Silverstein holds a B.S. in Economics from the Wharton School of Finance and Commerce at the University of Pennsylvania and a J.D. from Georgetown University Law Center.

About The Center For The Study And Advancement Of Disability Policy:

The Center for the Study and Advancement of Disability Policy conducts research and analysis of complex public policy issues affecting individuals with disabilities and their families. Through consensus-building strategies that transcend partisan and interest-group politics, the Center develops common-sense, flexible solutions that recognize the needs and rights of individuals with disabilities and their families as well as the legitimate concerns of Federal, State, local, and private entities.

The Center also provides public education, leadership development and training, technical assistance and information dissemination to disability groups, international, national, State, local, and private sector leaders and others interested in learning about the complex details of, and the relationships among various laws and programs affecting individuals with disabilities and their families.

More specifically, the Center:

Conducts research and analysis of disability policy issues and translates research into policy alternatives related to current issues affecting Federal, State and local governments and the private sector
creates educational and training opportunities for individuals with disabilities and their families, international, national, State, and local leaders, advanced policy fellows and others to learn about the complex details of, and the relationships among various laws and programs affecting persons with disabilities and their families
provides a national forum for discussion of public policies affecting persons with disabilities and their families
provides technical assistance and disseminates policy information to organizations representing disability groups, professional groups, and Federal, State, local, and private entities that want to devise solutions to complex policy issues that require a broad-based consensus.

The Center is part of The George Washington University School Public Health and Health Services. Center research projects are carried out by interdisciplinary teams with a wide variety of academic and practical skills and in collaboration with other Centers and departments in various schools at GW and other groups outside the University.

Mr. Silverstein and the Center are receiving support from the The Joseph P. Kennedy, Jr. Foundation and additional support from: The Public Welfare Foundation, The Peter L. Buttenwieser Fund of the Tides Foundation, Mr. and Mrs. Justin Dart, Fenmore R. Seton, The American Occupational Therapy Association, Inc., The Bernard L. Schwartz Foundation, Inc., Glaxo Wellcome, Inc., Josiah Macy Jr. Foundation, Kaleidoscope, American Speech-Language-Hearing Association, The Nancy Lurie Marks Family Foundation, The Philanthropic Collaborative, Inc., and The ADA G. Halbreich Revocable Trust.

The Center for the Study and Advancement of Disability Policy
The George Washington University
School of Public Health and Health Services
2021 "K" Street, N.W., Suite 800
Washington, D.C. 20006
(202) 496-8452 (Phone/TTY)
(202) 467-2251 (FAX)
E-mail: ihorxs@gwumc.edu

A User's Guide To The 1999 IDEA Regulations

Statement Of Purpose (Section 601(d)(1)(A); 300.1(a))
The regulation generally restates the statutory provision regarding the statement of purpose, including the new purpose "to prepare them [children with disabilities] for employment and independent living."

Applicability To State, Local, And Private Agencies (Section 612; 300.2)
The regulation includes "public charter schools that are not otherwise included as LEAs or educational service agencies (ESAs) and are not a school of an LEA or ESA."

Definitions

Child With A Disability, In General (Section 601(3)(A); 300.7(a)(2))
The revised regulation clarifies that if a child with a disability needs only a related service and not special education, the child is not eligible; but, if the related service is considered to be special education under State standards, the child would be eligible.
Autism (Section 601(3)(A); 300.7(c)(1)( i ))
The revised regulation specifies that if a child manifests characteristics of autism after age 3, the child could be diagnosed as having "autism" if the criteria in the definition are satisfied.
Seriously Emotionally Disturbed (Section 602(3)(A); 300.7(c)(4))
The revised regulation restates the new statutory requirement that after the first time the term "seriously emotionally disturbed" appears, hereinafter the reference should be to "emotionally disturbed." The Analysis cites to the House Report, which explains that the change is intended to have no substantive or legal significance; rather, the change is intended strictly to eliminate any pejorative connotation. The House Report also explains that there is no intent to change the definition included in the prior regulation. Consistent with this directive, the regulation does not change the definition.
Developmental Delay. (Section 602(3)(B); 300.7(b))
The revised regulation generally restates the statutory provision authorizing the use of the term "developmental delay" for children aged 3-9, at the discretion of both the SEA and the LEA. A new 300.313 has been added that clarifies the circumstances under which the "developmental delay" designation is used.
Other Health Impaired, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder (Section 601(3)(A); 300.7(c)(9))
The revised regulation adds "attention deficit disorder" and "attention deficit hyperactivity disorder" to the list of conditions that could render a child eligible under "other health impaired." The revised regulation also clarifies that, with respect to these children, the phrase "limited strength, vitality, or alertness" includes "a child's heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment."
Day; Business Day; School Day (300.9)
The revised regulation includes the long-standing department interpretation of the term "day" as meaning calendar day. The regulation also includes definitions for the terms "business day" (means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day)) and "school day" (means any day, including a partial day, that children are in attendance at school for instructional purposes).
General Curriculum
The proposed regulation clarified that the term "general curriculum" used throughout the statute and regulation meant there is a single curriculum that applies to all children within the jurisdiction of the public agency, including nondisabled children and children with disabilities. This definition has been deleted in the final regulation. The term is explained in 300.347 and Appendix A regarding IEP requirements as meaning the same curriculum as for nondisabled children.
Charter Schools (300.18)
The definition of "local educational agency" has been revised to clarify that the term includes public charter schools that are established as an LEA under State law.
Native Language (601(16); 300.19)
The prior regulation has been revised to clarify that in all direct contact with the child (including evaluation of the child) communication would be in the language normally used by the child and not that of the parents, if there is a difference between the two. In addition, the prior regulation has been revised to specify that for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, braille, or oral communication).
Parent (601(19); 300.20)
The prior regulation has been revised to add language clarifying that the term means a natural or adaptive parent of a child and a person acting in the place of a parent of a child (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare) and to permit states in certain circumstances to use foster parents as parents under the Act unless prohibited by State law.
Public Agency (612(a)(1)(A); (a)(11); 300.22)
The prior regulation has been revised to add "public charter schools" to the list of examples of "public agencies."
Related Services (Section 602(22); 300.24)
1. Orientation and Mobility (300.24(b)(6)). The revised regulation includes the statutory amendment which added "orientation and mobility services." The Analysis explains that the phrase is a "term of art" applicable to students with visual impairments .
2. Parent Counseling and Training (300.24(b)(7)). The prior regulation has been revised to add that the term also means "helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or IFSP."
3. Psychological Services (300.22(b)(9)) and Social Work Services (300.22)(b)(13)). The revised regulation adds a reference to "developing positive intervention strategies" to the list of functions performed under "psychological services" and "social work services". According to the Analysis, including the development of positive behavioral interventions in the descriptions of potential activities under the social work services in the schools and psychological services provide examples of the types of personnel who assist in this activity. These examples of personnel who may assist in this activity are not intended to imply either that school psychologists and social workers are automatically qualified to perform these duties or to prohibit other qualified personnel from serving in this role, consistent with State requirements.
4. Transportation (300.22(b)(15)). The revised regulation restates policy in the prior regulations regarding the term "transportation" i.e., transportation includes travel to and from school and between schools and travel in and around school buildings and specialized equipment. The Analysis specifies that it should be assumed that most children with disabilities receive the same transportation services as nondisabled children. For some children with disabilities, integrated transportation may be achieved by providing needed accommodations such as lifts and other equipment adaptations on regular school transportation vehicles.
5. List of Related Services Not Exhaustive. The Analysis and the IEP Q&A (Appendix A) at question 34 explain that the list of related services specified in the regulation is not exhaustive and may include other developmental, corrective, or supportive services such as artistic and cultural programs, art, music, and dance therapy as well as nutritional services and service coordination.
Special Education (601(25); 300.26)
The term "special education" is revised to include "travel training" for children with cognitive impairments and other disabled children who need it. The term is defined in the revised regulation. The term "specially designed instruction" is defined in the revised regulation to mean "adapting as appropriate to needs of an eligible child under this part, the content, methodology or delivery of instruction to address the unique needs of the child that result from the child's disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children." The Analysis explains the level of detail required by this definition.
Supplementary Aids And Services (Section 602(29); 300.28)
The revised regulation restates the statutory definition-"aids and services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with [provisions concerning least restrictive environment]."
Transition Services (Section 601(30); 300.29)
The prior regulation is revised to add a new paragraph specifying that "transition services for students with disabilities may be special education, if provided as specially designed instruction, or related services, if required to assist a student with a disability to benefit from special education."

State Eligibility

State Eligibility (Section 612(a),(b), and (c ); 300.110-.113)
Under the old statute, a state was required to meet certain eligibility requirements and submit a state plan as well as comply with periodic resubmission requirements.
The revised regulation restates the revised statutory scheme which is based on a demonstration satisfactory to the Secretary that the State has in effect policies and procedures to ensure that it meets each of the list of conditions. The revised regulation also provides for the submission of modifications under specified circumstances.
Free Appropriate Public Education (FAPE) (Section 612(A)(1)(A); 300.121) And Exceptions To FAPE (Section 612(a)(1)(B); 300.121)
1. Suspension and Expulsion. The revised regulation restates the new statutory provision and long-standing Department policy that the right to FAPE includes children with disabilities who have been suspended or expelled from school.
  Short-term removals for 10 school days or less in the same school year. Services need not be provided to a child with a disability during the first ten school days in that school year for which a child is removed for violations of school conduct rules when necessary and appropriate to the circumstances and if services are not provided to a child without disabilities who has been similarly removed.
  Subsequent short-term removals. After a child has been removed from his or her current placement by school personnel for 10 school days in the same school year, subsequent short term removals are permissible as long as they do not constitute a change in placement. However, services must be provided to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. In this situation, school personnel, in consultation with the child's special education teacher, determine the extent to which services are necessary.
  Subsequent long-term removals other than 45 day removals. After a child has been removed from his or her current placement for 10 cumulative school days in a school year, subsequent long-term removals (other than 45 day removals) by school personnel for behavior that is not a manifestation of his or her disability are permissible; however, services must be provided to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP. The child's IEP team determines the extent to which services are necessary.
  Removals for offenses involving weapons or drugs. In addition to the removals described above, subsequent removals to interim alternative educational settings for up to 45 days by school personnel are permissible for weapons or drug offenses (whether or not the offenses are a manifestation of the child's disability). However, the
  IEP team must determine the extent to which services must be provided in interim alternative educational settings. Placements in such settings must:
  - be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP and
  - include services and modifications to address the child's behavior (weapons, drugs) that are designed to prevent the behavior from recurring.
  - Removals by hearing officer when behavior substantially likely to result in injury to self or others. In addition to short-term removals described above, removals to interim alternative educational settings for up to 45 days by a hearing officer are permissible based on a determination that maintaining the current placement of the child is substantially likely to result in injury to the child or to others if he or she remains in the current placement (whether or not the offenses are a manifestation of the child's disability). The hearing officer must determine that the interim alternative educational setting that is proposed by school personnel, who have consulted with the child's special education teacher, meets the following requirements:
    - be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP and
    - include services and modifications to address the child's behavior (resulting in injury) that are designed to prevent the behavior from recurring.
2. Turning Three (300.121(c)). The revised regulation specifies that each State must ensure that the obligation to make FAPE available begins no later than the child's third birthday and an IEP or IFSP is in effect for the child by that date. The prior regulation is revised to clarify that if a child's third birthday occurs during the summer, the child's IEP team determines the date when services will begin.
3. Advancing from Grade to Grade (300.121(e)). The revised regulation includes the Department's longstanding policy that each State must ensure that FAPE is available to any child who needs special education and related services, even though the child is advancing from grade to grade. The determination that a child who is advancing from grade to grade is eligible under Part B must be made on an individualized basis by the group responsible for making eligibility determinations.
4. Children in Adult Correctional Facilities (300.122). The revised regulation and Analysis generally restate the statutory exemption from FAPE and House and Senate Committee Report language applicable to students aged 18-21 to the extent that State law does not require that special education and related services under part B be provided to children with disabilities who, in the last educational placement prior to their incarceration in an adult correctional facility were not actually identified as being a child with a disability or did not have an IEP under part B. The exception does not apply to students with disabilities, aged 18 through 21, who had been identified as a child with disability and had received services in accordance with an IEP, but who left school prior to their incarceration; or did not have an IEP in their last educational setting, but who had actually been identified as a "child with a disability."
5. Graduation (300.122(a)(3)). The revised regulation and the Analysis generally restate the Department's long-standing policy regarding graduation and the right to FAPE. Specifically, the regulation makes clear that graduation from high school with a regular diploma is a change in placement requiring notice to parents under 300.503. The Analysis explains that if a high school awards a student with a disability a certification of attendance or other certificate of graduation instead of a regular high school diploma, the student would still be entitled to FAPE until the student reaches the age at which eligibility ceases under the age requirements within the State or has earned a regular high school diploma.
Child Find (Section 612(a)(3); 300.125)
1. Highly Mobile Students. The child find requirement has been revised to apply to highly mobile students e.g., migrants and homeless.
2. Advancing From Grade to Grade. The regulation is revised to clarify that child find applies to children suspected of being a child with a disability and in need of special education even though they are advancing from grade to grade.
3. Private School Children. The revised regulation generally restates statutory clarification that child find includes children attending private schools.
4. Child Find for Children Birth through Two. With the SEA's agreement, the Part C lead agency's participation may include the actual implementation of child find activities for infants and toddlers with disabilities. The use of an interagency agreement or other mechanism for providing for the Part C lead agency's participation does not alter or diminish the responsibility of the SEA to ensure compliance with the requirements of this section.
5. Classification on the Basis of Disability not Required. The revised regulation restates the statutory construction clause that nothing in the Act requires that children be classified by their disability so long as each child who has a listed disability and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under part B.
Least Restrictive Environment. (Section 612(a)(5); 300.130 (b))
The revised regulation generally restates the new statutory provision specifying that state funding mechanisms may not result in placements that violate LRE.
Comprehensive System Of Personnel Development; Personnel Standards (Section 612 (a)(15); 300.135, 300.136).
1. Personnel Standards. The definition of "profession or discipline" in 300.136(a)(3) has been revised to clarify that the term "specific occupational category" is not limited to traditional categories. The policies and procedures in 300.136(b) have been expanded to provide that (A) each State may determine the specific occupational categories required in the State and revise or expand them as needed; (B) nothing in these regulations requires a State to establish a specific training standard (e.g., a masters degree); and (C) a State with only entry-level academic degree for employment of personnel in a specific profession or discipline, may modify that standard, as necessary, to ensure the provision of FAPE to all eligible children.
2. Promising Practices. The revised regulation restates the requirement from current law that states must develop procedures for acquiring and disseminating significant knowledge and adopt appropriate promising practices, materials, and technology.
3. Paraprofessionals. The revised regulation generally restates the new statutory provision regarding the use of paraprofessionals who are appropriately trained and supervised in accordance with State law and policy.
4. Good Faith Efforts. The revised regulation generally restates the new statutory provision regarding making good faith efforts to recruit and hire appropriately and adequately trained personnel. 300.136(g) has been amended to provide that (A) if a State has reached its established date for a specific profession or discipline, it may still exercise the option in 300.136(g)(1); and (B) each State must have a mechanism for serving children with disabilities if instructional needs exceed available (qualified) personnel, including addressing those shortages in its comprehensive system of personnel development if the shortages continue.
Performance Goals And Indicators (Section 612(a)(16); 300.137)
The revised regulation generally restates the new statutory provision requiring states to develop performance goals and indicators for children with disabilities that are consistent, to the maximum extent appropriate, with other goals and standards for all children established by the State. According to the Analysis, regardless of whether a State has established goals for all children, it must establish goals for the performance of children with disabilities and must establish indicators that the State will use to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates.
General State And District-wide Assessments (Section 612(a)(17); 300.138, 300.139)
1. In General. The revised regulation generally restates the new statutory provision that children with disabilities must be included in state and district-wide assessments with clarifications that the agencies must provide for or make "appropriate accommodations and modifications in administration, if necessary." In addition, the State or LEA must develop guidelines for the participation of children with disabilities in alternative assessments for those children who cannot participate in State and district-wide assessments.
2. Small Percentage Need Alternative Assessments. The Analysis accompanying 300.138 states that it is assumed that only a relatively small percentage of children with disabilities will need alternative assessments.
3. Reports. The revised regulation specifies that reports must include aggregated and disaggregated data. The Analysis describes acceptable approaches for aggregation.
Interagency Agreements (Section 612(a)(12); 300.142)
1. In General. In general, the revised regulation restates the new statutory provisions regarding interagency agreements established under the authority of the Chief Executive Officer of the State or his or her designee. Thus, the regulation specifies that the financial responsibility of each noneducational public agency, including the State Medicaid agency and other public insurers of children with disabilities, must precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).
  The revised regulation specifies that a noneducational public agency may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.
  The revised regulation also specifies that if a public agency other than an educational agency fails to provide or pay for the special education and related Services, the LEA (or State agency responsible for developing the child's IEP) shall provide or pay for these services to the child in a timely manner.
2. Public Insurance. A new 300.142(e) has been added to make clear that a public agency may use a child's public insurance to provide or pay for services required under Part B, with certain limitations. The public agency (A) may not require parents to sign up for public insurance in order for the child to receive FAPE, (B) may not require parents to incur out-of-pocket expenses in order to file the claim for services under Part B, and (C) may not use the child's benefits under a public insurance program if that use would decrease available lifetime coverage or any other insured benefit, result in the family paying for services that would have been covered by the public insurance and are required for the child outside of the time the child is in school, increase premiums or lead to discontinuation of services or risk loss of eligibility for home and community-based waivers due to aggregate health-related expenditures.
3. Private Insurance (300. 142(f)). The provisions on children covered by private insurance provide that a public agency (A) may access a parent's private insurance proceeds only if the parent provides informed consent, and (B) must obtain consent each time it proposes to access those proceeds, and inform the parents that their refusal to permit such access does not relieve the public agency of its responsibility to provide all required services at no cost to the parents.
4. Use of Part B Funds to Pay for Services. A new 300.142(g) has been added to permit the use of part B funds to ensure FAPE for (A) the costs of required services under these regulations if the parents refuse consent to use public or private insurance, and (B) the costs of using the parents' insurance, such as paying deductible or co-payments amounts.
5. Program Income. (300.142(h)) A new section has been added which specifies that proceeds from public or private insurance may not be treated as program income for purposes of 34 CFR 80.25. The Analysis explains that if a public agency receives funds from public or private insurance for services under part B, the public agency is not required to return those funds to the Department or to dedicate those funds for use in this program, although a public agency retains the option of using those funds in this program. The revised regulation specifies that if a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under part B, those funds will not be considered "State or local" funds for purposes of the maintenance of efforts provisions. This is because the expenditure that is reimbursed is considered to be an expenditure of funds from the source that provides the reimbursement.
Suspension And Expulsion Rates (Section 612(a)(22); 300.146)
The revised regulation generally restates the new statutory responsibility to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities and, review and if appropriate, revise policies to address problems. According to the Analysis, among the policies that a State would review and, if necessary, revise are its CSPD policies and procedures related to ensuring that all personnel who work with children with disabilities (including both professional and paraprofessional personnel who provide special education, general education, related services, or early intervention services) have the skills and knowledge necessary to meet the needs of children with disabilities; and these strategies must include how the State will "...enhance the ability of teachers and others to use strategies, such as behavioral interventions, to address the conduct of children with disabilities that impedes the learning of children with disabilities and others" (300.382(f)).
State Level Maintenance Of Effort (Section 612(a)(19); 300.154)
The revised regulation generally restates the new statutory provision regarding state-level maintenance of effort, under which a state is prohibited from reducing the level of state financial support (either a total or per pupil level) for special education and related services below the level of that support for the preceding fiscal year. With respect to the new waiver authority, the revised regulation also incorporates by reference the new regulatory scheme for securing a waiver under the supplanting provision, described later in the Guide.

Local Educational Agency Eligibility

Eligibility, In General (Section 613(a); 300.180-.182)
The revised regulation generally restates the new statutory scheme for demonstrating eligibility for assistance to the satisfaction of the SEA and procedures for submitting modifications.

Local Maintenance Of Effort (Section 613(a)(2)(A) and (B); 300.231, .232)
The revised regulation generally restates the new statutory provisions regarding local maintenance of effort with several clarifications, including computing the level of effort on a total or per-capita basis and by including local funds only or the combination of State and local funds. In addition, the revised regulation generally restates the new statutory provisions, as clarified by House and Senate Committee reports, regarding new exceptions i.e., (A) voluntary departure, by retirement or otherwise, or departure for just cause of special education or related services personnel who are replaced by qualified, lower-salaried staff; (B) a decrease in the enrollment of children with disabilities; (C) the termination of the obligation of the agency to provide a program of special education to a particular child with a disability that is an exceptionally costly program because the child has left the jurisdiction of the agency, has reached the age at which the obligation of the agency to provide FAPE has terminated, or no longer needs the program of special education; (D) or the termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities. In order for an LEA to invoke the exception relating to voluntary departures, the LEA must ensure that those voluntary retirements or resignations and replacements are in full conformity with existing school board policies in the agency; the applicable collective bargaining agreement in effect at that time; and applicable State statutes.
Treatment Of Federal Funds In Certain Fiscal Years (Section 613(a)(2) (c ); 300.233.)
The revised regulation generally restates the new statutory provision allowing an LEA to treat as local funds up to 20 percent of funds it received under part B in excess of that received for the previous fiscal year when total Federal appropriations for part B exceed $4.1 billion.
The revised regulation also generally restates the new statutory provision specifying that if an SEA determines that an LEA is not meeting the requirements of part B, the SEA may prohibit the LEA from taking advantage of this provision but only if it is authorized to do so by the State constitution or State statute.
Schoolwide Programs (Section 613(a)(2)(D); 300.234)
The revised regulation generally restates the new statutory provision authorizing the use of part B funds to carry out a title I schoolwide program under specified circumstances and specifies the amount of part B funds that may be so used. The regulation has been revised to make clear that an LEA that uses Part B funds in schoolwide program schools must ensure that children with disabilities in those schools receive services in accordance with a properly developed IEP and are afforded all applicable rights and services guaranteed under the IDEA.
Permissive Use Of Part B Funds (Section 613(a)(4); 300.235)
1. Benefits to Non-disabled Children in the Regular Class. The revised regulation generally restates the new statutory provision specifying that part B funds may be used for the costs of special education and related services and supplementary aids and services provided in a regular class or other education-related setting to a child with a disability in accordance with the IEP of the child, even if one or more nondisabled children benefit from these services. According to the Analysis, in such circumstances, no "time and effort" records are required under Federal law.
2. Integrated and Coordinated Services. The revised regulation generally restates the new statutory provision permitting 5 percent of part B funds to be used for integrated and coordinated services.
3. Effect of Using Permissive Use Option. The revised regulation makes it clear that an LEA that takes advantage of the permissive use options does not violate the supplanting, excess costs, and non-commingling provisions.
Charter Schools (Section 613(a)(5), (a)(6), (a)(7), and (f), and (g); 300.241)
The revised regulation generally restates the new statutory provisions regarding equitable treatment of charter schools by LEAs with respect to serving children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools and provides part B funds to those schools in the same manner as it provides those funds to its other schools.
Coordinated Service System (Section 613(f); 300.244)
The revised regulation generally restates the new statutory provision authorizing LEAs to use up to 5% of part B funds for coordinated services. These funds must be used with other funds, including noneducational funds.
School-Based Improvement Plan (Section 613(g)(1) and (2); 300.245)
The revised regulation generally restates the new statutory authority authorizing the use of part B funds to be used to develop, implement, and evaluate a school-based improvement plan.

Services (Free Appropriate Public Education, FAPE)

FAPE, Including Children Suspended And Expelled (Section 612(a)(1); 300.300(a)(1))
The revised regulation restates policy that FAPE includes children who have been suspended or expelled from school (see previous discussion under state eligibility).
Child Find (300.300(a)(2))
The revised regulation has been revised to specify that the State must ensure that the child find requirements are implemented by public agencies throughout the State.
Services And Placements Based On Needs, Not Disability Category (300.300(a)(3))
The revised regulation specifies that the services provided to a disabled child must address all of the child's identified special education and related services needs, and are based on the child's identified needs, and not the child's disability category.
FAPE (Methods And Payments) (300.301)
The revised regulation adds a provision requiring that the State must ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.
Residential Placement (300.302)
The revised regulation includes the longstanding policy that placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child. The Analysis restates the longstanding policy that costs include expenses incurred by parent's travel to and from the program and the costs of telephone calls to the placement.
Assistive Technology (300.308)
The revised regulation specifies that assistive technology devices and services may be considered special education, related services, or supplementary aids and services. In addition, the revised regulation specifies that on a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.
Extended School Year Services (300.309)
The revised regulation generally restates the Department's long-standing policy regarding extended school year services that ESY services must be provided only if a child's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child, and an LEA may not limit ESY services to particular categories of disability, or unilaterally limit the type, amount, or duration of those services.
Adult Correctional Facilities (Section 612(a)(1) and 614(d)(6); 300.311)
1. Exception to the FAPE requirement for certain 18-21 year olds in adult correctional facilities (300.311(a))(See discussion under State eligibility).
2. Inapplicability of General Assessment Requirements (300.311(b)(1)). The revised regulation generally restates the new statutory provision making the general assessment requirements inapplicable to students with disabilities who are convicted as adults under state law and incarcerated in adult prisons.
3. Inapplicability of Transition Planning Provisions (300.311(b)(2). The revised regulation generally restates the new statutory provision making the transition planning provisions inapplicable to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons whose eligibility under part B will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentences and eligibility for early release.
4. Modifications of IEP or Placement (300.311(c ). The revised regulation generally restates the new statutory authority of the IEP team to modify the IEP or placement of a student with a disability who is convicted as an adult under State law and incarcerated in an adult prison if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
Charter Schools (300.312)
A new 300.312 (Children with disabilities in public charter schools) has been added to specify that these children and their parents retain all rights under these regulations, and that compliance with part B is required regardless of whether a public charter school receives Part B funds; and address the responsibilities of the following: public charter schools that are LEAs; LEAs if the charter school is a school in the LEA; and the SEA if the charter school is not an LEA or a school of the LEA.
Children Experiencing Developmental Delay (300.313)
A new 300.313 (Children experiencing developmental delays) has been added. First, the regulation specifies that a State that adopts the term "developmental delay" determines whether it applies to ages 3 through 9, or to a subset of that age (e.g., ages 3 through 5). A State may not require an LEA to adopt and use the term "developmental delay" for any children within its jurisdiction. If an LEA uses the term "developmental delay" the LEA must conform to both the State's definition of that term and to the age range that has been adopted by the State. If the State does not adopt the term "developmental delay," an LEA may not independently use the term as a basis for determining eligibility. Second, the revised regulation permits a State or LEA that elects to use that term to also use one or more of the disability categories described in 300.7 for any child aged 3 through 9 who has been determined to have a disability and who, by reason thereof, needs special education. Third, the revised regulation permits a State to adopt a common definition of developmental delay under Parts B and C of the Act.

Individualized Education Programs (IEPs)

When IEP Must Be In Effect (Section 614(d)(2)(A) and (B); 300.342)
1. IEP In Effect Before Services Provided (300.342(a)). The revised regulation restates the policy in the new statute that an IEP must be "in effect before special education and related services are provided to a child." In answer to Appendix A, question 14, the Department explains that "this requirement does not preclude temporarily placing an eligible child with a disability in a program as part of the evaluation process before the IEP is finalized-to assist the public agency in determining an appropriate placement for the child. The answer also states that it is essential that the temporary placement not become the final placement before the IEP is finalized. To insure that this does not happen, the Department suggests that the state might consider requiring LEAs to, among other things, ensure that the parents agree to the interim placement.
2. Implementation of IEPs (300.342(b)). The revised regulation provides that the child's IEP must be accessible to each of the child's teachers and service providers and that teachers and service providers with responsibility for its implementation be informed of their specific responsibilities under the IEP and of the specific accommodations, modifications, and supports that must be provided for the child under that IEP.
3. Use of IFSPs in Lieu of IEPs for Children Aged 3 through 5 (300.342(c)). A new paragraph is added to the regulation implementing the new statutory provision regarding the use of IFSPs in lieu of IEPs for children aged 3 through 5. The provision also requires that parents be provided with a detailed explanation of the differences between the IFSP and the IEP and, if parents choose an IFSP, the public agency must obtain written informed consent from the parents.
4. Effective Date. The revised regulation states that all IEPs developed, reviewed, or revised on or after July 1, 1998 must meet the requirements in the regulations.
IEP Meetings (Section 614(d)(3); 300.343)
The revised regulation requires that services based on an IEP must be made available within a "reasonable period of time" from a public agency's receipt of parent consent to an initial evaluation. The Analysis accompanying the regulation states that most States are able to meet a timeline of 60 days. "The Department considers this to be reasonable, and will not make a finding of noncompliance when monitoring a State that is meeting the 60 day timeline for most children. It is recognized, however, that it may, for some children, take longer, and for some, it could be done in a shorter period of time."
IEP Team (Section 614(d); 300.344)
1. In General. The revised regulation generally restates the new statutory provision regarding the composition of the IEP team.
2. Inclusion of Regular Education Teacher. The revised regulation restates the new statutory authority providing for the inclusion as part of the IEP team of at least one regular education teacher of the child who is participating in the regular education environment. The Analysis and the IEP Q&A (Appendix A) discusses in greater detail the nature and extent of the obligation, including whether the teacher must be physically present and the extent that he/she must participate in all phases of the IEP process.
3. Discretion of Parents and Public Agency to Bring Other Individuals (300.344(a)(6) and 300.344(c)). The revised regulation restates the statutory provision that the IEP team shall include "at the discretion of the parents or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate." A new paragraph (c) has been added to the regulation to clarify that the knowledge or special expertise of any of these individuals shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP team.
4. Student Participation In Transition Planning. The prior regulation specifies that a student of any age must be invited if a purpose of the meeting will be the consideration of the statement of transition services. The revised regulation expands the student involvement to include a meeting to discuss transition service needs.
Parent Participation (Section 614(d)(1)(B)(I); 300.345)
The revised regulation generally retains current policy regarding parent participation and is revised to reflect notice to students of any age if a purpose of the meeting is to discuss transition needs, and adds that the notice to parents must inform them about the ability of either party to invite individuals with knowledge or special expertise to the meeting. In addition, the regulation is revised to specify that the agency must automatically give the parents a copy of their child's IEP at no cost to the parent.
Development, Review, And Revision Of The IEP (Section 614(d)(3), (4)(B), and (e); 300.346)
1. Consider Strengths of Child and Concerns of Parents (300.34b(a)(1)). The revised regulation generally restates the new statutory provision regarding consideration of the strengths of the child, the concerns of the parent and the results of the initial and most recent evaluations of the child and, as appropriate, the results of the child's performance on any general State or districtwide assessment programs.
2. Special Factors.
  1. Consideration by IEP Team (300.346(a)(2)). The revised regulation generally restates the special factors that the IEP team must consider in five specified cases (i.e., a child whose behavior impedes his or her learning or that of others, a child with limited English proficiency, a child who is blind or visually impaired, a child with communication needs, a child who is deaf or hearing impaired, and whether a child requires assistive technology devices and services.
  2. Review and Revision of IEP (300.346(b)). The revised regulation specifies that these factors must also be considered in conducting a meeting to review and if appropriate, revise a child's IEP.
3. Statement in the IEP (300.346(c)). The revised regulation specifies that if the IEP team determines that a child described above needs a particular device or service in order to receive FAPE, the IEP must include a statement to that effect in the child's IEP.
4. Requirements with Respect to Regular Education Teachers (300.346(d)). The revised regulation generally restates the statutory provision that the regular education teacher of a child with a disability must, to the extent appropriate, participate in the development, review, and revision of the child's IEP, including assisting in the determination of appropriate positive behavioral interventions and strategies for the child; and supplementary aids and services, program modifications or supports for school personnel that will be provided for the child, consistent with 300.347(a)(3). The Analysis explains that while certain supports for school staff may be provided (such as specific training in the effective integration of children with disabilities in regular classes), the ultimate focus of those supports to school personnel is to ensure the provision of FAPE to children with disabilities under Part B, their integration with nondisabled peers and their participation and involvement in the general curriculum, as appropriate.
5. Construction Clause Regarding Placement of Information in an IEP (300.346(e)). The revised regulation restates the statutory construction clause specifying that nothing in this section shall be construed to require the IEP team to include information under one component of a child's IEP that is already contained under another component of the child's IEP.
Contents Of The IEP (Section 614(d)(1)(A) and section 614(d)(6)(A)(ii); 300.347)
1. In General. The revised regulation generally restates the new statutory provisions regarding the content of the IEP, including the focus on the general curriculum (i.e., the same curriculum as for nondisabled children). The Analysis and the IEP Q&A (Appendix A) include lengthy discussions about the focus on the general curriculum.
  The revised regulation also restates the new statutory authority regarding use of benchmarks or short-term objectives. For a discussion of the difference between benchmarks and short term objectives See IEP Q&A (Appendix A).
  In addition, the revised regulation restates the statutory authority regarding the inclusion in the IEP of an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class. The IEP Q&A (Appendix A) at Question 1 explains that "IDEA presumes that the first placement option considered for each disabled student by the student's placement team, which must include the parent, is the school the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement. Thus, before a disabled child can be placed outside of the regular educational environment, the full range of supplementary aids and services that, if provided, would facilitate the student's placement in the regular classroom setting must be considered." The Q&A also explains that "in all cases, placement decisions must be individually determined on the basis of each child's abilities and needs, and not solely on factors such as category of disability, significance of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience. Rather, each student's IEP forms the basis for the placement decision. Further, a student need not fail in the regular classroom before another placement can be considered."
  Further, the revised regulation restates the new statutory provision regarding extracurricular and nonacademic activities; modifications in state or district-wide assessments; the anticipated frequency, duration, and location of services; and how progress will be measured and the parents regularly informed.
2. Transition Needs and Services. The revised regulation generally restates the new statutory provisions regarding transition needs and services but deletes the requirement under prior regulation that if the IEP team determines that a student does not need transition services in all areas in the definition of "transition services," the IEP must include a statement to that effect and the basis upon which the determination was made.
3. Transfer of Rights. The revised regulation generally restates the new statutory provision authorizing (not requiring) states to provide for the transfer of rights to student reaching the age of majority. See further discussion under the procedural safeguards description (300.517).
4. Students with Disabilities Convicted as Adults and Incarcerated in Adult Prisons. The revised regulation incorporates by reference the new statutory provisions set out in 300.311 (FAPE requirements for students with disabilities in adult prisons).
Agency Responsibility For Transition Services (Section 614(d)(5); 614(d)(1)(A)(iii); 300.348)
The revised regulation restates longstanding policy contained in regulations.
Private School Placements By Public Agencies (Section 612(A)(10)(B); 300.349) And IEPs For Parentally Placed Children In Private Schools
The revised regulation restates longstanding policy contained in the prior regulation. The provision on IEPs for parentally-placed children in private schools in the prior regulation has been deleted. The revised regulation uses the term "services plan" in lieu of "IEP" for these children; and the provisions related to services plans are included under the private schools requirements that follow.
IEP Accountability (Section 614(d); 300.350)
The revised regulation provides that (1) each public agency must make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the IEP; (2) a State or public agency is not prohibited from establishing its own accountability systems regarding teacher, school, or agency performance; and (3) "nothing in this section limits a parent's right to ask for revisions of the child's IEP or to invoke due process procedures if the parent feels that the good faith efforts are not being made.

State Administration (Section 611(f)(3); 300.370)

Authorized Uses
The revised regulation generally restates the statutory provision requiring
authorized uses by the SEA of part B funds for state administration, including the addition of uses such as mediation, assisting LEAs in meeting personnel shortages, carrying out activities related to performance goals, and support implementation of the School Improvement Plan, and coordinated services (1 percent), and capacity-building and systemic improvement subgrants to LEAs of the funds the SEA retains, the SEA may use the funds directly, or distribute them to LEAs on a competitive, targeted, or formula basis.
Matching
The revised regulation deletes the matching requirement consistent with the new statutory framework.

Comprehensive System Of Personnel Development (Section 612(a)(14); Section 653 (c) (3) (D); 300.380-.382)

Inclusion Of General Education Personnel
The revised regulation generally restates the new statutory provision including the provision specifying that general education personnel must be included in CSPD.
Promising Practices
The revised regulation restates policy in current law and new statutory framework regarding promising practices, materials, and technologies.
Joint Training Of Parents And Personnel
The revised regulation restates the new statutory provision specifying that the state will provide for the joint training of parents and special education, related services, and general education personnel.

Children With Disabilities In Private Schools Placed Or Referred By Public Agencies (Section 612(a)(10)(B); 300.400-.402)
These sections of the revised regulation restate longstanding policy set out in regulations but adds the clarification that a child with a disability placed by a public agency as the means of providing FAPE to the child must receive an education that meets the standards that apply to the SEA and LEA.

Placement By Parents If FAPE At Issue (Section 612(a)(10)( C); 300.403)

Authority Of Parents To Seek Reimbursement
The revised regulation clarifies that (1) the provisions of 300.450-300.462 (Children with Disabilities Enrolled by Their Parents in Private Schools) apply to children with disabilities placed voluntarily in private schools, even though the public agency made FAPE available to those children; (2) private school placement by the parents must be appropriate (as determined by a court or hearing officer) in order to be eligible for reimbursement; (3) a parental placement does not need to meet State standards that apply to education provided by the SEA and LEAs in order to be appropriate; and (4) the reimbursement provisions also apply if parents of a child with a disability who previously received special education and related services under the authority of a public agency enroll the child in a private preschool program.
Limitations On Reimbursement
The revised regulation generally restates the new statutory authority to reduce or deny reimbursement under specified circumstances i.e., if at the most recent IEP meeting prior to removal, the parents did not inform the IEP team that they were rejecting the placement proposed by the public agency, including stating their concerns and their intent to enroll their child in a private school at public expense; at least 10 business days (including any holidays that occur on a business day) prior to the removal, the parents did not give written notice to the public agency; or if prior to removal the public agency duly notified the parents of their intention to evaluate the child but the parents did not make the child available for the evaluation; or upon a judicial finding of unreasonableness with respect to actions by the parents.
Exceptions
The revised regulation generally restates the new statutory provisions specifying exceptions to the notice requirement and authority to limit reimbursement if specified factors are present i.e., the parent is illiterate and cannot write in English, compliance would likely result in physical or serious emotional harm to the child, the school prevented the parent from providing the notice or the parents had not received notice of the requirement that they must provide notice prior to placement in a private school.

Children With Disabilities Enrolled By Parents In Private Schools

Child Find. (Section 612(a)(10)(A)(ii); 300.451)
The revised regulation specifies that child find activities for those children must be comparable to child find activities for children with disabilities in public schools, and LEAs must consult with representatives of parentally-placed private school students with disabilities on how to conduct child find activities for that population in a manner that is comparable to those activities for public school children.
Provision Of Services - Basic Requirement (Section 612(a)(10)(A)( i ); 300.452
The revised regulation adds a new provision related to the SEA's responsibility for ensuring that a "services plan" is developed for each private school child with a disability who has been designated to receive services under these regulations.
Proportionality (Section 612(a)(10)(A); 300.453)
The revised regulation generally restates the new statutory authority (restating long-standing Department regulations and interpretations) that private school children are entitled to a proportionate amount of part B funds. In addition, the revised regulation specifies that (1) each LEA must consult with representatives of private school children with disabilities to decide how to conduct the annual count of the number of those children; (2) the LEA must ensure that the count is conducted by specified dates, and that the data are used to determine the amount of Part B funds to be earmarked for private school children in the next fiscal year; (3) the costs of child find activities for private school children with disabilities may not be considered in determining whether the LEA met the expenditures requirement of this section; and (4) SEAs and LEAs are not prohibited from providing services to private school children with disabilities beyond those required by this part, consistent with State law or local policy.
No Individual Right To Special Education And Related Services (Section 612(a)(10)(A); 300.454)
The revised regulation generally reflects long-standing Department policy that no private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school. The revised regulation also requires consultation and genuine opportunity for representatives of private school children to be consulted. Specifically, the revised regulation specifies that each LEA must (1) consult with appropriate representatives of private school children on which children will receive services, what services will be provided, where and how the services will be provided, and how the services provided will be evaluated; (2) conduct meetings to develop, review, and revise a "services plan," in accordance with 300.455, for each private school child with a disability who has been designated to receive services under this part; and (3) ensure that a representative of the private school participates in the meetings.
Services Provided (Section 612(a)(10)(A); 300.455)
The revised regulation specifies that (1) each private school child with a disability who has been designated to receive Part B services must have a services plan, and (2) the plan must, to the extent appropriate, meet the requirements of 300.347 with respect to the services provided, and be developed, reviewed and revised consistent with 300.342-300.346.
Location Of Services (Section 612(a)(10)(A); 300.456)
The revised regulation makes clear that, while transportation might be provided between a child's home or private school and a service site if necessary for the child to benefit from or participate in the services offered. LEAs are not required to provide transportation between the child's home and private school.
Complaints, Inapplicability Of Due Process Hearings (Section 612(a)(10)(A); 300.457)
The revised regulation specifies that with one exception, the due process procedures do not apply to complaints that an LEA has failed to meet the requirements described above; rather, the state complaint resolution procedures apply to these types of complaints. The one exception is that the due process procedures apply to child find activities for private school children with disabilities, including evaluations.

Due Process Procedures For Parents And Children

General Responsibility Of SEAs (Section 615(a); 300.500)
The definition of consent has been revised to clarify that a revocation of consent does not have a retroactive effect if the action consented to has already occurred.
Inspect And Review Educational Records, Parent Participation In Meetings (Section 615(b)(1); 300.501(a))
1. Opportunity to Inspect and Review Applies to Placements. The revised regulation includes the longstanding policy that the opportunity to review and inspect educational records extends to placement of the child.
2. Notice of Meetings. The revised regulation specifies that the opportunity to participate in meetings includes giving notice of the meeting to the parents.
3. "Meeting" Explained. The revised regulation explains what is not a meeting e.g., informal or unscheduled conversations involving agency personnel and conversations on issues such as teaching methodology, lesson plans or coordination of services provisions not addressed in the IEP. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a larger meeting.
4. Parents' Involvement in Placement Decisions (614(f); 300.300.501( c)). The revised regulation generally restates the new statutory provision specifying that parents are members of any group that makes decisions on the educational placement of their child, and that the public agency must make reasonable efforts to ensure that the parents understand and are able to participate in group discussions related to the educational placement of their child.
Independent Evaluations (Section 615(b)(1); 300.502)
1. Public Agency Response to Parental Request. A parent has a right to an independent evaluation at public expense if the parent disagrees with an evaluation obtained by a public agency. The revised regulation specifies that if a parent requests an independent evaluation, the agency must either insure that it is provided at public expense or initiate a due process hearing. Upon request for independent evaluation, parents must be given information about agency criteria applicable to independent education evaluations.
2. Agency Conditions or Timelines. The revised regulation specifies that other than a public agency's criteria for an agency-initiated evaluation that apply to independent evaluations, the public agency may not impose conditions or timelines on a parent's right to obtain an independent evaluation. However, the agency's criteria may not interfere with a parent's right to an independent educational evaluation. If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
Prior Notice By The Public Agency, Content Of Notice (Section 615(c); 300.503)
The revised regulation specifies when a prior written notice must be provided (e.g., when the public agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE). The revised regulation also specifies the content of the notice e.g., actions proposed or refused, explanation of why, a description of any other options the agency considered and the reasons why those options were rejected, description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; a description of any other factors that are relevant to the agency's proposal or refusal; a statement that the parents of a child with a disability have protection under procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and sources for parents to contact to obtain assistance in understanding the provisions of this part. The notice must be in understandable language.
Procedural Safeguards Notice (Section 615(d); 300.504)
The revised regulation specifies when a procedural safeguards notice must be given to the parents (i.e., upon initial referral for evaluation; upon each notification of an IEP meeting; upon reevaluation of the child; and upon receipt of a request for due process under 300.507). The revised regulation also specifies the content of the notice including a full explanation of the procedural safeguards available and the State complaint procedures.
Parental Consent (Section 614(a)(1)(c) and (c)(3); 300.505)
The revised regulation now specifies that "informed" consent must be obtained before conducting an initial evaluation or reevaluation and the initial provision of services to a child with a disability. The revised regulation now specifies that parental consent is not required before reviewing existing evaluation data as a part of an evaluation or reevaluation or for administering a test used with all children unless consent is required of all parents; and specifies that a public agency may not use a parental refusal to consent to one service or benefit to deny the parent or child another service or benefit. In addition, schools would not be required by these regulations to obtain parental consent for teacher and related service provider observations, ongoing classroom evaluation, or the administration of or review of the results of adapted or modified assessments that are administered to all children in a class, grade, or school.
Mediation (Section 615(e); 300.506)
1. In General. The revised regulation generally reflects the new statutory provisions regarding mediation, including the voluntary nature of mediation; mediation may not be used to deny or delay a parent's right to a due process hearing; mediation must be conducted by an impartial mediator trained in effective mediation techniques; the State must pay the costs of the mediation; mediation sessions must be scheduled in a timely manner and held in convenient locations; the mediation agreement must be in writing; and the mediation process must be confidential (confidentiality pledge) and may not be used as evidence in any subsequent due process hearings or civil proceedings.
2. Impartiality and Selection of the Mediator. The revised regulation clarifies the criteria for determining whether a mediator is impartial and specifies that a mediator must be selected from a list of mediators on a random basis (e.g., a rotation), or that both parties are involved in selecting the mediator and agree with the selection of the individual who will mediate.
3. Meeting to Encourage Mediation. The revised regulation generally reflects the new statutory provision authorizing a public agency to establish procedures to require parents who elect not to use mediation to meet at a time and location convenient to the parents with a disinterested party e.g., someone from the parent training and information center to explain the benefits of mediation. The revised regulation also specifies that a public agency may not deny or delay a parent's right to a due process hearing if the parent fails to participate in the meeting.
4. Confidentiality. The revised regulation restates the statutory provision that discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process. The Analysis, citing to the House Report, explains the relationship between this provision and rights under the Family Education Rights and Privacy Act. The House Report also describes an example of a confidentiality pledge.
Initiating A Due Process Hearing By A Parent Or Public Agency (Section 615(b)(6); 300.507(a))
1. Notice. The revised regulation restates longstanding policy that a parent or a public agency may initiate a hearing. The public agency must inform parents of the availability of mediation whenever a request for due process in made.
2. Due Process Hearing Officer Determination of Whether Issue is New. The Analysis clarifies that a public agency may not deny a parent's request for due process, even if it believes the issues raised are not new-the determination of whether an issue is new must be made by the hearing officer.
Parent Notice In A Request For Due Process And Model Form (Section 615(b)(7) and (8); 300.507 (c))
1. Obligation In General. The revised regulation generally restates the new statutory provision regarding the requirement that the parent of the disabled child or the attorney representing the child must provide notice to the public agency in a request for a due process hearing. Consistent with the new statutory provision, the revised regulation specifies that the notice must include: the name of the child; the address of the residence of the child; the name of the school the child is attending; and a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parents at the time.
2. Model Form. The revised regulation generally reflects the new statutory requirement that the SEA develop a model form to assist parents in meeting the notice requirement.
3. Right to Due Process Hearing. The revised regulation specifies that a public agency may not deny or delay a parent's right to a due process hearing for failure to provide the notice.
Hearing Rights (Section 615(f)(2) and (h); 300.509)
1. Parents Right to Choose Form of Record. The revised regulation generally restates the new statutory provision providing parents with the right to choose either a written or electronic version of the record of the hearing and findings of fact and the decision.
2. Disclosure of Evaluations Prior to Hearing. The revised regulation generally restates the new statutory provision specifying that at least five business days prior to a due process hearing all parties must disclose evaluations completed by that date and recommendations based on the evaluations. The revised regulation also states that any party has the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least 5 business days before the hearing. The revised regulation also restates the authority of the hearing officer to bar introduction of such materials if a party fails to meet the timelines.
Civil Actions. (Section 615 i (2), i(3)(A), 615(l); 300.512)
1. Duties of the Court. The revised regulation generally restates the provisions in the statute regarding the duties of the court in reviewing due process hearings.
2. Relationship to Section 504 and the ADA. The revised regulation restates the statutory provision regarding the relationship between IDEA and section 504 and the ADA.
Attorneys Fees (Section 615( i) (3)(B); 300.513)
1. General. The revised regulation includes all of the provisions in the statute.
2. Use of Part B Funds to Pay for Attorneys. The revised regulation specifies that part B funds may not be used to pay attorneys fees or costs of a party related to an action or proceeding.
3. Hearing Officer Authority to Award Fees. The Analysis accompanying the revised regulation provides that States may enact laws that permit hearing officers to award attorneys fees to prevailing parents. Such laws are neither authorized nor prohibited by IDEA.
Pendency, Stay Put (Section 615(j); 300.514)
1. Exceptions To Stay Put. The revised regulation generally restates the two limited statutory exceptions to stay put provision--authority of school personnel to change placement of a child who brings a weapon or illegal drugs to school or a school function and the authority of a hearing officer to change a child's placement on a finding that maintaining a child in his or her current placement is substantially likely to result in injury to the child or to others.
2. Agreement Between the State Educational Agency and the Parents. The revised regulation specifies that if the decision of a hearing officer in a due process hearing conducted by the SEA or a review official in an administrative appeal agrees with the child's parents that a change in placement is appropriate, that placement must be treated as an agreement between the state or local agency and the parents for purposes of the stay put provision.
Transfer Of Parental Rights At Age Of Majority(Section 615(m); 300.517)
The revised regulation generally restates the new statutory provision authorizing (but not requiring) states to provide for the transfer of parental rights at the age of majority and the issuance of a special rule for appointing specified individuals when it is determined that the child does not have the ability to provide informed consent.

Discipline Procedures

Change In Placement (300.519)
The revised regulation includes a definition of "change in placement' for disciplinary removals. For purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if - the removal is for more than 10 consecutive school days; or the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.
Authority of School Personnel
1. 10 School Days (Section 615(k)(1); 300.520(a)(1)). The revised regulation and the Analysis clarify that to the extent removal would be applied to children without disabilities, school personnel may remove a child with a disability for not more than ten consecutive school days and for additional removals of not more than ten consecutive school days in that same school year for separate acts of misconduct, as long as the additional removals do not constitute a change in placement i.e., a pattern.
  Services need not be provided under IDEA to a child with a disability during the first ten school days in a school year that a child is removed for violations of school conduct rules when necessary and appropriate to the circumstances and if services are not provided to a child without disabilities.
  After a child has been removed from his or her current placement for more than ten school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under 300.121(d) (FAPE for children suspended and expelled). These requirements are described previously in the Guide.
2. Misconduct Relating to Weapons and Drugs (Section 615(k)(1) and (10); 300.520(a)(2)). School personnel may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline but for not more than 45 days if the child carries or possesses (Analysis) a weapon to school or to a school function or the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function.
3. Functional Behavioral Assessment and Behavioral Intervention Plans (Section 615(k)(1); 300.520(b)). Either before or not later than 10 business days after either first removing a child for more than 10 school days in a school year or commencing a removal that constitutes a change in placement (including removals for weapons and drug misconduct), the public agency must convene an IEP meeting to develop a functional behavioral assessment plan (if the LEA did not already conduct a functional assessment and had not implemented a behavioral intervention plan).
  As soon as practicable after developing the functional behavioral assessment plan, and completing the assessments required by the plan, the LEA must convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and must implement those interventions.
  If the child already has a behavioral intervention plan, the IEP team must meet to review the plan and its implementation and, modify the plan and its implementation as necessary, to address the behavior.
  If subsequently, a child who has a behavioral intervention plan and who has been removed from his or her current educational placement for more than 10 school days in a school year is subjected to removal that does not constitute a change of placement, the IEP members shall individually review the behavioral intervention plan and its implementation and if one or more of the team members believe that modifications are needed, the IEP team shall meet to modify the plan and its implementation.
Authority of the Hearing Officer (Section 615(k)(2); 300.521).
The revised regulation generally reflects the new statutory authority of hearing officers to remove disabled children from their current educational placement under specified circumstances.
Specifically, the revised regulation provides that a hearing officer may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing:
- determines that the public agency has demonstrated by substantial evidence (beyond a preponderance of evidence) that maintaining the current placement of the child is substantially likely to result in injury to the child or to others;
- considers the appropriateness of the child's current placement (placement prior to removal);
- considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services, and
- determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the child's special education teacher meets specified requirements (described in C. 2 below).
Determination of Setting (Section 615(k)(3); 300.522)
1. In General. The interim alternative educational setting to which school personnel may place a child with a disability for misconduct concerning weapons and illegal drugs must be determined by the IEP team.
2. Additional requirements. The revised regulation generally reflects the statutory standards regarding the interim alternative educational setting. Specifically, the regulation provides that the interim alternative educational setting must:
  - be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP, and
  - include services and modifications to address the behavior relating to weapons and drugs, injury to child or others, that are designed to prevent the behavior from recurring.
Manifestation Determination (Section 615(k)(4); 300.523
1. In General. School officials must conduct a manifestation determination review whenever they contemplate:
  - removing a child for behavior relating to weapons or the illegal use of drugs
  - seeking an order from a hearing officer to place a child in an interim alternative educational setting because of behavior that is substantially likely to result in injury to self or others or
  - removing a child when such removal constitutes a change in placement for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children.
  Not later than the date on which the school officials decide to change a child's placement for any of the reasons described above, the parents must be notified of that decision and provided the procedural safeguards notice.
  The manifestation determination review must be conducted immediately if possible, but in no case later than 10 school days after the date on which the decision to take that action is made.
2. Conduct of the Review. The revised regulation generally provides that an IEP team and other qualified personnel may determine that the behavior was not a manifestation of the child's disability only if the IEP team and other qualified personnel:
  - first consider, in terms of the behavior subject to disciplinary action, all relevant information, including evaluation and diagnostic results (including the results of other relevant information supplied by parents of the child), observations of the child, and the child's IEP and placement and
  - then determine that in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement AND the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action AND the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action.
3. Decision. If the IEP team and other qualified personnel determine that any of the standards described above (conduct of review) were not met, the behavior must be considered a manifestation of the child's disability.
4. Immediate Steps To Remedy Deficiencies. The LEA must take immediate steps to remedy any deficiencies found in the child's IEP or placement, or in their implementation.
5. Meeting to Determine Manifestation. The revised regulation specifies that the LEA can make the manifestation determination in the same meeting that it conducts a functional behavioral assessment and implements a behavioral intervention plan (300.523(f)).
Determination that Behavior not a Manifestation
1. Use of Disciplinary Procedures Applicable to Nondisabled Children. The revised regulation generally restates the new statutory provision allowing the use of disciplinary procedures applicable to nondisabled students when it is determined that the behavior was not a manifestation of the child's disability. The regulation also refers to section 612(a)(1) which specifies that the obligation to provide FAPE applies to individuals with disabilities who have been suspended or expelled (300. 524(a))
2. Transfer of Records (300.524(b)). The revised regulation generally restates the new statutory provision that if the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.
3. Stay Put, Pendency (300.524(c)). The revised regulation specifies that the stay put provision is applicable to challenges regarding manifestation determinations.
4. Reference to Section 504. The Analysis states: "Under section 504 of the Rehabilitation Act of 1973, if the behavior is a manifestation of a child's disability, the child cannot be removed from his or her current educational placement if that removal constitutes a change of placement (other than an 45 day placement under 300.520(a)(2), 300.521, and 300.526(c)), unless the public agency and the parents otherwise agree to a change of placement. If the behavior is related to the child's disability, proper development of the child's IEP should include development of strategies, including positive behavioral interventions, strategies and supports address that behavior, consistent with 300.346(a)(2)( i ) and (c). If the behavior is determined to be a manifestation of a child's disability but has not previously been addressed in the child's IEP, then the IEP team must meet to review and revise the child's IEP so that the child will receive services appropriate to his or her needs. Implementation of the behavioral strategies identified in a child's IEP, including strategies designed to correct behavior by imposing consequences, is appropriate under the IDEA and section 504, even if the behavior is a manifestation of the child's disability. However, if a child's IEP includes behavioral strategies to address a particular behavior of the child, the appropriate response to that behavior almost always would be to use the behavioral strategies specified in the IEP rather than to implement a disciplinary suspension. A change in placement that is appropriate and consistent with the child's needs may be implemented subject to the procedural safeguards regarding prior notice (300.503), mediation (300.506), due process (300.507-300.513) and pendency (300.514)."
Parent Appeal. (Section 615(k)(6); 300.525)
The revised regulation generally reflects the new statutory provision regarding parental appeals.
Placement Pending Appeals (Section 615(k)(7); 300.526).
The revised regulation generally reflects the new statutory provision regarding placement pending appeals, including placements when it is determined that it is still dangerous to place the child in his or her regular placement. The revised regulation (300.526(c)(4)) makes clear that school officials can use this procedure to extend interim alternative educational placements repeatedly, as necessary. According to the Analysis, there is no statutory limit on the number of times this procedure may be invoked in any individual case, and none is added to the regulation. If, after 45-day extension of an interim placement under paragraph (c) of this section, an LEA maintains that the child is still dangerous and the issue has not been resolved through due process, the LEA may seek subsequent expedited due process hearings under paragraph (c)(1) of this section.
Protections for Children not Yet Eligible for Special Education and Related Services (Section 615(k)(8); 300.527).
The revised regulation generally reflects the new statutory provision regarding the extent to which a child may assert the protections under part B when the child is not yet determined eligible for special education and related services. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in 300.520 or 300.521, may assert any of the protections provided for in this part if the LEA had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. If the LEA did not have such knowledge, the LEA can take the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behavior, including suspension or expulsion without educational services.
Expedited Due Process Proceedings (Section 615(k)(2),(6) and (7); 300.528)
1. Timing for the Decision. The revised regulation specifies that the decision in an expedited due process hearing must be handed down in accordance with a timeline established by the State that results in a written decision being mailed within 45 days of the public agency's receipt of the request for a hearing, without exceptions or extensions.
2. Standards. The revised regulation specifies that the due process hearing generally must meet requirements for due process hearings except the State may establish different procedural rules than it has created for other due process hearings.
3. Hearing Officer. The revised regulation specifies that the hearing must be conducted by a hearing officer who satisfies standards of impartiality and competence applicable to hearing officers in general.
4. State Authority to Establish Different Procedures. The revised regulation specifies that the State may establish different procedural rules for expedited hearings than it has established for due process hearings.
5. Appealability. The revised regulation specifies that decisions of expedited due process hearings are appealable under a State's normal due process appeal process.
Referral to and Action by Law Enforcement and Judicial Authorities (Section 615(k)(9); 300.529)
The revised regulation restates the new statutory provisions regarding referral to and action by law enforcement and judicial authorities and transmittal or records.
Specifically, the revised regulation states that "nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability."
Specifically, the revised regulation also states that an agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime. An agency reporting a crime may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by FERPA.

Procedures for Evaluation and Determinatian of Eligibility (Section 614(a)-(c ); 300,530-543).

Initial Evaluation (300.531)
The revised regulation specifies that each public agency shall conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability.
Evaluation Procedures (300.532)
The revised regulation generally restates longstanding policy set out in the prior regulation concerning the selection and administration of tests and other evaluation materials. Specific revisions follow:
- require that assessments of children with limited English proficiency must be selected and administered to ensure that they measure the extent to which a child has a disability and needs special education, and do not, instead, measure the child's English language skills (300.532(a)(2);
- provide that the information gathered includes information related to enabling the child to be involved and progress in the general curriculum or appropriate activities if the child is a preschool child (300.532(b));
- provide that if an assessment is not conducted under standard conditions, information about the extent to which the assessment varied from standard conditions, such as the qualifications of the person administering the test or the method of test administration, must be included in the evaluation report (300.532(c)(2)); and
- provide that each public agency ensure that the evaluation of each child with a disability under 300.531-300.536 is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.
Determination of Needed Evaluation Data (300.533)
The revised regulation generally reflects the 1997 amendments to the statute concerning review (by a group that includes the IEP team members) of existing data (including evaluations provided by parents of the child, current classroom-based assessments and observations and observations by teachers and related services providers) and on the basis of that review and input from the child's parents, identify what additional data, if any, are needed. The group may conduct its review without a meeting.
The public agency must administer needed tests and other evaluation materials to produce necessary data. If the public agency determines that no additional data are needed, it must notify the child's parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine whether, for purposes of services under part B of IDEA, the child continues to be a child with a disability.
Determination of Eligibility (300. 534)
Upon completing the administration of tests and other evaluation materials, a group of qualified professionals and the parent of the child must determine whether the child is a child with a disability.
The public agency must provide a copy of the evaluation report and the documentation of the determination of eligibility to the parent.
A child may not be determined eligible if the determinant factor for that eligibility determination is-
- Lack of instruction in reading or math; or
- Limited English proficiency; and
- The child does not otherwise meet the eligibility criteria.
The public agency must evaluate a child with a disability before determining that the child is no longer a child with a disability. This evaluation is not required before the termination of a student's eligibility due to graduation with a regular high school diploma, or exceeding the age eligibility for FAPE under state law.
Procedures for Determining Eligibility and Placement (300.535).
In interpreting evaluation data for the purpose of determining eligibility and educational needs, the public agency must draw upon information from a variety of sources, including among others, parent input.
Reevaluation (300.536)
Each public agency must ensure that the IEP of each disabled child is reviewed and that a reevaluation of each child is conducted if conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every three years.

Least Restrictive Environment (Section 612(a)(5); 300.550-.551)
The revised regulation generally restates prior regulations. The regulation includes a new provision specifying that a child with a disability cannot be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. The Analysis explains that under this provision, for example, a child with significant cognitive disabilities could not be removed from education in age-appropriate regular classrooms merely because of the modifications he or she needs to the general curriculum. This provision should not be read to require the placement of a child with a disability in a particular regular classroom or course if more than one regular age-appropriate classroom or course is available in a particular grade or subject.

Placements (Section 612(a)(5); 300.552)

Parent Participation in Placement Decisions
The revised regulation generally restates prior regulations and reflects the changes made in the new statute, including the provision specifying that the parents must be included in the group making the placement decision (300.552(a)).
IEP Team and Placements
The revised regulation also makes it clear that the IEP team may also serve as the group making the placement decision.

Transmission of Disciplinary Information (Section 613(j); 300.576)
The revised regulation generally restates the new statutory provision regarding disciplinary information, including authorizing states to require LEAs to include in the records of the child with a disability a statement of any current or previous disciplinary action taken against the child and transmit the statement to the same extent that the disciplinary information is included in and transmitted with the student records of nondisabled students.

Enforcement by the Department of Education

In General (300.587(a))
The revised regulation restates policy in prior regulations
Types of Actions (300.587(b))
The revised regulation generally restates the options available to the Secretary set out in the new statute, including the option to withhold in whole or in part, refer the matter to the Department of Justice, or take any other enforcement action authorized by law. The Analysis describes the "other enforcement actions authorized by law" as including issuance of a complaint to compel compliance through a cease and desist order under 20 U.S.C. 1234e and entering into a compliance agreement to bring a recipient into compliance under 20 U.S.C. 1234f.
Withholding (Section 300.587(c))
The revised regulation generally restates the provisions in prior regulations and the statute. The regulation also directs any SEA, LEA, or other State agency that has received a withholding notice to take such measures (by means of public notice) as may be necessary to bring the pendency of an action to the attention of the public within the jurisdiction of that agency.
Referral to Justice; Opportunity to Meet (Section 300.587(d))
The revised regulation permits a public agency to meet with the Assistant Secretary for the Office of Special Education and Rehabilitative Services before the Department makes a referral to Justice in order to demonstrate why the Department should not make the referral.
Divided State Agency Responsibility (300.587(e))
If responsibility for ensuring compliance with part B for students with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency, other than the SEA, and, if the Secretary finds that the other agency is in noncompliance, the Secretary takes one of the enforcement actions described above except that if the Secretary chooses the withholding option, any reduction or withholding must be proportionate i.e., if 1% of the disabled children are incarcerated in adult prisons and authority has been assigned to the Department of Corrections, only 1% of the part B funds may be withheld.

Waiver of Supplanting and Maintenance of Effort (section 612(a)(18)(c); Section 612(a)(19)(A); 300.589)
Pursuant to a directive in the new statute, the revised regulation establishes procedures and objective criteria for determining whether and under what circumstances an SEA is eligible for a waiver (in whole or in part) from the supplanting and maintenance of effort provisions, including consideration of compliance reviews conducted by the Department of Education, consultation with interested organizations in the State, and public hearings.

State Administration (Section 611(f)(2), 611(f)(4); 300.602; 300.620-624)

Caps on Funds Retained for Administration and Other State-Level Activities (300.602)
The revised regulation generally reflects new statutory caps on the amount of funds states may retain.
Use of Funds for State Administration (300.620) and Allowable Costs (300.621)
The revised regulation generally restates the policy in the prior regulation, as modified by the 1997 Amendments.
Subgrants to LEAS for Capacity-Building and Improvement (300.622)
The revised regulation generally reflects the new statutory authority by describing authorized uses for these subgrants.
Amounts Required for Subgrants (300.623)
State Discretion in Awarding Subgrants (300.624).
The regulation specifies that the SEA may establish priorities in awarding subgrants to LEAs competitively or on a targeted basis.

State Advisory Panel (Section 612(a)(21); 300.650-.653)

Scope of Advice (300.650)
The Analysis clarifies that advice provided by the Council includes situations where the State has divided responsibility for eligible children with disabilities who have been convicted as adults and are incarcerated in adult prisons.
Membership (Section 300.651)
The revised regulation generally reflects the new statutory provision regarding membership, including the new requirement that a majority of Council members be persons with disabilities or parents of children with disabilities.

State Complaint Procedures (20 U.S.C. 2831(a); 300.660-.662)

Dissimination About Complaint Procedures (300.660(a))
The revised regulation modifies the policy in prior regulations to require that States widely disseminate to parents and others information about the State's complaint procedures.
Remedies for Denial of Appropriate Services (300.660(b))
The revised regulation clarifies that if an SEA, in resolving a complaint, finds a failure to provide appropriate services to a child with a disability, the SEA must address (1) how to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child; and (2) appropriate future provision of services for all children with disabilities.
SECRETARIAL REVIEW
The revised regulation deletes the procedure for Secretarial review.
Relationship Between Complaint Procedures and Due Process (300.661(c))
The revised regulation clarifies that (1) if an issue in a complaint is the subject of a due process hearing, that issue (but not any issue outside of the hearing) would be set aside until the conclusion of the hearing, (2) the decision on an issue in a due process hearing would be binding in a State compliant resolution, and (3) a public agency's failure to implement a due process decision would have to be resolved by the SEA.
Timing for the Filing of a Complaint (300.662(c))
The revised regulation specifies that a complaint must be received within one year of the alleged violation unless a longer period is reasonable because the violation is continuing or compensatory services are requested for a violation that occurred not more than 3 years prior to the date the complaint is received by the SEA.

Reports (Section 611 (d) (2), 618(c); 300.750-756).
The revised regulation generally reflects the new statutory provision regarding reporting, including the provision requiring the collection and examination of data to determine if significant disproportionality based on race is occurring and requiring review and revision of policies, where necessary.

A User's Guide To The 1999 IDEA Regulations

A User's Guide To The 1999 IDEA Regulations

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