1. 1. Monday, August 14, 2006 Part II Department of Education 34 CFR Parts 300 and 301 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities; Final Rulesroberts on PROD1PC70 with RULES VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM14AUR2.SGM 14AUR2
2. 2. 46540 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and RegulationsDEPARTMENT OF EDUCATION Special Education Personnel(2) A new 300.18(e), regardingDevelopment to Improve Services and separate high objective uniform State34 CFR Parts 300 and 301Results for Children with Disabilities. Instandards of evaluation (HOUSSE), hasRIN 1820AB57 the preamble to the NPRM, the been added to provide that a State maySecretary discussed, on pages 35783 develop a separate HOUSSE for specialAssistance to States for the Educationthrough 35819, the changes proposed toeducation teachers, provided that anyof Children With Disabilities and the regulations for these programs; adaptations of the States HOUSSEPreschool Grants for Children Withspecifically, the amendments to 34 CFRwould not establish a lower standard forDisabilitiespart 300, the removal of 34 CFR part 301the content knowledge requirements forand relocation of those provisions to special education teachers and meets allAGENCY:Office of Special Education andsubpart H of 34 CFR part 300, and the the requirements for a HOUSSE forRehabilitative Services, Department ofamendments to 34 CFR part 304.regular education teachers. ThisEducation.Final regulations for 34 CFR Part provision also clarifies that a State mayACTION: Final regulations.304Special Education-Personnel develop a separate HOUSSE for specialDevelopment to Improve Services and education teachers, which may includeSUMMARY: The Secretary issues final Results for Children with Disabilitiessingle HOUSSE evaluations that coverregulations governing the Assistance to were published in the Federal Registermultiple subjects.States for Education of Children with (71 FR 32396) on June 5, 2006, and (3) Section 300.18(g) (proposedDisabilities Program and the Preschoolbecame effective July 5, 2006. 300.18(f)) (Applicability of definitionGrants for Children with Disabilities to ESEA requirements; and clarificationProgram. These regulations are needed Major Changes in the Regulationsof new special education teacher) hasto implement changes made to theThe following is a summary of the been revised as follows: (1) The headingIndividuals with Disabilities Education major substantive changes in these finalhas been revised, and (2) the languageAct, as amended by the Individuals with regulations from the regulationschanged to clarify when a specialDisabilities Education Improvement Actproposed in the NPRM (the rationale for education teacher is considered newof 2004 (Act or IDEA).each of these changes is discussed in the for some purposes.DATES: These regulations take effect on Analysis of Comments and Changes (4) Section 300.18(h) (proposedOctober 13, 2006. section of this preamble): 300.18(g)) has been modified to clarifyFOR FURTHER INFORMATION CONTACT:Subpart AGeneral that the highly qualified specialAlexa Posny, U.S. Department of education teacher requirements also doDefinitions not apply to private school teachersEducation, Potomac Center Plaza, 55012th Street, SW., Washington, DC The definition of child with a hired or contracted by LEAs to provide202022641. Telephone: (202) 245 disability in 300.8 has been revised as equitable services to parentally-placed7459, ext. 3. follows:private school children with disabilitiesIf you use a telecommunications(1) Section 300.8(b) (Children agedunder 300.138.three through nine experiencing The definition of Indian and Indiandevice for the deaf (TDD), you may calldevelopmental delays) has beentribe in 300.21 has been changed tothe Federal Relay System (FRS) at 1changed to clarify that the use of theclarify that nothing in the definition is8008778339.Individuals with disabilities may term developmental delay is subject intended to indicate that the Secretaryobtain this document in an alternateto the conditions described inof the Interior is required to provideformat (e.g., Braille, large print, 300.111(b). services or funding to a State Indianaudiotape, or computer diskette) on(2) The definition of other health tribe that is not listed in the Federalrequest to the contact person listedimpairment in 300.8(c)(9)(i) has been Register list of Indian entitiesunder FOR FURTHER INFORMATION changed to add Tourette Syndrome to recognized as eligible to receive servicesCONTACT.the list of chronic or acute health from the United States, publishedproblems. pursuant to Section 104 of the FederallySUPPLEMENTARY INFORMATION: These The definition of excess costs inRecognized Indian Tribe List Act ofregulations implement changes in the 300.16 has been revised to clarify that 1994, 25 U.S.C. 479a1.regulations governing the Assistance to the computation of excess costs may not The definition of parent in 300.30States for Education of Children with include capital outlay and debt service.has been revised to substituteDisabilities Program and the PreschoolIn addition, a new Appendix A to Part biological for natural each time itGrants for Children with Disabilities 300Excess Cost Calculation has beenappears in the definition, and to addProgram necessitated by the added to provide a description (and anlanguage clarifying that to be consideredreauthorization of the IDEA. With the example) of how to calculate excess a parent under this definition aissuance of these final regulations, part costs under the Act and these guardian must be a person generally301 has been removed and theregulations.authorized to act as the childs parent,regulations implementing the Preschool The definition of highly qualified or authorized to make educationalGrants for Children with Disabilities special education teacher in 300.18 decisions for the child.Program are included under subpart Hhas been revised, as follows: The definition of related services inof these final regulations.(1) Section 300.18(b), regarding 300.34 has been revised as follows: On June 21, 2005, the Secretaryrequirements for highly qualified(1) Section 300.34(a) (General) haspublished a notice of proposedspecial education teachers in general,been modified to (A) add the statutoryrulemaking in the Federal Register (70has been modified to clarify that, when term early identification andFR 35782) (NPRM) to amend the used with respect to any specialassessment of disabilities in children,sroberts on PROD1PC70 with RULESregulations governing the Assistance to education teacher teaching in a charter which was inadvertently omitted fromStates for Education of Children with school, highly qualified means that the the NPRM, (B) combine school healthDisabilities Program, the Preschool teacher meets the certification orservices and school nurse services,Grants for Children with Disabilities licensing requirements, if any, set forth and (C) remove the clause relating to aProgram, and Service Obligations underin the States public charter school law. free appropriate public education under VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
3. 3. Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations 46541school nurse services because itWith the addition of the newchildren without disabilities in the sameduplicates the clause in 300.34(c)(13). definition in 300.35, the definitions ingrades. (2) Section 300.34(b) has been subpart A, beginning with the definition A new 300.113, regarding routinechanged to (A) expand the title to read of secondary school, have beenchecking of hearing aids and externalException; services that apply to renumbered. components of surgically implantedchildren with surgically implanted The definition of special education medical devices, has been added, asdevices, including cochlear implants, in 300.39 (proposed 300.38) has beenfollows:and (B) clarify, in new paragraph (b)(1), revised to remove the definition of(1) Paragraph (a) of 300.113 requiresthat related services do not include avocational and technical education that each public agency to ensure thatmedical device that is surgically was included in proposedhearing aids worn in school by childrenimplanted, the optimization of that 300.38(b)(6). with hearing impairments, includingdevices functioning (e.g., mapping), The definition of supplementary deafness, are functioning properly.maintenance of that device, or the (2) A new 300.113(b)(1) requiresaids and services in 300.42 (proposedreplacement of that device. each public agency to ensure that the 300.41) has been modified to specify (3) A new 300.34(b)(2) has beenexternal components of surgicallythat aids, services, and other supportsadded to make clear that nothing in implanted medical devices areare also provided to enable childrenparagraph (b)(1) of 300.34 (A) limits functioning properly. However, newwith disabilities to participate inthe right of a child with a surgically 300.113(b)(2) has been added to makeimplanted device (e.g., a cochlearextracurricular and nonacademicit clear that, for a child with a surgicallyimplant) to receive related services, assettings.implanted medical device who islisted in 300.34(a), that are determinedSubpart BState Eligibility receiving special education and relatedby the IEP Team to be necessary for the services, a public agency is notchild to receive FAPE; (B) limits the FAPE Requirementsresponsible for the post-surgicalresponsibility of a public agency to Section 300.101(c) has been revisedmaintenance, programming, orappropriately monitor and maintainto clarify that a free appropriate public replacement of the medical device thatmedical devices that are needed toeducation (FAPE) must be available to has been surgically implanted (or of anmaintain the health and safety of the any individual child with a disabilityexternal component of the surgicallychild, including breathing, nutrition, or who needs special education and implanted medical device).operation of other bodily functions,related services, even though the childwhile the child is transported to and Least Restrictive Environmenthas not failed or been retained in afrom school or is at school; or (C) course, and is advancing from grade to Section 300.116(b)(3) and (c)prevents the routine checking of an grade.regarding placements, has been revisedexternal component of a surgically- Section 300.102(a)(3), regarding to remove the qualification unless theimplanted device to make sure it is exceptions to FAPE, has been changedparent agrees otherwise from thefunctioning properly, as required into clarify that a regular high school requirements that (1) the childs 300.113(b). diploma does not include an alternative placement be as close as possible to the (4) The definition of interpreting degree that is not fully aligned with the childs home, and (2) the child isservices in 300.34(c)(4) has been States academic standards, such as a educated in the school he or she wouldchanged to clarify that the term includes certificate or a general educationalattend if not disabled.(A) transcription services, such as development credential (GED). Section 300.117 (Nonacademiccommunication access real-timesettings) has been changed to clarify that Section 300.105, regarding assistivetranslation (CART), C-Print, andeach public agency must ensure thattechnology and proper functioning ofTypeWell for children who are deaf or each child with a disability has thehearing aids, has been re-titledhard of hearing, and (B) specialsupplementary aids and servicesAssistive technology, and proposedinterpreting services for children whodetermined by the childsparagraph (b), regarding the properare deaf-blind. individualized education program (IEP) (5) The definition of orientation andfunctioning of hearing aids, has beenTeam to be appropriate and necessarymobility services in 300.34(c)(7) has moved to new 300.113(a).for the child to participate withbeen changed to remove the term travel Section 300.107(a), regardingnondisabled children in thetraining instruction. The term is under nonacademic services, has been revisedextracurricular services and activities tothe definition of special education, andto specify the steps each public agency the maximum extent appropriate to theis defined in 300.39(b)(4). must take, including the provision of needs of that child. (6) The definition of school nurse supplementary aids and servicesservices in 300.34(c)(13) has beendetermined appropriate and necessaryChildren With Disabilities Enrolled byexpanded and re-named school health by the childs IEP Team, to provide Their Parents in Private Schoolsservices and school nurse services. The nonacademic and extracurricular Section 300.130 (definition ofexpanded definition clarifies thatservices and activities in the manner parentally-placed private schoolschool nurse services are provided by necessary to afford children with children with disabilities) has beena qualified school nurse, and schooldisabilities an equal opportunity for revised to clarify that the term meanshealth services may be provided by aparticipation in those services and children with disabilities enrolled byqualified school nurse or other qualified activities. their parents in private, includingperson. Proposed 300.108(a), regarding religious, schools or facilities, that meet A definition of scientifically based physical education services, has been the definition of elementary school inresearch has been added in newrevised to specify that physical 300.13 or secondary school insroberts on PROD1PC70 with RULES 300.35 that incorporates by reference education must be made available to all 300.36.the definition of that term from thechildren with disabilities receiving A new 300.131(f), regarding childElementary and Secondary EducationFAPE, unless the public agency enrollsfind for out-of-State parentally-placedAct of 1965, as amended, 20 U.S.C. 6301 children without disabilities and doesprivate school children with disabilities,et seq. (ESEA). not provide physical education to has been added to clarify that each LEA VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
4. 4. 46542 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulationsin which private (including religious)find requirements in 300.131, due process hearings under 300.507elementary schools and secondaryincluding the requirements in and 300.530 through 300.532, hasschools are located must include 300.301 through 300.311. been revised to clarify that if a writtenparentally-placed private school (2) A new paragraph (b)(2) has beencomplaint is received that is also thechildren who reside in a State otheradded to provide that any due process subject of a due process hearing underthan the State in which the private complaint regarding the child find 300.507 or 300.530 through 300.532,schools that they attend are located. requirements (as described in or contains multiple issues of which one Section 300.133, regarding 300.140(b)(1)) must be filed with the or more are part of a due processexpenditures for parentally-placedLEA in which the private school ishearing, the State must set aside anyprivate school children with disabilities,located and a copy of the complaint part of the complaint that is beinghas been revised, as follows: must be forwarded to the SEA. addressed in the due process hearing (1) A new 300.133(a)(2)(ii), has been (3) A new 300.140(c), regardinguntil the conclusion of the hearing.added to clarify that children aged three State complaints by private schoolHowever, any issue in the complaintthrough five are considered to be officials, has been added to clarify that that is not part of the due processparentally-placed private school(A) any complaint that an SEA or LEAhearing must be resolved using the timechildren with disabilities enrolled byhas failed to meet the requirements inlimit and procedures describedtheir parents in private, including 300.132 through 300.135 and 300.137elsewhere in the State complaintreligious, elementary schools, if they arethrough 300.144 must be filed inprocedures. A new paragraph (c)(3) alsoenrolled in a private school that meets accordance with the procedureshas been added to require SEAs tothe definition of elementary school indescribed in 300.151 through resolve complaints alleging a public 300.13. 300.153, and (B) a complaint filed by a agencys failure to implement a due (2) A new 300.133(a)(3) has been private school official under process hearing. This is the sameadded to specify that, if an LEA has not 300.136(a) must be filed with the SEA requirement in current 300.661(c)(3).expended for equitable services for in accordance with the procedures in Section 300.153(c), regarding theparentally-placed private school 300.136(b). one year time limit from the date thechildren with disabilities all of the alleged violation occurred and the dateapplicable funds described in Children With Disabilities Enrolled byTheir Parents in Private Schools When the complaint is received in accordance 300.133(a)(1) and (a)(2) by the end ofwith 300.151, has been revised bythe fiscal year for which CongressFAPE Is at Issueremoving the exception clause related toappropriated the funds, the LEA mustSection 300.148 Placement of Children complaints covered underobligate the remaining funds for specialby Parents if FAPE Is at Issue 300.507(a)(2).education and related services A new 300.148(b), regarding(including direct services) to parentally-Methods of Ensuring Servicesdisagreements about FAPE, has beenplaced private school children with added (from current 300.403(b)) to Section 300.154(d), regardingdisabilities during a carry-over period ofclarify that disagreements between achildren with disabilities who areone additional year.parent and a public agency regardingcovered by public benefits or insurance, Section 300.136, regarding the availability of a program appropriate has been revised to clarify that thecompliance related to parentally-placed for a child with a disability, and thepublic agency must (1) obtain parentalprivate school children with disabilities,question of financial reimbursement, areconsent each time that access to thehas been revised to remove thesubject to the due process procedures inparents public benefits or insurance isrequirement that private school officials 300.504 through 300.520. sought, and (2) notify parents thatmust submit complaints to the SEA refusal to allow access to their publicusing the procedures in 300.151State Complaint Proceduresbenefits or insurance does not relievethrough 300.153. Section 300.152(a)(3)(ii) (proposedthe public agency of its responsibility to Section 300.138(a), regarding theparagraph (a)(3)(B)) has been revised toensure that all required services arerequirement that services to parentally-clarify that each SEAs complaint provided at no cost to the parents.placed private school children with procedures must provide the publicdisabilities must be provided byAdditional Eligibility Requirementsagency with an opportunity to respondpersonnel meeting the same standardsto a complaint filed under 300.153, Section 300.156(e), regardingas personnel providing services in theincluding, at a minimum, an personnel qualifications, has beenpublic schools, has been modified toopportunity for a parent who has filedrevised (1) to add or a class ofclarify that private elementary schoola complaint and the public agency tostudents, to clarify that a judicialand secondary school teachers who are voluntarily engage in mediation action on behalf of a class of studentsproviding equitable services to consistent with 300.506.may not be filed for failure of aparentally-placed private school Section 300.152(b)(1)(ii), regarding particular SEA or LEA employee to bechildren with disabilities do not have to time extensions for filing a Statehighly qualified, and (2) to substitutemeet the highly qualified special complaint, has been revised to clarifythe word employee for staff person,education teacher requirements in that it would be permissible to extendto be more precise in the rule of 300.18. the 60-day timeline if the parent (or construction in new 300.18(f) Section 300.140, regarding due individual or organization if mediation (proposed 300.18(e)).process complaints and Stateor other alternative means of dispute Section 300.160 (participation incomplaints, has been revised to makeresolution is available to the individual assessments) has been removed, and thethe following changes:or organization under State procedures) section has been designated as (1) Section 300.140(b)(1) (proposedand the public agency agree to engage inReserved. Participation insroberts on PROD1PC70 with RULES 300.140(a)(2)), regarding child findmediation or to engage in other assessments is the subject of a newcomplaints, has been changed to clarify alternative means of dispute resolution,notice of proposed rulemaking issuedthat the procedures in 300.504 if available in the State.on December 15, 2005 (70 FR 74624) tothrough 300.519 apply to complaints Section 300.152(c), regardingamend the regulations governingthat an LEA has failed to meet the childcomplaints filed under 300.152 andprograms under Title I of the ESEA and VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
5. 5. Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations46543Part B of the IDEA regarding additional consent from the parent for an initialproposed paragraph (a)(2) of 300.307flexibility for States to measure the evaluation. has been redesignated as paragraphachievement of children with (2) Section 300.300(a)(3), regarding a (a)(1).disabilities based on modifiedparents failure to provide consent for(2) Section 300.307(a)(2) (proposedachievement standards.initial evaluation, has been changed to paragraph (a)(3)) has been changed toclarify, in a new paragraph (a)(3)(ii), thatclarify that the criteria adopted by theOther Provisions Required for State the public agency does not violate itsState must permit the use of a processEligibility obligation under 300.111 andbased on the childs response to Section 300.172, regarding access to 300.301 through 300.311 if it declines scientific, research-based intervention.instructional materials, has been to pursue the evaluation. Section 300.308 (Group members)revised: (1) To make clear that States (3) Section 300.300(b), regardinghas been changed to require themust adopt the National Instructional parental consent for services, has been eligibility group for children suspectedMaterials Accessibility Standardmodified by a new paragraph (b)(2) that of having SLD to include the childs(NIMAS), published as Appendix C to requires a public agency to makeparents and a team of qualifiedthese final regulations; (2) to establish a reasonable efforts to obtain informed professionals, which must include thedefinition of timely manner, forconsent from the parent for the initial childs regular teacher (or if the childpurposes of 300.172(b)(2) and (b)(3) if provision of special education anddoes not have a regular teacher, athe State is not coordinating with therelated services. regular classroom teacher qualified toNational Instructional Materials Access(4) Section 300.300(c)(1), regarding teach a child of his or her age) or for aCenter (NIMAC), or 300.172(b)(3) andparental consent for reevaluations, has child of less than school age, an(c)(2) if the State is coordinating withbeen modified to clarify that if a parent individual qualified by the SEA to teachthe NIMAC; (3) to add a new refuses to consent to a reevaluation, the a child of his or her age; and at least one 300.172(b)(4) to require SEAs topublic agency may, but is not requiredperson qualified to conduct individualensure that all public agencies take allto, pursue the reevaluation by using thediagnostic examinations of children,reasonable steps to provide instructional consent override procedures insuch as a school psychologist, speech-materials in accessible formats to 300.300(a)(3), and the public agencylanguage pathologist, or remedialchildren with disabilities who need does not violate its obligation under reading teacher. These are the samethose instructional materials at the same 300.111 and 300.301 throughrequirements in current 300.540.time as other children receive300.311 if it declines to pursue the Section 300.309 (Determining theinstructional materials; and (4) to add a evaluation or reevaluation. existence of a specific learningnew 300.172(e)(2) to clarify, that all (5) A new 300.300(d)(4) has been disability) has been revised, as follows:added to provide that if a parent of a (1) Paragraph (a) of 300.309 has beendefinitions in 300.172(e)(1) apply tochild who is home schooled or placedchanged (A) to clarify that the groupeach State and LEA, whether or not thein a private school by the parent at thedescribed in 300.306 may determineState or LEA chooses to coordinate withparents expense, does not providethat a child has a specific learningthe NIMAC.consent for an initial evaluation or adisability if the child does not achieve A new 300.177 has been added toreevaluation, or the parent fails toadequately for the childs age or to meetinclude a provision regarding Statesrespond to a request to provide consent,State-approved grade-level standards insovereign immunity. That provision,the public agency (A) may not use the one or more of eight areas (e.g., oralwhich has been added to incorporateconsent override procedures (describedexpression, basic reading skill, etc.),the language in section 604 of the Act,elsewhere in 300.300), and (B) is not when provided with learningmakes clear that a State that acceptsrequired to consider the child eligible experiences and instruction appropriatefunds under Part B of the Act waives itsfor services under the requirements for the childs age or State-approvedimmunity under the 11th amendment ofrelating to parentally-placed private grade-level standards; and (B) to addthe Constitution of the United Statesschool children with disabilities limited English proficiency to thefrom suit in Federal court for a violation( 300.132 through 300.144). other five conditions that could accountof Part B of the Act. (6) A new 300.300(d)(5) has been for the childs learning problems, andSubpart DEvaluations, Eligibilityadded to clarify that in order for athat the group considers in determiningDeterminations, Individualizedpublic agency to meet the reasonablewhether the child has an SLD.Education Programs, and Educational efforts requirement to obtain informed (2) Section 300.309(b) has beenPlacementsparental consent for an initial changed to clarify (A) that, in order toevaluation, initial services, or aensure that underachievement in a childParental Consentsuspected of having an SLD is not duereevaluation, a public agency must Section 300.300, regarding parental document its attempts to obtain parentalto lack of appropriate instruction inconsent, has been revised, as follows:consent using the procedures in reading or math, the group must(1) Paragraph (a) of 300.300, 300.322(d). consider, as part of the evaluationregarding consent for initial evaluation, described in 300.304 throughhas been changed to provide that theAdditional Procedures for Evaluating300.306, data that demonstrate thatpublic agency proposing to conduct an Children With Specific Learning prior to, or as a part of, the referralinitial evaluation to determine if a childDisabilities (SLD)process, the child was providedqualifies as a child with a disability Section 300.307 (Specific learningappropriate instruction in regularmust, after providing notice consistent disabilities) has been revised, aseducation settings, delivered bywith 300.503 and 300.504, obtain follows:qualified personnel, and (B) to replaceinformed consent, consistent with (1) Proposed paragraph (a)(1) of(in paragraph (b)(1)) the term highsroberts on PROD1PC70 with RULES 300.9, from the parent of the child 300.307, which allowed a State to quality research-based instruction withbefore conducting the evaluation. A new prohibit the use of a severe discrepancyappropriate instruction.paragraph (a)(1)(iii) has been added to between intellectual ability and (3) Section 300.309(c) has beenrequire a public agency to make achievement for determining if a childchanged to provide that the publicreasonable efforts to obtain the informed has an SLD, has been removed, and agency must promptly request parental VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
6. 6. 46544 Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulationsconsent to evaluate a child suspected ofdisadvantage, or limited Englishthe provision into three separatehaving an SLD who has not madeproficiency on the childs achievementparagraphs ( 300.323(e), (f), and (g)) foradequate progress after an appropriatelevel.purposes of clarity and improvedperiod of time when provided(4) A new 300.311(a)(7) has beenreadability (e.g., transfers within theappropriate instruction, and whenever a added to provide that if the child hassame State, transfers from another State,child is referred for an evaluation.participated in a process that assesses and transmittal of records); (2) adopt Section 300.310, regarding the childs response to scientific, school year in lieu of academicObservation, has been revised, as research-based intervention, theyear as the term commonly used byfollows:documentation must include theparents and public agencies; and (3) (1) Paragraph (a) of proposedinstructional strategies used and the adopt other modifiers (e.g., new and 300.310 has been revised (A) to student-centered data collected, andprevious) to distinguish betweenremove the phrase trained indocumentation that the childs parentsStates and public agencies that areobservation, and (B) to specify that thewere notified about (A) the States involved in transfers by children withpublic agency must ensure that thepolicies regarding the amount and disabilities.child is observed in the childs learning nature of student performance data that Section 300.324(a)(4), regardingenvironment.would be collected and the generalchanges to an IEP after the annual IEP (2) A new 300.310(b) has beeneducation services that would bemeeting for a school year, has beenadded to require the eligibility group to provided, (B) strategies for increasing restructured into two paragraphs, and adecide to (A) use information obtainedthe childs rate of learning, and (C) the new paragraph (a)(4)(ii) has been addedfrom an observation in routineparents right to request an evaluation.to require the public agency to ensureclassroom instruction and monitoring of that, if changes are made to a childs IEPthe childs performance that was done Individualized Education Programswithout an IEP meeting, that the childsbefore the child was referred for an Section 300.320 (Definition of IEP)IEP Team is informed of the changes.evaluation, or (B) have at least onehas been revised in paragraph (a)(5) to Section 300.324(b), regarding themember of the group described inreplace regular education review and revision of IEPs, has been 300.306(a)(1) conduct an observationenvironment with regular class, inchanged to include a new paragraphof the childs academic performance inorder to be consistent with the language(b)(2), to clarify that, in conducting athe regular classroom after the child has in the Act. review of a childs IEP, the IEP Teambeen referred for an evaluation and Section 300.321(e), regardingmust consider the same special factorsparental consent is obtained. attendance at IEP Team meetings, hasit considered when developing theParagraph (b) of proposed 300.310 been revised to clarify that the excusalchilds IEP.has been redesignated as newof IEP Team members from attending an 300.310(c). IEP Team meeting under certainSubpart EProcedural Safeguards Section 300.311 (Written report) hascircumstances, refers to the IEP Team Section 300.502, regardingbeen renamed Specific documentation members in 300.320(a)(2) throughindependent educational evaluations,for the eligibility determination, and(a)(5). has been revised, as follows:has been revised, as follows: Section 300.322, regarding parent(1) A new 300.502(b)(5) has been(1) Section 300.311(a)(5), regardingparticipation, has been revised to: (1) added to make clear that a parent iswhether the child does not achieveInclude, in 300.322(d), examples of the entitled to only one independentcommensurate with the childs age, hasrecords a public agency must keep of itseducational evaluation at publicbeen modified and expanded to add attempts to involve the parents in IEPexpense each time the public agencywhether the child does not achievemeetings; (2) add a new 300.322(e), conducts an evaluation with which theadequately for the childs age or to meet which requires the public agency to takeparent disagrees.State-approved grade-level standardswhatever action is necessary to ensure(2) Section 300.502(c) has beenconsistent with 300.309(a)(1), and (A)that the parent understands the changed to clarify that if a parentthe child does not make sufficientproceedings of the IEP meeting, obtains an independent evaluation atprogress to meet age or to meet State-including arranging for an interpreterpublic expense or shares with the publicapproved grade-level standardsfor parents with deafness or whoseagency an evaluation obtained at privateconsistent with 300.309(a)(2)(i), or (B)native language is other than English;expense, the public agency mustthe child exhibits a pattern of strengths and (3) redesignate paragraph (e) asconsider the evaluation, if it meetsand weaknesses in performance,paragraph (f) accordingly.agency criteria, in any decision madeachievement, or both, relative to age, Section 300.323(d) has been revisedwith respect to the provision of FAPE toState-approved grade level standards or to require public agencies to ensure that the child.intellectual development consistent each regular teacher, special education Section 300.504 (Proceduralwith 300.309(a)(2)(ii). teacher, related services provider, and safeguards notice) has been revised, as (2) Proposed 300.311(a)(6), regardingany other service provider who is follows:whether there are strengths orresponsible for the implementation of a (1) Paragraph (a)(2) of 300.504 hasweaknesses or both in performance orchilds IEP, is informed of his or herbeen changed to add that a copy of theachievement or both relative to specific responsibilities related toprocedural safeguards notice must beintellectual development, has beenimplementing the childs IEP and thegiven upon receipt of the first dueremoved.specific accommodations,process complaint under 300.507 in a (3) A new 300.311(a)(6) has been modifications, and supports that must school year, as well as upon receipt ofadded to clarify that the documentation be provided for the child in accordance the first State complaint under 300.151must include a statement of the with the childs IEP. These are the samethrough 300.153.sroberts on PROD1PC70 with RULESdetermination of the group concerning requirements in current (2) A new 300.504(a)(3) has beenthe effects of visual, hearing, or motor 300.342(b)(3)(i) and (b)(3)(ii).added to provide that the notice must bedisability, mental retardation, emotional Section 300.323(e), regarding IEPs given to the parents of a child with adisturbance, cultural factors,for children who transfer publicdisability in accordance with theenvironmental or economic agencies, has been revised to: (1) Divide discipline procedures in 300.530(h). VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2
7. 7. Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 / Rules and Regulations46545 Section 300.506(b), regarding theprocess complaint or fails to participate under 300.300(b), then the publicrequirements for mediation, has beenin the resolution meeting, the parent agency must provide those specialrevised by (1) removing the provision may seek the intervention of a hearingeducation and related services that areabout the confidentiality pledge, inofficer to begin the due process hearingnot in dispute between the parent andproposed paragraph (b)(9), because it istimelines.the public agency.no longer required under the Act, and(5) A new 300.510(c) (Adjustments Section 300.520(b), regarding a(2) changing paragraph (b)(8), regardingto the 30-day resolution period) hasspecial rule about the transfer ofthe prohibition against using been added that specifies exceptions to parental rights at the age of majority, hasdiscussions that occur in the mediation the 30-day resolution period (e.g., (A) been revised to more clearly state thatprocess, to clarify that civilboth parties agree in writing to waivea State must establish procedures forproceedings includes any Federal courtthe resolution meeting; (B) after eitherappointing the parent of a child with aor State court of a State receiving the mediation or resolution meeting disability, or if the parent is notassistance under this part. starts but before the end of the 30-day available, another appropriate Section 300.509, regarding model period, the parties agree in writing that individual, to represent the educationalforms to assist parents and publicno agreement is possible; or (C) if bothinterests of the child throughout theagencies in filing due processparties agree in writing to continue thechilds eligibility under Part B of the Actcomplaints and parents and othermediation at the end of the 30-dayif, under State law, a child who hasparties in filing State complaints, has resolution period, but later, the parentreached the age of majority, but has notbeen revised to add, with respect to dueor public agency withdraws from the been determined to be incompetent, canprocess complaints, public agencies,mediation process). Subsequentbe determined not to have the ability toand with respect to State complaints, paragraphs have been renumbered provide informed consent with respectother parties, as well as parents, andaccordingly.to the childs educational program.to clarify that (1) while each SEA must(6) Paragraph (d)(2) of 300.510develop model forms, the SEA or LEA (proposed paragraph(c)(2)), regarding Discipline Proceduresmay not require the use of the forms, the enforceability of a written settlement Section 300.530(d)(1)(i), regardingand (2) parents, public agencies, and agreement in any State court of services, has been revised to beother parties may either use thecompetent jurisdiction or in a district consistent with section 615(k)(1)(D)(i) ofappropriate model form, or another form court of the United States, has beenthe Act, by adding a reference to theor other document, so long as the formexpanded to add the SEA, if the State FAPE requirements in 300.101(a).or document meets, as appropriate, thehas other mechanisms or procedures Section 300.530(d)(4), regarding therequirements for filing a due process that permit parties to seek enforcement removal of a child with a disability fromcomplaint or a State complaint. of resolution agreements, pursuant to a the childs current placement for 10 Section 300.510 (Resolutionnew 300.537.school days in the same school year, hasprocess) has been revised, as follows: Section 300.513(a) (Decision ofbeen revised to remove the reference to (1) Section 300.510(b)(1), regarding hearing officer) has been revised by (1)school personnel, in consultation withthe resolution period, has been changed changing the paragraph title to readat least one of the childs teachers,to state that a due process hearing may Decision of hearing officer on thedetermining the location in whichoccur (in lieu of must occur) by theprovision of FAPE, and (2) clarifying services will be provided.end of the resolution period, if thethat a hearing officers determination of Section 300.530(d)(5), regardingparties have not resolved the dispute whether a child received FAPE must be removals that constitute a change ofthat formed the basis for the due process based on substantive grounds. placement under 300.536, has beencomplaint. Section 300.515(a), regardingrevised to remove the reference to the (2) A new 300.510(b)(3) has been timelines and convenience of hearings IEP Team determining the location inadded to provide that, except where the and reviews, has been revised to includewhich services will be provided.parties have jointly agreed to waive thea specific reference to the adjusted time A new 300.530(e)(3), has beenresolution process or to use mediationperiods described in 300.510(c).added to provide that, if the LEA, the(notwithstanding 300.510(b)(1) and Section 300.516(b), regarding theparent, and members of the childs IEP(2)), the failure of a parent filing a due90-day time limitation from the date of Team determine that the childsprocess complaint to participate in the the decision of the hearing to file a civil behavior was the direct result of theresolution meeting will delay the action, has been revised to provide thatLEAs failure to implement the childstimelines for the resolution process andthe 90-day period begins from the dateIEP, the LEA must take immediate stepsdue process hearing until the meeting isof the decision of the hearing officer or to remedy those deficiencies.held. the decision of the State review official. Section 300.530(h), regarding (3) A new 300.510(b)(4) has been Section 300.518 (Childs statusnotification, has been changed toadded to provide that if an LEA isduring proceedings) has been revised by specify that, on the date on which aunable to obtain the participation of the adding a new paragraph (c), which decision is made to make a removal thatparent in the resolution meeting afterprovides that if a complaint involves anconstitutes a change in the placement ofreasonable efforts have been made, andapplication for initial services undera child with a disability because of adocumented using the procedures inthis part from a child who is violation of a code of student conduct, 300.322(d), the LEA may, at the transitioning from Part C of the Act to the LEA must notify the parents of thatconclusion of the 30-day resolution Part B and is no longer eligible for Part decision, and provide the parents theperiod, request that a hearing officerC services because the child has turned procedural safeguards notice describeddismiss the parents due process3, the public agency is not required to in 300.504.complaint.provide the Part C services that the Section 300.532 (Appeal) has beensroberts on PROD1PC70 with RULES (4) A new paragraph (b)(5) ofchild had been receiving. If the child is revised, as follows: 300.510 has been added to provide found eligible for special education and (1) Paragraph (a) of 300.532,that, if the LEA fails to hold therelated services under Part B and the regarding the conditions in which theresolution meeting within 15 days ofparent consents to the initial provisionparent of a child with a disability or anreceiving notice of a parents dueof special education and related services LEA may request a hearing, has been VerDate Aug2005 03:09 Aug 12, 2006 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:FRFM14AUR2.SGM 14AUR2