[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1999 Edition]
[From the U.S. Government Printing Office]


          34



          Education



[[Page i]]

          PARTS 300 to 399

                         Revised as of July 1, 1999

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF JULY 1, 1999
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]






                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1999



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 34:

          Subtitle B--Regulations of the Offices of the 
          Department of Education (Continued).................       1

              Chapter III--Office of Special Education and 
          Rehabilitative Services, Department of Education 
          (Parts 300-399).....................................       5

  Findings Aids:

      Table of CFR Titles and Chapters........................     455

      Alphabetical List of Agencies Appearing in the CFR......     473

      List of CFR Sections Affected...........................     483



[[Page iv]]





                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  34 CFR 300.1 refers 
                       to title 34, part 300, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
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    A subject index to the Code of Federal Regulations is contained in a 
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    The Federal Register Index is issued monthly in cumulative form. 
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the revision dates of the 50 CFR titles.

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or write to the Director, Office of the Federal Register, National 
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site for public

[[Page vii]]

law numbers, Federal Register finding aids, and related information. 
Connect to NARA's web site at www.nara.gov/fedreg. The NARA site also 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1999.



[[Page ix]]



                               THIS TITLE

    Title 34--Education is presently composed of three volumes (parts 1 
to 299, parts 300 to 399, and part 400 to End). The contents of these 
volumes represent all regulations codified under this title of the CFR 
as of July 1, 1999.

    A redesignation table appears in the Finding Aids section of the 
last volume.

    For this volume, Lisa N. Morris was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                           TITLE 34--EDUCATION




                  (This book contains parts 300 to 399)

  --------------------------------------------------------------------

 SUBTITLE B--Regulations of the Offices of the Department of Education 
                                (Continued)

                                                                    Part

Chapter III--Office of Special Education and Rehabilitative 
  Services, Department of Education.........................         300

[[Page 3]]

 Subtitle B--Regulations of the Offices of the Department of Education 
                               (Continued)

  --------------------------------------------------------------------


[[Page 5]]




 CHAPTER III--OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES,
                         DEPARTMENT OF EDUCATION



  --------------------------------------------------------------------
Part                                                                Page
300             Assistance to states for the education of 
                    children with disabilities..............           7
301             Preschool grants for children with 
                    disabilities............................         167
303             Early intervention program for infants and 
                    toddlers with disabilities..............         172
304             Removal of architectural barriers to 
                    individuals with disabilities program...         212
345             State grants program for technology-related 
                    assistance for individuals with 
                    disabilities............................         217
350             Disability and rehabilitation research 
                    projects and centers program............         236
356             Disability and rehabilitation research: 
                    Research fellowships....................         251
359             Disability and rehabilitation research: 
                    Special projects and demonstrations for 
                    spinal cord injuries....................         255
361             The State vocational rehabilitation services 
                    program.................................         258
363             The State supported employment services 
                    program.................................         308
364             State independent living services program 
                    and centers for independent living 
                    program: General provisions.............         314
365             State independent living services...........         333
366             Centers for independent living..............         337
367             Independent living services for older 
                    individuals who are blind...............         357
369             Vocational rehabilitation service projects..         363
370             Client assistance program...................         370
371             Vocational rehabilitation service projects 
                    for American Indians with disabilities..         381

[[Page 6]]

376             Special projects and demonstrations for 
                    providing transitional rehabilitation 
                    services to youth with disabilities.....         385
377             Demonstration projects to increase client 
                    choice program..........................         388
379             Projects with industry......................         393
380             Special projects and demonstrations for 
                    providing supported employment services 
                    to individuals with the most severe 
                    disabilities and technical assistance 
                    projects................................         402
381             Protection and advocacy of individual rights         407
385             Rehabilitation training.....................         412
386             Rehabilitation training: Rehabilitation 
                    long-term training......................         419
387             Experimental and innovative training........         426
388             State vocational rehabilitation unit in-
                    service training........................         427
389             Rehabilitation continuing education programs         430
390             Rehabilitation short-term training..........         432
395             Vending facility program for the blind on 
                    Federal and other property..............         434
396             Training of interpreters for individuals who 
                    are deaf and individuals who are deaf-
                    blind...................................         449
397-399         [Reserved]

[[Page 7]]



PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES--Table of Contents






                           Subpart A--General

   Purposes, Applicability, and Regulations That Apply to This Program

Sec.
300.1  Purposes.
300.2  Applicability of this part to State, local, and private agencies.
300.3  Regulations that apply.

                      Definitions Used in This Part

300.4  Act.
300.5  Assistive technology device.
300.6  Assistive technology service.
300.7  Child with a disability.
300.8  Consent.
300.9  Day; business day; school day.
300.10  Educational service agency.
300.11  Equipment.
300.12  Evaluation.
300.13  Free appropriate public education.
300.14  Include.
300.15  Individualized education program.
300.16  Individualized education program team.
300.17  Individualized family service plan.
300.18  Local educational agency.
300.19  Native language.
300.20  Parent.
300.21  Personally identifiable.
300.22  Public agency.
300.23  Qualified personnel.
300.24  Related services.
300.25  Secondary school.
300.26  Special education.
300.27  State.
300.28  Supplementary aids and services.
300.29  Transition services.
300.30  Definitions in EDGAR.

                 Subpart B--State and Local Eligibility

                       State Eligibility--General

300.110  Condition of assistance.
300.111  Exception for prior State policies and procedures on file with 
          the Secretary.
300.112  Amendments to State policies and procedures.
300.113  Approval by the Secretary.
300.114-300.120  [Reserved]

                 State Eligibility--Specific Conditions

300.121  Free appropriate public education (FAPE).
300.122  Exception to FAPE for certain ages.
300.123  Full educational opportunity goal (FEOG).
300.124  FEOG--timetable.
300.125  Child find.
300.126  Procedures for evaluation and determination of eligibility.
300.127  Confidentiality of personally identifiable information.
300.128  Individualized education programs.
300.129  Procedural safeguards.
300.130  Least restrictive environment.
300.131  [Reserved]
300.132  Transition of children from Part C to preschool programs.
300.133  Children in private schools.
300.134  [Reserved]
300.135  Comprehensive system of personnel development.
300.136  Personnel standards.
300.137  Performance goals and indicators.
300.138  Participation in assessments.
300.139  Reports relating to assessments.
300.140  [Reserved]
300.141  SEA responsibility for general supervision.
300.142  Methods of ensuring services.
300.143  SEA implementation of procedural safeguards.
300.144  Hearings relating to LEA eligibility.
300.145  Recovery of funds for misclassified children.
300.146  Suspension and expulsion rates.
300.147  Additional information if SEA provides direct services.
300.148  Public participation.
300.149  [Reserved]
300.150  State advisory panel.
300.151  [Reserved]
300.152  Prohibition against commingling.
300.153  State-level nonsupplanting.
300.154  Maintenance of State financial support.
300.155  Policies and procedures for use of Part B funds.
300.156  Annual description of use of Part B funds.

                LEA and State Agency Eligibility--General

300.180  Condition of assistance.
300.181  Exception for prior LEA or State agency policies and procedures 
          on file with the SEA.
300.182  Amendments to LEA policies and procedures.
300.183  [Reserved]
300.184  Excess cost requirement.
300.185  Meeting the excess cost requirement.
300.186-300.189  [Reserved]
300.190  Joint establishment of eligibility.
300.191  [Reserved]
300.192  Requirements for establishing eligibility.
300.193  [Reserved]
300.194  State agency eligibility.
300.195  [Reserved]
300.196   Notification of LEA or State agency in case of ineligibility.
300.197  LEA and State agency compliance.

[[Page 8]]

          LEA and State Agency Eligibility--Specific Conditions

300.220  Consistency with State policies.
300.221  Implementation of CSPD.
300.222--300.229  [Reserved]
300.230  Use of amounts.
300.231  Maintenance of effort.
300.232  Exception to maintenance of effort.
300.233  Treatment of federal funds in certain fiscal years.
300.234  Schoolwide programs under title I of the ESEA.
300.235  Permissive use of funds.
300.236--300.239  [Reserved]
300.240  Information for SEA.
300.241  Treatment of charter schools and their students.
300.242  Public information.
300.243  [Reserved]
300.244  Coordinated services system.

                      School-Based Improvement Plan

300.245  School-based improvement plan.
300.246  Plan requirements.
300.247  Responsibilities of the LEA.
300.248  Limitation.
300.249  Additional requirements.
300.250  Extension of plan.

                 Secretary of the Interior--Eligibility

300.260  Submission of information.
300.261  Public participation.
300.262  Use of Part B funds.
300.263  Plan for coordination of services.
300.264  Definitions.
300.265  Establishment of advisory board.
300.266  Annual report by advisory board.
300.267  Applicable regulations.

                          Public Participation

300.280  Public hearings before adopting State policies and procedures.
300.281  Notice.
300.282  Opportunity to participate; comment period.
300.283  Review of public comments before adopting policies and 
          procedures.
300.284  Publication and availability of approved policies and 
          procedures.

                           Subpart C--Services

                    Free Appropriate Public Education

300.300  Provision of FAPE.
300.301  FAPE--methods and payments.
300.302  Residential placement.
300.303  Proper functioning of hearing aids.
300.304  Full educational opportunity goal.
300.305  Program options.
300.306  Nonacademic services.
300.307  Physical education.
300.308  Assistive technology.
300.309  Extended school year services.
300.310  [Reserved]
300.311  FAPE requirements for students with disabilities in adult 
          prisons.
300.312  Children with disabilities in public charter schools.
300.313  Children experiencing developmental delays.

                      Evaluations and Reevaluations

300.320  Initial evaluations.
300.321   Reevaluations.
300.322--300.324  [Reserved]

                    Individualized Education Programs

300.340  Definitions related to IEPs.
300.341  Responsibility of SEA and other public agencies for IEPs.
300.342  When IEPs must be in effect.
300.343  IEP Meetings.
300.344  IEP team.
300.345  Parent participation.
300.346  Development, review, and revision of IEP.
300.347  Content of IEP.
300.348  Agency responsibilities for transition services.
300.349  Private school placements by public agencies.
300.350  IEPs--accountability.

                       Direct Services by the Sea

300.360  Use of LEA allocation for direct services.
300.361  Nature and location of services.
300.362--300.369  [Reserved]
300.370  Use of SEA allocations.
300.371  [Reserved]
300.372  Nonapplicability of requirements that prohibit commingling and 
          supplanting of funds.

          Comprehensive System of Personnel Development (CSPD)

300.380  General CSPD requirements.
300.381  Adequate supply of qualified personnel.
300.382  Improvement strategies.
300.383--300.387  [Reserved]

                 Subpart D--Children in Private Schools

  Children With Disabilities in Private Schools Placed or Referred by 
                             Public Agencies

300.400  Applicability of Secs. 300.400-300.402.
300.401  Responsibility of State educational agency.
300.402  Implementation by State educational agency.

Children With Disabilities Enrolled by Their Parents in Private Schools 
                          When FAPE is at Issue

300.403  Placement of children by parents if FAPE is at issue.

[[Page 9]]

 Children With Disabilities Enrolled by Their Parents in Private Schools

300.450  Definition of ``private school children with disabilities.''
300.451  Child find for private school children with disabilities.
300.452  Provision of services--basic requirement.
300.453  Expenditures.
300.454  Services determined.
300.455  Services provided.
300.456  Location of services; transportation.
300.457  Complaints.
300.458  Separate classes prohibited.
300.459  Requirement that funds not benefit a private school.
300.460  Use of public school personnel.
300.461  Use of private school personnel.
300.462  Requirements concerning property, equipment, and supplies for 
          the benefit of private school children with disabilities.

                         Procedures for By-Pass

300.480  By-pass--general.
300.481  Provisions for services under a by-pass.
300.482  Notice of intent to implement a by-pass.
300.483  Request to show cause.
300.484  Show cause hearing.
300.485  Decision.
300.486  Filing requirements.
300.487  Judicial review.

                    Subpart E--Procedural Safeguards

             Due Process Procedures for Parents and Children

300.500  General responsibility of public agencies; definitions.
300.501  Opportunity to examine records; parent participation in 
          meetings.
300.502  Independent educational evaluation.
300.503  Prior notice by the public agency; content of notice.
300.504  Procedural safeguards notice.
300.505  Parental consent.
300.506  Mediation.
300.507  Impartial due process hearing; parent notice.
300.508  Impartial hearing officer.
300.509  Hearing rights.
300.510  Finality of decision; appeal; impartial review.
300.511  Timelines and convenience of hearings and reviews.
300.512  Civil action.
300.513  Attorneys' fees.
300.514  Child's status during proceedings.
300.515  Surrogate parents.
300.516  [Reserved]
300.517  Transfer of parental rights at age of majority.

                          Discipline Procedures

300.519  Change of placement for disciplinary removals.
300.520  Authority of school personnel.
300.521  Authority of hearing officer.
300.522  Determination of setting.
300.523  Manifestation determination review.
300.524  Determination that behavior was not manifestation of 
          disability.
300.525  Parent appeal.
300.526  Placement during appeals.
300.527  Protections for children not yet eligible for special education 
          and related services.
300.528  Expedited due process hearings.
300.529  Referral to and action by law enforcement and judicial 
          authorities.

       Procedures for Evaluation and Determination of Eligibility

300.530  General.
300.531  Initial evaluation.
300.532  Evaluation procedures.
300.533  Determination of needed evaluation data.
300.534  Determination of eligibility.
300.535  Procedures for determining eligibility and placement.
300.536  Reevaluation.

  Additional Procedures for Evaluating Children With Specific Learning 
                              Disabilities

300.540  Additional team members.
300.541  Criteria for determining the existence of a specific learning 
          disability.
300.542  Observation.
300.543  Written report.

                   Least Restrictive Environment (LRE)

300.550  General LRE requirements.
300.551  Continuum of alternative placements.
300.552  Placements.
300.553  Nonacademic settings.
300.554  Children in public or private institutions.
300.555  Technical assistance and training activities.
300.556  Monitoring activities.

                     Confidentiality of Information

300.560  Definitions.
300.561  Notice to parents.
300.562  Access rights.
300.563  Record of access.
300.564  Records on more than one child.
300.565  List of types and locations of information.
300.566  Fees.
300.567  Amendment of records at parent's request.
300.568  Opportunity for a hearing.
300.569  Result of hearing.
300.570  Hearing procedures.

[[Page 10]]

300.571  Consent.
300.572  Safeguards.
300.573  Destruction of information.
300.574  Children's rights.
300.575  Enforcement.
300.576  Disciplinary information.
300.577  Department use of personally identifiable information.

                          Department Procedures

300.580  Determination by the Secretary that a State is eligible.
300.581  Notice and hearing before determining that a State is not 
          eligible.
300.582  Hearing official or panel.
300.583  Hearing procedures.
300.584  Initial decision; final decision.
300.585  Filing requirements.
300.586  Judicial review.
300.587  Enforcement.
300.588  [Reserved]
300.589  Waiver of requirement regarding supplementing and not 
          supplanting with Part B funds.

                     Subpart F--State Administration

                                 General

300.600  Responsibility for all educational programs.
300.601  Relation of Part B to other Federal programs.
300.602  State-level activities.

                              Use of Funds

300.620  Use of funds for State administration.
300.621  Allowable costs.
300.622  Subgrants to LEAs for capacity-building and improvement.
300.623  Amount required for subgrants to LEAs.
300.624  State discretion in awarding subgrants.

                          State Advisory Panel

300.650  Establishment of advisory panels.
300.651  Membership.
300.652  Advisory panel functions.
300.653  Advisory panel procedures.

                       State Complaint Procedures

300.660  Adoption of State complaint procedures.
300.661  Minimum State complaint procedures.
300.662  Filing a complaint.

                 Subpart G--Allocation of Funds; Reports

                               Allocations

300.700  Special definition of the term ``State.''
300.701  Grants to States.
300.702  Definition.
300.703  Allocations to States.
300.704-300.705  [Reserved]
300.706  Permanent formula.
300.707  Increase in funds.
300.708  Limitation.
300.709  Decrease in funds.
300.710  Allocation for State in which by-pass is implemented for 
          private school children with disabilities.
300.711  Subgrants to LEAs.
300.712  Allocations to LEAs.
300.713  Former Chapter 1 State agencies.
300.714  Reallocation of LEA funds.
300.715  Payments to the Secretary of the Interior for the education of 
          Indian children.
300.716  Payments for education and services for Indian children with 
          disabilities aged 3 through 5.
300.717  Outlying areas and freely associated States.
300.718  Outlying area--definition.
300.719  Limitation for freely associated States.
300.720  Special rule.
300.721  [Reserved]
300.722  Definition.

                                 Reports

300.750  Annual report of children served--report requirement.
300.751  Annual report of children served--information required in the 
          report.
300.752  Annual report of children served--certification.
300.753  Annual report of children served--criteria for counting 
          children.
300.754  Annual report of children served--other responsibilities of the 
          SEA.
300.755  Disproportionality.
300.756  Acquisition of equipment; construction or alteration of 
          facilities.

Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations

    Authority: 20 U.S.C. 1411-1420, unless otherwise noted.

    Source: 64 FR 12418, Mar. 12, 1999, unless otherwise noted.



                           Subpart A--General

   Purposes, Applicability, and Regulations That Apply to This Program



Sec. 300.1  Purposes.

    The purposes of this part are--
    (a) To ensure that all children with disabilities have available to 
them a free appropriate public education that emphasizes special 
education and related services designed to meet their

[[Page 11]]

unique needs and prepare them for employment and independent living;
    (b) To ensure that the rights of children with disabilities and 
their parents are protected;
    (c) To assist States, localities, educational service agencies, and 
Federal agencies to provide for the education of all children with 
disabilities; and
    (d) To assess and ensure the effectiveness of efforts to educate 
children with disabilities.

(Authority: 20 U.S.C. 1400 note)



Sec. 300.2  Applicability of this part to State, local, and private agencies.

    (a) States. This part applies to each State that receives payments 
under Part B of the Act.
    (b) Public agencies within the State. The provisions of this part--
    (1) Apply to all political subdivisions of the State that are 
involved in the education of children with disabilities, including--
    (i) The State educational agency (SEA);
    (ii) Local educational agencies (LEAs), educational service agencies 
(ESAs), and public charter schools that are not otherwise included as 
LEAs or ESAs and are not a school of an LEA or ESA;
    (iii) Other State agencies and schools (such as Departments of 
Mental Health and Welfare and State schools for children with deafness 
or children with blindness); and
    (iv) State and local juvenile and adult correctional facilities; and
    (2) Are binding on each public agency in the State that provides 
special education and related services to children with disabilities, 
regardless of whether that agency is receiving funds under Part B.
    (c) Private schools and facilities. Each public agency in the State 
is responsible for ensuring that the rights and protections under Part B 
of the Act are given to children with disabilities--
    (1) Referred to or placed in private schools and facilities by that 
public agency; or
    (2) Placed in private schools by their parents under the provisions 
of Sec. 300.403(c).

(Authority: 20 U.S.C. 1412)



Sec. 300.3  Regulations that apply.

    The following regulations apply to this program:
    (a) 34 CFR part 76 (State-Administered Programs) except for 
Secs. 76.125-76.137 and 76.650-76.662.
    (b) 34 CFR part 77 (Definitions).
    (c) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (d) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments).
    (e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (f) 34 CFR part 82 (New Restrictions on Lobbying).
    (g) 34 CFR part 85 (Government-wide Debarment and Suspension 
(Nonprocurement) and Government-wide Requirements for Drug-Free 
Workplace (Grants)).
    (h) The regulations in this part--34 CFR part 300 (Assistance for 
Education of Children with Disabilities).

(Authority: 20 U.S.C. 1221e-3(a)(1))

                      Definitions Used in This Part



Sec. 300.4  Act.

    As used in this part, Act means the Individuals with Disabilities 
Education Act (IDEA), as amended.

(Authority: 20 U.S.C. 1400(a))



Sec. 300.5  Assistive technology device.

    As used in this part, Assistive technology device means any item, 
piece of equipment, or product system, whether acquired commercially off 
the shelf, modified, or customized, that is used to increase, maintain, 
or improve the functional capabilities of a child with a disability.

(Authority: 20 U.S.C. 1401(1))



Sec. 300.6  Assistive technology service.

    As used in this part, Assistive technology service means any service 
that directly assists a child with a disability in the selection, 
acquisition, or use of an assistive technology device.
    The term includes--
    (a) The evaluation of the needs of a child with a disability, 
including a

[[Page 12]]

functional evaluation of the child in the child's customary environment;
    (b) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (c) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;
    (d) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (e) Training or technical assistance for a child with a disability 
or, if appropriate, that child's family; and
    (f) Training or technical assistance for professionals (including 
individuals providing education or rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))



Sec. 300.7  Child with a disability.

    (a) General. (1) As used in this part, the term child with a 
disability means a child evaluated in accordance with Secs. 300.530-
300.536 as having mental retardation, a hearing impairment including 
deafness, a speech or language impairment, a visual impairment including 
blindness, serious emotional disturbance (hereafter referred to as 
emotional disturbance), an orthopedic impairment, autism, traumatic 
brain injury, an other health impairment, a specific learning 
disability, deaf-blindness, or multiple disabilities, and who, by reason 
thereof, needs special education and related services.
    (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is 
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in 
paragraph (a)(1) of this section, but only needs a related service and 
not special education, the child is not a child with a disability under 
this part.
    (ii) If, consistent with Sec. 300.26(a)(2), the related service 
required by the child is considered special education rather than a 
related service under State standards, the child would be determined to 
be a child with a disability under paragraph (a)(1) of this section.
    (b) Children aged 3 through 9 experiencing developmental delays. The 
term child with a disability for children aged 3 through 9 may, at the 
discretion of the State and LEA and in accordance with Sec. 300.313, 
include a child--
    (1) Who is experiencing developmental delays, as defined by the 
State and as measured by appropriate diagnostic instruments and 
procedures, in one or more of the following areas: physical development, 
cognitive development, communication development, social or emotional 
development, or adaptive development; and
    (2) Who, by reason thereof, needs special education and related 
services.
    (c) Definitions of disability terms. The terms used in this 
definition are defined as follows:
    (1)(i) Autism means a developmental disability significantly 
affecting verbal and nonverbal communication and social interaction, 
generally evident before age 3, that adversely affects a child's 
educational performance. Other characteristics often associated with 
autism are engagement in repetitive activities and stereotyped 
movements, resistance to environmental change or change in daily 
routines, and unusual responses to sensory experiences. The term does 
not apply if a child's educational performance is adversely affected 
primarily because the child has an emotional disturbance, as defined in 
paragraph (b)(4) of this section.
    (ii) A child who manifests the characteristics of ``autism'' after 
age 3 could be diagnosed as having ``autism'' if the criteria in 
paragraph (c)(1)(i) of this section are satisfied.
    (2) Deaf-blindness means concomitant hearing and visual impairments, 
the combination of which causes such severe communication and other 
developmental and educational needs that they cannot be accommodated in 
special education programs solely for children with deafness or children 
with blindness.
    (3) Deafness means a hearing impairment that is so severe that the 
child is

[[Page 13]]

impaired in processing linguistic information through hearing, with or 
without amplification, that adversely affects a child's educational 
performance.
    (4) Emotional disturbance is defined as follows:
    (i) The term means a condition exhibiting one or more of the 
following characteristics over a long period of time and to a marked 
degree that adversely affects a child's educational performance:
    (A) An inability to learn that cannot be explained by intellectual, 
sensory, or health factors.
    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers.
    (C) Inappropriate types of behavior or feelings under normal 
circumstances.
    (D) A general pervasive mood of unhappiness or depression.
    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) The term includes schizophrenia. The term does not apply to 
children who are socially maladjusted, unless it is determined that they 
have an emotional disturbance.
    (5) Hearing impairment means an impairment in hearing, whether 
permanent or fluctuating, that adversely affects a child's educational 
performance but that is not included under the definition of deafness in 
this section.
    (6) Mental retardation means significantly subaverage general 
intellectual functioning, existing concurrently with deficits in 
adaptive behavior and manifested during the developmental period, that 
adversely affects a child's educational performance.
    (7) Multiple disabilities means concomitant impairments (such as 
mental retardation-blindness, mental retardation-orthopedic impairment, 
etc.), the combination of which causes such severe educational needs 
that they cannot be accommodated in special education programs solely 
for one of the impairments. The term does not include deaf-blindness.
    (8) Orthopedic impairment means a severe orthopedic impairment that 
adversely affects a child's educational performance. The term includes 
impairments caused by congenital anomaly (e.g., clubfoot, absence of 
some member, etc.), impairments caused by disease (e.g., poliomyelitis, 
bone tuberculosis, etc.), and impairments from other causes (e.g., 
cerebral palsy, amputations, and fractures or burns that cause 
contractures).
    (9) Other health impairment means having limited strength, vitality 
or alertness, including a heightened alertness to environmental stimuli, 
that results in limited alertness with respect to the educational 
environment, that--
    (i) Is due to chronic or acute health problems such as asthma, 
attention deficit disorder or attention deficit hyperactivity disorder, 
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, 
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
    (ii) Adversely affects a child's educational performance.
    (10) Specific learning disability is defined as follows:
    (i) General. The term means a disorder in one or more of the basic 
psychological processes involved in understanding or in using language, 
spoken or written, that may manifest itself in an imperfect ability to 
listen, think, speak, read, write, spell, or to do mathematical 
calculations, including conditions such as perceptual disabilities, 
brain injury, minimal brain dysfunction, dyslexia, and developmental 
aphasia.
    (ii) Disorders not included. The term does not include learning 
problems that are primarily the result of visual, hearing, or motor 
disabilities, of mental retardation, of emotional disturbance, or of 
environmental, cultural, or economic disadvantage.
    (11) Speech or language impairment means a communication disorder, 
such as stuttering, impaired articulation, a language impairment, or a 
voice impairment, that adversely affects a child's educational 
performance.
    (12) Traumatic brain injury means an acquired injury to the brain 
caused by an external physical force, resulting in total or partial 
functional disability or psychosocial impairment, or both, that 
adversely affects a child's educational performance. The term applies to 
open or closed head injuries resulting in impairments in one or more 
areas, such

[[Page 14]]

as cognition; language; memory; attention; reasoning; abstract thinking; 
judgment; problem-solving; sensory, perceptual, and motor abilities; 
psychosocial behavior; physical functions; information processing; and 
speech. The term does not apply to brain injuries that are congenital or 
degenerative, or to brain injuries induced by birth trauma.
    (13) Visual impairment including blindness means an impairment in 
vision that, even with correction, adversely affects a child's 
educational performance. The term includes both partial sight and 
blindness.

(Authority: 20 U.S.C. 1401(3)(A) and (B); 1401(26))



Sec. 300.8  Consent.

    As used in this part, the term consent has the meaning given that 
term in Sec. 300.500(b)(1).

(Authority: 20 U.S.C. 1415(a))



Sec. 300.9  Day; business day; school day.

    As used in this part, the term--
    (a) Day means calendar day unless otherwise indicated as business 
day or school day;
    (b) Business day means Monday through Friday, except for Federal and 
State holidays (unless holidays are specifically included in the 
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
    (c)(1) School day means any day, including a partial day, that 
children are in attendance at school for instructional purposes.
    (2) The term school day has the same meaning for all children in 
school, including children with and without disabilities.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.10  Educational service agency.

    As used in this part, the term educational service agency--
    (a) Means a regional public multiservice agency--
    (1) Authorized by State law to develop, manage, and provide services 
or programs to LEAs; and
    (2) Recognized as an administrative agency for purposes of the 
provision of special education and related services provided within 
public elementary and secondary schools of the State;
    (b) Includes any other public institution or agency having 
administrative control and direction over a public elementary or 
secondary school; and
    (c) Includes entities that meet the definition of intermediate 
educational unit in section 602(23) of IDEA as in effect prior to June 
4, 1997.

(Authority: 20 U.S.C. 1401(4))



Sec. 300.11  Equipment.

    As used in this part, the term equipment means--
    (a) Machinery, utilities, and built-in equipment and any necessary 
enclosures or structures to house the machinery, utilities, or 
equipment; and
    (b) All other items necessary for the functioning of a particular 
facility as a facility for the provision of educational services, 
including items such as instructional equipment and necessary furniture; 
printed, published and audio-visual instructional materials; 
telecommunications, sensory, and other technological aids and devices; 
and books, periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(6))



Sec. 300.12  Evaluation.

    As used in this part, the term evaluation has the meaning given that 
term in Sec. 300.500(b)(2).

(Authority: 20 U.S.C. 1415(a))



Sec. 300.13  Free appropriate public education.

    As used in this part, the term free appropriate public education or 
FAPE means special education and related services that--
    (a) Are provided at public expense, under public supervision and 
direction, and without charge;
    (b) Meet the standards of the SEA, including the requirements of 
this part;
    (c) Include preschool, elementary school, or secondary school 
education in the State; and
    (d) Are provided in conformity with an individualized education 
program

[[Page 15]]

(IEP) that meets the requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1401(8))



Sec. 300.14  Include.

    As used in this part, the term include means that the items named 
are not all of the possible items that are covered, whether like or 
unlike the ones named.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.15  Individualized education program.

    As used in this part, the term individualized education program or 
IEP has the meaning given the term in Sec. 300.340(a).

(Authority: 20 U.S.C. 1401(11))



Sec. 300.16  Individualized education program team.

    As used in this part, the term individualized education program team 
or IEP team means a group of individuals described in Sec. 300.344 that 
is responsible for developing, reviewing, or revising an IEP for a child 
with a disability.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.17  Individualized family service plan.

    As used in this part, the term individualized family service plan or 
IFSP has the meaning given the term in 34 CFR 303.340(b).

(Authority: 20 U.S.C. 1401(12))



Sec. 300.18  Local educational agency.

    (a) As used in this part, the term local educational agency means a 
public board of education or other public authority legally constituted 
within a State for either administrative control or direction of, or to 
perform a service function for, public elementary or secondary schools 
in a city, county, township, school district, or other political 
subdivision of a State, or for a combination of school districts or 
counties as are recognized in a State as an administrative agency for 
its public elementary or secondary schools.
    (b) The term includes--
    (1) An educational service agency, as defined in Sec. 300.10;
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary or secondary school, 
including a public charter school that is established as an LEA under 
State law; and
    (3) An elementary or secondary school funded by the Bureau of Indian 
Affairs, and not subject to the jurisdiction of any SEA other than the 
Bureau of Indian Affairs, but only to the extent that the inclusion 
makes the school eligible for programs for which specific eligibility is 
not provided to the school in another provision of law and the school 
does not have a student population that is smaller than the student 
population of the LEA receiving assistance under this Act with the 
smallest student population.

(Authority: 20 U.S.C. 1401(15))



Sec. 300.19  Native language.

    (a) As used in this part, the term native language, if used with 
reference to an individual of limited English proficiency, means the 
following:
    (1) The language normally used by that individual, or, in the case 
of a child, the language normally used by the parents of the child, 
except as provided in paragraph (a)(2) of this section.
    (2) In all direct contact with a child (including evaluation of the 
child), the language normally used by the child in the home or learning 
environment.
    (b) For an individual with deafness or blindness, or 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).

(Authority: 20 U.S.C. 1401(16))



Sec. 300.20  Parent.

    (a) General. As used in this part, the term parent means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian but not the State if the child is a ward of the 
State;
    (3) A person acting in the place of a parent (such as a grandparent 
or stepparent with whom the child lives, or a person who is legally 
responsible for the child's welfare); or
    (4) A surrogate parent who has been appointed in accordance with 
Sec. 300.515.

[[Page 16]]

    (b) Foster parent. Unless State law prohibits a foster parent from 
acting as a parent, a State may allow a foster parent to act as a parent 
under Part B of the Act if--
    (1) The natural parents' authority to make educational decisions on 
the child's behalf has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the child;
    (ii) Is willing to make the educational decisions required of 
parents under the Act; and
    (iii) Has no interest that would conflict with the interests of the 
child.

(Authority: 20 U.S.C. 1401(19))



Sec. 300.21  Personally identifiable

    As used in this part, the term personally identifiable has the 
meaning given that term in Sec. 300.500(b)(3).

(Authority: 20 U.S.C. 1415(a))



Sec. 300.22  Public agency.

    As used in this part, the term public agency includes the SEA, LEAs, 
ESAs, public charter schools that are not otherwise included as LEAs or 
ESAs and are not a school of an LEA or ESA, and any other political 
subdivisions of the State that are responsible for providing education 
to children with disabilities.

(Authority: 20 U.S.C. 1412(a)(1)(A), (a)(11))



Sec. 300.23  Qualified personnel.

    As used in this part, the term qualified personnel means personnel 
who have met SEA-approved or SEA-recognized certification, licensing, 
registration, or other comparable requirements that apply to the area in 
which the individuals are providing special education or related 
services.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.24  Related services.

    (a) General. As used in this part, the term related services means 
transportation and such developmental, corrective, and other supportive 
services as are required to assist a child with a disability to benefit 
from special education, and includes speech-language pathology and 
audiology services, psychological services, physical and occupational 
therapy, recreation, including therapeutic recreation, early 
identification and assessment of disabilities in children, counseling 
services, including rehabilitation counseling, orientation and mobility 
services, and medical services for diagnostic or evaluation purposes. 
The term also includes school health services, social work services in 
schools, and parent counseling and training.
    (b) Individual terms defined. The terms used in this definition are 
defined as follows:
    (1) Audiology includes--
    (i) Identification of children with hearing loss;
    (ii) Determination of the range, nature, and degree of hearing loss, 
including referral for medical or other professional attention for the 
habilitation of hearing;
    (iii) Provision of habilitative activities, such as language 
habilitation, auditory training, speech reading (lip-reading), hearing 
evaluation, and speech conservation;
    (iv) Creation and administration of programs for prevention of 
hearing loss;
    (v) Counseling and guidance of children, parents, and teachers 
regarding hearing loss; and
    (vi) Determination of children's needs for group and individual 
amplification, selecting and fitting an appropriate aid, and evaluating 
the effectiveness of amplification.
    (2) Counseling services means services provided by qualified social 
workers, psychologists, guidance counselors, or other qualified 
personnel.
    (3) Early identification and assessment of disabilities in children 
means the implementation of a formal plan for identifying a disability 
as early as possible in a child's life.
    (4) Medical services means services provided by a licensed physician 
to determine a child's medically related disability that results in the 
child's need for special education and related services.
    (5) Occupational therapy--
    (i) Means services provided by a qualified occupational therapist; 
and
    (ii) Includes--

[[Page 17]]

    (A) Improving, developing or restoring functions impaired or lost 
through illness, injury, or deprivation;
    (B) Improving ability to perform tasks for independent functioning 
if functions are impaired or lost; and
    (C) Preventing, through early intervention, initial or further 
impairment or loss of function.
    (6) Orientation and mobility services--
    (i) Means services provided to blind or visually impaired students 
by qualified personnel to enable those students to attain systematic 
orientation to and safe movement within their environments in school, 
home, and community; and
    (ii) Includes teaching students the following, as appropriate:
    (A) Spatial and environmental concepts and use of information 
received by the senses (such as sound, temperature and vibrations) to 
establish, maintain, or regain orientation and line of travel (e.g., 
using sound at a traffic light to cross the street);
    (B) To use the long cane to supplement visual travel skills or as a 
tool for safely negotiating the environment for students with no 
available travel vision;
    (C) To understand and use remaining vision and distance low vision 
aids; and
    (D) Other concepts, techniques, and tools.
    (7) Parent counseling and training means--
    (i) Assisting parents in understanding the special needs of their 
child;
    (ii) Providing parents with information about child development; and
    (iii) Helping parents to acquire the necessary skills that will 
allow them to support the implementation of their child's IEP or IFSP.
    (8) Physical therapy means services provided by a qualified physical 
therapist.
    (9) Psychological services includes--
    (i) Administering psychological and educational tests, and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and conditions relating to learning;
    (iv) Consulting with other staff members in planning school programs 
to meet the special needs of children as indicated by psychological 
tests, interviews, and behavioral evaluations;
    (v) Planning and managing a program of psychological services, 
including psychological counseling for children and parents; and
    (vi) Assisting in developing positive behavioral intervention 
strategies.
    (10) Recreation includes--
    (i) Assessment of leisure function;
    (ii) Therapeutic recreation services;
    (iii) Recreation programs in schools and community agencies; and
    (iv) Leisure education.
    (11) Rehabilitation counseling services means services provided by 
qualified personnel in individual or group sessions that focus 
specifically on career development, employment preparation, achieving 
independence, and integration in the workplace and community of a 
student with a disability. The term also includes vocational 
rehabilitation services provided to a student with disabilities by 
vocational rehabilitation programs funded under the Rehabilitation Act 
of 1973, as amended.
    (12) School health services means services provided by a qualified 
school nurse or other qualified person.
    (13) Social work services in schools includes--
    (i) Preparing a social or developmental history on a child with a 
disability;
    (ii) Group and individual counseling with the child and family;
    (iii) Working in partnership with parents and others on those 
problems in a child's living situation (home, school, and community) 
that affect the child's adjustment in school;
    (iv) Mobilizing school and community resources to enable the child 
to learn as effectively as possible in his or her educational program; 
and
    (v) Assisting in developing positive behavioral intervention 
strategies.
    (14) Speech-language pathology services includes--
    (i) Identification of children with speech or language impairments;
    (ii) Diagnosis and appraisal of specific speech or language 
impairments;
    (iii) Referral for medical or other professional attention necessary 
for

[[Page 18]]

the habilitation of speech or language impairments;
    (iv) Provision of speech and language services for the habilitation 
or prevention of communicative impairments; and
    (v) Counseling and guidance of parents, children, and teachers 
regarding speech and language impairments.
    (15) Transportation includes--
    (i) Travel to and from school and between schools;
    (ii) Travel in and around school buildings; and
    (iii) Specialized equipment (such as special or adapted buses, 
lifts, and ramps), if required to provide special transportation for a 
child with a disability.

(Authority: 20 U.S.C. 1401(22))



Sec. 300.25  Secondary school.

    As used in this part, the term secondary school means a nonprofit 
institutional day or residential school that provides secondary 
education, as determined under State law, except that it does not 
include any education beyond grade 12.

(Authority: 20 U.S.C. 1401(23))



Sec. 300.26  Special education.

    (a) General. (1) As used in this part, the term special education 
means specially designed instruction, at no cost to the parents, to meet 
the unique needs of a child with a disability, including--
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (a)(1) of this section:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (ii) Travel training; and
    (iii) Vocational education.
    (b) Individual terms defined. The terms in this definition are 
defined as follows:
    (1) At no cost means that all specially-designed instruction is 
provided without charge, but does not preclude incidental fees that are 
normally charged to nondisabled students or their parents as a part of 
the regular education program.
    (2) Physical education--
    (i) Means the development of--
    (A) Physical and motor fitness;
    (B) Fundamental motor skills and patterns; and
    (C) Skills in aquatics, dance, and individual and group games and 
sports (including intramural and lifetime sports); and
    (ii) Includes special physical education, adapted physical 
education, movement education, and motor development.
    (3) Specially-designed instruction means adapting, as appropriate to 
the needs of an eligible child under this part, the content, 
methodology, or delivery of instruction--
    (i) To address the unique needs of the child that result from the 
child's disability; and
    (ii) 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.
    (4) Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other children 
with disabilities who require this instruction, to enable them to--
    (i) Develop an awareness of the environment in which they live; and
    (ii) Learn the skills necessary to move effectively and safely from 
place to place within that environment (e.g., in school, in the home, at 
work, and in the community).
    (5) Vocational education means organized educational programs that 
are directly related to the preparation of individuals for paid or 
unpaid employment, or for additional preparation for a career requiring 
other than a baccalaureate or advanced degree.

(Authority: 20 U.S.C. 1401(25))



Sec. 300.27  State.

    As used in this part, the term State means each of the 50 States, 
the District of Columbia, the Commonwealth

[[Page 19]]

of Puerto Rico, and each of the outlying areas.

(Authority: 20 U.S.C. 1401(27))



Sec. 300.28  Supplementary aids and services.

    As used in this part, the term supplementary aids and services 
means, aids, 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 Secs. 300.550-300.556.

Authority: 20 U.S.C. 1401(29))



Sec. 300.29  Transition services.

    (a) As used in this part, transition services means a coordinated 
set of activities for a student with a disability that--
    (1) Is designed within an outcome-oriented process, that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, integrated employment (including 
supported employment), continuing and adult education, adult services, 
independent living, or community participation;
    (2) Is based on the individual student's needs, taking into account 
the student's preferences and interests; and
    (3) Includes--
    (i) Instruction;
    (ii) Related services;
    (iii) Community experiences;
    (iv) The development of employment and other post-school adult 
living objectives; and
    (v) If appropriate, acquisition of daily living skills and 
functional vocational evaluation.
    (b) 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.

(Authority: 20 U.S.C. 1401(30))



Sec. 300.30  Definitions in EDGAR.

    The following terms used in this part are defined in 34 CFR 77.1:

Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency

(Authority: 20 U.S.C. 1221e-3(a)(1))



                 Subpart B--State and Local Eligibility

                       State Eligibility--General



Sec. 300.110  Condition of assistance.

    (a) A State is eligible for assistance under Part B of the Act for a 
fiscal year if the State demonstrates to the satisfaction of the 
Secretary that the State has in effect policies and procedures to ensure 
that it meets the conditions in Secs. 300.121-300.156.
    (b) To meet the requirement of paragraph (a) of this section, the 
State must have on file with the Secretary--
    (1) The information specified in Secs. 300.121-300.156 that the 
State uses to implement the requirements of this part; and
    (2) Copies of all applicable State statutes, regulations, and other 
State documents that show the basis of that information.

(Authority: 20 U.S.C. 1412(a))



Sec. 300.111  Exception for prior State policies and procedures on file with the Secretary.

    If a State has on file with the Secretary policies and procedures 
approved by the Secretary that demonstrate that the State meets any 
requirement of Sec. 300.110, including any policies and procedures filed 
under Part B of the Act as in effect before June 4, 1997, the Secretary 
considers the State to have met the requirement for purposes of 
receiving a grant under Part B of the Act.

(Authority: 20 U.S.C. 1412(c)(1))

[[Page 20]]



Sec. 300.112  Amendments to State policies and procedures.

    (a) Modifications made by a State. (1) Subject to paragraph (b) of 
this section, policies and procedures submitted by a State in accordance 
with this subpart remain in effect until the State submits to the 
Secretary the modifications that the State decides are necessary.
    (2) The provisions of this subpart apply to a modification to a 
State's policies and procedures in the same manner and to the same 
extent that they apply to the State's original policies and procedures.
    (b) Modifications required by the Secretary. The Secretary may 
require a State to modify its policies and procedures, but only to the 
extent necessary to ensure the State's compliance with this part, if--
    (1) After June 4, 1997, the provisions of the Act or the regulations 
in this part are amended;
    (2) There is a new interpretation of this Act or regulations by a 
Federal court or a State's highest court; or
    (3) There is an official finding of noncompliance with Federal law 
or regulations.

(Authority: 20 U.S.C. 1412(c)(2) and (3))



Sec. 300.113  Approval by the Secretary.

    (a) General. If the Secretary determines that a State is eligible to 
receive a grant under Part B of the Act, the Secretary notifies the 
State of that determination.
    (b) Notice and hearing before determining a State is not eligible. 
The Secretary does not make a final determination that a State is not 
eligible to receive a grant under Part B of the Act until after 
providing the State reasonable notice and an opportunity for a hearing 
in accordance with the procedures in Secs. 300.581-300.586.

(Authority: 20 U.S.C. 1412(d))



Secs. 300.114-300.120  [Reserved]

                 State Eligibility--Specific Conditions



Sec. 300.121  Free appropriate public education (FAPE).

    (a) General. Each State must have on file with the Secretary 
information that shows that, subject to Sec. 300.122, the State has in 
effect a policy that ensures that all children with disabilities aged 3 
through 21 residing in the State have the right to FAPE, including 
children with disabilities who have been suspended or expelled from 
school.
    (b) Required information. The information described in paragraph (a) 
of this section must--
    (1) Include a copy of each State statute, court order, State 
Attorney General opinion, and other State documents that show the source 
of the State's policy relating to FAPE; and
    (2) Show that the policy--
    (i)(A) Applies to all public agencies in the State; and
    (B) Is consistent with the requirements of Secs. 300.300-300.313; 
and
    (ii) Applies to all children with disabilities, including children 
who have been suspended or expelled from school.
    (c) FAPE for children beginning at age 3. (1) Each State shall 
ensure that--
    (i) The obligation to make FAPE available to each eligible child 
residing in the State begins no later than the child's third birthday; 
and
    (ii) An IEP or an IFSP is in effect for the child by that date, in 
accordance with Sec. 300.342(c).
    (2) If a child's third birthday occurs during the summer, the 
child's IEP team shall determine the date when services under the IEP or 
IFSP will begin.
    (d) FAPE for children suspended or expelled from school. (1) A 
public agency need not provide services during periods of removal under 
Sec. 300.520(a)(1) to a child with a disability who has been removed 
from his or her current placement for 10 school days or less in that

[[Page 21]]

school year, if services are not provided to a child without 
disabilities who has been similarly removed.
    (2) In the case of a child with a disability who has been removed 
from his or her current placement for more than 10 school days in that 
school year, the public agency, for the remainder of the removals, 
must--
    (i) Provide services 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, if the 
removal is--
    (A) Under the school personnel's authority to remove for not more 
than 10 consecutive school days as long as that removal does not 
constitute a change of placement under Sec. 300.519(b) 
(Sec. 300.520((a)(1)); or
    (B) For behavior that is not a manifestation of the child's 
disability, consistent with Sec. 300.524; and
    (ii) Provide services consistent with Sec. 300.522, regarding 
determination of the appropriate interim alternative educational 
setting, if the removal is--
    (A) For drug or weapons offenses under Sec. 300.520(a)(2); or
    (B) Based on a hearing officer 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, consistent with Sec. 300.521.
    (3)(i) School personnel, in consultation with the child's special 
education teacher, determine the extent to which services are 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 if the child is removed under the authority of school 
personnel to remove for not more than 10 consecutive school days as long 
as that removal does not constitute a change of placement under 
Sec. 300.519 (Sec. 300.520(a)(1)).
    (ii) The child's IEP team determines the extent to which services 
are 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 if the child is removed because of behavior 
that has been determined not to be a manifestation of the child's 
disability, consistent with Sec. 300.524.
    (e) Children advancing from grade to grade. (1) Each State shall 
ensure that FAPE is available to any individual child with a disability 
who needs special education and related services, even though the child 
is advancing from grade to grade.
    (2) The determination that a child described in paragraph (a)(1) of 
this section is eligible under this part, must be made on an individual 
basis by the group responsible within the child's LEA for making those 
determinations.

(Authority: 20 U.S.C. 1412(a)(1))



Sec. 300.122  Exception to FAPE for certain ages.

    (a) General. The obligation to make FAPE available to all children 
with disabilities does not apply with respect to the following:
    (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 
extent that its application to those children would be inconsistent with 
State law or practice, or the order of any court, respecting the 
provision of public education to children in one or more of those age 
groups.
    (2)(i) Students aged 18 through 21 to the extent that State law does 
not require that special education and related services under Part B of 
the Act be provided to students with disabilities who, in the last 
educational placement prior to their incarceration in an adult 
correctional facility--
    (A) Were not actually identified as being a child with a disability 
under Sec. 300.7; and
    (B) Did not have an IEP under Part B of the Act.
    (ii) The exception in paragraph (a)(2)(i) of this section does not 
apply to students with disabilities, aged 18 through 21, who--
    (A) 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
    (B) Did not have an IEP in their last educational setting, but who 
had actually been identified as a ``child with a disability'' under 
Sec. 300.7.

[[Page 22]]

    (3)(i) Students with disabilities who have graduated from high 
school with a regular high school diploma.
    (ii) The exception in paragraph (a)(3)(i) of this section does not 
apply to students who have graduated but have not been awarded a regular 
high school diploma.
    (iii) Graduation from high school with a regular diploma constitutes 
a change in placement, requiring written prior notice in accordance with 
Sec. 300.503.
    (b) Documents relating to exceptions. The State must have on file 
with the Secretary--
    (1)(i) Information that describes in detail the extent to which the 
exception in paragraph (a)(1) of this section applies to the State; and
    (ii) A copy of each State law, court order, and other documents that 
provide a basis for the exception; and
    (2) With respect to paragraph (a)(2) of this section, a copy of the 
State law that excludes from services under Part B of the Act certain 
students who are incarcerated in an adult correctional facility.

(Authority: 20 U.S.C. 1412(a)(1)(B))



Sec. 300.123  Full educational opportunity goal (FEOG).

    The State must have on file with the Secretary detailed policies and 
procedures through which the State has established a goal of providing 
full educational opportunity to all children with disabilities aged 
birth through 21.

(Authority: 20 U.S.C. 1412(a)(2))



Sec. 300.124  FEOG--timetable.

    The State must have on file with the Secretary a detailed timetable 
for accomplishing the goal of providing full educational opportunity for 
all children with disabilities.

(Authority: 20 U.S.C. 1412(a)(2))



Sec. 300.125  Child find.

    (a) General requirement. (1) The State must have in effect policies 
and procedures to ensure that--
    (i) All children with disabilities residing in the State, including 
children with disabilities attending private schools, regardless of the 
severity of their disability, and who are in need of special education 
and related services, are identified, located, and evaluated; and
    (ii) A practical method is developed and implemented to determine 
which children are currently receiving needed special education and 
related services.
    (2) The requirements of paragraph (a)(1) of this section apply to--
    (i) Highly mobile children with disabilities (such as migrant and 
homeless children); and
    (ii) Children who are suspected of being a child with a disability 
under Sec. 300.7 and in need of special education, even though they are 
advancing from grade to grade.
    (b) Documents relating to child find. The State must have on file 
with the Secretary the policies and procedures described in paragraph 
(a) of this section, including--
    (1) The name of the State agency (if other than the SEA) responsible 
for coordinating the planning and implementation of the policies and 
procedures under paragraph (a) of this section;
    (2) The name of each agency that participates in the planning and 
implementation of the child find activities and a description of the 
nature and extent of its participation;
    (3) A description of how the policies and procedures under paragraph 
(a) of this section will be monitored to ensure that the SEA obtains--
    (i) The number of children with disabilities within each disability 
category that have been identified, located, and evaluated; and
    (ii) Information adequate to evaluate the effectiveness of those 
policies and procedures; and
    (4) A description of the method the State uses to determine which 
children are currently receiving special education and related services.
    (c) Child find for children from birth through age 2 when the SEA 
and lead agency for the Part C program are different. (1) In States 
where the SEA and the State's lead agency for the Part C program are 
different and the Part C lead agency will be participating in the child 
find activities described in paragraph (a) of this section, a 
description of the nature and extent of the Part C

[[Page 23]]

lead agency's participation must be included under paragraph (b)(2) of 
this section.
    (2) 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.
    (3) 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.
    (d) Construction. Nothing in the Act requires that children be 
classified by their disability so long as each child who has a 
disability listed in Sec. 300.7 and who, by reason of that disability, 
needs special education and related services is regarded as a child with 
a disability under Part B of the Act.
    (e) Confidentiality of child find data. The collection and use of 
data to meet the requirements of this section are subject to the 
confidentiality requirements of Secs. 300.560-300.577.

(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))



Sec. 300.126  Procedures for evaluation and determination of eligibility.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.530-300.536 
are met.

(Authority: 20 U.S.C. 1412(a)(6)(B), (7))



Sec. 300.127  Confidentiality of personally identifiable information.

    (a) The State must have on file in detail the policies and 
procedures that the State has undertaken to ensure protection of the 
confidentiality of any personally identifiable information, collected, 
used, or maintained under Part B of the Act.
    (b) The Secretary uses the criteria in Secs. 300.560-300.576 to 
evaluate the policies and procedures of the State under paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1412(a)(8))



Sec. 300.128  Individualized education programs.

    (a) General. The State must have on file with the Secretary 
information that shows that an IEP, or an IFSP that meets the 
requirements of section 636(d) of the Act, is developed, reviewed, and 
revised for each child with a disability in accordance with 
Secs. 300.340-300.350.
    (b) Required information. The information described in paragraph (a) 
of this section must include--
    (1) A copy of each State statute, policy, and standard that 
regulates the manner in which IEPs are developed, implemented, reviewed, 
and revised; and
    (2) The procedures that the SEA follows in monitoring and evaluating 
those IEPs or IFSPs.

(Authority: 20 U.S.C. 1412(a)(4))



Sec. 300.129  Procedural safeguards.

    (a) The State must have on file with the Secretary procedural 
safeguards that ensure that the requirements of Secs. 300.500-300.529 
are met.
    (b) Children with disabilities and their parents must be afforded 
the procedural safeguards identified in paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(6)(A))



Sec. 300.130  Least restrictive environment.

    (a) General. The State must have on file with the Secretary 
procedures that ensure that the requirements of Secs. 300.550-300.556 
are met, including the provision in Sec. 300.551 requiring a continuum 
of alternative placements to meet the unique needs of each child with a 
disability.
    (b) Additional requirement. (1) If the State uses a funding 
mechanism by which the State distributes State funds on the basis of the 
type of setting where a child is served, the funding mechanism may not 
result in placements that violate the requirements of paragraph (a) of 
this section.
    (2) If the State does not have policies and procedures to ensure 
compliance with paragraph (b)(1) of this section, the State must provide 
the Secretary an assurance that the State will revise the funding 
mechanism as soon as feasible to ensure that the mechanism does not 
result in placements that violate that paragraph.

(Authority: 20 U.S.C. 1412(a)(5))

[[Page 24]]



Sec. 300.131  [Reserved]



Sec. 300.132  Transition of children from Part C to preschool programs.

    The State must have on file with the Secretary policies and 
procedures to ensure that--
    (a) Children participating in early-intervention programs assisted 
under Part C of the Act, and who will participate in preschool programs 
assisted under Part B of the Act, experience a smooth and effective 
transition to those preschool programs in a manner consistent with 
section 637(a)(8) of the Act;
    (b) By the third birthday of a child described in paragraph (a) of 
this section, an IEP or, if consistent with Sec. 300.342(c) and section 
636(d) of the Act, an IFSP, has been developed and is being implemented 
for the child consistent with Sec. 300.121(c); and
    (c) Each LEA will participate in transition planning conferences 
arranged by the designated lead agency under section 637(a)(8) of the 
Act.

(Authority: 20 U.S.C. 1412(a)(9))



Sec. 300.133  Children in private schools.

    The State must have on file with the Secretary policies and 
procedures that ensure that the requirements of Secs. 300.400-300.403 
and Secs. 300.450-300.462 are met.

(Authority: 20 U.S.C. 1413(a)(4))



Sec. 300.134  [Reserved]



Sec. 300.135  Comprehensive system of personnel development.

    (a) General. The State must have in effect, consistent with the 
purposes of this part and with section 635(a)(8) of the Act, a 
comprehensive system of personnel development that--
    (1) Is designed to ensure an adequate supply of qualified special 
education, regular education, and related services personnel; and
    (2) Meets the requirements for a State improvement plan relating to 
personnel development in section 653(b)(2)(B) and (c)(3)(D) of the Act.
    (b) Information. The State must have on file with the Secretary 
information that shows that the requirements of paragraph (a) of this 
section are met.

(Authority: 20 U.S.C. 1412(a)(14))



Sec. 300.136  Personnel standards.

    (a) Definitions. As used in this part--
    (1) Appropriate professional requirements in the State means entry 
level requirements that--
    (i) Are based on the highest requirements in the State applicable to 
the profession or discipline in which a person is providing special 
education or related services; and
    (ii) Establish suitable qualifications for personnel providing 
special education and related services under Part B of the Act to 
children with disabilities who are served by State, local, and private 
agencies (see Sec. 300.2);
    (2) Highest requirements in the State applicable to a specific 
profession or discipline means the highest entry-level academic degree 
needed for any State-approved or -recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline;
    (3) Profession or discipline means a specific occupational category 
that--
    (i) Provides special education and related services to children with 
disabilities under Part B of the Act;
    (ii) Has been established or designated by the State;
    (iii) Has a required scope of responsibility and degree of 
supervision; and
    (iv) Is not limited to traditional occupational categories; and
    (4) State-approved or -recognized certification, licensing, 
registration, or other comparable requirements means the requirements 
that a State legislature either has enacted or has authorized a State 
agency to promulgate through rules to establish the entry-level 
standards for employment in a specific profession or discipline in that 
State.
    (b) Policies and procedures. (1)(i) The State must have on file with 
the Secretary policies and procedures relating to the establishment and 
maintenance of standards to ensure that personnel necessary to carry out 
the purposes of this part are appropriately and adequately prepared and 
trained.

[[Page 25]]

    (ii) The policies and procedures required in paragraph (b)(1)(i) of 
this section must provide for the establishment and maintenance of 
standards that are consistent with any State-approved or -recognized 
certification, licensing, registration, or other comparable requirements 
that apply to the profession or discipline in which a person is 
providing special education or related services.
    (2) Each State may--
    (i) Determine the specific occupational categories required to 
provide special education and related services within the State; and
    (ii) Revise or expand those categories as needed.
    (3) Nothing in this part requires a State to establish a specified 
training standard (e.g., a masters degree) for personnel who provide 
special education and related services under Part B of the Act.
    (4) A State with only one 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 children 
with disabilities in the State without violating the requirements of 
this section.
    (c) Steps for retraining or hiring personnel. To the extent that a 
State's standards for a profession or discipline, including standards 
for temporary or emergency certification, are not based on the highest 
requirements in the State applicable to a specific profession or 
discipline, the State must provide the steps the State is taking and the 
procedures for notifying public agencies and personnel of those steps 
and the timelines it has established for the retraining or hiring of 
personnel to meet appropriate professional requirements in the State.
    (d) Status of personnel standards in the State. (1) In meeting the 
requirements in paragraphs (b) and (c) of this section, a determination 
must be made about the status of personnel standards in the State. That 
determination must be based on current information that accurately 
describes, for each profession or discipline in which personnel are 
providing special education or related services, whether the applicable 
standards are consistent with the highest requirements in the State for 
that profession or discipline.
    (2) The information required in paragraph (d)(1) of this section 
must be on file in the SEA and available to the public.
    (e) Applicability of State statutes and agency rules. In identifying 
the highest requirements in the State for purposes of this section, the 
requirements of all State statutes and the rules of all State agencies 
applicable to serving children with disabilities must be considered.
    (f) Use of paraprofessionals and assistants. A State may allow 
paraprofessionals and assistants who are appropriately trained and 
supervised, in accordance with State law, regulations, or written 
policy, in meeting the requirements of this part to be used to assist in 
the provision of special education and related services to children with 
disabilities under Part B of the Act.
    (g) Policy to address shortage of personnel. (1) In implementing 
this section, a State may adopt a policy that includes a requirement 
that LEAs in the State make an ongoing good faith effort to recruit and 
hire appropriately and adequately trained personnel to provide special 
education and related services to children with disabilities, including, 
in a geographic area of the State where there is a shortage of personnel 
that meet these qualifications, the most qualified individuals available 
who are making satisfactory progress toward completing applicable course 
work necessary to meet the standards described in paragraph (b)(2) of 
this section, consistent with State law and the steps described in 
paragraph (c) of this section, within three years.
    (2) If a State has reached its established date under paragraph (c) 
of this section, the State may still exercise the option under paragraph 
(g)(1) of this section for training or hiring all personnel in a 
specific profession or discipline to meet appropriate professional 
requirements in the State.
    (3)(i) Each State must have a mechanism for serving children with 
disabilities if instructional needs exceed available personnel who meet 
appropriate professional requirements in the

[[Page 26]]

State for a specific profession or discipline.
    (ii) A State that continues to experience shortages of qualified 
personnel must address those shortages in its comprehensive system of 
personnel development under Sec. 300.135.

(Authority: 20 U.S.C. 1412(a)(15))



Sec. 300.137  Performance goals and indicators.

    The State must have on file with the Secretary information to 
demonstrate that the State--
    (a) Has established goals for the performance of children with 
disabilities in the State that--
    (1) Will promote the purposes of this part, as stated in Sec. 300.1; 
and
    (2) Are consistent, to the maximum extent appropriate, with other 
goals and standards for all children established by the State;
    (b) Has established performance 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;
    (c) Every two years, will report to the Secretary and the public on 
the progress of the State, and of children with disabilities in the 
State, toward meeting the goals established under paragraph (a) of this 
section; and
    (d) Based on its assessment of that progress, will revise its State 
improvement plan under subpart 1 of Part D of the Act as may be needed 
to improve its performance, if the State receives assistance under that 
subpart.

(Authority: 20 U.S.C. 1412(a)(16))



Sec. 300.138  Participation in assessments.

    The State must have on file with the Secretary information to 
demonstrate that--
    (a) Children with disabilities are included in general State and 
district-wide assessment programs, with appropriate accommodations and 
modifications in administration, if necessary;
    (b) As appropriate, the State or LEA--
    (1) Develops guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in State and district-wide assessment programs;
    (2) Develops alternate assessments in accordance with paragraph 
(b)(1) of this section; and
    (3) Beginning not later than, July 1, 2000, conducts the alternate 
assessments described in paragraph (b)(2) of this section.

(Authority: 20 U.S.C. 1412(a)(17)(A))



Sec. 300.139  Reports relating to assessments.

    (a) General. In implementing the requirements of Sec. 300.138, the 
SEA shall make available to the public, and report to the public with 
the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following information:
    (1) The number of children with disabilities participating--
    (i) In regular assessments; and
    (ii) In alternate assessments.
    (2) The performance results of the children described in paragraph 
(a)(1) of this section if doing so would be statistically sound and 
would not result in the disclosure of performance results identifiable 
to individual children--
    (i) On regular assessments (beginning not later than July 1, 1998); 
and
    (ii) On alternate assessments (not later than July 1, 2000).
    (b) Combined reports. Reports to the public under paragraph (a) of 
this section must include--
    (1) Aggregated data that include the performance of children with 
disabilities together with all other children; and
    (2) Disaggregated data on the performance of children with 
disabilities.
    (c) Timeline for disaggregation of data. Data relating to the 
performance of children described under paragraph (a)(2) of this section 
must be disaggregated--
    (1) For assessments conducted after July 1, 1998; and
    (2) For assessments conducted before July 1, 1998, if the State is 
required to disaggregate the data prior to July 1, 1998.

(Authority: 20 U.S.C. 612(a)(17)(B))

[[Page 27]]



Sec. 300.140  [Reserved]



Sec. 300.141  SEA responsibility for general supervision.

    (a) The State must have on file with the Secretary information that 
shows that the requirements of Sec. 300.600 are met.
    (b) The information described under paragraph (a) of this section 
must include a copy of each State statute, State regulation, signed 
agreement between respective agency officials, and any other documents 
that show compliance with that paragraph.

(Authority: 20 U.S.C. 1412(a)(11))



Sec. 300.142  Methods of ensuring services.

    (a) Establishing responsibility for services. The Chief Executive 
Officer or designee of that officer shall ensure that an interagency 
agreement or other mechanism for interagency coordination is in effect 
between each noneducational public agency described in paragraph (b) of 
this section and the SEA, in order to ensure that all services described 
in paragraph (b)(1) of this section that are needed to ensure FAPE are 
provided, including the provision of these services during the pendency 
of any dispute under paragraph (a)(3) of this section. The agreement or 
mechanism must include the following:
    (1) Agency financial responsibility. An identification of, or a 
method for defining, the financial responsibility of each agency for 
providing services described in paragraph (b)(1) of this section to 
ensure FAPE to children with disabilities. The financial responsibility 
of each noneducational public agency described in paragraph (b) of this 
section, 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).
    (2) Conditions and terms of reimbursement. The conditions, terms, 
and procedures under which an LEA must be reimbursed by other agencies.
    (3) Interagency disputes. Procedures for resolving interagency 
disputes (including procedures under which LEAs may initiate 
proceedings) under the agreement or other mechanism to secure 
reimbursement from other agencies or otherwise implement the provisions 
of the agreement or mechanism.
    (4) Coordination of services procedures. Policies and procedures for 
agencies to determine and identify the interagency coordination 
responsibilities of each agency to promote the coordination and timely 
and appropriate delivery of services described in paragraph (b)(1) of 
this section.
    (b) Obligation of noneducational public agencies. (1) General. (i) 
If any public agency other than an educational agency is otherwise 
obligated under Federal or State law, or assigned responsibility under 
State policy or pursuant to paragraph (a) of this section, to provide or 
pay for any services that are also considered special education or 
related services (such as, but not limited to, services described in 
Sec. 300.5 relating to assistive technology devices, Sec. 300.6 relating 
to assistive technology services, Sec. 300.24 relating to related 
services, Sec. 300.28 relating to supplementary aids and services, and 
Sec. 300.29 relating to transition services) that are necessary for 
ensuring FAPE to children with disabilities within the State, the public 
agency shall fulfill that obligation or responsibility, either directly 
or through contract or other arrangement.
    (ii) A noneducational public agency described in paragraph (b)(1)(i) 
of this section may not disqualify an eligible service for Medicaid 
reimbursement because that service is provided in a school context.
    (2) Reimbursement for services by noneducational public agency. If a 
public agency other than an educational agency fails to provide or pay 
for the special education and related services described in paragraph 
(b)(1) of this section, 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. The LEA or State agency may then claim 
reimbursement for the services from the noneducational public agency 
that failed to provide or pay for these services and that agency shall 
reimburse the LEA or State agency in accordance with the terms of the 
interagency

[[Page 28]]

agreement or other mechanism described in paragraph (a)(1) of this 
section, and the agreement described in paragraph (a)(2) of this 
section.
    (c) Special rule. The requirements of paragraph (a) of this section 
may be met through--
    (1) State statute or regulation;
    (2) Signed agreements between respective agency officials that 
clearly identify the responsibilities of each agency relating to the 
provision of services; or
    (3) Other appropriate written methods as determined by the Chief 
Executive Officer of the State or designee of that officer.
    (d) Information. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraphs (a) 
through (c) of this section are met.
    (e) Children with disabilities who are covered by public insurance. 
(1) A public agency may use the Medicaid or other public insurance 
benefits programs in which a child participates to provide or pay for 
services required under this part, as permitted under the public 
insurance program, except as provided in paragraph (e)(2) of this 
section.
    (2) With regard to services required to provide FAPE to an eligible 
child under this part, the public agency--
    (i) May not require parents to sign up for or enroll in public 
insurance programs in order for their child to receive FAPE under Part B 
of the Act;
    (ii) May not require parents to incur an out-of-pocket expense such 
as the payment of a deductible or co-pay amount incurred in filing a 
claim for services provided pursuant to this part, but pursuant to 
paragraph (g)(2) of this section, may pay the cost that the parent 
otherwise would be required to pay; and
    (iii) May not use a child's benefits under a public insurance 
program if that use would--
    (A) Decrease available lifetime coverage or any other insured 
benefit;
    (B) Result in the family paying for services that would otherwise be 
covered by the public insurance program and that are required for the 
child outside of the time the child is in school;
    (C) Increase premiums or lead to the discontinuation of insurance; 
or
    (D) Risk loss of eligibility for home and community-based waivers, 
based on aggregate health-related expenditures.
    (f) Children with disabilities who are covered by private insurance. 
(1) With regard to services required to provide FAPE to an eligible 
child under this part, a public agency may access a parent's private 
insurance proceeds only if the parent provides informed consent 
consistent with Sec. 300.500(b)(1).
    (2) Each time the public agency proposes to access the parent's 
private insurance proceeds, it must--
    (i) Obtain parent consent in accordance with paragraph (f)(1) of 
this section; and
    (ii) Inform the parents that their refusal to permit the public 
agency to access their private insurance does not relieve the public 
agency of its responsibility to ensure that all required services are 
provided at no cost to the parents.
    (g) Use of Part B funds. (1) If a public agency is unable to obtain 
parental consent to use the parent's private insurance, or public 
insurance when the parent would incur a cost for a specified service 
required under this part, to ensure FAPE the public agency may use its 
Part B funds to pay for the service.
    (2) To avoid financial cost to parents who otherwise would consent 
to use private insurance, or public insurance if the parent would incur 
a cost, the public agency may use its Part B funds to pay the cost the 
parents otherwise would have to pay to use the parent's insurance (e.g., 
the deductible or co-pay amounts).
    (h) Proceeds from public or private insurance. (1) Proceeds from 
public or private insurance will not be treated as program income for 
purposes of 34 CFR 80.25.
    (2) If a public agency spends reimbursements from Federal funds 
(e.g., Medicaid) for services under this part, those funds will not be 
considered ``State or local'' funds for purposes of the maintenance of 
effort provisions in Secs. 300.154 and 300.231.

[[Page 29]]

    (i) Construction. Nothing in this part should be construed to alter 
the requirements imposed on a State Medicaid agency, or any other agency 
administering a public insurance program by Federal statute, regulations 
or policy under title XIX, or title XXI of the Social Security Act, or 
any other public insurance program.

(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))



Sec. 300.143  SEA implementation of procedural safeguards.

    The State must have on file with the Secretary the procedures that 
the SEA (and any agency assigned responsibility pursuant to 
Sec. 300.600(d)) follows to inform each public agency of its 
responsibility for ensuring effective implementation of procedural 
safeguards for the children with disabilities served by that public 
agency.

(Authority: 20 U.S.C. 1412(a)(11); 1415(a))



Sec. 300.144  Hearings relating to LEA eligibility.

    The State must have on file with the Secretary procedures to ensure 
that the SEA does not make any final determination that an LEA is not 
eligible for assistance under Part B of the Act without first giving the 
LEA reasonable notice and an opportunity for a hearing under 34 CFR 
76.401(d).

(Authority: 20 U.S.C. 1412(a)(13))



Sec. 300.145  Recovery of funds for misclassified children.

    The State must have on file with the Secretary policies and 
procedures that ensure that the State seeks to recover any funds 
provided under Part B of the Act for services to a child who is 
determined to be erroneously classified as eligible to be counted under 
section 611(a) or (d) of the Act.

(Authority: 20 U.S.C. 1221e-3(a)(1))



Sec. 300.146  Suspension and expulsion rates.

    The State must have on file with the Secretary information to 
demonstrate that the following requirements are met:
    (a) General. The SEA examines data to determine if significant 
discrepancies are occurring in the rate of long-term suspensions and 
expulsions of children with disabilities--
    (1) Among LEAs in the State; or
    (2) Compared to the rates for nondisabled children within the 
agencies.
    (b) Review and revision of policies. If the discrepancies described 
in paragraph (a) of this section are occurring, the SEA reviews and, if 
appropriate, revises (or requires the affected State agency or LEA to 
revise) its policies, procedures, and practices relating to the 
development and implementation of IEPs, the use of behavioral 
interventions, and procedural safeguards, to ensure that these policies, 
procedures, and practices comply with the Act.

(Authority: 20 U.S.C. 612(a)(22))



Sec. 300.147  Additional information if SEA provides direct services.

    (a) If the SEA provides FAPE to children with disabilities, or 
provides direct services to these children, the agency--
    (1) Shall comply with any additional requirements of Secs. 300.220-
300.230(a) and 300.234-300.250 as if the agency were an LEA; and
    (2) May use amounts that are otherwise available to the agency under 
Part B of the Act to serve those children without regard to Sec. 300.184 
(relating to excess costs).
    (b) The SEA must have on file with the Secretary information to 
demonstrate that it meets the requirements of paragraph (a)(1) of this 
section.

(Authority: 20 U.S.C. 1412(b))



Sec. 300.148  Public participation.

    (a) General; exception. (1) Subject to paragraph (a)(2) of this 
section, each State must ensure that, prior to the adoption of any 
policies and procedures needed to comply with this part, there are 
public hearings, adequate notice of the hearings, and an opportunity for 
comment available to the general public, including individuals with 
disabilities and parents of children with disabilities consistent with 
Secs. 300.280-300.284.
    (2) A State will be considered to have met paragraph (a)(1) of this 
section with regard to a policy or procedure needed to comply with this 
part if it

[[Page 30]]

can demonstrate that prior to the adoption of that policy or procedure, 
the policy or procedure was subjected to a public review and comment 
process that is required by the State for other purposes and is 
comparable to and consistent with the requirements of Secs. 300.280-
300.284.
    (b) Documentation. The State must have on file with the Secretary 
information to demonstrate that the requirements of paragraph (a) of 
this section are met.

(Authority: 20 U.S.C. 1412(a)(20))



Sec. 300.149  [Reserved]



Sec. 300.150  State advisory panel.

    The State must have on file with the Secretary information to 
demonstrate that the State has established and maintains an advisory 
panel for the purpose of providing policy guidance with respect to 
special education and related services for children with disabilities in 
the State in accordance with the requirements of Secs. 300.650-300.653.

(Authority: 20 U.S.C. 1412(a)(21)(A))



Sec. 300.151  [Reserved]



Sec. 300.152  Prohibition against commingling.

    (a) The State must have on file with the Secretary an assurance 
satisfactory to the Secretary that the funds under Part B of the Act are 
not commingled with State funds.
    (b) The assurance in paragraph (a) of this section is satisfied by 
the use of a separate accounting system that includes an audit trail of 
the expenditure of the Part B funds. Separate bank accounts are not 
required. (See 34 CFR 76.702 (Fiscal control and fund accounting 
procedures).)

(Authority: 20 U.S.C. 1412(a)(18)(B))



Sec. 300.153  State-level nonsupplanting.

    (a) General. (1) Except as provided in Sec. 300.230, funds paid to a 
State under Part B of the Act must be used to supplement the level of 
Federal, State, and local funds (including funds that are not under the 
direct control of the SEA or LEAs) expended for special education and 
related services provided to children with disabilities under Part B of 
the Act and in no case to supplant these Federal, State, and local 
funds.
    (2) The State must have on file with the Secretary information to 
demonstrate to the satisfaction of the Secretary that the requirements 
of paragraph (a)(1) of this section are met.
    (b) Waiver. If the State provides clear and convincing evidence that 
all children with disabilities have available to them FAPE, the 
Secretary may waive, in whole or in part, the requirements of paragraph 
(a) of this section if the Secretary concurs with the evidence provided 
by the State under Sec. 300.589.

(Authority: 20 U.S.C. 1412(a)(18)(c))



Sec. 300.154  Maintenance of State financial support.

    (a) General. The State must have on file with the Secretary 
information to demonstrate, on either a total or per-capita basis, that 
the State will not reduce the amount of State financial support for 
special education and related services for children with disabilities, 
or otherwise made available because of the excess costs of educating 
those children, below the amount of that support for the preceding 
fiscal year.
    (b) Reduction of funds for failure to maintain support. The 
Secretary reduces the allocation of funds under section 611 of the Act 
for any fiscal year following the fiscal year in which the State fails 
to comply with the requirement of paragraph (a) of this section by the 
same amount by which the State fails to meet the requirement.
    (c) Waivers for exceptional or uncontrollable circumstances. The 
Secretary may waive the requirement of paragraph (a) of this section for 
a State, for one fiscal year at a time, if the Secretary determines 
that--
    (1) Granting a waiver would be equitable due to exceptional or 
uncontrollable circumstances such as a natural disaster or a precipitous 
and unforeseen decline in the financial resources of the State; or
    (2) The State meets the standard in Sec. 300.589 for a waiver of the 
requirement to supplement, and not to supplant, funds received under 
Part B of the Act.
    (d) Subsequent years. If, for any fiscal year, a State fails to meet 
the requirement of paragraph (a) of this section,

[[Page 31]]

including any year for which the State is granted a waiver under 
paragraph (c) of this section, the financial support required of the 
State in future years under paragraph (a) of this section must be the 
amount that would have been required in the absence of that failure and 
not the reduced level of the State's support.

(Authority: 20 U.S.C. 1412(a)(19))



Sec. 300.155  Policies and procedures for use of Part B funds.

    The State must have on file with the Secretary policies and 
procedures designed to ensure that funds paid to the State under Part B 
of the Act are spent in accordance with the provisions of Part B.

(Authority: 20 U.S.C. 1412(a)(18)(A))



Sec. 300.156  Annual description of use of Part B funds.

    (a) In order to receive a grant in any fiscal year a State must 
annually describe--
    (1) How amounts retained for State-level activities under 
Sec. 300.602 will be used to meet the requirements of this part;
    (2) How those amounts will be allocated among the activities 
described in Secs. 300.621 and 300.370 to meet State priorities based on 
input from LEAs; and
    (3) The percentage of those amounts, if any, that will be 
distributed to LEAs by formula.
    (b) If a State's plans for use of its funds under Secs. 300.370 and 
300.620 for the forthcoming year do not change from the prior year, the 
State may submit a letter to that effect to meet the requirement in 
paragraph (a) of this section.

(Authority: 20 U.S.C. 1411(f)(5))

               LEA and State Agency Eeligibility--General



Sec. 300.180  Condition of assistance.

    An LEA or State agency is eligible for assistance under Part B of 
the Act for a fiscal year if the agency demonstrates to the satisfaction 
of the SEA that it meets the conditions in Secs. 300.220-300.250.

(Authority: 20 U.S.C. 1413(a))



Sec. 300.181  Exception for prior LEA or State agency policies and procedures on file with the SEA.

    If an LEA or a State agency described in Sec. 300.194 has on file 
with the SEA policies and procedures that demonstrate that the LEA or 
State agency meets any requirement of Sec. 300.180, including any 
policies and procedures filed under Part B of the Act as in effect 
before June 4, 1997, the SEA shall consider the LEA or State agency to 
have met the requirement for purposes of receiving assistance under Part 
B of the Act.

(Authority: 20 U.S.C. 1413(b)(1))



Sec. 300.182  Amendments to LEA policies and procedures.

    (a) Modification made by an LEA or a State agency. (1) Subject to 
paragraph (b) of this section, policies and procedures submitted by an 
LEA or a State agency in accordance with this subpart remain in effect 
until it submits to the SEA the modifications that the LEA or State 
agency decides are necessary.
    (2) The provisions of this subpart apply to a modification to an 
LEA's or State agency's policies and procedures in the same manner and 
to the same extent that they apply to the LEA's or State agency's 
original policies and procedures.
    (b) Modifications required by the SEA. The SEA may require an LEA or 
a State agency to modify its policies and procedures, but only to the 
extent necessary to ensure the LEA's or State agency's compliance with 
this part, if--
    (1) After June 4, 1997, the provisions of the Act or the regulations 
in this part are amended;
    (2) There is a new interpretation of the Act by Federal or State 
courts; or
    (3) There is an official finding of noncompliance with Federal or 
State law or regulations.

(Authority: 20 U.S.C. 1413(b))



Sec. 300.183  [Reserved]



Sec. 300.184  Excess cost requirement.

    (a) General. Amounts provided to an LEA under Part B of the Act may 
be used only to pay the excess costs of providing special education and 
related services to children with disabilities.

[[Page 32]]

    (b) Definition. As used in this part, the term excess costs means 
those costs that are in excess of the average annual per-student 
expenditure in an LEA during the preceding school year for an elementary 
or secondary school student, as may be appropriate. Excess costs must be 
computed after deducting--
    (1) Amounts received--
    (i) Under Part B of the Act;
    (ii) Under Part A of title I of the Elementary and Secondary 
Education Act of 1965; or
    (iii) Under Part A of title VII of that Act; and
    (2) Any State or local funds expended for programs that would 
qualify for assistance under any of those parts.
    (c) LLimitation on use of Part B funds. (1) The excess cost 
requirement prevents an LEA from using funds provided under Part B of 
the Act to pay for all of the costs directly attributable to the 
education of a child with a disability, subject to paragraph (c)(2) of 
this section.
    (2) The excess cost requirement does not prevent an LEA from using 
Part B funds to pay for all of the costs directly attributable to the 
education of a child with a disability in any of the ages 3, 4, 5, 18, 
19, 20, or 21, if no local or State funds are available for nondisabled 
children in that age range. However, the LEA must comply with the 
nonsupplanting and other requirements of this part in providing the 
education and services for these children.

(Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))



Sec. 300.185  Meeting the excess cost requirement.

    (a)(1) General. An LEA meets the excess cost requirement if it has 
spent at least a minimum average amount for the education of its 
children with disabilities before funds under Part B of the Act are 
used.
    (2) The amount described in paragraph (a)(1) of this section is 
determined using the formula in Sec. 300.184(b). This amount may not 
include capital outlay or debt service.
    (b) Joint establishment of eligibility. If two or more LEAs jointly 
establish eligibility in accordance with Sec. 300.190, the minimum 
average amount is the average of the combined minimum average amounts 
determined under Sec. 300.184 in those agencies for elementary or 
secondary school students, as the case may be.

(Authority: 20 U.S.C. 1413(a)(2)(A))



Secs. 300.186-300.189  [Reserved]



Sec. 300.190  Joint establishment of eligibility.

    (a) General. An SEA may require an LEA to establish its eligibility 
jointly with another LEA if the SEA determines that the LEA would be 
ineligible under this section because the agency would not be able to 
establish and maintain programs of sufficient size and scope to 
effectively meet the needs of children with disabilities.
    (b) Charter school exception. An SEA may not require a charter 
school that is an LEA to jointly establish its eligibility under 
paragraph (a) of this section unless it is explicitly permitted to do so 
under the State's charter school statute.
    (c) Amount of payments. If an SEA requires the joint establishment 
of eligibility under paragraph (a) of this section, the total amount of 
funds made available to the affected LEAs must be equal to the sum of 
the payments that each LEA would have received under Secs. 300.711-
300.714 if the agencies were eligible for these payments.

(Authority: 20 U.S.C. 1413(e)(1), and (2))



Sec. 300.191  [Reserved]



Sec. 300.192  Requirements for establishing eligibility.

    (a) Requirements for LEAs in general. LEAs that establish joint 
eligibility under this section must--
    (1) Adopt policies and procedures that are consistent with the 
State's policies and procedures under Secs. 300.121-300.156; and
    (2) Be jointly responsible for implementing programs that receive 
assistance under Part B of the Act.
    (b) Requirements for educational service agencies in general. If an 
educational service agency is required by State law to carry out 
programs under Part B of the Act, the joint responsibilities given to 
LEAs under Part B of the Act--
    (1) Do not apply to the administration and disbursement of any 
payments

[[Page 33]]

received by that educational service agency; and
    (2) Must be carried out only by that educational service agency.
    (c) Additional requirement. Notwithstanding any other provision of 
Secs. 300.190-300.192, an educational service agency shall provide for 
the education of children with disabilities in the least restrictive 
environment, as required by Sec. 300.130.

(Authority: 20 U.S.C. 1413(e)(3), and (4))



Sec. 300.193  [Reserved]



Sec. 300.194  State agency eligibility.

    Any State agency that desires to receive a subgrant for any fiscal 
year under Secs. 300.711-300.714 must demonstrate to the satisfaction of 
the SEA that--
    (a) All children with disabilities who are participating in programs 
and projects funded under Part B of the Act receive FAPE, and that those 
children and their parents are provided all the rights and procedural 
safeguards described in this part; and
    (b) The agency meets the other conditions of this subpart that apply 
to LEAs.

(Authority: 20 U.S.C. 1413(i))



Sec. 300.195  [Reserved]



Sec. 300.196  Notification of LEA or State agency in case of ineligibility.

    If the SEA determines that an LEA or State agency is not eligible 
under Part B of the Act, the SEA shall--
    (a) Notify the LEA or State agency of that determination; and
    (b) Provide the LEA or State agency with reasonable notice and an 
opportunity for a hearing.

(Authority: 20 U.S.C. 1413(c))



Sec. 300.197  LEA and State agency compliance.

    (a) General. If the SEA, after reasonable notice and an opportunity 
for a hearing, finds that an LEA or State agency that has been 
determined to be eligible under this section is failing to comply with 
any requirement described in Secs. 300.220-300.250, the SEA shall reduce 
or may not provide any further payments to the LEA or State agency until 
the SEA is satisfied that the LEA or State agency is complying with that 
requirement.
    (b) Notice requirement. Any State agency or LEA in receipt of a 
notice described in paragraph (a) of this section shall, by means of 
public notice, take the measures necessary to bring the pendency of an 
action pursuant to this section to the attention of the public within 
the jurisdiction of the agency.
    (c) In carrying out its functions under this section, each SEA shall 
consider any decision resulting from a hearing under Secs. 300.507-
300.528 that is adverse to the LEA or State agency involved in the 
decision.

(Authority: 20 U.S.C. 1413(d))

          LEA and State Agency Eligibility--Specific Conditions



Sec. 300.220  Consistency with State policies.

    (a) General. The LEA, in providing for the education of children 
with disabilities within its jurisdiction, must have in effect policies, 
procedures, and programs that are consistent with the State policies and 
procedures established under Secs. 300.121-300.156.
    (b) Policies on file with SEA. The LEA must have on file with the 
SEA the policies and procedures described in paragraph (a) of this 
section.

(Authority: 20 U.S.C. 1413(a)(1))



Sec. 300.221  Implementation of CSPD.

    The LEA must have on file with the SEA information to demonstrate 
that--
    (a) All personnel necessary to carry out Part B of the Act within 
the jurisdiction of the agency are appropriately and adequately 
prepared, consistent with the requirements of Secs. 300.380-300.382; and
    (b) To the extent the LEA determines appropriate, it shall 
contribute to and use the comprehensive system of personnel development 
of the State established under Sec. 300.135.

(Authority: 20 U.S.C. 1413(a)(3))

[[Page 34]]



Secs. 300.222-300.229  [Reserved]



Sec. 300.230  Use of amounts.

    The LEA must have on file with the SEA information to demonstrate 
that amounts provided to the LEA under Part B of the Act--
    (a) Will be expended in accordance with the applicable provisions of 
this part;
    (b) Will be used only to pay the excess costs of providing special 
education and related services to children with disabilities, consistent 
with Secs. 300.184-300.185; and
    (c) Will be used to supplement State, local, and other Federal funds 
and not to supplant those funds.

(Authority: 20 U.S.C. 1413(a)(2)(A))



Sec. 300.231  Maintenance of effort.

    (a) General. Except as provided in Secs. 300.232 and 300.233, funds 
provided to an LEA under Part B of the Act may not be used to reduce the 
level of expenditures for the education of children with disabilities 
made by the LEA from local funds below the level of those expenditures 
for the preceding fiscal year.
    (b) Information. The LEA must have on file with the SEA information 
to demonstrate that the requirements of paragraph (a) of this section 
are met.
    (c) Standard. (1) Except as provided in paragraph (c)(2) of this 
section, the SEA determines that an LEA complies with paragraph (a) of 
this section for purposes of establishing the LEA's eligibility for an 
award for a fiscal year if the LEA budgets, for the education of 
children with disabilities, at least the same total or per-capita amount 
from either of the following sources as the LEA spent for that purpose 
from the same source for the most recent prior year for which 
information is available:
    (i) Local funds only.
    (ii) The combination of State and local funds.
    (2) An LEA that relies on paragraph (c)(1)(i) of this section for 
any fiscal year must ensure that the amount of local funds it budgets 
for the education of children with disabilities in that year is at least 
the same, either in total or per capita, as the amount it spent for that 
purpose in--
    (i) The most recent fiscal year for which information is available, 
if that year is, or is before, the first fiscal year beginning on or 
after July 1, 1997; or
    (ii) If later, the most recent fiscal year for which information is 
available and the standard in paragraph (c)(1)(i) of this section was 
used to establish its compliance with this section.
    (3) The SEA may not consider any expenditures made from funds 
provided by the Federal Government for which the SEA is required to 
account to the Federal Government or for which the LEA is required to 
account to the Federal Government directly or through the SEA in 
determining an LEA's compliance with the requirement in paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1413(a)(2)(A))



Sec. 300.232  Exception to maintenance of effort.

    An LEA may reduce the level of expenditures by the LEA under Part B 
of the Act below the level of those expenditures for the preceding 
fiscal year if the reduction is attributable to the following:
    (a)(1) The 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.
    (2) In order for an LEA to invoke the exception in paragraph (a)(1) 
of this section, the LEA must ensure that those voluntary retirements or 
resignations and replacements are in full conformity with:
    (i) Existing school board policies in the agency;
    (ii) The applicable collective bargaining agreement in effect at 
that time; and
    (iii) Applicable State statutes.
    (b) A decrease in the enrollment of children with disabilities.
    (c) The termination of the obligation of the agency, consistent with 
this part, to provide a program of special education to a particular 
child with a disability that is an exceptionally costly program, as 
determined by the SEA, because the child--

[[Page 35]]

    (1) Has left the jurisdiction of the agency;
    (2) Has reached the age at which the obligation of the agency to 
provide FAPE to the child has terminated; or
    (3) No longer needs the program of special education.
    (d) The termination of costly expenditures for long-term purchases, 
such as the acquisition of equipment or the construction of school 
facilities.

(Authority: 20 U.S.C. 1413(a)(2)(B))



Sec. 300.233  Treatment of Federal funds in certain fiscal years.

    (a)(1) Subject to paragraphs (a)(2) and (b) of this section, for any 
fiscal year for which amounts appropriated to carry out section 611 of 
the Act exceeds $4,100,000,000, an LEA may treat as local funds up to 20 
percent of the amount of funds it receives under Part B of the Act that 
exceeds the amount it received under Part B of the Act for the previous 
fiscal year.
    (2) The requirements of Secs. 300.230(c) and 300.231 do not apply 
with respect to the amount that may be treated as local funds under 
paragraph (a)(1) of this section.
    (b) If an SEA determines that an LEA is not meeting the requirements 
of this part, the SEA may prohibit the LEA from treating funds received 
under Part B of the Act as local funds under paragraph (a)(1) of this 
section for any fiscal year, but only if it is authorized to do so by 
the State constitution or a State statute.

(Authority: 20 U.S.C. 1413(a)(2)(C))



Sec. 300.234  Schoolwide programs under title I of the ESEA.

    (a) General; limitation on amount of Part B funds used. An LEA may 
use funds received under Part B of the Act for any fiscal year to carry 
out a schoolwide program under section 1114 of the Elementary and 
Secondary Education Act of 1965, except that the amount used in any 
schoolwide program may not exceed--
    (1)(i) The amount received by the LEA under Part B for that fiscal 
year; divided by
    (ii) The number of children with disabilities in the jurisdiction of 
the LEA; and multiplied by
    (2) The number of children with disabilities participating in the 
schoolwide program.
    (b) Funding conditions. The funds described in paragraph (a) of this 
section are subject to the following conditions:
    (1) The funds must be considered as Federal Part B funds for 
purposes of the calculations required by Secs. 300.230(b) and (c).
    (2) The funds may be used without regard to the requirements of 
Sec. 300.230(a).
    (c) Meeting other Part B requirements. Except as provided in 
paragraph (b) of this section, all other requirements of Part B must be 
met by an LEA using Part B funds in accordance with paragraph (a) of 
this section, including ensuring that children with disabilities in 
schoolwide program schools--
    (1) Receive services in accordance with a properly developed IEP; 
and
    (2) Are afforded all of the rights and services guaranteed to 
children with disabilities under the IDEA.

(Authority: 20 U.S.C. 1413(a)(2)(D))



Sec. 300.235  Permissive use of funds.

    (a) General. Subject to paragraph (b) of this section, funds 
provided to an LEA under Part B of the Act may be used for the following 
activities:
    (1) Services and aids that also benefit nondisabled children. 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.
    (2) Integrated and coordinated services system. To develop and 
implement a fully integrated and coordinated services system in 
accordance with Sec. 300.244.
    (b) Non-applicability of certain provisions. An LEA does not violate 
Secs. 300.152, 300.230, and 300.231 based on its use of funds provided 
under Part B of the Act in accordance with paragraphs (a)(1) and (a)(2) 
of this section.

(Authority: 20 U.S.C. 1413(a)(4))

[[Page 36]]



Secs. 300.236-300.239  [Reserved]



Sec. 300.240  Information for SEA.

    (a) The LEA shall provide the SEA with information necessary to 
enable the SEA to carry out its duties under Part B of the Act, 
including, with respect to Secs. 300.137 and 300.138, information 
relating to the performance of children with disabilities participating 
in programs carried out under Part B of the Act.
    (b) The LEA must have on file with the SEA an assurance satisfactory 
to the SEA that the LEA will comply with the requirements of paragraph 
(a) of this section.

(Authority: 20 U.S.C. 1413(a)(6))



Sec. 300.241  Treatment of charter schools and their students.

    The LEA must have on file with the SEA information to demonstrate 
that in carrying out this part with respect to charter schools that are 
public schools of the LEA, the LEA will--
    (a) Serve children with disabilities attending those schools in the 
same manner as it serves children with disabilities in its other 
schools; and
    (b) Provide funds under Part B of the Act to those schools in the 
same manner as it provides those funds to its other schools.

(Authority: 20 U.S.C. 1413(a)(5))



Sec. 300.242  Public information.

    The LEA must have on file with the SEA information to demonstrate to 
the satisfaction of the SEA that it will make available to parents of 
children with disabilities and to the general public all documents 
relating to the eligibility of the agency under Part B of the Act.

(Authority: 20 U.S.C. 1413(a)(7))



Sec. 300.243  [Reserved]



Sec. 300.244  Coordinated services system.

    (a) General. An LEA may not use more than 5 percent of the amount 
the agency receives under Part B of the Act for any fiscal year, in 
combination with other amounts (which must include amounts other than 
education funds), to develop and implement a coordinated services system 
designed to improve results for children and families, including 
children with disabilities and their families.
    (b) Activities. In implementing a coordinated services system under 
this section, an LEA may carry out activities that include--
    (1) Improving the effectiveness and efficiency of service delivery, 
including developing strategies that promote accountability for results;
    (2) Service coordination and case management that facilitate the 
linkage of IEPs under Part B of the Act and IFSPs under Part C of the 
Act with individualized service plans under multiple Federal and State 
programs, such as title I of the Rehabilitation Act of 1973 (vocational 
rehabilitation), title XIX of the Social Security Act (Medicaid), and 
title XVI of the Social Security Act (supplemental security income);
    (3) Developing and implementing interagency financing strategies for 
the provision of education, health, mental health, and social services, 
including transition services and related services under the Act; and
    (4) Interagency personnel development for individuals working on 
coordinated services.
    (c) Coordination with certain projects under Elementary and 
Secondary Education Act of 1965. If an LEA is carrying out a coordinated 
services project under title XI of the Elementary and Secondary 
Education Act of 1965 and a coordinated services project under Part B of 
the Act in the same schools, the agency shall use the amounts under 
Sec. 300.244 in accordance with the requirements of that title.

(Authority: 20 U.S.C. 1413(f))

                      School-Based Improvement Plan



Sec. 300.245  School-based improvement plan.

    (a) General. Each LEA may, in accordance with paragraph (b) of this 
section, use funds made available under Part B of the Act to permit a 
public school within the jurisdiction of the LEA to design, implement, 
and evaluate a school-based improvement plan that--
    (1) Is consistent with the purposes described in section 651(b) of 
the Act; and

[[Page 37]]

    (2) Is designed to improve educational and transitional results for 
all children with disabilities and, as appropriate, for other children 
consistent with Sec. 300.235(a) and (b) in that public school.
    (b) Authority. (1) General. An SEA may grant authority to an LEA to 
permit a public school described in Sec. 300.245 (through a school-based 
standing panel established under Sec. 300.247(b)) to design, implement, 
and evaluate a school-based improvement plan described in Sec. 300.245 
for a period not to exceed 3 years.
    (2) Responsibility of LEA. If an SEA grants the authority described 
in paragraph (b)(1) of this section, an LEA that is granted this 
authority must have the sole responsibility of oversight of all 
activities relating to the design, implementation, and evaluation of any 
school-based improvement plan that a public school is permitted to 
design under this section.

(Authority: 20 U.S.C. 1413(g)(1) and (g)(2)).



Sec. 300.246  Plan requirements.

    A school-based improvement plan described in Sec. 300.245 must--
    (a) Be designed to be consistent with the purposes described in 
section 651(b) of the Act and to improve educational and transitional 
results for all children with disabilities and, as appropriate, for 
other children consistent with Sec. 300.235(a) and (b), who attend the 
school for which the plan is designed and implemented;
    (b) Be designed, evaluated, and, as appropriate, implemented by a 
school-based standing panel established in accordance with 
Sec. 300.247(b);
    (c) Include goals and measurable indicators to assess the progress 
of the public school in meeting these goals; and
    (d) Ensure that all children with disabilities receive the services 
described in their IEPs.

(Authority: 20 U.S.C. 1413(g)(3))



Sec. 300.247  Responsibilities of the LEA.

    An LEA that is granted authority under Sec. 300.245(b) to permit a 
public school to design, implement, and evaluate a school-based 
improvement plan shall--
    (a) Select each school under the jurisdiction of the agency that is 
eligible to design, implement, and evaluate the plan;
    (b) Require each school selected under paragraph (a) of this 
section, in accordance with criteria established by the LEA under 
paragraph (c) of this section, to establish a school-based standing 
panel to carry out the duties described in Sec. 300.246(b);
    (c) Establish--
    (1) Criteria that must be used by the LEA in the selection of an 
eligible school under paragraph (a) of this section;
    (2) Criteria that must be used by a public school selected under 
paragraph (a) of this section in the establishment of a school-based 
standing panel to carry out the duties described in Sec. 300.246(b) and 
that ensure that the membership of the panel reflects the diversity of 
the community in which the public school is located and includes, at a 
minimum--
    (i) Parents of children with disabilities who attend a public 
school, including parents of children with disabilities from unserved 
and underserved populations, as appropriate;
    (ii) Special education and general education teachers of public 
schools;
    (iii) Special education and general education administrators, or the 
designee of those administrators, of those public schools; and
    (iv) Related services providers who are responsible for providing 
services to the children with disabilities who attend those public 
schools; and
    (3) Criteria that must be used by the LEA with respect to the 
distribution of funds under Part B of the Act to carry out this section;
    (d) Disseminate the criteria established under paragraph (c) of this 
section to local school district personnel and local parent 
organizations within the jurisdiction of the LEA;
    (e) Require a public school that desires to design, implement, and 
evaluate a school-based improvement plan to submit an application at the 
time, in the manner and accompanied by the information, that the LEA 
shall reasonably require; and

[[Page 38]]

    (f) Establish procedures for approval by the LEA of a school-based 
improvement plan designed under Part B of the Act.

(Authority:1413(g)(4))



Sec. 300.248  Limitation.

    A school-based improvement plan described in Sec. 300.245(a) may be 
submitted to an LEA for approval only if a consensus with respect to any 
matter relating to the design, implementation, or evaluation of the 
goals of the plan is reached by the school-based standing panel that 
designed the plan.

(Authority: 20 U.S.C. 1413(g)(5))



Sec. 300.249  Additional requirements.

    (a) Parental involvement. In carrying out the requirements of 
Secs. 300.245-300.250, an LEA shall ensure that the parents of children 
with disabilities are involved in the design, evaluation, and, if 
appropriate, implementation of school-based improvement plans in 
accordance with this section.
    (b) Plan approval. An LEA may approve a school-based improvement 
plan of a public school within the jurisdiction of the agency for a 
period of 3 years, if--
    (1) The approval is consistent with the policies, procedures, and 
practices established by the LEA and in accordance with Secs. 300.245-
300.250; and
    (2) A majority of parents of children who are members of the school-
based standing panel, and a majority of other members of the school-
based standing panel that designed the plan, agree in writing to the 
plan.

(Authority: 20 U.S.C. 1413(g)(6))



Sec. 300.250  Extension of plan.

    If a public school within the jurisdiction of an LEA meets the 
applicable requirements and criteria described in Secs. 300.246 and 
300.247 at the expiration of the 3-year approval period described 
Sec. 300.249(b), the agency may approve a school-based improvement plan 
of the school for an additional 3-year period.

(Authority: 20 U.S.C. 1413(g)(7))

                 Secretary of the Interior--Eligibility



Sec. 300.260  Submission of information.

    The Secretary may provide the Secretary of the Interior amounts 
under Sec. 300.715(b) and (c) for a fiscal year only if the Secretary of 
the Interior submits to the Secretary information that--
    (a) Meets the requirements of section 612(a)(1), (3)--(9), (10)(B), 
(C), (11)--(12), (14)--(17), (20), (21) and (22) of the Act (including 
monitoring and evaluation activities);
    (b) Meets the requirements of section 612(b) and (e) of the Act;
    (c) Meets the requirements of section 613(a)(1), (2)(A)(i), (6), and 
(7) of the Act;
    (d) Meets the requirements of this part that implement the sections 
of the Act listed in paragraphs (a)-(c) of this section;
    (e) Includes a description of how the Secretary of the Interior will 
coordinate the provision of services under Part B of the Act with LEAs, 
tribes and tribal organizations, and other private and Federal service 
providers;
    (f) Includes an assurance that there are public hearings, adequate 
notice of the hearings, and an opportunity for comment afforded to 
members of tribes, tribal governing bodies, and affected local school 
boards before the adoption of the policies, programs, and procedures 
described in paragraph (a) of this section;
    (g) Includes an assurance that the Secretary of the Interior will 
provide the information that the Secretary may require to comply with 
section 618 of the Act, including data on the number of children with 
disabilities served and the types and amounts of services provided and 
needed;
    (h)(1) Includes an assurance that the Secretary of the Interior and 
the Secretary of Health and Human Services have entered into a 
memorandum of agreement, to be provided to the Secretary, for the 
coordination of services, resources, and personnel between their 
respective Federal, State, and local offices and with the SEAs and LEAs 
and other entities to facilitate the provision of services to Indian 
children with

[[Page 39]]

disabilities residing on or near reservations.
    (2) The agreement must provide for the apportionment of 
responsibilities and costs, including child find, evaluation, diagnosis, 
remediation or therapeutic measures, and (if appropriate) equipment and 
medical or personal supplies, as needed for a child with a disability to 
remain in a school or program; and
    (i) Includes an assurance that the Department of the Interior will 
cooperate with the Department in its exercise of monitoring and 
oversight of the requirements in this section and Secs. 300.261-300.267, 
and any agreements entered into between the Secretary of the Interior 
and other entities under Part B of the Act, and will fulfill its duties 
under Part B of the Act. Section 616(a) of the Act applies to the 
information described in this section.

(Authority: 20 U.S.C. 1411(i)(2))



Sec. 300.261  Public participation.

    In fulfilling the requirements of Sec. 300.260 the Secretary of the 
Interior shall provide for public participation consistent with 
Secs. 300.280-300.284.

(Authority: 20 U.S.C. 1411(i))



Sec. 300.262  Use of Part B funds.

    (a) The Department of the Interior may use five percent of its 
payment under Sec. 300.715(b) and (c) in any fiscal year, or $500,000, 
whichever is greater, for administrative costs in carrying out the 
provisions of this part.
    (b) Payments to the Secretary of the Interior under Sec. 300.716 
must be used in accordance with that section.

(Authority: 20 U.S.C. 1411(i))



Sec. 300.263  Plan for coordination of services.

    (a) The Secretary of the Interior shall develop and implement a plan 
for the coordination of services for all Indian children with 
disabilities residing on reservations covered under Part B of the Act.
    (b) The plan must provide for the coordination of services 
benefiting these children from whatever source, including tribes, the 
Indian Health Service, other BIA divisions, and other Federal agencies.
    (c) In developing the plan, the Secretary of the Interior shall 
consult with all interested and involved parties.
    (d) The plan must be based on the needs of the children and the 
system best suited for meeting those needs, and may involve the 
establishment of cooperative agreements between the BIA, other Federal 
agencies, and other entities.
    (e) The plan also must be distributed upon request to States, SEAs 
and LEAs, and other agencies providing services to infants, toddlers, 
and children with disabilities, to tribes, and to other interested 
parties.

(Authority: 20 U.S.C. 1411(i)(4))



Sec. 300.264  Definitions.

    (a) Indian. As used in this part, the term Indian means an 
individual who is a member of an Indian tribe.
    (b) Indian tribe. As used in this part, the term Indian tribe means 
any Federal or State Indian tribe, band, rancheria, pueblo, colony, or 
community, including any Alaska Native village or regional village 
corporation (as defined in or established under the Alaska Native Claims 
Settlement Act).

(Authority: 20 U.S.C. 1401(9) and (10))



Sec. 300.265  Establishment of advisory board.

    (a) To meet the requirements of section 612(a)(21) of the Act, the 
Secretary of the Interior shall establish, not later than December 4, 
1997 under the BIA, an advisory board composed of individuals involved 
in or concerned with the education and provision of services to Indian 
infants, toddlers, and children with disabilities, including Indians 
with disabilities, Indian parents of the children, teachers, service 
providers, State and local educational officials, representatives of 
tribes or tribal organizations, representatives from State Interagency 
Coordinating Councils under section 641 of the Act in States having 
reservations, and other members representing the various divisions and 
entities of the BIA. The chairperson must be selected by the Secretary 
of the Interior.
    (b) The advisory board shall--

[[Page 40]]

    (1) Assist in the coordination of services within the BIA and with 
other local, State, and Federal agencies in the provision of education 
for infants, toddlers, and children with disabilities;
    (2) Advise and assist the Secretary of the Interior in the 
performance of the Secretary's responsibilities described in section 
611(i) of the Act;
    (3) Develop and recommend policies concerning effective inter- and 
intra-agency collaboration, including modifications to regulations, and 
the elimination of barriers to inter- and intra-agency programs and 
activities;
    (4) Provide assistance and disseminate information on best 
practices, effective program coordination strategies, and 
recommendations for improved educational programming for Indian infants, 
toddlers, and children with disabilities; and
    (5) Provide assistance in the preparation of information required 
under Sec. 300.260(g).

(Authority: 20 U.S.C. 1411(i)(5))



Sec. 300.266  Annual report by advisory board.

    (a) General. The advisory board established under Sec. 300.265 shall 
prepare and submit to the Secretary of the Interior and to the Congress 
an annual report containing a description of the activities of the 
advisory board for the preceding year.
    (b) Report to the Secretary. The Secretary of the Interior shall 
make available to the Secretary the report described in paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1411(i)(6)(A))



Sec. 300.267  Applicable regulations.

    The Secretary of the Interior shall comply with the requirements of 
Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351, 
300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and 
300.660-300.662.

(Authority: 20 U.S.C. 1411(i)(2)(A))

                          Public Participation



Sec. 300.280  Public hearings before adopting State policies and procedures.

    Prior to its adoption of State policies and procedures related to 
this part, the SEA shall--
    (a) Make the policies and procedures available to the general 
public;
    (b) Hold public hearings; and
    (c) Provide an opportunity for comment by the general public on the 
policies and procedures.

(Authority: 20 U.S.C. 1412(a)(20))



Sec. 300.281  Notice.

    (a) The SEA shall provide adequate notice to the general public of 
the public hearings.
    (b) The notice must be in sufficient detail to inform the general 
public about--
    (1) The purpose and scope of the State policies and procedures and 
their relation to Part B of the Act;
    (2) The availability of the State policies and procedures;
    (3) The date, time, and location of each public hearing;
    (4) The procedures for submitting written comments about the 
policies and procedures; and
    (5) The timetable for submitting the policies and procedures to the 
Secretary for approval.
    (c) The notice must be published or announced--
    (1) In newspapers or other media, or both, with circulation adequate 
to notify the general public about the hearings; and
    (2) Enough in advance of the date of the hearings to afford 
interested parties throughout the State a reasonable opportunity to 
participate.

(Authority: 20 U.S.C. 1412(a)(20))



Sec. 300.282  Opportunity to participate; comment period.

    (a) The SEA shall conduct the public hearings at times and places 
that afford interested parties throughout the State a reasonable 
opportunity to participate.
    (b) The policies and procedures must be available for comment for a 
period of at least 30 days following the date of the notice under 
Sec. 300.281.

(Authority: 20 U.S.C. 1412(a)(20))



Sec. 300.283  Review of public comments before adopting policies and procedures.

    Before adopting the policies and procedures, the SEA shall--

[[Page 41]]

    (a) Review and consider all public comments; and
    (b) Make any necessary modifications in those policies and 
procedures.

(Authority: 20 U.S.C. 1412(a)(20))



Sec. 300.284  Publication and availability of approved policies and procedures.

    After the Secretary approves a State's policies and procedures, the 
SEA shall give notice in newspapers or other media, or both, that the 
policies and procedures are approved. The notice must name places 
throughout the State where the policies and procedures are available for 
access by any interested person.

(Authority: 20 U.S.C. 1412(a)(20))



                           Subpart C--Services

                    Free Appropriate Public Education



Sec. 300.300  Provision of FAPE.

    (a) General. (1) Subject to paragraphs (b) and (c) of this section 
and Sec. 300.311, each State receiving assistance under this part shall 
ensure that FAPE is available to all children with disabilities, aged 3 
through 21, residing in the State, including children with disabilities 
who have been suspended or expelled from school.
    (2) As a part of its obligation under paragraph (a)(1) of this 
section, each State must ensure that the requirements of Sec. 300.125 
(to identify, locate, and evaluate all children with disabilities) are 
implemented by public agencies throughout the State.
    (3)(i) The services provided to the child under this part address 
all of the child's identified special education and related services 
needs described in paragraph (a) of this section.
    (ii) The services and placement needed by each child with a 
disability to receive FAPE must be based on the child's unique needs and 
not on the child's disability.
    (b) Exception for age ranges 3-5 and 18-21. This paragraph provides 
the rules for applying the requirements in paragraph (a) of this section 
to children with disabilities aged 3, 4, 5, 18, 19, 20, and 21 within 
the State:
    (1) If State law or a court order requires the State to provide 
education for children with disabilities in any disability category in 
any of these age groups, the State must make FAPE available to all 
children with disabilities of the same age who have that disability.
    (2) If a public agency provides education to nondisabled children in 
any of these age groups, it must make FAPE available to at least a 
proportionate number of children with disabilities of the same age.
    (3) If a public agency provides education to 50 percent or more of 
its children with disabilities in any disability category in any of 
these age groups, it must make FAPE available to all its children with 
disabilities of the same age who have that disability. This provision 
does not apply to children aged 3 through 5 for any fiscal year for 
which the State receives a grant under section 619(a)(1) of the Act.
    (4) If a public agency provides education to a child with a 
disability in any of these age groups, it must make FAPE available to 
that child and provide that child and his or her parents all of the 
rights under Part B of the Act and this part.
    (5) A State is not required to make FAPE available to a child with a 
disability in one of these age groups if--
    (i) State law expressly prohibits, or does not authorize, the 
expenditure of public funds to provide education to nondisabled children 
in that age group; or
    (ii) The requirement is inconsistent with a court order that governs 
the provision of free public education to children with disabilities in 
that State.
    (c) Children aged 3 through 21 on Indian reservations. With the 
exception of children identified in Sec. 300.715(b) and (c), the SEA 
shall ensure that all of the requirements of Part B of the Act are 
implemented for all children with disabilities aged 3 through 21 on 
reservations.

(Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94--168, p. 
19 (1975))



Sec. 300.301  FAPE--methods and payments.

    (a) Each State may use whatever State, local, Federal, and private

[[Page 42]]

sources of support are available in the State to meet the requirements 
of this part. For example, if it is necessary to place a child with a 
disability in a residential facility, a State could use joint agreements 
between the agencies involved for sharing the cost of that placement.
    (b) Nothing in this part relieves an insurer or similar third party 
from an otherwise valid obligation to provide or to pay for services 
provided to a child with a disability.
    (c) Consistent with Secs. 300.342(b)(2) and 300.343(b), 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.

(Authority: 20 U.S.C. 1401(8), 1412(a)(1))



Sec. 300.302  Residential placement.

    If 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.

(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))



Sec. 300.303  Proper functioning of hearing aids.

    Each public agency shall ensure that the hearing aids worn in school 
by children with hearing impairments, including deafness, are 
functioning properly.

(Authority: 20 U.S.C. 1412(a)(1))



Sec. 300.304  Full educational opportunity goal.

    Each SEA shall ensure that each public agency establishes and 
implements a goal of providing full educational opportunity to all 
children with disabilities in the area served by the public agency.

(Authority: 20 U.S.C. 1412(a)(2)



Sec. 300.305  Program options.

    Each public agency shall take steps to ensure that its children with 
disabilities have available to them the variety of educational programs 
and services available to nondisabled children in the area served by the 
agency, including art, music, industrial arts, consumer and homemaking 
education, and vocational education.

(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))



Sec. 300.306  Nonacademic services.

    (a) Each public agency shall take steps to provide nonacademic and 
extracurricular services and activities in the manner necessary to 
afford children with disabilities an equal opportunity for participation 
in those services and activities.
    (b) Nonacademic and extracurricular services and activities may 
include counseling services, athletics, transportation, health services, 
recreational activities, special interest groups or clubs sponsored by 
the public agency, referrals to agencies that provide assistance to 
individuals with disabilities, and employment of students, including 
both employment by the public agency and assistance in making outside 
employment available.

(Authority: 20 U.S.C. 1412(a)(1))



Sec. 300.307  Physical education.

    (a) General. Physical education services, specially designed if 
necessary, must be made available to every child with a disability 
receiving FAPE.
    (b) Regular physical education. Each child with a disability must be 
afforded the opportunity to participate in the regular physical 
education program available to nondisabled children unless--
    (1) The child is enrolled full time in a separate facility; or
    (2) The child needs specially designed physical education, as 
prescribed in the child's IEP.
    (c) Special physical education. If specially designed physical 
education is prescribed in a child's IEP, the public agency responsible 
for the education of that child shall provide the services directly or 
make arrangements for those services to be provided through other public 
or private programs.
    (d) Education in separate facilities. The public agency responsible 
for the education of a child with a disability who is enrolled in a 
separate facility shall ensure that the child receives appropriate 
physical education services in

[[Page 43]]

compliance with paragraphs (a) and (c) of this section.

(Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))



Sec. 300.308  Assistive technology.

    (a) Each public agency shall ensure that assistive technology 
devices or assistive technology services, or both, as those terms are 
defined in Secs. 300.5-300.6, are made available to a child with a 
disability if required as a part of the child's--
    (1) Special education under Sec. 300.26;
    (2) Related services under Sec. 300.24; or
    (3) Supplementary aids and services under Secs. 300.28 and 
300.550(b)(2).
    (b) 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.

(Authority: 20 U.S.C. 1412(a)(12)(B)(i))



Sec. 300.309  Extended school year services.

    (a) General. (1) Each public agency shall ensure that extended 
school year services are available as necessary to provide FAPE, 
consistent with paragraph (a)(2) of this section.
    (2) Extended school year services must be provided only if a child's 
IEP team determines, on an individual basis, in accordance with 
Secs. 300.340-300.350, that the services are necessary for the provision 
of FAPE to the child.
    (3) In implementing the requirements of this section, a public 
agency may not--
    (i) Limit extended school year services to particular categories of 
disability; or
    (ii) Unilaterally limit the type, amount, or duration of those 
services.
    (b) Definition. As used in this section, the term extended school 
year services means special education and related services that--
    (1) Are provided to a child with a disability--
    (i) Beyond the normal school year of the public agency;
    (ii) In accordance with the child's IEP; and
    (iii) At no cost to the parents of the child; and
    (2) Meet the standards of the SEA.

(Authority: 20 U.S.C. 1412(a)(1))



Sec. 300.310  [Reserved]



Sec. 300.311  FAPE requirements for students with disabilities in adult prisons.

    (a) Exception to FAPE for certain students. Except as provided in 
Sec. 300.122(a)(2)(ii), the obligation to make FAPE available to all 
children with disabilities does not apply with respect to students aged 
18 through 21 to the extent that State law does not require that special 
education and related services under Part B of the Act be provided to 
students with disabilities who, in the last educational placement prior 
to their incarceration in an adult correctional facility--
    (1) Were not actually identified as being a child with a disability 
under Sec. 300.7; and
    (2) Did not have an IEP under Part B of the Act.
    (b) Requirements that do not apply. The following requirements do 
not apply to students with disabilities who are convicted as adults 
under State law and incarcerated in adult prisons:
    (1) The requirements contained in Sec. 300.138 and 
Sec. 300.347(a)(5)(i) (relating to participation of children with 
disabilities in general assessments).
    (2) The requirements in Sec. 300.347(b) (relating to transition 
planning and transition services), with respect to the students whose 
eligibility under Part B of the Act will end, because of their age, 
before they will be eligible to be released from prison based on 
consideration of their sentence and eligibility for early release.
    (c) Modifications of IEP or placement. (1) Subject to paragraph 
(c)(2) of this section, the IEP team of a student with a disability, who 
is convicted as an adult under State law and incarcerated in an adult 
prison, may modify the student's IEP or placement if the State has 
demonstrated a bona fide security or compelling penological interest 
that cannot otherwise be accommodated.
    (2) The requirements of Secs. 300.340(a) and 300.347(a) relating to 
IEPs, and 300.550(b) relating to LRE, do not apply

[[Page 44]]

with respect to the modifications described in paragraph (c)(1) of this 
section.

(Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))



Sec. 300.312  Children with disabilities in public charter schools.

    (a) Children with disabilities who attend public charter schools and 
their parents retain all rights under this part.
    (b) If the public charter school is an LEA, consistent with 
Sec. 300.17, that receives funding under Secs. 300.711-300.714, that 
charter school is responsible for ensuring that the requirements of this 
part are met, unless State law assigns that responsibility to some other 
entity.
    (c) If the public charter school is a school of an LEA that receives 
funding under Secs. 300.711-300.714 and includes other public schools--
    (1) The LEA is responsible for ensuring that the requirements of 
this part are met, unless State law assigns that responsibility to some 
other entity; and
    (2) The LEA must meet the requirements of Sec. 300.241.
    (d)(1) If the public charter school is not an LEA receiving funding 
under Secs. 300.711-300.714, or a school that is part of an LEA 
receiving funding under Secs. 300.711-300.714, the SEA is responsible 
for ensuring that the requirements of this part are met.
    (2) Paragraph (d)(1) of this section does not preclude a State from 
assigning initial responsibility for ensuring the requirements of this 
part are met to another entity; however, the SEA must maintain the 
ultimate responsibility for ensuring compliance with this part, 
consistent with Sec. 300.600.

(Authority: 20 U.S.C. 1413(a)(5))



Sec. 300.313  Children experiencing developmental delays.

    (a) Use of term developmental delay. (1) A State that adopts the 
term developmental delay under Sec. 300.7(b) determines whether it 
applies to children aged 3 through 9, or to a subset of that age range 
(e.g., ages 3 through 5).
    (2) A State may not require an LEA to adopt and use the term 
developmental delay for any children within its jurisdiction.
    (3) If an LEA uses the term developmental delay for children 
described in Sec. 300.7(b), 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.
    (4) If a State does not adopt the term developmental delay, an LEA 
may not independently use that term as a basis for establishing a 
child's eligibility under this part.
    (b) Use of individual disability categories. (1) Any State or LEA 
that elects to use the term developmental delay for children aged 3 
through 9 may also use one or more of the disability categories 
described in Sec. 300.7 for any child within that age range if it is 
determined, through the evaluation conducted under Secs. 300.530-
300.536, that the child has an impairment described in Sec. 300.7, and 
because of that impairment needs special education and related services.
    (2) The State or LEA shall ensure that all of the child's special 
education and related services needs that have been identified through 
the evaluation described in paragraph (b)(1) of this section are 
appropriately addressed.
    (c) Common definition of developmental delay. A State may adopt a 
common definition of developmental delay for use in programs under Parts 
B and C of the Act.

(Authority: 20 U.S.C. 1401(3)(A) and (B))

                      Evaluations and Reevaluations



Sec. 300.320  Initial evaluations.

    (a) Each public agency shall ensure that a full and individual 
evaluation is conducted for each child being considered for special 
education and related services under Part B of the Act--
    (1) To determine if the child is a ``child with a disability'' under 
Sec. 300.7; and
    (2) To determine the educational needs of the child.
    (b) In implementing the requirements of paragraph (a) of this 
section, the public agency shall ensure that--
    (1) The evaluation is conducted in accordance with the procedures 
described in Secs. 300.530-300.535; and

[[Page 45]]

    (2) The results of the evaluation are used by the child's IEP team 
in meeting the requirements of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(a), (b), and (c))



Sec. 300.321  Reevaluations.

    Each public agency shall ensure that--
    (a) A reevaluation of each child with a disability is conducted in 
accordance with Sec. 300.536; and
    (b) The results of any reevaluations are addressed by the child's 
IEP team under Secs. 300.340-300.349 in reviewing and, as appropriate, 
revising the child's IEP.

(Authority: 20 U.S.C. 1414(a)(2))



Secs. 300.322-300.324  [Reserved]

                    Individualized Education Programs



Sec. 300.340  Definitions related to IEPs.

    (a) Individualized education program. As used in this part, the term 
individualized education program or IEP means a written statement for a 
child with a disability that is developed, reviewed, and revised in a 
meeting in accordance with Secs. 300.341-300.350.
    (b) Participating agency. As used in Sec. 300.348, participating 
agency means a State or local agency, other than the public agency 
responsible for a student's education, that is financially and legally 
responsible for providing transition services to the student.

(Authority: 20 U.S.C. 1401(11), 1412(a)(10)(B))



Sec. 300.341  Responsibility of SEA and other public agencies for IEPs.

    (a) The SEA shall ensure that each public agency--
    (1) Except as provided in Secs. 300.450-300.462, develops and 
implements an IEP for each child with a disability served by that 
agency; and
    (2) Ensures that an IEP is developed and implemented for each 
eligible child placed in or referred to a private school or facility by 
the public agency.
    (b) Paragraph (a) of this section applies to--
    (1) The SEA, if it is involved in providing direct services to 
children with disabilities, in accordance with Sec. 300.370(a) and 
(b)(1); and
    (2) Except as provided in Sec. 300.600(d), the other public agencies 
described in Sec. 300.2, including LEAs and other State agencies that 
provide special education and related services either directly, by 
contract, or through other arrangements.

(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))



Sec. 300.342  When IEPs must be in effect.

    (a) General. At the beginning of each school year, each public 
agency shall have an IEP in effect for each child with a disability 
within its jurisdiction.
    (b) Implementation of IEPs. Each public agency shall ensure that--
    (1) An IEP--
    (i) Is in effect before special education and related services are 
provided to an eligible child under this part; and
    (ii) Is implemented as soon as possible following the meetings 
described under Sec. 300.343;
    (2) The child's IEP is accessible to each regular education teacher, 
special education teacher, related service provider, and other service 
provider who is responsible for its implementation; and
    (3) Each teacher and provider described in paragraph (b)(2) of this 
section is informed of--
    (i) His or her specific responsibilities related to implementing the 
child's IEP; and
    (ii) The specific accommodations, modifications, and supports that 
must be provided for the child in accordance with the IEP.
    (c) IEP or IFSP for children aged 3 through 5. (1) In the case of a 
child with a disability aged 3 through 5 (or, at the discretion of the 
SEA a 2-year-old child with a disability who will turn age 3 during the 
school year), an IFSP that contains the material described in section 
636 of the Act, and that is developed in accordance with Secs. 300.341-
300.346 and Secs. 300.349-300.350, may serve as the IEP of the child if 
using that plan as the IEP is--
    (i) Consistent with State policy; and
    (ii) Agreed to by the agency and the child's parents.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall--

[[Page 46]]

    (i) Provide to the child's parents a detailed explanation of the 
differences between an IFSP and an IEP; and
    (ii) If the parents choose an IFSP, obtain written informed consent 
from the parents.
    (d) Effective date for new requirements. All IEPs developed, 
reviewed, or revised on or after July 1, 1998 must meet the requirements 
of Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec. 
201(a)(2)(A), (C)



Sec. 300.343  IEP meetings.

    (a) General. Each public agency is responsible for initiating and 
conducting meetings for the purpose of developing, reviewing, and 
revising the IEP of a child with a disability (or, if consistent with 
Sec. 300.342(c), an IFSP).
    (b) Initial IEPs; provision of services. (1) Each public agency 
shall ensure that within a reasonable period of time following the 
agency's receipt of parent consent to an initial evaluation of a child--
    (i) The child is evaluated; and
    (ii) If determined eligible under this part, special education and 
related services are made available to the child in accordance with an 
IEP.
    (2) In meeting the requirement in paragraph (b)(1) of this section, 
a meeting to develop an IEP for the child must be conducted within 30-
days of a determination that the child needs special education and 
related services.
    (c) Review and revision of IEPs. Each public agency shall ensure 
that the IEP team--
    (1) Reviews the child's IEP periodically, but not less than 
annually, to determine whether the annual goals for the child are being 
achieved; and
    (2) Revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals described 
in Sec. 300.347(a), and in the general curriculum, if appropriate;
    (ii) The results of any reevaluation conducted under Sec. 300.536;
    (iii) Information about the child provided to, or by, the parents, 
as described in Sec. 300.533(a)(1);
    (iv) The child's anticipated needs; or
    (v) Other matters.

(Authority: 20 U.S.C. 1413(a)(1), 1414(d)(4)(A)



Sec. 300.344  IEP team.

    (a) General. The public agency shall ensure that the IEP team for 
each child with a disability includes--
    (1) The parents of the child;
    (2) At least one regular education teacher of the child (if the 
child is, or may be, participating in the regular education 
environment);
    (3) At least one special education teacher of the child, or if 
appropriate, at least one special education provider of the child;
    (4) A representative of the public agency who--
    (i) Is qualified to provide, or supervise the provision of, 
specially designed instruction to meet the unique needs of children with 
disabilities;
    (ii) Is knowledgeable about the general curriculum; and
    (iii) Is knowledgeable about the availability of resources of the 
public agency;
    (5) An individual who can interpret the instructional implications 
of evaluation results, who may be a member of the team described in 
paragraphs (a)(2) through (6) of this section;
    (6) At the discretion of the parent or the agency, other individuals 
who have knowledge or special expertise regarding the child, including 
related services personnel as appropriate; and
    (7) If appropriate, the child.
    (b) Transition services participants. (1) Under paragraph (a)(7) of 
this section, the public agency shall invite a student with a disability 
of any age to attend his or her IEP meeting if a purpose of the meeting 
will be the consideration of--
    (i) The student's transition services needs under 
Sec. 300.347(b)(1);
    (ii) The needed transition services for the student under 
Sec. 300.347(b)(2); or
    (iii) Both.
    (2) If the student does not attend the IEP meeting, the public 
agency shall take other steps to ensure that the student's preferences 
and interests are considered.
    (3)(i) In implementing the requirements of Sec. 300.347(b)(2), the 
public agency also shall invite a representative of any other agency 
that is likely to be responsible for providing or paying for transition 
services.

[[Page 47]]

    (ii) If an agency invited to send a representative to a meeting does 
not do so, the public agency shall take other steps to obtain 
participation of the other agency in the planning of any transition 
services.
    (c) Determination of knowledge and special expertise. The 
determination of the knowledge or special expertise of any individual 
described in paragraph (a)(6) of this section shall be made by the party 
(parents or public agency) who invited the individual to be a member of 
the IEP.
    (d) Designating a public agency representative. A public agency may 
designate another public agency member of the IEP team to also serve as 
the agency representative, if the criteria in paragraph (a)(4) of this 
section are satisfied.

(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))



Sec. 300.345  Parent participation.

    (a) Public agency responsibility--general. Each public agency shall 
take steps to ensure that one or both of the parents of a child with a 
disability are present at each IEP meeting or are afforded the 
opportunity to participate, including--
    (1) Notifying parents of the meeting early enough to ensure that 
they will have an opportunity to attend; and
    (2) Scheduling the meeting at a mutually agreed on time and place.
    (b) Information provided to parents. (1) The notice required under 
paragraph (a)(1) of this section must--
    (i) Indicate the purpose, time, and location of the meeting and who 
will be in attendance; and
    (ii) Inform the parents of the provisions in Sec. 300.344(a)(6) and 
(c) (relating to the participation of other individuals on the IEP team 
who have knowledge or special expertise about the child).
    (2) For a student with a disability beginning at age 14, or younger, 
if appropriate, the notice must also--
    (i) Indicate that a purpose of the meeting will be the development 
of a statement of the transition services needs of the student required 
in Sec. 300.347(b)(1); and
    (ii) Indicate that the agency will invite the student.
    (3) For a student with a disability beginning at age 16, or younger, 
if appropriate, the notice must--
    (i) Indicate that a purpose of the meeting is the consideration of 
needed transition services for the student required in 
Sec. 300.347(b)(2);
    (ii) Indicate that the agency will invite the student; and
    (iii) Identify any other agency that will be invited to send a 
representative.
    (c) Other methods to ensure parent participation. If neither parent 
can attend, the public agency shall use other methods to ensure parent 
participation, including individual or conference telephone calls.
    (d) Conducting an IEP meeting without a parent in attendance. A 
meeting may be conducted without a parent in attendance if the public 
agency is unable to convince the parents that they should attend. In 
this case the public agency must have a record of its attempts to 
arrange a mutually agreed on time and place, such as--
    (1) Detailed records of telephone calls made or attempted and the 
results of those calls;
    (2) Copies of correspondence sent to the parents and any responses 
received; and
    (3) Detailed records of visits made to the parent's home or place of 
employment and the results of those visits.
    (e) Use of interpreters or other action, as appropriate. The public 
agency shall take whatever action is necessary to ensure that the parent 
understands the proceedings at the IEP meeting, including arranging for 
an interpreter for parents with deafness or whose native language is 
other than English.
    (f) Parent copy of child's IEP. The public agency shall give the 
parent a copy of the child's IEP at no cost to the parent.

(Authority: 20 U.S.C. 1414(d)(1)(B)(i))



Sec. 300.346  Development, review, and revision of IEP.

    (a) Development of IEP. (1) General. In developing each child's IEP, 
the IEP team, shall consider--
    (i) The strengths of the child and the concerns of the parents for 
enhancing the education of their child;
    (ii) The results of the initial or most recent evaluation of the 
child; and

[[Page 48]]

    (iii) As appropriate, the results of the child's performance on any 
general State or district-wide assessment programs.
    (2) Consideration of special factors. The IEP team also shall--
    (i) In the case of a child whose behavior impedes his or her 
learning or that of others, consider, if appropriate, strategies, 
including positive behavioral interventions, strategies, and supports to 
address that behavior;
    (ii) In the case of a child with limited English proficiency, 
consider the language needs of the child as those needs relate to the 
child's IEP;
    (iii) In the case of a child who is blind or visually impaired, 
provide for instruction in Braille and the use of Braille unless the IEP 
team determines, after an evaluation of the child's reading and writing 
skills, needs, and appropriate reading and writing media (including an 
evaluation of the child's future needs for instruction in Braille or the 
use of Braille), that instruction in Braille or the use of Braille is 
not appropriate for the child;
    (iv) Consider the communication needs of the child, and in the case 
of a child who is deaf or hard of hearing, consider the child's language 
and communication needs, opportunities for direct communications with 
peers and professional personnel in the child's language and 
communication mode, academic level, and full range of needs, including 
opportunities for direct instruction in the child's language and 
communication mode; and
    (v) Consider whether the child requires assistive technology devices 
and services.
    (b) Review and Revision of IEP. In conducting a meeting to review, 
and, if appropriate, revise a child's IEP, the IEP team shall consider 
the factors described in paragraph (a) of this section.
    (c) Statement in IEP. If, in considering the special factors 
described in paragraphs (a)(1) and (2) of this section, the IEP team 
determines that a child needs a particular device or service (including 
an intervention, accommodation, or other program modification) in order 
for the child to receive FAPE, the IEP team must include a statement to 
that effect in the child's IEP.
    (d) Requirement with respect to regular education teacher. The 
regular education teacher of a child with a disability, as a member of 
the IEP team, must, to the extent appropriate, participate in the 
development, review, and revision of the child's IEP, including 
assisting in the determination of--
    (1) Appropriate positive behavioral interventions and strategies for 
the child; and
    (2) Supplementary aids and services, program modifications or 
supports for school personnel that will be provided for the child, 
consistent with Sec. 300.347(a)(3).
    (e) Construction. 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.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))



Sec. 300.347  Content of IEP.

    (a) General. The IEP for each child with a disability must include--
    (1) A statement of the child's present levels of educational 
performance, including--
    (i) How the child's disability affects the child's involvement and 
progress in the general curriculum (i.e., the same curriculum as for 
nondisabled children); or
    (ii) For preschool children, as appropriate, how the disability 
affects the child's participation in appropriate activities;
    (2) A statement of measurable annual goals, including benchmarks or 
short-term objectives, related to--
    (i) Meeting the child's needs that result from the child's 
disability to enable the child to be involved in and progress in the 
general curriculum (i.e., the same curriculum as for nondisabled 
children), or for preschool children, as appropriate, to participate in 
appropriate activities; and
    (ii) Meeting each of the child's other educational needs that result 
from the child's disability;
    (3) A statement of the special education and related services and 
supplementary aids and services to be provided to the child, or on 
behalf of the child, and a statement of the program

[[Page 49]]

modifications or supports for school personnel that will be provided for 
the child--
    (i) To advance appropriately toward attaining the annual goals;
    (ii) To be involved and progress in the general curriculum in 
accordance with paragraph (a)(1) of this section and to participate in 
extracurricular and other nonacademic activities; and
    (iii) To be educated and participate with other children with 
disabilities and nondisabled children in the activities described in 
this section;
    (4) An explanation of the extent, if any, to which the child will 
not participate with nondisabled children in the regular class and in 
the activities described in paragraph (a)(3) of this section;
    (5)(i) A statement of any individual modifications in the 
administration of State or district-wide assessments of student 
achievement that are needed in order for the child to participate in the 
assessment; and
    (ii) If the IEP team determines that the child will not participate 
in a particular State or district-wide assessment of student achievement 
(or part of an assessment), a statement of--
    (A) Why that assessment is not appropriate for the child; and
    (B) How the child will be assessed;
    (6) The projected date for the beginning of the services and 
modifications described in paragraph (a)(3) of this section, and the 
anticipated frequency, location, and duration of those services and 
modifications; and
    (7) A statement of--
    (i) How the child's progress toward the annual goals described in 
paragraph (a)(2) of this section will be measured; and
    (ii) How the child's parents will be regularly informed (through 
such means as periodic report cards), at least as often as parents are 
informed of their nondisabled children's progress, of--
    (A) Their child's progress toward the annual goals; and
    (B) The extent to which that progress is sufficient to enable the 
child to achieve the goals by the end of the year.
    (b) Transition services. The IEP must include--
    (1) For each student with a disability beginning at age 14 (or 
younger, if determined appropriate by the IEP team), and updated 
annually, a statement of the transition service needs of the student 
under the applicable components of the student's IEP that focuses on the 
student's courses of study (such as participation in advanced-placement 
courses or a vocational education program); and
    (2) For each student beginning at age 16 (or younger, if determined 
appropriate by the IEP team), a statement of needed transition services 
for the student, including, if appropriate, a statement of the 
interagency responsibilities or any needed linkages.
    (c) Transfer of rights. In a State that transfers rights at the age 
majority, beginning at least one year before a student reaches the age 
of majority under State law, the student's IEP must include a statement 
that the student has been informed of his or her rights under Part B of 
the Act, if any, that will transfer to the student on reaching the age 
of majority, consistent with Sec. 300.517.
    (d) Students with disabilities convicted as adults and incarcerated 
in adult prisons. Special rules concerning the content of IEPs for 
students with disabilities convicted as adults and incarcerated in adult 
prisons are contained in Sec. 300.311(b) and (c).

(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))



Sec. 300.348  Agency responsibilities for transition services.

    (a) If a participating agency, other than the public agency, fails 
to provide the transition services described in the IEP in accordance 
with Sec. 300.347(b)(1), the public agency shall reconvene the IEP team 
to identify alternative strategies to meet the transition objectives for 
the student set out in the IEP.
    (b) Nothing in this part relieves any participating agency, 
including a State vocational rehabilitation agency, of the 
responsibility to provide or pay for any transition service that the 
agency would otherwise provide to students with disabilities who meet 
the eligibility criteria of that agency.

(Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))

[[Page 50]]



Sec. 300.349  Private school placements by public agencies.

    (a) Developing IEPs. (1) Before a public agency places a child with 
a disability in, or refers a child to, a private school or facility, the 
agency shall initiate and conduct a meeting to develop an IEP for the 
child in accordance with Secs. 300.346 and 300.347.
    (2) The agency shall ensure that a representative of the private 
school or facility attends the meeting. If the representative cannot 
attend, the agency shall use other methods to ensure participation by 
the private school or facility, including individual or conference 
telephone calls.
    (b) Reviewing and revising IEPs. (1) After a child with a disability 
enters a private school or facility, any meetings to review and revise 
the child's IEP may be initiated and conducted by the private school or 
facility at the discretion of the public agency.
    (2) If the private school or facility initiates and conducts these 
meetings, the public agency shall ensure that the parents and an agency 
representative--
    (i) Are involved in any decision about the child's IEP; and
    (ii) Agree to any proposed changes in the IEP before those changes 
are implemented.
    (c) Responsibility. Even if a private school or facility implements 
a child's IEP, responsibility for compliance with this part remains with 
the public agency and the SEA.

(Authority: 20 U.S.C. 1412(a)(10)(B))



Sec. 300.350  IEP--accountability.

    (a) Provision of services. Subject to paragraph (b) of this section, 
each public agency must--
    (1) Provide special education and related services to a child with a 
disability in accordance with the child's IEP; and
    (2) Make a good faith effort to assist the child to achieve the 
goals and objectives or benchmarks listed in the IEP.
    (b) Accountability. Part B of the Act does not require that any 
agency, teacher, or other person be held accountable if a child does not 
achieve the growth projected in the annual goals and benchmarks or 
objectives. However, the Act does not prohibit a State or public agency 
from establishing its own accountability systems regarding teacher, 
school, or agency performance.
    (c) Construction--parent rights. 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 efforts required in 
paragraph (a) of this section are not being made.

(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 21, 
1975))

                       Direct Services by the Sea



Sec. 300.360  Use of LEA allocation for direct services.

    (a) General. An SEA shall use the payments that would otherwise have 
been available to an LEA or to a State agency to provide special 
education and related services directly to children with disabilities 
residing in the area served by that local agency, or for whom that State 
agency is responsible, if the SEA determines that the LEA or State 
agency--
    (1) Has not provided the information needed to establish the 
eligibility of the agency under Part B of the Act;
    (2) Is unable to establish and maintain programs of FAPE that meet 
the requirements of this part;
    (3) Is unable or unwilling to be consolidated with one or more LEAs 
in order to establish and maintain the programs; or
    (4) Has one or more children with disabilities who can best be 
served by a regional or State program or service-delivery system 
designed to meet the needs of these children.
    (b) SEA responsibility if an LEA does not apply for Part B funds. 
(1) If an LEA elects not to apply for its Part B allotment, the SEA must 
use those funds to ensure that FAPE is available to all eligible 
children residing in the jurisdiction of the LEA.
    (2)(i) If the local allotment is not sufficient to meet the purpose 
described in paragraph (b)(1) of this section, the SEA must ensure 
compliance with Secs. 300.121(a) and 300.300(a).
    (ii) Consistent with Sec. 300.301(a), the [State; SEA] may use 
whatever funding sources are available in the State to

[[Page 51]]

implement paragraph (b)(2)(i) of this section.
    (c) SEA administrative procedures. (1) In meeting the requirements 
in paragraph (a) of this section, the SEA may provide special education 
and related services directly, by contract, or through other 
arrangements.
    (2) The excess cost requirements of Secs. 300.184 and 300.185 do not 
apply to the SEA.

(Authority: 20 U.S.C. 1413(h)(1))



Sec. 300.361  Nature and location of services.

    The SEA may provide special education and related services under 
Sec. 300.360(a) in the manner and at the location it considers 
appropriate (including regional and State centers). However, the manner 
in which the education and services are provided must be consistent with 
the requirements of this part (including the LRE provisions of 
Secs. 300.550-300.556).

(Authority: 20 U.S.C. 1413(h)(2))



Secs. 300.362-300.369  [Reserved]



Sec. 300.370  Use of SEA allocations.

    (a) Each State shall use any funds it retains under Sec. 300.602 and 
does not use for administration under Sec. 300.620 for any of the 
following:
    (1) Support and direct services, including technical assistance and 
personnel development and training.
    (2) Administrative costs of monitoring and complaint investigation, 
but only to the extent that those costs exceed the costs incurred for 
those activities during fiscal year 1985.
    (3) To establish and implement the mediation process required by 
Sec. 300.506, including providing for the costs of mediators and support 
personnel.
    (4) To assist LEAs in meeting personnel shortages.
    (5) To develop a State Improvement Plan under subpart 1 of Part D of 
the Act.
    (6) Activities at the State and local levels to meet the performance 
goals established by the State under Sec. 300.137 and to support 
implementation of the State Improvement Plan under subpart 1 of Part D 
of the Act if the State receives funds under that subpart.
    (7) To supplement other amounts used to develop and implement a 
Statewide coordinated services system designed to improve results for 
children and families, including children with disabilities and their 
families, but not to exceed one percent of the amount received by the 
State under section 611 of the Act. This system must be coordinated with 
and, to the extent appropriate, build on the system of coordinated 
services developed by the State under Part C of the Act.
    (8) For subgrants to LEAs for the purposes described in Sec. 300.622 
(local capacity building).
    (b) For the purposes of paragraph (a) of this section--
    (1) Direct services means services provided to a child with a 
disability by the State directly, by contract, or through other 
arrangements; and
    (2) Support services includes implementing the comprehensive system 
of personnel development under Secs. 300.380-300.382, recruitment and 
training of mediators, hearing officers, and surrogate parents, and 
public information and parent training activities relating to FAPE for 
children with disabilities.
    (c) Of the funds an SEA retains under paragraph (a) of this section, 
the SEA may use the funds directly, or distribute them to LEAs on a 
competitive, targeted, or formula basis.

(Authority: 20 U.S.C. 1411(f)(3))



Sec. 300.371  [Reserved]



Sec. 300.372  Nonapplicability of requirements that prohibit commingling and supplanting of funds.

    A State may use funds it retains under Sec. 300.602 without regard 
to--
    (a) The prohibition on commingling of funds in Sec. 300.152; and
    (b) The prohibition on supplanting other funds in Sec. 300.153.

(Authority: 20 U.S.C. 1411(f)(1)(C))

          Comprehensive System of Personnel Development (CSPD)



Sec. 300.380  General CSPD requirements.

    (a) Each State shall develop and implement a comprehensive system of 
personnel development that--

[[Page 52]]

    (1) Is consistent with the purposes of this part and with section 
635(a)(8) of the Act;
    (2) Is designed to ensure an adequate supply of qualified special 
education, regular education, and related services personnel;
    (3) Meets the requirements of Secs. 300.381 and 300.382; and
    (4) Is updated at least every five years.
    (b) A State that has a State improvement grant has met the 
requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(14))



Sec. 300.381  Adequate supply of qualified personnel.

    Each State must include, at least, an analysis of State and local 
needs for professional development for personnel to serve children with 
disabilities that includes, at a minimum--
    (a) The number of personnel providing special education and related 
services; and
    (b) Relevant information on current and anticipated personnel 
vacancies and shortages (including the number of individuals described 
in paragraph (a) of this section with temporary certification), and on 
the extent of certification or retraining necessary to eliminate these 
shortages, that is based, to the maximum extent possible, on existing 
assessments of personnel needs.

(Authority: 20 U.S.C. 1453(b)(2)(B))



Sec. 300.382  Improvement strategies.

    Each State must describe the strategies the State will use to 
address the needs identified under Sec. 300.381. These strategies must 
include how the State will address the identified needs for in-service 
and pre-service preparation to ensure 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. The plan must include a description of how the State 
will--
    (a) Prepare general and special education personnel with the content 
knowledge and collaborative skills needed to meet the needs of children 
with disabilities including how the State will work with other States on 
common certification criteria;
    (b) Prepare professionals and paraprofessionals in the area of early 
intervention with the content knowledge and collaborative skills needed 
to meet the needs of infants and toddlers with disabilities;
    (c) Work with institutions of higher education and other entities 
that (on both a pre-service and an in-service basis) prepare personnel 
who work with children with disabilities to ensure that those 
institutions and entities develop the capacity to support quality 
professional development programs that meet State and local needs;
    (d) Work to develop collaborative agreements with other States for 
the joint support and development of programs to prepare personnel for 
which there is not sufficient demand within a single State to justify 
support or development of a program of preparation;
    (e) Work in collaboration with other States, particularly 
neighboring States, to address the lack of uniformity and reciprocity in 
credentialing of teachers and other personnel;
    (f) 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;
    (g) Acquire and disseminate, to teachers, administrators, school 
board members, and related services personnel, significant knowledge 
derived from educational research and other sources, and how the State 
will, if appropriate, adopt promising practices, materials, and 
technology;
    (h) Recruit, prepare, and retain qualified personnel, including 
personnel with disabilities and personnel from groups that are under-
represented in the fields of regular education, special education, and 
related services;
    (i) Insure that the plan is integrated, to the maximum extent 
possible, with other professional development plans and activities, 
including plans and activities developed and carried out under other 
Federal and State laws

[[Page 53]]

that address personnel recruitment and training; and
    (j) Provide for the joint training of parents and special education, 
related services, and general education personnel.

(Authority: 20 U.S.C. 1453 (c)(3)(D))



Secs. 300.383-300.387  [Reserved]



                 Subpart D--Children in Private Schools

  Children With Disabilities in Private Schools Placed or Referred by 
                             Public Agencies



Sec. 300.400  Applicability of Secs. 300.400-300.402.

    Sections 300.401-300.402 apply only to children with disabilities 
who are or have been placed in or referred to a private school or 
facility by a public agency as a means of providing special education 
and related services.

(Authority: 20 U.S.C. 1412(a)(10)(B))



Sec. 300.401  Responsibility of State educational agency.

    Each SEA shall ensure that a child with a disability who is placed 
in or referred to a private school or facility by a public agency--
    (a) Is provided special education and related services--
    (1) In conformance with an IEP that meets the requirements of 
Secs. 300.340-300.350; and
    (2) At no cost to the parents;
    (b) Is provided an education that meets the standards that apply to 
education provided by the SEA and LEAs (including the requirements of 
this part); and
    (c) Has all of the rights of a child with a disability who is served 
by a public agency.

(Authority: 20 U.S.C. 1412(a)(10)(B))



Sec. 300.402  Implementation by State educational agency.

    In implementing Sec. 300.401, the SEA shall--
    (a) Monitor compliance through procedures such as written reports, 
on-site visits, and parent questionnaires;
    (b) Disseminate copies of applicable standards to each private 
school and facility to which a public agency has referred or placed a 
child with a disability; and
    (c) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of State standards that 
apply to them.

(Authority: 20 U.S.C. 1412(a)(10)(B))

Children With Disabilities Enrolled by Their Parents in Private Schools 
                          When FAPE Is at Issue



Sec. 300.403  Placement of children by parents if FAPE is at issue.

    (a) General. This part does not require an LEA to pay for the cost 
of education, including special education and related services, of a 
child with a disability at a private school or facility if that agency 
made FAPE available to the child and the parents elected to place the 
child in a private school or facility. However, the public agency shall 
include that child in the population whose needs are addressed 
consistent with Secs. 300.450-300.462.
    (b) Disagreements about FAPE. Disagreements between a parent and a 
public agency regarding the availability of a program appropriate for 
the child, and the question of financial responsibility, are subject to 
the due process procedures of Secs. 300.500-300.517.
    (c) Reimbursement for private school placement. If the 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, elementary, or secondary school without 
the consent of or referral by the public agency, a court or a hearing 
officer may require the agency to reimburse the parents for the cost of 
that enrollment if the court or hearing officer finds that the agency 
had not made FAPE available to the child in a timely manner prior to 
that enrollment and that the private placement is appropriate. A 
parental placement may be found to be appropriate by a hearing officer 
or a court even if it does not meet the State standards that apply to 
education provided by the SEA and LEAs.
    (d) Limitation on reimbursement. The cost of reimbursement described 
in

[[Page 54]]

paragraph (c) of this section may be reduced or denied--
    (1) If--
    (i) At the most recent IEP meeting that the parents attended prior 
to removal of the child from the public school, the parents did not 
inform the IEP team that they were rejecting the placement proposed by 
the public agency to provide FAPE to their child, including stating 
their concerns and their intent to enroll their child in a private 
school at public expense; or
    (ii) At least ten (10) business days (including any holidays that 
occur on a business day) prior to the removal of the child from the 
public school, the parents did not give written notice to the public 
agency of the information described in paragraph (d)(1)(i) of this 
section;
    (2) If, prior to the parents' removal of the child from the public 
school, the public agency informed the parents, through the notice 
requirements described in Sec. 300.503(a)(1), of its intent to evaluate 
the child (including a statement of the purpose of the evaluation that 
was appropriate and reasonable), but the parents did not make the child 
available for the evaluation; or
    (3) Upon a judicial finding of unreasonableness with respect to 
actions taken by the parents.
    (e) Exception. Notwithstanding the notice requirement in paragraph 
(d)(1) of this section, the cost of reimbursement may not be reduced or 
denied for failure to provide the notice if--
    (1) The parent is illiterate and cannot write in English;
    (2) Compliance with paragraph (d)(1) of this section would likely 
result in physical or serious emotional harm to the child;
    (3) The school prevented the parent from providing the notice; or
    (4) The parents had not received notice, pursuant to section 615 of 
the Act, of the notice requirement in paragraph (d)(1) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(C))

 Children With Disabilities Enrolled by Their Parents in Private Schools



Sec. 300.450  Definition of ``private school children with disabilities.''

    As used in this part, private school children with disabilities 
means children with disabilities enrolled by their parents in private 
schools or facilities other than children with disabilities covered 
under Secs. 300.400-300.402.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.451  Child find for private school children with disabilities.

    (a) Each LEA shall locate, identify, and evaluate all private school 
children with disabilities, including religious-school children residing 
in the jurisdiction of the LEA, in accordance with Secs. 300.125 and 
300.220. The activities undertaken to carry out this responsibility for 
private school children with disabilities must be comparable to 
activities undertaken for children with disabilities in public schools.
    (b) Each LEA shall consult with appropriate representatives of 
private school children with disabilities on how to carry out the 
activities described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))



Sec. 300.452  Provision of services--basic requirement.

    (a) General. To the extent consistent with their number and location 
in the State, provision must be made for the participation of private 
school children with disabilities in the program assisted or carried out 
under Part B of the Act by providing them with special education and 
related services in accordance with Secs. 300.453-300.462.
    (b) SEA Responsibility--services plan. Each SEA shall ensure that, 
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private 
school child with a disability who has been designated to receive 
special education and related services under this part.

(Authority: 20 U.S.C. 1412(a)(10)(A)(i))

[[Page 55]]



Sec. 300.453  Expenditures.

    (a) Formula. To meet the requirement of Sec. 300.452(a), each LEA 
must spend on providing special education and related services to 
private school children with disabilities--
    (1) For children aged 3 through 21, an amount that is the same 
proportion of the LEA's total subgrant under section 611(g) of the Act 
as the number of private school children with disabilities aged 3 
through 21 residing in its jurisdiction is to the total number of 
children with disabilities in its jurisdiction aged 3 through 21; and
    (2) For children aged 3 through 5, an amount that is the same 
proportion of the LEA's total subgrant under section 619(g) of the Act 
as the number of private school children with disabilities aged 3 
through 5 residing in its jurisdiction is to the total number of 
children with disabilities in its jurisdiction aged 3 through 5.
    (b) Child count. (1) Each LEA shall--
    (i) Consult with representatives of private school children in 
deciding how to conduct the annual count of the number of private school 
children with disabilities; and
    (ii) Ensure that the count is conducted on December 1 or the last 
Friday of October of each year.
    (2) The child count must be used to determine the amount that the 
LEA must spend on providing special education and related services to 
private school children with disabilities in the next subsequent fiscal 
year.
    (c) Expenditures for child find may not be considered. Expenditures 
for child find activities described in Sec. 300.451 may not be 
considered in determining whether the LEA has met the requirements of 
paragraph (a) of this section.
    (d) Additional services permissible. State and local educational 
agencies are not prohibited from providing services to private school 
children with disabilities in excess of those required by this part, 
consistent with State law or local policy.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.454  Services determined.

    (a) No individual right to special education and related services. 
(1) 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.
    (2) Decisions about the services that will be provided to private 
school children with disabilities under Secs. 300.452-300.462, must be 
made in accordance with paragraphs (b), and (c) of this section.
    (b) Consultation with representatives of private school children 
with disabilities. (1) General. Each LEA shall consult, in a timely and 
meaningful way, with appropriate representatives of private school 
children with disabilities in light of the funding under Sec. 300.453, 
the number of private school children with disabilities, the needs of 
private school children with disabilities, and their location to 
decide--
    (i) Which children will receive services under Sec. 300.452;
    (ii) What services will be provided;
    (iii) How and where the services will be provided; and
    (iv) How the services provided will be evaluated.
    (2) Genuine opportunity. Each LEA shall give appropriate 
representatives of private school children with disabilities a genuine 
opportunity to express their views regarding each matter that is subject 
to the consultation requirements in this section.
    (3) Timing. The consultation required by paragraph (b)(1) of this 
section must occur before the LEA makes any decision that affects the 
opportunities of private school children with disabilities to 
participate in services under Secs. 300.452-300.462.
    (4) Decisions. The LEA shall make the final decisions with respect 
to the services to be provided to eligible private school children.
    (c) Services plan for each child served under Secs. 300.450-300.462. 
If a child with a disability is enrolled in a religious or other private 
school and will receive special education or related services from an 
LEA, the LEA shall--
    (1) Initiate and conduct meetings to develop, review, and revise a 
services plan for the child, in accordance with Sec. 300.455(b); and

[[Page 56]]

    (2) Ensure that a representative of the religious or other private 
school attends each meeting. If the representative cannot attend, the 
LEA shall use other methods to ensure participation by the private 
school, including individual or conference telephone calls.

(Authority: 1412(a)(10)(A))



Sec. 300.455  Services provided.

    (a) General. (1) The services provided to private school children 
with disabilities must be provided by personnel meeting the same 
standards as personnel providing services in the public schools.
    (2) Private school children with disabilities may receive a 
different amount of services than children with disabilities in public 
schools.
    (3) No private school child with a disability is entitled to any 
service or to any amount of a service the child would receive if 
enrolled in a public school.
    (b) Services provided in accordance with a services plan. (1) Each 
private school child with a disability who has been designated to 
receive services under Sec. 300.452 must have a services plan that 
describes the specific special education and related services that the 
LEA will provide to the child in light of the services that the LEA has 
determined, through the process described in Secs. 300.453-300.454, it 
will make available to private school children with disabilities.
    (2) The services plan must, to the extent appropriate--
    (i) Meet the requirements of Sec. 300.347, with respect to the 
services provided; and
    (ii) Be developed, reviewed, and revised consistent with 
Secs. 300.342-300.346.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.456  Location of services; transportation.

    (a) On-site. Services provided to private school children with 
disabilities may be provided on-site at a child's private school, 
including a religious school, to the extent consistent with law.
    (b) Transportation. (1) General. (i) If necessary for the child to 
benefit from or participate in the services provided under this part, a 
private school child with a disability must be provided transportation--
    (A) From the child's school or the child's home to a site other than 
the private school; and
    (B) From the service site to the private school, or to the child's 
home, depending on the timing of the services.
    (ii) LEAs are not required to provide transportation from the 
child's home to the private school.
    (2) Cost of transportation. The cost of the transportation described 
in paragraph (b)(1)(i) of this section may be included in calculating 
whether the LEA has met the requirement of Sec. 300.453.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.457  Complaints.

    (a) Due process inapplicable. The procedures in Secs. 300.504-
300.515 do not apply to complaints that an LEA has failed to meet the 
requirements of Secs. 300.452-300.462, including the provision of 
services indicated on the child's services plan.
    (b) Due process applicable. The procedures in Secs. 300.504-300.515 
do apply to complaints that an LEA has failed to meet the requirements 
of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
    (c) State complaints. Complaints that an SEA or LEA has failed to 
meet the requirements of Secs. 300.451-300.462 may be filed under the 
procedures in Secs. 300.660-300.662.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.458  Separate classes prohibited.

    An LEA may not use funds available under section 611 or 619 of the 
Act for classes that are organized separately on the basis of school 
enrollment or religion of the students if--
    (a) The classes are at the same site; and
    (b) The classes include students enrolled in public schools and 
students enrolled in private schools.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.459  Requirement that funds not benefit a private school.

    (a) An LEA may not use funds provided under section 611 or 619 of 
the Act

[[Page 57]]

to finance the existing level of instruction in a private school or to 
otherwise benefit the private school.
    (b) The LEA shall use funds provided under Part B of the Act to meet 
the special education and related services needs of students enrolled in 
private schools, but not for--
    (1) The needs of a private school; or
    (2) The general needs of the students enrolled in the private 
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.460  Use of public school personnel.

    An LEA may use funds available under sections 611 and 619 of the Act 
to make public school personnel available in other than public 
facilities--
    (a) To the extent necessary to provide services under Secs. 300.450-
300.462 for private school children with disabilities; and
    (b) If those services are not normally provided by the private 
school.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.461  Use of private school personnel.

    An LEA may use funds available under section 611 or 619 of the Act 
to pay for the services of an employee of a private school to provide 
services under Secs. 300.450-300.462 if--
    (a) The employee performs the services outside of his or her regular 
hours of duty; and
    (b) The employee performs the services under public supervision and 
control.

(Authority: 20 U.S.C. 1412(a)(10)(A))



Sec. 300.462  Requirements concerning property, equipment, and supplies for the benefit of private school children with disabilities.

    (a) A public agency must keep title to and exercise continuing 
administrative control of all property, equipment, and supplies that the 
public agency acquires with funds under section 611 or 619 of the Act 
for the benefit of private school children with disabilities.
    (b) The public agency may place equipment and supplies in a private 
school for the period of time needed for the program.
    (c) The public agency shall ensure that the equipment and supplies 
placed in a private school--
    (1) Are used only for Part B purposes; and
    (2) Can be removed from the private school without remodeling the 
private school facility.
    (d) The public agency shall remove equipment and supplies from a 
private school if--
    (1) The equipment and supplies are no longer needed for Part B 
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the equipment 
and supplies for other than Part B purposes.
    (e) No funds under Part B of the Act may be used for repairs, minor 
remodeling, or construction of private school facilities.

(Authority: 20 U.S.C. 1412(a)(10)(A))

                         Procedures for By-Pass



Sec. 300.480  By-pass--general.

    (a) The Secretary implements a by-pass if an SEA is, and was on 
December 2, 1983, prohibited by law from providing for the participation 
of private school children with disabilities in the program assisted or 
carried out under Part B of the Act, as required by section 
612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
    (b) The Secretary waives the requirement of section 612(a)(10)(A) of 
the Act and of Secs. 300.452-300.462 if the Secretary implements a by-
pass.

(Authority: 20 U.S.C. 1412(f)(1))



Sec. 300.481  Provisions for services under a by-pass.

    (a) Before implementing a by-pass, the Secretary consults with 
appropriate public and private school officials, including SEA 
officials, in the affected State to consider matters such as--
    (1) The prohibition imposed by State law that results in the need 
for a by-pass;
    (2) The scope and nature of the services required by private school 
children with disabilities in the State, and the number of children to 
be served under the by-pass; and
    (3) The establishment of policies and procedures to ensure that 
private

[[Page 58]]

school children with disabilities receive services consistent with the 
requirements of section 612(a)(10)(A) of the Act and Secs. 300.452-
300.462.
    (b) After determining that a by-pass is required, the Secretary 
arranges for the provision of services to private school children with 
disabilities in the State in a manner consistent with the requirements 
of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by 
providing services through one or more agreements with appropriate 
parties.
    (c) For any fiscal year that a by-pass is implemented, the Secretary 
determines the maximum amount to be paid to the providers of services by 
multiplying--
    (1) A per child amount that may not exceed the amount per child 
provided by the Secretary under Part B of the Act for all children with 
disabilities in the State for the preceding fiscal year; by
    (2) The number of private school children with disabilities (as 
defined by Secs. 300.7(a) and 300.450) in the State, as determined by 
the Secretary on the basis of the most recent satisfactory data 
available, which may include an estimate of the number of those children 
with disabilities.
    (d) The Secretary deducts from the State's allocation under Part B 
of the Act the amount the Secretary determines is necessary to implement 
a by-pass and pays that amount to the provider of services. The 
Secretary may withhold this amount from the State's allocation pending 
final resolution of any investigation or complaint that could result in 
a determination that a by-pass must be implemented.

(Authority: 20 U.S.C. 1412(f)(2))



Sec. 300.482  Notice of intent to implement a by-pass.

    (a) Before taking any final action to implement a by-pass, the 
Secretary provides the affected SEA with written notice.
    (b) In the written notice, the Secretary--
    (1) States the reasons for the proposed by-pass in sufficient detail 
to allow the SEA to respond; and
    (2) Advises the SEA that it has a specific period of time (at least 
45 days) from receipt of the written notice to submit written objections 
to the proposed by-pass and that it may request in writing the 
opportunity for a hearing to show cause why a by-pass should not be 
implemented.
    (c) The Secretary sends the notice to the SEA by certified mail with 
return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3)(A))



Sec. 300.483  Request to show cause.

    An SEA seeking an opportunity to show cause why a by-pass should not 
be implemented shall submit a written request for a show cause hearing 
to the Secretary.

(Authority: 20 U.S.C. 1412(f)(3))



Sec. 300.484  Show cause hearing.

    (a) If a show cause hearing is requested, the Secretary--
    (1) Notifies the SEA and other appropriate public and private school 
officials of the time and place for the hearing; and
    (2) Designates a person to conduct the show cause hearing. The 
designee must not have had any responsibility for the matter brought for 
a hearing.
    (b) At the show cause hearing, the designee considers matters such 
as--
    (1) The necessity for implementing a by-pass;
    (2) Possible factual errors in the written notice of intent to 
implement a by-pass; and
    (3) The objections raised by public and private school 
representatives.
    (c) The designee may regulate the course of the proceedings and the 
conduct of parties during the pendency of the proceedings. The designee 
takes all steps necessary to conduct a fair and impartial proceeding, to 
avoid delay, and to maintain order.
    (d) The designee may interpret applicable statutes and regulations, 
but may not waive them or rule on their validity.
    (e) The designee arranges for the preparation, retention, and, if 
appropriate, dissemination of the record of the hearing.

(Authority: 20 U.S.C. 1412(f)(3))



Sec. 300.485  Decision.

    (a) The designee who conducts the show cause hearing--

[[Page 59]]

    (1) Issues a written decision that includes a statement of findings; 
and
    (2) Submits a copy of the decision to the Secretary and sends a copy 
to each party by certified mail with return receipt requested.
    (b) Each party may submit comments and recommendations on the 
designee's decision to the Secretary within 15 days of the date the 
party receives the designee's decision.
    (c) The Secretary adopts, reverses, or modifies the designee's 
decision and notifies the SEA of the Secretary's final action. That 
notice is sent by certified mail with return receipt requested.

(Authority: 20 U.S.C. 1412(f)(3))



Sec. 300.486  Filing requirements.

    (a) Any written submission under Secs. 300.482-300.485 must be filed 
by hand-delivery, by mail, or by facsimile transmission. The Secretary 
discourages the use of facsimile transmission for documents longer than 
five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was received 
by the Department.
    (d) If a document is filed by facsimile transmission, the Secretary 
or the hearing officer, as applicable, may require the filing of a 
follow-up hard copy by hand-delivery or by mail within a reasonable 
period of time.
    (e) If agreed upon by the parties, service of a document may be made 
upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1412(f)(3))



Sec. 300.487  Judicial review.

    If dissatisfied with the Secretary's final action, the SEA may, 
within 60 days after notice of that action, file a petition for review 
with the United States Court of Appeals for the circuit in which the 
State is located. The procedures for judicial review are described in 
section 612(f)(3)(B)-(D) of the Act.

(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))



                    Subpart E--Procedural Safeguards

             Due Process Procedures for Parents and Children



Sec. 300.500  General responsibility of public agencies; definitions.

    (a) Responsibility of SEA and other public agencies. Each SEA shall 
ensure that each public agency establishes, maintains, and implements 
procedural safeguards that meet the requirements of Secs. 300.500-
300.529.
    (b) Definitions of ``consent,'' ``evaluation,'' and ``personally 
identifiable.'' As used in this part --
    (1) Consent means that --
    (i) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in his or her native 
language, or other mode of communication;
    (ii) The parent understands and agrees in writing to the carrying 
out of the activity for which his or her consent is sought, and the 
consent describes that activity and lists the records (if any) that will 
be released and to whom; and
    (iii)(A) The parent understands that the granting of consent is 
voluntary on the part of the parent and may be revoked at anytime.
    (B) If a parent revokes consent, that revocation is not retroactive 
(i.e., it does not negate an action that has occurred after the consent 
was given and before the consent was revoked).
    (2) Evaluation means procedures used in accordance with 
Secs. 300.530-300.536 to determine whether a child has a disability and 
the nature and extent of the special education and related services that 
the child needs; and
    (3) Personally identifiable means that information includes--
    (i) The name of the child, the child's parent, or other family 
member;
    (ii) The address of the child;
    (iii) A personal identifier, such as the child's social security 
number or student number; or
    (iv) A list of personal characteristics or other information that 
would make

[[Page 60]]

it possible to identify the child with reasonable certainty.

(Authority: 20 U.S.C. 1415(a))



Sec. 300.501  Opportunity to examine records; parent participation in meetings.

    (a) General. The parents of a child with a disability must be 
afforded, in accordance with the procedures of Secs. 300.562-300.569, an 
opportunity to--
    (1) Inspect and review all education records with respect to--
    (i) The identification, evaluation, and educational placement of the 
child; and
    (ii) The provision of FAPE to the child; and
    (2) Participate in meetings with respect to --
    (i) The identification, evaluation, and educational placement of the 
child; and
    (ii) The provision of FAPE to the child.
    (b) Parent participation in meetings. (1) Each public agency shall 
provide notice consistent with Sec. 300.345(a)(1) and (b)(1) to ensure 
that parents of children with disabilities have the opportunity to 
participate in meetings described in paragraph (a)(2) of this section.
    (2) A meeting does not include informal or unscheduled conversations 
involving public agency personnel and conversations on issues such as 
teaching methodology, lesson plans, or coordination of service provision 
if those issues are not addressed in the child's 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 later meeting.
    (c) Parent involvement in placement decisions. (1) Each public 
agency shall ensure that the parents of each child with a disability are 
members of any group that makes decisions on the educational placement 
of their child.
    (2) In implementing the requirements of paragraph (c)(1) of this 
section, the public agency shall use procedures consistent with the 
procedures described in Sec. 300.345(a) through (b)(1).
    (3) If neither parent can participate in a meeting in which a 
decision is to be made relating to the educational placement of their 
child, the public agency shall use other methods to ensure their 
participation, including individual or conference telephone calls, or 
video conferencing.
    (4) A placement decision may be made by a group without the 
involvement of the parents, if the public agency is unable to obtain the 
parents' participation in the decision. In this case, the public agency 
must have a record of its attempt to ensure their involvement, including 
information that is consistent with the requirements of Sec. 300.345(d).
    (5) The public agency shall make reasonable efforts to ensure that 
the parents understand, and are able to participate in, any group 
discussions relating to the educational placement of their child, 
including arranging for an interpreter for parents with deafness, or 
whose native language is other than English.

(Authority: 20 U.S.C. 1414(f), 1415(b)(1))



Sec. 300.502  Independent educational evaluation.

    (a) General. (1) The parents of a child with a disability have the 
right under this part to obtain an independent educational evaluation of 
the child, subject to paragraphs (b) through (e) of this section.
    (2) Each public agency shall provide to parents, upon request for an 
independent educational evaluation, information about where an 
independent educational evaluation may be obtained, and the agency 
criteria applicable for independent educational evaluations as set forth 
in paragraph (e) of this section.
    (3) For the purposes of this part--
    (i) Independent educational evaluation means an evaluation conducted 
by a qualified examiner who is not employed by the public agency 
responsible for the education of the child in question; and
    (ii) Public expense means that the public agency either pays for the 
full cost of the evaluation or ensures that the evaluation is otherwise 
provided at no cost to the parent, consistent with Sec. 300.301.
    (b) Parent right to evaluation at public expense. (1) A parent has 
the right to an independent educational evaluation at

[[Page 61]]

public expense if the parent disagrees with an evaluation obtained by 
the public agency.
    (2) If a parent requests an independent educational evaluation at 
public expense, the public agency must, without unnecessary delay, 
either--
    (i) Initiate a hearing under Sec. 300.507 to show that its 
evaluation is appropriate; or
    (ii) Ensure that an independent educational evaluation is provided 
at public expense, unless the agency demonstrates in a hearing under 
Sec. 300.507 that the evaluation obtained by the parent did not meet 
agency criteria.
    (3) If the public agency initiates a hearing and the final decision 
is that the agency's evaluation is appropriate, the parent still has the 
right to an independent educational evaluation, but not at public 
expense.
    (4) 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.
    (c) Parent-initiated evaluations. If the parent obtains an 
independent educational evaluation at private expense, the results of 
the evaluation--
    (1) Must be considered by the public agency, if it meets agency 
criteria, in any decision made with respect to the provision of FAPE to 
the child; and
    (2) May be presented as evidence at a hearing under this subpart 
regarding that child.
    (d) Requests for evaluations by hearing officers. If a hearing 
officer requests an independent educational evaluation as part of a 
hearing, the cost of the evaluation must be at public expense.
    (e) Agency criteria. (1) If an independent educational evaluation is 
at public expense, the criteria under which the evaluation is obtained, 
including the location of the evaluation and the qualifications of the 
examiner, must be the same as the criteria that the public agency uses 
when it initiates an evaluation, to the extent those criteria are 
consistent with the parent's right to an independent educational 
evaluation.
    (2) Except for the criteria described in paragraph (e)(1) of this 
section, a public agency may not impose conditions or timelines related 
to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1))



Sec. 300.503  Prior notice by the public agency; content of notice.

    (a) Notice. (1) Written notice that meets the requirements of 
paragraph (b) of this section must be given to the parents of a child 
with a disability a reasonable time before the public agency--
    (i) Proposes to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child; or
    (ii) Refuses to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of FAPE to the 
child.
    (2) If the notice described under paragraph (a)(1) of this section 
relates to an action proposed by the public agency that also requires 
parental consent under Sec. 300.505, the agency may give notice at the 
same time it requests parent consent.
    (b) Content of notice. The notice required under paragraph (a) of 
this section must include--
    (1) A description of the action proposed or refused by the agency;
    (2) An explanation of why the agency proposes or refuses to take the 
action;
    (3) A description of any other options that the agency considered 
and the reasons why those options were rejected;
    (4) A description of each evaluation procedure, test, record, or 
report the agency used as a basis for the proposed or refused action;
    (5) A description of any other factors that are relevant to the 
agency's proposal or refusal;
    (6) A statement that the parents of a child with a disability have 
protection under the 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

[[Page 62]]

    (7) Sources for parents to contact to obtain assistance in 
understanding the provisions of this part.
    (c) Notice in understandable language. (1) The notice required under 
paragraph (a) of this section must be--
    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of 
communication used by the parent, unless it is clearly not feasible to 
do so.
    (2) If the native language or other mode of communication of the 
parent is not a written language, the public agency shall take steps to 
ensure--
    (i) That the notice is translated orally or by other means to the 
parent in his or her native language or other mode of communication;
    (ii) That the parent understands the content of the notice; and
    (iii) That there is written evidence that the requirements in 
paragraphs (c)(2) (i) and (ii) of this section have been met.

(Authority: 20 U.S.C. 1415(b)(3), (4) and (c), 1414(b)(1))



Sec. 300.504  Procedural safeguards notice.

    (a) General. A copy of the procedural safeguards available to the 
parents of a child with a disability must be given to the parents, at a 
minimum--
    (1) Upon initial referral for evaluation;
    (2) Upon each notification of an IEP meeting;
    (3) Upon reevaluation of the child; and
    (4) Upon receipt of a request for due process under Sec. 300.507.
    (b) Contents. The procedural safeguards notice must include a full 
explanation of all of the procedural safeguards available under 
Secs. 300.403, 300.500-300.529, and 300.560-300.577, and the State 
complaint procedures available under Secs. 300.660-300.662 relating to--
    (1) Independent educational evaluation;
    (2) Prior written notice;
    (3) Parental consent;
    (4) Access to educational records;
    (5) Opportunity to present complaints to initiate due process 
hearings;
    (6) The child's placement during pendency of due process 
proceedings;
    (7) Procedures for students who are subject to placement in an 
interim alternative educational setting;
    (8) Requirements for unilateral placement by parents of children in 
private schools at public expense;
    (9) Mediation;
    (10) Due process hearings, including requirements for disclosure of 
evaluation results and recommendations;
    (11) State-level appeals (if applicable in that State);
    (12) Civil actions;
    (13) Attorneys' fees; and
    (14) The State complaint procedures under Secs. 300.660-300.662, 
including a description of how to file a complaint and the timelines 
under those procedures.
    (c) Notice in understandable language. The notice required under 
paragraph (a) of this section must meet the requirements of 
Sec. 300.503(c).

(Authority: 20 U.S.C. 1415(d))



Sec. 300.505  Parental consent.

    (a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this 
section, informed parent consent must be obtained before--
    (i) Conducting an initial evaluation or reevaluation; and
    (ii) Initial provision of special education and related services to 
a child with a disability.
    (2) Consent for initial evaluation may not be construed as consent 
for initial placement described in paragraph (a)(1)(ii) of this section.
    (3) Parental consent is not required before--
    (i) Reviewing existing data as part of an evaluation or a 
reevaluation; or
    (ii) Administering a test or other evaluation that is administered 
to all children unless, before administration of that test or 
evaluation, consent is required of parents of all children.
    (b) Refusal. If the parents of a child with a disability refuse 
consent for initial evaluation or a reevaluation, the agency may 
continue to pursue those evaluations by using the due process procedures 
under Secs. 300.507-300.509, or the mediation procedures under 
Sec. 300.506 if appropriate, except to the extent inconsistent with 
State law relating to parental consent.

[[Page 63]]

    (c) Failure to respond to request for reevaluation. (1) Informed 
parental consent need not be obtained for reevaluation if the public 
agency can demonstrate that it has taken reasonable measures to obtain 
that consent, and the child's parent has failed to respond.
    (2) To meet the reasonable measures requirement in paragraph (c)(1) 
of this section, the public agency must use procedures consistent with 
those in Sec. 300.345(d).
    (d) Additional State consent requirements. In addition to the 
parental consent requirements described in paragraph (a) of this 
section, a State may require parental consent for other services and 
activities under this part if it ensures that each public agency in the 
State establishes and implements effective procedures to ensure that a 
parent's refusal to consent does not result in a failure to provide the 
child with FAPE.
    (e) Limitation. A public agency may not use a parent's refusal to 
consent to one service or activity under paragraphs (a) and (d) of this 
section to deny the parent or child any other service, benefit, or 
activity of the public agency, except as required by this part.

(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))



Sec. 300.506  Mediation.

    (a) General. Each public agency shall ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter described in Sec. 300.503(a)(1) to resolve the disputes through a 
mediation process that, at a minimum, must be available whenever a 
hearing is requested under Secs. 300.507 or 300.520-300.528.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due process 
hearing under Sec. 300.507, or to deny any other rights afforded under 
Part B of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2)(i) The State shall maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of special education and related services.
    (ii) If a mediator is not selected on a random (e.g., a rotation) 
basis from the list described in paragraph (b)(2)(i) of this section, 
both parties must be involved in selecting the mediator and agree with 
the selection of the individual who will mediate.
    (3) The State shall bear the cost of the mediation process, 
including the costs of meetings described in paragraph (d) of this 
section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) An agreement reached by the parties to the dispute in the 
mediation process must be set forth in a written mediation agreement.
    (6) 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.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of--
    (A) Any LEA or any State agency described under Sec. 300.194; or
    (B) An SEA that is providing direct services to a child who is the 
subject of the mediation process; and
    (ii) Must not have a personal or professional conflict of interest.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of an LEA or State agency described under Sec. 300.194 solely 
because he or she is paid by the agency to serve as a mediator.
    (d) Meeting to encourage mediation. (1) A public agency may 
establish procedures to require parents who elect not to use the 
mediation process to meet, at a time and location convenient to the 
parents, with a disinterested party--
    (i) Who is under contract with a parent training and information 
center or community parent resource center in

[[Page 64]]

the State established under section 682 or 683 of the Act, or an 
appropriate alternative dispute resolution entity; and
    (ii) Who would explain the benefits of the mediation process, and 
encourage the parents to use the process.
    (2) A public agency may not deny or delay a parent's right to a due 
process hearing under Sec. 300.507 if the parent fails to participate in 
the meeting described in paragraph (d)(1) of this section.

(Authority: 20 U.S.C. 1415(e))



Sec. 300.507  Impartial due process hearing; parent notice.

    (a) General. (1) A parent or a public agency may initiate a hearing 
on any of the matters described in Sec. 300.503(a)(1) and (2) (relating 
to the identification, evaluation or educational placement of a child 
with a disability, or the provision of FAPE to the child).
    (2) When a hearing is initiated under paragraph (a)(1) of this 
section, the public agency shall inform the parents of the availability 
of mediation described in Sec. 300.506.
    (3) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
    (i) The parent requests the information; or
    (ii) The parent or the agency initiates a hearing under this 
section.
    (b) Agency responsible for conducting hearing. The hearing described 
in paragraph (a) of this section must be conducted by the SEA or the 
public agency directly responsible for the education of the child, as 
determined under State statute, State regulation, or a written policy of 
the SEA.
    (c) Parent notice to the public agency. (1) General. The public 
agency must have procedures that require the parent of a child with a 
disability or the attorney representing the child, to provide notice 
(which must remain confidential) to the public agency in a request for a 
hearing under paragraph (a)(1) of this section.
    (2) Content of parent notice. The notice required in paragraph 
(c)(1) of this section must include--
    (i) The name of the child;
    (ii) The address of the residence of the child;
    (iii) The name of the school the child is attending;
    (iv) 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
    (v) A proposed resolution of the problem to the extent known and 
available to the parents at the time.
    (3) Model form to assist parents. Each SEA shall develop a model 
form to assist parents in filing a request for due process that includes 
the information required in paragraphs (c)(1) and (2) of this section.
    (4) Right to due process hearing. A public agency may not deny or 
delay a parent's right to a due process hearing for failure to provide 
the notice required in paragraphs (c)(1) and (2) of this section.

(Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and 
(f)(1))



Sec. 300.508  Impartial hearing officer.

    (a) A hearing may not be conducted--
    (1) By a person who is an employee of the State agency or the LEA 
that is involved in the education or care of the child; or
    (2) By any person having a personal or professional interest that 
would conflict with his or her objectivity in the hearing.
    (b) A person who otherwise qualifies to conduct a hearing under 
paragraph (a) of this section is not an employee of the agency solely 
because he or she is paid by the agency to serve as a hearing officer.
    (c) Each public agency shall keep a list of the persons who serve as 
hearing officers. The list must include a statement of the 
qualifications of each of those persons.

(Authority: 20 U.S.C. 1415(f)(3))



Sec. 300.509  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Secs. 300.507 or 300.520-300.528, or an appeal conducted pursuant to 
Sec. 300.510, has the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to

[[Page 65]]

the problems of children with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least 5 business days before the 
hearing;
    (4) Obtain a written, or, at the option of the parents, electronic, 
verbatim record of the hearing; and
    (5) Obtain written, or, at the option of the parents, electronic 
findings of fact and decisions.
    (b) Additional disclosure of information. (1) At least 5 business 
days prior to a hearing conducted pursuant to Sec. 300.507(a), each 
party shall disclose to all other parties all evaluations completed by 
that date and recommendations based on the offering party's evaluations 
that the party intends to use at the hearing.
    (2) A hearing officer may bar any party that fails to comply with 
paragraph (b)(1) of this section from introducing the relevant 
evaluation or recommendation at the hearing without the consent of the 
other party.
    (c) Parental rights at hearings. (1) Parents involved in hearings 
must be given the right to--
    (i) Have the child who is the subject of the hearing present; and
    (ii) Open the hearing to the public.
    (2) The record of the hearing and the findings of fact and decisions 
described in paragraphs (a)(4) and (a)(5) of this section must be 
provided at no cost to parents.
    (d) Findings and decision to advisory panel and general public. The 
public agency, after deleting any personally identifiable information, 
shall --
    (1) Transmit the findings and decisions referred to in paragraph 
(a)(5) of this section to the State advisory panel established under 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(2) and (h))



Sec. 300.510  Finality of decision; appeal; impartial review.

    (a) Finality of decision. A decision made in a hearing conducted 
pursuant to Secs. 300.507 or 300.520-300.528 is final, except that any 
party involved in the hearing may appeal the decision under the 
provisions of paragraph (b) of this section and Sec. 300.512.

(Authority: 20 U.S.C. 1415(i)(1)(A))

    (b) Appeal of decisions; impartial review. (1) General. If the 
hearing required by Sec. 300.507 is conducted by a public agency other 
than the SEA, any party aggrieved by the findings and decision in the 
hearing may appeal to the SEA.
    (2) SEA responsibility for review. If there is an appeal, the SEA 
shall conduct an impartial review of the hearing. The official 
conducting the review shall--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held to 
receive additional evidence, the rights in Sec. 300.509 apply;
    (iv) Afford the parties an opportunity for oral or written argument, 
or both, at the discretion of the reviewing official;
    (v) Make an independent decision on completion of the review; and
    (vi) Give a copy of the written, or, at the option of the parents, 
electronic findings of fact and decisions to the parties.
    (c) Findings and decision to advisory panel and general public. The 
SEA, after deleting any personally identifiable information, shall--
    (1) Transmit the findings and decisions referred to in paragraph 
(b)(2)(vi) of this section to the State advisory panel established under 
Sec. 300.650; and
    (2) Make those findings and decisions available to the public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under 
Sec. 300.512.

(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49 (1975))



Sec. 300.511  Timelines and convenience of hearings and reviews.

    (a) The public agency shall ensure that not later than 45 days after 
the receipt of a request for a hearing--

[[Page 66]]

    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.
    (b) The SEA shall ensure that not later than 30 days after the 
receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of 
time beyond the periods set out in paragraphs (a) and (b) of this 
section at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place that is reasonably convenient to the 
parents and child involved.

(Authority: 20 U.S.C. 1415)



Sec. 300.512  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Secs. 300.507 or 300.520-300.528 who does not have the right to an 
appeal under Sec. 300.510(b), and any party aggrieved by the findings 
and decision under Sec. 300.510(b), has the right to bring a civil 
action with respect to the complaint presented pursuant to Sec. 300.507. 
The action may be brought in any State court of competent jurisdiction 
or in a district court of the United States without regard to the amount 
in controversy.
    (b) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Shall receive the records of the administrative proceedings;
    (2) Shall hear additional evidence at the request of a party; and
    (3) Basing its decision on the preponderance of the evidence, shall 
grant the relief that the court determines to be appropriate.
    (c) Jurisdiction of district courts. The district courts of the 
United States have jurisdiction of actions brought under section 615 of 
the Act without regard to the amount in controversy.
    (d) Rule of construction. Nothing in this part restricts or limits 
the rights, procedures, and remedies available under the Constitution, 
the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, or other Federal laws protecting the rights 
of children with disabilities, except that before the filing of a civil 
action under these laws seeking relief that is also available under 
section 615 of the Act, the procedures under Secs. 300.507 and 300.510 
must be exhausted to the same extent as would be required had the action 
been brought under section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(2), (i)(3)(A), and 1415(l))



Sec. 300.513  Attorneys' fees.

    (a) In any action or proceeding brought under section 615 of the 
Act, the court, in its discretion, may award reasonable attorneys' fees 
as part of the costs to the parents of a child with a disability who is 
the prevailing party.
    (b)(1) Funds under Part B of the Act may not be used to pay 
attorneys' fees or costs of a party related to an action or proceeding 
under section 615 of the Act and subpart E of this part.
    (2) Paragraph (b)(1) of this section does not preclude a public 
agency from using funds under Part B of the Act for conducting an action 
or proceeding under section 615 of the Act.
    (c) A court awards reasonable attorney's fees under section 
615(i)(3) of the Act consistent with the following:
    (1) Determination of amount of attorneys' fees. Fees awarded under 
section 615(i)(3) of the Act must be based on rates prevailing in the 
community in which the action or proceeding arose for the kind and 
quality of services furnished. No bonus or multiplier may be used in 
calculating the fees awarded under this subsection.
    (2) Prohibition of attorneys' fees and related costs for certain 
services. (i) Attorneys' fees may not be awarded and related costs may 
not be reimbursed in any action or proceeding under section 615 of the 
Act for services performed subsequent to the time of a written offer of 
settlement to a parent if--
    (A) The offer is made within the time prescribed by Rule 68 of the 
Federal Rules of Civil Procedure or, in the case of an administrative 
proceeding, at any time more than 10 days before the proceeding begins;

[[Page 67]]

    (B) The offer is not accepted within 10 days; and
    (C) The court or administrative hearing officer finds that the 
relief finally obtained by the parents is not more favorable to the 
parents than the offer of settlement.
    (ii) Attorneys' fees may not be awarded relating to any meeting of 
the IEP team unless the meeting is convened as a result of an 
administrative proceeding or judicial action, or at the discretion of 
the State, for a mediation described in Sec. 300.506 that is conducted 
prior to the filing of a request for due process under Secs. 300.507 or 
300.520-300.528.
    (3) Exception to prohibition on attorneys' fees and related costs. 
Notwithstanding paragraph (c)(2) of this section, an award of attorneys' 
fees and related costs may be made to a parent who is the prevailing 
party and who was substantially justified in rejecting the settlement 
offer.
    (4) Reduction of amount of attorneys' fees. Except as provided in 
paragraph (c)(5) of this section, the court reduces, accordingly, the 
amount of the attorneys' fees awarded under section 615 of the Act, if 
the court finds that--
    (i) The parent, during the course of the action or proceeding, 
unreasonably protracted the final resolution of the controversy;
    (ii) The amount of the attorneys' fees otherwise authorized to be 
awarded unreasonably exceeds the hourly rate prevailing in the community 
for similar services by attorneys of reasonably comparable skill, 
reputation, and experience;
    (iii) The time spent and legal services furnished were excessive 
considering the nature of the action or proceeding; or
    (iv) The attorney representing the parent did not provide to the 
school district the appropriate information in the due process complaint 
in accordance with Sec. 300.507(c).
    (5) Exception to reduction in amount of attorneys' fees. The 
provisions of paragraph (c)(4) of this section do not apply in any 
action or proceeding if the court finds that the State or local agency 
unreasonably protracted the final resolution of the action or proceeding 
or there was a violation of section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))



Sec. 300.514  Child's status during proceedings.

    (a) Except as provided in Sec. 300.526, during the pendency of any 
administrative or judicial proceeding regarding a complaint under 
Sec. 300.507, unless the State or local agency and the parents of the 
child agree otherwise, the child involved in the complaint must remain 
in his or her current educational placement.
    (b) If the complaint involves an application for initial admission 
to public school, the child, with the consent of the parents, must be 
placed in the public school until the completion of all the proceedings.
    (c) If the decision of a hearing officer in a due process hearing 
conducted by the SEA or a State review official in an administrative 
appeal agrees with the child's parents that a change of placement is 
appropriate, that placement must be treated as an agreement between the 
State or local agency and the parents for purposes of paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1415(j))



Sec. 300.515  Surrogate parents.

    (a) General. Each public agency shall ensure that the rights of a 
child are protected if--
    (1) No parent (as defined in Sec. 300.20) can be identified;
    (2) The public agency, after reasonable efforts, cannot discover the 
whereabouts of a parent; or
    (3) The child is a ward of the State under the laws of that State.
    (b) Duty of public agency. The duty of a public agency under 
paragraph (a) of this section includes the assignment of an individual 
to act as a surrogate for the parents. This must include a method--
    (1) For determining whether a child needs a surrogate parent; and
    (2) For assigning a surrogate parent to the child.
    (c) Criteria for selection of surrogates. (1) The public agency may 
select a surrogate parent in any way permitted under State law.

[[Page 68]]

    (2) Except as provided in paragraph (c)(3) of this section, public 
agencies shall ensure that a person selected as a surrogate--
    (i) Is not an employee of the SEA, the LEA, or any other agency that 
is involved in the education or care of the child;
    (ii) Has no interest that conflicts with the interest of the child 
he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (3) A public agency may select as a surrogate a person who is an 
employee of a nonpublic agency that only provides non-educational care 
for the child and who meets the standards in paragraphs (c)(2)(ii) and 
(iii) of this section.
    (d) Non-employee requirement; compensation. A person who otherwise 
qualifies to be a surrogate parent under paragraph (c) of this section 
is not an employee of the agency solely because he or she is paid by the 
agency to serve as a surrogate parent.
    (e) Responsibilities. The surrogate parent may represent the child 
in all matters relating to--
    (1) The identification, evaluation, and educational placement of the 
child; and
    (2) The provision of FAPE to the child.

(Authority: 20 U.S.C. 1415(b)(2))



Sec. 300.516  [Reserved]



Sec. 300.517  Transfer of parental rights at age of majority.

    (a) General. A State may provide that, when a student with a 
disability reaches the age of majority under State law that applies to 
all students (except for a student with a disability who has been 
determined to be incompetent under State law)--
    (1)(i) The public agency shall provide any notice required by this 
part to both the individual and the parents; and
    (ii) All other rights accorded to parents under Part B of the Act 
transfer to the student; and
    (2) All rights accorded to parents under Part B of the Act transfer 
to students who are incarcerated in an adult or juvenile, State or local 
correctional institution.
    (3) Whenever a State transfers rights under this part pursuant to 
paragraph (a)(1) or (a)(2) of this section, the agency shall notify the 
individual and the parents of the transfer of rights.
    (b) Special rule. If, under State law, a State has a mechanism to 
determine that a student with a disability, who has reached the age of 
majority under State law that applies to all children and has not been 
determined incompetent under State law, does not have the ability to 
provide informed consent with respect to his or her educational program, 
the State shall establish procedures for appointing the parent, or, if 
the parent is not available another appropriate individual, to represent 
the educational interests of the student throughout the student's 
eligibility under Part B of the Act.

(Authority: 20 U.S.C. 1415(m))

                          Discipline Procedures



Sec. 300.519  Change of placement for disciplinary removals.

    For purposes of removals of a child with a disability from the 
child's current educational placement under Secs. 300.520-300.529, a 
change of placement occurs if--
    (a) The removal is for more than 10 consecutive school days; or
    (b) 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: 20 U.S.C. 1415(k))



Sec. 300.520  Authority of school personnel.

    (a) School personnel may order--
    (1)(i) To the extent removal would be applied to children without 
disabilities, the removal of a child with a disability from the child's 
current placement for not more than 10 consecutive school days for any 
violation of school rules, and additional removals of not more than 10 
consecutive school days in that same school year for separate incidents 
of misconduct (as long as

[[Page 69]]

those removals do not constitute a change of placement under 
Sec. 300.519(b));
    (ii) After a child with a disability has been removed from his or 
her current placement for more than 10 school days in the same school 
year, during any subsequent days of removal the public agency must 
provide services to the extent required under Sec. 300.121(d); and
    (2) 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--
    (i) The child carries a weapon to school or to a school function 
under the jurisdiction of a State or a local educational agency; or
    (ii) 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 under the jurisdiction of a State or local educational agency.
    (b)(1) Either before or not later than 10 business days after either 
first removing the child for more than 10 school days in a school year 
or commencing a removal that constitutes a change of placement under 
Sec. 300.519, including the action described in paragraph (a)(2) of this 
section--
    (i) If the LEA did not conduct a functional behavioral assessment 
and implement a behavioral intervention plan for the child before the 
behavior that resulted in the removal described in paragraph (a) of this 
section, the agency shall convene an IEP meeting to develop an 
assessment plan.
    (ii) If the child already has a behavioral intervention plan, the 
IEP team shall meet to review the plan and its implementation, and, 
modify the plan and its implementation as necessary, to address the 
behavior.
    (2) As soon as practicable after developing the plan described in 
paragraph (b)(1)(i) of this section, and completing the assessments 
required by the plan, the LEA shall convene an IEP meeting to develop 
appropriate behavioral interventions to address that behavior and shall 
implement those interventions.
    (c)(1) If subsequently, a child with a disability who has a 
behavioral intervention plan and who has been removed from the child's 
current educational placement for more than 10 school days in a school 
year is subjected to a removal that does not constitute a change of 
placement under Sec. 300.519, the IEP team members shall review the 
behavioral intervention plan and its implementation to determine if 
modifications are necessary.
    (2) If one or more of the team members believe that modifications 
are needed, the team shall meet to modify the plan and its 
implementation, to the extent the team determines necessary.
    (d) For purposes of this section, the following definitions apply:
    (1) Controlled substance means a drug or other substance identified 
under schedules I, II, III, IV, or V in section 202(c) of the Controlled 
Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug--
    (i) Means a controlled substance; but
    (ii) Does not include a substance that is legally possessed or used 
under the supervision of a licensed health-care professional or that is 
legally possessed or used under any other authority under that Act or 
under any other provision of Federal law.
    (3) Weapon has the meaning given the term ``dangerous weapon'' under 
paragraph (2) of the first subsection (g) of section 930 of title 18, 
United States Code.

(Authority: 20 U.S.C. 1415(k)(1), (10))



Sec. 300.521  Authority of hearing officer.

    A hearing officer under section 615 of the Act may order a change in 
the 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--
    (a) Determines that the public agency has demonstrated by 
substantial evidence that maintaining the current placement of the child 
is substantially likely to result in injury to the child or to others;
    (b) Considers the appropriateness of the child's current placement;
    (c) Considers whether the public agency has made reasonable efforts 
to minimize the risk of harm in the child's current placement, including

[[Page 70]]

the use of supplementary aids and services; and
    (d) Determines that the interim alternative educational setting that 
is proposed by school personnel who have consulted with the child's 
special education teacher, meets the requirements of Sec. 300.522(b).
    (e) As used in this section, the term substantial evidence means 
beyond a preponderance of the evidence.

(Authority: 20 U.S.C. 1415(k)(2), (10))



Sec. 300.522  Determination of setting.

    (a) General. The interim alternative educational setting referred to 
in Sec. 300.520(a)(2) must be determined by the IEP team.
    (b) Additional requirements. Any interim alternative educational 
setting in which a child is placed under Secs. 300.520(a)(2) or 300.521 
must--
    (1) 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
    (2) Include services and modifications to address the behavior 
described in Secs. 300.520(a)(2) or 300.521, that are designed to 
prevent the behavior from recurring.

(Authority: 20 U.S.C. 1415(k)(3))



Sec. 300.523  Manifestation determination review.

    (a) General. If an action is contemplated regarding behavior 
described in Secs. 300.520(a)(2) or 300.521, or involving a removal that 
constitutes a change of placement under Sec. 300.519 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--
    (1) Not later than the date on which the decision to take that 
action is made, the parents must be notified of that decision and 
provided the procedural safeguards notice described in Sec. 300.504; and
    (2) 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, a 
review must be conducted of the relationship between the child's 
disability and the behavior subject to the disciplinary action.
    (b) Individuals to carry out review. A review described in paragraph 
(a) of this section must be conducted by the IEP team and other 
qualified personnel in a meeting.
    (c) Conduct of review. In carrying out a review described in 
paragraph (a) of this section, the IEP team and other qualified 
personnel may determine that the behavior of the child was not a 
manifestation of the child's disability only if the IEP team and other 
qualified personnel--
    (1) First consider, in terms of the behavior subject to disciplinary 
action, all relevant information, including --
    (i) Evaluation and diagnostic results, including the results or 
other relevant information supplied by the parents of the child;
    (ii) Observations of the child; and
    (iii) The child's IEP and placement; and
    (2) Then determine that--
    (i) 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;
    (ii) 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
    (iii) The child's disability did not impair the ability of the child 
to control the behavior subject to disciplinary action.
    (d) Decision. If the IEP team and other qualified personnel 
determine that any of the standards in paragraph (c)(2) of this section 
were not met, the behavior must be considered a manifestation of the 
child's disability.
    (e) Meeting. The review described in paragraph (a) of this section 
may be conducted at the same IEP meeting that is convened under 
Sec. 300.520(b).
    (f) Deficiencies in IEP or placement. If, in the review in 
paragraphs (b) and (c) of this section, a public agency identifies 
deficiencies in the child's IEP or

[[Page 71]]

placement or in their implementation, it must take immediate steps to 
remedy those deficiencies.

(Authority: 20 U.S.C. 1415(k)(4))



Sec. 300.524  Determination that behavior was not manifestation of disability.

    (a) General. If the result of the review described in Sec. 300.523 
is a determination, consistent with Sec. 300.523(d), that the behavior 
of the child with a disability was not a manifestation of the child's 
disability, the relevant disciplinary procedures applicable to children 
without disabilities may be applied to the child in the same manner in 
which they would be applied to children without disabilities, except as 
provided in Sec. 300.121(d).
    (b) Additional requirement. 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.
    (c) Child's status during due process proceedings. Except as 
provided in Sec. 300.526, Sec. 300.514 applies if a parent requests a 
hearing to challenge a determination, made through the review described 
in Sec. 300.523, that the behavior of the child was not a manifestation 
of the child's disability.

(Authority: 20 U.S.C. 1415(k)(5))



Sec. 300.525  Parent appeal.

    (a) General. (1) If the child's parent disagrees with a 
determination that the child's behavior was not a manifestation of the 
child's disability or with any decision regarding placement under 
Secs. 300.520-300.528, the parent may request a hearing.
    (2) The State or local educational agency shall arrange for an 
expedited hearing in any case described in paragraph (a)(1) of this 
section if a hearing is requested by a parent.
    (b) Review of decision. (1) In reviewing a decision with respect to 
the manifestation determination, the hearing officer shall determine 
whether the public agency has demonstrated that the child's behavior was 
not a manifestation of the child's disability consistent with the 
requirements of Sec. 300.523(d).
    (2) In reviewing a decision under Sec. 300.520(a)(2) to place the 
child in an interim alternative educational setting, the hearing officer 
shall apply the standards in Sec. 300.521.

(Authority: 20 U.S.C. 1415(k)(6))



Sec. 300.526  Placement during appeals.

    (a) General. If a parent requests a hearing or an appeal regarding a 
disciplinary action described in Sec. 300.520(a)(2) or 300.521 to 
challenge the interim alternative educational setting or the 
manifestation determination, the child must remain in the interim 
alternative educational setting pending the decision of the hearing 
officer or until the expiration of the time period provided for in 
Sec. 300.520(a)(2) or 300.521, whichever occurs first, unless the parent 
and the State agency or local educational agency agree otherwise.
    (b) Current placement. If a child is placed in an interim 
alternative educational setting pursuant to Sec. 300.520(a)(2) or 
300.521 and school personnel propose to change the child's placement 
after expiration of the interim alternative placement, during the 
pendency of any proceeding to challenge the proposed change in placement 
the child must remain in the current placement (the child's placement 
prior to the interim alternative educational setting), except as 
provided in paragraph (c) of this section.
    (c) Expedited hearing. (1) If school personnel maintain that it is 
dangerous for the child to be in the current placement (placement prior 
to removal to the interim alternative education setting) during the 
pendency of the due process proceedings, the LEA may request an 
expedited due process hearing.
    (2) In determining whether the child may be placed in the 
alternative educational setting or in another appropriate placement 
ordered by the hearing officer, the hearing officer shall apply the 
standards in Sec. 300.521.
    (3) A placement ordered pursuant to paragraph (c)(2) of this section 
may not be longer than 45 days.

[[Page 72]]

    (4) The procedure in paragraph (c) of this section may be repeated, 
as necessary.

(Authority: 20 U.S.C. 1415(k)(7))



Sec. 300.527  Protections for children not yet eligible for special education and related services.

    (a) General. 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 
Secs. 300.520 or 300.521, may assert any of the protections provided for 
in this part if the LEA had knowledge (as determined in accordance with 
paragraph (b) of this section) that the child was a child with a 
disability before the behavior that precipitated the disciplinary action 
occurred.
    (b) Basis of knowledge. An LEA must be deemed to have knowledge that 
a child is a child with a disability if--
    (1) The parent of the child has expressed concern in writing (or 
orally if the parent does not know how to write or has a disability that 
prevents a written statement) to personnel of the appropriate 
educational agency that the child is in need of special education and 
related services;
    (2) The behavior or performance of the child demonstrates the need 
for these services, in accordance with Sec. 300.7;
    (3) The parent of the child has requested an evaluation of the child 
pursuant to Secs. 300.530-300.536; or
    (4) The teacher of the child, or other personnel of the local 
educational agency, has expressed concern about the behavior or 
performance of the child to the director of special education of the 
agency or to other personnel in accordance with the agency's established 
child find or special education referral system.
    (c) Exception. A public agency would not be deemed to have knowledge 
under paragraph (b) of this section if, as a result of receiving the 
information specified in that paragraph, the agency--
    (1) Either--
    (i) Conducted an evaluation under Secs. 300.530-300.536, and 
determined that the child was not a child with a disability under this 
part; or
    (ii) Determined that an evaluation was not necessary; and
    (2) Provided notice to the child's parents of its determination 
under paragraph (c)(1) of this section, consistent with Sec. 300.503.
    (d) Conditions that apply if no basis of knowledge. (1) General. If 
an LEA does not have knowledge that a child is a child with a disability 
(in accordance with paragraphs (b) and (c) of this section) prior to 
taking disciplinary measures against the child, the child may be 
subjected to the same disciplinary measures as measures applied to 
children without disabilities who engaged in comparable behaviors 
consistent with paragraph (d)(2) of this section.
    (2) Limitations. (i) If a request is made for an evaluation of a 
child during the time period in which the child is subjected to 
disciplinary measures under Sec. 300.520 or 300.521, the evaluation must 
be conducted in an expedited manner.
    (ii) Until the evaluation is completed, the child remains in the 
educational placement determined by school authorities, which can 
include suspension or expulsion without educational services.
    (iii) If the child is determined to be a child with a disability, 
taking into consideration information from the evaluation conducted by 
the agency and information provided by the parents, the agency shall 
provide special education and related services in accordance with the 
provisions of this part, including the requirements of Secs. 300.520-
300.529 and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(8))



Sec. 300.528  Expedited due process hearings.

    (a) Expedited due process hearings under Secs. 300.521-300.526 
must--
    (1) Meet the requirements of Sec. 300.509, except that a State may 
provide that the time periods identified in Secs. 300.509(a)(3) and 
Sec. 300.509(b) for purposes of expedited due process hearings under 
Secs. 300.521-300.526 are not less than two business days; and
    (2) Be conducted by a due process hearing officer who satisfies the 
requirements of Sec. 300.508.

[[Page 73]]

    (b)(1) Each State shall establish a timeline for expedited due 
process hearings that results in a written decision being mailed to the 
parties within 45 days of the public agency's receipt of the request for 
the hearing, without exceptions or extensions.
    (2) The timeline established under paragraph (b)(1) of this section 
must be the same for hearings requested by parents or public agencies.
    (c) A State may establish different procedural rules for expedited 
hearings under Secs. 300.521-300.526 than it has established for due 
process hearings under Sec. 300.507.
    (d) The decisions on expedited due process hearings are appealable 
consistent with Sec. 300.510.

(Authority: 20 U.S.C. 1415(k)(2), (6), (7))



Sec. 300.529  Referral to and action by law enforcement and judicial authorities.

    (a) 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.
    (b)(1) 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.
    (2) An agency reporting a crime under this section may transmit 
copies of the child's special education and disciplinary records only to 
the extent that the transmission is permitted by the Family Educational 
Rights and Privacy Act.

(Authority: 20 U.S.C. 1415(k)(9))

       Procedures for Evaluation and Determination of Eligibility



Sec. 300.530  General.

    Each SEA shall ensure that each public agency establishes and 
implements procedures that meet the requirements of Secs. 300.531-
300.536.

(Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))



Sec. 300.531  Initial evaluation.

    Each public agency shall conduct a full and individual initial 
evaluation, in accordance with Secs. 300.532 and 300.533, before the 
initial provision of special education and related services to a child 
with a disability under Part B of the Act.

(Authority: 20 U.S.C. 1414(a)(1))



Sec. 300.532  Evaluation procedures.

    Each public agency shall ensure, at a minimum, that the following 
requirements are met:
    (a)(1) Tests and other evaluation materials used to assess a child 
under Part B of the Act--
    (i) Are selected and administered so as not to be discriminatory on 
a racial or cultural basis; and
    (ii) Are provided and administered in the child's native language or 
other mode of communication, unless it is clearly not feasible to do so; 
and
    (2) Materials and procedures used to assess a child with limited 
English proficiency are selected and administered to ensure that they 
measure the extent to which the child has a disability and needs special 
education, rather than measuring the child's English language skills.
    (b) A variety of assessment tools and strategies are used to gather 
relevant functional and developmental information about the child, 
including information provided by the parent, and information related to 
enabling the child to be involved in and progress in the general 
curriculum (or for a preschool child, to participate in appropriate 
activities), that may assist in determining--
    (1) Whether the child is a child with a disability under Sec. 300.7; 
and
    (2) The content of the child's IEP.
    (c)(1) Any standardized tests that are given to a child--
    (i) Have been validated for the specific purpose for which they are 
used; and
    (ii) Are administered by trained and knowledgeable personnel in 
accordance with any instructions provided by the producer of the tests.
    (2) If an assessment is not conducted under standard conditions, a 
description of the extent to which it varied

[[Page 74]]

from standard conditions (e.g., the qualifications of the person 
administering the test, or the method of test administration) must be 
included in the evaluation report.
    (d) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those that are 
designed to provide a single general intelligence quotient.
    (e) Tests are selected and administered so as best to ensure that if 
a test is administered to a child with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the child's 
aptitude or achievement level or whatever other factors the test 
purports to measure, rather than reflecting the child's impaired 
sensory, manual, or speaking skills (unless those skills are the factors 
that the test purports to measure).
    (f) No single procedure is used as the sole criterion for 
determining whether a child is a child with a disability and for 
determining an appropriate educational program for the child.
    (g) The child is assessed in all areas related to the suspected 
disability, including, if appropriate, health, vision, hearing, social 
and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities.
    (h) In evaluating each child with a disability under Secs. 300.531-
300.536, the evaluation 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.
    (i) The public agency uses technically sound instruments that may 
assess the relative contribution of cognitive and behavioral factors, in 
addition to physical or developmental factors.
    (j) The public agency uses assessment tools and strategies that 
provide relevant information that directly assists persons in 
determining the educational needs of the child.

(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))



Sec. 300.533  Determination of needed evaluation data.

    (a) Review of existing evaluation data. As part of an initial 
evaluation (if appropriate) and as part of any reevaluation under Part B 
of the Act, a group that includes the individuals described in 
Sec. 300.344, and other qualified professionals, as appropriate, shall--
    (1) Review existing evaluation data on the child, including--
    (i) Evaluations and information provided by the parents of the 
child;
    (ii) Current classroom-based assessments and observations; and
    (iii) Observations by teachers and related services providers; and
    (2) On the basis of that review, and input from the child's parents, 
identify what additional data, if any, are needed to determine--
    (i) Whether the child has a particular category of disability, as 
described in Sec. 300.7, or, in case of a reevaluation of a child, 
whether the child continues to have such a disability;
    (ii) The present levels of performance and educational needs of the 
child;
    (iii) Whether the child needs special education and related 
services, or in the case of a reevaluation of a child, whether the child 
continues to need special education and related services; and
    (iv) Whether any additions or modifications to the special education 
and related services are needed to enable the child to meet the 
measurable annual goals set out in the IEP of the child and to 
participate, as appropriate, in the general curriculum.
    (b) Conduct of review. The group described in paragraph (a) of this 
section may conduct its review without a meeting.
    (c) Need for additional data. The public agency shall administer 
tests and other evaluation materials as may be needed to produce the 
data identified under paragraph (a) of this section.
    (d) Requirements if additional data are not needed. (1) If the 
determination under paragraph (a) of this section is that no additional 
data are needed to determine whether the child continues to be a child 
with a disability, the public agency shall notify the child's parents--

[[Page 75]]

    (i) Of that determination and the reasons for it; and
    (ii) Of the right of the parents to request an assessment to 
determine whether, for purposes of services under this part, the child 
continues to be a child with a disability.
    (2) The public agency is not required to conduct the assessment 
described in paragraph (d)(1)(ii) of this section unless requested to do 
so by the child's parents.

(Authority: 20 U.S.C. 1414(c)(1), (2) and (4))



Sec. 300.534  Determination of eligibility

    (a) Upon completing the administration of tests and other evaluation 
materials--
    (1) A group of qualified professionals and the parent of the child 
must determine whether the child is a child with a disability, as 
defined in Sec. 300.7; and
    (2) The public agency must provide a copy of the evaluation report 
and the documentation of determination of eligibility to the parent.
    (b) A child may not be determined to be eligible under this part 
if--
    (1) The determinant factor for that eligibility determination is--
    (i) Lack of instruction in reading or math; or
    (ii) Limited English proficiency; and
    (2) The child does not otherwise meet the eligibility criteria under 
Sec. 300.7(a).
    (c)(1) A public agency must evaluate a child with a disability in 
accordance with Secs. 300.532 and 300.533 before determining that the 
child is no longer a child with a disability.
    (2) The evaluation described in paragraph (c)(1) of this section is 
not required before the termination of a student's eligibility under 
Part B of the Act due to graduation with a regular high school diploma, 
or exceeding the age eligibility for FAPE under State law.

(Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))



Sec. 300.535  Procedures for determining eligibility and placement.

    (a) In interpreting evaluation data for the purpose of determining 
if a child is a child with a disability under Sec. 300.7, and the 
educational needs of the child, each public agency shall--
    (1) Draw upon information from a variety of sources, including 
aptitude and achievement tests, parent input, teacher recommendations, 
physical condition, social or cultural background, and adaptive 
behavior; and
    (2) Ensure that information obtained from all of these sources is 
documented and carefully considered.
    (b) If a determination is made that a child has a disability and 
needs special education and related services, an IEP must be developed 
for the child in accordance with Secs. 300.340-300.350.

(Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))



Sec. 300.536  Reevaluation.

    Each public agency shall ensure--
    (a) That the IEP of each child with a disability is reviewed in 
accordance with Secs. 300.340-300.350; and
    (b) That a reevaluation of each child, in accordance with 
Secs. 300.532-300.535, 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.

(Authority: 20 U.S.C. 1414(a)(2))

  Additional Procedures for Evaluating Children With Specific Learning 
                              Disabilities



Sec. 300.540  Additional team members.

    The determination of whether a child suspected of having a specific 
learning disability is a child with a disability as defined in 
Sec. 300.7, must be made by the child's parents and a team of qualified 
professionals which must include--
    (a)(1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular 
classroom teacher qualified to teach a child of his or her age; or
    (3) For a child of less than school age, an individual qualified by 
the SEA to teach a child of his or her age; and
    (b) At least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-language 
pathologist, or remedial reading teacher.

(Authority: Sec. 5(b), Pub. L. 94-142)

[[Page 76]]



Sec. 300.541  Criteria for determining the existence of a specific learning disability.

    (a) A team may determine that a child has a specific learning 
disability if--
    (1) The child does not achieve commensurate with his or her age and 
ability levels in one or more of the areas listed in paragraph (a)(2) of 
this section, if provided with learning experiences appropriate for the 
child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy between 
achievement and intellectual ability in one or more of the following 
areas:
    (i) Oral expression.
    (ii) Listening comprehension.
    (iii) Written expression.
    (iv) Basic reading skill.
    (v) Reading comprehension.
    (vi) Mathematics calculation.
    (vii) Mathematics reasoning.
    (b) The team may not identify a child as having a specific learning 
disability if the severe discrepancy between ability and achievement is 
primarily the result of--
    (1) A visual, hearing, or motor impairment;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.

(Authority: Sec. 5(b), Pub. L. 94-142)



Sec. 300.542  Observation.

    (a) At least one team member other than the child's regular teacher 
shall observe the child's academic performance in the regular classroom 
setting.
    (b) In the case of a child of less than school age or out of school, 
a team member shall observe the child in an environment appropriate for 
a child of that age.

(Authority: Sec. 5(b), Pub. L. 94-142)



Sec. 300.543  Written report.

    (a) For a child suspected of having a specific learning disability, 
the documentation of the team's determination of eligibility, as 
required by Sec. 300.534(a)(2), must include a statement of--
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the child;
    (4) The relationship of that behavior to the child's academic 
functioning;
    (5) The educationally relevant medical findings, if any;
    (6) Whether there is a severe discrepancy between achievement and 
ability that is not correctable without special education and related 
services; and
    (7) The determination of the team concerning the effects of 
environmental, cultural, or economic disadvantage.
    (b) Each team member shall certify in writing whether the report 
reflects his or her conclusion. If it does not reflect his or her 
conclusion, the team member must submit a separate statement presenting 
his or her conclusions.

(Authority: Sec. 5(b), Pub. L. 94-142))

                   Least Restrictive Environment (LRE)



Sec. 300.550  General LRE requirements.

    (a) Except as provided in Sec. 300.311(b) and (c), a State shall 
demonstrate to the satisfaction of the Secretary that the State has in 
effect policies and procedures to ensure that it meets the requirements 
of Secs. 300.550-300.556.
    (b) Each public agency shall ensure--
    (1) That to the maximum extent appropriate, children with 
disabilities, including children in public or private institutions or 
other care facilities, are educated with children who are nondisabled; 
and
    (2) That special classes, separate schooling or other removal of 
children with disabilities from the regular educational environment 
occurs only if the nature or severity of the disability is such that 
education in regular classes with the use of supplementary aids and 
services cannot be achieved satisfactorily.

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.551  Continuum of alternative placements.

    (a) Each public agency shall ensure that a continuum of alternative 
placements is available to meet the needs of children with disabilities 
for special education and related services.

[[Page 77]]

    (b) The continuum required in paragraph (a) of this section must--
    (1) Include the alternative placements listed in the definition of 
special education under Sec. 300.26 (instruction in regular classes, 
special classes, special schools, home instruction, and instruction in 
hospitals and institutions); and
    (2) Make provision for supplementary services (such as resource room 
or itinerant instruction) to be provided in conjunction with regular 
class placement.

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.552  Placements.

    In determining the educational placement of a child with a 
disability, including a preschool child with a disability, each public 
agency shall ensure that--
    (a) The placement decision--
    (1) Is made by a group of persons, including the parents, and other 
persons knowledgeable about the child, the meaning of the evaluation 
data, and the placement options; and
    (2) Is made in conformity with the LRE provisions of this subpart, 
including Secs. 300.550-300.554;
    (b) The child's placement--
    (1) Is determined at least annually;
    (2) Is based on the child's IEP; and
    (3) Is as close as possible to the child's home;
    (c) Unless the IEP of a child with a disability requires some other 
arrangement, the child is educated in the school that he or she would 
attend if nondisabled;
    (d) In selecting the LRE, consideration is given to any potential 
harmful effect on the child or on the quality of services that he or she 
needs; and
    (e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications in 
the general curriculum.

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.553  Nonacademic settings.

    In providing or arranging for the provision of nonacademic and 
extracurricular services and activities, including meals, recess 
periods, and the services and activities set forth in Sec. 300.306, each 
public agency shall ensure that each child with a disability 
participates with nondisabled children in those services and activities 
to the maximum extent appropriate to the needs of that child.

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.554  Children in public or private institutions.

    Except as provided in Sec. 300.600(d), an SEA must ensure that 
Sec. 300.550 is effectively implemented, including, if necessary, making 
arrangements with public and private institutions (such as a memorandum 
of agreement or special implementation procedures).

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.555  Technical assistance and training activities.

    Each SEA shall carry out activities to ensure that teachers and 
administrators in all public agencies--
    (a) Are fully informed about their responsibilities for implementing 
Sec. 300.550; and
    (b) Are provided with technical assistance and training necessary to 
assist them in this effort.

(Authority: 20 U.S.C. 1412(a)(5))



Sec. 300.556  Monitoring activities.

    (a) The SEA shall carry out activities to ensure that Sec. 300.550 
is implemented by each public agency.
    (b) If there is evidence that a public agency makes placements that 
are inconsistent with Sec. 300.550, the SEA shall--
    (1) Review the public agency's justification for its actions; and
    (2) Assist in planning and implementing any necessary corrective 
action.

(Authority: 20 U.S.C. 1412(a)(5))

                     Confidentiality of Information



Sec. 300.560   Definitions.

    As used in Secs. 300.560-300.577--
    (a) Destruction means physical destruction or removal of personal 
identifiers from information so that the information is no longer 
personally identifiable.
    (b) Education records means the type of records covered under the 
definition of ``education records'' in 34 CFR part

[[Page 78]]

99 (the regulations implementing the Family Educational Rights and 
Privacy Act of 1974).
    (c) Participating agency means any agency or institution that 
collects, maintains, or uses personally identifiable information, or 
from which information is obtained, under Part B of the Act.

(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))



Sec. 300.561  Notice to parents.

    (a) The SEA shall give notice that is adequate to fully inform 
parents about the requirements of Sec. 300.127, including--
    (1) A description of the extent that the notice is given in the 
native languages of the various population groups in the State;
    (2) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (3) A summary of the policies and procedures that participating 
agencies must follow regarding storage, disclosure to third parties, 
retention, and destruction of personally identifiable information; and
    (4) A description of all of the rights of parents and children 
regarding this information, including the rights under the Family 
Educational Rights and Privacy Act of 1974 and implementing regulations 
in 34 CFR part 99.
    (b) Before any major identification, location, or evaluation 
activity, the notice must be published or announced in newspapers or 
other media, or both, with circulation adequate to notify parents 
throughout the State of the activity.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.562  Access rights.

    (a) Each participating agency shall permit parents to inspect and 
review any education records relating to their children that are 
collected, maintained, or used by the agency under this part. The agency 
shall comply with a request without unnecessary delay and before any 
meeting regarding an IEP, or any hearing pursuant to Secs. 300.507 and 
300.521-300.528, and in no case more than 45 days after the request has 
been made.
    (b) The right to inspect and review education records under this 
section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the records;
    (2) The right to request that the agency provide copies of the 
records containing the information if failure to provide those copies 
would effectively prevent the parent from exercising the right to 
inspect and review the records; and
    (3) The right to have a representative of the parent inspect and 
review the records.
    (c) An agency may presume that the parent has authority to inspect 
and review records relating to his or her child unless the agency has 
been advised that the parent does not have the authority under 
applicable State law governing such matters as guardianship, separation, 
and divorce.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.563  Record of access.

    Each participating agency shall keep a record of parties obtaining 
access to education records collected, maintained, or used under Part B 
of the Act (except access by parents and authorized employees of the 
participating agency), including the name of the party, the date access 
was given, and the purpose for which the party is authorized to use the 
records.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.564  Records on more than one child.

    If any education record includes information on more than one child, 
the parents of those children have the right to inspect and review only 
the information relating to their child or to be informed of that 
specific information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

[[Page 79]]



Sec. 300.565  List of types and locations of information.

    Each participating agency shall provide parents on request a list of 
the types and locations of education records collected, maintained, or 
used by the agency.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.566  Fees.

    (a) Each participating agency may charge a fee for copies of records 
that are made for parents under this part if the fee does not 
effectively prevent the parents from exercising their right to inspect 
and review those records.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.567  Amendment of records at parent's request.

    (a) A parent who believes that information in the education records 
collected, maintained, or used under this part is inaccurate or 
misleading or violates the privacy or other rights of the child may 
request the participating agency that maintains the information to amend 
the information.
    (b) The agency shall decide whether to amend the information in 
accordance with the request within a reasonable period of time of 
receipt of the request.
    (c) If the agency decides to refuse to amend the information in 
accordance with the request, it shall inform the parent of the refusal 
and advise the parent of the right to a hearing under Sec. 300.568.

(Authority: 20 U.S.C. 1412(a)(8); 1417(c))



Sec. 300.568  Opportunity for a hearing.

    The agency shall, on request, provide an opportunity for a hearing 
to challenge information in education records to ensure that it is not 
inaccurate, misleading, or otherwise in violation of the privacy or 
other rights of the child.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.569  Result of hearing.

    (a) If, as a result of the hearing, the agency decides that the 
information is inaccurate, misleading or otherwise in violation of the 
privacy or other rights of the child, it shall amend the information 
accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the 
information is not inaccurate, misleading, or otherwise in violation of 
the privacy or other rights of the child, it shall inform the parent of 
the right to place in the records it maintains on the child a statement 
commenting on the information or setting forth any reasons for 
disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under this 
section must--
    (1) Be maintained by the agency as part of the records of the child 
as long as the record or contested portion is maintained by the agency; 
and
    (2) If the records of the child or the contested portion is 
disclosed by the agency to any party, the explanation must also be 
disclosed to the party.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.570  Hearing procedures.

    A hearing held under Sec. 300.568 must be conducted according to the 
procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.571  Consent.

    (a) Except as to disclosures addressed in Sec. 300.529(b) for which 
parental consent is not required by Part 99, parental consent must be 
obtained before personally identifiable information is--
    (1) Disclosed to anyone other than officials of participating 
agencies collecting or using the information under this part, subject to 
paragraph (b) of this section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) An educational agency or institution subject to 34 CFR part 99 
may not release information from education records to participating 
agencies without parental consent unless authorized to do so under part 
99.
    (c) The SEA shall provide policies and procedures that are used in 
the event that a parent refuses to provide consent under this section.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

[[Page 80]]



Sec. 300.572  Safeguards.

    (a) Each participating agency shall protect the confidentiality of 
personally identifiable information at collection, storage, disclosure, 
and destruction stages.
    (b) One official at each participating agency shall assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec. 300.127 and 34 CFR part 99.
    (d) Each participating agency shall maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.573  Destruction of information.

    (a) The public agency shall inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide educational services to the child.
    (b) The information must be destroyed at the request of the parents. 
However, a permanent record of a student's name, address, and phone 
number, his or her grades, attendance record, classes attended, grade 
level completed, and year completed may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.574  Children's rights.

    (a) The SEA shall provide policies and procedures regarding the 
extent to which children are afforded rights of privacy similar to those 
afforded to parents, taking into consideration the age of the child and 
type or severity of disability.
    (b) Under the regulations for the Family Educational Rights and 
Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents regarding 
education records are transferred to the student at age 18.
    (c) If the rights accorded to parents under Part B of the Act are 
transferred to a student who reaches the age of majority, consistent 
with Sec. 300.517, the rights regarding educational records in 
Secs. 300.562-300.573 must also be transferred to the student. However, 
the public agency must provide any notice required under section 615 of 
the Act to the student and the parents.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.575  Enforcement.

    The SEA shall provide the policies and procedures, including 
sanctions, that the State uses to ensure that its policies and 
procedures are followed and that the requirements of the Act and the 
regulations in this part are met.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))



Sec. 300.576  Disciplinary information.

    (a) The State may require that a public agency include in the 
records of a child with a disability a statement of any current or 
previous disciplinary action that has been 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 children.
    (b) The statement may include a description of any behavior engaged 
in by the child that required disciplinary action, a description of the 
disciplinary action taken, and any other information that is relevant to 
the safety of the child and other individuals involved with the child.
    (c) If the State adopts such a policy, and the child transfers from 
one school to another, the transmission of any of the child's records 
must include both the child's current individualized education program 
and any statement of current or previous disciplinary action that has 
been taken against the child.

(Authority: 20 U.S.C. 1413(j))



Sec. 300.577  Department use of personally identifiable information.

    If the Department or its authorized representatives collect any 
personally identifiable information regarding children with disabilities 
that is not subject to 5 U.S.C. 552a (the Privacy Act of 1974), the 
Secretary applies the requirements of 5 U.S.C. 552a (b)(1)-(2), (4)-
(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D),

[[Page 81]]

(5)-(10); (h); (m); and (n); and the regulations implementing those 
provisions in 34 CFR part 5b.

(Authority: 20 U.S.C. 1412(a)(8), 1417(c))

                          Department Procedures



Sec. 300.580  Determination by the Secretary that a State is eligible.

    If the Secretary determines that a State is eligible to receive a 
grant under Part B of the Act, the Secretary notifies the State of that 
determination.

(Authority: 20 U.S.C. 1412(d))



Sec. 300.581  Notice and hearing before determining that a State is not eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under Part B of the Act 
until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the SEA by certified mail with 
return receipt requested.
    (b) Content of notice. In the written notice described in paragraph 
(a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a final 
determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;
    (3) Advises the SEA that it may request a hearing and that the 
request for a hearing must be made not later than 30 days after it 
receives the notice of the proposed final determination that the State 
is not eligible; and
    (4) Provides information about the procedures followed for a 
hearing.

(Authority: 20 U.S.C. (1412(d)(2))



Sec. 300.582  Hearing official or panel.

    (a) If the SEA requests a hearing, the Secretary designates one or 
more individuals, either from the Department or elsewhere, not 
responsible for or connected with the administration of this program, to 
conduct a hearing.
    (b) If more than one individual is designated, the Secretary 
designates one of those individuals as the Chief Hearing Official of the 
Hearing Panel. If one individual is designated, that individual is the 
Hearing Official.

(Authority: 20 U.S.C. (1412(d)(2))



Sec. 300.583  Hearing procedures.

    (a) As used in Secs. 300.581-300.586 the term party or parties means 
the following:
    (1) An SEA that requests a hearing regarding the proposed 
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of financial 
assistance under this part.
    (3) A person, group or agency with an interest in and having 
relevant information about the case that has applied for and been 
granted leave to intervene by the Hearing Official or Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Panel and notifies the 
parties.
    (c) The Hearing Official or Panel may regulate the course of 
proceedings and the conduct of the parties during the proceedings. The 
Hearing Official or Panel takes all steps necessary to conduct a fair 
and impartial proceeding, to avoid delay, and to maintain order, 
including the following:
    (1) The Hearing Official or Panel may hold conferences or other 
types of appropriate proceedings to clarify, simplify, or define the 
issues or to consider other matters that may aid in the disposition of 
the case.
    (2) The Hearing Official or Panel may schedule a prehearing 
conference of the Hearing Official or Panel and parties.
    (3) Any party may request the Hearing Official or Panel to schedule 
a prehearing or other conference. The Hearing Official or Panel decides 
whether a conference is necessary and notifies all parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;

[[Page 82]]

    (iv) Determining whether an evidentiary hearing or oral argument 
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral 
argument or evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Panel 
(including an evidentiary hearing or oral argument, if either is 
scheduled);
    (D) Requesting the names of witnesses each party wishes to present 
at an evidentiary hearing and estimation of time for each presentation; 
or
    (E) Completion of the review and the initial decision of the Hearing 
Official or Panel.
    (5) A prehearing or other conference held under paragraph (b)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties shall be 
prepared to discuss the subjects listed in paragraph (b)(4) of this 
section.
    (7) Following a prehearing or other conference the Hearing Official 
or Panel may issue a written statement describing the issues raised, the 
action taken, and the stipulations and agreements reached by the 
parties.
    (d) The Hearing Official or Panel may require parties to state their 
positions and to provide all or part of the evidence in writing.
    (e) The Hearing Official or Panel may require parties to present 
testimony through affidavits and to conduct cross-examination through 
interrogatories.
    (f) The Hearing Official or Panel may direct the parties to exchange 
relevant documents or information and lists of witnesses, and to send 
copies to the Hearing Official or Panel.
    (g) The Hearing Official or Panel may receive, rule on, exclude, or 
limit evidence at any stage of the proceedings.
    (h) The Hearing Official or Panel may rule on motions and other 
issues at any stage of the proceedings.
    (i) The Hearing Official or Panel may examine witnesses.
    (j) The Hearing Official or Panel may set reasonable time limits for 
submission of written documents.
    (k) The Hearing Official or Panel may refuse to consider documents 
or other submissions if they are not submitted in a timely manner unless 
good cause is shown.
    (l) The Hearing Official or Panel may interpret applicable statutes 
and regulations but may not waive them or rule on their validity.
    (m)(1) The parties shall present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Panel shall determine 
whether an oral argument or an evidentiary hearing is needed to clarify 
the positions of the parties.
    (2) The Hearing Official or Panel gives each party an opportunity to 
be represented by counsel.
    (n) If the Hearing Official or Panel determines that an evidentiary 
hearing would materially assist the resolution of the matter, the 
Hearing Official or Panel gives each party, in addition to the 
opportunity to be represented by counse--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with 
written questions.
    (o) The Hearing Official or Panel accepts any evidence that it finds 
is relevant and material to the proceedings and is not unduly 
repetitious.
    (p)(1) The Hearing Official or Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the 
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request and 
with payment of the reproduction fee.
    (q) Each party shall file with the Hearing Official or Panel all 
written motions, briefs, and other documents and shall at the same time 
provide a copy to the other parties to the proceedings.

(Authority: 20 U.S.C. (1412(d)(2))



Sec. 300.584  Initial decision; final decision.

    (a) The Hearing Official or Panel prepares an initial written 
decision that

[[Page 83]]

addresses each of the points in the notice sent by the Secretary to the 
SEA under Sec. 300.581.
    (b) The initial decision of a Panel is made by a majority of Panel 
members.
    (c) The Hearing Official or Panel mails by certified mail with 
return receipt requested a copy of the initial decision to each party 
(or to the party's counsel) and to the Secretary, with a notice stating 
that each party has an opportunity to submit written comments regarding 
the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial 
decision with the Hearing Official or Panel within 15 days of the date 
the party receives the Panel's decision.
    (e) The Hearing Official or Panel sends a copy of a party's initial 
comments and recommendations to the other parties by certified mail with 
return receipt requested. Each party may file responsive comments and 
recommendations with the Hearing Official or Panel within seven days of 
the date the party receives the initial comments and recommendations.
    (f) The Hearing Official or Panel forwards the parties' initial and 
responsive comments on the initial decision to the Secretary who reviews 
the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Panel becomes 
the final decision of the Secretary unless, within 25 days after the end 
of the time for receipt of written comments, the Secretary informs the 
Hearing Official or Panel and the parties to a hearing in writing that 
the decision is being further reviewed for possible modification.
    (h) The Secretary may reject or modify the initial decision of the 
Hearing Official or Panel if the Secretary finds that it is clearly 
erroneous.
    (i) The Secretary conducts the review based on the initial decision, 
the written record, the Hearing Official's or Panel's proceedings, and 
written comments. The Secretary may remand the matter for further 
proceedings.
    (j) The Secretary issues the final decision within 30 days after 
notifying the Hearing Official or Panel that the initial decision is 
being further reviewed.

(Authority: 20 U.S.C. (1412(d)(2))



Sec. 300.585  Filing requirements.

    (a) Any written submission under Secs. 300.581-300.585 must be filed 
by hand-delivery, by mail, or by facsimile transmission. The Secretary 
discourages the use of facsimile transmission for documents longer than 
five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was received 
by the Department.
    (d) If a document is filed by facsimile transmission, the Secretary, 
the Hearing Official, or the Panel, as applicable, may require the 
filing of a follow-up hard copy by hand-delivery or by mail within a 
reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be made 
upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1413(c))



Sec. 300.586  Judicial review.

    If a State is dissatisfied with the Secretary's final action with 
respect to the eligibility of the State under section 612 of the Act, 
the State may, not later than 60 days after notice of that action, file 
with the United States Court of Appeals for the circuit in which that 
State is located a petition for review of that action. A copy of the 
petition must be forthwith transmitted by the clerk of the court to the 
Secretary. The Secretary then files in the court the record of the 
proceedings upon which the Secretary's action was based, as provided in 
section 2112 of title 28, United States Code.

(Authority: 20 U.S.C. 1416(b))



Sec. 300.587  Enforcement.

    (a) General. The Secretary initiates an action described in 
paragraph (b) of this section if the Secretary finds--

[[Page 84]]

    (1) That there has been a failure by the State to comply 
substantially with any provision of Part B of the Act, this part, or 34 
CFR part 301; or
    (2) That there is a failure to comply with any condition of an LEA's 
or SEA's eligibility under Part B of the Act, this part or 34 CFR part 
301, including the terms of any agreement to achieve compliance with 
Part B of the Act, this part, or Part 301 within the timelines specified 
in the agreement.
    (b) Types of action. The Secretary, after notifying the SEA (and any 
LEA or State agency affected by a failure described in paragraph (a)(2) 
of this section)--
    (1) Withholds in whole or in part any further payments to the State 
under Part B of the Act;
    (2) Refers the matter to the Department of Justice for enforcement; 
or
    (3) Takes any other enforcement action authorized by law.
    (c) Nature of withholding. (1) If the Secretary determines that it 
is appropriate to withhold further payments under paragraph (b)(1) of 
this section, the Secretary may determine that the withholding will be 
limited to programs or projects, or portions thereof, affected by the 
failure, or that the SEA shall not make further payments under Part B of 
the Act to specified LEA or State agencies affected by the failure.
    (2) Until the Secretary is satisfied that there is no longer any 
failure to comply with the provisions of Part B of the Act, this part, 
or 34 CFR part 301, as specified in paragraph (a) of this section, 
payments to the State under Part B of the Act are withheld in whole or 
in part, or payments by the SEA under Part B of the Act are limited to 
local educational agencies and State agencies whose actions did not 
cause or were not involved in the failure, as the case may be.
    (3) Any SEA, LEA, or other State agency that has received notice 
under paragraph (a) of this section shall, by means of a public notice, 
take such measures as may be necessary to bring the pendency of an 
action pursuant to this subsection to the attention of the public within 
the jurisdiction of that agency.
    (4) Before withholding under paragraph (b)(1) of this section, the 
Secretary provides notice and a hearing pursuant to the procedures in 
Secs. 300.581-300.586.
    (d) Referral for appropriate enforcement. (1) Before the Secretary 
makes a referral under paragraph (b)(2) of this section for enforcement, 
or takes any other enforcement action authorized by law under paragraph 
(b)(3), the Secretary provides the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) The hearing described in paragraph (d)(1)(ii) of this section 
consists of an opportunity to meet with the Assistant Secretary for the 
Office of Special Education and Rehabilitative Services to demonstrate 
why the Department should not make a referral for enforcement.
    (e) Divided State agency responsibility. For purposes of this part, 
if responsibility for ensuring that the requirements of this part are 
met with respect to children 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 pursuant to Sec. 300.600(d), and if 
the Secretary finds that the failure to comply substantially with the 
provisions of Part B of the Act or this part are related to a failure by 
the public agency, the Secretary takes one of the enforcement actions 
described in paragraph (b) of this section to ensure compliance with 
Part B of the Act and this part, except--
    (1) Any reduction or withholding of payments to the State under 
paragraph (b)(1) of this section is proportionate to the total funds 
allotted under section 611 of the Act to the State as the number of 
eligible children with disabilities in adult prisons under the 
supervision of the other public agency is proportionate to the number of 
eligible individuals with disabilities in the State under the 
supervision of the State educational agency; and
    (2) Any withholding of funds under paragraph (e)(1) of this section 
is limited to the specific agency responsible for the failure to comply 
with Part B of the Act or this part.

(Authority: 20 U.S.C. 1416)

[[Page 85]]



Sec. 300.588  [Reserved]



Sec. 300.589  Waiver of requirement regarding supplementing and not supplanting with Part B funds.

    (a) Except as provided under Secs. 300.232-300.235, funds paid to a 
State under Part B of the Act must be used to supplement and increase 
the level of Federal, State, and local funds (including funds that are 
not under the direct control of SEAs or LEAs) expended for special 
education and related services provided to children with disabilities 
under Part B of the Act and in no case to supplant those Federal, State, 
and local funds. A State may use funds it retains under Sec. 300.602 
without regard to the prohibition on supplanting other funds (see 
Sec. 300.372).
    (b) If a State provides clear and convincing evidence that all 
eligible children with disabilities throughout the State have FAPE 
available to them, the Secretary may waive for a period of one year in 
whole or in part the requirement under Sec. 300.153 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence 
provided by the State.
    (c) If a State wishes to request a waiver under this section, it 
must submit to the Secretary a written request that includes--
    (1) An assurance that FAPE is currently available, and will remain 
available throughout the period that a waiver would be in effect, to all 
eligible children with disabilities throughout the State, regardless of 
the public agency that is responsible for providing FAPE to them. The 
assurance must be signed by an official who has the authority to provide 
that assurance as it applies to all eligible children with disabilities 
in the State;
    (2) All evidence that the State wishes the Secretary to consider in 
determining whether all eligible children with disabilities have FAPE 
available to them, setting forth in detail--
    (i) The basis on which the State has concluded that FAPE is 
available to all eligible children in the State; and
    (ii) The procedures that the State will implement to ensure that 
FAPE remains available to all eligible children in the State, which must 
include--
    (A) The State's procedures under Sec. 300.125 for ensuring that all 
eligible children are identified, located and evaluated;
    (B) The State's procedures for monitoring public agencies to ensure 
that they comply with all requirements of this part;
    (C) The State's complaint procedures under Secs. 300.660-300.662; 
and
    (D) The State's hearing procedures under Secs. 300.507-300.511 and 
300.520-300.528;
    (3) A summary of all State and Federal monitoring reports, and State 
complaint decisions (see Secs. 300.660-300.662) and hearing decisions 
(see Secs. 300.507-300.511 and 300.520-300.528), issued within three 
years prior to the date of the State's request for a waiver under this 
section, that includes any finding that FAPE has not been available to 
one or more eligible children, and evidence that FAPE is now available 
to all children addressed in those reports or decisions; and
    (4) Evidence that the State, in determining that FAPE is currently 
available to all eligible children with disabilities in the State, has 
consulted with the State advisory panel under Sec. 300.650, the State's 
parent training and information center or centers, the State's 
protection and advocacy organization, and other organizations 
representing the interests of children with disabilities and their 
parents, and a summary of the input of these organizations.
    (d) If the Secretary determines that the request and supporting 
evidence submitted by the State makes a prima facie showing that FAPE 
is, and will remain, available to all eligible children with 
disabilities in the State, the Secretary, after notice to the public 
throughout the State, conducts a public hearing at which all interested 
persons and organizations may present evidence regarding the following 
issues:
    (1) Whether FAPE is currently available to all eligible children 
with disabilities in the State.
    (2) Whether the State will be able to ensure that FAPE remains 
available to all eligible children with disabilities in the State if the 
Secretary provides the requested waiver.

[[Page 86]]

    (e) Following the hearing, the Secretary, based on all submitted 
evidence, will provide a waiver, in whole or in part, for a period of 
one year if the Secretary finds that the State has provided clear and 
convincing evidence that FAPE is currently available to all eligible 
children with disabilities in the State, and the State will be able to 
ensure that FAPE remains available to all eligible children with 
disabilities in the State if the Secretary provides the requested 
waiver.
    (f) A State may receive a waiver of the requirement of section 
612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of 
paragraphs (b) through (e) of this section.
    (g) The Secretary may grant subsequent waivers for a period of one 
year each, if the Secretary determines that the State has provided clear 
and convincing evidence that all eligible children with disabilities 
throughout the State have, and will continue to have throughout the one-
year period of the waiver, FAPE available to them.

(Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))



                     Subpart F--State Administration

                                 General



Sec. 300.600  Responsibility for all educational programs.

    (a) The SEA is responsible for ensuring--
    (1) That the requirements of this part are carried out; and
    (2) That each educational program for children with disabilities 
administered within the State, including each program administered by 
any other State or local agency--
    (i) Is under the general supervision of the persons responsible for 
educational programs for children with disabilities in the SEA; and
    (ii) Meets the education standards of the SEA (including the 
requirements of this part).
    (b) The State must comply with paragraph (a) of this section through 
State statute, State regulation, signed agreement between respective 
agency officials, or other documents.
    (c) Part B of the Act does not limit the responsibility of agencies 
other than educational agencies for providing or paying some or all of 
the costs of FAPE to children with disabilities in the State.
    (d) Notwithstanding paragraph (a) of this section, the Governor (or 
another individual pursuant to State law) may assign to any public 
agency in the State the responsibility of ensuring that the requirements 
of Part B of the Act are met with respect to students with disabilities 
who are convicted as adults under State law and incarcerated in adult 
prisons.

(Authority: 20 U.S.C. 1412(a)(11))



Sec. 300.601  Relation of Part B to other Federal programs.

    Part B of the Act may not be construed to permit a State to reduce 
medical and other assistance available to children with disabilities, or 
to alter the eligibility of a child with a disability, under title V 
(Maternal and Child Health) or title XIX (Medicaid) of the Social 
Security Act, to receive services that are also part of FAPE.

(Authority: 20 U.S.C. 1412(e))



Sec. 300.602  State-level activities.

    (a) Each State may retain not more than the amount described in 
paragraph (b) of this section for administration in accordance with 
Secs. 300.620 and 300.621 and other State-level activities in accordance 
with Sec. 300.370.
    (b) For each fiscal year, the Secretary determines and reports to 
the SEA an amount that is 25 percent of the amount the State received 
under this section for fiscal year 1997, cumulatively adjusted by the 
Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year 
in the State's allocation under section 611 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase, 
if any, from the preceding fiscal year in the Consumer Price Index For 
All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

(Authority: 20 U.S.C. 1411(f)(1)(A) and (B))

[[Page 87]]

                              Use of Funds



Sec. 300.620  Use of funds for State administration.

    (a) For the purpose of administering Part B of the Act, including 
section 619 of the Act (including the coordination of activities under 
Part B of the Act with, and providing technical assistance to, other 
programs that provide services to children with disabilities)--
    (1) Each State may use not more than twenty percent of the maximum 
amount it may retain under Sec. 300.602(a) for any fiscal year or 
$500,000 (adjusted by the cumulative rate of inflation since fiscal year 
1998, as measured by the percentage increase, if any, in the Consumer 
Price Index For All Urban Consumers, published by the Bureau of Labor 
Statistics of the Department of Labor), whichever is greater; and
    (2) Each outlying area may use up to five percent of the amount it 
receives under this section for any fiscal year or $35,000, whichever is 
greater.
    (b) Funds described in paragraph (a) of this section may also be 
used for the administration of Part C of the Act, if the SEA is the lead 
agency for the State under that part.

(Authority: 20 U.S.C. 1411(f)(2))



Sec. 300.621  Allowable costs.

    (a) The SEA may use funds under Sec. 300.620 for--
    (1) Administration of State activities under Part B of the Act and 
for planning at the State level, including planning, or assisting in the 
planning, of programs or projects for the education of children with 
disabilities;
    (2) Approval, supervision, monitoring, and evaluation of the 
effectiveness of local programs and projects for the education of 
children with disabilities;
    (3) Technical assistance to LEAs with respect to the requirements of 
Part B of the Act;
    (4) Leadership services for the program supervision and management 
of special education activities for children with disabilities; and
    (5) Other State leadership activities and consultative services.
    (b) The SEA shall use the remainder of its funds under Sec. 300.620 
in accordance with Sec. 300.370.

(Authority: 20 U.S.C. 1411(f)(2))



Sec. 300.622  Subgrants to LEAs for capacity-building and improvement.

    In any fiscal year in which the percentage increase in the State's 
allocation under 611 of the Act exceeds the rate of inflation (as 
measured by the percentage increase, if any, from the preceding fiscal 
year in the Consumer Price Index For All Urban Consumers, published by 
the Bureau of Labor Statistics of the Department of Labor), each State 
shall reserve, from its allocation under 611 of the Act, the amount 
described in Sec. 300.623 to make subgrants to LEAs, unless that amount 
is less than $100,000, to assist them in providing direct services and 
in making systemic change to improve results for children with 
disabilities through one or more of the following:
    (a) Direct services, including alternative programming for children 
who have been expelled from school, and services for children in 
correctional facilities, children enrolled in State-operated or State-
supported schools, and children in charter schools.
    (b) Addressing needs or carrying out improvement strategies 
identified in the State's Improvement Plan under subpart 1 of Part D of 
the Act.
    (c) Adopting promising practices, materials, and technology, based 
on knowledge derived from education research and other sources.
    (d) Establishing, expanding, or implementing interagency agreements 
and arrangements between LEAs and other agencies or organizations 
concerning the provision of services to children with disabilities and 
their families.
    (e) Increasing cooperative problem-solving between parents and 
school personnel and promoting the use of alternative dispute 
resolution.

(Authority: 20 U.S.C. 1411(f)(4)(A))



Sec. 300.623  Amount required for subgrants to LEAs.

    For each fiscal year, the amount referred to in Sec. 300.622 is--
    (a) The maximum amount the State was allowed to retain under 
Sec. 300.602(a)

[[Page 88]]

for the prior fiscal year, or, for fiscal year 1998, 25 percent of the 
State's allocation for fiscal year 1997 under section 611; multiplied by
    (b) The difference between the percentage increase in the State's 
allocation under this section and the rate of inflation, as measured by 
the percentage increase, if any, from the preceding fiscal year in the 
Consumer Price Index For All Urban Consumers, published by the Bureau of 
Labor Statistics of the Department of Labor.

(Authority: 20 U.S.C. 1411(f)(4)(B))



Sec. 300.624  State discretion in awarding subgrants.

    The State may establish priorities in awarding subgrants under 
Sec. 300.622 to LEAs competitively or on a targeted basis.

(Authority: 20 U.S.C. 1411(f)(4)(A))

                          State Advisory Panel



Sec. 300.650  Establishment of advisory panels.

    (a) Each State shall establish and maintain, in accordance with 
Secs. 300.650-300.653, a State advisory panel on the education of 
children with disabilities.
    (b) The advisory panel must be appointed by the Governor or any 
other official authorized under State law to make those appointments.
    (c) If a State has an existing advisory panel that can perform the 
functions in Sec. 300.652, the State may modify the existing panel so 
that it fulfills all of the requirements of Secs. 300.650-300.653, 
instead of establishing a new advisory panel.

(Authority: 20 U.S.C. 1412(a)(21)(A))



Sec. 300.651  Membership.

    (a) General. The membership of the State advisory panel must consist 
of members appointed by the Governor, or any other official authorized 
under State law to make these appointments, that is representative of 
the State population and that is composed of individuals involved in, or 
concerned with the education of children with disabilities, including--
    (1) Parents of children with disabilities;
    (2) Individuals with disabilities;
    (3) Teachers;
    (4) Representatives of institutions of higher education that prepare 
special education and related services personnel;
    (5) State and local education officials;
    (6) Administrators of programs for children with disabilities;
    (7) Representatives of other State agencies involved in the 
financing or delivery of related services to children with disabilities;
    (8) Representatives of private schools and public charter schools;
    (9) At least one representative of a vocational, community, or 
business organization concerned with the provision of transition 
services to children with disabilities; and
    (10) Representatives from the State juvenile and adult corrections 
agencies.
    (b) Special rule. A majority of the members of the panel must be 
individuals with disabilities or parents of children with disabilities.

(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))



Sec. 300.652  Advisory panel functions.

    (a) General. The State advisory panel shall--
    (1) Advise the SEA of unmet needs within the State in the education 
of children with disabilities;
    (2) Comment publicly on any rules or regulations proposed by the 
State regarding the education of children with disabilities;
    (3) Advise the SEA in developing evaluations and reporting on data 
to the Secretary under section 618 of the Act;
    (4) Advise the SEA in developing corrective action plans to address 
findings identified in Federal monitoring reports under Part B of the 
Act; and
    (5) Advise the SEA in developing and implementing policies relating 
to the coordination of services for children with disabilities.
    (b) Advising on eligible students with disabilities in adult 
prisons. The advisory panel also shall advise on the education of 
eligible students with disabilities who have been convicted as adults 
and incarcerated in adult prisons, even if, consistent with 
Sec. 300.600(d), a State

[[Page 89]]

assigns general supervision responsibility for those students to a 
public agency other than an SEA.

(Authority: 20 U.S.C. 1412(a)(21)(D))



Sec. 300.653  Advisory panel procedures.

    (a) The advisory panel shall meet as often as necessary to conduct 
its business.
    (b) By July 1 of each year, the advisory panel shall submit an 
annual report of panel activities and suggestions to the SEA. This 
report must be made available to the public in a manner consistent with 
other public reporting requirements of Part B of the Act.
    (c) Official minutes must be kept on all panel meetings and must be 
made available to the public on request.
    (d) All advisory panel meetings and agenda items must be announced 
enough in advance of the meeting to afford interested parties a 
reasonable opportunity to attend. Meetings must be open to the public.
    (e) Interpreters and other necessary services must be provided at 
panel meetings for panel members or participants. The State may pay for 
these services from funds under Sec. 300.620.
    (f) The advisory panel shall serve without compensation but the 
State must reimburse the panel for reasonable and necessary expenses for 
attending meetings and performing duties. The State may use funds under 
Sec. 300.620 for this purpose.

(Authority: 20 U.S.C. 1412(a)(21))

                       State Complaint Procedures



Sec. 300.660  Adoption of State complaint procedures.

    (a) General. Each SEA shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that meets the 
requirements of Sec. 300.662 by--
    (i) Providing for the filing of a complaint with the SEA; and
    (ii) At the SEA's discretion, providing for the filing of a 
complaint with a public agency and the right to have the SEA review the 
public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
protection and advocacy agencies, independent living centers, and other 
appropriate entities, the State's procedures under Secs. 300.660-
300.662.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which it has found a failure to provide appropriate 
services, an SEA, pursuant to its general supervisory authority under 
Part B of the Act, must address:
    (1) How to remediate the denial of those services, including, as 
appropriate, the awarding of monetary reimbursement or other corrective 
action appropriate to the needs of the child; and
    (2) Appropriate future provision of services for all children with 
disabilities.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.661  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA shall include in its 
complaint procedures a time limit of 60 days after a complaint is filed 
under Sec. 300.660(a) to--
    (1) Carry out an independent on-site investigation, if the SEA 
determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a requirement 
of Part B of the Act or of this part; and
    (4) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.
    (b) Time extension; final decision; implementation. The SEA's 
procedures described in paragraph (a) of this section also must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if exceptional circumstances exist with respect to a 
particular complaint; and

[[Page 90]]

    (2) Include procedures for effective implementation of the SEA's 
final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings 
under Secs. 300.507 and 300.520-300.528. (1) If a written complaint is 
received that is also the subject of a due process hearing under 
Sec. 300.507 or Secs. 300.520-300.528, or contains multiple issues, of 
which one or more are part of that hearing, the State must set aside any 
part of the complaint that is being addressed in the due process 
hearing, until the conclusion of the hearing. However, any issue in the 
complaint that is not a part of the due process action must be resolved 
using the time limit and procedures described in paragraphs (a) and (b) 
of this section.
    (2) If an issue is raised in a complaint filed under this section 
that has previously been decided in a due process hearing involving the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The SEA must inform the complainant to that effect.
    (3) A complaint alleging a public agency's failure to implement a 
due process decision must be resolved by the SEA.

(Authority: 20 U.S.C. 1221e-3)



Sec. 300.662  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Secs. 300.660-300.661.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of 
Part B of the Act or of this part; and
    (2) The facts on which the statement is based.
    (c) The complaint must allege a violation that occurred not more 
than one year prior to the date that the complaint is received in 
accordance with Sec. 300.660(a) unless a longer period is reasonable 
because the violation is continuing, or the complainant is requesting 
compensatory services for a violation that occurred not more than three 
years prior to the date the complaint is received under Sec. 300.660(a).

(Authority: 20 U.S.C. 1221e-3)



                 Subpart G--Allocation of Funds; Reports

                               Allocations



Sec. 300.700  Special definition of the term ``State''.

    For the purposes of Secs. 300.701, and 300.703-300.714, the term 
State means each of the 50 States, the District of Columbia, and the 
Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1411(h)(2))



Sec. 300.701  Grants to States.

    (a) Purpose of grants. The Secretary makes grants to States and the 
outlying areas and provides funds to the Secretary of the Interior, to 
assist them to provide special education and related services to 
children with disabilities in accordance with Part B of the Act.
    (b) Maximum amounts. The maximum amount of the grant a State may 
receive under section 611 of the Act for any fiscal year is--
    (1) The number of children with disabilities in the State who are 
receiving special education and related services--
    (i) Aged 3 through 5 if the State is eligible for a grant under 
section 619 of the Act; and
    (ii) Aged 6 through 21; multiplied by--
    (2) Forty (40) percent of the average per-pupil expenditure in 
public elementary and secondary schools in the United States.

(Authority: 20 U.S.C. 1411(a))



Sec. 300.702  Definition.

    For the purposes of this section the term average per-pupil 
expenditure in public elementary and secondary schools in the United 
States means--
    (a) Without regard to the source of funds--
    (1) The aggregate current expenditures, during the second fiscal 
year preceding the fiscal year for which the

[[Page 91]]

determination is made (or, if satisfactory data for that year are not 
available, during the most recent preceding fiscal year for which 
satisfactory data are available) of all LEAs in the 50 States and the 
District of Columbia); plus
    (2) Any direct expenditures by the State for the operation of those 
agencies; divided by
    (b) The aggregate number of children in average daily attendance to 
whom those agencies provided free public education during that preceding 
year.

(Authority: 20 U.S.C. 1411(h)(1))



Sec. 300.703  Allocations to States.

    (a) General. After reserving funds for studies and evaluations under 
section 674(e) of the Act, and for payments to the outlying areas, the 
freely associated States, and the Secretary of the Interior under 
Secs. 300.715 and 300.717-300.719, the Secretary allocates the remaining 
amount among the States in accordance with paragraph (b) of this section 
and Secs. 300.706-300.709.
    (b) Interim formula. Except as provided in Secs. 300.706-300.709, 
the Secretary allocates the amount described in paragraph (a) of this 
section among the States in accordance with section 611(a)(3), (4), (5) 
and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997, 
except that the determination of the number of children with 
disabilities receiving special education and related services under 
section 611(a)(3) of the Act (as then in effect) may be calculated as of 
December 1, or, at the State's discretion, the last Friday in October, 
of the fiscal year for which the funds were appropriated.

(Authority: 20 U.S.C. 1411(d))



Secs. 300.704-300.705  [Reserved]



Sec. 300.706  Permanent formula.

    (a) Establishment of base year. The Secretary allocates the amount 
described in Sec. 300.703(a) among the States in accordance with 
Secs. 300.706-300.709 for each fiscal year beginning with the first 
fiscal year for which the amount appropriated under 611(j) of the Act is 
more than $4,924,672,200.
    (b) Use of base year. (1) Definition. As used in this section, the 
term base year means the fiscal year preceding the first fiscal year in 
which this section applies.
    (2) Special rule for use of base year amount. If a State received 
any funds under section 611 of the Act for the base year on the basis of 
children aged 3 through 5, but does not make FAPE available to all 
children with disabilities aged 3 through 5 in the State in any 
subsequent fiscal year, the Secretary computes the State's base year 
amount, solely for the purpose of calculating the State's allocation in 
that subsequent year under Secs. 300.707-300.709, by subtracting the 
amount allocated to the State for the base year on the basis of those 
children.

(Authority: 20 U.S.C. 1411(e)(1) and (2))



Sec. 300.707  Increase in funds.

    If the amount available for allocations to States under Sec. 300.706 
is equal to or greater than the amount allocated to the States under 
section 611 of the Act for the preceding fiscal year, those allocations 
are calculated as follows:
    (a) Except as provided in Sec. 300.708, the Secretary--
    (1) Allocates to each State the amount it received for the base 
year;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of their relative populations of children aged 3 through 21 who 
are of the same age as children with disabilities for whom the State 
ensures the availability of FAPE under Part B of the Act; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of their relative populations of children described in paragraph 
(a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.

(Authority: 20 U.S.C. 1411(e)(3))



Sec. 300.708  Limitation.

    (a) Allocations under Sec. 300.707 are subject to the following:

[[Page 92]]

    (1) No State's allocation may be less than its allocation for the 
preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount it received for the base year; and
    (B) One-third of one percent of the amount by which the amount 
appropriated under section 611(j) of the Act exceeds the amount 
appropriated under section 611 of the Act for the base year; or
    (ii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated from the preceding fiscal year exceeds 1.5 
percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec. 300.707 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated.
    (c) If the amount available for allocations to States under 
Sec. 300.703 and paragraphs (a) and (b) of this section is insufficient 
to pay those allocations in full those allocations are ratably reduced, 
subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1411(e)(3)(B) and (C))



Sec. 300.709  Decrease in funds.

    If the amount available for allocations to States under Sec. 300.706 
is less than the amount allocated to the States under section 611 of the 
Act for the preceding fiscal year, those allocations are calculated as 
follows:
    (a) If the amount available for allocations is greater than the 
amount allocated to the States for the base year, each State is 
allocated the sum of--
    (1) The amount it received for the base year; and
    (2) An amount that bears the same relation to any remaining funds as 
the increase the State received for the preceding fiscal year over the 
base year bears to the total of those increases for all States.
    (b)(1) If the amount available for allocations is equal to or less 
than the amount allocated to the States for the base year, each State is 
allocated the amount it received for the base year.
    (2) If the amount available is insufficient to make the allocations 
described in paragraph (b)(1) of this section, those allocations are 
ratably reduced.

(Authority: 20 U.S.C. 1411(e)(4))



Sec. 300.710  Allocation for State in which by-pass is implemented for private school children with disabilities.

    In determining the allocation under Secs. 300.700-300.709 of a State 
in which the Secretary will implement a by-pass for private school 
children with disabilities under Secs. 300.451-300.487, the Secretary 
includes in the State's child count--
    (a) For the first year of a by-pass, the actual or estimated number 
of private school children with disabilities (as defined in 
Secs. 300.7(a) and 300.450) in the State, as of the preceding December 
1; and
    (b) For succeeding years of a by-pass, the number of private school 
children with disabilities who received special education and related 
services under the by-pass in the preceding year.

(Authority: 20 U.S.C. 1412(f)(2))



Sec. 300.711  Subgrants to LEAs.

    Each State that receives a grant under section 611 of the Act for 
any fiscal year shall distribute in accordance with Sec. 300.712 any 
funds it does not retain under Sec. 300.602 and is not required to 
distribute under Secs. 300.622 and 300.623 to LEAs in the State that 
have established their eligibility under section 613 of the Act, and to 
State agencies that received funds under section 614A(a) of the Act for 
fiscal year 1997, as then in effect, and have established their 
eligibility under section 613 of the Act, for use in accordance with 
Part B of the Act.

(Authority: 20 U.S.C. 1411(g)(1))

[[Page 93]]



Sec. 300.712  Allocations to LEAs.

    (a) Interim procedure. For each fiscal year for which funds are 
allocated to States under Sec. 300.703(b) each State shall allocate 
funds under Sec. 300.711 in accordance with section 611(d) of the Act, 
as in effect prior to June 4, 1997.
    (b) Permanent procedure. For each fiscal year for which funds are 
allocated to States under Secs. 300.706-300.709, each State shall 
allocate funds under Sec. 300.711 as follows:
    (1) Base payments. The State first shall award each agency described 
in Sec. 300.711 the amount that agency would have received under this 
section for the base year, as defined in Sec. 300.706(b)(1), if the 
State had distributed 75 percent of its grant for that year under 
section Sec. 300.703(b).
    (2) Base payment adjustments. For any fiscal year after the base 
year fiscal year--
    (i) If a new LEA is created, the State shall divide the base 
allocation determined under paragraph (b)(1) of this section for the 
LEAs that would have been responsible for serving children with 
disabilities now being served by the new LEA, among the new LEA and 
affected LEAs based on the relative numbers of children with 
disabilities ages 3 through 21, or ages 6 through 21 if a State has had 
its payment reduced under Sec. 300.706(b)(2), currently provided special 
education by each of the LEAs;
    (ii) If one or more LEAs are combined into a single new LEA, the 
State shall combine the base allocations of the merged LEAs; and
    (iii) If, for two or more LEAs, geographic boundaries or 
administrative responsibility for providing services to children with 
disabilities ages 3 through 21 change, the base allocations of affected 
LEAs shall be redistributed among affected LEAs based on the relative 
numbers of children with disabilities ages 3 through 21, or ages 6 
through 21 if a State has had its payment reduced under 
Sec. 300.706(b)(2), currently provided special education by each 
affected LEA.
    (3) Allocation of remaining funds. The State then shall--
    (i) Allocate 85 percent of any remaining funds to those agencies on 
the basis of the relative numbers of children enrolled in public and 
private elementary and secondary schools within each agency's 
jurisdiction; and
    (ii) Allocate 15 percent of those remaining funds to those agencies 
in accordance with their relative numbers of children living in poverty, 
as determined by the SEA.
    (iii) For the purposes of making grants under this section, States 
must apply on a uniform basis across all LEAs the best data that are 
available to them on the numbers of children enrolled in public and 
private elementary and secondary schools and the numbers of children 
living in poverty.

(Authority: 20 U.S.C. 1411(g)(2))



Sec. 300.713  Former Chapter 1 State agencies.

    (a) To the extent necessary, the State--
    (1) Shall use funds that are available under Sec. 300.602(a) to 
ensure that each State agency that received fiscal year 1994 funds under 
subpart 2 of Part D of chapter 1 of title I of the Elementary and 
Secondary Education Act of 1965 (as in effect in fiscal year 1994) 
receives, from the combination of funds under Sec. 300.602(a) and funds 
provided under Sec. 300.711, an amount no less than--
    (i) The number of children with disabilities, aged 6 through 21, to 
whom the agency was providing special education and related services on 
December 1, or, at the State's discretion, the last Friday in October, 
of the fiscal year for which the funds were appropriated, subject to the 
limitation in paragraph (b) of this section; multiplied by
    (ii) The per-child amount provided under that subpart for fiscal 
year 1994; and
    (2) May use funds under Sec. 300.602(a) to ensure that each LEA that 
received fiscal year 1994 funds under that subpart for children who had 
transferred from a State-operated or State-supported school or program 
assisted under that subpart receives, from the combination of funds 
available under Sec. 300.602(a) and funds provided under Sec. 300.711, 
an amount for each child, aged 3 through 21 to whom the agency was 
providing special education and related services on December 1, or, at 
the State's discretion, the last Friday in October, of

[[Page 94]]

the fiscal year for which the funds were appropriated, equal to the per-
child amount the agency received under that subpart for fiscal year 
1994.
    (b) The number of children counted under paragraph (a)(1)(i) of this 
section may not exceed the number of children aged 3 through 21 for whom 
the agency received fiscal year 1994 funds under subpart 2 of Part D of 
chapter 1 of title I of the Elementary and Secondary Education Act of 
1965 (as in effect in fiscal year 1994).

(Authority: 20 U.S.C. 1411(g)(3))



Sec. 300.714  Reallocation of LEA funds.

    If an SEA determines that an LEA is adequately providing FAPE to all 
children with disabilities residing in the area served by that agency 
with State and local funds, the SEA may reallocate any portion of the 
funds under Part B of the Act that are not needed by that local agency 
to provide FAPE to other LEAs in the State that are not adequately 
providing special education and related services to all children with 
disabilities residing in the areas they serve.

(Authority: 20 U.S.C. 1411(g)(4))



Sec. 300.715  Payments to the Secretary of the Interior for the education of Indian children.

    (a) Reserved amounts for Secretary of Interior. From the amount 
appropriated for any fiscal year under 611(j) of the Act, the Secretary 
reserves 1.226 percent to provide assistance to the Secretary of the 
Interior in accordance with this section and Sec. 300.716.
    (b) Provision of amounts for assistance. The Secretary provides 
amounts to the Secretary of the Interior to meet the need for assistance 
for the education of children with disabilities on reservations aged 5 
to 21, inclusive, enrolled in elementary and secondary schools for 
Indian children operated or funded by the Secretary of the Interior. The 
amount of the payment for any fiscal year is equal to 80 percent of the 
amount allotted under paragraph (a) of this section for that fiscal 
year.
    (c) Calculation of number of children. In the case of Indian 
students aged 3 to 5, inclusive, who are enrolled in programs affiliated 
with the Bureau of Indian Affairs (BIA) schools and that are required by 
the States in which these schools are located to attain or maintain 
State accreditation, and which schools have this accreditation prior to 
the date of enactment of the Individuals with Disabilities Education Act 
Amendments of 1991, the school may count those children for the purpose 
of distribution of the funds provided under this section to the 
Secretary of the Interior.
    (d) Responsibility for meeting the requirements of Part B. The 
Secretary of the Interior shall meet all of the requirements of Part B 
of the Act for the children described in paragraphs (b) and (c) of this 
section, in accordance with Sec. 300.260.

(Authority: 20 U.S.C. 1411(c); 1411(i)(1)(A) and (B))



Sec. 300.716  Payments for education and services for Indian children with disabilities aged 3 through 5.

    (a) General. With funds appropriated under 611(j) of the Act, the 
Secretary makes payments to the Secretary of the Interior to be 
distributed to tribes or tribal organizations (as defined under section 
4 of the Indian Self-Determination and Education Assistance Act) or 
consortia of those tribes or tribal organizations to provide for the 
coordination of assistance for special education and related services 
for children with disabilities aged 3 through 5 on reservations served 
by elementary and secondary schools for Indian children operated or 
funded by the Department of the Interior. The amount of the payments 
under paragraph (b) of this section for any fiscal year is equal to 20 
percent of the amount allotted under Sec. 300.715(a).
    (b) Distribution of funds. The Secretary of the Interior shall 
distribute the total amount of the payment under paragraph (a) of this 
section by allocating to each tribe or tribal organization an amount 
based on the number of children with disabilities ages 3 through 5 
residing on reservations as reported annually, divided by the total of 
those children served by all tribes or tribal organizations.
    (c) Submission of information. To receive a payment under this 
section, the

[[Page 95]]

tribe or tribal organization shall submit the figures to the Secretary 
of the Interior as required to determine the amounts to be allocated 
under paragraph (b) of this section. This information must be compiled 
and submitted to the Secretary.
    (d) Use of funds. (1) The funds received by a tribe or tribal 
organization must be used to assist in child find, screening, and other 
procedures for the early identification of children aged 3 through 5, 
parent training, and the provision of direct services. These activities 
may be carried out directly or through contracts or cooperative 
agreements with the BIA, LEAs, and other public or private nonprofit 
organizations. The tribe or tribal organization is encouraged to involve 
Indian parents in the development and implementation of these 
activities.
    (2) The entities shall, as appropriate, make referrals to local, 
State, or Federal entities for the provision of services or further 
diagnosis.
    (e) Biennial report. To be eligible to receive a grant pursuant to 
paragraph (a) of this section, the tribe or tribal organization shall 
provide to the Secretary of the Interior a biennial report of activities 
undertaken under this paragraph, including the number of contracts and 
cooperative agreements entered into, the number of children contacted 
and receiving services for each year, and the estimated number of 
children needing services during the two years following the one in 
which the report is made. The Secretary of the Interior shall include a 
summary of this information on a biennial basis in the report to the 
Secretary required under section 611(i) of the Act. The Secretary may 
require any additional information from the Secretary of the Interior.
    (f) Prohibitions. None of the funds allocated under this section may 
be used by the Secretary of the Interior for administrative purposes, 
including child count and the provision of technical assistance.

(Authority: 20 U.S.C. 1411(i)(3))



Sec. 300.717  Outlying areas and freely associated States.

    From the amount appropriated for any fiscal year under section 
611(j) of the Act, the Secretary reserves not more than one percent, 
which must be used--
    (a) To provide assistance to the outlying areas in accordance with 
their respective populations of individuals aged 3 through 21; and
    (b) For fiscal years 1998 through 2001, to carry out the competition 
described in Sec. 300.719, except that the amount reserved to carry out 
that competition may not exceed the amount reserved for fiscal year 1996 
for the competition under Part B of the Act described under the heading 
``SPECIAL EDUCATION'' in Public Law 104-134.

(Authority: 20 U.S.C. 1411(b)(1))



Sec. 300.718  Outlying area--definition.

    As used in this part, the term outlying area means the United States 
Virgin Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands.

(Authority: 20 U.S.C. 1402(18))



Sec. 300.719  Limitation for freely associated States.

    (a) Competitive grants. The Secretary uses funds described in 
Sec. 300.717(b) to award grants, on a competitive basis, to Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the freely associated States to carry out the purposes of this part.
    (b) Award basis. The Secretary awards grants under paragraph (a) of 
this section on a competitive basis, pursuant to the recommendations of 
the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those 
recommendations must be made by experts in the field of special 
education and related services.
    (c) Assistance requirements. Any freely associated State that wishes 
to receive funds under Part B of the Act shall include, in its 
application for assistance--
    (1) Information demonstrating that it will meet all conditions that 
apply to States under Part B of the Act;
    (2) An assurance that, notwithstanding any other provision of Part B 
of the Act, it will use those funds only for the direct provision of 
special education and related services to children

[[Page 96]]

with disabilities and to enhance its capacity to make FAPE available to 
all children with disabilities;
    (3) The identity of the source and amount of funds, in addition to 
funds under Part B of the Act, that it will make available to ensure 
that FAPE is available to all children with disabilities within its 
jurisdiction; and
    (4) Such other information and assurances as the Secretary may 
require.
    (d) Termination of eligibility. Notwithstanding any other provision 
of law, the freely associated States may not receive any funds under 
Part B of the Act for any program year that begins after September 30, 
2001.
    (e) Administrative costs. The Secretary may provide not more than 
five percent of the amount reserved for grants under this section to pay 
the administrative costs of the Pacific Region Educational Laboratory 
under paragraph (b) of this section.
    (f) Eligibility for award. An outlying area is not eligible for a 
competitive award under Sec. 300.719 unless it receives assistance under 
Sec. 300.717(a).

(Authority: 20 U.S.C. 1411(b)(2) and (3))



Sec. 300.720  Special rule.

    The provisions of Public Law 95-134, permitting the consolidation of 
grants by the outlying areas, do not apply to funds provided to those 
areas or to the freely associated States under Part B of the Act.

(Authority: 20 U.S.C. 1411(b)(4))



Sec. 300.721  [Reserved]



Sec. 300.722  Definition.

    As used in this part, the term freely associated States means the 
Republic of the Marshall Islands, the Federated States of Micronesia, 
and the Republic of Palau.

(Authority: 20 U.S.C. 1411(b)(6))

                                 Reports



Sec. 300.750  Annual report of children served--report requirement.

    (a) The SEA shall report to the Secretary no later than February 1 
of each year the number of children with disabilities aged 3 through 21 
residing in the State who are receiving special education and related 
services.
    (b) The SEA shall submit the report on forms provided by the 
Secretary.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a))



Sec. 300.751  Annual report of children served--information required in the report.

    (a) For any year the SEA shall include in its report a table that 
shows the number of children with disabilities receiving special 
education and related services on December 1, or at the State's 
discretion on the last Friday in October, of that school year--
    (1) Aged 3 through 5;
    (2) Aged 6 through 17; and
    (3) Aged 18 through 21.
    (b) For the purpose of this part, a child's age is the child's 
actual age on the date of the child count: December 1, or, at the 
State's discretion, the last Friday in October.
    (c) Reports must also include the number of those children with 
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.) 
within each disability category, as defined in the definition of 
``children with disabilities'' in Sec. 300.7; and
    (d) The Secretary may permit the collection of the data in paragraph 
(c) of this section through sampling.
    (e) The SEA may not report a child under paragraph (c) of this 
section under more than one disability category.
    (f) If a child with a disability has more than one disability, the 
SEA shall report that child under paragraph (c) of this section in 
accordance with the following procedure:
    (1) If a child has only two disabilities and those disabilities are 
deafness and blindness, and the child is not reported as having a 
developmental delay, that child must be reported under the category 
``deaf-blindness''.
    (2) A child who has more than one disability and is not reported as 
having deaf-blindness or as having a developmental delay must be 
reported under the category ``multiple disabilities''.

(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))

[[Page 97]]



Sec. 300.752  Annual report of children served--certification.

    The SEA shall include in its report a certification signed by an 
authorized official of the agency that the information provided under 
Sec. 300.751(a) is an accurate and unduplicated count of children with 
disabilities receiving special education and related services on the 
dates in question.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.753  Annual report of children served--criteria for counting children.

    (a) The SEA may include in its report children with disabilities who 
are enrolled in a school or program that is operated or supported by a 
public agency, and that--
    (1) Provides them with both special education and related services 
that meet State standards;
    (2) Provides them only with special education, if a related service 
is not required, that meets State standards; or
    (3) In the case of children with disabilities enrolled by their 
parents in private schools, provides them with special education or 
related services under Secs. 300.452-300.462 that meet State standards.
    (b) The SEA may not include children with disabilities in its report 
who are receiving special education funded solely by the Federal 
Government, including children served by the Department of Interior, the 
Department of Defense, or the Department of Education. However, the 
State may count children covered under Sec. 300.184(c)(2).

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.754  Annual report of children served--other responsibilities of the SEA.

    In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
    (a) Establish procedures to be used by LEAs and other educational 
institutions in counting the number of children with disabilities 
receiving special education and related services;
    (b) Set dates by which those agencies and institutions must report 
to the SEA to ensure that the State complies with Sec. 300.750(a);
    (c) Obtain certification from each agency and institution that an 
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each agency and 
institution, and prepare the reports required under Secs. 300.750-
300.753; and
    (e) Ensure that documentation is maintained that enables the State 
and the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1411(d)(2); 1417(b))



Sec. 300.755  Disproportionality.

    (a) General. Each State that receives assistance under Part B of the 
Act, and the Secretary of the Interior, shall provide for the collection 
and examination of data to determine if significant disproportionality 
based on race is occurring in the State or in the schools operated by 
the Secretary of the Interior with respect to--
    (1) The identification of children as children with disabilities, 
including the identification of children as children with disabilities 
in accordance with a particular impairment described in section 602(3) 
of the Act; and
    (2) The placement in particular educational settings of these 
children.
    (b) Review and revision of policies, practices, and procedures. In 
the case of a determination of significant disproportionality with 
respect to the identification of children as children with disabilities, 
or the placement in particular educational settings of these children, 
in accordance with paragraph (a) of this section, the State or the 
Secretary of the Interior shall provide for the review and, if 
appropriate revision of the policies, procedures, and practices used in 
the identification or placement to ensure that the policies, procedures, 
and practices comply with the requirements of Part B of the Act.

(Authority: 20 U.S.C. 1418(c))



Sec. 300.756  Acquisition of equipment; construction or alteration of facilities.

    (a) General. If the Secretary determines that a program authorized 
under Part B of the Act would be improved by permitting program funds to 
be used to acquire appropriate equipment, or to

[[Page 98]]

construct new facilities or alter existing facilities, the Secretary may 
allow the use of those funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new 
facilities or alteration of existing facilities under paragraph (a) of 
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
(commonly known as the ``Americans with Disabilities Accessibility 
Guidelines for Buildings and Facilities''); or
    (2) Appendix A of part 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1405)

            Appendix A to Part 300--Notice of Interpretation

   I. Involvement and Progress of Each Child With a Disability in the 
                           General Curriculum

    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the general 
curriculum?
    2. Must a child's IEP address his or her involvement in the general 
curriculum, regardless of the nature and severity of the child's 
disability and the setting in which the child is educated?
    3. What must public agencies do to meet the requirements at 
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a 
``regular education teacher'' in the development review, and revision of 
the IEPs, for children age 3 through 5 who are receiving special 
education and related services?
    4. Must the measurable annual goals in a child's IEP address all 
areas of the general curriculum, or only those areas in which the 
child's involvement and progress are affected by the child's disability?

                 II. Involvement of Parents and Students

    5. What is the role of the parents, including surrogate parents, in 
decisions regarding the educational program of their children?
    6. What are the Part B requirements regarding the participation of a 
student (child) with a disability in an IEP meeting?
    7. Must the public agency inform the parents of who will be at the 
IEP meeting?
    8. Do parents have the right to a copy of their child's IEP?
    9. What is a public agency's responsibility if it is not possible to 
reach consensus on what services should be included in a child's IEP?
    10. Does Part B require that public agencies inform parents 
regarding the educational progress of their children with disabilities?

III. Preparing Students With Disabilities for Employment and Other Post-
                           School Experiences

    11. What must the IEP team do to meet the requirements that the IEP 
include a statement of ``transition service needs'' beginning at age 14 
(Sec. 300.347(b)(1), and a statement of ``needed transition services'' 
beginning at age 16 (Sec. 300.347(b)(2)?
    12. Must the IEP for each student with a disability, beginning no 
later than age 16, include all ``needed transition services,'' as 
identified by the IEP team and consistent with the definition at 
Sec. 300.29, even if an agency other than the public agency will provide 
those services? What is the public agency's responsibility if another 
agency fails to provide agreed-upon transition services?
    13. Under what circumstances must a public agency invite 
representatives from other agencies to an IEP meeting at which a child's 
need for transition services will be considered?

          IV. Other Questions Regarding Implementation of Idea

    14. For a child with a disability receiving special education for 
the first time, when must an IEP be developed--before placement or after 
placement?
    15. Who is responsible for ensuring the development of IEPs for 
children with disabilities served by a public agency other than an LEA?
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State 
responsible for the child's IEP?
    17. If a disabled child has been receiving special education from 
one public agency and transfers to another public agency in the same 
State, must the new public agency develop an IEP before the child can be 
placed in a special education program?
    18. What timelines apply to the development and implementation of an 
initial IEP for a child with a disability?
    19. Must a public agency hold separate meetings to determine a 
child's eligibility for special education and related services, develop 
the child's IEP, and determine the child's placement, or may the agency 
meet all of these requirements in a single meeting?
    20. How frequently must a public agency conduct meetings to review, 
and if appropriate revise, the IEP for each child with a disability?
    21. May IEP meetings be audio or video-tape-recorded?

[[Page 99]]

    22. Who can serve as the representative of the public agency at an 
IEP meeting?
    23. For a child with a disability being considered for initial 
placement in special education, which teacher or teachers should attend 
the IEP meeting?
    24. What is the role of a regular education teacher in the 
development, review, and revision of the IEP for a child who is, or may 
be, participating in the regular education environment?
    25. If a child with a disability attends several regular classes, 
must all of the child's regular education teachers be members of the 
child's IEP team?
    26. How should a public agency determine which regular education 
teacher and special education teacher will members of the IEP team for a 
particular child with a disability?
    27. For a child whose primary disability is a speech impairment, may 
a public agency meet its responsibility under Sec. 300.344(a)(3) to 
ensure that the IEP team includes ``at least one special education 
teacher, or, if appropriate, at least one special education provider of 
the child'' by including a speech-language pathologist on the IEP team?
    28. Do public agencies and parents have the option of having any 
individual of their choice attend a child's IEP meeting as participants 
on their child's IEP team?
    29. Can parents or public agencies bring their attorneys to IEP 
meetings, and, if so under what circumstances? Are attorney's fees 
available for parents' attorneys if the parents are prevailing parties 
in actions or proceedings brought under Part B?
    30. Must related services personnel attend IEP meetings?
    31. Must the public agency ensure that all services specified in a 
child's IEP are provided?
    32. Is it permissible for an agency to have the IEP completed before 
the IEP meeting begins?
    33. Must a public agency include transportation in a child's IEP as 
a related service?
    34. Must a public agency provide related services that are required 
to assist a child with a disability to benefit from special education, 
whether or not those services are included in the list of related 
services in Sec. 300.24?
    35. Must the IEP specify the amount of services or may it simply 
list the services to be provided?
    36. Under what circumstances is a public agency required to permit a 
child with a disability to use a school-purchased assistive technology 
device in the child's home or in another setting?
    37. Can the IEP team also function as the group making the placement 
decision for a child with a disability?
    38. If a child's IEP includes behavioral strategies to address a 
particular behavior, can a child ever be suspended for engaging in that 
behavior?
    39. If a child's behavior in the regular classroom, even with 
appropriate interventions, would significantly impair the learning of 
others, can the group that makes the placement decision determine that 
placement in the regular classroom is inappropriate for that child?
    40. May school personnel during a school year implement more than 
one short-term removal of a child with disabilities from his or her 
classroom or school for misconduct?

Authority:
    Part B of the Individuals with Disabilities Education Act (20 U.S.C. 
1401, et seq.), unless otherwise noted.

      Individualized Education Programs (IEPS) and Other Selected 
                          ImplementatioN Issues

    Interpretation of IEP and Other selected Requirements under Part B 
of the Individuals with Disabilities Education Act (IDEA; Part B)

                              Introduction

    The IEP requirements under Part B of the IDEA emphasize the 
importance of three core concepts: (1) the involvement and progress of 
each child with a disability in the general curriculum including 
addressing the unique needs that arise out of the child's disability; 
(2) the involvement of parents and students, together with regular and 
special education personnel, in making individual decisions to support 
each student's (child's) educational success, and (3) the preparation of 
students with disabilities for employment and other post-school 
activities.
    The first three sections of this Appendix (I-III) provide guidance 
regarding the IEP requirements as they relate to the three core concepts 
described above. Section IV addresses other questions regarding the 
development and content of IEPs, including questions about the timelines 
and responsibility for developing and implementing IEPs, participation 
in IEP meetings, and IEP content. Section IV also addresses questions on 
other selected requirements under IDEA.

   I. Involvement and Progress of Each Child With a Disability in the 
                           General Curriculum

    In enacting the IDEA Amendments of 1997, the Congress found that 
research, demonstration, and practice over the past 20 years in special 
education and related disciplines have demonstrated that an effective 
educational system now and in the future must maintain high academic 
standards and clear performance goals for children with disabilities, 
consistent with the standards and expectations for all students in the 
educational system, and provide for appropriate

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and effective strategies and methods to ensure that students who are 
children with disabilities have maximum opportunities to achieve those 
standards and goals. [Section 651(a)(6)(A) of the Act.]
    Accordingly, the evaluation and IEP provisions of Part B place great 
emphasis on the involvement and progress of children with disabilities 
in the general curriculum. (The term ``general curriculum,'' as used in 
these regulations, including this Appendix, refers to the curriculum 
that is used with nondisabled children.)
    While the Act and regulations recognize that IEP teams must make 
individualized decisions about the special education and related 
services, and supplementary aids and services, provided to each child 
with a disability, they are driven by IDEA's strong preference that, to 
the maximum extent appropriate, children with disabilities be educated 
in regular classes with their nondisabled peers with appropriate 
supplementary aids and services.
    In many cases, children with disabilities will need appropriate 
supports in order to successfully progress in the general curriculum, 
participate in State and district-wide assessment programs, achieve the 
measurable goals in their IEPs, and be educated together with their 
nondisabled peers. Accordingly, the Act requires the IEP team to 
determine, and the public agency to provide, the accommodations, 
modifications, supports, and supplementary aids and services, needed by 
each child with a disability to successfully be involved in and progress 
in the general curriculum achieve the goals of the IEP, and successfully 
demonstrate his or her competencies in State and district-wide 
assessments.
    1. What are the major Part B IEP requirements that govern the 
involvement and progress of children with disabilities in the general 
curriculum?

                Present Levels of Educational Performance

    Section 300.347(a)(1) requires that the IEP for each child with a 
disability include ``* * * a statement of the child's present levels of 
educational performance, including--(i) how the child's disability 
affects the child's involvement and progress in the general curriculum; 
or (ii) for preschool children, as appropriate, how the child's 
disability affects the child's participation in appropriate activities * 
* *'' (``Appropriate activities'' in this context refers to age-relevant 
developmental abilities or milestones that typically developing children 
of the same age would be performing or would have achieved.)
    The IEP team's determination of how each child's disability affects 
the child's involvement and progress in the general curriculum is a 
primary consideration in the development of the child's IEP. In 
assessing children with disabilities, school districts may use a variety 
of assessment techniques to determine the extent to which these children 
can be involved and progress in the general curriculum, such as 
criterion-referenced tests, standard achievement tests, diagnostic 
tests, other tests, or any combination of the above.
    The purpose of using these assessments is to determine the child's 
present levels of educational performance and areas of need arising from 
the child's disability so that approaches for ensuring the child's 
involvement and progress in the general curriculum and any needed 
adaptations or modifications to that curriculum can be identified.
    Measurable Annual Goals, including Benchmarks or Short-term 
ojectives
    Measurable annual goals, including benchmarks or short-term 
objectives, are critical to the strategic planning process used to 
develop and implement the IEP for each child with a disability. Once the 
IEP team has developed measurable annual goals for a child, the team (1) 
can develop strategies that will be most effective in realizing those 
goals and (2) must develop either measurable, intermediate steps (short-
term objectives) or major milestones (benchmarks) that will enable 
parents, students, and educators to monitor progress during the year, 
and, if appropriate, to revise the IEP consistent with the student's 
instructional needs.
    The strong emphasis in Part B on linking the educational program of 
children with disabilities to the general curriculum is reflected in 
Sec. 300.347(a)(2), which requires that the IEP include:

    A statement of measurable annual goals, including benchmarks or 
short-term objectives, related to--(i) meeting the child's needs that 
result from the child's disability to enable the child to be involved in 
and progress in the general curriculum; and (ii) meeting each of the 
child's other educational needs that result from the child's disability.
    As noted above, each annual goal must include either short-term 
objectives or benchmarks. The purpose of both is to enable a child's 
teacher(s), parents, and others involved in developing and implementing 
the child's IEP, to gauge, at intermediate times during the year, how 
well the child is progressing toward achievement of the annual goal. IEP 
teams may continue to develop short-term instructional objectives, that 
generally break the skills described in the annual goal down into 
discrete components. The revised statute and regulations also provide 
that, as an alternative, IEP teams may develop benchmarks, which can be 
thought of as describing the amount of progress the child is expected to 
make within specified segments of the year. Generally, benchmarks 
establish expected performance levels that allow for regular checks of 
progress that coincide with the reporting periods for informing parents 
of their child's progress toward achieving the annual goals. An IEP team

[[Page 101]]

may use either short term objectives or benchmarks or a combination of 
the two depending on the nature of the annual goals and the needs of the 
child.

   Special Education and Related Services and Supplementary Aids and 
                                Services

    The requirements regarding services provided to address a child's 
present levels of educational performance and to make progress toward 
the identified goals reinforce the emphasis on progress in the general 
curriculum, as well as maximizing the extent to which children with 
disabilities are educated with nondisabled children. Section 
300.347(a)(3) requires that the IEP include:

    A statement of the special education and related services and 
supplementary aids and services to be provided to the child, or on 
behalf of the child, and a statement of the program modifications or 
supports for school personnel that will be provided for the child--(i) 
to advance appropriately toward attaining the annual goals; (ii) to be 
involved and progress in the general curriculum * * * and to participate 
in extracurricular and other nonacademic activities; and (iii) to be 
educated and participate with other children with disabilities and 
nondisabled children in [extracurricular and other nonacademic 
activities] * * * [Italics added.]

    Extent to Which Child Will Participate With Nondisabled Children

    Section 300.347(a)(4) requires that each child's IEP include ``An 
explanation of the extent, if any, to which the child will not 
participate with nondisabled children in the regular class and in 
[extracurricular and other nonacademic] activities * * *'' This is 
consistent with the least restrictive environment (LRE) provisions at 
Secs. 300.550-300.553, which include requirements that:
    (1) each child with a disability be educated with nondisabled 
children to the maximum extent appropriate (Sec. 300.550(b)(1));
    (2) each child with a disability be removed from the regular 
educational environment only when the nature or severity of the child's 
disability is such that education in regular classes with the use of 
supplementary aids and services cannot be achieved satisfactorily 
(Sec. 300.550(b)(1)); and
    (3) to the maximum extent appropriate to the child's needs, each 
child with a disability participates with nondisabled children in 
nonacademic and extracurricular services and activities (Sec. 300.553).
    All services and educational placements under Part B must be 
individually determined in light of each child's unique abilities and 
needs, to reasonably promote the child's educational success. Placing 
children with disabilities in this manner should enable each disabled 
child to meet high expectations in the future.
    Although Part B requires that a child with a disability not be 
removed from the regular educational environment if the child's 
education can be achieved satisfactorily in regular classes with the use 
of supplementary aids and services, Part B's LRE principle is intended 
to ensure that a child with a disability is served in a setting where 
the child can be educated successfully. Even though IDEA does not 
mandate regular class placement for every disabled student, 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. Following that consideration, if a 
determination is made that particular disabled student cannot be 
educated satisfactorily in the regular educational environment, even 
with the provision of appropriate supplementary aids and services, that 
student then could be placed in a setting other than the regular 
classroom. Later, if it becomes apparent that the child's IEP can be 
carried out in a less restrictive setting, with the provision of 
appropriate supplementary aids and services, if needed, Part B would 
require that the child's placement be changed from the more restrictive 
setting to a less restrictive setting. 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. Conversely, IDEA does not require 
that a student demonstrate achievement of a specific performance level 
as a prerequisite for placement into a regular classroom.

     Participation in State or District-Wide Assessments of Student 
                               Achievement

    Consistent with Sec. 300.138(a), which sets forth a presumption that 
children with disabilities will be included in general State and 
district-wide assessment programs, and provided with appropriate 
accommodations if necessary, Sec. 300.347(a)(5) requires that the IEP 
for each student with a disability include: ``(i) a statement of any 
individual

[[Page 102]]

modifications in the administration of State or district-wide 
assessments of student achievement that are needed in order for the 
child to participate in the assessment; and (ii) if the IEP team 
determines that the child will not participate in a particular State or 
district-wide assessment of student achievement (or part of an 
assessment of student achievement), a statement of--(A) Why that 
assessment is not appropriate for the child; and (B) How the child will 
be assessed.''

Regular Education Teacher Participation in the Development, Review, and 
                            Revision of IEPs

    Very often, regular education teachers play a central role in the 
education of children with disabilities (H. Rep. No. 105-95, p. 103 
(1997); S. Rep. No. 105-17, p. 23 (1997)) and have important expertise 
regarding the general curriculum and the general education environment. 
Further, with the emphasis on involvement and progress in the general 
curriculum added by the IDEA Amendments of 1997, regular education 
teachers have an increasingly critical role (together with special 
education and related services personnel) in implementing the program of 
FAPE for most children with disabilities, as described in their IEPs.
    Accordingly, the IDEA Amendments of 1997 added a requirement that 
each child's IEP team must include at least one regular education 
teacher of the child, if the child is, or may be, participating in the 
regular education environment (see Sec. 300.344(a)(2)). (See also 
Secs. 300.346(d) on the role of a regular education teacher in the 
development, review and revision of IEPs.)
    2. Must a child's IEP address his or her involvement in the general 
curriculum, regardless of the nature and severity of the child's 
disability and the setting in which the child is educated?
    Yes. The IEP for each child with a disability (including children 
who are educated in separate classrooms or schools) must address how the 
child will be involved and progress in the general curriculum. However, 
the Part B regulations recognize that some children have other 
educational needs resulting from their disability that also must be met, 
even though those needs are not directly linked to participation in the 
general curriculum.
    Accordingly, Sec. 300.347(a)(1)(2) requires that each child's IEP 
include:
    A statement of measurable annual goals, including benchmarks or 
short-term objectives related to--(i) Meeting the child's needs that 
result from the child's disability to enable the child to be involved in 
and progress in the general curriculum; and (ii) meeting each of the 
child's other educational needs that result from the child's disability. 
[Italics added.]
    Thus, the IEP team for each child with a disability must make an 
individualized determination regarding (1) how the child will be 
involved and progress in the general curriculum and what needs that 
result from the child's disability must be met to facilitate that 
participation; (2) whether the child has any other educational needs 
resulting from his or her disability that also must be met; and (3) what 
special education and other services and supports must be described in 
the child's IEP to address both sets of needs (consistent with 
Sec. 300.347(a)). For example, if the IEP team determines that in order 
for a child who is deaf to participate in the general curriculum he or 
she needs sign language and materials which reflect his or her language 
development, those needs (relating to the child's participation in the 
general curriculum) must be addressed in the child's IEP. In addition, 
if the team determines that the child also needs to expand his or her 
vocabulary in sign language that service must also be addressed in the 
applicable components of the child's IEP. The IEP team may also wish to 
consider whether there is a need for members of the child's family to 
receive training in sign language in order for the child to receive 
FAPE.
    3. What must public agencies do to meet the requirements at 
Secs. 300.344(a)(2) and 300.346(d) regarding the participation of a 
``regular education teacher'' in the development, review, and revision 
of IEPs, for children aged 3 through 5 who are receiving preschool 
special education services?
    If a public agency provides ``regular education'' preschool services 
to non-disabled children, then the requirements of Secs. 300.344(a)(2) 
and 300.346(d) apply as they do in the case of older children with 
disabilities. If a public agency makes kindergarten available to 
nondisabled children, then a regular education kindergarten teacher 
could appropriately be the regular education teacher who would be a 
member of the IEP team, and, as appropriate, participate in IEP 
meetings, for a kindergarten-aged child who is, or may be, participating 
in the regular education environment.
    If a public agency does not provide regular preschool education 
services to nondisabled children, the agency could designate an 
individual who, under State standards, is qualified to serve nondisabled 
children of the same age.
    4. Must the measurable annual goals in a child's IEP address all 
areas of the general curriculum, or only those areas in which the 
child's involvement and progress are affected by the child's disability?
    Section 300.347(a)(2) requires that each child's IEP include ``A 
statement of measurable annual goals, including benchmarks or short-term 
objectives, related to--(i) meeting the child's needs that result from 
the child's disability to enable the child to be involved in and 
progress in the general curriculum * * *; and

[[Page 103]]

(ii) meeting each of the child's other educational needs that result 
from the child's disability. . . .'' (Italics added).
    Thus, a public agency is not required to include in an IEP annual 
goals that relate to areas of the general curriculum in which the 
child's disability does not affect the child's ability to be involved in 
and progress in the general curriculum. If a child with a disability 
needs only modifications or accommodations in order to progress in an 
area of the general curriculum, the IEP does not need to include a goal 
for that area; however, the IEP would need to specify those 
modifications or accommodations.
    Public agencies often require all children, including children with 
disabilities, to demonstrate mastery in a given area of the general 
curriculum before allowing them to progress to the next level or grade 
in that area. Thus, in order to ensure that each child with a disability 
can effectively demonstrate competencies in an applicable area of the 
general curriculum, it is important for the IEP team to consider the 
accommodations and modifications that the child needs to assist him or 
her in demonstrating progress in that area.

                 II. Involvement of Parents and Students

    The Congressional Committee Reports on the IDEA Amendments of 1997 
express the view that the Amendments provide an opportunity for 
strengthening the role of parents, and emphasize that one of the 
purposes of the Amendments is to expand opportunities for parents and 
key public agency staff (e.g., special education, related services, 
regular education, and early intervention service providers, and other 
personnel) to work in new partnerships at both the State and local 
levels (H. Rep. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 4 and 5 
(1997)). Accordingly, the IDEA Amendments of 1997 require that parents 
have an opportunity to participate in meetings with respect to the 
identification, evaluation, and educational placement of the child, and 
the provision of FAPE to the child. (Sec. 300.501(a)(2)). Thus, parents 
must now be part of: (1) the group that determines what additional data 
are needed as part of an evaluation of their child (Sec. 300.533(a)(1)); 
(2) the team that determines their child's eligibility 
(Sec. 300.534(a)(1)); and (3) the group that makes decisions on the 
educational placement of their child (Sec. 300.501(c)).
    In addition, the concerns of parents and the information that they 
provide regarding their children must be considered in developing and 
reviewing their children's IEPs (Secs. 300.343(c)(iii) and 
300.346(a)(1)(i) and (b)); and the requirements for keeping parents 
informed about the educational progress of their children, particularly 
as it relates to their progress in the general curriculum, have been 
strengthened (Sec. 300.347(a)(7)).
    The IDEA Amendments of 1997 also contain provisions that greatly 
strengthen the involvement of students with disabilities in decisions 
regarding their own futures, to facilitate movement from school to post-
school activities. For example, those amendments (1) retained, 
essentially verbatim, the ``transition services'' requirements from the 
IDEA Amendments of 1990 (which provide that a statement of needed 
transition services must be in the IEP of each student with a 
disability, beginning no later than age 16); and (2) significantly 
expanded those provisions by adding a new annual requirement for the IEP 
to include ``transition planning'' activities for students beginning at 
age 14. (See section IV of this appendix for a description of the 
transition services requirements and definition.)
    With respect to student involvement in decisions regarding 
transition services, Sec. 300.344(b) provides that (1) ``the public 
agency shall invite a student with a disability of any age to attend his 
or her IEP meeting if a purpose of the meeting will be the consideration 
of--(i) The student's transition services needs under 
Sec. 300.347(b)(1); or (ii) The needed transition services for the 
student under Sec. 300.347(b)(2); or (iii) Both;'' and (2) ``If the 
student does not attend the IEP meeting, the public agency shall take 
other steps to ensure that the student's preferences and interests are 
considered.'' (Sec. 300.344(b)(2)).
    The IDEA Amendments of 1997 also give States the authority to elect 
to transfer the rights accorded to parents under Part B to each student 
with a disability upon reaching the age of majority under State law (if 
the student has not been determined incompetent under State law) 
(Sec. 300.517). (Part B requires that if the rights transfer to the 
student, the public agency must provide any notice required under Part B 
to both the student and the parents.) If the State elects to provide for 
the transfer of rights from the parents to the student at the age of 
majority, the IEP must, beginning at least one year before a student 
reaches the age of majority under State law, include a statement that 
the student has been informed of any rights that will transfer to him or 
her upon reaching the age of majority. (Sec. 300.347(c)).
    The IDEA Amendments of 1997 also permit, but do not require, States 
to establish a procedure for appointing the parent, or another 
appropriate individual if the parent is not available, to represent the 
educational interests of a student with a disability who has reached the 
age of majority under State law and has not been determined to be 
incompetent, but who is determined not to have the ability to provide 
informed consent with respect to his or her educational program.
    5. What is the role of the parents, including surrogate parents, in 
decisions regarding the educational program of their children?

[[Page 104]]

    The parents of a child with a disability are expected to be equal 
participants along with school personnel, in developing, reviewing, and 
revising the IEP for their child. This is an active role in which the 
parents (1) provide critical information regarding the strengths of 
their child and express their concerns for enhancing the education of 
their child; (2) participate in discussions about the child's need for 
special education and related services and supplementary aids and 
services; and (3) join with the other participants in deciding how the 
child will be involved and progress in the general curriculum and 
participate in State and district-wide assessments, and what services 
the agency will provide to the child and in what setting.
    As previously noted in the introduction to section II of this 
Appendix, Part B specifically provides that parents of children with 
disabilities--
     Have an opportunity to participate in meetings with respect 
to the identification, evaluation, and educational placement of their 
child, and the provision of FAPE to the child (including IEP meetings) 
(Secs. 300.501(b), 300.344(a)(1), and 300.517;
     Be part of the groups that determine what additional data 
are needed as part of an evaluation of their child (Sec. 300.533(a)(1)), 
and determine their child's eligibility (Sec. 300.534(a)(1)) and 
educational placement (Sec. 300.501(c));
     Have their concerns and the information that they provide 
regarding their child considered in developing and reviewing their 
child's IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1)(i) and (b)); and
     Be regularly informed (by such means as periodic report 
cards), as specified in their child's IEP, at least as often as parents 
are informed of their nondisabled children's progress, of their child's 
progress toward the annual goals in the IEP and the extent to which that 
progress is sufficient to enable the child to achieve the goals by the 
end of the year (Sec. 300.347(a)(7)).
    A surrogate parent is a person appointed to represent the interests 
of a child with a disability in the educational decision-making process 
when no parent (as defined at Sec. 300.20) is known, the agency, after 
reasonable efforts, cannot locate the child's parents, or the child is a 
ward of the State under the laws of the State. A surrogate parent has 
all of the rights and responsibilities of a parent under Part B 
(Sec. 300.515.)
    6. What are the Part B requirements regarding the participation of a 
student (child) with a disability in an IEP meeting?
    If a purpose of an IEP meeting for a student with a disability will 
be the consideration of the student's transition services needs or 
needed transition services under Sec. 300.347(b)(1) or (2), or both, the 
public agency must invite the student and, as part of the notification 
to the parents of the IEP meeting, inform the parents that the agency 
will invite the student to the IEP meeting.
    If the student does not attend, the public agency must take other 
steps to ensure that the student's preferences and interests are 
considered. (See Sec. 300.344(b)).
    Section Sec. 300.517 permits, but does not require, States to 
transfer procedural rights under Part B from the parents to students 
with disabilities who reach the age of majority under State law, if they 
have not been determined to be incompetent under State law. If those 
rights are to be transferred from the parents to the student, the public 
agency would be required to ensure that the student has the right to 
participate in IEP meetings set forth for parents in Sec. 300.345. 
However, at the discretion of the student or the public agency, the 
parents also could attend IEP meetings as ``* * * individuals who have 
knowledge or special expertise regarding the child * * *'' (see 
Sec. 300.344(a)(6)).
    In other circumstances, a child with a disability may attend ``if 
appropriate.'' (Sec. 300.344(a)(7)). Generally, a child with a 
disability should attend the IEP meeting if the parent decides that it 
is appropriate for the child to do so. If possible, the agency and 
parents should discuss the appropriateness of the child's participation 
before a decision is made, in order to help the parents determine 
whether or not the child's attendance would be (1) helpful in developing 
the IEP or (2) directly beneficial to the child or both. The agency 
should inform the parents before each IEP meeting--as part of 
notification under Sec. 300.345(a)(1)--that they may invite their child 
to participate.
    7. Must the public agency inform the parents of who will be at the 
IEP meeting?
    Yes. In notifying parents about the meeting, the agency ``must 
indicate the purpose, time, and location of the meeting, and who will be 
in attendance.'' (Sec. 300.345(b), italics added.) In addition, if a 
purpose of the IEP meeting will be the consideration of a student's 
transition services needs or needed transition services under 
Sec. 300.347(b)(1) or (2) or both, the notice must also inform the 
parents that the agency is inviting the student, and identify any other 
agency that will be invited to send a representative.
    The public agency also must inform the parents of the right of the 
parents and the agency to invite other individuals who have knowledge or 
special expertise regarding the child, including related services 
personnel as appropriate to be members of the IEP team. 
(Sec. 300.345(b)(1)(ii).)
    It also may be appropriate for the agency to ask the parents to 
inform the agency of any individuals the parents will be bringing to the 
meeting. Parents are encouraged to let the agency know whom they intend 
to

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bring. Such cooperation can facilitate arrangements for the meeting, and 
help ensure a productive, child-centered meeting.
    8. Do parents have the right to a copy of their child's IEP?
    Yes. Section 300.345(f) states that the public agency shall give the 
parent a copy of the IEP at no cost to the parent.
    9. What is a public agency's responsibility if it is not possible to 
reach consensus on what services should be included in a child's IEP?
    The IEP meeting serves as a communication vehicle between parents 
and school personnel, and enables them, as equal participants, to make 
joint, informed decisions regarding the (1) child's needs and 
appropriate goals; (2) extent to which the child will be involved in the 
general curriculum and participate in the regular education environment 
and State and district-wide assessments; and (3) services needed to 
support that involvement and participation and to achieve agreed-upon 
goals. Parents are considered equal partners with school personnel in 
making these decisions, and the IEP team must consider the parents' 
concerns and the information that they provide regarding their child in 
developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 
300.346(a)(1) and (b)).
    The IEP team should work toward consensus, but the public agency has 
ultimate responsibility to ensure that the IEP includes the services 
that the child needs in order to receive FAPE. It is not appropriate to 
make IEP decisions based upon a majority ``vote.'' If the team cannot 
reach consensus, the public agency must provide the parents with prior 
written notice of the agency's proposals or refusals, or both, regarding 
the child's educational program, and the parents have the right to seek 
resolution of any disagreements by initiating an impartial due process 
hearing.
    Every effort should be made to resolve differences between parents 
and school staff through voluntary mediation or some other informal 
step, without resort to a due process hearing. However, mediation or 
other informal procedures may not be used to deny or delay a parent's 
right to a due process hearing, or to deny any other rights afforded 
under Part B.
    10. Does Part B require that public agencies inform parents 
regarding the educational progress of their children with disabilities?
    Yes. The Part B statute and regulations include a number of 
provisions to help ensure that parents are involved in decisions 
regarding, and are informed about, their child's educational progress, 
including the child's progress in the general curriculum. First, the 
parents will be informed regarding their child's present levels of 
educational performance through the development of the IEP. Section 
300.347(a)(1) requires that each IEP include:
    * * * A statement of the child's present levels of educational 
performance, including--(i) how the child's disability affects the 
child's involvement and progress in the general curriculum; or (ii) for 
preschool children, as appropriate, how the disability affects the 
child's participation in appropriate activities * * *
    Further, Sec. 300.347(a)(7) sets forth new requirements for 
regularly informing parents about their child's educational progress, as 
regularly as parents of nondisabled children are informed of their 
child's progress. That section requires that the IEP include:
    A statement of--(i) How the child's progress toward the annual goals 
* * * will be measured; and (ii) how the child's parents will be 
regularly informed (by such means as periodic report cards), at least as 
often as parents are informed of their nondisabled children's progress, 
of--(A) their child's progress toward the annual goals; and (B) the 
extent to which that progress is sufficient to enable the child to 
achieve the goals by the end of the year.
    One method that public agencies could use in meeting this 
requirement would be to provide periodic report cards to the parents of 
students with disabilities that include both (1) the grading information 
provided for all children in the agency at the same intervals; and (2) 
the specific information required by Sec. 300.347(a)(7)(ii)(A) and (B).
    Finally, the parents, as part of the IEP team, will participate at 
least once every 12 months in a review of their child's educational 
progress. Section 300.343(c) requires that a public agency initiate and 
conduct a meeting, at which the IEP team:
    * * * (1) Reviews the child's IEP periodically, but not less than 
annually to determine whether the annual goals for the child are being 
achieved; and (2) revises the IEP as appropriate to address--(i) any 
lack of expected progress toward the annual goals * * * and in the 
general curriculum, if appropriate; (ii) The results of any reevaluation 
* * *; (iii) Information about the child provided to, or by, the parents 
* * *; (iv) The child's anticipated needs; or (v) Other matters.

III. Preparing Students With Disabilities for Employment and Other Post-
                           School Experiences

    One of the primary purposes of the IDEA is to ``* * * ensure that 
all children with disabilities have available to them a free appropriate 
public education that emphasizes special education and related services 
designed to meet their unique needs and prepare them for employment and 
independent living * * *'' (Sec. 300.1(a)). Section 701 of the 
Rehabilitation Act of 1973 describes the philosophy of independent 
living as including a philosophy

[[Page 106]]

of consumer control, peer support, self-help, self-determination, equal 
access, and individual and system advocacy, in order to maximize the 
leadership, empowerment, independence, and productivity of individuals 
with disabilities, and the integration and full inclusion of individuals 
with disabilities into the mainstream of American society. Because many 
students receiving services under IDEA will also receive services under 
the Rehabilitation Act, it is important, in planning for their future, 
to consider the impact of both statutes.
    Similarly, one of the key purposes of the IDEA Amendments of 1997 
was to ``promote improved educational results for children with 
disabilities through early intervention, preschool, and educational 
experiences that prepare them for later educational challenges and 
employment.'' (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17, p. 
4 (1997)).
    Thus, throughout their preschool, elementary, and secondary 
education, the IEPs for children with disabilities must, to the extent 
appropriate for each individual child, focus on providing instruction 
and experiences that enable the child to prepare himself or herself for 
later educational experiences and for post-school activities, including 
formal education, if appropriate, employment, and independent living. 
Many students with disabilities will obtain services through State 
vocational rehabilitation programs to ensure that their educational 
goals are effectively implemented in post-school activities. Services 
available through rehabilitation programs are consistent with the 
underlying purpose of IDEA.
    Although preparation for adult life is a key component of FAPE 
throughout the educational experiences of students with disabilities, 
Part B sets forth specific requirements related to transition planning 
and transition services that must be implemented no later than ages 14 
and 16, respectively, and which require an intensified focus on that 
preparation as these students begin and prepare to complete their 
secondary education.
    11. What must the IEP team do to meet the requirements that the IEP 
include ``a statement of * * * transition service needs'' beginning at 
age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of needed transition 
services'' no later than age 16 (Sec. 300.347(b)(2)?
    Section 300.347(b)(1) requires that, beginning no later than age 14, 
each student's IEP include specific transition-related content, and, 
beginning no later than age 16, a statement of needed transition 
services:
    Beginning at age 14 and younger if appropriate, and updated 
annually, each student's IEP must include:

    ``* * * a statement of the transition service needs of the student 
under the applicable components of the student's IEP that focuses on the 
student's courses of study (such as participation in advanced-placement 
courses or a vocational education program)'' (Sec. 300.347(b)(1)(i)).
    Beginning at age 16 (or younger, if determined appropriate by the 
IEP team), each student's IEP must include:

    ``* * * a statement of needed transition services for the student, 
including, if appropriate, a statement of the interagency 
responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)).
    The Committee Reports on the IDEA Amendments of 1997 make clear that 
the requirement added to the statute in 1997 that beginning at age 14, 
and updated annually, the IEP include ``a statement of the transition 
service needs'' is ``* * * designed to augment, and not replace,'' the 
separate, preexisting requirement that the IEP include, ``* * * 
beginning at age 16 (or younger, if determined appropriate by the IEP 
team), a statement of needed transition services * * *'' (H. Rep. No. 
105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)). As clarified 
by the Reports, ``The purpose of [the requirement in 
Sec. 300.347(b)(1)(i)] is to focus attention on how the child's 
educational program can be planned to help the child make a successful 
transition to his or her goals for life after secondary school.'' (H. 
Rep. No. 105-95, pp. 101-102 (1997); S. Rep. No. 105-17, p. 22 (1997)). 
The Reports further explain that ``[F]or example, for a child whose 
transition goal is a job, a transition service could be teaching the 
child how to get to the job site on public transportation.'' (H. Rep. 
No. 105-95, p. 102 (1997); S. Rep. No. 105-17, p. 22 (1997)).
    Thus, beginning at age 14, the IEP team, in determining appropriate 
measurable annual goals (including benchmarks or short-term objectives) 
and services for a student, must determine what instruction and 
educational experiences will assist the student to prepare for 
transition from secondary education to post-secondary life.
    The statement of transition service needs should relate directly to 
the student's goals beyond secondary education, and show how planned 
studies are linked to these goals. For example, a student interested in 
exploring a career in computer science may have a statement of 
transition services needs connected to technology course work, while 
another student's statement of transition services needs could describe 
why public bus transportation training is important for future 
independence in the community.
    Although the focus of the transition planning process may shift as 
the student approaches graduation, the IEP team must discuss specific 
areas beginning at least at the age of 14 years and review these areas 
annually. As noted in the Committee Reports, a disproportionate number 
of students with disabilities drop out of school before they complete 
their secondary education: ``Too many students with disabilities are 
failing courses and dropping out of school. Almost

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twice as many students with disabilities drop out as compared to 
students without disabilities.'' (H. Rep. No. 105-95, p. 85 (1997), S. 
Rep. No. 105-17, p. 5 (1997).)
    To help reduce the number of students with disabilities that drop 
out, it is important that the IEP team work with each student with a 
disability and the student's family to select courses of study that will 
be meaningful to the student's future and motivate the student to 
complete his or her education.
    This requirement is distinct from the requirement, at 
Sec. 300.347(b)(2), that the IEP include:

    * * * beginning at age 16 (or younger, if determined appropriate by 
the IEP team), a statement of needed transition services for the child, 
including, if appropriate, a statement of the interagency 
responsibilities or any needed linkages.
    The term ``transition services'' is defined at Sec. 300.29 to mean:

    * * * a coordinated set of activities for a student with a 
disability that--(1) Is designed within an outcome-oriented process, 
that promotes movement from school to post-school activities, including 
postsecondary education, vocational training, integrated employment 
(including supported employment), continuing and adult education, adult 
services, independent living, or community participation; (2) Is based 
on the individual student's needs, taking into account the student's 
preferences and interests; and (3) Includes--(i) Instruction; (ii) 
Related services; (iii) Community experiences; (iv) The development of 
employment and other post-school adult living objectives; and (v) If 
appropriate, acquisition of daily living skills and functional 
vocational evaluation.
    Thus, while Sec. 300.347(b)(1) requires that the IEP team begin by 
age 14 to address the student's need for instruction that will assist 
the student to prepare for transition, the IEP must include by age 16 a 
statement of needed transition services under Sec. 300.347(b)(2) that 
includes a ``coordinated set of activities * * *, designed within an 
outcome-oriented process, that promotes movement from school to post-
school activities * * *.'' (Sec. 300.29) Section 300.344(b)(3) further 
requires that, in implementing Sec. 300.347(b)(1), public agencies (in 
addition to required participants for all IEP meetings), must also 
invite a representative of any other agency that is likely to be 
responsible for providing or paying for transition services. Thus, 
Sec. 300.347(b)(2) requires a broader focus on coordination of services 
across, and linkages between, agencies beyond the SEA and LEA.
    12. Must the IEP for each student with a disability, beginning no 
later than age 16, include all ``needed transition services,'' as 
identified by the IEP team and consistent with the definition at 
Sec. 300.29, even if an agency other than the public agency will provide 
those services? What is the public agency's responsibility if another 
agency fails to provide agreed-upon transition services?
    Section 300.347(b)(2) requires that the IEP for each child with a 
disability, beginning no later than age 16, or younger if determined 
appropriate by the IEP team, include all ``needed transition services,'' 
as identified by the IEP team and consistent with the definition at 
Sec. 300.29, regardless of whether the public agency or some other 
agency will provide those services. Section 300.347(b)(2) specifically 
requires that the statement of needed transition services include, ``* * 
* if appropriate, a statement of the interagency responsibilities or any 
needed linkages.''
    Further, the IDEA Amendments of 1997 also permit an LEA to use up to 
five percent of the Part B funds it receives in any fiscal year in 
combination with other amounts, which must include amounts other than 
education funds, to develop and implement a coordinated services system. 
These funds may be used for activities such as: (1) linking IEPs under 
Part B and Individualized Family Service Plans (IFSPs) under Part C, 
with Individualized Service Plans developed under multiple Federal and 
State programs, such as Title I of the Rehabilitation Act; and (2) 
developing and implementing interagency financing strategies for the 
provision of services, including transition services under Part B.
    The need to include, as part of a student's IEP, transition services 
to be provided by agencies other than the public agency is contemplated 
by Sec. 300.348(a), which specifies what the public agency must do if 
another agency participating in the development of the statement of 
needed transition services fails to provide a needed transition service 
that it had agreed to provide.
    If an agreed-upon service by another agency is not provided, the 
public agency responsible for the student's education must implement 
alternative strategies to meet the student's needs. This requires that 
the public agency provide the services, or convene an IEP meeting as 
soon as possible to identify alternative strategies to meet the 
transition services objectives, and to revise the IEP accordingly.
    Alternative strategies might include the identification of another 
funding source, referral to another agency, the public agency's 
identification of other district-wide or community resources that it can 
use to meet the student's identified needs appropriately, or a 
combination of these strategies. As emphasized by Sec. 300.348(b), 
however:
    Nothing in [Part B] relieves any participating agency, including a 
State vocational rehabilitation agency, of the responsibility to provide 
or pay for any transition service

[[Page 108]]

that the agency would otherwise provide to students with disabilities 
who meet the eligibility criteria of that agency.
    However, the fact that an agency other than the public agency does 
not fulfill its responsibility does not relieve the public agency of its 
responsibility to ensure that FAPE is available to each student with a 
disability. (Section 300.142(b)(2) specifically requires that if an 
agency other than the LEA fails to provide or pay for a special 
education or related service (which could include a transition service), 
the LEA must, without delay, provide or pay for the service, and may 
then claim reimbursement from the agency that failed to provide or pay 
for the service.)
    13. Under what circumstances must a public agency invite 
representatives from other agencies to an IEP meeting at which a child's 
need for transition services will be considered?
    Section 300.344 requires that, ``In implementing the requirements of 
[Sec. 300.347(b)(1)(ii) requiring a statement of needed transition 
services], the public agency shall also invite a representative of any 
other agency that is likely to be responsible for providing or paying 
for transition services.'' To meet this requirement, the public agency 
must identify all agencies that are ``likely to be responsible for 
providing or paying for transition services'' for each student addressed 
by Sec. 300.347(b)(1), and must invite each of those agencies to the IEP 
meeting; and if an agency invited to send a representative to a meeting 
does not do so, the public agency must take other steps to obtain the 
participation of that agency in the planning of any transition services.
    If, during the course of an IEP meeting, the team identifies 
additional agencies that are ``likely to be responsible for providing or 
paying for transition services'' for the student, the public agency must 
determine how it will meet the requirements of Sec. 300.344.

    IV. Other Questions Regarding the Development and Content of IEPS

    14. For a child with a disability receiving special education for 
the first time, when must an IEP be developed--before or after the child 
begins to receive special education and related services?
    Section 300.342(b)(1) requires that an IEP be ``in effect before 
special education and related services are provided to an eligible child 
* * *'' (Italics added.)
    The appropriate placement for a particular child with a disability 
cannot be determined until after decisions have been made about the 
child's needs and the services that the public agency will provide to 
meet those needs. These decisions must be made at the IEP meeting, and 
it would not be permissible first to place the child and then develop 
the IEP. Therefore, the IEP must be developed before placement. 
(Further, the child's placement must be based, among other factors, on 
the child's IEP.)
    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 a public agency in determining 
the appropriate placement for the child. However, it is essential that 
the temporary placement not become the final placement before the IEP is 
finalized. In order to ensure that this does not happen, the State might 
consider requiring LEAs to take the following actions:
    a. Develop an interim IEP for the child that sets out the specific 
conditions and timelines for the trial placement. (See paragraph c, 
following.)
    b. Ensure that the parents agree to the interim placement before it 
is carried out, and that they are involved throughout the process of 
developing, reviewing, and revising the child's IEP.
    c. Set a specific timeline (e.g., 30 days) for completing the 
evaluation, finalizing the IEP, and determining the appropriate 
placement for the child.
    d. Conduct an IEP meeting at the end of the trial period in order to 
finalize the child's IEP.
    15. Who is responsible for ensuring the development of IEPs for 
children with disabilities served by a public agency other than an LEA?
    The answer as to which public agency has direct responsibility for 
ensuring the development of IEPs for children with disabilities served 
by a public agency other than an LEA will vary from State to State, 
depending upon State law, policy, or practice. The SEA is ultimately 
responsible for ensuring that all Part B requirements, including the IEP 
requirements, are met for eligible children within the State, including 
those children served by a public agency other than an LEA. Thus, the 
SEA must ensure that every eligible child with a disability in the State 
has FAPE available, regardless of which State or local agency is 
responsible for educating the child. (The only exception to this 
responsibility is that the SEA is not responsible for ensuring that FAPE 
is made available to children with disabilities who are convicted as 
adults under State law and incarcerated in adult prisons, if the State 
has assigned that responsibility to a public agency other than the SEA. 
(See Sec. 300.600(d)).
    Although the SEA has flexibility in deciding the best means to meet 
this obligation (e.g., through interagency agreements), the SEA must 
ensure that no eligible child with a disability is denied FAPE due to 
jurisdictional disputes among agencies.
    When an LEA is responsible for the education of a child with a 
disability, the LEA remains responsible for developing the

[[Page 109]]

child's IEP, regardless of the public or private school setting into 
which it places the child.
    16. For a child placed out of State by an educational or non-
educational State or local agency, is the placing or receiving State 
responsible for the child's IEP?
    Regardless of the reason for the placement, the ``placing'' State is 
responsible for ensuring that the child's IEP is developed and that it 
is implemented. The determination of the specific agency in the placing 
State that is responsible for the child's IEP would be based on State 
law, policy, or practice. However, the SEA in the placing State is 
ultimately responsible for ensuring that the child has FAPE available.
    17. If a disabled child has been receiving special education from 
one public agency and transfers to another public agency in the same 
State, must the new public agency develop an IEP before the child can be 
placed in a special education program?
    If a child with a disability moves from one public agency to another 
in the same State, the State and its public agencies have an ongoing 
responsibility to ensure that FAPE is made available to that child. This 
means that if a child moves to another public agency the new agency is 
responsible for ensuring that the child has available special education 
and related services in conformity with an IEP.
    The new public agency must ensure that the child has an IEP in 
effect before the agency can provide special education and related 
services. The new public agency may meet this responsibility by either 
adopting the IEP the former public agency developed for the child or by 
developing a new IEP for the child. (The new public agency is strongly 
encouraged to continue implementing the IEP developed by the former 
public agency, if appropriate, especially if the parents believe their 
child was progressing appropriately under that IEP.)
    Before the child's IEP is finalized, the new public agency may 
provide interim services agreed to by both the parents and the new 
public agency. If the parents and the new public agency are unable to 
agree on an interim IEP and placement, the new public agency must 
implement the old IEP to the extent possible until a new IEP is 
developed and implemented.
    In general, while the new public agency must conduct an IEP meeting, 
it would not be necessary if: (1) A copy of the child's current IEP is 
available; (2) the parents indicate that they are satisfied with the 
current IEP; and (3) the new public agency determines that the current 
IEP is appropriate and can be implemented as written.
    If the child's current IEP is not available, or if either the new 
public agency or the parent believes that it is not appropriate, the new 
public agency must develop a new IEP through appropriate procedures 
within a short time after the child enrolls in the new public agency 
(normally, within one week).
    18. What timelines apply to the development and implementation of an 
initial IEP for a child with a disability?
    Section 300.343(b) requires each public agency to ensure that within 
a reasonable period of time following the agency's receipt of parent 
consent to an initial evaluation of a child, the child is evaluated and, 
if determined eligible, special education and related services are made 
available to the child in accordance with an IEP. The section further 
requires the agency to conduct a meeting to develop an IEP for the child 
within 30 days of determining that the child needs special education and 
related services.
    Section 300.342(b)(2) provides that an IEP must be implemented as 
soon as possible following the meeting in which the IEP is developed.
    19. Must a public agency hold separate meetings to determine a 
child's eligibility for special education and related services, develop 
the child's IEP, and determine the child's placement, or may the agency 
meet all of these requirements in a single meeting?
    A public agency may, after a child is determined by ``a group of 
qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to be 
a child with a disability, continue in the same meeting to develop an 
IEP for the child and then to determine the child's placement. However, 
the public agency must ensure that it meets: (1) the requirements of 
Sec. 300.535 regarding eligibility decisions; (2) all of the Part B 
requirements regarding meetings to develop IEPs (including providing 
appropriate notification to the parents, consistent with the 
requirements of Secs. 300.345, 300.503, and 300.504, and ensuring that 
all the required team members participate in the development of the IEP, 
consistent with the requirements of Sec. 300.344;) and (3) ensuring that 
the placement is made by the required individuals, including the parent, 
as required by Secs. 300.552 and 300.501(c).
    20. How frequently must a public agency conduct meetings to review, 
and, if appropriate, revise the IEP for each child with a disability?
    A public agency must initiate and conduct meetings periodically, but 
at least once every twelve months, to review each child's IEP, in order 
to determine whether the annual goals for the child are being achieved, 
and to revise the IEP, as appropriate, to address: (a) Any lack of 
expected progress toward the annual goals and in the general curriculum, 
if appropriate; (b) the results of any reevaluation; (c) information 
about the child provided to, or by, the parents; (d) the child's 
anticipated needs; or (e) other matters (Sec. 300.343(c)).

[[Page 110]]

    A public agency also must ensure that an IEP is in effect for each 
child at the beginning of each school year (Sec. 300.342(a)). It may 
conduct IEP meetings at any time during the year. However, if the agency 
conducts the IEP meeting prior to the beginning of the next school year, 
it must ensure that the IEP contains the necessary special education and 
related services and supplementary aids and services to ensure that the 
student's IEP can be appropriately implemented during the next school 
year. Otherwise, it would be necessary for the public agency to conduct 
another IEP meeting.
    Although the public agency is responsible for determining when it is 
necessary to conduct an IEP meeting, the parents of a child with a 
disability have the right to request an IEP meeting at any time. For 
example, if the parents believe that the child is not progressing 
satisfactorily or that there is a problem with the child's current IEP, 
it would be appropriate for the parents to request an IEP meeting.
    If a child's teacher feels that the child's IEP or placement is not 
appropriate for the child, the teacher should follow agency procedures 
with respect to: (1) calling or meeting with the parents or (2) 
requesting the agency to hold another IEP meeting to review the child's 
IEP.
    The legislative history of Public Law 94-142 makes it clear that 
there should be as many meetings a year as any one child may need (121 
Cong. Rec. S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)). 
Public agencies should grant any reasonable parent request for an IEP 
meeting. For example, if the parents question the adequacy of services 
that are provided while their child is suspended for short periods of 
time, it would be appropriate to convene an IEP meeting.
    In general, if either a parent or a public agency believes that a 
required component of the student's IEP should be changed, the public 
agency must conduct an IEP meeting if it believes that a change in the 
IEP may be necessary to ensure the provision of FAPE.
    If a parent requests an IEP meeting because the parent believes that 
a change is needed in the provision of FAPE to the child or the 
educational placement of the child, and the agency refuses to convene an 
IEP meeting to determine whether such a change is needed, the agency 
must provide written notice to the parents of the refusal, including an 
explanation of why the agency has determined that conducting the meeting 
is not necessary to ensure the provision of FAPE to the student.
    Under Sec. 300.507(a), the parents or agency may initiate a due 
process hearing at any time regarding any proposal or refusal regarding 
the identification, evaluation, or educational placement of the child, 
or the provision of FAPE to the child, and the public agency must inform 
parents about the availability of mediation.
    21. May IEP meetings be audio- or video-tape-recorded?
    Part B does not address the use of audio or video recording devices 
at IEP meetings, and no other Federal statute either authorizes or 
prohibits the recording of an IEP meeting by either a parent or a school 
official. Therefore, an SEA or public agency has the option to require, 
prohibit, limit, or otherwise regulate the use of recording devices at 
IEP meetings.
    If a public agency has a policy that prohibits or limits the use of 
recording devices at IEP meetings, that policy must provide for 
exceptions if they are necessary to ensure that the parent understands 
the IEP or the IEP process or to implement other parental rights 
guaranteed under Part B. An SEA or school district that adopts a rule 
regulating the tape recording of IEP meetings also should ensure that it 
is uniformly applied.
    Any recording of an IEP meeting that is maintained by the public 
agency is an ``education record,'' within the meaning of the Family 
Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and 
would, therefore, be subject to the confidentiality requirements of the 
regulations under both FERPA (34 CFR part 99) and part B (Secs. 300.560-
300.575).
    Parents wishing to use audio or video recording devices at IEP 
meetings should consult State or local policies for further guidance.
    22. Who can serve as the representative of the public agency at an 
IEP meeting?
    The IEP team must include a representative of the public agency who: 
(a) Is qualified to provide, or supervise the provision of, specially 
designed instruction to meet the unique needs of children with 
disabilities; (b) is knowledgeable about the general curriculum; and (c) 
is knowledgeable about the availability of resources of the public 
agency (Sec. 300.344(a)(4)).
    Each public agency may determine which specific staff member will 
serve as the agency representative in a particular IEP meeting, so long 
as the individual meets these requirements. It is important, however, 
that the agency representative have the authority to commit agency 
resources and be able to ensure that whatever services are set out in 
the IEP will actually be provided.
    A public agency may designate another public agency member of the 
IEP team to also serve as the agency representative, so long as that 
individual meets the requirements of Sec. 300.344(a)(4).
    23. For a child with a disability being considered for initial 
provision of special education and related services, which teacher or 
teachers should attend the IEP meeting?
    A child's IEP team must include at least one of the child's regular 
education teachers

[[Page 111]]

(if the child is, or may be participating in the regular education 
environment) and at least one of the child's special education teachers, 
or, if appropriate, at least one of the child's special education 
providers (Sec. 300.344(a)(2) and (3)).
    Each IEP must include a statement of the present levels of 
educational performance, including a statement of how the child's 
disability affects the child's involvement and progress in the general 
curriculum (Sec. 300.347(a)(1)). At least one regular education teacher 
is a required member of the IEP team of a child who is, or may be, 
participating in the regular educational environment, regardless of the 
extent of that participation.
    The requirements of Sec. 300.344(a)(3) can be met by either: (1) a 
special education teacher of the child; or (2) another special education 
provider of the child, such as a speech pathologist, physical or 
occupational therapist, etc., if the related service consists of 
specially designed instruction and is considered special education under 
applicable State standards.
    Sometimes more than one meeting is necessary in order to finalize a 
child's IEP. In this process, if the special education teacher or 
special education provider who will be working with the child is 
identified, it would be useful to have that teacher or provider 
participate in the meeting with the parents and other members of the IEP 
team in finalizing the IEP. If this is not possible, the public agency 
must ensure that the teacher or provider has access to the child's IEP 
as soon as possible after it is finalized and before beginning to work 
with the child.
    Further, (consistent with Sec. 300.342(b)), the public agency must 
ensure that each regular education teacher, special education teacher, 
related services provider and other service provider of an eligible 
child under this part (1) has access to the child's IEP, and (2) is 
informed of his or her specific responsibilities related to implementing 
the IEP, and of the specific accommodations, modifications, and supports 
that must be provided to the child in accordance with the IEP. This 
requirement is crucial to ensuring that each child receives FAPE in 
accordance with his or her IEP, and that the IEP is appropriately and 
effectively implemented.
    24. What is the role of a regular education teacher in the 
development, review and revision of the IEP for a child who is, or may 
be, participating in the regular education environment?
    As required by Sec. 300.344(a)(2), the IEP team for a child with a 
disability must include at least one regular education teacher of the 
child if the child is, or may be, participating in the regular education 
environment. Section 300.346(d) further specifies that the regular 
education teacher of a child with a disability, as a member of the IEP 
team, must, to the extent appropriate, participate in the development, 
review, and revision of the child's IEP, including assisting in--(1) the 
determination of appropriate positive behavioral interventions and 
strategies for the child; and (2) the determination of supplementary 
aids and services, program modifications, and supports for school 
personnel that will be provided for the child, consistent with 
300.347(a)(3) (Sec. 300.344(d)).
    Thus, while a regular education teacher must be a member of the IEP 
team if the child is, or may be, participating in the regular education 
environment, the teacher need not (depending upon the child's needs and 
the purpose of the specific IEP team meeting) be required to participate 
in all decisions made as part of the meeting or to be present throughout 
the entire meeting or attend every meeting. For example, the regular 
education teacher who is a member of the IEP team must participate in 
discussions and decisions about how to modify the general curriculum in 
the regular classroom to ensure the child's involvement and progress in 
the general curriculum and participation in the regular education 
environment.
    Depending upon the specific circumstances, however, it may not be 
necessary for the regular education teacher to participate in 
discussions and decisions regarding, for example, the physical therapy 
needs of the child, if the teacher is not responsible for implementing 
that portion of the child's IEP.
    In determining the extent of the regular education teacher's 
participation at IEP meetings, public agencies and parents should 
discuss and try to reach agreement on whether the child's regular 
education teacher that is a member of the IEP team should be present at 
a particular IEP meeting and, if so, for what period of time. The extent 
to which it would be appropriate for the regular education teacher 
member of the IEP team to participate in IEP meetings must be decided on 
a case-by-case basis.
    25. If a child with a disability attends several regular classes, 
must all of the child's regular education teachers be members of the 
child's IEP team?
    No. The IEP team need not include more than one regular education 
teacher of the child. If the participation of more than one regular 
education teacher would be beneficial to the child's success in school 
(e.g., in terms of enhancing the child's participation in the general 
curriculum), it would be appropriate for them to attend the meeting.
    26. How should a public agency determine which regular education 
teacher and special education teacher will be members of the IEP team 
for a particular child with a disability?
    The regular education teacher who serves as a member of a child's 
IEP team should be a teacher who is, or may be, responsible for

[[Page 112]]

implementing a portion of the IEP, so that the teacher can participate 
in discussions about how best to teach the child.
    If the child has more than one regular education teacher responsible 
for carrying out a portion of the IEP, the LEA may designate which 
teacher or teachers will serve as IEP team member(s), taking into 
account the best interest of the child.
    In a situation in which not all of the child's regular education 
teachers are members of the child's IEP team, the LEA is strongly 
encouraged to seek input from the teachers who will not be attending. In 
addition, (consistent with Sec. 300.342(b)), the LEA must ensure that 
each regular education teacher (as well as each special education 
teacher, related services provider, and other service provider) of an 
eligible child under this part (1) has access to the child's IEP, and 
(2) is informed of his or her specific responsibilities related to 
implementing the IEP, and of the specific accommodations, modifications 
and supports that must be provided to the child in accordance with the 
IEP.
    In the case of a child whose behavior impedes the learning of the 
child or others, the LEA is encouraged to have a regular education 
teacher or other person knowledgeable about positive behavior strategies 
at the IEP meeting. This is especially important if the regular 
education teacher is expected to carry out portions of the IEP.
    Similarly, the special education teacher or provider of the child 
who is a member of the child's IEP team should be the person who is, or 
will be, responsible for implementing the IEP. If, for example, the 
child's disability is a speech impairment, the special education teacher 
on the IEP team could be the speech-language pathologist.
    27. For a child whose primary disability is a speech impairment, may 
a public agency meet its responsibility under Sec. 300.344(a)(3) to 
ensure that the IEP team includes ``at least one special education 
teacher, or, if appropriate, at least one special education provider of 
the child'' by including a speech-language pathologist on the IEP team?
    Yes, if speech is considered special education under State 
standards. As with other children with disabilities, the IEP team must 
also include at least one of the child's regular education teachers if 
the child is, or may be, participating in the regular education 
environment.
    28. Do parents and public agencies have the option of inviting any 
individual of their choice be participants on their child's IEP team?
    The IEP team may, at the discretion of the parent or the agency, 
include ``other individuals who have knowledge or special expertise 
regarding the child * * *'' (Sec. 300.344(a)(6), italics added). Under 
Sec. 300.344(a)(6), these individuals are members of the IEP team. This 
is a change from prior law, which provided, without qualification, that 
parents or agencies could have other individuals as members of the IEP 
team at the discretion of the parents or agency.
    Under Sec. 300.344(c), the determination as to whether an individual 
has knowledge or special expertise, within the meaning of 
Sec. 300.344(a)(6), shall be made by the parent or public agency who has 
invited the individual to be a member of the IEP team.
    Part B does not provide for including individuals such as 
representatives of teacher organizations as part of an IEP team, unless 
they are included because of knowledge or special expertise regarding 
the child. (Because a representative of a teacher organization would 
generally be concerned with the interests of the teacher rather than the 
interests of the child, and generally would not possess knowledge or 
expertise regarding the child, it generally would be inappropriate for 
such an official to be a member of the IEP team or to otherwise 
participate in an IEP meeting.)
    29. Can parents or public agencies bring their attorneys to IEP 
meetings, and, if so under what circumstances? Are attorney's fees 
available for parents' attorneys if the parents are prevailing parties 
in actions or proceedings brought under Part B?
    Section 300.344(a)(6) authorizes the addition to the IEP team of 
other individuals at the discretion of the parent or the public agency 
only if those other individuals have knowledge or special expertise 
regarding the child. The determination of whether an attorney possesses 
knowledge or special expertise regarding the child would have to be made 
on a case-by-case basis by the parent or public agency inviting the 
attorney to be a member of the team.
    The presence of the agency's attorney could contribute to a 
potentially adversarial atmosphere at the meeting. The same is true with 
regard to the presence of an attorney accompanying the parents at the 
IEP meeting. Even if the attorney possessed knowledge or special 
expertise regarding the child (Sec. 300.344(a)(6)), an attorney's 
presence would have the potential for creating an adversarial atmosphere 
that would not necessarily be in the best interests of the child.
    Therefore, the attendance of attorneys at IEP meetings should be 
strongly discouraged. Further, as specified in Section 615(i)(3)(D)(ii) 
of the Act and Sec. 300.513(c)(2)(ii), Attorneys' fees may not be 
awarded relating to any meeting of the IEP team unless the meeting is 
convened as a result of an administrative proceeding or judicial action, 
or, at the discretion of the State, for a mediation conducted prior to 
the request for a due process hearing.
    30. Must related services personnel attend IEP meetings?

[[Page 113]]

    Although Part B does not expressly require that the IEP team include 
related services personnel as part of the IEP team (Sec. 300.344(a)), it 
is appropriate for those persons to be included if a particular related 
service is to be discussed as part of the IEP meeting. Section 
300.344(a)(6) provides that the IEP team also includes ``at the 
discretion of the parent or the agency, other individuals who have 
knowledge or special expertise regarding the child, including related 
services personnel as appropriate. * * *'' (Italics added.)
    Further, Sec. 300.344(a)(3) requires that the IEP team for each 
child with a disability include ``at least one special education 
teacher, or, if appropriate, at least one special education provider of 
the child * * *'' This requirement can be met by the participation of 
either (1) a special education teacher of the child, or (2) another 
special education provider such as a speech-language pathologist, 
physical or occupational therapist, etc., if the related service 
consists of specially designed instruction and is considered special 
education under the applicable State standard.
    If a child with a disability has an identified need for related 
services, it would be appropriate for the related services personnel to 
attend the meeting or otherwise be involved in developing the IEP. As 
explained in the Committee Reports on the IDEA Amendments of 1997, 
``Related services personnel should be included on the team when a 
particular related service will be discussed at the request of the 
child's parents or the school.'' (H. Rep. No. 105-95, p. 103 (1997); S. 
Rep. No. 105-17, p. 23 (1997)). For example, if the child's evaluation 
indicates the need for a specific related service (e.g., physical 
therapy, occupational therapy, special transportation services, school 
social work services, school health services, or counseling), the agency 
should ensure that a qualified provider of that service either (1) 
attends the IEP meeting, or (2) provides a written recommendation 
concerning the nature, frequency, and amount of service to be provided 
to the child. This written recommendation could be a part of the 
evaluation report.
    A public agency must ensure that all individuals who are necessary 
to develop an IEP that will meet the child's unique needs, and ensure 
the provision of FAPE to the child, participate in the child's IEP 
meeting.
    31. Must the public agency ensure that all services specified in a 
child's IEP are provided?
    Yes. The public agency must ensure that all services set forth in 
the child's IEP are provided, consistent with the child's needs as 
identified in the IEP. The agency may provide each of those services 
directly, through its own staff resources; indirectly, by contracting 
with another public or private agency; or through other arrangements. In 
providing the services, the agency may use whatever State, local, 
Federal, and private sources of support are available for those purposes 
(see Sec. 300.301(a)); but the services must be at no cost to the 
parents, and the public agency remains responsible for ensuring that the 
IEP services are provided in a manner that appropriately meets the 
student's needs as specified in the IEP. The SEA and responsible public 
agency may not allow the failure of another agency to provide service(s) 
described in the child's IEP to deny or delay the provision of FAPE to 
the child. (See Sec. 300.142, Methods of ensuring services.)
    32. Is it permissible for an agency to have the IEP completed before 
the IEP meeting begins?
    No. Agency staff may come to an IEP meeting prepared with evaluation 
findings and proposed recommendations regarding IEP content, but the 
agency must make it clear to the parents at the outset of the meeting 
that the services proposed by the agency are only recommendations for 
review and discussion with the parents. Parents have the right to bring 
questions, concerns, and recommendations to an IEP meeting as part of a 
full discussion, of the child's needs and the services to be provided to 
meet those needs before the IEP is finalized.
    Public agencies must ensure that, if agency personnel bring drafts 
of some or all of the IEP content to the IEP meeting, there is a full 
discussion with the child's parents, before the child's IEP is 
finalized, regarding drafted content and the child's needs and the 
services to be provided to meet those needs.
    33. Must a public agency include transportation in a child's IEP as 
a related service?
    As with other related services, a public agency must provide 
transportation as a related service if it is required to assist the 
disabled child to benefit from special education. (This includes 
transporting a preschool-aged child to the site at which the public 
agency provides special education and related services to the child, if 
that site is different from the site at which the child receives other 
preschool or day care services.)
    In determining whether to include transportation in a child's IEP, 
and whether the child needs to receive transportation as a related 
service, it would be appropriate to have at the IEP meeting a person 
with expertise in that area. In making this determination, the IEP team 
must consider how the child's disability affects the child's need for 
transportation, including determining whether the child's disability 
prevents the child from using the same transportation provided to 
nondisabled children, or from getting to school in the same manner as 
nondisabled children.
    The public agency must ensure that any transportation service 
included in a child's IEP as a related service is provided at public 
expense and at no cost to the parents, and

[[Page 114]]

that the child's IEP describes the transportation arrangement.
    Even if a child's IEP team determines that the child does not 
require transportation as a related service, Section 504 of the 
Rehabilitation Act of 1973, as amended, requires that the child receive 
the same transportation provided to nondisabled children. If a public 
agency transports nondisabled children, it must transport disabled 
children under the same terms and conditions. However, if a child's IEP 
team determines that the child does not need transportation as a related 
service, and the public agency transports only those children whose IEPs 
specify transportation as a related service, and does not transport 
nondisabled children, the public agency would not be required to provide 
transportation to a disabled child.
    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.
    34. Must a public agency provide related services that are required 
to assist a child with a disability to benefit from special education, 
whether or not those services are included in the list of related 
services in Sec. 300.24?
    The list of related services is not exhaustive and may include other 
developmental, corrective, or supportive services if they are required 
to assist a child with a disability to benefit from special education. 
This could, depending upon the unique needs of a child, include such 
services as nutritional services or service coordination.
    These determinations must be made on an individual basis by each 
child's IEP team.
    35. Must the IEP specify the amount of services or may it simply 
list the services to be provided?
    The amount of services to be provided must be stated in the IEP, so 
that the level of the agency's commitment of resources will be clear to 
parents and other IEP team members (Sec. 300.347(a)(6)). The amount of 
time to be committed to each of the various services to be provided must 
be (1) appropriate to the specific service, and (2) stated in the IEP in 
a manner that is clear to all who are involved in both the development 
and implementation of the IEP.
    The amount of a special education or related service to be provided 
to a child may be stated in the IEP as a range (e.g., speech therapy to 
be provided three times per week for 30-45 minutes per session) only if 
the IEP team determines that stating the amount of services as a range 
is necessary to meet the unique needs of the child. For example, it 
would be appropriate for the IEP to specify, based upon the IEP team's 
determination of the student's unique needs, that particular services 
are needed only under specific circumstances, such as the occurrence of 
a seizure or of a particular behavior. A range may not be used because 
of personnel shortages or uncertainty regarding the availability of 
staff.
    36. Under what circumstances is a public agency required to permit a 
child with a disability to use a school-purchased assistive technology 
device in the child's home or in another setting?
    Each child's IEP team must consider the child's need for assistive 
technology (AT) in the development of the child's IEP 
(Sec. 300.346(a)(2)(v)); and the nature and extent of the AT devices and 
services to be provided to the child must be reflected in the child's 
IEP (Sec. 300.346(c)).
    A public agency must permit a child to use school-purchased 
assistive technology devices at home or in other settings, if the IEP 
team determines that the child needs access to those devices in 
nonschool settings in order to receive FAPE (to complete homework, for 
example).
    Any assistive technology devices that are necessary to ensure FAPE 
must be provided at no cost to the parents, and the parents cannot be 
charged for normal use, wear and tear. However, while ownership of the 
devices in these circumstances would remain with the public agency, 
State law, rather than Part B, generally would govern whether parents 
are liable for loss, theft, or damage due to negligence or misuse of 
publicly owned equipment used at home or in other settings in accordance 
with a child's IEP.
    37. Can the IEP team also function as the group making the placement 
decision for a child with a disability?
    Yes, a public agency may use the IEP team to make the placement 
decision for a child, so long as the group making the placement decision 
meets the requirements of Secs. 300.552 and 300.501(c), which requires 
that the placement decision be made by a group of persons, including the 
parents, and other persons knowledgeable about the child, the meaning of 
the evaluation data, and the placement options.
    38. If a child's IEP includes behavioral strategies to address a 
particular behavior, can a child ever be suspended for engaging in that 
behavior?
    If a child's behavior impedes his or her learning or that of others, 
the IEP team, in developing the child's IEP, must consider, if 
appropriate, development of strategies, including positive behavioral 
interventions, strategies and supports to address that behavior, 
consistent with Sec. 300.346(a)(2)(i). This means that in most cases in 
which a child's behavior that impedes his or her learning or that of 
others is, or can be readily anticipated to be, repetitive, proper 
development

[[Page 115]]

of the child's IEP will include the development of strategies, including 
positive behavioral interventions, strategies and supports to address 
that behavior. See Sec. 300.346(c). This includes behavior that could 
violate a school code of conduct. A failure to, if appropriate, consider 
and address these behaviors in developing and implementing the child's 
IEP would constitute a denial of FAPE to the child. Of course, in 
appropriate circumstances, the IEP team, which includes the child's 
parents, might determine that the child's behavioral intervention plan 
includes specific regular or alternative disciplinary measures, such as 
denial of certain privileges or short suspensions, that would result 
from particular infractions of school rules, along with positive 
behavior intervention strategies and supports, as a part of a 
comprehensive plan to address the child's behavior. Of course, if short 
suspensions that are included in a child's IEP are being implemented in 
a manner that denies the child access to the ability to progress in the 
educational program, the child would be denied FAPE.
    Whether other disciplinary measures, including suspension, are ever 
appropriate for behavior that is addressed in a child's IEP will have to 
be determined on a case by case basis in light of the particular 
circumstances of that incident. However, school personnel may not use 
their ability to suspend a child for 10 days or less at a time on 
multiple occasions in a school year as a means of avoiding appropriately 
considering and addressing the child's behavior as a part of providing 
FAPE to the child.
    39. If a child's behavior in the regular classroom, even with 
appropriate interventions, would significantly impair the learning of 
others, can the group that makes the placement decision determine that 
placement in the regular classroom is inappropriate for that child?
    The IEP team, in developing the IEP, is required to consider, when 
appropriate, strategies, including positive behavioral interventions, 
strategies and supports to address the behavior of a child with a 
disability whose behavior impedes his or her learning or that of others. 
If the IEP team determines that such supports, strategies or 
interventions are necessary to address the behavior of the child, those 
services must be included in the child's IEP. These provisions are 
designed to foster increased participation of children with disabilities 
in regular education environments or other less restrictive 
environments, not to serve as a basis for placing children with 
disabilities in more restrictive settings.
    The determination of appropriate placement for a child whose 
behavior is interfering with the education of others requires careful 
consideration of whether the child can appropriately function in the 
regular classroom if provided appropriate behavioral supports, 
strategies and interventions. If the child can appropriately function in 
the regular classroom with appropriate behavioral supports, strategies 
or interventions, placement in a more restrictive environment would be 
inconsistent with the least restrictive environment provisions of the 
IDEA. If the child's behavior in the regular classroom, even with the 
provision of appropriate behavioral supports, strategies or 
interventions, would significantly impair the learning of others, that 
placement would not meet his or her needs and would not be appropriate 
for that child.
    40. May school personnel during a school year implement more than 
one short-term removal of a child with disabilities from his or her 
classroom or school for misconduct?
    Yes. Under Sec. 300.520(a)(1), school personnel may order removal of 
a child with a disability from the child's current placement for not 
more than 10 consecutive school days for any violation of school rules, 
and additional removals of not more than 10 consecutive school days in 
that same school year for separate incidents of misconduct, as long as 
these removals do not constitute a change of placement under 
Sec. 300.519(b). However, these removals are permitted only to the 
extent they are consistent with discipline that is applied to children 
without disabilities. Also, school personnel should be aware of 
constitutional due process protections that apply to suspensions of all 
children. Goss v. Lopez, 419 U.S. 565 (1975). Section 300.121(d) 
addresses the extent of the obligation to provide services after a child 
with a disability has been removed from his or her current placement for 
more than 10 school days in the same school year.

Appendix B to Part 300--Index for IDEA--Part B Regulations (34 CFR Part 
                                  300)

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[64 FR 34049, June 24, 1999]



PART 301--PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES--Table of Contents




                           Subpart A--General

Sec.
301.1  Purpose of the Preschool Grants for Children With Disabilities 
          program.
301.2-301.3  [Reserved]

[[Page 168]]

301.4  Applicable regulations.
301.5  Applicable definitions.
301.6  Applicability of part C of the Act to 2-year-old children with 
          disabilities.

                Subpart B--State Eligibility for a Grant

301.10  Eligibility of a State to receive a grant.
301.11  [Reserved]
301.12  Sanctions if a State does not make a free appropriate public 
          education available to all preschool children with 
          disabilities.

               Subpart C--Allocations of Funds to a States

301.20  Allocations to States.
301.21  Increase in funds.
301.22  Limitation.
301.23  Decrease in funds.
301.24  State-level activities.
301.25  Use of funds for State administration.
301.26  Use of State agency allocations.

      Subpart D--Allocation of Funds to Local Educational Agencies

301.30  Subgrants to local educational agencies.
301.31  Allocations to local educational agencies.
301.32  Reallocation of local educational agency funds.

    Authority: 20 U.S.C. 1419, unless otherwise noted.

    Source: 63 FR 29930, June 1, 1998, unless otherwise noted.



                           Subpart A--General



Sec. 301.1  Purpose of the Preschool Grants for Children With Disabilities program.

    The purpose of the Preschool Grants for Children With Disabilities 
program (Preschool Grants program) is to provide grants to States to 
assist them in providing special education and related services--
    (a) To children with disabilities aged three through five years; and
    (b) At a State's discretion, to two-year-old children with 
disabilities who will turn three during the school year.

(Authority: 20 U.S.C. 1419(a))



Secs. 301.2-301.3  [Reserved]



Sec. 301.4  Applicable regulations.

    The following regulations apply to the Preschool Grants program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) in title 34 of the Code of Federal Regulations--
    (1) Part 76 (State-Administered Programs) except Secs. 76.125-76.137 
and 76.650-76.662;
    (2) Part 77 (Definitions that Apply to Department Regulations);
    (3) Part 79 (Intergovernmental Review of Department of Education 
Programs and Activities);
    (4) Part 80 (Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments);
    (5) Part 81 (General Education Provision Act--Enforcement);
    (6) Part 82 (New Restrictions on Lobbying); and
    (7) Part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for a Drug-Free 
Workplace (Grants)).
    (b) The regulations in this part 301.
    (c) The regulations in 34 CFR part 300.

(Authority: 20 U.S.C. 1419)



Sec. 301.5  Applicable definitions.

    (a) Definitions in EDGAR. The following terms used in this part are 
defined in 34 CFR 77.1:

Applicant
Application
Award
EDGAR
Fiscal year
Grant period
Secretary
Subgrant

    (b) Other definitions. The following definitions also apply to this 
part:
    Act means the Individuals with Disabilities Education Act, as 
amended.
    Part B child count means the child count required by section 
611(d)(2) of the Act.
    Preschool means the age range of 3 through 5 years.
    State means each of the 50 States, the District of Columbia, and the 
Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1402, 1419)



Sec. 301.6  Applicability of part C of the Act to 2-year-old children with disabilities.

    Part C of the Act does not apply to any child with disabilities 
receiving a free appropriate public education, in

[[Page 169]]

accordance with part B of the Act, with funds received under the 
Preschool Grants program.

(Authority: 20 U.S.C. 1419(h))



                Subpart B--State Eligibility for a Grant.



Sec. 301.10  Eligibility of a State to receive a grant.

    A State is eligible to receive a grant if--
    (a) The State is eligible under 34 CFR part 300; and
    (b) The State demonstrates to the satisfaction of the Secretary that 
it has in effect policies and procedures that assure the provision of a 
free appropriate public education--
    (1) For all children with disabilities aged 3 through 5 years in 
accordance with the requirements in 34 CFR part 300; and
    (2) For any 2-year-old children, provided services by the SEA or by 
an LEA or ESA under Sec. 301.1.

(Approved by the Office of Management and Budget under control number 
1820-0030)

(Authority: 20 U.S.C. 1419 (a), (b))



Sec. 301.11  [Reserved]



Sec. 301.12  Sanctions if a State does not make a free appropriate public education available to all preschool children with disabilities.

    If a State does not meet the requirements in section 619(b) of the 
Act--
    (a) The State is not eligible for a grant under the Preschool Grant 
program;
    (b) The State is not eligible for funds under 34 CFR part 300 for 
children with disabilities aged 3 through 5 years; and
    (c) No SEA, LEA, ESA, or other public institution or agency within 
the State is eligible for a grant under Subpart 2 of part D of the Act 
if the grant relates exclusively to programs, projects, and activities 
pertaining to children with disabilities aged 3 through 5 years.

(Authority: 20 U.S.C. 1411(d)(2) and (e)(2)(B); 1419(b); 1461(j))



                Subpart C--Allocation of Funds to States.



Sec. 301.20  Allocations to States.

    After reserving funds for studies and evaluations under section 
674(e) of the Act, the Secretary allocates the remaining amount among 
the States in accordance with Secs. 301.21-301.23.

(Authority: 20 U.S.C. 1419(c)(1))



Sec. 301.21  Increase in funds.

    If the amount available for allocation to States under Sec. 301.20 
is equal to or greater than the amount allocated to the States under 
section 619 of the Act for the preceding fiscal year, those allocations 
are calculated as follows:
    (a) Except as provided in Sec. 301.22, the Secretary--
    (1) Allocates to each State the amount it received for fiscal year 
1997;
    (2) Allocates 85 percent of any remaining funds to States on the 
basis of their relative populations of children aged 3 through 5; and
    (3) Allocates 15 percent of those remaining funds to States on the 
basis of their relative populations of children described in paragraph 
(a)(2) of this section who are living in poverty.
    (b) For the purpose of making grants under this section, the 
Secretary uses the most recent population data, including data on 
children living in poverty, that are available and satisfactory to the 
Secretary.

(Authority: 20 U.S.C. 1419(c)(2)(A))



Sec. 301.22  Limitation.

    (a) Notwithstanding Sec. 301.21, allocations under that section are 
subject to the following:
    (1) No State's allocation may be less than its allocation for the 
preceding fiscal year.
    (2) No State's allocation may be less than the greatest of--
    (i) The sum of--
    (A) The amount it received for fiscal year 1997; and
    (B) One-third of one percent of the amount by which the amount 
appropriated under section 619(j) of the Act exceeds the amount 
appropriated under section 619 of the Act for fiscal year 1997;
    (ii) The sum of--

[[Page 170]]

    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by the percentage by which the increase 
in the funds appropriated from the preceding fiscal year exceeds 1.5 
percent; or
    (iii) The sum of--
    (A) The amount it received for the preceding fiscal year; and
    (B) That amount multiplied by 90 percent of the percentage increase 
in the amount appropriated from the preceding fiscal year.
    (b) Notwithstanding paragraph (a)(2) of this section, no State's 
allocation under Sec. 301.21 may exceed the sum of--
    (1) The amount it received for the preceding fiscal year; and
    (2) That amount multiplied by the sum of 1.5 percent and the 
percentage increase in the amount appropriated.
    (c) If the amount available for allocation to States under 
Sec. 301.21 and paragraphs (a) and (b) of this section is insufficient 
to pay those allocations in full, the Secretary ratably reduces those 
allocations, subject to paragraph (a)(1) of this section.

(Authority: 20 U.S.C. 1419(c)(2)(B) and (C))



Sec. 301.23  Decrease in funds.

    If the amount available for allocations to States under Sec. 301.20 
is less than the amount allocated to the States under section 619 of the 
Act for the preceding fiscal year, those allocations are calculated as 
follows:
    (a) If the amount available for allocations is greater than the 
amount allocated to the States for fiscal year 1997, each State is 
allocated the sum of--
    (1) The amount it received for fiscal year 1997; and
    (2) An amount that bears the same relation to any remaining funds as 
the increase the State received for the preceding fiscal year over 
fiscal year 1997 bears to the total of those increases for all States.
    (b)(1) If the amount available for allocations is equal to the 
amount allocated to the States for fiscal year 1997, each State is 
allocated the amount it received for that year.
    (2) If the amount available is less than the amount allocated to 
States for fiscal year 1997, the Secretary allocates amounts equal to 
the allocations for fiscal year 1997, ratably reduced.

(Authority: 20 U.S.C. 1419(c)(3))



Sec. 301.24  State-level activities.

    (a) Each State may retain not more than the amount described in 
paragraph (b) of this section for administration and other State-level 
activities in accordance with Secs. 301.25 and 301.26.
    (b) For each fiscal year, the Secretary determines and reports to 
the SEA an amount that is 25 percent of the amount the State received 
under section 619 of the Act for fiscal year 1997, cumulatively adjusted 
by the Secretary for each succeeding fiscal year by the lesser of--
    (1) The percentage increase, if any, from the preceding fiscal year 
in the State's allocation under section 619 of the Act; or
    (2) The rate of inflation, as measured by the percentage increase, 
if any, from the preceding fiscal year in the Consumer Price Index For 
All Urban Consumers, published by the Bureau of Labor Statistics of the 
Department of Labor.

(Authority: 20 U.S.C. 1419(d))



Sec. 301.25  Use of funds for State administration.

    (a) For the purpose of administering section 619 of the Act 
(including the coordination of activities under Part B of the Act with, 
and providing technical assistance to, other programs that provide 
services to children with disabilities), each State may use not more 
than twenty percent of the maximum amount it may retain under 
Sec. 301.24 for any fiscal year.
    (b) Funds described in paragraph (a) of this section may also be 
used for the administration of part C of the Act, if the SEA is the lead 
agency for the State under that part.

(Authority: 20 U.S.C. 1419(e))



Sec. 301.26  Use of State agency allocations.

    Each State shall use any funds it retains under Sec. 301.24 and does 
not use for administration under Sec. 301.25 for any of the following:

[[Page 171]]

    (a) Support services (including establishing and implementing the 
mediation process required by section 615(e) of the Act), which may 
benefit children with disabilities younger than 3 or older than 5 as 
long as those services also benefit children with disabilities aged 3 
through 5.
    (b) Direct services for children eligible for services under section 
619 of the Act.
    (c) Developing a State improvement plan under subpart 1 of part D of 
the Act.
    (d) Activities at the State and local levels to meet the performance 
goals established by the State under section 612(a)(16) of the Act and 
to support implementation of the State improvement plan under subpart 1 
of part D of the Act if the State receives funds under that subpart.
    (e) Supplementing other funds used to develop and implement a 
Statewide coordinated services system designed to improve results for 
children and families, including children with disabilities and their 
families, but not to exceed one percent of the amount received by the 
State under section 619 of the Act for a fiscal year.

(Authority: 20 U.S.C. 1419(f))



      Subpart D--Allocation of funds to local educational agencies.



Sec. 301.30  Subgrants to local educational agencies.

    Each State that receives a grant under section 619 of the Act for 
any fiscal year shall distribute any funds it does not retain under 
Sec. 301.24 to local educational agencies in the State that have 
established their eligibility under section 613 of the Act.

(Authority: 20 U.S.C. 1419(g)(1))



Sec. 301.31  Allocations to local educational agencies.

    (a) Base payments. The State shall first award each agency described 
in Sec. 301.30 the amount that agency would have received under section 
619 of the Act for fiscal year 1997 if the State had distributed 75 
percent of its grant for that year under section 619(c)(3), as then in 
effect.
    (b) Base payment adjustments. For fiscal year 1998 and beyond--
    (1) If a new LEA is created, the State shall divide the base 
allocation determined under paragraph (a) of this section for the LEAs 
that would have been responsible for serving children with disabilities 
now being served by the new LEA, among the new LEA and affected LEAs 
based on the relative numbers of children with disabilities ages 3 
through 5 currently provided special education by each of the LEAs;
    (2) If one or more LEAs are combined into a single new LEA, the 
State shall combine the base allocations of the merged LEAs; and
    (3) If for two or more LEAs, geographic boundaries or administrative 
responsibility for providing services to children with disabilities ages 
3 through 5 changes, the base allocations of affected LEAs shall be 
redistributed among affected LEAs based on the relative numbers of 
children with disabilities ages 3 through 5 currently provided special 
education by each affected LEA.
    (c) Allocation of remaining funds. After making allocations under 
paragraph (a) of this section, the State shall--
    (1) Allocate 85 percent of any remaining funds to those agencies on 
the basis of the relative numbers of children enrolled in public and 
private elementary and secondary schools within the agency's 
jurisdiction; and
    (2) Allocate 15 percent of those remaining funds to those agencies 
in accordance with their relative numbers of children living in poverty, 
as determined by the SEA.
    (3) For the purpose of making grants under this section, States must 
apply on a uniform basis across all LEAs the best data that are 
available to them on the numbers of children enrolled in public and 
private elementary and secondary schools and the numbers of children 
living in poverty.

(Authority: 20 U.S.C. 1419(g)(1))



Sec. 301.32  Reallocation of local education agency funds.

    (a) If a SEA determines that an LEA is adequately providing a free 
appropriate public education to all children with disabilities aged 3 
through 5 residing in the area served by that agency

[[Page 172]]

with State and local funds, the SEA may reallocate any portion of the 
funds under section 619 of the Act that are not needed by that local 
agency to provide a free appropriate public education to other local 
educational agencies in the State that are not adequately providing 
special education and related services to all children with disabilities 
aged 3 through 5 residing in the areas they serve.
    (b) If a State provides services to preschool children with 
disabilities because some or all LEAs and ESAs are unable or unwilling 
to provide appropriate programs, the SEA may use payments that would 
have been available to those LEAs or ESAs to provide special education 
and related services to children with disabilities aged 3 through 5 
years, and to two-year-old children with disabilities receiving services 
consistent with Sec. 301.1 who are residing in the area served by those 
LEAs and ESAs.

(Authority: 20 U.S.C. 1414(d), 1419(g)(2))



PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH DISABILITIES--Table of Contents




                           Subpart A--General

           Purpose, Eligibility, and Other General Provisions

Sec.
303.1  Purpose of the early intervention program for infants and 
          toddlers with disabilities.
303.2  Eligible recipients of an award.
303.3  Activities that may be supported under this part.
303.4  Limitation on eligible children.
303.5  Applicable regulations.

                               Definitions

303.6  Act.
303.7  Children.
303.8  Council.
303.9  Days.
303.10  Developmental delay.
303.11  Early intervention program.
303.12  Early intervention services.
303.13  Health services.
303.14  IFSP.
303.15  Include; including.
303.16  Infants and toddlers with disabilities.
303.17  Multidisciplinary.
303.18  Natural environments.
303.19  Parent.
303.20  Policies.
303.21  Public agency.
303.22  Qualified.
303.23  Service coordination (case management).
303.24  State.
303.25  EDGAR definitions that apply.

                Subpart B--State Application for a Grant

                          General Requirements

303.100  Conditions of assistance.
303.101  How the Secretary disapproves a State's application or 
          statement of assurances.

                          Public Participation

303.110  General requirements and timelines for public participation.
303.111  Notice of public hearings and opportunity to comment.
303.112  Public hearings.
303.113  Reviewing public comments received.

                         Statement of Assurances

303.120  General.
303.121  Reports and records.
303.122  Control of funds and property.
303.123  Prohibition against commingling.
303.124  Prohibition against supplanting.
303.125  Fiscal control.
303.126  Payor of last resort.
303.127  Assurance regarding expenditure of funds.
303.128  Traditionally underserved groups.

              General Requirements for a State Application

303.140  General.
303.141  Information about the Council.
303.142  Designation of lead agency.
303.143  Designation regarding financial responsibility.
303.144  Assurance regarding use of funds.
303.145  Description of use of funds.
303.146  Information about public participation.
303.147  Service to all geographic areas.
303.148  Transition to preschool programs.

       Components of a Statewide System--Application Requirements

303.160  Minimum components of a statewide system.
303.161  State definition of developmental delay.
303.162  Central directory.
303.163  [Reserved]
303.164  Public awareness program.
303.165  Comprehensive child find system.
303.166  Evaluation, assessment, and non-discriminatory procedures.
303.167  Individualized family service plans.
303.168  Comprehensive system of personnel development (CSPD).
303.169  Personnel standards.

[[Page 173]]

303.170  Procedural safeguards.
303.171  Supervision and monitoring of programs.
303.172  Lead agency procedures for resolving complaints.
303.173  Policies and procedures related to financial matters.
303.174  Interagency agreements; resolution of individual disputes.
303.175  Policy for contracting or otherwise arranging for services.
303.176  Data collection.

             Participation by the Secretary of the Interior

303.180  Payments to the Secretary of the Interior for Indian tribes and 
          tribal organizations.

            Subpart C--Procedures for Making Grants to States

303.200  Formula for State allocations.
303.201  Distribution of allotments from non-participating States.
303.202  Minimum grant that a State may receive.
303.203  Payments to the Secretary of the Interior.
303.204  Payments to the jurisdictions.

Subpart D--Program and Service Components of a Statewide System of Early 
                          Intervention Services

                                 General

303.300  State eligibility criteria and procedures.
303.301  Central directory.

                      Identification and Evaluation

303.320  Public awareness program.
303.321  Comprehensive child find system.
303.322  Evaluation and assessment.
303.323  Non-discriminatory procedures.

               Individualized Family Service Plans (IFSPs)

303.340  General.
303.341  [Reserved]
303.342  Procedures for IFSP development, review, and evaluation.
303.343  Participants in IFSP meetings and periodic reviews.
303.344  Content of an IFSP.
303.345  Provision of services before evaluation and assessment are 
          completed.
303.346  Responsibility and accountability.

                    Personnel Training and Standards

303.360  Comprehensive system of personnel development.
303.361  Personnel standards.

                    Subpart E--Procedural Safeguards

                                 General

303.400  General responsibility of lead agency for procedural 
          safeguards.
303.401  Definitions of consent, native language, and personally 
          identifiable information.
303.402  Opportunity to examine records.
303.403  Prior notice; native language.
303.404  Parent consent.
303.405  Parent right to decline service.
303.406  Surrogate parents.

      Mediation and Due Process Procedures for Parents and Children

303.419  Mediation.
303.420  Due process procedures.
303.421  Appointment of an impartial person.
303.422  Parent rights in administrative proceedings.
303.423  Convenience of proceedings; timelines.
303.424  Civil action.
303.425  Status of a child during proceedings.

                             Confidentiality

303.460  Confidentiality of information.

                     Subpart F--State Administration

                                 General

303.500  Lead agency establishment or designation.
303.501  Supervision and monitoring of programs.

             Lead Agency Procedures for Resolving Complaints

303.510  Adopting complaint procedures.
303.511  An organization or individual may file a complaint.
303.512  Minimum State complaint procedures.

          Policies and Procedures Related to Financial Matters

303.520  Policies related to payment for services.
303.521  Fees.
303.522  Identification and coordination of resources.
303.523  Interagency agreements.
303.524  Resolution of disputes.
303.525  Delivery of services in a timely manner.
303.526  Policy for contracting or otherwise arranging for services.
303.527  Payor of last resort.
303.528  Reimbursement procedure.

                         Reporting Requirements

303.540  Data collection.

[[Page 174]]

                  Use of Funds for State Administration

303.560  Use of funds by the lead agency.

            Subpart G--State Interagency Coordinating Council

                                 General

303.600  Establishment of Council.
303.601  Composition.
303.602  Use of funds by the Council.
303.603  Meetings.
303.604  Conflict of interest.

                        Functions of the Council

303.650  General.
303.651  Advising and assisting the lead agency in its administrative 
          duties.
303.652  Applications.
303.653  Transitional services.
303.654  Annual report to the Secretary.

    Authority: 20 U.S.C. 1431-1445, unless otherwise noted.

    Source: 58 FR 40959, July 30, 1993, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 303 appear at 63 FR 
18293, Apr. 14, 1998.



                           Subpart A--General

           Purpose, Eligibility, and Other General Provisions



Sec. 303.1  Purpose of the early intervention program for infants and toddlers with disabilities.

    The purpose of this part is to provide financial assistance to 
States to--
    (a) Maintain and implement a statewide, comprehensive, coordinated, 
multidisciplinary, interagency system of early intervention services for 
infants and toddlers with disabilities and their families;
    (b) Facilitate the coordination of payment for early intervention 
services from Federal, State, local, and private sources (including 
public and private insurance coverage);
    (c) Enhance the States' capacity to provide quality early 
intervention services and expand and improve existing early intervention 
services being provided to infants and toddlers with disabilities and 
their families; and
    (d) Enhance the capacity of State and local agencies and service 
providers to identify, evaluate, and meet the needs of historically 
underrepresented populations, particularly minority, low-income, inner-
city, and rural populations.

(Authority: 20 U.S.C. 1431)

[58 FR 40959, July 30, 1993, as amended at 63 FR 18293, Apr. 14, 1998; 
64 FR 12535, Mar. 12, 1999]



Sec. 303.2  Eligible recipients of an award.

    Eligible recipients include the 50 States, the Commonwealth of 
Puerto Rico, the District of Columbia, the Secretary of the Interior, 
and the following jurisdictions: Guam, American Samoa, the Virgin 
Islands, the Commonwealth of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1401(27), 1443)

[58 FR 40959, July 30, 1993, as amended at 63 FR 18293, Apr. 14, 1998]



Sec. 303.3  Activities that may be supported under this part.

    Funds under this part may be used for the following activities:
    (a) To maintain and implement a statewide system of early 
intervention services for children eligible under this part and their 
families.
    (b) For direct services for eligible children and their families 
that are not otherwise provided from other public or private sources.
    (c) To expand and improve on services for eligible children and 
their families that are otherwise available, consistent with 
Sec. 303.527.
    (d) To provide a free appropriate public education, in accordance 
with part B of the Act, to children with disabilities from their third 
birthday to the beginning of the following school year.
    (e) To strengthen the statewide system by initiating, expanding, or 
improving collaborative efforts related to at-risk infants and toddlers, 
including establishing linkages with appropriate public or private 
community-based organizations, services, and personnel for the purpose 
of--
    (1) Identifying and evaluating at-risk infants and toddlers;
    (2) Making referrals of the infants and toddlers identified and 
evaluated under paragraph (e)(1) of this section; and
    (3) Conducting periodic follow-up on each referral under paragraph 
(e)(2) of this section to determine if the status

[[Page 175]]

of the infant or toddler involved has changed with respect to the 
eligibility of the infant or toddler for services under this part.

(Authority: 20 U.S.C. 1433 and 1438)

[58 FR 40959, July 30, 1993, as amended at 63 FR 18293, Apr. 14, 1998]



Sec. 303.4  Limitation on eligible children.

    This part 303 does not apply to any child with disabilities 
receiving a free appropriate public education, in accordance with 34 CFR 
part 300, with funds received under 34 CFR part 301.

(Authority: 20 U.S.C. 1419(h))



Sec. 303.5  Applicable regulations.

    (a) The following regulations apply to this part:
    (1) The Education Department General Administrative Regulations 
(EDGAR), including--
    (i) Part 76 (State Administered Programs), except for Sec. 76.103;
    (ii) Part 77 (Definitions that Apply to Department Regulations);
    (iii) Part 79 (Intergovernmental Review of Department of Education 
Programs and Activities);
    (iv) Part 80 (Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments);
    (v) Part 81 (Grants and Cooperative Agreements under the General 
Education Provisions Act--Enforcement);
    (vi) Part 82 (New Restrictions on Lobbying); and
    (vii) Part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free Work 
Place (Grants)).
    (2) The regulations in this part 303.
    (3) The following regulations in 34 CFR part 300 (Assistance to 
States for the Education of Children with Disabilities Program): 
Secs. 300.560-300.577, and Secs. 300.580-300.585.
    (b) In applying the regulations cited in paragraphs (a)(1) and 
(a)(3) of this section, any reference to--
    (1) State educational agency means the lead agency under this part;
    (2) Special education, related services, free appropriate public 
education, free public education, or education means ``early 
intervention services'' under this part;
    (3) Participating agency, when used in reference to a local 
educational agency or an intermediate educational agency, means a local 
service provider under this part;
    (4) Section 300.128 means Secs. 303.164 and 303.321; and
    (5) Section 300.129 means Sec. 303.460.

(Authority: 20 U.S.C. 1401, 1416, 1417)

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998, 
64 FR 12535, Mar. 12, 1999]

                               Definitions

    Note: Sections 303.6-303.24 contain definitions, including a 
definition of ``natural environments'' in Sec. 303.18, that are used 
throughout these regulations. Other terms are defined in the specific 
subparts in which they are used. Below is a list of those terms and the 
specific sections in which they are defined:

Appropriate professional requirements in the State (Sec. 303.361(a)(1))
Assessment (Sec. 303.322(b)(2))
Consent (Sec. 303.401(a))
Evaluation (Sec. 303.322(b)(1))
Frequency and intensity (Sec. 303.344(d)(2)(i))
Highest requirements in the State applicable to a profession or 
discipline (Sec. 303.361)(a)(2))
Individualized family service plan and IFSP (Sec. 303.340(b))
Impartial (Sec. 303.421(b))
Location (Sec. 303.344(d)(3))
Method (Sec. 303.344(d)(2)(ii))
Native language (Sec. 303.401(b))
Personally identifiable (Sec. 303.401(c))
Primary referral sources (Sec. 303.321(d)(3))
Profession or discipline (Sec. 303.361(a)(3))
Special definition of ``aggregate amount'' (Sec. 303.200(b)(1))
Special definition of ``infants and toddlers'' (Sec. 303.200(b)(2))
Special definition of ``State'' (Sec. 303.200(b)(3))
State approved or recognized certification, licensing, registration, or 
other comparable requirements (Sec. 303.361(a)(4))



Sec. 303.6  Act.

    As used in this part, Act means the Individuals with Disabilities 
Education Act.

(Authority: 20 U.S.C. 1400)



Sec. 303.7  Children.

    As used in this part, children means infants and toddlers with 
disabilities as that term is defined in Sec. 303.16.

(Authority: 20 U.S.C. 1432(5))

[[Page 176]]



Sec. 303.8  Council.

    As used in this part, Council means the State Interagency 
Coordinating Council.

(Authority: 20 U.S.C. 1432(2))



Sec. 303.9  Days.

    As used in this part, days means calendar days.

(Authority: 20 U.S.C. 1431-1445)



Sec. 303.10  Developmental delay.

    As used in this part, ``developmental delay,'' when used with 
respect to an individual residing in a State, has the meaning given to 
that term under Sec. 303.300.

(Authority: 20 U.S.C. 1432(3))

[64 FR 12535, Mar. 12, 1999]



Sec. 303.11  Early intervention program.

    As used in this part, early intervention program means the total 
effort in a State that is directed at meeting the needs of children 
eligible under this part and their families.

(Authority: 20 U.S.C. 1431-1445)



Sec. 303.12  Early intervention services.

    (a) General. As used in this part, early intervention services means 
services that--
    (1) Are designed to meet the developmental needs of each child 
eligible under this part and the needs of the family related to 
enhancing the child's development;
    (2) Are selected in collaboration with the parents;
    (3) Are provided--
    (i) Under public supervision;
    (ii) By qualified personnel, as defined in Sec. 303.21, including 
the types of personnel listed in paragraph (e) of this section;
    (iii) In conformity with an individualized family service plan; and
    (iv) At no cost, unless, subject to Sec. 303.520(b)(3), Federal or 
State law provides for a system of payments by families, including a 
schedule of sliding fees; and
    (4) Meet the standards of the State, including the requirements of 
this part.
    (b) Natural environments. To the maximum extent appropriate to the 
needs of the child, early intervention services must be provided in 
natural environments, including the home and community settings in which 
children without disabilities participate.
    (c) General role of service providers. To the extent appropriate, 
service providers in each area of early intervention services included 
in paragraph (d) of this section are responsible for--
    (1) Consulting with parents, other service providers, and 
representatives of appropriate community agencies to ensure the 
effective provision of services in that area;
    (2) Training parents and others regarding the provision of those 
services; and
    (3) Participating in the multidisciplinary team's assessment of a 
child and the child's family, and in the development of integrated goals 
and outcomes for the individualized family service plan.
    (d) Types of services; definitions. Following are types of services 
included under ``early intervention services,'' and, if appropriate, 
definitions of those services:
    (1) Assistive technology device means any item, piece of equipment, 
or product system, whether acquired commercially off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
the functional capabilities of children with disabilities. Assistive 
technology service means a service that directly assists a child with a 
disability in the selection, acquisition, or use of an assistive 
technology device. Assistive technology services include--
    (i) The evaluation of the needs of a child with a disability, 
including a functional evaluation of the child in the child's customary 
environment;
    (ii) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by children with disabilities;
    (iii) Selecting, designing, fitting, customizing, adapting, 
applying, maintaining, repairing, or replacing assistive technology 
devices;
    (iv) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such

[[Page 177]]

as those associated with existing education and rehabilitation plans and 
programs;
    (v) Training or technical assistance for a child with disabilities 
or, if appropriate, that child's family; and
    (vi) Training or technical assistance for professionals (including 
individuals providing early intervention services) or other individuals 
who provide services to or are otherwise substantially involved in the 
major life functions of individuals with disabilities.
    (2) Audiology includes--
    (i) Identification of children with auditory impairment, using at 
risk criteria and appropriate audiologic screening techniques;
    (ii) Determination of the range, nature, and degree of hearing loss 
and communication functions, by use of audiological evaluation 
procedures;
    (iii) Referral for medical and other services necessary for the 
habilitation or rehabilitation of children with auditory impairment;
    (iv) Provision of auditory training, aural rehabilitation, speech 
reading and listening device orientation and training, and other 
services;
    (v) Provision of services for prevention of hearing loss; and
    (vi) Determination of the child's need for individual amplification, 
including selecting, fitting, and dispensing appropriate listening and 
vibrotactile devices, and evaluating the effectiveness of those devices.
    (3) Family training, counseling, and home visits means services 
provided, as appropriate, by social workers, psychologists, and other 
qualified personnel to assist the family of a child eligible under this 
part in understanding the special needs of the child and enhancing the 
child's development.
    (4) Health services (See Sec. 303.13).
    (5) Medical services only for diagnostic or evaluation purposes 
means services provided by a licensed physician to determine a child's 
developmental status and need for early intervention services.
    (6) Nursing services includes--
    (i) The assessment of health status for the purpose of providing 
nursing care, including the identification of patterns of human response 
to actual or potential health problems;
    (ii) Provision of nursing care to prevent health problems, restore 
or improve functioning, and promote optimal health and development; and
    (iii) Administration of medications, treatments, and regimens 
prescribed by a licensed physician.
    (7) Nutrition services includes--
    (i) Conducting individual assessments in--
    (A) Nutritional history and dietary intake;
    (B) Anthropometric, biochemical, and clinical variables;
    (C) Feeding skills and feeding problems; and
    (D) Food habits and food preferences;
    (ii) Developing and monitoring appropriate plans to address the 
nutritional needs of children eligible under this part, based on the 
findings in paragraph (d)(7)(i) of this section; and
    (iii) Making referrals to appropriate community resources to carry 
out nutrition goals.
    (8) Occupational therapy includes services to address the functional 
needs of a child related to adaptive development, adaptive behavior and 
play, and sensory, motor, and postural development. These services are 
designed to improve the child's functional ability to perform tasks in 
home, school, and community settings, and include--
    (i) Identification, assessment, and intervention;
    (ii) Adaptation of the environment, and selection, design, and 
fabrication of assistive and orthotic devices to facilitate development 
and promote the acquisition of functional skills; and
    (iii) Prevention or minimization of the impact of initial or future 
impairment, delay in development, or loss of functional ability.
    (9) Physical therapy includes services to address the promotion of 
sensorimotor function through enhancement of musculoskeletal status, 
neurobehavioral organization, perceptual and motor development, 
cardiopulmonary status, and effective environmental adaptation. These 
services include--
    (i) Screening, evaluation, and assessment of infants and toddlers to 
identify movement dysfunction;

[[Page 178]]

    (ii) Obtaining, interpreting, and integrating information 
appropriate to program planning to prevent, alleviate, or compensate for 
movement dysfunction and related functional problems; and
    (iii) Providing individual and group services or treatment to 
prevent, alleviate, or compensate for movement dysfunction and related 
functional problems.
    (10) Psychological services includes--
    (i) Administering psychological and developmental tests and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior, and child and family conditions related to learning, 
mental health, and development; and
    (iv) Planning and managing a program of psychological services, 
including psychological counseling for children and parents, family 
counseling, consultation on child development, parent training, and 
education programs.
    (11) Service coordination services means assistance and services 
provided by a service coordinator to a child eligible under this part 
and the child's family that are in addition to the functions and 
activities included under Sec. 303.23.
    (12) Social work services includes--
    (i) Making home visits to evaluate a child's living conditions and 
patterns of parent-child interaction;
    (ii) Preparing a social or emotional developmental assessment of the 
child within the family context;
    (iii) Providing individual and family-group counseling with parents 
and other family members, and appropriate social skill-building 
activities with the child and parents;
    (iv) Working with those problems in a child's and family's living 
situation (home, community, and any center where early intervention 
services are provided) that affect the child's maximum utilization of 
early intervention services; and
    (v) Identifying, mobilizing, and coordinating community resources 
and services to enable the child and family to receive maximum benefit 
from early intervention services.
    (13) Special instruction includes--
    (i) The design of learning environments and activities that promote 
the child's acquisition of skills in a variety of developmental areas, 
including cognitive processes and social interaction;
    (ii) Curriculum planning, including the planned interaction of 
personnel, materials, and time and space, that leads to achieving the 
outcomes in the child's individualized family service plan;
    (iii) Providing families with information, skills, and support 
related to enhancing the skill development of the child; and
    (iv) Working with the child to enhance the child's development.
    (14) Speech-language pathology includes--
    (i) Identification of children with communicative or oropharyngeal 
disorders and delays in development of communication skills, including 
the diagnosis and appraisal of specific disorders and delays in those 
skills;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of children with communicative or 
oropharyngeal disorders and delays in development of communication 
skills; and
    (iii) Provision of services for the habilitation, rehabilitation, or 
prevention of communicative or oropharyngeal disorders and delays in 
development of communication skills.
    (15) Transportation and related costs includes the cost of travel 
(e.g., mileage, or travel by taxi, common carrier, or other means) and 
other costs (e.g., tolls and parking expenses) that are necessary to 
enable a child eligible under this part and the child's family to 
receive early intervention services.
    (16) Vision services means--
    (i) Evaluation and assessment of visual functioning, including the 
diagnosis and appraisal of specific visual disorders, delays, and 
abilities;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of visual functioning disorders, 
or both; and
    (iii) Communication skills training, orientation and mobility 
training for all environments, visual training, independent living 
skills training, and additional training necessary to activate visual 
motor abilities.

[[Page 179]]

    (e) Qualified personnel. Early intervention services must be 
provided by qualified personnel, including--
    (1) Audiologists;
    (2) Family therapists;
    (3) Nurses;
    (4) Nutritionists;
    (5) Occupational therapists;
    (6) Orientation and mobility specialists;
    (7) Pediatricians and other physicians;
    (8) Physical therapists;
    (9) Psychologists;
    (10) Social workers;
    (11) Special educators; and
    (12) Speech and language pathologists.

(Authority: 20 U.S.C. 1401(1) and (2); 1432(4))
    Note: The lists of services in paragraph (d) and qualified personnel 
in paragraph (e) of this section are not exhaustive. Early intervention 
services may include such services as the provision of respite and other 
family support services. Qualified personnel may include such personnel 
as vision specialists, paraprofessionals, and parent-to-parent support 
personnel.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998; 
64 FR 12535, Mar. 12, 1999]



Sec. 303.13  Health services.

    (a) As used in this part, health services means services necessary 
to enable a child to benefit from the other early intervention services 
under this part during the time that the child is receiving the other 
early intervention services.
    (b) The term includes--
    (1) Such services as clean intermittent catheterization, 
tracheostomy care, tube feeding, the changing of dressings or colostomy 
collection bags, and other health services; and
    (2) Consultation by physicians with other service providers 
concerning the special health care needs of eligible children that will 
need to be addressed in the course of providing other early intervention 
services.
    (c) The term does not include the following:
    (1) Services that are--
    (i) Surgical in nature (such as cleft palate surgery, surgery for 
club foot, or the shunting of hydrocephalus); or
    (ii) Purely medical in nature (such as hospitalization for 
management of congenital heart ailments, or the prescribing of medicine 
or drugs for any purpose).
    (2) Devices necessary to control or treat a medical condition.
    (3) Medical-health services (such as immunizations and regular 
``well-baby'' care) that are routinely recommended for all children.

(Authority: 20 U.S.C. 1432(4))
    Note: The definition in this section distinguishes between the 
health services that are required under this part and the medical-health 
services that are not required. The IFSP requirements in subpart D of 
this part provide that, to the extent appropriate, these other medical-
health services are to be included in the IFSP, along with the funding 
sources to be used in paying for the services or the steps that will be 
taken to secure the services through public or private sources. 
Identifying these services in the IFSP does not impose an obligation to 
provide the services if they are otherwise not required to be provided 
under this part. (See Sec. 303.344(e) and the note 3 following that 
section.)



Sec. 303.14  IFSP.

    As used in this part, IFSP means the individualized family service 
plan, as that term is defined in Sec. 303.340(b).

(Authority: 20 U.S.C. 1436)



Sec. 303.15  Include; including.

    As used in this part, include or including means that the items 
named are not all of the possible items that are covered whether like or 
unlike the ones named.

(Authority: 20 U.S.C. 1431-1445)



Sec. 303.16  Infants and toddlers with disabilities.

    (a) As used in this part, infants and toddlers with disabilities 
means individuals from birth through age two who need early intervention 
services because they--
    (1) Are experiencing developmental delays, as measured by 
appropriate diagnostic instruments and procedures, in one or more of the 
following areas:
    (i) Cognitive development.
    (ii) Physical development, including vision and hearing.
    (iii) Communication development.
    (iv) Social or emotional development.
    (v) Adaptive development; or

[[Page 180]]

    (2) Have a diagnosed physical or mental condition that has a high 
probability of resulting in developmental delay.
    (b) The term may also include, at a State's discretion, children 
from birth through age two who are at risk of having substantial 
developmental delays if early intervention services are not provided.

(Authority: 20 U.S.C. 1432(5))
    Note 1: The phrase ``a diagnosed physical or mental condition that 
has a high probability of resulting in developmental delay,'' as used in 
paragraph (a)(2) of this section, applies to a condition if it typically 
results in developmental delay. Examples of these conditions include 
chromosomal abnormalities; genetic or congenital disorders; severe 
sensory impairments, including hearing and vision; inborn errors of 
metabolism; disorders reflecting disturbance of the development of the 
nervous system; congenital infections; disorders secondary to exposure 
to toxic substances, including fetal alcohol syndrome; and severe 
attachment disorders.
    Note 2: With respect to paragraph (b) of this section, children who 
are at risk may be eligible under this part if a State elects to extend 
services to that population, even though they have not been identified 
as disabled.
    Under this provision, States have the authority to define who would 
be ``at risk of having substantial developmental delays if early 
intervention services are not provided.'' In defining the ``at risk'' 
population, States may include well-known biological and environmental 
factors that can be identified and that place infants and toddlers ``at 
risk'' for developmental delay. Commonly cited factors include low birth 
weight, respiratory distress as a newborn, lack of oxygen, brain 
hemorrhage, infection, nutritional deprivation, and a history of abuse 
or neglect. It should be noted that ``at risk'' factors do not predict 
the presence of a barrier to development, but they may indicate children 
who are at higher risk of developmental delay than children without 
these problems.



Sec. 303.17  Multidisciplinary.

    As used in this part, multidisciplinary means the involvement of two 
or more disciplines or professions in the provision of integrated and 
coordinated services, including evaluation and assessment activities in 
Sec. 303.322 and development of the IFSP in Sec. 303.342.

(Authority: 20 U.S.C. 1435(a)(3), 1436(a))



Sec. 303.18  Natural environments.

    As used in this part, natural environments means settings that are 
natural or normal for the child's age peers who have no disabilities.

(Authority: 20 U.S.C. 1435 and 1436)

[63 FR 18294, Apr. 14, 1998]



Sec. 303.19  Parent.

    (a) General. As used in this part, ``parent'' means--
    (1) A natural or adoptive parent of a child;
    (2) A guardian;
    (3) A person acting in the place of a parent (such as a grandparent 
or stepparent with whom the child lives, or a person who is legally 
responsible for the child's welfare); or
    (4) A surrogate parent who has been assigned in accordance with 
Sec. 303.406.
    (b) Foster parent. Unless State law prohibits a foster parent from 
acting as a parent, a State may allow a foster parent to act as a parent 
under Part C of the Act if--
    (1) The natural parents' authority to make the decisions required of 
parents under the Act has been extinguished under State law; and
    (2) The foster parent--
    (i) Has an ongoing, long-term parental relationship with the child;
    (ii) Is willing to make the decisions required of parents under the 
Act; and
    (iii) Has no interest that would conflict with the interests of the 
child.

(Authority: 20 U.S.C. 1401(19), 1431-1445)

[64 FR 12535, Mar. 12, 1999]



Sec. 303.20  Policies.

    (a) As used in this part, policies means State statutes, 
regulations, Governor's orders, directives by the lead agency, or other 
written documents that represent the State's position concerning any 
matter covered under this part.
    (b) State policies include--
    (1) A State's commitment to maintain the statewide system (see 
Sec. 303.140);
    (2) A State's eligibility criteria and procedures (see 
Sec. 303.300);
    (3) A statement that, consistent with Sec. 303.520(b), provides that 
services under this part will be provided at no cost to

[[Page 181]]

parents, except where a system of payments is provided for under Federal 
or State law.
    (4) A State's standards for personnel who provide services to 
children eligible under this part (see Sec. 303.361);
    (5) A State's position and procedures related to contracting or 
making other arrangements with service providers under subpart F of this 
part; and
    (6) Other positions that the State has adopted related to 
implementing any of the other requirements under this part.

(Authority: 20 U.S.C. 1431-1445)

[58 FR 40959, July 30, 1993. Redesignated and amended at 63 FR 18294, 
Apr. 14, 1998]



Sec. 303.21  Public agency.

    As used in this part, public agency includes the lead agency and any 
other political subdivision of the State that is responsible for 
providing early intervention services to children eligible under this 
part and their families.

(Authority: 20 U.S.C. 1431-1445)

[58 FR 40959, July 30, 1993. Redesignated at 63 FR 18294, Apr. 14, 1998]



Sec. 303.22  Qualified.

    As used in this part, qualified means that a person has met State 
approved or recognized certification, licensing, registration, or other 
comparable requirements that apply to the area in which the person is 
providing early intervention services.

(Authority: 20 U.S.C. 1432(4))
    Note: These regulations contain the following provisions relating to 
a State's responsibility to ensure that personnel are qualified to 
provide early intervention services:

    1. Section 303.12(a)(4) provides that early intervention services 
must meet State standards. This provision implements a requirement that 
is similar to a longstanding provision under part B of the Act (i.e., 
that the State educational agency establish standards and ensure that 
those standards are currently met for all programs providing special 
education and related services).
    2. Section 303.12(a)(3)(ii) provides that early intervention 
services must be provided by qualified personnel.
    3. Section 303.361(b) requires statewide systems to have policies 
and procedures relating to personnel standards.

[58 FR 40959, July 30, 1993. Redesignated at 63 FR 18294, Apr. 14, 1998]



Sec. 303.23  Service coordination (case management).

    (a) General. (1) As used in this part, except in Sec. 303.12(d)(11), 
service coordination means the activities carried out by a service 
coordinator to assist and enable a child eligible under this part and 
the child's family to receive the rights, procedural safeguards, and 
services that are authorized to be provided under the State's early 
intervention program.
    (2) Each child eligible under this part and the child's family must 
be provided with one service coordinator who is responsible for--
    (i) Coordinating all services across agency lines; and
    (ii) Serving as the single point of contact in helping parents to 
obtain the services and assistance they need.
    (3) Service coordination is an active, ongoing process that 
involves--
    (i) Assisting parents of eligible children in gaining access to the 
early intervention services and other services identified in the 
individualized family service plan;
    (ii) Coordinating the provision of early intervention services and 
other services (such as medical services for other than diagnostic and 
evaluation purposes) that the child needs or is being provided;
    (iii) Facilitating the timely delivery of available services; and
    (iv) Continuously seeking the appropriate services and situations 
necessary to benefit the development of each child being served for the 
duration of the child's eligibility.
    (b) Specific service coordination activities. Service coordination 
activities include--
    (1) Coordinating the performance of evaluations and assessments;
    (2) Facilitating and participating in the development, review, and 
evaluation of individualized family service plans;
    (3) Assisting families in identifying available service providers;

[[Page 182]]

    (4) Coordinating and monitoring the delivery of available services;
    (5) Informing families of the availability of advocacy services;
    (6) Coordinating with medical and health providers; and
    (7) Facilitating the development of a transition plan to preschool 
services, if appropriate.
    (c) Employment and assignment of service coordinators. (1) Service 
coordinators may be employed or assigned in any way that is permitted 
under State law, so long as it is consistent with the requirements of 
this part.
    (2) A State's policies and procedures for implementing the statewide 
system of early intervention services must be designed and implemented 
to ensure that service coordinators are able to effectively carry out on 
an interagency basis the functions and services listed under paragraphs 
(a) and (b) of this section.
    (d) Qualifications of service coordinators. Service coordinators 
must be persons who, consistent with Sec. 303.344(g), have demonstrated 
knowledge and understanding about--
    (1) Infants and toddlers who are eligible under this part;
    (2) Part C of the Act and the regulations in this part; and
    (3) The nature and scope of services available under the State's 
early intervention program, the system of payments for services in the 
State, and other pertinent information.

(Authority: 20 U.S.C. 1432(4))
    Note 1: If States have existing service coordination systems, the 
States may use or adapt those systems, so long as they are consistent 
with the requirements of this part.
    Note 2: The legislative history of the 1991 amendments to the Act 
indicates that the use of the term ``service coordination'' was not 
intended to affect the authority to seek reimbursement for services 
provided under Medicaid or any other legislation that makes reference to 
``case management'' services. See H.R. Rep. No. 198, 102d Cong., 1st 
Sess. 12 (1991); S. Rep. No. 84, 102d Cong., 1st Sess. 20 (1991).

[58 FR 40959, July 30, 1993. Redesignated at 63 FR 18294, Apr. 14, 1998]



Sec. 303.24  State.

    Except as provided in Sec. 303.200(b)(3), State means each of the 50 
States, the Commonwealth of Puerto Rico, the District of Columbia, and 
the jurisdictions of Guam, American Samoa, the Virgin Islands, the 
Commonwealth of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1401(27))

[58 FR 40959, July 30, 1993. Redesignated and amended at 63 FR 18294, 
Apr. 14, 1998]



Sec. 303.25  EDGAR definitions that apply.

    The following terms used in this part are defined in 34 CFR 77.1:
    Applicant
    Award
    Contract
    Department
    EDGAR
    Fiscal year
    Grant
    Grantee
    Grant period
    Private
    Public
    Secretary

(Authority: 20 U.S.C. 1431-1445)

[58 FR 40959, July 30, 1993. Redesignated at 63 FR 18294, Apr. 14, 1998]



                Subpart B--State Application for a Grant

                          General Requirements



Sec. 303.100  Conditions of assistance.

    (a) In order to receive funds under this part for any fiscal year, a 
State must have--
    (1) An approved application that contains the information required 
in this part, including--
    (i) The information required in Secs. 303.140 through 303.148; and
    (ii) The information required in Secs. 303.161 through 303.176; and
    (2) The statement of assurances required under Secs. 303.120 through 
303.128, on file with the Secretary.
    (b) If a State has on file with the Secretary a policy, procedure, 
or assurance that demonstrates that the State meets an application 
requirement, including any policy or procedure filed under this part 
before July 1, 1998, that meets such a requirement, the Secretary 
considers the State to have met that requirement for purposes of 
receiving a grant under this part.
    (c) An application that meets the requirements of this part remains 
in

[[Page 183]]

zeffect until the State submits to the Secretary modifications of that 
application.
    (d) The Secretary may require a State to modify its application 
under this part to the extent necessary to ensure the State's compliance 
with this part if--
    (1) An amendment is made to the Act, or to a regulation under this 
part;
    (2) A new interpretation is made of the Act by a Federal court or 
the State's highest court; or
    (3) An official finding of noncompliance with Federal law or 
regulations is made with respect to the State.

(Authority: 20 U.S.C. 1434 and 1437)

[63 FR 18294, Apr. 14, 1998, as amended at 64 FR 12535, Mar. 12, 1999]



Sec. 303.101  How the Secretary disapproves a State's application or statement of assurances.

    The Secretary follows the procedures in 34 CFR 300.581 through 
300.586 before disapproving a State's application or statement of 
assurances submitted under this part.

(Authority: 20 U.S.C. 1437)

                          Public Participation



Sec. 303.110  General requirements and timelines for public participation.

    (a) Before submitting to the Secretary its application under this 
part, and before adopting a new or revised policy that is not in its 
current application, a State shall--
    (1) Publish the application or policy in a manner that will ensure 
circulation throughout the State for at least a 60-day period, with an 
opportunity for comment on the application or policy for at least 30 
days during that period;
    (2) Hold public hearings on the application or policy during the 60-
day period required in paragraph (a)(1) of this section; and
    (3) Provide adequate notice of the hearings required in paragraph 
(a)(2) of this section at least 30 days before the dates that the 
hearings are conducted.
    (b) A State may request the Secretary to waive compliance with the 
timelines in paragraph (a) of this section. The Secretary grants the 
request if the State demonstrates that--
    (1) There are circumstances that would warrant such an exception; 
and
    (2) The timelines that will be followed provide an adequate 
opportunity for public participation and comment.

(Authority: 20 U.S.C. 1437(a)(3))



Sec. 303.111  Notice of public hearings and opportunity to comment.

    The notice required in Sec. 303.110(a)(3) must--
    (a) Be published in newspapers or announced in other media, or both, 
with coverage adequate to notify the general public, including 
individuals with disabilities and parents of infants and toddlers with 
disabilities, throughout the State about the hearings and opportunity to 
comment on the application or policy; and
    (b) Be in sufficient detail to inform the public about--
    (1) The purpose and scope of the State application or policy, and 
its relationship to part C of the Act;
    (2) The length of the comment period and the date, time, and 
location of each hearing; and
    (3) The procedures for providing oral comments or submitting written 
comments.

(Authority: 20 U.S.C. 1437(a)(7))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998]



Sec. 303.112  Public hearings.

    Each State shall hold public hearings in a sufficient number and at 
times and places that afford interested parties throughout the State a 
reasonable opportunity to participate.

(Authority: 20 U.S.C. 1437(a)(7))



Sec. 303.113  Reviewing public comments received.

    (a) Review of comments. Before adopting its application, and before 
the adoption of a new or revised policy not in the application, the lead 
agency shall--
    (1) Review and consider all public comments; and
    (2) Make any modifications it deems necessary in the application or 
policy.
    (b) Submission to the Secretary. In submitting the State's 
application or policy to the Secretary, the lead agency shall include 
copies of news releases,

[[Page 184]]

advertisements, and announcements used to provide notice to the general 
public, including individuals with disabilities and parents of infants 
and toddlers with disabilities.

(Authority: 20 U.S.C. 1437(a)(7))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998]

                         Statement of Assurances



Sec. 303.120  General.

    (a) A State's statement of assurances must contain the information 
required in Secs. 303.121 through 303.128.
    (b) Unless otherwise required by the Secretary, the statement is 
submitted only once, and remains in effect throughout the term of a 
State's participation under this part.
    (c) A State may submit a revised statement of assurances if the 
statement is consistent with the requirements in Secs. 303.121 through 
303.128.

(Authority: 20 U.S.C. 1437(b))



Sec. 303.121  Reports and records.

    The statement must provide for--
    (a) Making reports in such form and containing such information as 
the Secretary may require; and
    (b) Keeping such records and affording such access to those records 
as the Secretary may find necessary to assure compliance with the 
requirements of this part, the correctness and verification of reports, 
and the proper disbursement of funds provided under this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(4))



Sec. 303.122  Control of funds and property.

    The statement must provide assurance satisfactory to the Secretary 
that--
    (a) The control of funds provided under this part, and title to 
property acquired with those funds, will be in a public agency for the 
uses and purposes provided in this part; and
    (b) A public agency will administer the funds and property.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(3))



Sec. 303.123  Prohibition against commingling.

    The statement must include an assurance satisfactory to the 
Secretary that funds made available under this part will not be 
commingled with State funds.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(5)(A))
    Note: As used in this part, commingle means depositing or recording 
funds in a general account without the ability to identify each specific 
source of funds for any expenditure. Under that general definition, it 
is clear that commingling is prohibited. However, to the extent that the 
funds from each of a series of Federal, State, local, and private 
funding sources can be identified--with a clear audit trail for each 
source--it is appropriate for those funds to be consolidated for 
carrying out a common purpose. In fact, a State may find it essential to 
set out a funding plan that incorporates, and accounts for, all sources 
of funds that can be targeted on a given activity or function related to 
the State's early intervention program.
    Thus, the assurance in this section is satisfied by the use of an 
accounting system that includes an ``audit trail'' of the expenditure of 
funds awarded under this part. Separate bank accounts are not required.



Sec. 303.124  Prohibition against supplanting.

    (a) The statement must include an assurance satisfactory to the 
Secretary that Federal funds made available under this part will be used 
to supplement the level of State and local funds expended for children 
eligible under this part and their families and in no case to supplant 
those State and local funds.
    (b) To meet the requirement in paragraph (a) of this section, the 
total amount of State and local funds budgeted for expenditures in the 
current fiscal year for early intervention services for children 
eligible under this part and their families must be at least equal to 
the total amount of State and local

[[Page 185]]

funds actually expended for early intervention services for these 
children and their families in the most recent preceding fiscal year for 
which the information is available. Allowance may be made for--
    (1) Decreases in the number of children who are eligible to receive 
early intervention services under this part; and
    (2) Unusually large amounts of funds expended for such long-term 
purposes as the acquisition of equipment and the construction of 
facilities.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(5)(B))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998]



Sec. 303.125  Fiscal control.

    The statement must provide assurance satisfactory to the Secretary 
that such fiscal control and fund accounting procedures will be adopted 
as may be necessary to assure proper disbursement of, and accounting 
for, Federal funds paid under this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(6))



Sec. 303.126  Payor of last resort.

    The statement must include an assurance satisfactory to the 
Secretary that the State will comply with the provisions in 
Sec. 303.527, including the requirements on--
    (a) Nonsubstitution of funds; and
    (b) Non-reduction of other benefits.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(2))



Sec. 303.127  Assurance regarding expenditure of funds.

    The statement must include an assurance satisfactory to the 
Secretary that the funds paid to the State under this part will be 
expended in accordance with the provisions of this part, including the 
requirements in Sec. 303.3.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(1))



Sec. 303.128  Traditionally underserved groups.

    The statement must include an assurance satisfactory to the 
Secretary that policies and practices have been adopted to ensure--
    (a) That traditionally underserved groups, including minority, low-
income, and rural families, are meaningfully involved in the planning 
and implementation of all the requirements of this part; and
    (b) That these families have access to culturally competent services 
within their local geographical areas.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(b)(7))

              General Requirements for a State Application



Sec. 303.140  General.

    A State's application under this part must contain information and 
assurances demonstrating to the satisfaction of the Secretary that--
    (a) The statewide system of early intervention services required in 
this part is in effect; and
    (b) A State policy is in effect that ensures that appropriate early 
intervention services are available to all infants and toddlers with 
disabilities in the State and their families, including Indian infants 
and toddlers with disabilities and their families residing on a 
reservation geographically located in the State.

(Authority: 20 U.S.C. 1434 and 1435(a)(2))

[63 FR 18294, Apr. 14, 1998, as amended at 64 FR 12535, Mar. 12, 1999]



Sec. 303.141  Information about the Council.

    Each application must include information demonstrating that the 
State has established a State Interagency Coordinating Council that 
meets the requirements of subpart G of this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(3))



Sec. 303.142  Designation of lead agency.

    Each application must include a designation of the lead agency in 
the

[[Page 186]]

State that will be responsible for the administration of funds provided 
under this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(1))



Sec. 303.143  Designation regarding financial responsibility.

    Each application must include a designation by the State of an 
individual or entity responsible for assigning financial responsibility 
among appropriate agencies.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(2))



Sec. 303.144  Assurance regarding use of funds.

    Each application must include an assurance that funds received under 
this part will be used to assist the State to maintain and implement the 
statewide system required under subparts D through F of this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1475, 1437(a)(3))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998]



Sec. 303.145  Description of use of funds.

    (a) General. Each application must include a description of how a 
State proposes to use its funds under this part for the fiscal year or 
years covered by the application. The description must be presented 
separately for the lead agency and the Council, and include the 
information required in paragraphs (b) through (e) of this section.
    (b) Administrative positions. Each application must include--
    (1) A list of administrative positions, with salaries, and a 
description of the duties for each person whose salary is paid in whole 
or in part with funds awarded under this part; and
    (2) For each position, the percentage of salary paid with those 
funds.
    (c) Maintenance and implementation activities. Each application must 
include--
    (1) A description of the nature and scope of each major activity to 
be carried out under this part in maintaining and implementing the 
statewide system of early intervention services; and
    (2) The approximate amount of funds to be spent for each activity.
    (d) Direct services. (1) Each application must include a description 
of any direct services that the State expects to provide to eligible 
children and their families with funds under this part, including a 
description of any services provided to at-risk infants and toddlers as 
defined in Sec. 303.16(b), and their families, consistent with 
Secs. 303.521 and 303.527.
    (2) The description must include information about each type of 
service to be provided, including--
    (i) A summary of the methods to be used to provide the service 
(e.g., contracts or other arrangements with specified public or private 
organizations); and
    (ii) The approximate amount of funds under this part to be used for 
the service.
    (e) At-risk infants and toddlers. For any State that does not 
provide direct services for at-risk infants and toddlers described in 
paragraph (d)(1) of this section, but chooses to use funds as described 
in Sec. 303.3(e), each application must include a description of how 
those funds will be used.
    (f) Activities by other agencies. If other agencies are to receive 
funds under this part, the application must include--
    (1) The name of each agency expected to receive funds;
    (2) The approximate amount of funds each agency will receive; and
    (3) A summary of the purposes for which the funds will be used.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(3) and (a)(5))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998; 
64 FR 12535, Mar. 12, 1999]



Sec. 303.146  Information about public participation.

    Each application must include the information on public 
participation that is required in Sec. 303.113(b).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(7))

[[Page 187]]



Sec. 303.147  Services to all geographic areas.

    Each application must include a description of the procedure used to 
ensure that resources are made available under this part for all 
geographic areas within the State.

(Authority: 20 U.S.C. 1437(a)(6))

[63 FR 18294, Apr. 14, 1998]



Sec. 303.148  Transition to preschool programs.

    Each application must include a description of the policies and 
procedures to be used to ensure a smooth transition for children 
receiving early intervention services under this part to preschool or 
other appropriate services, including--
    (a) A description of how the families will be included in the 
transition plans;
    (b) A description of how the lead agency under this part will--
    (1) Notify the local educational agency for the area in which the 
child resides that the child will shortly reach the age of eligibility 
for preschool services under Part B of the Act, as determined in 
accordance with State law;
    (2)(i) In the case of a child who may be eligible for preschool 
services under Part B of the Act, with the approval of the family of the 
child, convene a conference among the lead agency, the family, and the 
local educational agency at least 90 days, and at the discretion of the 
parties, up to 6 months, before the child is eligible for the preschool 
services, to discuss any services that the child may receive; or
    (ii) In the case of a child who may not be eligible for preschool 
services under Part B of the Act, with the approval of the family, make 
reasonable efforts to convene a conference among the lead agency, the 
family, and providers of other appropriate services for children who are 
not eligible for preschool services under Part B, to discuss the 
appropriate services that the child may receive;
    (3) Review the child's program options for the period from the 
child's third birthday through the remainder of the school year; and
    (4) Establish a transition plan; and
    (c) If the State educational agency, which is responsible for 
administering preschool programs under part B of the Act, is not the 
lead agency under this part, an interagency agreement between the two 
agencies to ensure coordination on transition matters.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1437(a)(8))
    Note: Among the matters that should be considered in developing 
policies and procedures to ensure a smooth transition of children from 
one program to the other are the following:
     The financial responsibilities of all appropriate agencies.
     The responsibility for performing evaluations of children.
     The development and implementation of an individualized 
education program (``IEP'') or an individualized family service plan 
(``IFSP'') for each child, consistent with the requirements of law (see 
Sec. 303.344(h) and sections 612(a)(9) of the Act).
     The coordination of communication between agencies and the 
child's family.
     The mechanisms to ensure the uninterrupted provision of 
appropriate services to the child.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18294, Apr. 14, 1998]

       Components of a Statewide System--Application Requirements



Sec. 303.160  Minimum components of a statewide system.

    Each application must address the minimum components of a statewide 
system of coordinated, comprehensive, multidisciplinary, interagency 
programs providing appropriate early intervention services to all 
infants and toddlers with disabilities and their families, including 
Indian infants and toddlers with disabilities and their families 
residing on a reservation geographically located in the State. The 
minimum components of a statewide system are described in Secs. 303.161 
through 303.176.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a), 1437(a)(9))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]

[[Page 188]]



Sec. 303.161  State definition of developmental delay.

    Each application must include the State's definition of 
``developmental delay,'' as described in Sec. 303.300.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(1))



Sec. 303.162  Central directory.

    Each application must include information and assurances 
demonstrating to the satisfaction of the Secretary that the State has 
developed a central directory of information that meets the requirements 
in Sec. 303.301.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(7))



Sec. 303.163  [Reserved]



Sec. 303.164  Public awareness program.

    Each application must include information and assurances 
demonstrating to the satisfaction of the Secretary that the State has 
established a public awareness program that meets the requirements in 
Sec. 303.320.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(6))



Sec. 303.165  Comprehensive child find system.

    Each application must include--
    (a) The policies and procedures required in Sec. 303.321(b);
    (b) Information demonstrating that the requirements on coordination 
in Sec. 303.321(c) are met;
    (c) The referral procedures required in Sec. 303.321(d), and 
either--
    (1) A description of how the referral sources are informed about the 
procedures; or
    (2) A copy of any memorandum or other document used by the lead 
agency to transmit the procedures to the referral sources; and
    (d) The timelines in Sec. 303.321(e).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(5))



Sec. 303.166  Evaluation, assessment, and nondiscriminatory procedures.

    Each application must include information to demonstrate that the 
requirements in Secs. 303.322 and 303.323 are met.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), (d)(2), and (d)(3))



Sec. 303.167  Individualized family service plans.

    Each application must include--
    (a) An assurance that a current IFSP is in effect and implemented 
for each eligible child and the child's family;
    (b) Information demonstrating that--
    (1) The State's procedures for developing, reviewing, and evaluating 
IFSPs are consistent with the requirements in Secs. 303.340, 303.342, 
303.343 and 303.345; and
    (2) The content of IFSPs used in the State is consistent with the 
requirements in Sec. 303.344; and
    (c) Policies and procedures to ensure that--
    (1) To the maximum extent appropriate, early intervention services 
are provided in natural environments; and
    (2) The provision of early intervention services for any infant or 
toddler occurs in a setting other than a natural environment only if 
early intervention cannot be achieved satisfactorily for the infant or 
toddler in a natural environment.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(4), 1436(d))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.168  Comprehensive system of personnel development (CSPD).

    Each application must include information to show that the 
requirements in Sec. 303.360(b) are met.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(8))

[[Page 189]]



Sec. 303.169  Personnel standards.

    (a) Each application must include policies and procedures that are 
consistent with the requirements in Sec. 303.361.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(9))



Sec. 303.170  Procedural safeguards.

    Each application must include procedural safeguards that--
    (a) Are consistent with Secs. 303.400 through 303.406, 303.419 
through 303.425 and 303.460; and
    (b) Incorporate either--
    (1) The due process procedures in 34 CFR 300.506 through 300.512; or
    (2) The procedures that the State has developed to meet the 
requirements in Secs. 303.419, 303.420(b) and 303.421 through 303.425.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(13))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.171  Supervision and monitoring of programs.

    Each application must include information to show that the 
requirements in Sec. 303.501 are met.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20. U.S.C. 1435(a)(10)(A))



Sec. 303.172  Lead agency procedures for resolving complaints.

    Each application must include procedures that are consistent with 
the requirements in Secs. 303.510 through 303.512.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10))



Sec. 303.173  Policies and procedures related to financial matters.

    Each application must include--
    (a) Funding policies that meet the requirements in Secs. 303.520 and 
303.521;
    (b) Information about funding sources, as required in Sec. 303.522;
    (c) Procedures to ensure the timely delivery of services, in 
accordance with Sec. 303.525; and
    (d) A procedure related to the timely reimbursement of funds under 
this part, in accordance with Secs. 303.527(b) and 303.528.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10) (D) and (E), 1435(a)(12), 1440)



Sec. 303.174  Interagency agreements; resolution of individual disputes.

    Each application must include--
    (a) A copy of each interagency agreement that has been developed 
under Sec. 303.523; and
    (b) Information to show that the requirements in Sec. 303.524 are 
met.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10) (E) and (F)



Sec. 303.175  Policy for contracting or otherwise arranging for services.

    Each application must include a policy that meets the requirements 
in Sec. 303.526.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(11))



Sec. 303.176  Data collection.

    Each application must include procedures that meet the requirements 
in Sec. 303.540.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(14))

             Participation by the Secretary of the Interior



Sec. 303.180  Payments to the Secretary of the Interior for Indian tribes and tribal organizations.

    (a) The Secretary makes payments to the Secretary of the Interior 
for the coordination of assistance in the provision of early 
intervention services by the States to infants and toddlers with 
disabilities and their families on reservations served by elementary and 
secondary schools for Indian children operated or funded by the 
Department of the Interior.
    (b)(1) The Secretary of the Interior shall distribute payments under 
this part to tribes or tribal organizations

[[Page 190]]

(as defined under section 4 of the Indian Self-Determination and 
Education Assistance Act), or combinations of those entities, in 
accordance with section 684(b) of the Act.
    (2) A tribe or tribal organization is eligible to receive a payment 
under this section if the tribe is on a reservation that is served by an 
elementary or secondary school operated or funded by the Bureau of 
Indian Affairs (``BIA'').
    (c)(1) Within 90 days after the end of each fiscal year the 
Secretary of the Interior shall provide the Secretary with a report on 
the payments distributed under this section.
    (2) The report must include--
    (i) The name of each tribe, tribal organization, or combination of 
those entities that received a payment for the fiscal year;
    (ii) The amount of each payment; and
    (iii) The date of each payment.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1443(b))



            Subpart C--Procedures for Making Grants to States



Sec. 303.200  Formula for State allocations.

    (a) For each fiscal year, from the aggregate amount of funds 
available under this part for distribution to the States, the Secretary 
allots to each State an amount that bears the same ratio to the 
aggregate amount as the number of infants and toddlers in the State 
bears to the number of infants and toddlers in all States.
    (b) For the purpose of allotting funds to the States under paragraph 
(a) of this section--
    (1) Aggregate amount means the amount available for distribution to 
the States after the Secretary determines the amount of payments to be 
made to the Secretary of the Interior under Sec. 303.203 and to the 
jurisdictions under Sec. 303.204;
    (2) Infants and toddlers means children from birth through age two 
in the general population, based on the most recent satisfactory data as 
determined by the Secretary; and
    (3) State means each of the 50 States, the District of Columbia, and 
the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1443(c))



Sec. 303.201  Distribution of allotments from non-participating States.

    If a State elects not to receive its allotment, the Secretary 
reallots those funds among the remaining States, in accordance with 
Sec. 303.200(a).

(Authority: 20 U.S.C. 1443(d))



Sec. 303.202  Minimum grant that a State may receive.

    No State receives less than 0.5 percent of the aggregate amount 
available under Sec. 303.200 or $500,000, whichever is greater.

(Authority: 20 U.S.C. 1443(c)(2))



Sec. 303.203  Payments to the Secretary of the Interior.

    The amount of the payment to the Secretary of the Interior under 
Sec. 303.180 for any fiscal year is 1.25 percent of the aggregate amount 
available to States after the Secretary determines the amount of 
payments to be made to the jurisdictions under Sec. 303.204.

(Authority: 20 U.S.C. 1443(b))



Sec. 303.204  Payments to the jurisdictions.

    (a) From the sums appropriated to carry out this part for any fiscal 
year, the Secretary may reserve up to 1 percent for payments to the 
jurisdictions listed in Sec. 303.2 in accordance with their respective 
needs.
    (b) The provisions of Pub. L. 95-134, permitting the consolidation 
of grants to the outlying areas, do not apply to funds provided under 
paragraph (a) of this section.

(Authority: 20 U.S.C. 1443(a))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]

[[Page 191]]



Subpart D--Program and Service Components of a Statewide System of Early 
                          Intervention Services

                                 General



Sec. 303.300  State eligibility criteria and procedures.

    Each statewide system of early intervention services must include 
the eligibility criteria and procedures, consistent with Sec. 303.16, 
that will be used by the State in carrying out programs under this part.
    (a) The State shall define developmental delay by--
    (1) Describing, for each of the areas listed in Sec. 303.16(a)(1), 
the procedures, including the use of informed clinical opinion, that 
will be used to measure a child's development; and
    (2) Stating the levels of functioning or other criteria that 
constitute a developmental delay in each of those areas.
    (b) The State shall describe the criteria and procedures, including 
the use of informed clinical opinion, that will be used to determine the 
existence of a condition that has a high probability of resulting in 
developmental delay under Sec. 303.16(a)(2).
    (c) If the State elects to include in its system children who are at 
risk under Sec. 303.16(b), the State shall describe the criteria and 
procedures, including the use of informed clinical opinion, that will be 
used to identify those children.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1432(5), 1435(a)(1))
    Note: Under this section and Sec. 303.322(c)(2), States are required 
to ensure that informed clinical opinion is used in determining a 
child's eligibility under this part. Informed clinical opinion is 
especially important if there are no standardized measures, or if the 
standardized procedures are not appropriate for a given age or 
developmental area. If a given standardized procedure is considered to 
be appropriate, a State's criteria could include percentiles or 
percentages of levels of functioning on standardized measures.



Sec. 303.301  Central directory.

    (a) Each system must include a central directory of information 
about--
    (1) Public and private early intervention services, resources, and 
experts available in the State;
    (2) Research and demonstration projects being conducted in the 
State; and
    (3) Professional and other groups that provide assistance to 
children eligible under this part and their families.
    (b) The information required in paragraph (a) of this section must 
be in sufficient detail to--
    (1) Ensure that the general public will be able to determine the 
nature and scope of the services and assistance available from each of 
the sources listed in the directory; and
    (2) Enable the parent of a child eligible under this part to 
contact, by telephone or letter, any of the sources listed in the 
directory.
    (c) The central directory must be--
    (1) Updated at least annually; and
    (2) Accessible to the general public.
    (d) To meet the requirements in paragraph (c)(2) of this section, 
the lead agency shall arrange for copies of the directory to be 
available--
    (1) In each geographic region of the State, including rural areas; 
and
    (2) In places and a manner that ensure accessibility by persons with 
disabilities.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(7))
    Note: Examples of appropriate groups that provide assistance to 
eligible children and their families include parent support groups and 
advocate associations.

                      Identification and Evaluation



Sec. 303.320  Public awareness program.

    Each system must include a public awareness program that focuses on 
the early identification of children who are eligible to receive early 
intervention services under this part and includes the preparation and 
dissemination by the lead agency to all primary referral sources, 
especially hospitals and physicians, of materials for parents on the 
availability of early intervention services. The public awareness 
program must provide for informing the public about--
    (a) The State's early intervention program;

[[Page 192]]

    (b) The child find system, including--
    (1) The purpose and scope of the system;
    (2) How to make referrals; and
    (3) How to gain access to a comprehensive, multidisciplinary 
evaluation and other early intervention services; and
    (c) The central directory.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(6))
    Note 1: An effective public awareness program is one that does the 
following:
    1. Provides a continuous, ongoing effort that is in effect 
throughout the State, including rural areas;
    2. Provides for the involvement of, and communication with, major 
organizations throughout the State that have a direct interest in this 
part, including public agencies at the State and local level, private 
providers, professional associations, parent groups, advocate 
associations, and other organizations;
    3. Has coverage broad enough to reach the general public, including 
those who have disabilities; and
    4. Includes a variety of methods for informing the public about the 
provisions of this part.
    Note 2: Examples of methods for informing the general public about 
the provisions of this part include: (1) Use of television, radio, and 
newspaper releases, (2) pamphlets and posters displayed in doctors' 
offices, hospitals, and other appropriate locations, and (3) the use of 
a toll-free telephone service.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.321  Comprehensive child find system.

    (a) General. (1) Each system must include a comprehensive child find 
system that is consistent with part B of the Act (see 34 CFR 300.128), 
and meets the requirements of paragraphs (b) through (e) of this 
section.
    (2) The lead agency, with the advice and assistance of the Council, 
shall be responsible for implementing the child find system.
    (b) Procedures. The child find system must include the policies and 
procedures that the State will follow to ensure that--
    (1) All infants and toddlers in the State who are eligible for 
services under this part are identified, located, and evaluated; and
    (2) An effective method is developed and implemented to determine 
which children are receiving needed early intervention services.
    (c) Coordination. (1) The lead agency, with the assistance of the 
Council, shall ensure that the child find system under this part is 
coordinated with all other major efforts to locate and identify children 
conducted by other State agencies responsible for administering the 
various education, health, and social service programs relevant to this 
part, tribes and tribal organizations that receive payments under this 
part, and other tribes and tribal organizations as appropriate, 
including efforts in the--
    (i) Program authorized under part B of the Act;
    (ii) Maternal and Child Health program under title V of the Social 
Security Act;
    (iii) Early Periodic Screening, Diagnosis and Treatment (EPSDT) 
program under title XIX of the Social Security Act;
    (iv) Developmental Disabilities Assistance and Bill of Rights Act;
    (v) Head Start Act; and
    (vi) Supplemental Security Income program under title XVI of the 
Social Security Act.
    (2) The lead agency, with the advice and assistance of the Council, 
shall take steps to ensure that--
    (i) There will not be unnecessary duplication of effort by the 
various agencies involved in the State's child find system under this 
part; and
    (ii) The State will make use of the resources available through each 
public agency in the State to implement the child find system in an 
effective manner.
    (d) Referral procedures. (1) The child find system must include 
procedures for use by primary referral sources for referring a child to 
the appropriate public agency within the system for--
    (i) Evaluation and assessment, in accordance with Secs. 303.322 and 
303.323; or
    (ii) As appropriate, the provision of services, in accordance with 
Sec. 303.342(a) or Sec. 303.345.
    (2) The procedures required in paragraph (b)(1) of this section 
must--

[[Page 193]]

    (i) Provide for an effective method of making referrals by primary 
referral sources;
    (ii) Ensure that referrals are made no more than two working days 
after a child has been identified; and
    (iii) Include procedures for determining the extent to which primary 
referral sources, especially hospitals and physicians, disseminate the 
information, as described in Sec. 303.320, prepared by the lead agency 
on the availability of early intervention services to parents of infants 
and toddlers with disabilities.
    (3) As used in paragraph (d)(1) of this section, primary referral 
sources includes--
    (i) Hospitals, including prenatal and postnatal care facilities;
    (ii) Physicians;
    (iii) Parents;
    (iv) Day care programs;
    (v) Local educational agencies;
    (vi) Public health facilities;
    (vii) Other social service agencies; and
    (viii) Other health care providers.
    (e) Timelines for public agencies to act on referrals. (1) Once the 
public agency receives a referral, it shall appoint a service 
coordinator as soon as possible.
    (2) Within 45 days after it receives a referral, the public agency 
shall--
    (i) Complete the evaluation and assessment activities in 
Sec. 303.322; and
    (ii) Hold an IFSP meeting, in accordance with Sec. 303.342.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1432(4)(E)(vii), 1435(a)(5))
    Note: In developing the child find system under this part, States 
should consider (1) tracking systems based on high-risk conditions at 
birth, and (2) other activities that are being conducted by various 
agencies or organizations in the State.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.322  Evaluation and assessment.

    (a) General. (1) Each system must include the performance of a 
timely, comprehensive, multidisciplinary evaluation of each child, birth 
through age two, referred for evaluation, and a family-directed 
identification of the needs of each child's family to appropriately 
assist in the development of the child.
    (2) The lead agency shall be responsible for ensuring that the 
requirements of this section are implemented by all affected public 
agencies and service providers in the State.
    (b) Definitions of evaluation and assessment. As used in this part--
    (1) Evaluation means the procedures used by appropriate qualified 
personnel to determine a child's initial and continuing eligibility 
under this part, consistent with the definition of ``infants and 
toddlers with disabilities'' in Sec. 303.16, including determining the 
status of the child in each of the developmental areas in paragraph 
(c)(3)(ii) of this section.
    (2) Assessment means the ongoing procedures used by appropriate 
qualified personnel throughout the period of a child's eligibility under 
this part to identify--
    (i) The child's unique strengths and needs and the services 
appropriate to meet those needs; and
    (ii) The resources, priorities, and concerns of the family and the 
supports and services necessary to enhance the family's capacity to meet 
the developmental needs of their infant or toddler with a disability.
    (c) Evaluation and assessment of the child. The evaluation and 
assessment of each child must--
    (1) Be conducted by personnel trained to utilize appropriate methods 
and procedures;
    (2) Be based on informed clinical opinion; and
    (3) Include the following:
    (i) A review of pertinent records related to the child's current 
health status and medical history.
    (ii) An evaluation of the child's level of functioning in each of 
the following developmental areas:
    (A) Cognitive development.
    (B) Physical development, including vision and hearing.
    (C) Communication development.
    (D) Social or emotional development.
    (E) Adaptive development.
    (iii) An assessment of the unique needs of the child in terms of 
each of the developmental areas in paragraph (c)(3)(ii) of this section, 
including the

[[Page 194]]

identification of services appropriate to meet those needs.
    (d) Family assessment. (1) Family assessments under this part must 
be family-directed and designed to determine the resources, priorities, 
and concerns of the family and the identification of the supports and 
services necessary to enhance the family's capacity to meet the 
developmental needs of the child.
    (2) Any assessment that is conducted must be voluntary on the part 
of the family.
    (3) If an assessment of the family is carried out, the assessment 
must--
    (i) Be conducted by personnel trained to utilize appropriate methods 
and procedures;
    (ii) Be based on information provided by the family through a 
personal interview; and
    (iii) Incorporate the family's description of its resources, 
priorities, and concerns related to enhancing the child's development.
    (e) Timelines. (1) Except as provided in paragraph (e)(2) of this 
section, the evaluation and initial assessment of each child (including 
the family assessment) must be completed within the 45-day time period 
required in Sec. 303.321(e).
    (2) The lead agency shall develop procedures to ensure that in the 
event of exceptional circumstances that make it impossible to complete 
the evaluation and assessment within 45 days (e.g., if a child is ill), 
public agencies will--
    (i) Document those circumstances; and
    (ii) Develop and implement an interim IFSP, to the extent 
appropriate and consistent with Sec. 303.345 (b)(1) and (b)(2).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(3); 1436 (a)(1), (a)(2), (d)(1), and 
(d)(2))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.323  Nondiscriminatory procedures.

    Each lead agency shall adopt nondiscriminatory evaluation and 
assessment procedures. The procedures must provide that public agencies 
responsible for the evaluation and assessment of children and families 
under this part shall ensure, at a minimum, that--
    (a) Tests and other evaluation materials and procedures are 
administered in the native language of the parents or other mode of 
communication, unless it is clearly not feasible to do so;
    (b) Any assessment and evaluation procedures and materials that are 
used are selected and administered so as not to be racially or 
culturally discriminatory;
    (c) No single procedure is used as the sole criterion for 
determining a child's eligibility under this part; and
    (d) Evaluations and assessments are conducted by qualified 
personnel.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(3); 1436 (a)(1), (d)(2), and (d)(3))

               Individualized Family Service Plans (IFSPs)



Sec. 303.340  General.

    (a) Each system must include policies and procedures regarding 
individualized family service plans (IFSPs) that meet the requirements 
of this section and Secs. 303.341 through 303.346.
    (b) As used in this part, individualized family service plan and 
IFSP mean a written plan for providing early intervention services to a 
child eligible under this part and the child's family. The plan must--
    (1) Be developed in accordance with Secs. 303.342 and 303.343;
    (2) Be based on the evaluation and assessment described in 
Sec. 303.322; and
    (3) Include the matters specified in Sec. 303.344.
    (c) Lead agency responsibility. The lead agency shall ensure that an 
IFSP is developed and implemented for each eligible child, in accordance 
with the requirements of this part. If there is a dispute between 
agencies as to who has responsibility for developing or implementing an 
IFSP, the lead agency shall resolve the dispute or assign 
responsibility.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436)

[[Page 195]]

    Note: In instances where an eligible child must have both an IFSP 
and an individualized service plan under another Federal program, it may 
be possible to develop a single consolidated document, provided that it 
(1) contains all of the required information in Sec. 303.344, and (2) is 
developed in accordance with the requirements of this part.



Sec. 303.341  [Reserved]



Sec. 303.342  Procedures for IFSP development, review, and evaluation.

    (a) Meeting to develop initial IFSP--timelines. For a child who has 
been evaluated for the first time and determined to be eligible, a 
meeting to develop the initial IFSP must be conducted within the 45-day 
time period in Sec. 303.321(e).
    (b) Periodic review. (1) A review of the IFSP for a child and the 
child's family must be conducted every six months, or more frequently if 
conditions warrant, or if the family requests such a review. The purpose 
of the periodic review is to determine--
    (i) The degree to which progress toward achieving the outcomes is 
being made; and
    (ii) Whether modification or revision of the outcomes or services is 
necessary.
    (2) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (c) Annual meeting to evaluate the IFSP. A meeting must be conducted 
on at least an annual basis to evaluate the IFSP for a child and the 
child's family, and, as appropriate, to revise its provisions. The 
results of any current evaluations conducted under Sec. 303.322(c), and 
other information available from the ongoing assessment of the child and 
family, must be used in determining what services are needed and will be 
provided.
    (d) Accessibility and convenience of meetings. (1) IFSP meetings 
must be conducted--
    (i) In settings and at times that are convenient to families; and
    (ii) In the native language of the family or other mode of 
communication used by the family, unless it is clearly not feasible to 
do so.
    (2) Meeting arrangements must be made with, and written notice 
provided to, the family and other participants early enough before the 
meeting date to ensure that they will be able to attend.
    (e) Parental consent. The contents of the IFSP must be fully 
explained to the parents and informed written consent from the parents 
must be obtained prior to the provision of early intervention services 
described in the plan. If the parents do not provide consent with 
respect to a particular early intervention service or withdraw consent 
after first providing it, that service may not be provided. The early 
intervention services to which parental consent is obtained must be 
provided.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436)
    Note: The requirement for the annual evaluation incorporates the 
periodic review process. Therefore, it is necessary to have only one 
separate periodic review each year (i.e., six months after the initial 
and subsequent annual IFSP meetings), unless conditions warrant 
otherwise.

    Because the needs of infants and toddlers change so rapidly during 
the course of a year, certain evaluation procedures may need to be 
repeated before conducting the periodic reviews and annual evaluation 
meetings in paragraphs (b) and (c) of this section.



Sec. 303.343  Participants in IFSP meetings and periodic reviews.

    (a) Initial and annual IFSP meetings. (1) Each initial meeting and 
each annual meeting to evaluate the IFSP must include the following 
participants:
    (i) The parent or parents of the child.
    (ii) Other family members, as requested by the parent, if feasible 
to do so;
    (iii) An advocate or person outside of the family, if the parent 
requests that the person participate.
    (iv) The service coordinator who has been working with the family 
since the initial referral of the child for evaluation, or who has been 
designated by the public agency to be responsible for implementation of 
the IFSP.
    (v) A person or persons directly involved in conducting the 
evaluations and assessments in Sec. 303.322.

[[Page 196]]

    (vi) As appropriate, persons who will be providing services to the 
child or family.
    (2) If a person listed in paragraph (a)(1)(v) of this section is 
unable to attend a meeting, arrangements must be made for the person's 
involvement through other means, including--
    (i) Participating in a telephone conference call;
    (ii) Having a knowledgeable authorized representative attend the 
meeting; or
    (iii) Making pertinent records available at the meeting.
    (b) Periodic review. Each periodic review must provide for the 
participation of persons in paragraphs (a)(1)(i) through (a)(1)(iv) of 
this section. If conditions warrant, provisions must be made for the 
participation of other representatives identified in paragraph (a) of 
this section.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436(b))



Sec. 303.344  Content of an IFSP.

    (a) Information about the child's status. (1) The IFSP must include 
a statement of the child's present levels of physical development 
(including vision, hearing, and health status), cognitive development, 
communication development, social or emotional development, and adaptive 
development.
    (2) The statement in paragraph (a)(1) of this section must be based 
on professionally acceptable objective criteria.
    (b) Family information. With the concurrence of the family, the IFS 
must include a statement of the family's resources, priorities, and 
concerns related to enhancing the development of the child.
    (c) Outcomes. The IFSP must include a statement of the major 
outcomes expected to be achieved for the child and family, and the 
criteria, procedures, and timeliness used to determine--
    (1) The degree to which progress toward achieving the outcomes is 
being made; and
    (2) Whether modifications or revisions of the outcomes or services 
are necessary.
    (d) Early intervention services. (1) The IFSP must include a 
statement of the specific early intervention services necessary to meet 
the unique needs of the child and the family to achieve the outcomes 
identified in paragraph (c) of this section, including--
    (i) The frequency, intensity, and method of delivering the services;
    (ii) The natural environments, as described in Sec. 303.12(b), and 
Sec. 303.18 in which early intervention services will be provided, and a 
justification of the extent, if any, to which the services will not be 
providied in a natural environment;
    (iii) The location of the services; and
    (iv) The payment arrangements, if any.
    (2) As used in paragraph (d)(1)(i) of this section--
    (i) Frequency and intensity mean the number of days or sessions that 
a service will be provided, the length of time the service is provided 
during each session, and whether the service is provided on an 
individual or group basis; and
    (ii) Method means how a service is provided.
    (3) As used in paragraph (d)(1)(iii) of this section, location means 
the actual place or places where a service will be provided.
    (e) Other services. (1) To the extent appropriate, the IFSP must 
include--
    (i) Medical and other services that the child needs, but that are 
not required under this part; and
    (ii) The funding sources to be used in paying for those services or 
the steps that will be taken to secure those services through public or 
private sources.
    (2) The requirement in paragraph (e)(1) of this section does not 
apply to routine medical services (e.g., immunizations and ``well-baby'' 
care), unless a child needs those services and the services are not 
otherwise available or being provided.
    (f) Dates; duration of services. The IFSP must include--
    (1) The projected dates for initiation of the services in paragraph 
(d)(1) of this section as soon as possible after the IFSP meetings 
described in Sec. 303.342; and
    (2) The anticipated duration of those services.
    (g) Service coordinator. (1) The IFSP must include the name of the 
service coordinator from the profession most

[[Page 197]]

immediately relevant to the child's or family's needs (or who is 
otherwise qualified to carry out all applicable responsibilities under 
this part), who will be responsible for the implementation of the IFSP 
and coordination with other agencies and persons.
    (2) In meeting the requirements in paragraph (g)(1) of this section, 
the public agency may--
    (i) Assign the same service coordinator who was appointed at the 
time that the child was initially referred for evaluation to be 
responsible for implementing a child's and family's IFSP; or
    (ii) Appoint a new service coordinator.
    (3) As used in paragraph (g)(1) of this section, the term profession 
includes ``service coordination.''
    (h) Transition from Part C services. (1) The IFSP must include the 
steps to be taken to support the transition of the child, in accordance 
with Sec. 303.148, to--
    (i) Preschool services under Part B of the Act, to the extent that 
those services are appropriate; or
    (ii) Other services that may be available, if appropriate.
    (2) The steps required in paragraph (h)(1) of this section include--
    (i) Discussions with, and training of, parents regarding future 
placements and other matters related to the child's transition;
    (ii) Procedures to prepare the child for changes in service 
delivery, including steps to help the child adjust to, and function in, 
a new setting; and
    (iii) With parental consent, the transmission of information about 
the child to the local educational agency, to ensure continuity of 
services, including evaluation and assessment information required in 
Sec. 303.322, and copies of IFSPs that have been developed and 
implemented in accordance with Secs. 303.340 through 303.346.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436(d))
    Note 1: With respect to the requirements in paragraph (d) of this 
section, the appropriate location of services for some infants and 
toddlers might be a hospital setting--during the period in which they 
require extensive medical intervention. However, for these and other 
eligible children, early intervention services must be provided in 
natural environments (e.g., the home, child care centers, or other 
community settings) to the maximum extent appropriate to the needs of 
the child.
    Note 2: Throughout the process of developing and implementing IFSPs 
for an eligible child and the child's family, it is important for 
agencies to recognize the variety of roles that family members play in 
enhancing the child's development. It also is important that the degree 
to which the needs of the family are addressed in the IFSP process is 
determined in a collaborative manner with the full agreement and 
participation of the parents of the child. Parents retain the ultimate 
decision in determining whether they, their child, or other family 
members will accept or decline services under this part.
    Note 3: The early intervention services in paragraph (d) of this 
section are those services that a State is required to provide to a 
child in accordance with Sec. 303.12.

    The ``other services'' in paragraph (e) of this section are services 
that a child or family needs, but that are neither required nor covered 
under this part. While listing the non-required services in the IFSP 
does not mean that those services must be provided, their identification 
can be helpful to both the child's family and the service coordinator, 
for the following reasons: First, the IFSP would provide a comprehensive 
picture of the child's total service needs (including the need for 
medical and health services, as well as early intervention services). 
Second, it is appropriate for the service coordinator to assist the 
family in securing the non-required services (e.g., by (1) determining 
if there is a public agency that could provide financial assistance, if 
needed, (2) assisting in the preparation of eligibility claims or 
insurance claims, if needed, and (3) assisting the family in seeking out 
and arranging for the child to receive the needed medical-health 
services).
    Thus, to the extent appropriate, it is important for a State's 
procedures under this part to provide for ensuring that other needs of 
the child, and of the family related to enhancing the development of the 
child, such as medical and health needs, are considered and addressed, 
including determining (1) who will provide each service, and when, 
where, and how it will be provided, and (2) how the service will be paid 
for (e.g., through private insurance, an existing Federal-State funding 
source, such as Medicaid or EPSDT, or some other funding arrangement).
    Note 4: Although the IFSP must include information about each of the 
items in paragraphs (b) through (h) of this section, this does not mean 
that the IFSP must be a detailed, lengthy document. It might be a brief 
outline, with appropriate attachments that address each of the points in 
the paragraphs under this section. It is important for the IFSP itself 
to be clear about (a) what services are to be provided, (b) the actions 
that

[[Page 198]]

are to be taken by the service coordinator in initiating those services, 
and (c) what actions will be taken by the parents.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998; 
64 FR 12536, Mar. 12, 1999]



Sec. 303.345  Provision of services before evaluation and assessment are completed.

    Early intervention services for an eligible child and the child's 
family may commence before the completion of the evaluation and 
assessment in Sec. 303.322, if the following conditions are met:
    (a) Parental consent is obtained.
    (b) An interim IFSP is developed that includes--
    (1) The name of the service coordinator who will be responsible, 
consistent with Sec. 303.344(g), for implementation of the interim IFSP 
and coordination with other agencies and persons; and
    (2) The early intervention services that have been determined to be 
needed immediately by the child and the child's family.
    (c) The evaluation and assessment are completed within the time 
period required in Sec. 303.322(e).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436(c))
    Note: This section is intended to accomplish two specific purposes: 
(1) To facilitate the provision of services in the event that a child 
has obvious immediate needs that are identified, even at the time of 
referral (e.g., a physician recommends that a child with cerebral palsy 
begin receiving physical therapy as soon as possible), and (2) to ensure 
that the requirements for the timely evaluation and assessment are not 
circumvented.



Sec. 303.346  Responsibility and accountability.

    Each agency or person who has a direct role in the provision of 
early intervention services is responsible for making a good faith 
effort to assist each eligible child in achieving the outcomes in the 
child's IFSP. However, part C of the Act does not require that any 
agency or person be held accountable if an eligible child does not 
achieve the growth projected in the child's IFSP.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1436)

                    Personnel Training and Standards



Sec. 303.360  Comprehensive system of personnel development.

    (a) Each system must include a comprehensive system of personnel 
development.
    (b) The personnel development system under this part must--
    (1) Be consistent with the comprehensive system of personnel 
development required under part B of the Act (34 CFR 300.380 through 
300.387);
    (2) Provide for preservice and inservice training to be conducted on 
an interdisciplinary basis, to the extent appropriate;
    (3) Provide for the training of a variety of personnel needed to 
meet the requirements of this part, including public and private 
providers, primary referral sources, paraprofessionals, and persons who 
will serve as service coordinators; and
    (4) Ensure that the training provided relates specifically to--
    (i) Understanding the basic components of early intervention 
services available in the State;
    (ii) Meeting the interrelated social or emotional, health, 
developmental, and educational needs of eligible children under this 
part; and
    (iii) Assisting families in enhancing the development of their 
children, and in participating fully in the development and 
implementation of IFSPs.
    (c) A personnel development system under this part may include--
    (1) Implementing innovative strategies and activities for the 
recruitment and retention of early intervention service providers;
    (2) Promoting the preparation of early intervention providers who 
are fully and appropriately qualified to provide early intervention 
services under this part;
    (3) Training personnel to work in rural and inner-city areas; and

[[Page 199]]

    (4) Training personnel to coordinate transition services for infants 
and toddlers with disabilities from an early intervention program under 
this part to a preschool program under part B of the Act or to other 
preschool or other appropriate services.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(8))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



Sec. 303.361  Personnel standards.

    (a) As used in this part--
    (1) Appropriate professional requirements in the State means entry 
level requirements that--
    (i) Are based on the highest requirements in the State applicable to 
the profession or discipline in which a person is providing early 
intervention services; and
    (ii) Establish suitable qualifications for personnel providing early 
intervention services under this part to eligible children and their 
families who are served by State, local, and private agencies.
    (2) Highest requirements in the State applicable to a specific 
profession or discipline means the highest entry-level academic degree 
needed for any State approved or recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline.
    (3) Profession or discipline means a specific occupational category 
that--
    (i) Provides early intervention services to children eligible under 
this part and their families;
    (ii) Has been established or designated by the State; and
    (iii) Has a required scope of responsibility and degree of 
supervision.
    (4) State approved or recognized certification, licensing, 
registration, or other comparable requirements means the requirements 
that a State legislature either has enacted or has authorized a State 
agency to promulgate through rules to establish the entry-level 
standards for employment in a specific profession or discipline in that 
State.
    (b)(1) Each statewide system must have policies and procedures 
relating to the establishment and maintenance of standards to ensure 
that personnel necessary to carry out the purposes of this part are 
appropriately and adequately prepared and trained.
    (2) The policies and procedures required in paragraph (b)(1) of this 
section must provide for the establishment and maintenance of standards 
that are consistent with any State-approved or State-recognized 
certification, licensing, registration, or other comparable requirements 
that apply to the profession or discipline in which a person is 
providing early intervention services.
    (c) To the extent that a State's standards for a profession or 
discipline, including standards for temporary or emergency 
certification, are not based on the highest requirements in the State 
applicable to a specific profession or discipline, the State's 
application for assistance under this part must include the steps the 
State is taking, the procedures for notifying public agencies and 
personnel of those steps, and the timelines it has established for the 
retraining or hiring of personnel that meet appropriate professional 
requirements in the State.
    (d)(1) In meeting the requirements in paragraphs (b) and (c) of this 
section, a determination must be made about the status of personnel 
standards in the State. That determination must be based on current 
information that accurately describes, for each profession or discipline 
in which personnel are providing early intervention services, whether 
the applicable standards are consistent with the highest requirements in 
the State for that profession or discipline.
    (2) The information required in paragraph (d)(1) of this section 
must be on file in the lead agency, and available to the public.
    (e) In identifying the ``highest requirements in the State'' for 
purposes of this section, the requirements of all State statutes and the 
rules of all State agencies applicable to serving children eligible 
under this part and their families must be considered.
    (f) A State may allow paraprofessionals and assistants who are 
appropriately trained and supervised, in accordance with State law, 
regulations,

[[Page 200]]

or written policy, to assist in the provision of early intervention 
services to eligible children under this part.
    (g) In implementing this section, a State may adopt a policy that 
includes making ongoing good-faith efforts to recruit and hire 
appropriately and adequately trained personnel to provide early 
intervention services to eligible children, including, in a geographic 
area of the State where there is a shortage of personnel that meet these 
qualifications, the most qualified individuals available who are making 
satisfactory progress toward completing applicable course work necessary 
to meet the standards described in paragraph (b)(2) of this section, 
consistent with State law, within 3 years.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(9))
    Note: This section requires that a State use its own existing 
highest requirements to determine the standards appropriate to personnel 
who provide early intervention services under this part. The regulations 
do not require States to set any specified training standard, such as a 
master's degree, for employment of personnel who provide services under 
this part.
    The regulations permit each State to determine the specific 
occupational categories required to provide early intervention services 
to children eligible under this part and their families, and to revise 
or expand these categories as needed. The professions or disciplines 
need not be limited to traditional occupational categories.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18295, Apr. 14, 1998]



                    Subpart E--Procedural Safeguards

                                 General



Sec. 303.400  General responsibility of lead agency for procedural safeguards.

    Each lead agency shall be responsible for--
    (a) Establishing or adopting procedural safeguards that meet the 
requirements of this subpart; and
    (b) Ensuring effective implementation of the safeguards by each 
public agency in the State that is involved in the provision of early 
intervention services under this part.

(Authority: 20 U.S.C. 1439)



Sec. 303.401  Definitions of consent, native language, and personally identifiable information.

    As used in this subpart--
    (a) Consent means that--
    (1) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in the parent's native 
language or other mode of communication;
    (2) The parent understands and agrees in writing to the carrying out 
of the activity for which consent is sought, and the consent describes 
that activity and lists the records (if any) that will be released and 
to whom; and
    (3) The parent understands that the granting of consent is voluntary 
on the part of the parent and may be revoked at any time;
    (b) Native language, where used with reference to persons of limited 
English proficiency, means the language or mode of communication 
normally used by the parent of a child eligible under this part;
    (c) Personally identifiable means that information includes--
    (1) The name of the child, the child's parent, or other family 
member;
    (2) The address of the child;
    (3) A personal identifier, such as the child's or parent's social 
security number; or
    (4) A list of personal characteristics or other information that 
would make it possible to identify the child with reasonable certainty.

(Authority: 20 U.S.C. 1439)



Sec. 303.402  Opportunity to examine records.

    In accordance with the confidentiality procedures in the regulations 
under part B of the Act (34 CFR 300.560 through 300.576), the parents of 
a child eligible under this part must be afforded the opportunity to 
inspect and review records relating to evaluations and assessments, 
eligibility determinations, development and implementation of IFSPs, 
individual complaints dealing with the child, and any other area under 
this part involving records about the child and the child's family.

(Authority: 20 U.S.C. 1439(a)(4))

[[Page 201]]



Sec. 303.403  Prior notice; native language.

    (a) General. Written prior notice must be given to the parents of a 
child eligible under this part a reasonable time before a public agency 
or service provider proposes, or refuses, to initiate or change the 
identification, evaluation, or placement of the child, or the provision 
of appropriate early intervention services to the child and the child's 
family.
    (b) Content of notice. The notice must be in sufficient detail to 
inform the parents about--
    (1) The action that is being proposed or refused;
    (2) The reasons for taking the action;
    (3) All procedural safeguards that are available under 
Secs. 303.401-303.460 of this part; and
    (4) The State complaint procedures under Secs. 303.510-303.512, 
including a description of how to file a complaint and the timelines 
under those procedures.
    (c) Native language. (1) The notice must be--
    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parents, unless it is 
clearly not feasible to do so.
    (2) If the native language or other mode of communication of the 
parent is not a written language, the public agency, or designated 
service provider, shall take steps to ensure that--
    (i) The notice is translated orally or by other means to the parent 
in the parent's native language or other mode of communication;
    (ii) The parent understands the notice; and
    (iii) There is written evidence that the requirements of this 
paragraph have been met.
    (3) If a parent is deaf or blind, or has no written language, the 
mode of communication must be that normally used by the parent (such as 
sign language, braille, or oral communication).

(Authority: 20 U.S.C. 1439(a)(6) and (7))

[58 FR 40959, July 30, 1993, as amended at 64 FR 12536, Mar. 12, 1999]



Sec. 303.404  Parent consent.

    (a) Written parental consent must be obtained before--
    (1) Conducting the initial evaluation and assessment of a child 
under Sec. 303.322; and
    (2) Initiating the provision of early intervention services (see 
Sec. 303.342(e)).
    (b) If consent is not given, the public agency shall make reasonable 
efforts to ensure that the parent--
    (1) Is fully aware of the nature of the evaluation and assessment or 
the services that would be available; and
    (2) Understands that the child will not be able to receive the 
evaluation and assessment or services unless consent is given.

(Authority: 20 U.S.C. 1439)
    Note 1: In addition to the consent requirements in this section, 
other consent requirements are included in (1) Sec. 303.460(a), 
regarding the exchange of personally identifiable information among 
agencies, and (2) the confidentiality provisions in the regulations 
under part B of the Act (34 CFR 300.571) and 34 CFR part 99 (Family 
Educational Rights and Privacy), both of which apply to this part.
    Note 2: Under Sec. 300.504(b) of the part B regulations, a public 
agency may initiate procedures to challenge a parent's refusal to 
consent to the initial evaluation of the parent's child and, if 
successful, obtain the evaluation. This provision applies to eligible 
children under this part, since the part B evaluation requirement 
applies to all children with disabilities in a State, including infants 
and toddlers.



Sec. 303.405  Parent right to decline service.

    The parents of a child eligible under this part may determine 
whether they, their child, or other family members will accept or 
decline any early intervention service under this part in accordance 
with State law, and may decline such a service after first accepting it, 
without jeopardizing other early intervention services under this part.

(Authority: 20 U.S.C. 1439(a)(3))



Sec. 303.406  Surrogate parents.

    (a) General. Each lead agency shall ensure that the rights of 
children eligible under this part are protected if--
    (1) No parent (as defined in Sec. 303.18) can be identified;
    (2) The public agency, after reasonable efforts, cannot discover the 
whereabouts of a parent; or
    (3) The child is a ward of the State under the laws of that State.

[[Page 202]]

    (b) Duty of lead agency and other public agencies. The duty of the 
lead agency, or other public agency under paragraph (a) of this section, 
includes the assignment of an individual to act as a surrogate for the 
parent. This must include a method for--
    (1) Determining whether a child needs a surrogate parent; and
    (2) Assigning a surrogate parent to the child.
    (c) Criteria for selecting surrogates. (1) The lead agency or other 
public agency may select a surrogate parent in any way permitted under 
State law.
    (2) Public agencies shall ensure that a person selected as a 
surrogate parent--
    (i) Has no interest that conflicts with the interests of the child 
he or she represents; and
    (ii) Has knowledge and skills that ensure adequate representation of 
the child.
    (d) Non-employee requirement; compensation. (1) A person assigned as 
a surrogate parent may not be--
    (i) An employee of any State agency; or
    (ii) A person or an employee of a person providing early 
intervention services to the child or to any family member of the child.
    (2) A person who otherwise qualifies to be a surrogate parent under 
paragraph (d)(1) of this section is not an employee solely because he or 
she is paid by a public agency to serve as a surrogate parent.
    (e) Responsibilities. A surrogate parent may represent a child in 
all matters related to--
    (1) The evaluation and assessment of the child;
    (2) Development and implementation of the child's IFSPs, including 
annual evaluations and periodic reviews;
    (3) The ongoing provision of early intervention services to the 
child; and
    (4) Any other rights established under this part.

(Authority: 20 U.S.C. 1439(a)(5))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]

      Mediation and Due Process Procedures for Parents and Children



Sec. 303.419  Mediation.

    (a) General. Each State shall ensure that procedures are established 
and implemented to allow parties to disputes involving any matter 
described in Sec. 303.403(a) to resolve the disputes through a mediation 
process which, at a minimum, must be available whenever a hearing is 
requested under Sec. 303.420. The lead agency may either use the 
mediation system established under Part B of the Act or establish its 
own system.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a due process 
hearing under Sec. 303.420, or to deny any other rights afforded under 
Part C of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2) The State shall maintain a list of individuals who are qualified 
mediators and knowledgeable in laws and regulations relating to the 
provision of special education and related services.
    (3) The State shall bear the cost of the mediation process, 
including the costs of meetings described in paragraph (c) of this 
section.
    (4) Each session in the mediation process must be scheduled in a 
timely manner and must be held in a location that is convenient to the 
parties to the dispute.
    (5) An agreement reached by the parties to the dispute in the 
mediation process must be set forth in a written mediation agreement.
    (6) 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.

[[Page 203]]

    (c) Meeting to encourage mediation. A State may establish procedures 
to require parents who elect not to use the mediation process to meet, 
at a time and location convenient to the parents, with a disinterested 
party--
    (1) Who is under contract with a parent training and information 
center or community parent resource center in the State established 
under sections 682 or 683 of the Act, or an appropriate alternative 
dispute resolution entity; and
    (2) Who would explain the benefits of the mediation process and 
encourage the parents to use the process.

(Authority: 20 U.S.C. 1415(e) and 1439(a)(8))

[63 FR 18296, Apr. 14, 1998]



Sec. 303.420  Due process procedures.

    Each system must include written procedures including procedures for 
mediation as described in Sec. 303.419, for the timely administrative 
resolution of individual child complaints by parents concerning any of 
the matters in Sec. 303.403(a). A State may meet this requirement by--
    (a) Adopting the mediation and due process procedures in 34 CFR 
300.506 through 300.512 and developing procedures that meet the 
requirements of Sec. 303.425; or
    (b) Developing procedures that--
    (1) Meet the requirements in Sec. 303.419 and Secs. 303.421 through 
303.425; and
    (2) Provide parents a means of filing a complaint.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(1))
    Note 1: Sections 303.420 through 303.425 are concerned with the 
adoption of impartial procedures for resolving individual child 
complaints (i.e., complaints that generally affect only a single child 
or the child's family). These procedures require the appointment of a 
decision-maker who is impartial, as defined in Sec. 303.421(b), to 
resolve a dispute concerning any of the matters in Sec. 303.403(a). The 
decision of the impartial decision-maker is binding unless it is 
reversed on appeal.
    A different type of administrative procedure is included in 
Secs. 303.510 through 303.512 of subpart F of this part. Under those 
procedures, the lead agency is responsible for (1) investigating any 
complaint that it receives (including individual child complaints and 
those that are systemic in nature), and (2) resolving the complaint if 
the agency determines that a violation has occurred.
    Note 2: It is important that the administrative procedures developed 
by a State be designed to result in speedy resolution of complaints. An 
infant's or toddler's development is so rapid that undue delay could be 
potentially harmful.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.421  Appointment of an impartial person.

    (a) Qualifications and duties. An impartial person must be appointed 
to implement the complaint resolution process in this subpart. The 
person must--
    (1) Have knowledge about the provisions of this part and the needs 
of, and services available for, eligible children and their families; 
and
    (2) Perform the following duties:
    (i) Listen to the presentation of relevant viewpoints about the 
complaint, examine all information relevant to the issues, and seek to 
reach a timely resolution of the complaint.
    (ii) Provide a record of the proceedings, including a written 
decision.
    (b) Definition of impartial. (1) As used in this section, impartial 
means that the person appointed to implement the complaint resolution 
process--
    (i) Is not an employee of any agency or other entity involved in the 
provision of early intervention services or care of the child; and
    (ii) Does not have a personal or professional interest that would 
conflict with his or her objectivity in implementing the process.
    (2) A person who otherwise qualifies under paragraph (b)(1) of this 
section is not an employee of an agency solely because the person is 
paid by the agency to implement the complaint resolution process.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(1))



Sec. 303.422  Parent rights in administrative proceedings.

    (a) General. Each lead agency shall ensure that the parents of 
children eligible under this part are afforded the rights in paragraph 
(b) of this section

[[Page 204]]

in any administrative proceedings carried out under Sec. 303.420.
    (b) Rights. Any parent involved in an administrative proceeding has 
the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to early intervention 
services for children eligible under this part;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the proceeding that 
has not been disclosed to the parent at least five days before the 
proceeding;
    (4) Obtain a written or electronic verbatim transcription of the 
proceeding; and
    (5) Obtain written findings of fact and decisions.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439)



Sec. 303.423  Convenience of proceedings; timelines.

    (a) Any proceeding for implementing the complaint resolution process 
in this subpart must be carried out at a time and place that is 
reasonably convenient to the parents.
    (b) Each lead agency shall ensure that, not later than 30 days after 
the receipt of a parent's complaint, the impartial proceeding required 
under this subpart is completed and a written decision mailed to each of 
the parties.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(1))
    Note: Under part B of the Act, States are allowed 45 days to conduct 
an impartial due process hearing (i.e., within 45 days after the receipt 
of a request for a hearing, a decision is reached and a copy of the 
decision is mailed to each of the parties). (See 34 CFR 300.512.) Thus, 
if a State, in meeting the requirements of Sec. 303.420, elects to adopt 
the due process procedures under part B, that State would also have 45 
days for hearings. However, any State in that situation is encouraged 
(but not required) to accelerate the timeline for the due process 
hearing for children who are eligible under this part--from 45 days to 
the 30-day timeline in this section. Because the needs of children in 
the birth-through-two-age range change so rapidly, quick resolution of 
complaints is important.



Sec. 303.424  Civil action.

    Any party aggrieved by the findings and decision regarding an 
administrative complaint has the right to bring a civil action in State 
or Federal court under section 639(a)(1) of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(1))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.425  Status of a child during proceedings.

    (a) During the pendency of any proceeding involving a complaint 
under this subpart, unless the public agency and parents of a child 
otherwise agree, the child must continue to receive the appropriate 
early intervention services currently being provided.
    (b) If the complaint involves an application for initial services 
under this part, the child must receive those services that are not in 
dispute.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(7))

                             Confidentiality



Sec. 303.460  Confidentiality of information.

    (a) Each State shall adopt or develop policies and procedures that 
the State will follow in order to ensure the protection of any 
personally identifiable information collected, used, or maintained under 
this part, including the right of parents to written notice of and 
written consent to the exchange of this information among agencies 
consistent with Federal and State law.
    (b) These policies and procedures must meet the requirements in 34 
CFR 300.560 through 300.576, with the modifications specified in 
Sec. 303.5(b).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1439(a)(2), 1442)
    Note: With the modifications referred to in paragraph (b) of this 
section, the confidentiality requirements in the regulations 
implementing part B of the Act (34 CFR 300.560 through 300.576) are to 
be used by public agencies to meet the confidentiality requirements 
under part C of the Act and this section (Sec. 303.460).

[[Page 205]]

    The part B provisions incorporate by reference the regulations in 34 
CFR part 99 (Family Educational Rights and Privacy); therefore, those 
regulations also apply to this part.



                     Subpart F--State Administration

                                 General



Sec. 303.500  Lead agency establishment or designation.

    Each system must include a single line of responsibility in a lead 
agency that--
    (a) Is established or designated by the Governor; and
    (b) Is responsible for the administration of the system, in 
accordance with the requirements of this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10))



Sec. 303.501  Supervision and monitoring of programs.

    (a) General. Each lead agency is responsible for--
    (1) The general administration and supervision of programs and 
activities receiving assistance under this part; and
    (2) The monitoring of programs and activities used by the State to 
carry out this part, whether or not these programs or activities are 
receiving assistance under this part, to ensure that the State complies 
with this part.
    (b) Methods of administering programs. In meeting the requirement in 
paragraph (a) of this section, the lead agency shall adopt and use 
proper methods of administering each program, including--
    (1) Monitoring agencies, institutions, and organizations used by the 
State to carry out this part;
    (2) Enforcing any obligations imposed on those agencies under part C 
of the Act and these regulations;
    (3) Providing technical assistance, if necessary, to those agencies, 
institutions, and organizations; and
    (4) Correcting deficiencies that are identified through monitoring.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10)(A))

             Lead Agency Procedures for Resolving Complaints



Sec. 303.510  Adopting complaint procedures.

    (a) General. Each lead agency shall adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that any public agency or 
private service provider is violating a requirement of Part C of the Act 
or this Part by--
    (i) Providing for the filing of a complaint with the lead agency; 
and
    (ii) At the lead agency's discretion, providing for the filing of a 
complaint with a public agency and the right to have the lead agency 
review the public agency's decision on the complaint; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training centers, protection and advocacy 
agencies, independent living centers, and other appropriate entities, 
the State's procedures under Secs. 303.510-303.512.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which it finds a failure to provide appropriate services, a 
lead agency, pursuant to its general supervisory authority under Part C 
of the Act, must address:
    (1) How to remediate the denial of those services, including, as 
appropriate, the awarding of monetary reimbursement or other corrective 
action appropriate to the needs of the child and the child's family; and
    (2) Appropriate future provision of services for all infants and 
toddlers with disabilities and their families.

(Authority: 20 U.S.C. 1435(a)(10))

[64 FR 12536, Mar. 12, 1999]



Sec. 303.511  An organization or individual may file a complaint.

    (a) General. An individual or organization may file a written signed 
complaint under Sec. 303.510. The complaint must include--
    (1) A statement that the State has violated a requirement of part C 
of the Act or the regulations in this part; and
    (2) The facts on which the complaint is based.

[[Page 206]]

    (b) Limitations. The alleged violation must have occurred not more 
than one year before the date that the complaint is received by the 
public agency unless a longer period is reasonable because--
    (1) The alleged violation continues for that child or other 
children; or
    (2) The complainant is requesting reimbursement or corrective action 
for a violation that occurred not more than three years before the date 
on which the complaint is received by the public agency.


(Authority: 20 U.S.C. 1435(a)(10))

[64 FR 12536, Mar. 12, 1999]



Sec. 303.512  Minimum State complaint procedures.

    (a) Time limit, minimum procedures. Each lead agency shall include 
in its complaint procedures a time limit of 60 calendar days after a 
complaint is filed under Sec. 303.510(a) to--
    (1) Carry out an independent on-site investigation, if the lead 
agency determines that such an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Review all relevant information and make an independent 
determination as to whether the public agency is violating a requirement 
of Part C of the Act or of this Part; and
    (4) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the lead agency's final decision.
    (b) Time extension; final decisions; implementation. The lead 
agency's procedures described in paragraph (a) of this section also 
must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if exceptional circumstances exist with respect to a 
particular complaint; and
    (2) Include procedures for effective implementation of the lead 
agency's final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section, and due process hearings 
under Sec. 303.420. (1) If a written complaint is received that is also 
the subject of a due process hearing under Sec. 303.420, or contains 
multiple issues, of which one or more are part of that hearing, the 
State must set aside any part of the complaint that is being addressed 
in the due process hearing until the conclusion of the hearing. However, 
any issue in the complaint that is not a part of the due process action 
must be resolved within the 60-calendar-day timeline using the complaint 
procedures described in paragraphs (a) and (b) of this section.
    (2) If an issue is raised in a complaint filed under this section 
that has previously been decided in a due process hearing involving the 
same parties--
    (i) The hearing decision is binding; and
    (ii) The lead agency must inform the complainant to that effect.
    (3) A complaint alleging a public agency's or private service 
provider's failure to implement a due process decision must be resolved 
by the lead agency.

(Authority: 20 U.S.C. 1435(a)(10))

[64 FR 12536, Mar. 12, 1999]

          Policies and Procedures Related to Financial Matters



Sec. 303.520  Policies related to payment for services.

    (a) General. Each lead agency is responsible for establishing State 
policies related to how services to children eligible under this part 
and their families will be paid for under the State's early intervention 
program. The policies must--
    (1) Meet the requirements in paragraph (b) of this section; and
    (2) Be reflected in the interagency agreements required in 
Sec. 303.523.
    (b) Specific funding policies. A State's policies must--
    (1) Specify which functions and services will be provided at no cost 
to all parents;
    (2) Specify which functions or services, if any, will be subject to 
a system of payments, and include--

[[Page 207]]

    (i) Information about the payment system and schedule of sliding 
fees that will be used; and
    (ii) The basis and amount of payments; and
    (3) Include an assurance that--
    (i) Fees will not be charged for the services that a child is 
otherwise entitled to receive at no cost to parents; and
    (ii) The inability of the parents of an eligible child to pay for 
services will not result in the denial of services to the child or the 
child's family; and
    (4) Set out any fees that will be charged for early intervention 
services and the basis for those fees.
    (c) Procedures to ensure the timely provision of services. No later 
than the beginning of the fifth year of a State's participation under 
this part, the State shall implement a mechanism to ensure that no 
services that a child is entitled to receive are delayed or denied 
because of disputes between agencies regarding financial or other 
responsibilities.
    (d) Proceeds from public or private insurance. (1) Proceeds from 
public or private insurance are not treated as program income for 
purposes of 34 CFR 80.25.
    (2) If a public agency spends reimbursements from Federal funds 
(e.g., Medicaid) for services under this part, those funds are not 
considered State or local funds for purposes of the provisions contained 
in Sec. 303.124.

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10))

[58 FR 40959, July 30, 1993, as amended at 64 FR 12536, Mar. 12, 1999]



Sec. 303.521  Fees.

    (a) General. A State may establish, consistent with 
Sec. 303.12(a)(3)(iv), a system of payments for early intervention 
services, including a schedule of sliding fees.
    (b) Functions not subject to fees. The following are required 
functions that must be carried out at public expense by a State, and for 
which no fees may be charged to parents:
    (1) Implementing the child find requirements in Sec. 303.321.
    (2) Evaluation and assessment, as included in Sec. 303.322, and 
including the functions related to evaluation and assessment in 
Sec. 303.12.
    (3) Service coordination, as included in Secs. 303.22 and 
303.344(g).
    (4) Administrative and coordinative activities related to--
    (i) The development, review, and evaluation of IFSPs in 
Secs. 303.340 through 303.346; and
    (ii) Implementation of the procedural safeguards in subpart E of 
this part and the other components of the statewide system of early 
intervention services in subparts D and F of this part.
    (c) States with mandates to serve children from birth. If a State 
has in effect a State law requiring the provision of a free appropriate 
public education to children with disabilities from birth, the State may 
not charge parents for any services (e.g., physical or occupational 
therapy) required under that law that are provided to children eligible 
under this part and their families.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1432(4))



Sec. 303.522  Identification and coordination of resources.

    (a) Each lead agency is responsible for--
    (1) The identification and coordination of all available resources 
for early intervention services within the State, including those from 
Federal, State, local, and private sources; and
    (2) Updating the information on the funding sources in paragraph 
(a)(1) of this section, if a legislative or policy change is made under 
any of those sources.
    (b) The Federal funding sources in paragraph (a)(1) of this section 
include--
    (1) Title V of the Social Security Act (relating to Maternal and 
Child Health);
    (2) Title XIX of the Social Security Act (relating to the general 
Medicaid Program, and EPSDT);
    (3) The Head Start Act;
    (4) Parts B and H of the Act;
    (5) The Developmental Disabilities Assistance and Bill of Rights Act 
(Pub. L. 94-103); and

[[Page 208]]

    (6) Other Federal programs.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10)(B))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.523  Interagency agreements.

    (a) General. Each lead agency is responsible for entering into 
formal interagency agreements with other State-level agencies involved 
in the State's early intervention program. Each agreement must meet the 
requirements in paragraphs (b) through (d) of this section.
    (b) Financial responsibility. Each agreement must define the 
financial responsibility, in accordance with Sec. 303.143, of the agency 
for paying for early intervention services (consistent with State law 
and the requirements of this part).
    (c) Procedures for resolving disputes. (1) Each agreement must 
include procedures for achieving a timely resolution of intra-agency and 
interagency disputes about payments for a given service, or disputes 
about other matters related to the State's early intervention program. 
Those procedures must include a mechanism for making a final 
determination that is binding upon the agencies involved.
    (2) The agreement with each agency must--
    (i) Permit the agency to resolve its own internal disputes (based on 
the agency's procedures that are included in the agreement), so long as 
the agency acts in a timely manner; and
    (ii) Include the process that the lead agency will follow in 
achieving resolution of intra-agency disputes, if a given agency is 
unable to resolve its own internal disputes in a timely manner.
    (d) Additional components. Each agreement must include any 
additional components necessary to ensure effective cooperation and 
coordination among all agencies involved in the State's early 
intervention program.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10)(C) and (a)(10)(F))
    Note: A State may meet the requirement in paragraph (c)(1) of this 
section in any way permitted under State law, including (1) providing 
for a third party (e.g., an administrative law judge) to review a 
dispute and render a decision, (2) assignment of the responsibility by 
the Governor to the lead agency or Council, or (3) having the final 
decision made directly by the Governor.



Sec. 303.524  Resolution of disputes.

    (a) Each lead agency is responsible for resolving individual 
disputes, in accordance with the procedures in Sec. 303.523(c)(2)(ii).
    (b)(1) During a dispute, the individual or entity responsible for 
assigning financial responsibility among appropriate agencies under 
Sec. 303.143 (``financial designee'') shall assign financial 
responsibility to--
    (i) An agency, subject to the provisions in paragraph (b)(2) of this 
section; or
    (ii) The lead agency, in accordance with the ``payor of last 
resort'' provisions in Sec. 303.527.
    (2) If, during the lead agency's resolution of the dispute, the 
financial designee determines that the assignment of financial 
responsibility under paragraph (b)(1)(i) of this section was 
inappropriately made--
    (i) The financial designee shall reassign the responsibility to the 
appropriate agency; and
    (ii) The lead agency shall make arrangements for reimbursement of 
any expenditures incurred by the agency originally assigned 
responsibility.
    (c) To the extent necessary to ensure compliance with its action in 
paragraph (b)(2) of this section, the lead agency shall--
    (1) Refer the dispute to the Council or the Governor; and
    (2) Implement the procedures to ensure the delivery of services in a 
timely manner in accordance with Sec. 303.525.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10)(C) and (a)(10)(E))



Sec. 303.525  Delivery of services in a timely manner.

    Each lead agency is responsible for the development of procedures to 
ensure that services are provided to eligible children and their 
families in a timely manner, pending the resolution

[[Page 209]]

of disputes among public agencies or service providers.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(10)(D))



Sec. 303.526  Policy for contracting or otherwise arranging for services.

    Each system must include a policy pertaining to contracting or 
making other arrangements with public or private service providers to 
provide early intervention services. The policy must include--
    (a) A requirement that all early intervention services must meet 
State standards and be consistent with the provisions of this part;
    (b) The mechanisms that the lead agency will use in arranging for 
these services, including the process by which awards or other 
arrangements are made; and
    (c) The basic requirements that must be met by any individual or 
organization seeking to provide these services for the lead agency.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(11))
    Note: In implementing the statewide system, States may elect to 
continue using agencies and individuals in both the public and private 
sectors that have previously been involved in providing early 
intervention services, so long as those agencies and individuals meet 
the requirements of this part.



Sec. 303.527  Payor of last resort.

    (a) Nonsubstitution of funds. Except as provided in paragraph (b)(1) 
of this section, funds under this part may not be used to satisfy a 
financial commitment for services that would otherwise have been paid 
for from another public or private source, including any medical program 
administered by the Secretary of Defense, but for the enactment of part 
C of the Act. Therefore, funds under this part may be used only for 
early intervention services that an eligible child needs but is not 
currently entitled to under any other Federal, State, local, or private 
source.
    (b) Interim payments--reimbursement. (1) If necessary to prevent a 
delay in the timely provision of services to an eligible child or the 
child's family, funds under this part may be used to pay the provider of 
services, pending reimbursement from the agency or entity that has 
ultimate responsibility for the payment.
    (2) Payments under paragraph (b)(1) of this section may be made 
for--
    (i) Early intervention services, as described in Sec. 303.12;
    (ii) Eligible health services (see Sec. 303.13); and
    (iii) Other functions and services authorized under this part, 
including child find and evaluation and assessment.
    (3) The provisions of paragraph (b)(1) of this section do not apply 
to medical services or ``well-baby'' health care (see 
Sec. 303.13(c)(1)).
    (c) Non-reduction of benefits. Nothing in this part may be construed 
to permit a State to reduce medical or other assistance available or to 
alter eligibility under title V of the Social Security Act (SSA) 
(relating to maternal and child health) or title XIX of the SSA 
(relating to Medicaid for children eligible under this part) within the 
State.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1440)
    Note: The Congress intended that the enactment of part C not be 
construed as a license to any agency (including the lead agency and 
other agencies in the State) to withdraw funding for services that 
currently are or would be made available to eligible children but for 
the existence of the program under this part. Thus, the Congress 
intended that other funding sources would continue, and that there would 
be greater coordination among agencies regarding the payment of costs.
    The Congress further clarified its intent concerning payments under 
Medicaid by including in section 411(k)(13) of the Medicare Catastrophic 
Coverage Act of 1988 (Pub. L. 100-360) an amendment to title XIX of the 
Social Security Act. That amendment states, in effect, that nothing in 
this title shall be construed as prohibiting or restricting, or 
authorizing the Secretary of Health and Human Services to prohibit or 
restrict, payment under subsection (a) of section 1903 of the Social 
Security Act for medical assistance for covered services furnished to an 
infant or toddler with a disability because those services are included 
in the child's IFSP adopted pursuant to part C of the Act.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]

[[Page 210]]



Sec. 303.528  Reimbursement procedure.

    Each system must include a procedure for securing the timely 
reimbursement of funds used under this part, in accordance with 
Sec. 303.527(b).

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(12))

                         Reporting Requirements



Sec. 303.540  Data collection.

    (a) Each system must include the procedures that the State uses to 
compile data on the statewide system. The procedures must--
    (1) Include a process for--
    (i) Collecting data from various agencies and service providers in 
the State;
    (ii) Making use of appropriate sampling methods, if sampling is 
permitted; and
    (iii) Describing the sampling methods used, if reporting to the 
Secretary; and
    (2) Provide for reporting data required under section 618 of the Act 
that relates to this part.
    (b) The information required in paragraph (a)(2) of this section 
must be provided at the time and in the manner specified by the 
Secretary.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1435(a)(14))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]

                  Use of Funds for State Administration



Sec. 303.560  Use of funds by the lead agency.

    A lead agency may use funds under this part that are reasonable and 
necessary for administering the State's early intervention program for 
infants and toddlers with disabilities.

(Authority: 20 U.S.C. 1433, 1435(a)(10))



            Subpart G--State Interagency Coordinating Council

                                 General



Sec. 303.600  Establishment of Council.

    (a) A State that desires to receive financial assistance under this 
part shall establish a State Interagency Coordinating Council.
    (b) The Council must be appointed by the Governor. The Governor 
shall ensure that the membership of the Council reasonably represents 
the population of the State.
    (c) The Governor shall designate a member of the Council to serve as 
the chairperson of the Council or require the Council to do so. Any 
member of the Council who is a representative of the lead agency 
designated under Sec. 303.500 may not serve as the chairperson of the 
Council.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(a))
    Note: To avoid a potential conflict of interest, it is recommended 
that parent representatives who are selected to serve on the Council not 
be employees of any agency involved in providing early intervention 
services.
    It is suggested that consideration be given to maintaining an 
appropriate balance between the urban and rural communities of the 
State.

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.601  Composition.

    (a) The Council must be composed as follows:
    (1)(i) At least 20 percent of the members must be parents, including 
minority parents, of infants or toddlers with disabilities or children 
with disabilities aged 12 or younger, with knowledge of, or experience 
with, programs for infants and toddlers with disabilities.
    (ii) At least one member must be a parent of an infant or toddler 
with a disability or a child with a disability aged six or younger.
    (2) At least 20 percent of the members must be public or private 
providers of early intervention services.
    (3) At least one member must be from the State legislature.
    (4) At least one member must be involved in personnel preparation.
    (5) At least one member must--
    (i) Be from each of the State agencies involved in the provisions 
of, or payment for, early intervention services to infants and toddlers 
with disabilities and their families; and

[[Page 211]]

    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of these agencies.
    (6) At least one member must--
    (i) Be from the State educational agency responsible for preschool 
services to children with disabilities; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of that agency.
    (7) At least one member must be from the agency responsible for the 
State governance of health insurance.
    (8) At least one member must be from a Head Start agency or program 
in the State.
    (9) At least one member must be from a State agency responsible for 
child care.
    (b) The Council may include other members selected by the Governor, 
including a representative from the BIA or, where there is no school 
operated or funded by the BIA, from the Indian Health Service or the 
tribe or tribal council.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(b))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.602  Use of funds by the Council.

    (a) General. Subject to the approval of the Governor, the Council 
may use funds under this part--
    (1) To conduct hearings and forums;
    (2) To reimburse members of the Council for reasonable and necessary 
expenses for attending Council meetings and performing Council duties 
(including child care for parent representatives);
    (3) To pay compensation to a member of the Council if the member is 
not employed or must forfeit wages from other employment when performing 
official Council business;
    (4) To hire staff; and
    (5) To obtain the services of professional, technical, and clerical 
personnel, as may be necessary to carry out the performance of its 
functions under this part.
    (b) Compensation and expenses of Council members. Except as provided 
in paragraph (a) of this section, Council members shall serve without 
compensation from funds available under this part.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1438, 1441 (c) and (d))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.603  Meetings.

    (a) The Council shall meet at least quarterly and in such places as 
it deems necessary.
    (b) The meetings must--
    (1) Be publicly announced sufficiently in advance of the dates they 
are to be held to ensure that all interested parties have an opportunity 
to attend; and
    (2) To the extent appropriate, be open and accessible to the general 
public.
    (c) Interpreters for persons who are deaf and other necessary 
services must be provided at Council meetings, both for Council members 
and participants. The Council may use funds under this part to pay for 
those services.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441 (c) and (d))



Sec. 303.604  Conflict of interest.

    No member of the Council may cast a vote on any matter that would 
provide direct financial benefit to that member or otherwise give the 
appearance of a conflict of interest.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(f))

                        Functions of the Council



Sec. 303.650  General.

    (a) Each Council shall--
    (1) Advise and assist the lead agency in the development and 
implementation of the policies that constitute the statewide system;
    (2) Assist the lead agency in achieving the full participation, 
coordination, and cooperation of all appropriate public agencies in the 
State;
    (3) Assist the lead agency in the effective implementation of the 
statewide system, by establishing a process that includes--

[[Page 212]]

    (i) Seeking information from service providers, service 
coordinators, parents, and others about any Federal, State, or local 
policies that impede timely service delivery; and
    (ii) Taking steps to ensure that any policy problems identified 
under paragraph (a)(3)(i) of this section are resolved; and
    (4) To the extent appropriate, assist the lead agency in the 
resolution of disputes.
    (b) Each Council may advise and assist the lead agency and the State 
educational agency regarding the provision of appropriate services for 
children aged birth to five, inclusive.
    (c) Each Council may advise appropriate agencies in the State with 
respect to the integration of services for infants and toddlers with 
disabilities and at-risk infants and toddlers and their families, 
regardless of whether at-risk infants and toddlers are eligible for 
early intervention services in the State.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(e)(1)(A) and (e)(2))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.651  Advising and assisting the lead agency in its administrative duties.

    Each Council shall advise and assist the lead agency in the--
    (a) Identification of sources of fiscal and other support for 
services for early intervention programs under this part;
    (b) Assignment of financial responsibility to the appropriate 
agency; and
    (c) Promotion of the interagency agreements under Sec. 303.523.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(e)(1)(A))



Sec. 303.652  Applications.

    Each Council shall advise and assist the lead agency in the 
preparation of applications under this part and amendments to those 
applications.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(e)(1)(B))



Sec. 303.653  Transitional services.

    Each Council shall advise and assist the State educational agency 
regarding the transition of toddlers with disabilities to services 
provided under part B of the Act, to preschool and other appropriate 
services.

(Approved by the Office of Management and Budget under control number 
1820-0578)

(Authority: 20 U.S.C. 1441(e)(1)(C))

[58 FR 40959, July 30, 1993, as amended at 63 FR 18296, Apr. 14, 1998]



Sec. 303.654  Annual report to the Secretary.

    (a) Each Council shall--
    (1) Prepare an annual report to the Governor and to the Secretary on 
the status of early intervention programs operated within the State for 
children eligible under this part and their families; and
    (2) Submit the report to the Secretary by a date that the Secretary 
establishes.
    (b) Each annual report must contain the information required by the 
Secretary for the year for which the report is made.

(Approved by the Office of Management and Budget under control number 
1820-0550)

(Authority: 20 U.S.C. 1441(e)(1)(D))



PART 304--REMOVAL OF ARCHITECTURAL BARRIERS TO INDIVIDUALS WITH DISABILITIES PROGRAM--Table of Contents




                           Subpart A--General

Sec.
304.1  The Removal of Architectural Barriers to Individuals with 
          Disabilities program.
304.2  Applicability of regulations in this part.
304.3  Regulations that apply to the Removal of Architectural Barriers 
          to Individuals with Disabilities program.
304.4  Definitions.
304.5  Acronyms that are used.
304.6--304.9  [Reserved]

Subpart B--How Does an SEA or the Secretary of the Interior Apply for a 
                                 Grant?

                         Application From an SEA

304.10  Submission of an SEA application.
304.11  Content of SEA application.
304.12--304.14  [Reserved]

[[Page 213]]

             Application From the Secretary of the Interior

304.15  Submission of an application by the Secretary of the Interior.
304.16  Applicable regulations.
304.17--304.19  [Reserved]

             Subpart C--How Does the Secretary Make a Grant?

304.20  Amount of a grant.
304.21  Reallocation of excess funds.
304.22--304.29  [Reserved]

    Subpart D--How Does an LEA or IEU Apply to an SEA for a Subgrant?

304.30  Submission of an application to the SEA.
304.31  LEA and IEU applications.
304.32--304.39  [Reserved]

               Subpart E--How Does an SEA Make a Subgrant?

304.40  Amount of a subgrant to an LEA or IEU.
304.41  Reallocation of excess funds.
304.42--304.49  [Reserved]

     Subpart F--What Conditions Must Be Met by an SEA, LEA, or IEU?

304.50  Standards for the removal of architectural barriers.
304.51  Project priorities.
304.52  Project requirements.
304.53--304.59  [Reserved]

   Subpart G--What Are the Administrative Responsibilities of an SEA?

304.60  Amount available for SEA administration.
304.61  Administrative responsibilities and allowable costs.
304.62--304.69  [Reserved]

    Authority: 20 U.S.C. 1406, unless otherwise noted.

    Source: 50 FR 29330, July 18, 1985, unless otherwise noted.



                           Subpart A--General



Sec. 304.1  The Removal of Architectural Barriers to Individuals with Disabilities program.

    The purpose of this part is to provide financial assistance to State 
educational agencies and, through them, to local educational agencies 
and intermediate educational units to remove architectural barriers to 
children with disabilities and other individuals with disabilities.

(Authority: 20 U.S.C. 1406)

[56 FR 54689, Oct. 22, 1991]



Sec. 304.2  Applicability of regulations in this part.

    This part applies to assistance under section 607 of the Individuals 
with Disabilities Education Act.

(Authority: 20 U.S.C. 1406)

[56 FR 54689, Oct. 22, 1991]



Sec. 304.3  Regulations that apply to the Removal of Architectural Barriers to Individuals with Disabilities program.

    The following regulations apply to assistance under the Removal of 
Architectural Barriers to Individuals with Disabilities program:
    (a) The regulations in this part 304.
    (b) The Education Department General Administrative Regulations 
(EDGAR) in the following parts of title 34 of the Code of Federal 
Regulations--
    (1) Part 76 (State-administered Programs);
    (2) Part 77 (Definitions that Apply to Department Regulations);
    (3) Part 79 (Intergovernmental Review of Department of Education 
Programs and Activities);
    (4) Part 80 (Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments);
    (5) Part 81 (General Education Provisions Act--Enforcement);
    (6) Part 82 (New Restrictions on Lobbying);
    (7) Part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for a Drug-Free 
Workplace (Grants)); and
    (8) Part 86 (Drug-Free Schools and Campuses).

(Authority: 20 U.S.C. 1406; 20 U.S.C. 3474(a))

[56 FR 54689, Oct. 22, 1991]



Sec. 304.4  Definitions.

    (a) Definitions in EDGAR. The following terms used in this part are 
defined in 34 CFR 77.1:

    Application
    EDGAR

[[Page 214]]

    Fiscal year
    Grant
    Local educational agency
    Project
    Public
    Secretary
    State
    State educational agency
    Subgrant

(Authority: 20 U.S.C. 3474(a))
    (b) Definitions in 34 CFR part 300. The following terms used in this 
part are defined in 34 CFR 300.5(a), 300.7, 300.13, and 300.14:

    Children and disabilities
    Intermediate educational unit
    Related services
    Special education

(Authority: 20 U.S.C. 1401(a)(1), (16), (17), (22))
    (c) Other definitions that apply to this part. In addition to the 
definitions referred to in paragraphs (a) and (b), the following 
definitions apply to this part:
    (1) Alteration, as applied to a building or structure, means a 
change or rearrangement in the structural parts or elements, or in the 
means of egress, or in moving from one location or position to another. 
It does not include normal maintenance and repair, reroofing, interior 
decoration, or changes to mechanical and electrical systems.

(Authority: 20 U.S.C. 1406, 41 CFR 101-19.603)
    (2) Equipment includes machinery, utilities, and built-in equipment 
and any necessary enclosures or structures to house them, and includes 
all other items necessary for the functioning of a particular facility 
as a facility for the provision of educational services, including items 
such as instructional equipment and necessary furniture, printed, 
published, and audio-visual instructional materials, telecommunications, 
sensory, and other technological aids and devices, and books, 
periodicals, documents, and other related materials.

(Authority: 20 U.S.C. 1401(a)(5), 1406)

[50 FR 29330, July 18, 1985, as amended at 56 FR 54689, Oct. 22, 1991]



Sec. 304.5  Acronyms that are used.

    The following acronyms are used in this part:
    IEU stands for intermediate educational unit.
    LEA stands for local educational agency.
    SEA stands for State educational agency.

(Authority: 20 U.S.C. 1406)



Secs. 304.6--304.9  [Reserved]



Subpart B--How Does an SEA or the Secretary of the Interior Apply for a 
                                 Grant?

                         Application From an SEA



Sec. 304.10  Submission of an SEA application.

    In order to receive funds under this part, an SEA must submit an 
application to the Secretary for review and approval.

(Authority: 20 U.S.C. 1406)



Sec. 304.11  Content of SEA application.

    (a) Each SEA shall include in its application assurances that--
    (1) Funds received under this part will be used to pay the costs of 
altering existing buildings and equipment in accordance with the 
standards in Sec. 304.50;
    (2) In using funds appropriated under Pub. L. 98-8, special 
consideration will be given to projects in areas experiencing high rates 
of unemployment; and

(Authority: Pub. L. 98-8, ``Education for the Handicapped'', 97 Stat. 27 
(1983); S. Rep. No. 17, 98th Cong., 1st Sess. 33-34 (1983))
    (3) Funds provided under this part that are appropriated under Pub. 
L. 98-8 will, to the extent practicable, be utilized in manner which 
maximizes immediate creation of new employment opportunities to 
individuals who were unemployed at least 15 of the 26 weeks immediately 
preceding March 24, 1983 (the date of enactment of Pub. L. 98-8).

(Authority: Pub. L. 98-8, section 101(c); 97 Stat. 31-32 (1983))
    (b) Each SEA application must also include the following 
information:
    (1) A description of the goals and objectives to be supported by the 
grant in sufficient detail for the Secretary to determine what will be 
achieved with the grant.
    (2) The estimated number of LEAs and IEUs that will receive 
subgrants, and a description of the procedures and

[[Page 215]]

criteria the SEA will use to award subgrants to LEAs and IEUs, including 
any priorities established by the SEA under Sec. 304.51(b) (see 
Sec. 304.40 and subpart F, ``What Conditions Must Be Met by an SEA, LEA, 
or IEU?'').

(Approved by the Office of Management and Budget under control number 
1820-0534)

(Authority: 20 U.S.C. 1406)

[50 FR 29330, July 18, 1985, as amended at 53 FR 6945, Mar. 3, 1988]



Secs. 304.12--304.14  [Reserved]

             Application From the Secretary of the Interior



Sec. 304.15  Submission of an application by the Secretary of the Interior.

    In order to receive a grant under this part, the Secretary of the 
Interior shall submit an application that is consistent with the 
requirements under Sec. 304.11.

(Authority: 20 U.S.C. 1406)

[53 FR 6945, Mar. 3, 1988]



Sec. 304.16  Applicable regulations.

    The Secretary of the Interior shall comply with all the requirements 
that apply to SEAs under subparts A, C, F, and G of this part.

(Authority: 20 U.S.C. 1406)

[53 FR 6945, Mar. 3, 1988]



Secs. 304.17--304.19  [Reserved]



             Subpart C--How Does the Secretary Make a Grant?



Sec. 304.20  Amount of a grant.

    (a) For the purpose of this section--
    (1) The term Insular Area means American Samoa, Guam, the Virgin 
Islands, the Northern Mariana Islands, or the Trust Territory of the 
Pacific Islands; and
    (2) The term children with disabilities means the number of children 
with disabilities determined by the Secretary--
    (i) Under section 611 of the Act, to be receiving special education 
and related services; or
    (ii) In average daily attendance at schools for children with 
disabilities or supported by a State agency within the meaning of 
section 1221 of chapter 1 of title I of the Elementary and Secondary 
Education Act of 1965.
    (b) The amount of an SEA's grant under this part for a State other 
than an Insular Area is determined by--
    (1) Dividing the number of children with disabilities in that State 
by the total number of children with disabilities in all States 
submitting approvable applications under this part; and
    (2) Multiplying that fraction by the amount of funds available for 
grants under this part minus the amount reserved under paragraphs (c) 
and (d) of this section.
    (c) The Secretary reserves up to one-half of one percent of the 
aggregate of the amounts available under this part for grants to Insular 
Areas. Funds reserved by the Secretary for the Insular Areas are 
allocated proportionately among them on the basis of the number of 
children ages three through twenty-one in each Insular Area. However, no 
Insular Area may receive less than $15,000, and allocations within these 
jurisdictions are ratably reduced, if necessary, to ensure that each 
Insular Area receives at least that amount. Allocations within these 
jurisdictions are further ratably reduced if the amount reserved is 
insufficient to provide $15,000 to each Insular Area.
    (d) From any appropriation enacted after September 30, 1986, the 
Secretary reserves up to 1.25 percent of the aggregate amount available 
under this part for a grant to the Secretary of the Interior to be used 
on reservations served by schools operated for Indian children by the 
Department of the Interior.

(Authority: 20 U.S.C. 1406)

[50 FR 29330, July 18, 1985, as amended at 53 FR 6945, Mar. 3, 1988; 56 
FR 54689, Oct. 22, 1991]



Sec. 304.21  Reallocation of excess funds.

    The Secretary may reallocate funds--or portions of those funds--made 
available to the Secretary of the Interior or to a State educational 
agency under this part if the Secretary determines that the Secretary of 
the Interior or the State educational agency cannot use the funds in a 
manner consistent with the requirements of applicable statutes and the 
regulations in this part. Any reallocation is made on the

[[Page 216]]

same basis as grants are determined under Sec. 304.20.

(Authority: 20 U.S.C. 1406)

[53 FR 6945, Mar. 3, 1988]



Secs. 304.22--304.29    [Reserved]



    Subpart D--How Does an LEA or IEU Apply to an SEA for a Subgrant?



Sec. 304.30  Submission of an application to the SEA.

    In order to receive funds under this part for any fiscal year, an 
LEA or IEU shall submit an application for a subgrant to the appropriate 
SEA.

(Authority: 20 U.S.C. 1406, 3474(a))



Sec. 304.31  LEA and IEU applications.

    An LEA or IEU shall include in its application any information that 
is required by the SEA in order to fulfill its responsibilities under 
this part.

(Authority: 20 U.S.C. 1406, 3474(a))



Secs. 304.32--304.39  [Reserved]



               Subpart E--How Does an SEA Make a Subgrant?



Sec. 304.40  Amount of a subgrant to an LEA or IEU.

    (a) The SEA shall determine the amount of a subgrant to an LEA or 
IEU based on--
    (1) The size, scope, and quality of the proposed project; and
    (2) Any other relevant criteria developed by the SEA and included in 
the SEA application approved by the Secretary.
    (b) The SEA may establish minimum and maximum amounts for subgrants.

(Authority: 20 U.S.C.1406)



Sec. 304.41  Reallocation of excess funds.

    (a) The SEA may reallocate funds provided for subgrants under this 
part if an LEA or IEU cannot use the funds in a manner consistent with 
the requirements of section 607 of the Individuals with Disabilities 
Education Act and the requirements in this part.
    (b) The SEA shall reallocate funds in accordance with the criteria 
and priorities for approving subgrants in its approved application.

(Authority: 20 U.S.C. 1406)

[50 FR 29330, July 18, 1985, as amended at 56 FR 54689, Oct. 22, 1991]



Secs. 304.42--304.49  [Reserved]



     Subpart F--What Conditions Must Be Met by an SEA, LEA, or IEU?



Sec. 304.50  Standards for the removal of architectural barriers.

    The alteration of existing buildings and equipment under this part 
must be done consistently with standards adopted by the General Services 
Administration (GSA) under Pub. L. 90-480, the Architectural Barriers 
Act of 1968. However, the dimensions set out in those standards may be 
modified as appropriate considering the age groups of the individuals 
who will use the buildings or equipment.
    Note: On August 7, 1984, the GSA adopted new standards under the 
Architectural Barriers Act (49 FR 31528) and incorporated them by 
reference at 41 CFR 101-19.603 (49 FR 31625).

(Authority: 20 U.S.C. 1406)



Sec. 304.51  Project priorities.

    (a) An SEA may establish priorities for the use of funds made 
available under this part. The SEA may, for example, give special 
consideration to projects that will meet the special needs of urban or 
rural locations, or that will facilitate the transition of children with 
disabilities and individuals with disabilities from school to work.
    (b) The Secretary encourages States to use their funds for 
activities that will--
    (1) Make available to children with disabilities the variety of 
educational programs and services available to nondisabled children in 
the area served by the LEA or IEU;
    (2) Provide nonacademic and extracurricular services and activities 
in a manner that affords children with disabilities opportunity for 
participation in these services and activities; and
    (3) Provide assessibility to individuals with disabilities involved 
in the education of children with disabilities

[[Page 217]]

or eligible to participate in programs administered by LEAs and IEUs.

(Authority: 20 U.S.C. 1406)

[50 FR 29330, July 18, 1985, as amended at 56 FR 54689, Oct. 22, 1991]



Sec. 304.52  Project requirements.

    To the extent practicable, funds made available under this part that 
are appropriated under Pub. L. 98-8 must be utilized to create new 
employment opportunities for the unemployed, as required by Pub. L. 98-
8, section 101(c).

(Authority: Pub. L. 98-8, sec. 101(c); 97 Stat. 31-32 (1983))



Secs. 304.53--304.59  [Reserved]



   Subpart G--What Are the Administrative Responsibilities of an SEA?



Sec. 304.60  Amount available for SEA administration.

    An SEA may use up to five percent of its grant for the cost of 
administering funds provided under this part.

(Authority: 20 U.S.C. 1406)



Sec. 304.61  Administrative responsibilities and allowable costs.

    Administrative costs under this part include--
    (a) Planning of programs and projects assisted by funds under this 
part;
    (b) Approval, supervision, monitoring, and evaluation by an SEA of 
the effectiveness of projects assisted by funds made available under 
this part; and
    (c) Technical assistance that an SEA provides to LEAs and IEUs with 
respect to the requirements of this part.

(Authority: 20 U.S.C. 1406)



Secs. 304.62--304.69  [Reserved]



PART 345--STATE GRANTS PROGRAM FOR TECHNOLOGY-RELATED ASSISTANCE FOR INDIVIDUALS WITH DISABILITIES--Table of Contents




                           Subpart A--General

Sec.
345.1  What is the State Grants Program for Technology-Related 
          Assistance for Individuals with Disabilities?
345.2  What are the purposes of the State grants program for technology-
          related assistance for individuals with disabilities?
345.3  What are the types of awards under this program?
345.4  Who is eligible to receive a development grant?
345.5  What are the responsibilities of the lead agency or public agency 
          in applying for and in administering a development grant?
345.6  How does a State designate the lead agency?
345.7  Who is eligible to receive an extension grant?
345.8  What are the responsibilities of the lead agency in applying for 
          and in administering an extension grant?
345.9  What regulations apply to this program?
345.10  What definitions apply to this program?

    Subpart B--What Kinds of Activities Does the Department Support?

345.20  What types of activities are authorized under this program?

             Subpart C--How Does a State Apply for a Grant?

345.30  What is the content of an application for a development grant?
345.31  What is the content of an application for an extension grant?

             Subpart D--How Does the Secretary Make a Grant?

345.40  How does the Secretary evaluate an application for a development 
          grant under this program?
345.41  What other factors does the Secretary take into consideration in 
          making development grant awards under this program?
345.42  What is the review process for an application for an extension 
          grant?
345.43  What priorities does the Secretary establish?

[[Page 218]]

         Subpart E--What Conditions Must Be Met After an Award?

345.50  What are the reporting requirements for the recipients of 
          development and extension grants?
345.51  When is a State making significant progress?
345.52  Who retains title to devices provided under this program?
345.53  What are the requirements for grantee participation in the 
          Secretary's progress assessments?
345.54  How may grant funds be used under this program?
345.55  What are the responsibilities of a State in carrying out 
          protection and advocacy services?

      Subpart F--What Compliance Procedures May the Secretary Use?

345.60  Who is subject to a corrective action plan?
345.61  What penalties may the Secretary impose on a grantee that is 
          subject to corrective action?
345.62  How does a State redesignate the lead agency when it is subject 
          to corrective action?
345.63  How does a State change the entity responsible for providing 
          protection and advocacy services?

    Authority: 29 U.S.C. 2201-2217, unless otherwise noted.

    Source: 61 FR 8161, Mar. 1, 1996, unless otherwise noted.



                           Subpart A--General



Sec. 345.1  What is the State Grants Program for Technology-Related Assistance for Individuals with Disabilities?

    This program provides grants to States to support systems change and 
advocacy activities designed to assist States in developing and 
implementing consumer-responsive comprehensive Statewide programs of 
technology-related assistance that accomplish the purposes in 
Sec. 345.2.

(Authority: 29 U.S.C. 2211(a); section 101(a) of the Act)



Sec. 345.2  What are the purposes of the State grants program for technology-related assistance for individuals with disabilities?

    The purposes of this program are to provide financial assistance to 
States to support systems change and advocacy activities designed to 
assist each State in developing and implementing a consumer-responsive 
comprehensive statewide program of technology-related assistance, for 
individuals with disabilities of all ages, that is designed to--
    (a)(1) Increase the availability of, funding for, access to, and 
provision of, assistive technology devices and assistive technology 
services;
    (2) Increase the active involvement of individuals with disabilities 
and their family members, guardians, advocates, and authorized 
representatives, in the planning, development, implementation, and 
evaluation of the program;
    (3) Increase the involvement of individuals with disabilities and, 
if appropriate, their family members, guardians, advocates, or 
authorized representatives, in decisions related to the provision of 
assistive technology devices and assistive technology services;
    (4) Increase the provision of outreach to underrepresented 
populations and rural populations, to enable the two populations to 
enjoy the benefits of programs carried out to accomplish the purposes 
described in this section to the same extent as other populations;
    (5) Increase and promote coordination among State agencies, and 
between State agencies and private entities, that are involved in 
carrying out activities under this part, particularly providing 
assistive technology devices and assistive technology services, that 
accomplish a purpose described in another paragraph of this section;
    (6)(i) Increase the awareness of laws, regulations, policies, 
practices, procedures, and organizational structures, that facilitate 
the availability or provision of assistive technology devices and 
assistive technology services; and
    (ii) Facilitate the change of laws, regulations, policies, 
practices, procedures, and organizational structures, that impede the 
availability or provision of assistive technology devices and assistive 
technology services;
    (7) Increase the probability that individuals with disabilities of 
all ages will, to the extent appropriate, be able to secure and maintain 
possession of assistive technology devices as these

[[Page 219]]

individuals make the transition between services offered by human 
service agencies or between settings of daily living;
    (8) Enhance the skills and competencies of individuals involved in 
providing assistive technology devices and assistive technology 
services;
    (9) Increase awareness and knowledge of the efficacy of assistive 
technology devices and assistive technology services among--
    (i) Individuals with disabilities and their family members, 
guardians, advocates, and authorized representatives;
    (ii) Individuals who work for public agencies, or for private 
entities (including insurers), that have contact with individuals with 
disabilities;
    (iii) Educators and related services personnel;
    (iv) Technology experts (including engineers);
    (v) Employers; and
    (vi) Other appropriate individuals;
    (10) Increase the capacity of public agencies and private entities 
to provide and pay for assistive technology devices and assistive 
technology services on a statewide basis for individuals with 
disabilities of all ages; and
    (11) Increase the awareness of the needs of individuals with 
disabilities for assistive technology devices and for assistive 
technology services.
    (b)(1) Identify Federal policies that facilitate payment for 
assistive technology devices and assistive technology services.
    (2) Identify Federal policies that impede this payment.
    (3) Eliminate inappropriate barriers to this payment.
    (c) Enhance the ability of the Federal Government to provide States 
with--
    (1) Technical assistance, information, training, and public 
awareness programs relating to the provision of assistive technology 
devices and assistive technology services; and
    (2) Funding for demonstration projects.

(Authority: 29 U.S.C. 2201(b); section 2(b) of the Act)



Sec. 345.3  What are the types of awards under this program?

    (a) Under this program, the Secretary--
    (1) Awards three-year development grants to assist States in 
developing and implementing consumer-responsive comprehensive statewide 
programs that accomplish the purposes in Sec. 345.2;
    (2) May award an initial two-year extension grant to any State that 
meets the standards in Sec. 345.42(a); and
    (3) May award a second extension grant, for a period of not more 
than 5 years, to any State that meets the standards in Sec. 345.42(b).
    (b) The Secretary calculates the amount of the development grants in 
paragraph (a)(1) of this section on the basis of--
    (1) Amounts available for making grants under this part;
    (2) The population of the State or territory concerned; and
    (3) The types of activities proposed by the State relating to the 
development of a consumer-responsive comprehensive statewide program of 
technology-related assistance.
    (c) The Secretary calculates the amount of the extension grants in 
paragraph (a)(2) of this section on the basis of--
    (1) Amounts available for making grants;
    (2) The population of the State;
    (3) The types of assistance proposed by the State in its 
application; and
    (4) A description in its application of the amount of resources 
committed by the State and available to the State from other sources to 
sustain the program after federal funding ends.
    (d)(1) In providing any increases in initial extension grants in 
paragraph (a)(2) of this section above the amounts provided to States 
for Fiscal Year 1993, the Secretary may give priority to States (other 
than the territories) that--
    (i) Have the largest populations, based on the most recent census 
data; and
    (ii) Are sparsely populated, with a wide geographic spread.
    (2) To be eligible for the priority in paragraph (d)(1) of this 
section, the circumstances in paragraphs (d)(1)(i) or (ii) must have 
impeded the development of a consumer-responsive, comprehensive 
statewide program of technology-related assistance in a State.

[[Page 220]]

    (e) During the fourth and fifth years of a State's second extension 
grant, the amount received by a State will be reduced to 75% and 50%, 
respectively, of the amount paid to the State for the third year of the 
grant.

(Authority: 29 U.S.C. 2212(b), 2213(a), 2213(c)(1)(B) and (2), and 
2213(c)(1)(D); sections 102(b), 103(a), 103(c)(1)(B) and (2), 
103(c)(1)(D) of the Act)



Sec. 345.4  Who is eligible to receive a development grant?

    A State is eligible to receive a development grant under this 
program, provided that the Governor has designated a lead agency to 
carry out the responsibilities contained in Sec. 345.5.

(Authority: 29 U.S.C. 2212(a)(1) and 2212 (d)(1); section 102(a) and 
102(d)(1) of the Act)



Sec. 345.5  What are the responsibilities of the lead agency or public agency in applying for and in administering a development grant?

    (a) The lead agency is responsible for the following:
    (1) Submitting the application containing the information and 
assurances contained in Sec. 345.30.
    (2) Administering and supervising the use of amounts made available 
under the grant.
    (3)(i) Coordinating efforts related to, and supervising the 
preparation of, the application;
    (ii) Coordinating the planning, development, implementation, and 
evaluation of the consumer-responsive comprehensive statewide program of 
technology-related assistance among public agencies and between public 
agencies and private agencies, including coordinating efforts related to 
entering into interagency agreements; and
    (iii) Coordinating efforts related to, and supervising, the active, 
timely, and meaningful participation by individuals with disabilities 
and their family members, guardians, advocates, or authorized 
representatives, and other appropriate individuals, with respect to 
activities carried out under the grant.
    (4) The delegation, in whole or in part, of any responsibilities 
described in paragraphs (a)(1) through (3) of this section to one or 
more appropriate offices, agencies, entities, or individuals.
    (b) If the lead agency is not a public agency, a public agency shall 
have the responsibility of controlling and administering amounts 
received under the grant.

(Authority: 29 U.S.C. 2212(d)(1) and 2212(e)(12)(A); section 102(d)(1) 
and 102(e)(12)(A) of the Act)



Sec. 345.6  How does a State designate the lead agency?

    (a) The Governor may designate--
    (1) A commission appointed by the Governor;
    (2) A public-private partnership or consortium;
    (3) A university-affiliated program;
    (4) A public agency;
    (5) A council established under Federal or State law; or
    (6) Another appropriate office, agency, entity, or individual.
    (b) The State shall provide evidence that the lead agency has the 
ability--
    (1) To respond to assistive technology needs across disabilities and 
ages;
    (2) To promote the availability throughout the State of assistive 
technology devices and assistive technology services;
    (3) To promote and implement systems change and advocacy activities;
    (4) To promote and develop public-private partnerships;
    (5) To exercise leadership in identifying and responding to the 
technology needs of individuals with disabilities and their family 
members, guardians, advocates, and authorized representatives;
    (6) To promote consumer confidence, responsiveness, and advocacy; 
and
    (7) To exercise leadership in implementing effective strategies for 
capacity building, staff and consumer training, and enhancement of 
access to funding for assistive technology devices and assistive 
technology services across agencies.

(Authority: 29 U.S.C. 2212(d)(2) and (3); sections 102(d)(2) and (3) of 
the Act)



Sec. 345.7  Who is eligible to receive an extension grant?

    A State is eligible to receive an extension grant under this 
program.

[[Page 221]]



Sec. 345.8  What are the responsibilities of the lead agency in applying for and in administering an extension grant?

    (a) To be eligible to receive an initial extension grant, the lead 
agency shall--
    (1) Submit an application containing the information and assurances 
in Sec. 345.31; and
    (2) Hold a public hearing in the third year of a program carried out 
under a development grant, after providing appropriate and sufficient 
notice to allow interested groups and organizations and all segments of 
the public an opportunity to comment on the program.
    (b) To be eligible to receive a second extension grant, the lead 
agency shall--
    (1) Submit an application containing the information and assurances 
in Sec. 345.31; and
    (2) Hold a public hearing in the second year of a program carried 
out under an initial extension grant, after providing appropriate and 
sufficient notice to allow interested groups and organizations and all 
segments of the public an opportunity to comment on the program.

(Authority: 29 U.S.C. 2213(d) and (e); section 103(d) and (e) of the 
Act)



Sec. 345.9  What regulations apply to this program?

    The following regulations apply to the State Grants Program for 
Technology-Related Assistance for Individuals with Disabilities:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 74 (Administration of Grants to Institutions of 
Higher Education, Hospitals, and Nonprofit Organizations);
    (2) 34 CFR part 75 (Direct Grant Programs), except Sec. 75.618;
    (3) 34 CFR part 77 (Definitions That Apply to Department 
Regulations);
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities);
    (5) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments), except 
Secs. 80.32(a) and 80.33(a);
    (6) 34 CFR part 81 (General Education Provisions Act--Enforcement);
    (7) 34 CFR part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace 
(Grants)); and
    (8) Part 86 (Drug-Free Schools and Campuses).
    (b) The regulations in this part.

(Authority: 29 U.S.C. 2201-2217; sections 101-107 of the Act)



Sec. 345.10  What definitions apply to this program?

    (a) Definitions in EDGAR. The following terms used in this part are 
defined in 34 CFR 77.1:

Applicant
Application
Award
Department
EDGAR
Fiscal year
Grant period
Nonprofit
Nonpublic
Private
Project
Project period
Public

    (b) Definitions in the Technology-Related Assistance for Individuals 
with Disabilities Act of 1988. (1) The following terms used in this part 
are defined in section 3 of the Act:

Advocacy services
Assistive technology device
Assistive technology service
Comprehensive statewide program of technology-related assistance
Consumer-responsive
Disability
Individual with a disability; individuals with disabilities
Institution of higher education
Protection and advocacy services
Secretary
State
Systems change and related activities
Technology-related assistance
Underrepresented population

    (2) The following term used in this part is defined in section 
102(b)(5) of the Act:

Territory

    (d) Other definitions. The following definitions also apply to this 
part:

[[Page 222]]

    Initial extension grant means the two-year extension grant following 
a three-year development grant under this program.
    Second extension grant means the extension grant following the 
initial extension grant under this program. The period of this grant is 
for a period of not more than 5 years.

(Authority: 29 U.S.C. 2201-2217; sections 101-107 of the Act)



    Subpart B--What Kinds of Activities Does the Department Support?



Sec. 345.20  What type of activities are authorized under this program?

    Any State that receives a development or extension grant shall use 
the funds made available through the grant to accomplish the purposes 
described in Sec. 345.2(a) and, in accomplishing such purposes, may 
carry out any of the following systems change and advocacy activities:
    (a) Support activities to increase access to, and funding for, 
assistive technology, including--
    (1) The development, and evaluation of the efficacy, of model 
delivery systems that provide assistive technology devices and assistive 
technology services to individuals with disabilities, that pay for 
devices and services, and that, if successful, could be replicated or 
generally applied, such as--
    (i) The development of systems for the purchase, lease, other 
acquisition, or payment for the provision, of assistive technology 
devices and assistive technology services; or
    (ii) The establishment of alternative State or privately financed 
systems of subsidies for the provision of assistive technology devices 
and assistive technology services, such as--
    (A) A loan system for assistive technology devices;
    (B) An income-contingent loan fund;
    (C) A low interest loan fund;
    (D) A revolving loan fund;
    (E) A loan insurance program; or
    (F) A partnership with private entities for the purchase, lease, or 
other acquisition of assistive technology devices and the provision of 
assistive technology services;
    (2) The demonstration of assistive technology devices, including--
    (i) The provision of a location or locations within the State where 
the following individuals can see and touch assistive technology 
devices, and learn about the devices from personnel who are familiar 
with such devices and their applications:
    (A) Individuals with disabilities and their family members, 
guardians, advocates, and authorized representatives;
    (B) Education, rehabilitation, health care, and other service 
providers;
    (C) Individuals who work for Federal, State, or local government 
entities; and
    (D) Employers.
    (ii) The provision of counseling and assistance to individuals with 
disabilities and their family members, guardians, advocates, and 
authorized representatives to determine individual needs for assistive 
technology devices and assistive technology services; and
    (iii) The demonstration or short-term loan of assistive technology 
devices to individuals, employers, public agencies, or public 
accommodations seeking strategies to comply with the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794); and
    (3) The establishment of information systems about, and recycling 
centers for, the redistribution of assistive technology devices and 
equipment that may include device and equipment loans, rentals, or 
gifts.
    (b) Support activities to--
    (1) Identify and coordinate Federal and State policies, resources, 
and services, relating to the provision of assistive technology devices 
and assistive technology services, including entering into interagency 
agreements;
    (2) Convene interagency work groups to enhance public funding 
options and coordinate access to funding for assistive technology 
devices and assistive technology services for individuals with 
disabilities of all ages, with special attention to the issues of 
transition (such as transition from school to work, and transition from 
participation in programs under part H of the Individuals with 
Disabilities Education

[[Page 223]]

Act (20 U.S.C. 1471 et seq.), to participation in programs under part B 
of such Act (20 U.S.C. 1411 et seq.)) home use, and individual 
involvement in the identification, planning, use, delivery, and 
evaluation of such devices and services; or
    (3) Document and disseminate information about interagency 
activities that promote coordination with respect to assistive 
technology devices and assistive technology services, including evidence 
of increased participation of State and local special education, 
vocational rehabilitation, and State medical assistance agencies and 
departments.
    (c) Carry out activities to encourage the creation or maintenance 
of, support, or provide assistance to, statewide and community-based 
organizations, or systems, that provide assistive technology devices and 
assistive technology services to individuals with disabilities or that 
assist individuals with disabilities in using assistive technology 
devices or assistive technology services. The activities may include 
outreach to consumer organizations and groups in the State to coordinate 
the activities of the organizations and groups with efforts (including 
self-help, support groups, and peer mentoring) to assist individuals 
with disabilities and their family members, guardians, advocates, or 
authorized representatives, to obtain funding for, and access to, 
assistive technology devices and assistive technology services.
    (d) Pay for expenses, including travel expenses, and services, 
including services of qualified interpreters, readers, and personal 
assistants services that may be necessary to ensure access to the 
comprehensive statewide program of technology-related assistance by 
individuals with disabilities who are determined by the State to be in 
financial need. The expenses must be incurred by participants in 
activities associated with the state technology program.
    (e) Conduct a statewide needs assessment that may be based on data 
in existence on the date on which the assessment is initiated and may 
include--
    (1) Estimates of the numbers of individuals with disabilities within 
the State, categorized by residence, type and extent of disabilities, 
age, race, gender, and ethnicity;
    (2) In the case of an assessment carried out under a development 
grant, a description of efforts, during the fiscal year preceding the 
first fiscal year for which the State received a grant, to provide 
assistive technology devices and assistive technology services to 
individuals with disabilities within the State, including--
    (i) The number of individuals with disabilities who received 
appropriate assistive technology devices and assistive technology 
services; and
    (ii) A description of the devices and services provided;
    (3) Information on the number of individuals with disabilities who 
are in need of assistive technology devices and assistive technology 
services, and a description of the devices and services needed;
    (4) Information on the cost of providing assistive technology 
devices and assistive technology services to all individuals with 
disabilities within the State who need such devices and services;
    (5) A description of State and local public resources and private 
resources (including insurance) that are available to establish a 
consumer-responsive comprehensive statewide program of technology-
related assistance;
    (6) Information identifying Federal and State laws, regulations, 
policies, practices, procedures, and organizational structures, that 
facilitate or interfere with the operation of a consumer responsive 
comprehensive statewide program of technology related assistance;
    (7) A description of the procurement policies of the State and the 
extent to which such policies will ensure, to the extent practicable, 
that assistive technology devices purchased, leased, or otherwise 
acquired with assistance made available through a development or 
extension grant under this part are compatible with other technology 
devices, including technology devices designed primarily for use by--
    (i) Individuals who are not individuals with disabilities;
    (ii) Individuals who are elderly; or

[[Page 224]]

    (iii) Individuals with particular disabilities; and
    (8) Information resulting from an inquiry about whether a State 
agency or task force (composed of individuals representing the State and 
individuals representing the private sector) should study the practices 
of private insurance companies holding licenses within the State that 
offer health or disability insurance policies under which an individual 
may obtain reimbursement for--
    (i) The purchase, lease, or other acquisition of assistive 
technology devices; or
    (ii) The use of assistive technology services.
    (f) Support--(1)(i) A public awareness program designed to provide 
information relating to the availability and efficacy of assistive 
technology devices and assistive technology services for--
    (A) Individuals with disabilities and their family members, 
guardians, advocates, or authorized representatives;
    (B) Individuals who work for public agencies, or for private 
entities (including insurers), that have contact with individuals with 
disabilities;
    (C) Educators and related services personnel;
    (D) Technology experts (including engineers);
    (E) Employers; and
    (F) Other appropriate individuals and entities; or
    (ii) Establish and support the program if no such program exists.
    (2) A public awareness program that may include the--
    (i) Development and dissemination of information relating to the--
    (A) Nature of assistive technology devices and assistive technology 
services;
    (B) Appropriateness, cost, and availability of, and access to, 
assistive technology devices and assistive technology services; and
    (C) Efficacy of assistive technology devices and assistive 
technology services with respect to enhancing the capacity of 
individuals with disabilities;
    (ii) Development of procedures for providing direct communication 
among public providers of assistive technology devices and assistive 
technology services and between public providers and private providers 
of devices and services (including employers); and
    (iii) Development and dissemination of information relating to the 
use of the program by individuals with disabilities and their family 
members, guardians, advocates, or authorized representatives, 
professionals who work in a field related to an activity described in 
this section, and other appropriate individuals.
    (g) Carry out directly, or may provide support to a public or 
private entity to carry out, training and technical assistance 
activities that--
    (1)(i) Are provided for individuals with disabilities and their 
family members, guardians, advocates, and authorized representatives, 
and other appropriate individuals; and
    (ii) May include--
    (A) Training in the use of assistive technology devices and 
assistive technology services;
    (B) The development of written materials, training, and technical 
assistance describing the means by which agencies consider the needs of 
an individual with a disability for assistive technology devices and 
assistive technology services in developing, for the individual, any 
individualized education program described in section 614(a)(5) of the 
Individuals with Disabilities Education Act (20 U.S.C. 1414(a)(5)), any 
individualized written rehabilitation program described in section 102 
of the Rehabilitation Act of 1973 (29 U.S.C. 722), any individualized 
family service plan described in section 677 of the Individuals with 
Disabilities Education Act (20 U.S.C. 1477), and any other 
individualized plans or programs;
    (C) Training regarding the rights of the persons described in 
paragraph (f)(1)(i) of this section to assistive technology devices and 
assistive technology services under any law other than this Act, to 
promote fuller independence, productivity, and inclusion in and 
integration into society of such persons; and
    (D) Training to increase consumer participation in the 
identification, planning, use, delivery, and evaluation of assistive 
technology devices and assistive technology services; and
    (2)(i) Enhance the assistive technology skills and competencies of--

[[Page 225]]

    (A) Individuals who work for public agencies or for private entities 
(including insurers) that have contact with individuals with 
disabilities;
    (B) Educators and related services personnel;
    (C) Technology experts (including engineers);
    (D) Employers; and
    (E) Other appropriate personnel; and
    (ii) Include taking actions to facilitate the development of 
standards, or, when appropriate, the application of standards, to ensure 
the availability of qualified personnel.
    (h) Support the compilation and evaluation of appropriate data 
related to a program described in Sec. 345.1.
    (i)(1) Develop, operate, or expand a system for public access to 
information concerning an activity carried out under another paragraph 
of this section, including information about assistive technology 
devices and assistive technology services, funding sources and costs of 
assistance, and individuals, organizations, and agencies capable of 
carrying out such an activity for individuals with disabilities.
    (2) Access to the system may be provided through community-based 
entities, including public libraries, centers for independent living (as 
defined in section 702(1) of the Rehabilitation Act of 1973 (29 U.S.C. 
796a(1)), and community rehabilitation programs, as defined in section 
7(25) of such Act (29 U.S.C. 706(25)).
    (3) In developing, operating, or expanding a system described in 
paragraph (i)(1) of this section, the State may--
    (i) Develop, compile, and categorize print, large print, braille, 
audio, and video materials, computer disks, compact discs (including 
compact discs formatted with read-only memory), information that can be 
used in telephone-based information systems, and other media as 
technological innovation may make appropriate;
    (ii) Identify and classify existing funding sources, and the 
conditions of and criteria for access to such sources, including any 
funding mechanisms or strategies developed by the State;
    (iii) Identify existing support groups and systems designed to help 
individuals with disabilities make effective use of an activity carried 
out under another paragraph of this section; and
    (iv) Maintain a record of the extent to which citizens of the State 
use or make inquiries of the system established in paragraph (i)(1) of 
this section, and of the nature of inquiries.
    (4) The information system may be organized on an interstate basis 
or as part of a regional consortium of States in order to facilitate the 
establishment of compatible, linked information systems.
    (j)(1) The State may enter into cooperative agreements with other 
States to expand the capacity of the States involved to assist 
individuals with disabilities of all ages to learn about, acquire, use, 
maintain, adapt, and upgrade assistive technology devices and assistive 
technology services that individuals need at home, at school, at work, 
or in other environments that are part of daily living.
    (2) The State may operate or participate in a computer system 
through which the State may electronically communicate with other States 
to gain technical assistance in a timely fashion and to avoid the 
duplication of efforts already undertaken in other States.
    (k) Support the establishment or continuation of partnerships and 
cooperative initiatives between the public sector and the private sector 
to promote the greater participation by business and industry in the--
    (1) Development, demonstration, and dissemination of assistive 
technology devices; and
    (2) Ongoing provision of information about new products to assist 
individuals with disabilities.
    (l) Provide advocacy services.
    (m) Utilize amounts made available through development and extension 
grants for any systems change and advocacy activities, other than the 
activities described in another paragraph of this section, that are 
necessary for developing, implementing, or evaluating the consumer-
responsive comprehensive statewide program of technology-related 
assistance.
    (n)(1) Accomplish the purposes in Sec. 345.2(b) and (c).

[[Page 226]]

    (2) [Reserved]

(Authority: 29 U.S.C. 2201(b) and 2211(b); sections 2(b)(2), 2(b)(3) and 
101(b) of the Act)



             Subpart C--How Does a State Apply for a Grant?



Sec. 345.30  What is the content of an application for a development grant?

    (a) Applicants for development grants under this program shall 
include the following information in their applications:
    (1) Information identifying the lead agency designated by the 
Governor under Sec. 345.4 and the evidence described in Sec. 345.6(b).
    (2) A description of the nature and extent of involvement of various 
State agencies, including the State insurance department, in the 
preparation of the application and the continuing role of each agency in 
the development and implementation of the consumer-responsive 
comprehensive statewide program of technology-related assistance, 
including the identification of the available resources and financial 
responsibility of each agency for paying for assistive technology 
devices and assistive technology services.
    (3)(i) A description of procedures that provide for--
    (A)(1) The active involvement of individuals with disabilities and 
their family members, guardians, advocates, and authorized 
representatives, and other appropriate individuals, in the development, 
implementation, and evaluation of the program; and
    (2) To the maximum extent appropriate, the active involvement of 
individuals with disabilities who use assistive technology devices or 
assistive technology services, in decisions relating to such devices and 
services; and
    (B) Mechanisms for determining consumer satisfaction and 
participation of individuals with disabilities who represent a variety 
of ages and types of disabilities, in the consumer-responsive 
comprehensive statewide program of technology-related assistance.
    (ii) A description of the nature and extent of the--
    (A) Involvement, in the designation of the lead agency under 
Sec. 345.4, and in the development of the application, of--
    (1) Individuals with disabilities and their family members, 
guardians, advocates, or authorized representatives;
    (2) Other appropriate individuals who are not employed by a State 
agency; and
    (3) Organizations, providers, and interested parties, in the private 
sector; and
    (B) Continuing role of the individuals and entities described in 
paragraph (a)(3)(ii)(A) of this section in the program.
    (4) A tentative assessment of the extent of the need of individuals 
with disabilities in the State, including individuals from 
underrepresented populations or rural populations for a statewide 
program of technology-related assistance and a description of previous 
efforts and efforts continuing on the date of the application to develop 
a consumer-responsive comprehensive statewide program of technology-
related assistance.
    (5) A description of State resources and other resources (to the 
extent this information is available) that are available to commit to 
the development of a consumer-responsive comprehensive statewide program 
of technology-related assistance.
    (6) Information on the program with respect to the--
    (i) Goals and objectives of the State for the program;
    (ii) Systems change and advocacy activities that the State plans to 
carry out under the program; and
    (iii) Expected outcomes of the State for the program, consistent 
with the purposes described in Sec. 345.2(a).
    (7)(i) A description of the data collection system used for 
compiling information on the program, consistent with requirements 
established by the Secretary for systems, and, when a national 
classification system is developed pursuant to section 201 of the Act, 
consistent with the classification system; and
    (ii) Procedures that will be used to conduct evaluations of the 
program.
    (8) A description of the policies and procedures governing 
contracts, grants, and other arrangements with

[[Page 227]]

public agencies, private nonprofit organizations, and other entities or 
individuals for the purpose of providing assistive technology devices 
and assistive technology services consistent with this part.
    (b) Applicants for development grants shall include the following 
assurances in their applications:
    (1)(i) An assurance that the State will use funds from a development 
or extension grant to accomplish the purposes described in Sec. 345.2(a) 
and the goals, objectives, and outcomes described in paragraph (a)(6) of 
this section, and to carry out the systems change and advocacy 
activities described in paragraph (a)(6)(ii) of this section, in a 
manner that is consumer-responsive.
    (ii) An assurance that the State, in carrying out systems change and 
advocacy activities, shall carry out the following activities, unless 
the State demonstrates through the progress reports required under 
Sec. 345.50 that significant progress has been made in the development 
and implementation of a consumer-responsive comprehensive statewide 
program of technology-related assistance, and that other systems change 
and advocacy activities will increase the likelihood that the program 
will accomplish the purposes described in Sec. 345.2(a):
    (A) The development, implementation, and monitoring of State, 
regional, and local laws, regulations, policies, practices, procedures, 
and organizational structures, that will improve access to, provision 
of, funding for, and timely acquisition and delivery of, assistive 
technology devices and assistive technology services;
    (B) The development and implementation of strategies to overcome 
barriers regarding access to, provision of, and funding for, such 
devices and services, with priority for identification of barriers to 
funding through State education (including special education) services, 
vocational rehabilitation services, and medical assistance services or, 
as appropriate, other health and human services, and with particular 
emphasis on overcoming barriers for underrepresented populations and 
rural populations;
    (C) Coordination of activities among State agencies, in order to 
facilitate access to, provision of, and funding for, assistive 
technology devices and assistive technology services;
    (D) The development and implementation of strategies to empower 
individuals with disabilities and their family members, guardians, 
advocates, and authorized representatives, to successfully advocate for 
increased access to, funding for, and provision of, assistive technology 
devices and assistive technology services, and to increase the 
participation, choice, and control of individuals with disabilities and 
their family members, guardians, advocates, and authorized 
representatives in the selection and procurement of assistive technology 
devices and assistive technology services;
    (E) The provision of outreach to underrepresented populations and 
rural populations, including identifying and assessing the needs of such 
populations, providing activities to increase the accessibility of 
services to such populations, training representatives of such 
populations to become service providers, and training staff of the 
consumer-responsive comprehensive statewide program of technology-
related assistance to work with such populations; and
    (F) The development and implementation of strategies to ensure 
timely acquisition and delivery of assistive technology devices and 
assistive technology services, particularly for children.
    (2) An assurance that the State will conduct an annual assessment of 
the consumer-responsive comprehensive statewide program of technology-
related assistance, in order to determine--
    (i) The extent to which the State's goals and objectives for systems 
change and advocacy activities, as identified in the State plan under 
paragraph (a)(6) of this section, have been achieved; and
    (ii) The areas of need that require attention in the next year.
    (3) An assurance that amounts received under the grant will be 
expended in accordance with the provisions of this part;

[[Page 228]]

    (4) An assurance that amounts received under the grant--
    (i) Will be used to supplement amounts available from other sources 
that are expended for technology-related assistance, including the 
provision of assistive technology devices and assistive technology 
services; and
    (ii) Will not be used to pay a financial obligation for technology-
related assistance (including the provision of assistive technology 
devices or assistive technology services) that would have been paid with 
amounts available from other sources if amounts under the grant had not 
been available, unless--
    (A) The payment is made only to prevent a delay in the receipt of 
appropriate technology-related assistance (including the provision of 
assistive technology devices or assistive technology services) by an 
individual with a disability; and
    (B) The entity or agency responsible subsequently reimburses the 
appropriate account with respect to programs and activities under the 
grant in an amount equal to the amount of the payment;
    (5) An assurance that--
    (i) A public agency shall control and administer amounts received 
under the grant; and
    (ii) A public agency or an individual with a disability shall--
    (A) Hold title to property purchased with such amounts; and
    (B) Administer such property.
    (6) An assurance that the State will--
    (i) Prepare reports to the Secretary in the form and containing 
information required by the Secretary to carry out the Secretary's 
functions under this part; and
    (ii) Keep records and allow access to records as the Secretary may 
require to ensure the correctness and verification of information 
provided to the Secretary under this paragraph of this section.
    (7) An assurance that amounts received under the grant will not be 
commingled with State or other funds;
    (8) An assurance that the State will adopt fiscal control and 
accounting procedures as may be necessary to ensure proper disbursement 
of an accounting for amounts received under the grant;
    (9) An assurance that the State will--
    (i) Make available to individuals with disabilities and their family 
members, guardians, advocates, or authorized representatives information 
concerning technology-related assistance in a form that will allow 
individuals to effectively use the information; and
    (ii) In preparing information for dissemination, consider the media-
related needs of individuals with disabilities who have sensory and 
cognitive limitations and consider the use of auditory materials, 
including audio cassettes, visual materials, including video cassettes 
and video discs, and braille materials.
    (10) An assurance that, to the extent practicable, technology-
related assistance made available with amounts received under the grant 
will be equitably distributed among all geographical areas of the State;
    (11) An assurance that the lead agency will have the authority to 
use funds made available through a development or extension grant to 
comply with the requirements of this part, including the ability to hire 
qualified staff necessary to carry out activities under the program;
    (12)(i) An assurance that the State will annually provide, from the 
funds made available to the State through a development or extension 
grant under this part, an amount calculated in accordance with section 
102(f)(4) of the Act in order to make a grant to, or enter into a 
contract with--
    (A) An entity to support protection and advocacy services through 
the systems established to provide protection and advocacy under the 
Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 
6000 et seq.), the Protection and Advocacy for Mentally Ill Individuals 
Act (42 U.S.C. 10801 et seq.), and section 509 of the Rehabilitation Act 
of 1973 (29 U.S.C. 794e); or
    (B) An entity described in Sec. 345.55(a)(1).
    (ii) The State need not provide the assurance in paragraph 
(b)(12)(i) of this section, if the State requests in its annual progress 
report or first or second extension application, as applicable, that the 
Secretary annually reserve,

[[Page 229]]

from the funds made available for a development or extension grant, an 
amount calculated in accordance with section 102(f)(4) of the Act, in 
order for the Secretary to make a grant to or enter into a contract with 
a system to support protection and advocacy services.
    (13) An assurance that the State--
    (i) Will develop and implement strategies for including personnel 
training regarding assistive technology within existing Federal- and 
State-funded training initiatives, in order to enhance assistive 
technology skills and competencies; and
    (ii) Will document the training;
    (14) An assurance that the percentage of the funds received under 
the grant that is used for indirect costs (as defined in OMB Circular A-
87 incorporated by reference in 34 CFR 80.22(b)) shall not exceed 10 
percent of the total amount of the grant; and
    (15) An assurance that the lead agency will coordinate the 
activities funded through a development or extension grant under this 
part with the activities carried out by councils within the State, 
including--
    (i) Any council or commission specified in the assurance provided by 
the State in accordance with section 101(a)(36) of the Rehabilitation 
Act of 1973 (29 U.S.C. 721(a)(36));
    (ii) The Statewide Independent Living Council established under 
section 705 of the Rehabilitation Act of 1973 (29 U.S.C. 796d));
    (iii) The advisory panel established under section 613(a)(12) of the 
Individuals with Disabilities Education Act (20 U.S.C. 1413(a)(12));
    (iv) The State Interagency Coordinating Council established under 
section 682 of the Individuals with Disabilities Education Act (20 
U.S.C. 1482));
    (v) The State Planning Council described in section 124 of the 
Developmental Disabilities Assistance and Bill of Rights Act (20 U.S.C. 
6024);
    (vi) The State mental health planning council established under 
section 1914 of the Public Health Service Act (42 U.S.C. 300x-3);
    (vii) Any council established under section 204, 206(g)(2)(A), or 
712(a)(3)(H) of the Older Americans Act of 1965 (42 U.S.C. 3015, 
3017(g)(2)(A), or 3058g(a)(3)(H)).
    (16) An assurance that there will be coordination between the 
activities funded through the grant and other related systems change and 
advocacy activities funded by either Federal or State sources.
    (c) Applicants for development grants shall provide any other 
related information and assurances that the Secretary may reasonably 
require.

(Authority: 29 U.S.C. 2212(e); section 102(e) of the Act)



345.31  What is the content of an application for an extension grant?

    A State that seeks an extension grant shall include the following in 
an application:
    (a) The information and assurances described in Sec. 345.30, except 
the preliminary needs assessment described in Sec. 345.30(a)(4).
    (b) A description of the following:
    (1) The needs relating to technology-related assistance of 
individuals with disabilities (including individuals from 
underrepresented populations or rural populations) and their family 
members, guardians, advocates, or authorized representatives, and other 
appropriate individuals within the State.
    (2) Any problems or gaps that remain with the development and 
implementation of a consumer-responsive comprehensive statewide program 
of technology-related assistance in the State.
    (3) The strategies that the State will pursue during the grant 
period to remedy the problems or gaps with the development and 
implementation of a program.
    (4) Outreach activities to be conducted by the State, including 
dissemination of information to eligible populations, with special 
attention to underrepresented populations and rural populations.
    (5)(i) The specific systems change and advocacy activities described 
in Sec. 345.20 (including the activities described in Sec. 345.30(b)(1)) 
carried out under the development grant received by the State, or, in 
the case of an application for a second extension grant, under an 
initial extension grant received by the State under this section, 
including--

[[Page 230]]

    (A) A description of systems change and advocacy activities that 
were undertaken to produce change on a permanent basis for individuals 
with disabilities of all ages;
    (B) A description of activities undertaken to improve the 
involvement of individuals with disabilities in the program, including 
training and technical assistance efforts to improve individual access 
to assistive technology devices and assistive technology services as 
mandated under other laws and regulations in effect on the date of the 
application, and including actions undertaken to improve the 
participation of underrepresented populations and rural populations, 
such as outreach efforts; and
    (C) An evaluation of the impact and results of the activities 
described in paragraph (b)(5)(i)(A) and (B) of this section.
    (ii) The relationship of systems change and advocacy activities to 
the development and implementation of a consumer-responsive 
comprehensive statewide program of technology-related assistance.
    (iii) The progress made toward the development and implementation of 
a consumer-responsive comprehensive statewide program of technology-
related assistance.
    (6)(i) In the case of an application for an initial extension grant, 
a report on the hearing described in Sec. 345.8(a)(2) or, in the case of 
an application for a second extension grant, a report on the hearing 
described in Sec. 345.8(b)(2).
    (ii) A description of State actions, other than a hearing, designed 
to determine the degree of satisfaction of individuals with 
disabilities, and their family members, guardians, advocates, or 
authorized representatives, public service providers and private service 
providers, educators and related service providers, technology experts 
(including engineers), employers, and other appropriate individuals and 
entities with--
    (A) The degree of their ongoing involvement in the development and 
implementation of the consumer-responsive comprehensive statewide 
program of technology-related assistance;
    (B) The specific systems change and advocacy activities described in 
Sec. 345.20 (including the activities described in Sec. 345.30(b)(1)) 
carried out by the State under the development grant or the initial 
extension grant;
    (C) Progress made toward the development and implementation of a 
consumer-responsive comprehensive statewide program of technology-
related assistance; and
    (D) The ability of the lead agency to carry out the activities 
described in Sec. 345.6(b).
    (c) A summary of any comments received concerning the issues 
described in paragraph (b)(6) of this section and response of the State 
to such comments, solicited through a public hearing or through other 
means, from individuals affected by the consumer-responsive 
comprehensive statewide program of technology-related assistance, 
including--
    (1) Individuals with disabilities and their family members, 
guardians, advocates, or authorized representatives;
    (2) Public service providers and private service providers;
    (3) Educators and related services personnel;
    (4) Technology experts (including engineers);
    (5) Employers; and
    (6) Other appropriate individuals and entities.
    (d) An assurance that the State, any recipient, and any subrecipient 
of funds made available to the State under the Act will comply with 
guidelines established under section 508 of the Rehabilitation Act of 
1973 (29 U.S.C. 794d).
    (e)(1) A copy of the protection and advocacy contract or grant 
agreement entered into by the State;
    (2) Evidence of ongoing negotiations with an entity to provide 
protection and advocacy services, if the State has not yet entered into 
a grant or contract; or
    (3) A request that the Secretary enter into a grant agreement with 
an entity to provide protection and advocacy services, pursuant to 
Sec. 345.30(b)(12)(ii).

(Authority: 29 U.S.C. 2213 (d) and (e); section 103 (d) and (e) of the 
Act).

[[Page 231]]



             Subpart D--How Does the Secretary Make a Grant?



Sec. 345.40  How does the Secretary evaluate an application for a development grant under this program?

    The Secretary evaluates each application using the selection 
criteria in 34 CFR 75.210.

(Authority: 29 U.S.C. 2212(a); section 102(a) of the Act)



Sec. 345.41  What other factors does the Secretary take into consideration in making development grant awards under this program?

    In making development grants under this program, the Secretary takes 
into consideration, to the extent feasible--
    (a) Achieving a balance among States that have differing levels of 
development of consumer-responsive comprehensive statewide programs of 
technology-related assistance; and
    (b) Achieving a geographically equitable distribution of the grants.

(Authority: 29 U.S.C. 2212(c); section 102(c) of the Act)



Sec. 345.42  What is the review process for an application for an extension grant?

    (a) The Secretary may award an initial extension grant to any State 
that--
    (1) Provides the evidence described in Sec. 345.6(b) and makes the 
demonstration described in paragraph (a)(2) of this section;
    (2) Demonstrates that the State has made significant progress, and 
has carried out systems change and advocacy activities that have 
resulted in significant progress, toward the development and 
implementation of a consumer-responsive comprehensive statewide program 
of technology-related assistance, consistent with this part; and
    (3) Holds a public hearing in the third year of a program carried 
out under a development grant, after providing appropriate and 
sufficient notice to allow interested groups and organizations and all 
segments of the public an opportunity to comment on the program.
    (b) The Secretary may award a second extension grant to any State 
that--
    (1) Provides the evidence described in Sec. 345.6(b) and makes the 
demonstration described in paragraph (a)(2) of this section;
    (2) Describes the steps the State has taken or will take to continue 
on a permanent basis the consumer-responsive comprehensive statewide 
program of technology-related assistance with the ability to maintain, 
at a minimum, the outcomes achieved by the systems change and advocacy 
activities;
    (3) Identifies future funding options and commitments for the 
program from the public and private sector and the key individuals, 
agencies, and organizations to be involved in, and to direct future 
efforts of, the program; and
    (4) Holds a public hearing in the second year of a program carried 
out under an initial extension grant, after providing appropriate and 
sufficient notice to allow interested groups and organizations and all 
segments of the public an opportunity to comment on the program.
    (c) In making any award to a State for a second extension grant, the 
Secretary makes an award contingent on a determination, based on the on-
site visit in Sec. 345.53, that the State is making significant progress 
toward development and implementation of a consumer-responsive 
comprehensive statewide program of technology-related assistance, except 
where the Secretary determines that the on-site visit is unnecessary. If 
the Secretary determines that the State is not making significant 
progress, the Secretary may take an action described in Sec. 345.61.

(Authority: 29 U.S.C. 2213 (b) and (e) and 2215(a)(2); sections 103 (b) 
and (e) and 105(a)(2) of the Act)



Sec. 345.43  What priorities does the Secretary establish?

    (a) The Secretary gives, in each of the 2 fiscal years succeeding 
the fiscal year in which amounts are first appropriated for carrying out 
development grants, priority for funding to States that received 
development grants under this part during the fiscal year preceding the 
fiscal year concerned.
    (b) For States that are applying for initial extension grants, the 
Secretary gives, in any fiscal year, priority to States that received 
initial extension

[[Page 232]]

grants during the fiscal year preceding the fiscal year concerned.
    (c) The Secretary may establish other appropriate priorities under 
the Act.

(Authority: 29 U.S.C. 2212(b)(4) and 2213(c); sections 102(b)(4) and 
103(c) of the Act)



         Subpart E--What Conditions Must Be Met After an Award?



Sec. 345.50  What are the reporting requirements for the recipients of development and extension grants?

    (a) States receiving development and extension grants shall submit 
annually to the Secretary a report that documents significant progress 
in developing and implementing a consumer-responsive comprehensive 
statewide program of technology-related assistance documenting the 
following:
    (1) The progress the State has made, as determined in the State's 
annual assessment (consistent with the guidelines established by the 
Secretary under Sec. 345.51) in achieving the State's goals, objectives, 
and outcomes as identified in the State's application, and areas of need 
that require attention in the next year, including unanticipated 
problems with the achievement of the goals, objectives, and outcomes 
described in the application, and the activities the State has 
undertaken to rectify these problems.
    (2) The systems change and advocacy activities carried out by the 
State including--
    (i) An analysis of the laws, regulations, policies, practices, 
procedures, and organizational structure that the State has changed, has 
attempted to change, or will attempt to change during the next year, to 
facilitate and increase timely access to, provision of, or funding for, 
assistive technology devices and assistive technology services; and
    (ii) A description of any written policies and procedures that the 
State has developed and implemented regarding access to, provision of, 
and funding for, assistive technology devices and assistive technology 
services, particularly policies and procedures regarding access to, 
provision of, and funding for, such devices and services under education 
(including special education), vocational rehabilitation, and medical 
assistance programs.
    (3) The degree of involvement of various State agencies, including 
the State insurance department, in the development, implementation, and 
evaluation of the program, including any interagency agreements that the 
State has developed and implemented regarding access to, provision of, 
and funding for, assistive technology devices and assistive technology 
services such as agreements that identify available resources for, 
assistive technology devices and assistive technology services and the 
responsibility of each agency for paying for such devices and services.
    (4) The activities undertaken to collect and disseminate information 
about the documents or activities analyzed or described in paragraphs 
(a) (1) through (3) of this section, including outreach activities to 
underrepresented populations and rural populations and efforts to 
disseminate information by means of electronic communication.
    (5) The involvement of individuals with disabilities who represent a 
variety of ages and types of disabilities in the planning, development, 
implementation, and assessment of the consumer-responsive comprehensive 
statewide program of technology-related assistance, including activities 
undertaken to improve such involvement, such as consumer training and 
outreach activities to underrepresented populations and rural 
populations.
    (6) The degree of consumer satisfaction with the program, including 
satisfaction by underrepresented populations and rural populations.
    (7) Efforts to train personnel as well as consumers.
    (8) Efforts to reduce the service delivery time for receiving 
assistive technology devices and assistive technology services.
    (9) Significant progress in the provision of protection and advocacy 
services, in each of the areas described in Sec. 345.55(c)(1)(ii).
    (b) The State shall make these reports readily available to the 
public at no extra cost.
    (c) The State shall submit on an annual basis--

[[Page 233]]

    (1) A copy of the protection and advocacy contract or grant 
agreement entered into by the State;
    (2) Evidence of ongoing negotiations with an entity to provide 
protection and advocacy services, if the State has not yet entered into 
a grant or contract; or
    (3) A request that the Secretary enter into a grant agreement with 
an entity to provide protection and advocacy services, pursuant to 
Sec. 345.30(b)(12)(ii).

(Authority: 29 U.S.C. 2212(e)(16)(A) and 2214(b); sections 102(e)(16)(A) 
and 104(b) of the Act)



Sec. 345.51  When is a State making significant progress?

    A State is making significant progress when it carries out--
    (a) The systems change and advocacy activities listed in 
Sec. 345.30(b)(1)(ii)(A) through (F); or
    (b) Other systems change and advocacy activities, if the State 
demonstrates through the progress reports developed by the Secretary and 
required to be submitted by a State in Sec. 345.50 that it has 
accomplished the purposes of the program listed in Sec. 345.2(a).

(Authority: 29 U.S.C. 2212(e)(7) and 2214(a); sections 102(e)(7) and 
104(a) of the Act)



Sec. 345.52  Who retains title to devices provided under this program?

    Title to devices purchased with grant funds under this part, either 
directly or through any contract or subgrant, must be held by a public 
agency or by an individual with a disability who is the beneficiary of 
the device. If the disabled individual does not have legal status to 
hold title, the title may be retained by a parent or legal guardian.

(Authority: 29 U.S.C. 2212(e)(12)(B); section 102(e)(12)(B) of the Act)



Sec. 345.53  What are the requirements for grantee participation in the Secretary's progress assessments?

    Recipients of development grants shall participate in the 
Secretary's assessment of the extent to which States are making 
significant progress by--
    (a) Participating in the on-site monitoring visits that will be made 
to each grantee during the final year of the development grant;
    (b) Participating in an on-site monitoring visit, that is in 
addition to the visit in paragraph (a), if the State applies for a 
second extension grant and whose initial on-site visit occurred prior to 
the date of the enactment of the Technology-Related Assistance for 
Individuals with Disabilities Act Amendments of 1994, unless the 
Secretary determines that the visit is not necessary.
    (c) Providing written evaluations of the State's progress toward 
fulfilling its goals and the objectives of the project, and such other 
documents as the Secretary may reasonably require to complete the 
required assessment.

(Authority: 29 U.S.C. 2215(a); section 105(a) of the Act)



Sec. 345.54  How may grant funds be used under this program?

    (a) States receiving funds under this part shall comply with the 
assurances provided under Secs. 345.30 and 345.31.
    (b) A State receiving a grant may make contracts or subgrants to the 
eligible entities in Sec. 345.6, provided that--
    (1) A designated public agency maintains fiscal responsibility and 
accountability; and
    (2) All appropriate provisions related to data collection, 
recordkeeping, and cooperation with the Secretary's evaluation and 
program monitoring efforts are applied to all subcontractors and 
subgrantees as well as to the agency receiving the grant.

(Authority: 29 U.S.C. 2212(e), 2213(d), and 2215(a)(5); sections 102(e), 
103(d), and 105(a)(5) of the Act; section 437 of the General Education 
Provisions Act; 20 U.S.C. 1232f)



Sec. 345.55  What are the responsibilities of a State in carrying out protection and advocacy services?

    (a)(1) A State is eligible to receive funding to provide protection 
and advocacy services if--
    (i) The State, as of June 30, 1993, has provided for protection and 
advocacy services through an entity that is capable of performing the 
functions that would otherwise be performed under Sec. 345.30(b)(12) by 
the system described in that section; and

[[Page 234]]

    (ii) The entity referred to in Sec. 345.30(b)(12)(i) is not a system 
described in that section.
    (b) A State that meets both of the descriptions in paragraph (a)(1) 
of this section also shall comply with the same requirements of this 
part as a system that receives funding under Sec. 345.30(b)(12).
    (c)(1) A system that receives funds under Sec. 345.30(b)(12)(i) to 
carry out the protection and advocacy services described in 
Sec. 345.30(b)(12)(i) in a State, or an entity described in paragraph 
(a)(1) of this section, shall prepare reports that contain the 
information required by the Secretary, including the following:
    (i) A description of the activities carried out by the system or 
entity with the funds;
    (ii) Documentation of significant progress, in providing protection 
and advocacy services, in each of the following areas:
    (A) Conducting activities that are consumer-responsive, including 
activities that will lead to increased access to funding for assistive 
technology devices and assistive technology services.
    (B) Executing legal, administrative, and other appropriate means of 
representation to implement systems change and advocacy activities.
    (C) Developing and implementing strategies designed to enhance the 
long-term abilities of individuals with disabilities and their family 
members, guardians, advocates, and authorized representatives to 
successfully advocate for assistive technology devices and assistive 
technology services to which the individuals with disabilities are 
entitled under law other than this Act.
    (D) Coordinating activities with protection and advocacy services 
funded through sources other than this Act, and coordinating activities 
with the systems change and advocacy activities carried out by the State 
lead agency.
    (2) The system or entity shall submit the reports to the lead agency 
in the State not less often than every 6 months.
    (3) The system or entity shall provide monthly updates to the lead 
agency concerning the activities and information described in paragraph 
(c) of this section.
    (d) Before making a grant or entering into a contract under 
Sec. 345.30(b)(12)(ii) to support the protection and advocacy services 
described in Sec. 345.30(b)(12)(ii) in a State, the Secretary shall 
solicit and consider the opinions of the lead agency in the State with 
respect to the terms of the grant or contract.
    (e)(1) In each fiscal year, the Secretary specifies for each State 
receiving a development or an extension grant the minimum amount that 
the State shall use to provide protection and advocacy services.
    (2)(i) Except as provided for in paragraphs (e) (3) and (4), the 
Secretary calculates this minimum amount based on the size of the grant, 
the needs of individuals with disabilities within the State, the 
population of the State, and the geographic size of the State.
    (ii) The Secretary establishes a minimum amount for each State that 
ranges from at least $40,000 up to $100,000.
    (3) If a State receives a second extension grant, the Secretary 
specifies a minimum amount for the fourth year (if any) of the grant 
period that equals 75 percent of the minimum amount specified for the 
State for the third year of the second extension grant of the State.
    (4) If a State receives a second extension grant, the Secretary 
specifies a minimum amount for the fifth year (if any) of the grant 
period that equals 50 percent of the minimum amount specified for the 
State for the third year of the second extension grant of the State.
    (5) After the fifth year (if any) of the grant period, no Federal 
funds may be made available under this title by the State to a system 
described in Sec. 345.30(b)(12) or an entity described in paragraph (a) 
of this section.

(Authority: 29 U.S.C. 2212(f); section 102(f) of the Act)

[[Page 235]]



      Subpart F--What Compliance Procedures May the Secretary Use?



Sec. 345.60  Who is subject to a corrective action plan?

    (a) Any State that fails to comply with the requirements of this 
part is subject to a corrective action plan.
    (b) A State may appeal a finding that it is subject to corrective 
action within 30 days of being notified in writing by the Secretary of 
the finding.

(Authority: 29 U.S.C. 2215(b)(1); section 105(b)(1) of the Act)



Sec. 345.61  What penalties may the Secretary impose on a grantee that is subject to corrective action?

    A State that fails to comply with the requirements of this part may 
be subject to corrective actions such as--
    (a) Partial or complete termination of funds;
    (b) Ineligibility to participate in the grant program in the 
following year;
    (c) Reduction in funding for the following year; or
    (d) Required redesignation of the lead agency.

(Authority: 29 U.S.C. 2215(b)(2); section 105(b)(2) of the Act)



Sec. 345.62  How does a State redesignate the lead agency when it is subject to corrective action?

    (a) Once a State becomes subject to a corrective action plan under 
Sec. 345.60, the Governor of the State, subject to approval by the 
Secretary, shall appoint, within 30 days after the submission of the 
plan to the Secretary, a monitoring panel consisting of the following 
representatives:
    (1) The head of the lead agency designated by the Governor;
    (2) Two representatives from different public or private nonprofit 
organizations that represent the interests of individuals with 
disabilities;
    (3) Two consumers who are users of assistive technology devices and 
assistive technology services and who are not--
    (i) Members of the advisory council, if any, of the consumer-
responsive comprehensive statewide program of technology-related 
assistance; or
    (ii) Employees of the State lead agency; and
    (4) Two service providers with knowledge and expertise in assistive 
technology devices and assistive technology services.
    (b) The monitoring panel must be ethnically diverse. The panel shall 
select a chairperson from among the members of the panel.
    (c) The panel shall receive periodic reports from the State 
regarding progress in implementing the corrective action plan and shall 
have the authority to request additional information necessary to 
determine compliance.
    (d) The meetings of the panel to determine compliance shall be open 
to the public (subject to confidentiality concerns) and held at 
locations that are accessible to individuals with disabilities.
    (e) The panel shall carry out the duties of the panel for the entire 
period of the corrective action plan, as determined by the Secretary.
    (f) A failure by a Governor of a State to comply with the 
requirements of paragraphs (a) through (e) of this section results in 
the termination of funding for the State under this part.
    (g) Based on its findings, a monitoring panel may determine that a 
lead agency designated by a Governor has not accomplished the purposes 
described in Sec. 345.2(a) and that there is good cause for 
redesignation of the agency and the temporary loss of funds by the State 
under this part.
    (h) For the purposes of this section, ``good cause'' includes the 
following:
    (1) Lack of progress with employment of qualified staff;
    (2) Lack of consumer-responsive activities;
    (3) Lack of resource allocation to systems change and advocacy 
activities;
    (4) Lack of progress with meeting the assurances in Sec. 345.30(b); 
or
    (5) Inadequate fiscal management.
    (i) If a monitoring panel determines that the lead agency should be 
redesignated, the panel shall recommend to the Secretary that further 
remedial action be taken or that the Secretary order the Governor to 
redesignate the lead agency within 90 days or lose funds under this 
part. The Secretary,

[[Page 236]]

based on the findings and recommendations of the monitoring panel, and 
after providing to the public notice and opportunity for comment, shall 
make a final determination regarding whether to order the Governor to 
redesignate the lead agency. The Governor shall make any redesignation 
in accordance with the requirements that apply to designations under 
Sec. 345.6.

(Authority: 29 U.S.C. 2215(c); section 105(c) of the Act)



Sec. 345.63  How does a State change the entity responsible for providing protection and advocacy services?

    (a) The Governor of a State, based on input from individuals with 
disabilities and their family members, guardians, advocates, or 
authorized representatives, may determine that the entity providing 
protection and advocacy services has not met the protection and advocacy 
service needs of the individuals with disabilities and their family 
members, guardians, advocates, or authorized representatives, for 
securing funding for and access to assistive technology devices and 
assistive technology services, and that there is good cause to provide 
the protection and advocacy services for the State through a contract 
with a second entity.
    (b) On making the determination in paragraph (a) of this section, 
the Governor may not enter into a contract with a second entity to 
provide the protection and advocacy services unless good cause exists 
and unless--
    (1) The Governor has given the first entity 30 days notice of the 
intention to enter into the contract, including specification of good 
cause, and an opportunity to respond to the assertion that good cause 
has been shown;
    (2) Individuals with disabilities and their family members, 
guardians, advocates, or authorized representatives, have timely notice 
of the determination and opportunity for public comment; and
    (3) The first entity has the opportunity to appeal the determination 
to the Secretary within 30 days of the determination on the basis that 
there is not good cause to enter into the contract.
    (c)(1) When the Governor of a State determines that there is good 
cause to enter into a contract with a second entity to provide the 
protection and advocacy services, the Governor shall hold an open 
competition within the State and issue a request for proposals by 
entities desiring to provide the services.
    (2) The Governor shall not issue a request for proposals by entities 
desiring to provide protection and advocacy services until the first 
entity has been given notice and an opportunity to respond. If the first 
entity appeals the determination to the Secretary, the Governor shall 
issue such request only if the Secretary decides not to overturn the 
determination of the Governor. The Governor shall issue such request 
within 30 days after the end of the period during which the first entity 
has the opportunity to respond, or after the decision of the Secretary, 
as appropriate.
    (3) The competition shall be open to entities with the same 
expertise and ability to provide legal services as a system in 
Sec. 345.30(b)(12). The competition shall ensure public involvement, 
including a public hearing and adequate opportunity for public comment.

(Authority: 29 U.S.C. 2215(d); section 105(d) of the Act)



PART 350--DISABILITY AND REHABILITATION RESEARCH PROJECTS AND CENTERS PROGRAM--Table of Contents




                           Subpart A--General

Sec.
350.1  What is the Disability and Rehabilitation Research Projects and 
          Centers Program?
350.2  What is the purpose of the Disability and Rehabilitation Research 
          Project and Centers Program?
350.3  Who is eligible for an award?
350.4  What regulations apply?
350.5  What definitions apply?

           Subpart B--What Projects Does the Secretary Assist?

350.10  What are the general requirements for Disability and 
          Rehabilitation Research Projects?
350.11  What are the general requirements for a Field-Initiated Project?
350.12  What are the general requirements for an Advanced Rehabilitation 
          Research Training Project?

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350.13  What must a grantee do in carrying out a research activity?
350.14  What must a grantee do in carrying out a training activity?
350.15  What must a grantee do in carrying out a demonstration activity?
350.16  What must a grantee do in carrying out a development activity?
350.17  What must a grantee do in carrying out a utilization activity?
350.18  What must a grantee do in carrying out a dissemination activity?
350.19  What must a grantee do in carrying out a technical assistance 
          activity?

 Subpart C--What Rehabilitation Research and Training Centers Does the 
                            Secretary Assist?

350.20  What general requirements must a Rehabilitation Research and 
          Training Center meet?
350.21  What collaboration must a Rehabilitation Research and Training 
          Center engage in?
350.22  What activities must a Rehabilitation Research and Training 
          Center conduct?
350.23  What restriction exists on Rehabilitation Research and Training 
          Centers regarding indirect costs?

  Subpart D--What Rehabilitation Engineering Research Centers Does the 
                            Secretary Assist?

350.30  What requirements must a Rehabilitation Engineering Research 
          Center meet?
350.31  What collaboration must a Rehabilitation Engineering Research 
          Center engage in?
350.32  What activities must a Rehabilitation Engineering Research 
          Center conduct?
350.33  What cooperation requirements must a Rehabilitation Engineering 
          Research Center meet?
350.34  Which Rehabilitation Engineering Research Centers must have an 
          advisory committee?
350.35  What are the requirements for the composition of an advisory 
          committee?

               Subpart E--How Does One Apply for an Award?

350.40  What is required of each applicant regarding the needs of 
          individuals with disabilities from minority backgrounds?
350.41  What State agency review must an applicant under the Disability 
          and Rehabilitation Research Projects and Centers Program 
          obtain?

            Subpart F--How Does the Secretary Make an Award?

350.50  What is the peer review process for this Program?
350.51  What is the purpose of peer review?
350.52  What is the composition of a peer review panel?
350.53  How does the Secretary evaluate an application?
350.54  What selection criteria does the Secretary use in evaluating an 
          application?
350.55  What are the additional considerations for selecting Field-
          Initiated Project applications for funding?

         Subpart G--What Conditions Must Be Met After an Award?

350.60  How must a grantee conduct activities?
350.61  What evaluation requirements must a grantee meet?
350.62  What are the matching requirements?
350.63  What are the requirements of a grantee relative to the Client 
          Assistance Program?
350.64  What is the required duration of the training in an Advanced 
          Rehabilitation Research Training Project?
350.65  What level of participation is required of trainees in an 
          Advanced Rehabilitation Research Training Project?
350.66  What must a grantee include in a patent application?

    Authority: Sec. 204; 29 U.S.C. 761-762, unless otherwise noted.

    Source: 62 FR 5713, Feb. 6, 1997, unless otherwise noted.



                           Subpart A--General



Sec. 350.1  What is the Disability and Rehabilitation Research Projects and Centers Program?

    The Disability and Rehabilitation Research Projects and Centers 
Program provides grants to establish and support--
    (a) The following Disability and Rehabilitation Research and Related 
Projects:
    (1) Disability and Rehabilitation Research Projects.
    (2) Field-Initiated Projects.
    (3) Advanced Rehabilitation Research Training Projects; and
    (b) The following Disability and Rehabilitation Research Centers:
    (1) Rehabilitation Research and Training Centers.

[[Page 238]]

    (2) Rehabilitation Engineering Research Centers.

(Authority: Sec. 204; 29 U.S.C. 762)



Sec. 350.2  What is the purpose of the Disability and Rehabilitation Research Project and Centers Program?

    The purpose of the Disability and Rehabilitation Research Project 
and Centers Program is to plan and conduct research, demonstration 
projects, training, and related activities, including international 
activities, to--
    (a) Develop methods, procedures, and rehabilitation technology, that 
maximize the full inclusion and integration into society, employment, 
independent living, family support, and economic and social self-
sufficiency of individuals with disabilities, especially individuals 
with the most severe disabilities; and
    (b) Improve the effectiveness of services authorized under the Act.

(Authority: Secs. 204(a) and (b)(6); 29 U.S.C. 762(a) and (b)(6))



Sec. 350.3  Who is eligible for an award?

    The following entities are eligible for an award under this program:
    (a) States.
    (b) Public or private agencies, including for-profit agencies.
    (c) Public or private organizations, including for-profit 
organizations.
    (d) Institutions of higher education.
    (e) Indian tribes and tribal organizations.

(Authority: Sec. 204(a); 29 U.S.C. 762(a))



Sec. 350.4  What regulations apply?

    The following regulations apply to the Disability and Rehabilitation 
Research Projects and Centers Program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 74 (Administration of Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-profit 
Organizations).
    (2) 34 CFR part 75 (Direct Grant Programs).
    (3) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments).
    (5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (6) 34 CFR part 82 (New Restrictions on Lobbying).
    (7) 34 CFR part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace 
(Grants)).
    (8) 34 CFR part 86 (Drug-Free Schools and Campuses).
    (b) The regulations in this part 350.
    (c)(1) Subject to the additional requirement in paragraph (c)(2) of 
this section, 34 CFR part 97 (Protection of Human Subjects).
    (2) If an institutional review board (IRB) reviews research that 
purposefully requires inclusion of children with disabilities or 
individuals with mental disabilities as research subjects, the IRB must 
have at least one member who is primarily concerned with the welfare of 
these research subjects.

(Authority: 29 U.S.C. 761a, 762, 42 U.S.C. 300v-1(b))



Sec. 350.5  What definitions apply?

    (a) The following definitions in 34 CFR part 77 apply to this part--

Applicant
Application
Award
Budget
Department
EDGAR
Equipment
Facilities
Grant
Grantee
Nonprofit
Private
Project
Project period
Public
Recipient
Secretary
Supplies
State

(Authority: Sec. 202(i)(1); 29 U.S.C. 761a(i)(1))

    (b) The following definitions also apply to this part.

[[Page 239]]

    Act means the Rehabilitation Act of 1973 (29 U.S.C. 701, et seq.), 
as amended.

(Authority: Sec. 202(i)(1); (29 U.S.C. 761a(i)(1))

    Assistive technology device means any item, piece of equipment, or 
product system, whether acquired commercially or off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
functional capabilities of individuals with disabilities.

(Authority: Sec. 7(23); 29 U.S.C. 706(23))

    Assistive technology service means any service that directly assists 
an individual with a disability in the selection, acquisition, or use of 
an assistive technology device, including--
    (1) The evaluation of the needs of an individual with a disability, 
including a functional evaluation of the individual in the individual's 
customary environment;
    (2) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by individuals with disabilities;
    (3) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;
    (4) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (5) Training or technical assistance for individuals with 
disabilities, or, if appropriate, their family members, guardians, 
advocates, or authorized representatives; and
    (6) Training or technical assistance for professionals (including 
individuals providing education and rehabilitation services), employers, 
or other individuals who provide services to employ, or are otherwise 
substantially involved in the major life functions of, individuals with 
disabilities.

(Authority: Sec. 7(24); 29 U.S.C. 706(24))

    Disability means a physical or mental impairment that substantially 
limits one or more major life activities.

(Authority: Sec. 202(i)(1); 29 U.S.C. 761a(i)(1))

    Individual with a disability means any individual who:
    (1) Has a physical or mental impairment that substantially limits 
one or more of the individual's major life activities;
    (2) Has a record of this impairment; or
    (3) Is regarded as having this impairment.

(Authority: Sec. 7(8)(B); 29 U.S.C. 706(8)(B))

    Individual with a severe disability means--
    (1)(i) An individual with a disability who has a severe physical or 
mental impairment that seriously limits one or more functional 
capacities (such as mobility, communication, self-care, self-direction, 
interpersonal skills, work tolerance, or work skills) in terms of an 
employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental 
retardation, mental illness, multiple sclerosis, muscular dystrophy, 
musculoskeletal disorders, neurological disorders (including stroke and 
epilepsy), paraplegia, quadriplegia, other spinal cord impairments, 
sickle cell anemia, specific learning disability, end-stage renal 
disease, or another disability or combination of disabilities determined 
on the basis of an assessment of rehabilitation needs to cause 
comparable substantial functional limitation; or
    (2) An individual with a severe mental or physical impairment whose 
ability to function independently in the family or community or whose 
ability to obtain, maintain, or advance in employment is substantially 
limited and for whom the delivery of independent living services will 
improve the ability to function, continue functioning, or move towards 
functioning independently in the family or community or to continue in 
employment, respectively.

(Authority: Sec. 7(15)(C); 29 U.S.C. 706(15)(C))


[[Page 240]]


    Personal assistance services means a range of services, provided by 
one or more persons, designed to assist an individual with a disability 
to perform daily living activities, on and off the job, that the 
individual would typically perform if the individual did not have a 
disability. These services must be designed to increase the individual's 
control in life and ability to perform everyday activities on and off 
the job.

(Authority: Sec. 12(c); 29 U.S.C. 711(c))

    Rehabilitation technology means the systematic application of 
technologies, engineering methodologies, or scientific principles to 
meet the needs of and address the barriers confronted by individuals 
with disabilities in such areas as education, rehabilitation, 
employment, transportation, independent living, and recreation, and 
includes rehabilitation engineering, assistive technology devices, and 
assistive technology services.

(Authority: Sec. 7(13); 29 U.S.C. 706(13))

    Research is classified on a continuum from basic to applied:
    (1) Basic research is research in which the investigator is 
concerned primarily with gaining new knowledge or understanding of a 
subject without reference to any immediate application or utility.
    (2) Applied research is research in which the investigator is 
primarily interested in developing new knowledge, information or 
understanding which can be applied to a predetermined rehabilitation 
problem or need. Applied research builds on selected findings from basic 
research.

(Authority: Sec. 202(i)(1); 29 U.S.C. 761a(i)(1))

    State rehabilitation agency means the sole State agency designated 
to administer (or supervise local administration of) the State plan for 
vocational rehabilitation services. The term includes the State agency 
for the blind, if designated as the State agency with respect to that 
part of the plan relating to the vocational rehabilitation of blind 
individuals.

(Authority: Sec. 101(a)(1)(A); 29 U.S.C. 721(a)(1)(A))

    Target population means the group of individuals, organizations, or 
other entities expected to be affected by the project. More than one 
group may be involved since a project may affect those who receive 
services, provide services, or administer services.

(Authority: Sec. 202(i)(1); 29 U.S.C. 761a(i)(1))



           Subpart B--What Projects Does the Secretary Assist?



Sec. 350.10  What are the general requirements for Disability and Rehabilitation Research Projects?

    Disability and Rehabilitation Research Projects must meet the 
following requirements:
    (a) Carry out one or more of the following types of activities, as 
specified in Secs. 350.13-350.19:
    (1) Research.
    (2) Development.
    (3) Demonstration.
    (4) Training.
    (5) Dissemination.
    (6) Utilization.
    (7) Technical assistance.
    (b) Further one or more of the purposes listed in Sec. 350.2.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.11  What are the general requirements for a Field-Initiated Project?

    A Field-Initiated Project must--
    (a) Further one or more of the purposes in Sec. 350.2; and
    (b) Carry out one of the following types of activities:
    (1) Research.
    (2) Development.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.12  What are the general requirements for an Advanced Rehabilitation Research Training Project?

    An Advanced Rehabilitation Research Training Project must--
    (a) Provide research training and experience at an advanced level to 
individuals with doctorates or similar advanced degrees who have 
clinical or other relevant experience;
    (b) Further one or more of the purposes in Sec. 350.2; and
    (c) Carry out all of the following activities:
    (1) Recruitment and selection of candidates for advanced research 
training.

[[Page 241]]

    (2) Provision of a training program that includes didactic and 
classroom instruction, is multidisciplinary, and emphasizes scientific 
methodology, and may involve collaboration among institutions.
    (3) Provision of research experience, laboratory experience or its 
equivalent in a community-based research setting, and a practicum that 
involve each individual in clinical research and in practical activities 
with organizations representing individuals with disabilities.
    (4) Provision of academic mentorship or guidance, and opportunities 
for scientific collaboration with qualified researchers at the host 
university and other appropriate institutions.
    (5) Provision of opportunities for participation in the development 
of professional presentations and publications, and for attendance at 
professional conferences and meetings as appropriate for the 
individual's field of study and level of experience.

(Authority: Sec. 202(k); 29 U.S.C. 761a(k))



Sec. 350.13  What must a grantee do in carrying out a research activity?

    In carrying out a research activity under this program, a grantee 
shall--
    (a) Identify one or more hypotheses; and
    (b) Based on the hypotheses identified, perform an intensive 
systematic study directed toward--
    (1) New or full scientific knowledge; or
    (2) Understanding of the subject or problem studied.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.14  What must a grantee do in carrying out a training activity?

    In carrying out a training activity under this program, a grantee 
shall conduct a planned and systematic sequence of supervised 
instruction that is designed to impart predetermined skills and 
knowledge.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.15  What must a grantee do in carrying out a demonstration activity?

    In carrying out a demonstration activity under this program, a 
grantee shall apply results derived from previous research, testing, or 
practice to determine the effectiveness of a new strategy or approach.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.16  What must a grantee do in carrying out a development activity?

    In carrying out a development activity under this program, a grantee 
must use knowledge and understanding gained from research to create 
materials, devices, systems, or methods beneficial to the target 
population, including design and development of prototypes and 
processes.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.17  What must a grantee do in carrying out a utilization activity?

    In carrying out a utilization activity under this program, a grantee 
must relate research findings to practical applications in planning, 
policy making, program administration, and delivery of services to 
individuals with disabilities.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.18  What must a grantee do in carrying out a dissemination activity?

    In carrying out a dissemination activity under this program, a 
grantee must systematically distribute information or knowledge through 
a variety of ways to potential users or beneficiaries.

(Authority: Sec. 202; 29 U.S.C. 761a)



Sec. 350.19  What must a grantee do in carrying out a technical assistance activity?

    In carrying out a technical assistance activity under this program, 
a

[[Page 242]]

grantee must provide expertise or information for use in problem-
solving.

(Authority: Sec. 202; 29 U.S.C. 761a)



 Subpart C--What Rehabilitation Research and Training Centers Does the 
                            Secretary Assist?



Sec. 350.20  What general requirements must a Rehabilitation Research and Training Center meet?

    A Rehabilitation Research and Training Center shall--
    (a) Plan and conduct activities that further one or more of the 
purposes listed in Sec. 350.2;
    (b) Serve as a center of national excellence and as a national or 
regional resource for providers and individuals with disabilities and 
the parents, family members, guardians, advocates, or authorized 
representatives of the individuals;
    (c) Be of sufficient size, scope, and quality to effectively carry 
out the activities in an efficient manner consistent with appropriate 
State and Federal law; and
    (d) Be able to carry out training activities either directly or 
through another entity that can provide such training.

(Authority: Secs. 204(b) and (b)(2)(K); 29 U.S.C. 762(b) and (b)(2)(K))



Sec. 350.21  What collaboration must a Rehabilitation Research and Training Center engage in?

    A Rehabilitation Research and Training Center must be operated by or 
in collaboration with--
    (a) One or more institutions of higher education; or
    (b) One or more providers of rehabilitation or other appropriate 
services.

(Authority: Sec. 204(b)(2); 29 U.S.C. 762(b)(2))



Sec. 350.22  What activities must a Rehabilitation Research and Training Center conduct?

    A Rehabilitation Research and Training Center shall--
    (a) Carry out research activities by conducting coordinated and 
advanced programs of research in rehabilitation targeted toward the 
production of new knowledge that will--
    (1) Improve rehabilitation methodology and service delivery systems;
    (2) Alleviate or stabilize disabling conditions; and
    (3) Promote maximum social and economic independence of individuals 
with disabilities;
    (b) Conduct training activities by providing training (including 
graduate, pre-service, and in-service training) to assist--
    (1) Rehabilitation personnel and other individuals to more 
effectively provide rehabilitation services; and
    (2) Rehabilitation research personnel and other rehabilitation 
personnel to improve their capacity to conduct research; and
    (c) Conduct technical assistance activities by serving as an 
informational and technical assistance resource for providers, 
individuals with disabilities, and the parents, family members, 
guardians, advocates, or authorized representatives of the individuals 
with disabilities, through conferences, workshops, public education 
programs, in-service training programs, and similar activities.



Sec. 350.23  What restriction exists on Rehabilitation Research and Training Centers regarding indirect costs?

    A host institution with which a Rehabilitation Research and Training 
Center is affiliated may not collect more than fifteen percent of the 
total grant award as indirect cost charges, notwithstanding the 
provisions in 34 CFR 75.562.

(Authority: Sec. 204(b)(2)(O); 29 U.S.C. 762(b)(2)(O))



  Subpart D--What Rehabilitation Engineering Research Centers Does the 
                            Secretary Assist?



Sec. 350.30  What requirements must a Rehabilitation Engineering Research Center meet?

    A Rehabilitation Engineering Research Center shall plan and conduct 
activities that--
    (a) Further one or more of the purposes listed in Sec. 350.2; and
    (b)(1) Lead to the development of methods, procedures, and devices 
that

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will benefit individuals with disabilities, especially those with the 
most severe disabilities; or
    (2) Involve rehabilitation technology and enhance opportunities for 
meeting the needs of, and addressing the barriers confronted by, 
individuals with disabilities in all aspects of their lives.

(Authority: Sec. 204(b)(3); 29 U.S.C. 762(b)(3))



Sec. 350.31  What collaboration must a Rehabilitation Engineering Research Center engage in?

    A Rehabilitation Engineering Research Center must be operated by or 
in collaboration with--
    (a) One or more institutions of higher education; or
    (b) One or more nonprofit organizations.

(Authority: Sec. 204(b)(3); 29 U.S.C. 762(b)(3))



Sec. 350.32  What activities must a Rehabilitation Engineering Research Center conduct?

    A Rehabilitation Engineering Research Center shall--
    (a) Conduct research or demonstration activities by using one or 
more of the following strategies:
    (1) Developing and disseminating innovative methods of applying 
advanced technology, scientific achievement, and psychological and 
social knowledge to solve rehabilitation problems and remove 
environmental barriers through--
    (i) Planning and conducting research, including cooperative research 
with public or private agencies and organizations, designed to produce 
new scientific knowledge and new or improved methods, equipment, or 
devices; and
    (ii) Studying and evaluating new or emerging technologies, products, 
or environments and their effectiveness and benefits.
    (2) Demonstrating and disseminating--
    (i) Innovative models for the delivery to rural and urban areas of 
cost-effective rehabilitation technology services that will promote the 
use of assistive technology services; and
    (ii) Other scientific research to assist in meeting the employment 
and independent living needs of individuals with severe disabilities.
    (3) Conducting research and demonstration activities that facilitate 
service delivery systems change by demonstrating, evaluating, 
documenting, and disseminating--
    (i) Consumer-responsive and individual and family-centered 
innovative models for the delivery, to both rural and urban areas, of 
innovative, cost-effective rehabilitation technology services that 
promote use of rehabilitation technology; and
    (ii) Other scientific research to assist in meeting the employment 
and independent living needs of, and addressing the barriers confronted 
by individuals with disabilities, including individuals with severe 
disabilities;
    (b) To the extent consistent with the nature and type of research or 
demonstration activities described in paragraph (a) of this section, 
carry out research, training, and information dissemination activities 
by--
    (1) Providing training opportunities to individuals, including 
individuals with disabilities, to enable them to become rehabilitation 
technology researchers and practitioners of rehabilitation technology in 
conjunction with institutions of higher education and nonprofit 
organizations; and
    (2) Responding, through research or demonstration activities, to the 
needs of individuals with all types of disabilities who may benefit from 
the application of technology within the subject area of focus of the 
Center.
    (c) Conduct orientation seminars for rehabilitation service 
personnel to improve the application of rehabilitation technology;
    (d) Conduct activities that specifically demonstrate means for 
utilizing rehabilitation technology; and
    (e) Provide technical assistance and consultation that are 
responsive to concerns of service providers and consumers.

(Authority: Sec. 204(b)(3); 29 U.S.C. 762(b)(3))



Sec. 350.33  What cooperation requirements must a Rehabilitation Engineering Research Center meet?

    A Rehabilitation Engineering Research Center--
    (a) Shall cooperate with State agencies and other local, State, 
regional,

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and national programs and organizations developing or delivering 
rehabilitation technology, including State programs funded under the 
Technology-Related Assistance for Individuals With Disabilities Act of 
1988 (29 U.S.C. 2201 et seq.); and
    (b) To the extent consistent with the nature and type of research or 
demonstration activities described in Sec. 350.32(a), shall cooperate 
with the entities described in paragraph (a) of this section to provide 
information to individuals with disabilities and their parents, family 
members, guardians, advocates, or authorized representatives, to--
    (1) Increase awareness and understanding of how rehabilitation 
technology can address their needs; and
    (2) Increase awareness and understanding of the range of options, 
programs, services, and resources available, including financing options 
for the technology and services covered by the subject area of focus of 
the Center.

(Authority: Sec. 204(b)(3) and (c); 29 U.S.C. 762(b)(3) and (c))



Sec. 350.34  Which Rehabilitation Engineering Research Centers must have an advisory committee?

    A Rehabilitation Engineering Research Center conducting research or 
demonstration activities that facilitate service delivery systems change 
must have an advisory committee.

(Authority: Sec. 204 (b)(3)(D); 29 U.S.C. 762 (b)(3)(D))



Sec. 350.35  What are the requirements for the composition of an advisory committee?

    The majority of a Rehabilitation Engineering Research Center 
advisory committee's members must be comprised of individuals with 
disabilities who are users of rehabilitation technology, or their 
parents, family members, guardians, advocates, or authorized 
representatives.

(Authority: Sec. 204(b)(3)(D); 29 U.S.C. 762(b)(3)(D))



               Subpart E--How Does One Apply for an Award?



Sec. 350.40  What is required of each applicant regarding the needs of individuals with disabilities from minority backgrounds?

    (a) Unless the Secretary indicates otherwise in a notice published 
in the Federal Register, an applicant for assistance under this program 
must demonstrate in its application how it will address, in whole or in 
part, the needs of individuals with disabilities from minority 
backgrounds.
    (b) The approaches an applicant may take to meet this requirement 
may include one or more of the following:
    (1) Proposing project objectives addressing the needs of individuals 
with disabilities from minority backgrounds.
    (2) Demonstrating that the project will address a problem that is of 
particular significance to individuals with disabilities from minority 
backgrounds.
    (3) Demonstrating that individuals from minority backgrounds will be 
included in study samples in sufficient numbers to generate information 
pertinent to individuals with disabilities from minority backgrounds.
    (4) Drawing study samples and program participant rosters from 
populations or areas that include individuals from minority backgrounds.
    (5) Providing outreach to individuals with disabilities from 
minority backgrounds to ensure that they are aware of rehabilitation 
services, clinical care, or training offered by the project.
    (6) Disseminating materials to or otherwise increasing the access to 
disability information among minority populations.

(Approved by the Office of Management and Budget under control number 
1820-0027)

(Authority: Sec. 21(b)(6); 29 U.S.C. 718b(b)(6))



Sec. 350.41  What State agency review must an applicant under the Disability and Rehabilitation Research Projects and Centers Program obtain?

    (a) An applicant that proposes to conduct research, demonstrations, 
or

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related activities that will either involve clients of the State 
vocational rehabilitation agency as research subjects or study 
vocational rehabilitation services or techniques under this program, 
shall follow the requirements in 34 CFR 75.155 through 75.159.
    (b) For the purposes of this Program, State as used in 34 CFR 75.155 
through 75.159 means the State rehabilitation agency or agencies in the 
primary State or States to be affected by the proposed activities.


(Authority: Secs. 204(c) and 306(i); 29 U.S.C. 762(c) and 766(a))



            Subpart F--How Does the Secretary Make an Award?



Sec. 350.50  What is the peer review process for this Program?

    (a) The Secretary refers each application for a grant governed by 
those regulations in this part to a peer review panel established by the 
Secretary.
    (b) Peer review panels review applications on the basis of the 
applicable selection criteria in Sec. 350.54.

(Authority: Sec. 202(e); 29 U.S.C. 761a(e))



Sec. 350.51  What is the purpose of peer review?

    The purpose of peer review is to insure that--
    (a) Those activities supported by the National Institute on 
Disability and Rehabilitation Research (NIDRR) are of the highest 
scientific, administrative, and technical quality; and
    (b) Activity results may be widely applied to appropriate target 
populations and rehabilitation problems.

(Authority: Sec. 202(e); 29 U.S.C. 761a(e))



Sec. 350.52  What is the composition of a peer review panel?

    (a) The Secretary selects as members of a peer review panel 
scientists and other experts in rehabilitation or related fields who are 
qualified, on the basis of training, knowledge, or experience, to give 
expert advice on the merit of the applications under review.
    (b) Applications for awards of $60,000 or more, except those for the 
purposes of evaluation, dissemination of information, or conferences, 
must be reviewed by a peer review panel that consists of a majority of 
non-Federal members.
    (c) In selecting members to serve on a peer review panel, the 
Secretary takes into account all of the following factors:
    (1) The level of formal scientific or technical education completed 
by potential panel members.
    (2)(i) The extent to which potential panel members have engaged in 
scientific, technical, or administrative activities appropriate to the 
category of applications that the panel will consider;
    (ii) The roles of potential panel members in those activities; and
    (iii) The quality of those activities.
    (3) The recognition received by potential panel members as reflected 
by awards and other honors from scientific and professional agencies and 
organizations outside the Department.
    (4) Whether the panel includes knowledgeable individuals with 
disabilities, or parents, family members, guardians, advocates, or 
authorized representatives of individuals with disabilities.
    (5) Whether the panel includes individuals from diverse populations.

(Authority: Secs. 18 and 202(e); 29 U.S.C. 717 and 761a(e))



Sec. 350.53  How does the Secretary evaluate an application?

    (a)(1)(i) The Secretary selects one or more of the selection 
criteria in Sec. 350.54 to evaluate an application;
    (ii) The Secretary establishes selection criteria based on statutory 
provisions that apply to the Program which may include, but are not 
limited to--
    (A) Specific statutory selection criteria;
    (B) Allowable activities;
    (C) Application content requirements; or
    (D) Other pre-award and post-award conditions; or
    (iii) The Secretary uses a combination of selection criteria 
established under paragraph (a)(1)(ii) of this section and selection 
criteria in Sec. 350.54.
    (2) For Field-Initiated Projects, the Secretary does not consider 
Sec. 350.54(b) (Responsiveness to the Absolute or Competitive Priority) 
in evaluating an application.

[[Page 246]]

    (b)(1) In considering selection criteria in Sec. 350.54, the 
Secretary selects one or more of the factors listed in the criteria 
except as provided for in paragraph (b)(2) of this section.
    (2) Under Sec. 350.54, the Secretary always considers the factor in 
paragraph (n)(2) of that section.
    (c) The maximum possible score for an application is 100 points.
    (d)(1) In the application package or a notice published in the 
Federal Register, the Secretary informs applicants of--
    (i)(A) The selection criteria chosen; and
    (B) The maximum possible score for each of the selection criteria; 
and
    (ii)(A) The factors selected for considering the selection criteria; 
and
    (B) If points are assigned to each factor, the maximum possible 
score for each factor under each criterion.
    (2) If no points are assigned to each factor, the Secretary 
evaluates each factor equally.
    (e) For Field-Initiated Projects, in addition to the selection 
criteria, the Secretary uses the additional considerations in selecting 
applications for funding as described in Sec. 350.55.

(Authority: Sec. 202(e); 29 U.S.C. 761a(e))



Sec. 350.54  What selection criteria does the Secretary use in evaluating an application?

    In addition to criteria established under Sec. 350.53(a)(1)(ii), the 
Secretary may select one or more of the following criteria in evaluating 
an application:
    (a) Importance of the problem. (1) The Secretary considers the 
importance of the problem.
    (2) In determining the importance of the problem, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the applicant clearly describes the need and 
target population.
    (ii) The extent to which the proposed activities further the 
purposes of the Act.
    (iii) The extent to which the proposed activities address a 
significant need of one or more disabled populations.
    (iv) The extent to which the proposed activities address a 
significant need of rehabilitation service providers.
    (v) The extent to which the proposed activities address a 
significant need of those who provide services to individuals with 
disabilities.
    (vi) The extent to which the applicant proposes to provide training 
in a rehabilitation discipline or area of study in which there is a 
shortage of qualified researchers, or to a trainee population in which 
there is a need for more qualified researchers.
    (vii) The extent to which the proposed project will have beneficial 
impact on the target population.
    (b) Responsiveness to an absolute or competitive priority. (1) The 
Secretary considers the responsiveness of the application to an absolute 
or competitive priority published in the Federal Register.
    (2) In determining the application's responsiveness to the absolute 
or competitive priority, the Secretary considers one or more of the 
following factors:
    (i) The extent to which the applicant addresses all requirements of 
the absolute or competitive priority.
    (ii) The extent to which the applicant's proposed activities are 
likely to achieve the purposes of the absolute or competitive priority.
    (c) Design of research activities. (1) The Secretary considers the 
extent to which the design of research activities is likely to be 
effective in accomplishing the objectives of the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the research activities constitute a 
coherent, sustained approach to research in the field, including a 
substantial addition to the state-of-the-art.
    (ii) The extent to which the methodology of each proposed research 
activity is meritorious, including consideration of the extent to 
which--
    (A) The proposed design includes a comprehensive and informed review 
of the current literature, demonstrating knowledge of the state-of-the-
art;
    (B) Each research hypothesis is theoretically sound and based on 
current knowledge;

[[Page 247]]

    (C) Each sample population is appropriate and of sufficient size;
    (D) The data collection and measurement techniques are appropriate 
and likely to be effective; and
    (E) The data analysis methods are appropriate.
    (iii) The extent to which anticipated research results are likely to 
satisfy the original hypotheses and could be used for planning 
additional research, including generation of new hypotheses where 
applicable.
    (d) Design of development activities. (1) The Secretary considers 
the extent to which the design of development activities is likely to be 
effective in accomplishing the objectives of the project.
    (2)(i) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (ii) The extent to which the plan for development, clinical testing, 
and evaluation of new devices and technology is likely to yield 
significant products or techniques, including consideration of the 
extent to which--
    (A) The proposed project will use the most effective and appropriate 
technology available in developing the new device or technique;
    (B) The proposed development is based on a sound conceptual model 
that demonstrates an awareness of the state-of-the-art in technology;
    (C) The new device or technique will be developed and tested in an 
appropriate environment;
    (D) The new device or technique is likely to be cost-effective and 
useful;
    (E) The new device or technique has the potential for commercial or 
private manufacture, marketing, and distribution of the product; and
    (F) The proposed development efforts include adequate quality 
controls and, as appropriate, repeated testing of products.
    (e) Design of demonstration activities. (1) The Secretary considers 
the extent to which the design of demonstration activities is likely to 
be effective in accomplishing the objectives of the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the proposed demonstration activities build 
on previous research, testing, or practices.
    (ii) The extent to which the proposed demonstration activities 
include the use of proper methodological tools and theoretically sound 
procedures to determine the effectiveness of the strategy or approach.
    (iii) The extent to which the proposed demonstration activities 
include innovative and effective strategies or approaches.
    (iv) The extent to which the proposed demonstration activities are 
likely to contribute to current knowledge and practice and be a 
substantial addition to the state-of-the-art.
    (v) The extent to which the proposed demonstration activities can be 
applied and replicated in other settings.
    (f) Design of training activities. (1) The Secretary considers the 
extent to which the design of training activities is likely to be 
effective in accomplishing the objectives of the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the proposed training materials are likely 
to be effective, including consideration of their quality, clarity, and 
variety.
    (ii) The extent to which the proposed training methods are of 
sufficient quality, intensity, and duration.
    (iii) The extent to which the proposed training content--
    (A) Covers all of the relevant aspects of the subject matter; and
    (B) If relevant, is based on new knowledge derived from research 
activities of the proposed project.
    (iv) The extent to which the proposed training materials, methods, 
and content are appropriate to the trainees, including consideration of 
the skill level of the trainees and the subject matter of the materials.
    (v) The extent to which the proposed training materials and methods 
are accessible to individuals with disabilities.

[[Page 248]]

    (vi) The extent to which the applicant's proposed recruitment 
program is likely to be effective in recruiting highly qualified 
trainees, including those who are individuals with disabilities.
    (vii) The extent to which the applicant is able to carry out the 
training activities, either directly or through another entity.
    (viii) The extent to which the proposed didactic and classroom 
training programs emphasize scientific methodology and are likely to 
develop highly qualified researchers.
    (ix) The extent to which the quality and extent of the academic 
mentorship, guidance, and supervision to be provided to each individual 
trainee are of a high level and are likely to develop highly qualified 
researchers.
    (x) The extent to which the type, extent, and quality of the 
proposed clinical and laboratory research experience, including the 
opportunity to participate in advanced-level research, are likely to 
develop highly qualified researchers.
    (xi) The extent to which the opportunities for collegial and 
collaborative activities, exposure to outstanding scientists in the 
field, and opportunities to participate in the preparation of scholarly 
or scientific publications and presentations are extensive and 
appropriate.
    (g) Design of dissemination activities. (1) The Secretary considers 
the extent to which the design of dissemination activities is likely to 
be effective in accomplishing the objectives of the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the content of the information to be 
disseminated--
    (A) Covers all of the relevant aspects of the subject matter; and
    (B) If appropriate, is based on new knowledge derived from research 
activities of the project.
    (ii) The extent to which the materials to be disseminated are likely 
to be effective and usable, including consideration of their quality, 
clarity, variety, and format.
    (iii) The extent to which the methods for dissemination are of 
sufficient quality, intensity, and duration.
    (iv) The extent to which the materials and information to be 
disseminated and the methods for dissemination are appropriate to the 
target population, including consideration of the familiarity of the 
target population with the subject matter, format of the information, 
and subject matter.
    (v) The extent to which the information to be disseminated will be 
accessible to individuals with disabilities.
    (h) Design of utilization activities. (1) The Secretary considers 
the extent to which the design of utilization activities is likely to be 
effective in accomplishing the objectives of the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the potential new users of the information 
or technology have a practical use for the information and are likely to 
adopt the practices or use the information or technology, including new 
devices.
    (ii) The extent to which the utilization strategies are likely to be 
effective.
    (iii) The extent to which the information or technology is likely to 
be of use in other settings.
    (i) Design of technical assistance activities. (1) The Secretary 
considers the extent to which the design of technical assistance 
activities is likely to be effective in accomplishing the objectives of 
the project.
    (2) In determining the extent to which the design is likely to be 
effective in accomplishing the objectives of the project, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the methods for providing technical 
assistance are of sufficient quality, intensity, and duration.
    (ii) The extent to which the information to be provided through 
technical assistance covers all of the relevant aspects of the subject 
matter.
    (iii) The extent to which the technical assistance is appropriate to 
the

[[Page 249]]

target population, including consideration of the knowledge level of the 
target population, needs of the target population, and format for 
providing information.
    (iv) The extent to which the technical assistance is accessible to 
individuals with disabilities.
    (j) Plan of operation. (1) The Secretary considers the quality of 
the plan of operation.
    (2) In determining the quality of the plan of operation, the 
Secretary considers one or more of the following factors:
    (i) The adequacy of the plan of operation to achieve the objectives 
of the proposed project on time and within budget, including clearly 
defined responsibilities, and timelines for accomplishing project tasks.
    (ii) The adequacy of the plan of operation to provide for using 
resources, equipment, and personnel to achieve each objective.
    (k) Collaboration. (1) The Secretary considers the quality of 
collaboration.
    (2) In determining the quality of collaboration, the Secretary 
considers one or more of the following factors:
    (i) The extent to which the applicant's proposed collaboration with 
one or more agencies, organizations, or institutions is likely to be 
effective in achieving the relevant proposed activities of the project.
    (ii) The extent to which agencies, organizations, or institutions 
demonstrate a commitment to collaborate with the applicant.
    (iii) The extent to which agencies, organizations, or institutions 
that commit to collaborate with the applicant have the capacity to carry 
out collaborative activities.
    (l) Adequacy and reasonableness of the budget. (1) The Secretary 
considers the adequacy and the reasonableness of the proposed budget.
    (2) In determining the adequacy and the reasonableness of the 
proposed budget, the Secretary considers one or more of the following 
factors:
    (i) The extent to which the costs are reasonable in relation to the 
proposed project activities.
    (ii) The extent to which the budget for the project, including any 
subcontracts, is adequately justified to support the proposed project 
activities.
    (iii) The extent to which the applicant is of sufficient size, 
scope, and quality to effectively carry out the activities in an 
efficient manner.
    (m) Plan of evaluation. (1) The Secretary considers the quality of 
the plan of evaluation.
    (2) In determining the quality of the plan of evaluation, the 
Secretary considers one or more of the following factors:
    (i) The extent to which the plan of evaluation provides for periodic 
assessment of progress toward--
    (A) Implementing the plan of operation; and
    (B) Achieving the project's intended outcomes and expected impacts.
    (ii) The extent to which the plan of evaluation will be used to 
improve the performance of the project through the feedback generated by 
its periodic assessments.
    (iii) The extent to which the plan of evaluation provides for 
periodic assessment of a project's progress that is based on identified 
performance measures that--
    (A) Are clearly related to the intended outcomes of the project and 
expected impacts on the target population; and
    (B) Are objective, and quantifiable or qualitative, as appropriate.
    (n) Project staff. (1) The Secretary considers the quality of the 
project staff.
    (2) In determining the quality of the project staff, the Secretary 
considers the extent to which the applicant encourages applications for 
employment from persons who are members of groups that have 
traditionally been underrepresented based on race, color, national 
origin, gender, age, or disability.
    (3) In addition, the Secretary considers one or more of the 
following:
    (i) The extent to which the key personnel and other key staff have 
appropriate training and experience in disciplines required to conduct 
all proposed activities.
    (ii) The extent to which the commitment of staff time is adequate to 
accomplish all the proposed activities of the project.

[[Page 250]]

    (iii) The extent to which the key personnel are knowledgeable about 
the methodology and literature of pertinent subject areas.
    (iv) The extent to which the project staff includes outstanding 
scientists in the field.
    (v) The extent to which key personnel have up-to-date knowledge from 
research or effective practice in the subject area covered in the 
priority.
    (o) Adequacy and accessibility of resources. (1) The Secretary 
considers the adequacy and accessibility of the applicant's resources to 
implement the proposed project.
    (2) In determining the adequacy and accessibility of resources, the 
Secretary considers one or more of the following factors:
    (i) The extent to which the applicant is committed to provide 
adequate facilities, equipment, other resources, including 
administrative support, and laboratories, if appropriate.
    (ii) The quality of an applicant's past performance in carrying out 
a grant.
    (iii) The extent to which the applicant has appropriate access to 
clinical populations and organizations representing individuals with 
disabilities to support advanced clinical rehabilitation research.
    (iv) The extent to which the facilities, equipment, and other 
resources are appropriately accessible to individuals with disabilities 
who may use the facilities, equipment, and other resources of the 
project.

(Approved by the Office of Management and Budget under control number 
1820-0027)

(Authority: Secs. 202 and 204; 29 U.S.C. 761a and 762)



Sec. 350.55  What are the additional considerations for selecting Field-Initiated Project applications for funding?

    (a) The Secretary reserves funds to support some or all of the 
Field-Initiated Project applications that have been awarded points 
totaling 80% or more of the maximum possible points under the procedures 
described in Sec. 350.53.
    (b) In making a final selection of applications to support as Field-
Initiated Projects, the Secretary considers the extent to which 
applications that have been awarded a rating of 80% or more of the 
maximum possible points and meet one or more of the following 
conditions:
    (1) The proposed project represents a unique opportunity to advance 
rehabilitation knowledge to improve the lives of individuals with 
disabilities.
    (2) The proposed project complements research already planned or 
funded by the NIDRR through annual priorities published in the Federal 
Register or addresses the research in a new and promising way.

(Authority: Secs. 202 (g) and (i)(1); 29 U.S.C. 761a(g) and 761a(i)(1))



         Subpart G--What Conditions Must Be Met After an Award?



Sec. 350.60  How must a grantee conduct activities?

    A grantee must--
    (a) Conduct all activities in a manner that is accessible to and 
usable by individuals with disabilities; and
    (b) If a grantee carries out more than one activity, carry out 
integrated activities.

(Authority: Secs. 202 and 204(b)(2); 29 U.S.C. 761a and 762(b))



Sec. 350.61  What evaluation requirements must a grantee meet?

    (a) A grantee must establish performance measures for use in its 
evaluation that--
    (1) Are clearly related to the--
    (i) Intended outcomes of the project; and
    (ii) Expected impacts on the target population; and
    (2) To the extent possible are quantifiable, or are objective and 
qualitative.
    (b) A grantee must make periodic assessments of progress that will 
provide the grantee with performance feedback related to--
    (1) Progress in implementing the plan of operation; and
    (2) Progress in achieving the intended outcomes and expected impacts 
as assessed by the established performance measures.

(Authority: Secs. 202 and 204; 29 U.S.C. 761a and 762)

[[Page 251]]



Sec. 350.62  What are the matching requirements?

    (a)(1) The Secretary may make grants to pay for part of the costs of 
research and demonstration projects that bear directly on the 
development of procedures, methods, and devices to assist the provision 
of vocational and other rehabilitation services, and research training 
and career development projects.
    (2) Each grantee must participate in the costs of those projects.
    (3) The specific amount of cost sharing to be borne by each 
grantee--
    (i) Is negotiated at the time of the award; and
    (ii) Is not considered in the selection process.
    (b)(1) The Secretary may make grants to pay for part or all of the 
costs of--
    (i) Establishment and support of Rehabilitation Research and 
Training Centers and Rehabilitation Engineering Research Centers; and
    (ii) Specialized research or demonstration activities described in 
section 204(b)(2)-(16) of the Act.
    (2) The Secretary determines at the time of the award whether the 
grantee must pay a portion of the project or center costs.

(Authority: Sec. 204; 29 U.S.C. 762)



Sec. 350.63  What are the requirements of a grantee relative to the Client Assistance Program?

    All Projects and Centers that provide services to individuals with 
disabilities with funds awarded under this Program must--
    (a) Advise those individuals who are applicants for or recipients of 
services under the Act, or their parents, family members, guardians, 
advocates, or authorized representatives, of the availability and 
purposes of the Client Assistance Program (CAP) funded under the Act; 
and
    (b) Provide information on the means of seeking assistance under the 
CAP.

(Authority: Sec. 20; 29 U.S.C. 718a)



Sec. 350.64  What is the required duration of the training in an Advanced Rehabilitation Research Training Project?

    A grantee for an Advanced Rehabilitation Research Training Project 
shall provide training to individuals that is at least one academic 
year, unless a longer training period is necessary to ensure that each 
trainee is qualified to conduct independent research upon completion of 
the course of training.

(Authority: Secs. 202-204; 29 U.S.C. 760-762)



Sec. 350.65  What level of participation is required of trainees in an Advanced Rehabilitation Research Training Project?

    Individuals who are receiving training under an Advanced 
Rehabilitation Research Training Project shall devote at least eighty 
percent of their time to the activities of the training program during 
the training period.

(Authority: Secs. 202-204; 29 U.S.C. 760-762)



Sec. 350.66  What must a grantee include in a patent application?

    Any patent application filed by a grantee for an invention made 
under a grant must include the following statement in the first 
paragraph:

    The invention described in this application was made under a grant 
from the Department of Education.

(Authority: 20 U.S.C. 1221e-3)



PART 356--DISABILITY AND REHABILITATION RESEARCH: RESEARCH FELLOWSHIPS--Table of Contents




                           Subpart A--General

Sec.
356.1  What is the Research Fellowships Program?
356.2  Who is eligible for assistance under this program?
356.3  What regulations apply to this program?
356.4  What definitions apply to this program?

 Subpart B--What Kinds of Activities Does the Department Support Under 
                              This Program?

356.10  What types of activities are authorized?

[[Page 252]]

356.11  What types of problems may be researched under the fellowship 
          program?

    Subpart C--How Does One Apply for Assistance Under This Program?

356.20  What are the application procedures under this part?
356.21  What is the fellowship review process?

           Subpart D--How Does the Secretary Select a Fellow?

356.30  What selection criteria are used for this program?
356.31  How does the Secretary evaluate an application under this part?
356.32  What are the special considerations in selecting applications 
          for funding under this part?

         Subpart E--What Conditions Have To Be Met by a Fellow?

356.40  What is the length of a Fellowship award?
356.41  What are the employment limitations during a fellowship period?
356.42  What acknowledgement of support is required?

  Subpart F--What are the Administrative Responsibilities of a Fellow?

356.50  What kinds of payments are allowed under this program?
356.51  What reports are required?
356.52  Are there other requirements?

    Authority: 29 U.S.C. 760-762, unless otherwise noted.

    Source: 46 FR 45312, Sept. 10, 1981, unless otherwise noted.



                           Subpart A--General



Sec. 356.1  What is the Research Fellowships Program?

    The purpose of this program is to build research capacity by 
providing support to highly qualified individuals, including those who 
are individuals with disabilities, to perform research on the 
rehabilitation of individuals with disabilities.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984, as amended at 58 FR 49419, Sept. 22, 1993]



Sec. 356.2  Who is eligible for assistance under this program?

    (a) Only individuals are eligible to be recipients of Fellowships.
    (b) Any individual is eligible for assistance under this program who 
has training and experience that indicate a potential for engaging in 
scientific research related to the solution of rehabilitation problems 
of individuals with disabilities.
    (c) This program provides two categories of Fellowships: Merit 
Fellowships and Distinguished Fellowships.
    (1) To be eligible for a Distinguished Fellowship, an individual 
must have seven or more years of research experience in subject areas, 
methods, or techniques relevant to rehabilitation research and must have 
a doctorate, other terminal degree, or comparable academic 
qualifications.
    (2) The Secretary awards Merit Fellowships to individuals in earlier 
stages of their careers in research. To be eligible for a Merit 
Fellowship, an individual must have either advanced professional 
training or experience in independent study in an area which is directly 
pertinent to disability and rehabilitation.
    (d) An applicant for a fellowship under this program must be 
eligible under 34 CFR 75.60.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984, as amended at 57 FR 30343, July 8, 1992; 58 
FR 49419, Sept. 22, 1993]



Sec. 356.3  What regulations apply to this program?

    The following regulations apply to this program:
    (a) The peer review requirements contained in 34 CFR 350.31-350.32.
    (b) The regulations in this part--34 CFR part 356;
    (c)(1) Subject to the additional requirement in paragraph (c)(2) of 
this section, 34 CFR part 97, Protection of Human Subjects.
    (2) When an IRB reviews research that purposefully requires 
inclusion of children with disabilities or individuals with mental 
disabilities as research subjects, the IRB must include at least one 
person primarily concerned with the welfare of these research subjects.

[[Page 253]]

    (d) The regulations in 34 CFR 75.60-75.61 (regarding the 
ineligibility of certain individuals to receive assistance).

(Authority: 29 U.S.C. 761a(d), 42 U.S.C. 300v-1(b))

[46 FR 45312, Sept. 10, 1981, as amended at 56 FR 28031, June 18, 1991; 
57 FR 30343, July 8, 1992; 58 FR 49419, Sept. 22, 1993; 60 FR 17431, 
Apr. 5, 1995]



Sec. 356.4  What definitions apply to this program?

    The definitions listed in 34 CFR 350.4 apply to this program.

(Authority: Sec. 202(i)(1); (29 U.S.C. 761a(i)(1)))



 Subpart B--What Kinds of Activities Does the Department Support Under 
                              This Program?



Sec. 356.10  What types of activities are authorized?

    (a) Fellows may conduct original research in any area authorized by 
section 204 of the Act.
    (b) Each year the Secretary may determine that research is needed in 
certain areas authorized under section 204 of the Act and may set aside 
funds to provide fellowship assistance for research in these specific 
areas. The Secretary publishes the selected priorities, if any, in a 
notice in the Federal Register.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



Sec. 356.11  What types of problems may be researched under the fellowship program?

    Problems encountered by individuals with disabilities in their daily 
lives that are due to the presence of a disabling condition, problems 
associated with the provision of rehabilitation services to individuals 
with disabilities, and problems connected with the conduct of disability 
research may be addressed under this program.

(Authority: Secs. 202(d), 202(g)(1), 204; 29 U.S.C. 761a(d), 761a(g)(1), 
762)

[58 FR 49419, Sept. 22, 1993]



    Subpart C--How Does One Apply for Assistance Under This Program?



Sec. 356.20  What are the application procedures under this part?

    From time to time the Secretary will publish in the Federal Register 
an Application Notice that announces the availability of fellowship 
assistance under this part.

(Authority: Sec. 202(d); (29 U.S.C. 761a(d)))



Sec. 356.21  What is the fellowship review process?

    The Secretary reviews applications for Fellowships in accordance 
with the peer review requirements governing grants in 34 CFR 350.31 and 
350.32 and the selection criteria contained in Sec. 356.30.

(Approved by the Office of Management and Budget under control number 
1800-0027)

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



           Subpart D--How Does the Secretary Select a Fellow?



Sec. 356.30  What selection criteria are used for this program?

    The Secretary evaluates an application for a Fellowship on the basis 
of--
    (a) Quality and level of formal education, previous work experience, 
and recommendations of present or former supervisors or colleagues that 
include an indication of the applicant's ability to work creatively in 
scientific research; and
    (b) The quality of a research proposal of no more than 12 pages 
containing the following information:
    (1) The importance of the problem to be investigated to the purpose 
of the Act and the mission of the Institute.
    (2) The research hypotheses or related objectives and the 
methodology and design to be followed.
    (3) Assurance of the availability of any necessary data resources, 
equipment, or institutional support, including technical consultation 
and support

[[Page 254]]

where appropriate, required to carry out the proposed activity.

(Approved by the Office of Management and Budget under control number 
1800-0027)

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984, as amended at 52 FR 30065, Aug. 12, 1987]



Sec. 356.31  How does the Secretary evaluate an application under this part?

    The Secretary awards the following points for each application based 
on how well the applicant addresses the two criteria in Sec. 356.30: 
Outstanding (5); Superior (4); Satisfactory (3); Marginal (2); Poor (1).

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



Sec. 356.32  What are the special considerations in selecting applications for funding under this part?

    (a) The Secretary reserves funds to support some or all of the 
applications which have been awarded a rating of superior or better (4-5 
points) under Sec. 356.31.
    (b) In making a final selection of applicants to support under this 
program, the Secretary considers the extent to which applicants rated 
outstanding or superior present a unique opportunity to effect a major 
advance in knowledge, address critical problems in innovative ways, 
present proposals which are consistent with the Institute's Long-Range 
Plan, build research capacity within the field, or complement and 
significantly increases the potential value of already planned research 
and related activities.

(Approved by the Office of Management and Budget under control number 
1800-0027)

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984, as amended at 52 FR 30065, Aug. 12, 1987]



         Subpart E--What Conditions Have To Be Met by a Fellow?



Sec. 356.40  What is the length of a Fellowship award?

    The Secretary awards Fellowships for a period of 12 months. Under 
exceptional circumstances, the Secretary may extend the period of a 
Fellowship; such an extension may not exceed 12 months.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



Sec. 356.41  What are the employment limitations during a fellowship period?

    The Secretary may require a research fellow to work full time on 
authorized fellowship activities.

(Authority: Sec. 202(d); (29 U.S.C. 761a(d)))



Sec. 356.42  What acknowledgement of support is required?

    Publication, distribution, and disposition of all manuscripts and 
other materials resulting from a fellowship awarded under this part must 
acknowledge that assistance was received from the Department and the 
Institute. Three copies of these publications or other materials must be 
furnished to the Secretary.

(Authority: Sec. 202(d); (29 U.S.C. 761a(d)))



  Subpart F--What are the Administrative Responsibilities of a Fellow?



Sec. 356.50  What kinds of payments are allowed under this program?

    A Fellowship award in either the Distinguished or Merit category 
includes a fixed stipend and a flat rate allowance for research and 
research-related expenses including travel expenses.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



Sec. 356.51  What reports are required?

    Fellows shall submit final reports. Each report must contain at a 
minimum an analysis of the significance of the project and an assessment 
of the degree to which the objectives of the project have been achieved.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]



Sec. 356.52  Are there other requirements?

    The Secretary may require fellows to attend one or more meetings in 
connection with Fellowship activities.

(Authority: Sec. 202(d); 29 U.S.C. 761a(d))

[49 FR 24979, June 18, 1984]

[[Page 255]]



PART 359--DISABILITY AND REHABILITATION RESEARCH: SPECIAL PROJECTS AND DEMONSTRATIONS FOR SPINAL CORD INJURIES--Table of Contents




                           Subpart A--General

Sec.
359.1  What is the Special Projects and Demonstrations for Spinal Cord 
          Injuries Program?
359.2  Who is eligible for assistance under this program?
359.3  What regulations apply to this program?
359.4  What definitions apply to this program?
359.5--359.9  [Reserved]

Subpart B--What Kinds of Activities Does the Secretary Assist Under This 
                                Program?

359.10  What types of projects are authorized under this program?
359.11  What activities must each recipient carry out under this 
          program?
359.12--359.19  [Reserved]

                          Subpart C  [Reserved]

             Subpart D--How Does the Secretary Make a Grant?

359.30  How is peer review conducted under this program?
359.31  What selection criteria does the Secretary use in reviewing 
          applications under this program?
359.32  What additional factors does the Secretary consider in making a 
          grant under this program?
359.33--359.39  [Reserved]

    Authority: 29 U.S.C. 762(b)(4), unless otherwise noted.

    Source: 50 FR 16676, Apr. 26, 1985, unless otherwise noted.



                           Subpart A--General



Sec. 359.1  What is the Special Projects and Demonstrations for Spinal Cord Injuries Program?

    This program provides assistance to establish innovative projects 
for the delivery, demonstration, and evaluation of comprehensive 
medical, vocational, and other rehabilitation services to meet the wide 
range of needs of individuals with spinal cord injuries.

(Authority: Sec. 204(b)(4); 29 U.S.C. 762(b)(4))



Sec. 359.2  Who is eligible for assistance under this program?

    The agencies and organizations eligible to apply under this program 
are described in 34 CFR 350.2.

(Authority: Sec. 204(b)(4)(A); 29 U.S.C. 762(b)(4)(A))

[58 FR 49420, Sept. 22, 1993]



Sec. 359.3  What regulations apply to this program?

    The regulations referenced in 34 CFR 350.3 apply to this program.

(Authority: Secs. 202 and 204; 29 U.S.C. 761a and 762)



Sec. 359.4  What definitions apply to this program?

    The definitions listed in 34 CFR 350.4 apply to this program.

(Authority: Sec. 202(i)(1); 29 U.S.C. 761a(i)(1))



Secs. 359.5--359.9  [Reserved]



Subpart B--What Kinds of Activities Does the Secretary Assist Under This 
                                Program?



Sec. 359.10  What types of projects are authorized under this program?

    This program provides assistance for demonstration projects that--
    (a) Provide comprehensive rehabilitation services to individuals 
with spinal cord injuries; and
    (b) Conduct spinal cord research, including clinical research and 
the analysis of standardized data in collaboration with other related 
projects.

(Authority: Sec. 204(b)(4); 29 U.S.C. 762(b)(4))



Sec. 359.11  What activities must each recipient carry out under this program?

    Each recipient, whether administering a project separately under 
this part or in coordination with other activities supported under title 
II of the Act, shall--
    (a) Establish a multidisciplinary system of providing rehabilitation 
services specifically designed to meet the special needs of individuals 
with spinal cord injuries, including emergency medical services, acute 
care, vocational and other rehabilitation services, community and job 
placement,

[[Page 256]]

and long-term community follow up and health maintenance. The system 
must be established on an appropriate geographical basis that reflects 
patterns of patient flow, and must be administered in close coordination 
with similar programs of the Veterans Administration, the National 
Institutes of Health, and other public and private agencies and 
institutions where appropriate;
    (b) Demonstrate and evaluate both the service and cost benefits of a 
regional service system to those individuals with spinal cord injuries 
who might be served within that system;
    (c) Establish within the system a rehabilitation research 
environment for the achievement of new knowledge leading to the 
reduction and treatment of complications arising from spinal cord injury 
and the development of new techniques of medical management and 
rehabilitation;
    (d) Demonstrate and evaluate the development and application of 
improved methods and equipment essential to the care, management, and 
rehabilitation of individuals with spinal cord injury;
    (e) Demonstrate methods of community outreach and education for 
individuals with spinal cord injury in areas such as housing, 
transportation, recreation, employment, and other community activities; 
and
    (f) Address the needs of individuals with spinal cord injuries from 
minority backgrounds;
    (g) Participate as directed by the Secretary in national studies of 
the benefits of a spinal cord injury service system by contributing to a 
national database and by other means as required by the Secretary.

(Authority: Secs. 21(b)(6) and 204(b)(4); 29 U.S.C. 718b and 762(b)(4))

[50 FR 16676, Apr. 26, 1985, as amended at 58 FR 49420, Sept. 22, 1993]



Secs. 359.12--359.19  [Reserved]



                          Subpart C  [Reserved]



             Subpart D--How Does the Secretary Make a Grant?



Sec. 359.30  How is peer review conducted under this program?

    Peer review is conducted under this program in accordance with 34 
CFR 350.30-350.32, using the selection criteria in Sec. 359.31.

(Authority: Sec. 202(e); 29 U.S.C. 761a(e))



Sec. 359.31  What selection criteria does the Secretary use in reviewing applications under this program?

    The Secretary uses the criteria in this section to evaluate 
applications under this program. The maximum score for all the criteria 
is 100 points.
    (a) Project design (20 points). The Secretary reviews each 
application to determine to what degree--
    (1) There is a clear description of how the objectives of the 
project relate to the purpose of the program;
    (2) The research is likely to produce new and useful information;
    (3) The need and target population are adequately defined;
    (4) The outcomes are likely to benefit the defined target 
population;
    (5) The research hypotheses are sound; and
    (6) The research methodology is sound in the sample design and 
selection, the data collection plan, the measurement instruments, and 
the data analysis plan.
    (b) Service comprehensiveness (20 points). The Secretary reviews 
each application to determine to what degree--
    (1) The services to be provided within the project are comprehensive 
in scope, and include emergency medical services, intensive and acute 
medical care, rehabilitation management, psychosocial and community 
reintegration, and follow up;

[[Page 257]]

    (2) A broad range of vocational and other rehabilitation services 
will be available to severely handicapped individuals within the 
project; and
    (3) Services will be coordinated with those services provided by 
other appropriate community resources.
    (c) Plan of operation (15 points). The Secretary reviews each 
application to determine to what degree--
    (1) There is an effective plan of operation that ensures proper and 
efficient administration of the project;
    (2) The applicant's planned use of its resources and personnel is 
likely to achieve each objective;
    (3) Collaboration between institutions, if proposed, is likely to be 
effective; and
    (4) There is a clear description of how the applicant will include 
eligible project participants who have been traditionally 
underrepresented, such as--
    (i) Members of racial or ethnic minority groups;
    (ii) Women;
    (iii) Individuals with disabilities; and
    (iv) The elderly.
    (d) Quality of key personnel (10 points). The Secretary reviews each 
application to determine to what degree--
    (1) The principal investigator and other key staff have adequate 
training or experience, or both, in spinal cord injury care and 
rehabilitation and demonstrate appropriate potential to conduct the 
proposed research, demonstration, training, development, or 
dissemination activity;
    (2) The principal investigator and other key staff are familiar with 
pertinent literature or methods, or both;
    (3) All the disciplines necessary to establish the multidisciplinary 
system described in Sec. 359.11(a) are effectively represented;
    (4) Commitments of staff time are adequate for the project; and
    (5) The applicant is likely, as part of its non-discriminatory 
employment practices, to encourage applications for employment from 
persons who are members of groups that traditionally have been 
underrepresented, such as--
    (i) Members of racial or ethnic minority groups;
    (ii) Women;
    (iii) Individuals with disabilities; and
    (iv) The elderly.
    (e) Adequacy of resources (10 points). The Secretary reviews each 
application to determine to what degree--
    (1) The facilities planned for use are adequate;
    (2) The equipment and supplies planned for use are adequate; and
    (3) The commitment of the applicant to provide administrative and 
other necessary support is evident.
    (f) Budget/cost effectiveness (10 points). The Secretary reviews 
each application to determine to what degree--
    (1) The budget for the project is adequate to support the 
activities;
    (2) The costs are reasonable in relation to the objectives of the 
project; and
    (3) The budget for subcontracts (if required) is detailed and 
appropriate.
    (g) Dissemination/utilization (5 points). The Secretary reviews each 
application to determine to what degree--
    (1) There is a clearly defined plan for dissemination and 
utilization of project findings;
    (2) The research results are likely to become available to others 
working in the field;
    (3) The means to disseminate and promote utilization by others are 
defined; and
    (4) The utilization approach is likely to address the defined need.
    (h) Evaluation plan (10 points). The Secretary reviews each 
application to determine to what degree--
    (1) There is a mechanism to evaluate plans, progress and results;
    (2) The evaluation methods and objectives are likely to produce data 
that are quantifiable; and
    (3) The evaluation results, where relevant, are likely to be 
assessed in a service setting.

(Authority: Secs. 202(e) and 204(b)(4); 29 U.S.C. 761a(e) and 762(b)(4))

[50 FR 16676, Apr. 26, 1985, as amended at 58 FR 49420, Sept. 22, 1993]



Sec. 359.32  What additional factors does the Secretary consider in making a grant under this program?

    In determining which applicants to fund under this program, the 
Secretary also considers the proposed location of any project in order 
to achieve, to the

[[Page 258]]

extent possible, a geographic distribution of projects.

(Authority: Sec. 204(b)(4)(C); 29 U.S.C. 762(b)(4)(C))

[52 FR 30066, Aug. 12, 1987]



Secs. 359.33--359.39  [Reserved]



PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM--Table of Contents




                           Subpart A--General

Sec.
361.1  Purpose.
361.2  Eligibility for a grant.
361.3  Authorized activities.
361.4  Applicable regulations.
361.5  Applicable definitions.

      Subpart B--State Plan for Vocational Rehabilitation Services

361.10  Submission, approval, and disapproval of the State plan.
361.11  Withholding of funds.

                   State Plan Content: Administration

361.12  Methods of administration.
361.13  State agency for administration.
361.14  Substitute State agency.
361.15  Local administration.
361.16  Establishment of an independent commission or a State 
          Rehabilitation Advisory Council.
361.17  Requirements for a State Rehabilitation Advisory Council.
361.18  Comprehensive system of personnel development.
361.19  Affirmative action for individuals with disabilities.
361.20  State plan development.
361.21  Consultations regarding the administration of the State plan.
361.22  Cooperation with agencies responsible for students with 
          disabilities.
361.23  Cooperation with other public agencies.
361.24  Coordination with the Statewide Independent Living Council.
361.25  Statewideness.
361.26  Waiver of statewideness.
361.27  Shared funding and administration of joint programs.
361.28  Third-party cooperative arrangements involving funds from other 
          public agencies.
361.29  Statewide studies and evaluations.
361.30  Services to special groups of individuals with disabilities.
361.31  Utilization of community resources.
361.32  Utilization of profitmaking organizations for on-the-job 
          training in connection with selected projects.
361.33  Use, assessment, and support of community rehabilitation 
          programs.
361.34  Supported employment plan.
361.35  Strategic plan.
361.36  Ability to serve all eligible individuals; order of selection 
          for services.
361.37  Establishment and maintenance of information and referral 
          programs.
361.38  Protection, use, and release of personal information.
361.39  State-imposed requirements.
361.40  Reports.

           State Plan Content: Provision and Scope of Services

361.41  Processing referrals and applications.
361.42  Assessment for determining eligibility and priority for 
          services.
361.43  Procedures for ineligibility determination.
361.44  Closure without eligibility determination.
361.45  Development of the individualized written rehabilitation 
          program.
361.46  Content of the individualized written rehabilitation program.
361.47  Record of services.
361.48  Scope of vocational rehabilitation services for individuals with 
          disabilities.
361.49  Scope of vocational rehabilitation services for groups of 
          individuals with disabilities.
361.50  Written policies governing the provision of services for 
          individuals with disabilities.
361.51  Written standards for facilities and providers of services.
361.52  Opportunity to make informed choices.
361.53  Availability of comparable services and benefits.
361.54  Participation of individuals in cost of services based on 
          financial need.
361.55  Review of extended employment in community rehabilitation 
          programs or other employment under section 14(c) of the Fair 
          Labor Standards Act.
361.56  Individuals determined to have achieved an employment outcome.
361.57  Review of rehabilitation counselor or coordinator 
          determinations.

    Subpart C--Financing of State Vocational Rehabilitation Programs

361.60  Matching requirements.
361.61  Limitation on use of funds for construction expenditures.
361.62  Maintenance of effort requirements.
361.63  Program income.
361.64  Obligation of Federal funds and program income.
361.65  Allotment and payment of Federal funds for vocational 
          rehabilitation services.

[[Page 259]]

  Subpart D--Strategic Plan for Innovation and Expansion of Vocational 
                         Rehabilitation Services

361.70  Purpose of the strategic plan.
361.71  Procedures for developing the strategic plan.
361.72  Content of the strategic plan.
361.73  Use of funds.
361.74  Allotment of Federal funds.

    Authority: 29 U.S.C. 711(c), unless otherwise noted.

    Source: 62 FR 6334, Feb. 11, 1997, unless otherwise noted.



                           Subpart A--General



Sec. 361.1  Purpose.

    Under the State Vocational Rehabilitation Services Program 
(program), the Secretary provides grants to assist States in operating a 
comprehensive, coordinated, effective, efficient, and accountable 
program that is designed to assess, plan, develop, and provide 
vocational rehabilitation services for individuals with disabilities, 
consistent with their strengths, resources, priorities, concerns, 
abilities, capabilities, and informed choice, so that they may prepare 
for and engage in gainful employment.

(Authority: Sec. 12(c) and 100(a)(2) of the Act; 29 U.S.C. 711(c) and 
720(a)(2))



Sec. 361.2  Eligibility for a grant.

    Any State that submits to the Secretary a State plan that meets the 
requirements of section 101(a) of the Act and this part is eligible for 
a grant under this program.

(Authority: Sec. 101(a) of the Act; 29 U.S.C. 721(a))



Sec. 361.3  Authorized activities.

    The Secretary makes payments to a State to assist in--
    (a) The costs of providing vocational rehabilitation services under 
the State plan;

    (b) Administrative costs under the State plan; and
    (c) The costs of developing and implementing the strategic plan.

(Authority: Sec. 111(a)(1) of the Act; 29 U.S.C. 731(a)(1))



Sec. 361.4  Applicable regulations.

    The following regulations apply to this program:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 74 (Administration of Grants to Institutions of 
Higher Education, Hospitals, and Nonprofit Organizations), with respect 
to subgrants to entities that are not State or local governments or 
Indian tribal organizations.
    (2) 34 CFR part 76 (State-Administered Programs).
    (3) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments), except for 
Sec. 80.24(a)(2).
    (6) 34 CFR part 81 (General Education Provisions Act-Enforcement).
    (7) 34 CFR part 82 (New Restrictions on Lobbying).
    (8) 34 CFR part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace 
(Grants)).
    (9) 34 CFR part 86 (Drug-Free Schools and Campuses).
    (b) The regulations in this part 361.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))



Sec. 361.5  Applicable definitions.

    (a) Definitions in EDGAR. The following terms used in this part are 
defined in 34 CFR 77.1:

Department
EDGAR
Fiscal year
Nonprofit
Private
Public
Secretary

    (b) Other definitions. The following definitions also apply to this 
part:
    (1) Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et 
seq.), as amended.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))


[[Page 260]]


    (2) Administrative costs under the State plan means expenditures 
incurred in the performance of administrative functions under the 
vocational rehabilitation program. Administrative costs include expenses 
related to program planning, development, monitoring, and evaluation, 
including, but not limited to, quality assurance; budgeting, accounting, 
financial management, information systems, and related data processing; 
providing information about the program to the public; technical 
assistance to other State agencies, private nonprofit organizations, and 
businesses and industries, except for technical assistance and support 
services described in Sec. 361.49(a)(4); the State Rehabilitation 
Advisory Council and other advisory committees; professional 
organization membership dues for State unit employees; the removal of 
architectural barriers in State vocational rehabilitation agency offices 
and State-operated rehabilitation facilities; operating and maintaining 
State unit facilities, equipment, and grounds; supplies; administration 
of the comprehensive system of personnel development, including 
personnel administration, administration of affirmative action plans, 
and training and staff development; administrative salaries, including 
clerical and other support staff salaries, in support of these 
functions; travel costs related to carrying out the program, other than 
travel costs related to the provision of services; costs incurred in 
conducting reviews of rehabilitation counselor or coordinator 
determinations under Sec. 361.57; and legal expenses required in the 
administration of the program.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (3) American Indian means an individual who is a member of an Indian 
tribe.

(Authority: Sec. 7(20) of the Act; 29 U.S.C. 706(20))

    (4) Applicant means an individual who submits an application for 
vocational rehabilitation services in accordance with Sec. 361.41(b)(2).

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (5) Appropriate modes of communication means specialized aids and 
supports that enable an individual with a disability to comprehend and 
respond to information that is being communicated. Appropriate modes of 
communication include, but are not limited to, the use of interpreters, 
open and closed captioned videos, specialized telecommunications 
services and audio recordings, Brailled and large print materials, 
materials in electronic formats, augmentative communication devices, 
graphic presentations, and simple language materials.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (6) Assistive technology device means any item, piece of equipment, 
or product system, whether acquired commercially off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
the functional capabilities of an individual with a disability.

(Authority: Sec. 7(23) of the Act; 29 U.S.C. 706(23))
    (7) Assistive technology service means any service that directly 
assists an individual with a disability in the selection, acquisition, 
or use of an assistive technology device, including--
    (i) The evaluation of the needs of an individual with a disability, 
including a functional evaluation of the individual in his or her 
customary environment;
    (ii) Purchasing, leasing, or otherwise providing for the acquisition 
by an individual with a disability of an assistive technology device;
    (iii) Selecting, designing, fitting, customizing, adapting, 
applying, maintaining, repairing, or replacing assistive technology 
devices;
    (iv) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (v) Training or technical assistance for an individual with a 
disability or, if appropriate, the family members, guardians, advocates, 
or authorized representatives of the individual; and
    (vi) Training or technical assistance for professionals (including 
individuals

[[Page 261]]

providing education and rehabilitation services), employers, or others 
who provide services to, employ, or are otherwise substantially involved 
in the major life functions of individuals with disabilities, to the 
extent that training or technical assistance is necessary to the 
achievement of an employment outcome by an individual with a disability.

(Authority: Sec. 7(24) and 12(c) of the Act; 29 U.S.C. 706(24) and 
711(c))

    (8) Community rehabilitation program.
    (i) Community rehabilitation program means a program that provides 
directly or facilitates the provision of one or more of the following 
vocational rehabilitation services to individuals with disabilities to 
enable those individuals to maximize their opportunities for employment, 
including career advancement:
    (A) Medical, psychiatric, psychological, social, and vocational 
services that are provided under one management.
    (B) Testing, fitting, or training in the use of prosthetic and 
orthotic devices.
    (C) Recreational therapy.
    (D) Physical and occupational therapy.
    (E) Speech, language, and hearing therapy.
    (F) Psychiatric, psychological, and social services, including 
positive behavior management.
    (G) Assessment for determining eligibility and vocational 
rehabilitation needs.
    (H) Rehabilitation technology.
    (I) Job development, placement, and retention services.
    (J) Evaluation or control of specific disabilities.
    (K) Orientation and mobility services for individuals who are blind.
    (L) Extended employment.
    (M) Psychosocial rehabilitation services.
    (N) Supported employment services and extended services.
    (O) Services to family members if necessary to enable the applicant 
or eligible individual to achieve an employment outcome.
    (P) Personal assistance services.
    (Q) Services similar to the services described in paragraphs (A) 
through (P) of this definition.
    (ii) For the purposes of this definition, the word program means an 
agency, organization, or institution, or unit of an agency, 
organization, or institution, that provides directly or facilitates the 
provision of vocational rehabilitation services as one of its major 
functions.

(Authority: Sec. 7(25) and 12(c) of the Act; 29 U.S.C. 706(25) and 
711(c))

    (9) Comparable services and benefits means services and benefits 
that are--
    (i) Provided or paid for, in whole or in part, by other Federal, 
State, or local public agencies, by health insurance, or by employee 
benefits;
    (ii) Available to the individual at the time needed to achieve the 
intermediate rehabilitation objectives in the individual's 
Individualized Written Rehabilitation Program (IWRP) in accordance with 
Sec. 361.53; and
    (iii) Commensurate to the services that the individual would 
otherwise receive from the vocational rehabilitation agency.

(Authority: Sec. 12(c) and 101(a)(8) of the Act; 29 U.S.C. 711(c) and 
721(a)(8))

    (10) Competitive employment means work--
    (i) In the competitive labor market that is performed on a full-time 
or part-time basis in an integrated setting; and
    (ii) For which an individual is compensated at or above the minimum 
wage, but not less than the customary wage and level of benefits paid by 
the employer for the same or similar work performed by individuals who 
are not disabled.

(Authority: Sec. 7(5), 7(18), and 12(c) of the Act; 29 U.S.C. 706(5), 
706(18), and 711(c))

    (11) Construction of a facility for a public or nonprofit community 
rehabilitation program means--
    (i) The acquisition of land in connection with the construction of a 
new building for a community rehabilitation program;
    (ii) The acquisition of existing buildings;
    (iii) The remodeling, alteration, or renovation of existing 
buildings;
    (iv) The construction of new buildings and expansion of existing 
buildings;

[[Page 262]]

    (v) Architect's fees, site surveys, and soil investigation, if 
necessary, in connection with the construction project;
    (vi) The acquisition of initial fixed or movable equipment of any 
new, newly acquired, newly expanded, newly remodeled, newly altered, or 
newly renovated buildings that are to be used for community 
rehabilitation program purposes; and
    (vii) Other direct expenditures appropriate to the construction 
project, except costs of off-site improvements.

(Authority: Sec. 7(1) and 12(c) of the Act; 29 U.S.C. 706(1) and 711(c))

    (12) Designated State agency or State agency means the sole State 
agency, designated in accordance with Sec. 361.13(a), to administer, or 
supervise local administration of, the State plan for vocational 
rehabilitation services. The term includes the State agency for 
individuals who are blind, if designated as the sole State agency with 
respect to that part of the plan relating to the vocational 
rehabilitation of individuals who are blind.

(Authority: Sec. 7(3)(A) and 101(a)(1)(A) of the Act; 29 U.S.C. 
706(3)(A) and 721(a)(1)(A))

    (13) Designated State unit or State unit means either--
    (i) The State agency vocational rehabilitation bureau, division, or 
other organizational unit that is primarily concerned with vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities and that is responsible for the administration of the 
vocational rehabilitation program of the State agency, as required under 
Sec. 361.13(b); or
    (ii) The independent State commission, board, or other agency that 
has vocational rehabilitation, or vocational and other rehabilitation, 
as its primary function.

(Authority: Sec. 7(3)(B) and 101(a)(2)(A) of the Act; 29 U.S.C. 
706(3)(B) and 721(a)(2)(A))

    (14) Eligible individual means an applicant for vocational 
rehabilitation services who meets the eligibility requirements of 
Sec. 361.42(a).

(Authority: Sec. 7(8)(a) and 102(a)(1) of the Act; 29 U.S.C. 706(8) and 
722(a)(1))

    (15) Employment outcome means, with respect to an individual, 
entering or retaining full-time or, if appropriate, part-time 
competitive employment in the integrated labor market to the greatest 
extent practicable; supported employment; or any other type of 
employment that is consistent with an individual's strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and informed 
choice.

(Authority: Sec. 7(5), 12(c), 100(a)(2), and 102(b)(1)(B)(i) of the Act; 
29 U.S.C. 706(5), 711(c), 720(a)(2), and 722(b)(1)(B)(i))

    (16) Establishment, development, or improvement of a public or 
nonprofit community rehabilitation program means--
    (i) The establishment of a facility for a public or nonprofit 
community rehabilitation program as defined in paragraph (b)(17) of this 
section to provide vocational rehabilitation services to applicants or 
eligible individuals;
    (ii) Staffing, if necessary to establish, develop, or improve a 
community rehabilitation program for the purpose of providing vocational 
rehabilitation services to applicants or eligible individuals, for a 
maximum period of four years, with Federal financial participation 
available at the applicable matching rate for the following levels of 
staffing costs:
    (A) 100 percent of staffing costs for the first year.
    (B) 75 percent of staffing costs for the second year.
    (C) 60 percent of staffing costs for the third year.
    (D) 45 percent of staffing costs for the fourth year; and
    (iii) Other expenditures related to the establishment, development, 
or improvement of a community rehabilitation program that are necessary 
to make the program functional or increase its effectiveness in 
providing vocational rehabilitation services to applicants or eligible 
individuals, but are not ongoing operating expenses of the program.

(Authority: Secs. 7(6) and 12(c) of the Act; 29 U.S.C. 706(6) and 
711(c))

    (17) Establishment of a facility for a public or nonprofit community 
rehabilitation program means--
    (i) The acquisition of an existing building, and if necessary the 
land in connection with the acquisition, if the

[[Page 263]]

building has been completed in all respects for at least one year prior 
to the date of acquisition and the Federal share of the cost of the 
acquisition is not more than $300,000;
    (ii) The remodeling or alteration of an existing building, provided 
the estimated cost of remodeling or alteration does not exceed the 
appraised value of the existing building;
    (iii) The expansion of an existing building, provided that--
    (A) The existing building is complete in all respects;
    (B) The total size in square footage of the expanded building, 
notwithstanding the number of expansions, is not greater than twice the 
size of the existing building;
    (C) The expansion is joined structurally to the existing building 
and does not constitute a separate building; and
    (D) The costs of the expansion do not exceed the appraised value of 
the existing building;
    (iv) Architect's fees, site survey, and soil investigation, if 
necessary in connection with the acquisition, remodeling, alteration, or 
expansion of an existing building; and
    (v) The acquisition of fixed or movable equipment, including the 
costs of installation of the equipment, if necessary to establish, 
develop, or improve a community rehabilitation program;

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (18) Extended employment means work in a non-integrated or sheltered 
setting for a public or private nonprofit agency or organization that 
provides compensation in accordance with the Fair Labor Standards Act 
and any needed support services to an individual with a disability to 
enable the individual to continue to train or otherwise prepare for 
competitive employment, unless the individual through informed choice 
chooses to remain in extended employment.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (19) Extended services, as used in the definition of ``Supported 
employment,'' means ongoing support services and other appropriate 
services that are needed to support and maintain an individual with a 
most severe disability in supported employment and that are provided by 
a State agency, a private nonprofit organization, employer, or any other 
appropriate resource, from funds other than funds received under this 
part, 34 CFR part 363, 34 CFR part 376, or 34 CFR part 380, after an 
individual with a most severe disability has made the transition from 
support provided by the designated State unit.

(Authority: Sec. 7(27) of the Act; 29 U.S.C. 706(27))

    (20) Extreme medical risk means a probability of substantially 
increasing functional impairment or death if medical services, including 
mental health services, are not provided expeditiously.

(Authority: Secs. 12(c) and 101(a)(8) of the Act; 29 U.S.C. 711(c) and 
721(a)(8))

    (21) Family member, for purposes of receiving vocational 
rehabilitation services in accordance with Sec. 361.48(a)(9), means an 
individual--
    (i) Who either--
    (A) Is a relative or guardian of an applicant or eligible 
individual; or
    (B) Lives in the same household as an applicant or eligible 
individual;
    (ii) Who has a substantial interest in the well-being of that 
individual; and
    (iii) Whose receipt of vocational rehabilitation services is 
necessary to enable the applicant or eligible individual to achieve an 
employment outcome.

(Authority: Secs. 12(c) and 103(a)(3) of the Act; 29 U.S.C. 711(c) and 
723(a)(3))

    (22) Impartial hearing officer. (i) ``Impartial hearing officer'' 
means an individual who--
    (A) Is not an employee of a public agency (other than an 
administrative law judge, hearing examiner, or employee of an 
institution of higher education);
    (B) Is not a member of the State Rehabilitation Advisory Council for 
the designated State unit;
    (C) Has not been involved in previous decisions regarding the 
vocational rehabilitation of the applicant or eligible individual;
    (D) Has knowledge of the delivery of vocational rehabilitation 
services, the State plan, and the Federal and State

[[Page 264]]

regulations governing the provision of services;
    (E) Has received training with respect to the performance of 
official duties; and
    (F) Has no personal, professional, or financial interest that would 
be in conflict with the objectivity of the individual.
    (ii) An individual may not be considered to be an employee of a 
public agency for the purposes of this definition solely because the 
individual is paid by the agency to serve as a hearing officer.

(Authority: Sec. 7(28) of the Act; 29 U.S.C. 706(28))

    (23) Indian tribe means any Federal or State Indian tribe, band, 
rancheria, pueblo, colony, or community, including any Alaskan native 
village or regional village corporation (as defined in or established 
pursuant to the Alaska Native Claims Settlement Act).

(Authority: Sec. 7(21) of the Act; 29 U.S.C. 706(21))

    (24) Individual who is blind means a person who is blind within the 
meaning of the applicable State law.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (25) Individual with a disability, except in Secs. 361.17 (a), (b), 
(c), and (j), 361.19, 361.20, and 361.51(b)(2), means an individual--
    (i) Who has a physical or mental impairment;
    (ii) Whose impairment constitutes or results in a substantial 
impediment to employment; and
    (iii) Who can benefit in terms of an employment outcome from the 
provision of vocational rehabilitation services.

(Authority: Sec. 7(8)(A) of the Act; 29 U.S.C. 706(8)(A))

    (26) Individual with a disability, for purposes of Secs. 361.17 (a), 
(b), (c), and (j), 361.19, 361.20, and 361.51(b)(2), means an 
individual--
    (i) Who has a physical or mental impairment that substantially 
limits one or more major life activities;
    (ii) Who has a record of such an impairment; or
    (iii) Who is regarded as having such an impairment.

(Authority: Sec. 7(8)(B) of the Act; 29 U.S.C. 706(8)(B))

    (27) Individual with a most severe disability means an individual 
with a severe disability who meets the designated State unit's criteria 
for an individual with a most severe disability. These criteria must be 
consistent with the requirements in Sec. 361.36(c)(3).

(Authority: Sec. 101(a)(5) of the Act; 29 U.S.C. 721(a)(5))

    (28) Individual with a severe disability means an individual with a 
disability--
    (i) Who has a severe physical or mental impairment that seriously 
limits one or more functional capacities (such as mobility, 
communication, self-care, self-direction, interpersonal skills, work 
tolerance, or work skills) in terms of an employment outcome;
    (ii) Whose vocational rehabilitation can be expected to require 
multiple vocational rehabilitation services over an extended period of 
time; and
    (iii) Who has one or more physical or mental disabilities resulting 
from amputation, arthritis, autism, blindness, burn injury, cancer, 
cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, 
hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental 
retardation, mental illness, multiple sclerosis, muscular dystrophy, 
musculo-skeletal disorders, neurological disorders (including stroke and 
epilepsy), spinal cord conditions (including paraplegia and 
quadriplegia), sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of 
disabilities determined on the basis of an assessment for determining 
eligibility and vocational rehabilitation needs to cause comparable 
substantial functional limitation.

(Authority: Sec. 7(15)(A) of the Act; 29 U.S.C. 708(15)(A))

    (29) Individual's representative means any representative chosen by 
an applicant or eligible individual, including a parent, guardian, other 
family member, or advocate, unless a representative has been appointed 
by a court to represent the individual, in which case

[[Page 265]]

the court-appointed representative is the individual's representative.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (30) Integrated setting--
    (i) With respect to the provision of services, means a setting 
typically found in the community in which applicants or eligible 
individuals interact with non-disabled individuals other than non-
disabled individuals who are providing services to those applicants or 
eligible individuals;
    (ii) With respect to an employment outcome, means a setting 
typically found in the community in which applicants or eligible 
individuals interact with non-disabled individuals, other than non-
disabled individuals who are providing services to those applicants or 
eligible individuals, to the same extent that non-disabled individuals 
in comparable positions interact with other persons.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    (31) Maintenance means monetary support provided to an eligible 
individual or an individual receiving extended evaluation services for 
those expenses, such as food, shelter, and clothing, that are in excess 
of the normal expenses of the individual and that are necessitated by 
the individual's participation in a program of vocational rehabilitation 
services.

(Authority: Secs. 12(c) and 103(a)(5) of the Act; 29 U.S.C. 711(c) and 
723(a)(5))

    Note: The following are examples of expenses that would meet the 
definition of maintenance. The examples are purely illustrative, do not 
address all possible circumstances, and are not intended to substitute 
for individual counselor judgement.
    Example: The cost of a uniform or other suitable clothing that is 
required for an individual's job placement or job seeking activities.
    Example: The cost of short-term shelter that is required in order 
for an individual to participate in vocational training at a site that 
is not within commuting distance of an individual's home.
    Example: The initial one-time costs, such as a security deposit or 
charges for the initiation of utilities, that are required in order for 
an individual to relocate for a job placement.
    Example: The costs of an individual's participation in enrichment 
activities related to that individual's training program.

    (32) Nonprofit, with respect to a community rehabilitation program, 
means a community rehabilitation program carried out by a corporation or 
association, no part of the net earnings of which inures, or may 
lawfully inure, to the benefit of any private shareholder or individual 
and the income of which is exempt from taxation under section 501(c)(3) 
of the Internal Revenue Code of 1954.

(Authority: Sec. 7(10) of the Act; 29 U.S.C. 706(10))

    (33) Ongoing support services, as used in the definition of 
``Supported employment''--
    (i) Means services that are--
    (A) Needed to support and maintain an individual with a most severe 
disability in supported employment;
    (B) Identified based on a determination by the designated State unit 
of the individual's needs as specified in an individualized written 
rehabilitation program; and
    (C) Furnished by the designated State unit from the time of job 
placement until transition to extended services, unless post-employment 
services are provided following transition, and thereafter by one or 
more extended services providers throughout the individual's term of 
employment in a particular job placement or multiple placements if those 
placements are being provided under a program of transitional 
employment;
    (ii) Must include an assessment of employment stability and 
provision of specific services or the coordination of services at or 
away from the worksite that are needed to maintain stability based on--
    (A) At a minimum, twice-monthly monitoring at the worksite of each 
individual in supported employment; or
    (B) If under special circumstances, especially at the request of the 
individual, the individualized written rehabilitation program provides 
for off-site monitoring, twice-monthly meetings with the individual;
    (iii) Consist of--
    (A) Any particularized assessment supplementary to the comprehensive

[[Page 266]]

assessment of rehabilitation needs described in this part;
    (B) The provision of skilled job trainers who accompany the 
individual for intensive job skill training at the work site;
    (C) Job development and placement;
    (D) Social skills training;
    (E) Regular observation or supervision of the individual;
    (F) Follow-up services including regular contact with the employers, 
the individuals, the parents, family members, guardians, advocates or 
authorized representatives of the individuals, and other suitable 
professional and informed advisors, in order to reinforce and stabilize 
the job placement;
    (G) Facilitation of natural supports at the worksite;
    (H) Any other service identified in the scope of vocational 
rehabilitation services for individuals, described in Sec. 361.48; or
    (I) Any service similar to the foregoing services.

(Authority: Sec. 7(33) and 12(c) of the Act; 29 U.S.C. 706(33) and 
711(c))

    (34) Personal assistance services means a range of services provided 
by one or more persons designed to assist an individual with a 
disability to perform daily living activities on or off the job that the 
individual would typically perform without assistance if the individual 
did not have a disability. The services must be designed to increase the 
individual's control in life and ability to perform everyday activities 
on or off the job. The services must be necessary to the achievement of 
an employment outcome and may be provided only while the individual is 
receiving other vocational rehabilitation services. The services may 
include training in managing, supervising, and directing personal 
assistance services.

(Authority: Sec. 7(11) and 103(a)(15) of the Act; 29 U.S.C. 706(11) and 
29 U.S.C. 723)

    (35) Physical and mental restoration services means--
    (i) Corrective surgery or therapeutic treatment that is likely, 
within a reasonable period of time, to correct or modify substantially a 
stable or slowly progressive physical or mental impairment that 
constitutes a substantial impediment to employment;
    (ii) Diagnosis of and treatment for mental or emotional disorders by 
qualified personnel in accordance with State licensure laws;
    (iii) Dentistry;
    (iv) Nursing services;
    (v) Necessary hospitalization (either inpatient or outpatient care) 
in connection with surgery or treatment and clinic services;
    (vi) Drugs and supplies;
    (vii) Prosthetic, orthotic, or other assistive devices, including 
hearing aids;
    (viii) Eyeglasses and visual services, including visual training, 
and the examination and services necessary for the prescription and 
provision of eyeglasses, contact lenses, microscopic lenses, telescopic 
lenses, and other special visual aids prescribed by personnel that are 
qualified in accordance with State licensure laws;
    (ix) Podiatry;
    (x) Physical therapy;
    (xi) Occupational therapy;
    (xii) Speech or hearing therapy;
    (xiii) Mental health services;
    (xiv) Treatment of either acute or chronic medical complications and 
emergencies that are associated with or arise out of the provision of 
physical and mental restoration services, or that are inherent in the 
condition under treatment;
    (xv) Special services for the treatment of individuals with end-
stage renal disease, including transplantation, dialysis, artificial 
kidneys, and supplies; and
    (xvi) Other medical or medically related rehabilitation services.

(Authority: Sec. 12(c) and 103(a)(4) of the Act; 29 U.S.C. 711(c) and 
723(a)(4))

    (36) Physical or mental impairment means an injury, disease, or 
other condition that materially limits, or if not treated is expected to 
materially limit, mental or physical functioning.

(Authority: Sec. 7(8)(A) and 12(c) of the Act; 29 U.S.C. 706(8)(A) and 
711(c))

    (37) Post-employment services means one or more of the services 
identified in Sec. 361.48 that are provided subsequent to the 
achievement of an employment outcome and that are necessary for an 
individual to maintain, regain, or advance in employment, consistent 
with the individual's strengths, resources,

[[Page 267]]

priorities, concerns, abilities, capabilities, and interests.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))

    Note: Post-employment services are intended to ensure that the 
employment outcome remains consistent with the individual's strengths, 
resources, priorities, concerns, abilities, capabilities, and interests. 
These services are available to meet rehabilitation needs that do not 
require a complex and comprehensive provision of services and, thus, 
should be limited in scope and duration. If more comprehensive services 
are required, then a new rehabilitation effort should be considered. 
Post-employment services are to be provided under an amended 
individualized written rehabilitation program; thus, a re-determination 
of eligibility is not required. The provision of post-employment 
services is subject to the same requirements in this part as the 
provision of any other vocational rehabilitation service. Post-
employment services are available to assist an individual to maintain 
employment, e.g., the individual's employment is jeopardized because of 
conflicts with supervisors or co-workers and the individual needs mental 
health services and counseling to maintain the employment; to regain 
employment, e.g., the individual's job is eliminated through 
reorganization and new placement services are needed; and to advance in 
employment, e.g., the employment is no longer consistent with the 
individual's strengths, resources, priorities, concerns, abilities, 
capabilities, and interests.
    (38) Rehabilitation engineering means the systematic application of 
engineering sciences to design, develop, adapt, test, evaluate, apply, 
and distribute technological solutions to problems confronted by 
individuals with disabilities in functional areas, such as mobility, 
communications, hearing, vision, and cognition, and in activities 
associated with employment, independent living, education, and 
integration into the community.

(Authority: Secs. 7(13) and 12(c) of the Act; 29 U.S.C. 706(13) and 
711(c))

    (39) Rehabilitation technology means the systematic application of 
technologies, engineering methodologies, or scientific principles to 
meet the needs of, and address the barriers confronted by, individuals 
with disabilities in areas that include education, rehabilitation, 
employment, transportation, independent living, and recreation. The term 
includes rehabilitation engineering, assistive technology devices, and 
assistive technology services.

(Authority: Sec. 7(13) of the Act; 29 U.S.C. 706(13))

    (40) Reservation means a Federal or State Indian reservation, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act.

(Authority: Sec. 130(c) of the Act; 29 U.S.C. 750(c))

    (41) Sole local agency means a unit or combination of units of 
general local government or one or more Indian tribes that has the sole 
responsibility under an agreement with, and the supervision of, the 
State agency to conduct a local or tribal vocational rehabilitation 
program, in accordance with the State plan.

(Authority: Sec. 7(9) of the Act; 29 U.S.C. 706(9))

    (42) State means any of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, 
American Samoa, and the Commonwealth of the Northern Mariana Islands.

(Authority: Sec. 7(16) of the Act; 29 U.S.C. 706(16))

    (43) State plan means the State plan for vocational rehabilitation 
services or the vocational rehabilitation services part of a 
consolidated rehabilitation plan under Sec. 361.10(c).

(Authority: Secs. 12(c) and 101 of the Act; 29 U.S.C. 711(c) and 721)

    (44) Substantial impediment to employment means that a physical or 
mental impairment (in light of attendant medical, psychological, 
vocational, educational, and other related factors) hinders an 
individual from preparing for, entering into, engaging in, or retaining 
employment consistent with the individual's abilities and capabilities.

(Authority: Secs. 7(8)(A) and 12(c) of the Act; 29 U.S.C. 706(8)(A) and 
711(c))

    (45) Supported employment means--

[[Page 268]]

    (i) Competitive employment in an integrated setting with ongoing 
support services for individuals with the most severe disabilities--
    (A) For whom competitive employment has not traditionally occurred 
or for whom competitive employment has been interrupted or intermittent 
as a result of a severe disability; and
    (B) Who, because of the nature and severity of their disabilities, 
need intensive supported employment services from the designated State 
unit and extended services after transition in order to perform this 
work; or
    (ii) Transitional employment for individuals with the most severe 
disabilities due to mental illness.

(Authority: Sec. 7(18) of the Act; 29 U.S.C. 706(18)(A))

    (46) Supported employment services means ongoing support services 
and other appropriate services needed to support and maintain an 
individual with a most severe disability in supported employment that 
are provided by the designated State unit--
    (i) For a period of time not to exceed 18 months, unless under 
special circumstances the eligible individual and the rehabilitation 
counselor or coordinator jointly agree to extend the time in order to 
achieve the rehabilitation objectives identified in the individualized 
written rehabilitation program; and
    (ii) Following transition, as post-employment services that are 
unavailable from an extended services provider and that are necessary to 
maintain or regain the job placement or advance in employment.

(Authority: Sec. 7(34) and 12(c) of the Act; 29 U.S.C. 706(34) and 
711(c))

    (47) Transition services means a coordinated set of activities for a 
student designed within an outcome-oriented process that promotes 
movement from school to post-school activities, including postsecondary 
education, vocational training, integrated employment (including 
supported employment), continuing and adult education, adult services, 
independent living, or community participation. The coordinated set of 
activities must be based upon the individual student's needs, taking 
into account the student's preferences and interests, and must include 
instruction, community experiences, the development of employment and 
other post-school adult living objectives, and, if appropriate, 
acquisition of daily living skills and functional vocational evaluation. 
Transition services must promote or facilitate the accomplishment of 
long-term rehabilitation goals and intermediate rehabilitation 
objectives identified in the student's IWRP.

(Authority: Section 7(35) and 103(a)(14) of the Act; 29 U.S.C. 706(35) 
and 723(a)(14))

    (48) Transitional employment, as used in the definition of 
``Supported employment,'' means a series of temporary job placements in 
competitive work in integrated settings with ongoing support services 
for individuals with the most severe disabilities due to mental illness. 
In transitional employment, the provision of ongoing support services 
must include continuing sequential job placements until job permanency 
is achieved.

(Authority: Secs. 7(18) and 12(c) of the Act; 29 U.S.C. 706(18) and 
711(c))

    (49) Transportation means travel and related expenses that are 
necessary to enable an applicant or eligible individual to participate 
in a vocational rehabilitation service.

(Authority: Secs. 12(c) and 103(a)(10) of the Act; 29 U.S.C. 711(c) and 
723(a)(10))
    Note: The following are examples of expenses that would meet the 
definition of transportation. The examples are purely illustrative, do 
not address all possible circumstances, and are not intended to 
substitute for individual counselor judgement.
    Example: Travel and related expenses for a personal care attendant 
or aide if the services of that person are necessary to enable the 
applicant or eligible individual to travel to participate in any 
vocational rehabilitation service.
    Example: Short-term travel-related expenses, such as food and 
shelter, incurred by an applicant participating in evaluation or 
assessment services that necessitates travel.
    Example: Relocation expenses incurred by an eligible individual in 
connection with a job placement that is a significant distance from the 
eligible individual's current residence.
    Example: The purchase and repair of vehicles, including vans, but 
not the modification of these vehicles, as modification would

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be considered a rehabilitation technology service.

    (50) Vocational rehabilitation services--
    (i) If provided to an individual, means those services listed in 
Sec. 361.48; and
    (ii) If provided for the benefit of groups of individuals, also 
means those services listed in Sec. 361.49.

(Authority: Sec. 103 (a) and (b) of the Act; 29 U.S.C. 723 (a) and (b))



      Subpart B--State Plan for Vocational Rehabilitation Services



Sec. 361.10  Submission, approval, and disapproval of the State plan.

    (a) Purpose. In order for a State to receive a grant under this 
part, the designated State agency shall submit to the Secretary, and 
obtain approval of, a State plan that contains a description of the 
State's vocational rehabilitation services program, the plans and 
policies to be followed in carrying out the program, and other 
information requested by the Secretary, in accordance with the 
requirements of this part.
    (b) Separate part relating to rehabilitation of individuals who are 
blind. If a separate State agency administers or supervises the 
administration of a separate part of the State plan relating to the 
rehabilitation of individuals who are blind, that part of the State plan 
must separately conform to all requirements under this part that are 
applicable to a State plan.
    (c) Consolidated rehabilitation plan. The State may choose to submit 
a consolidated rehabilitation plan that includes the State plan for 
vocational rehabilitation services and the State's plan for its program 
for persons with developmental disabilities. The State planning and 
advisory council for developmental disabilities and the agency 
administering the State's program for persons with developmental 
disabilities must concur in the submission of a consolidated 
rehabilitation plan. A consolidated rehabilitation plan must comply 
with, and be administered in accordance with, the Act and the 
Developmental Disabilities Assistance and Bill of Rights Act, as 
amended.
    (d) Public participation. The State shall develop the State plan 
with input from the public, through public meetings, in accordance with 
the requirements of Sec. 361.20.
    (e) Duration. The State plan must cover a multi-year period to be 
determined by the Secretary.
    (f) Submission of the State plan. The State shall submit the State 
plan to the Secretary for approval--
    (1) No later than July 1 of the year preceding the first fiscal year 
for which the State plan is submitted; or
    (2) With the prior approval of the Secretary, no later than the date 
on which the State is required to submit a State plan under another 
Federal law.
    (g) Revisions to the State plan. The State shall submit to the 
Secretary for approval revisions to the State plan in accordance with 
the requirements of this part and 34 CFR 76.140.
    (h) Approval. The Secretary approves a State plan and revisions to 
the State plan that conform to the requirements of this part and section 
101(a) of the Act.
    (i) Disapproval. The Secretary disapproves a State plan that does 
not conform to the requirements of this part and section 101(a) of the 
Act, in accordance with the following procedures:
    (1) Informal resolution. Prior to disapproving a State plan, the 
Secretary attempts to resolve disputes informally with State officials.
    (2) Notice. If, after reasonable effort has been made to resolve the 
dispute, no resolution has been reached, the Secretary provides notice 
to the State agency of the intention to disapprove the State plan and of 
the opportunity for a hearing.
    (3) State plan hearing. If the State agency requests a hearing, the 
Secretary designates one or more individuals, either from the Department 
or elsewhere, not responsible for or connected with the administration 
of this program, to conduct a hearing in accordance with the provisions 
of 34 CFR part 81, subpart A.
    (4) Initial decision. The hearing officer issues an initial decision 
in accordance with 34 CFR 81.41.
    (5) Petition for review of an initial decision. The State agency may 
seek the

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Secretary's review of the initial decision in accordance with 34 CFR 
part 81.
    (6) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (7) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44.
    (8) Judicial review. A State may appeal the Secretary's decision to 
disapprove the State plan by filing a petition for review with the 
United States Court of Appeals for the circuit in which the State is 
located, in accordance with section 107(d) of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 6, 101 (a) and (b), and 107(d) of the Act; 20 U.S.C. 
1231g(a); and 29 U.S.C. 705, 721 (a) and (b), and 727(d))



Sec. 361.11  Withholding of funds.

    (a) Basis for withholding. The Secretary may withhold or limit 
payments under section 111, 124, or 632(a) of the Act, as provided by 
section 107 (c) and (d) of the Act, if the Secretary determines that--
    (1) The State plan, including the supported employment supplement, 
has been so changed that it no longer conforms with the requirements of 
this part or 34 CFR part 363; or
    (2) In the administration of the State plan, there has been a 
failure to comply substantially with any provision of that plan or a 
program improvement plan established in accordance with section 106 of 
the Act.
    (b) Informal resolution. Prior to withholding or limiting payments 
in accordance with this section, the Secretary attempts to resolve 
disputed issues informally with State officials.
    (c) Notice. If, after reasonable effort has been made to resolve the 
dispute, no resolution has been reached, the Secretary provides notice 
to the State agency of the intention to withhold or limit payments and 
of the opportunity for a hearing.
    (d) Withholding hearing. If the State agency requests a hearing, the 
Secretary designates one or more individuals, either from the Department 
or elsewhere, not responsible for or connected with the administration 
of this program, to conduct a hearing in accordance with the provisions 
of 34 CFR part 81, subpart A.
    (e) Initial decision. The hearing officer issues an initial decision 
in accordance with 34 CFR 81.41.
    (f) Petition for review of an initial decision. The State agency may 
seek the Secretary's review of the initial decision in accordance with 
34 CFR 81.42.
    (g) Review by the Secretary. The Secretary reviews the initial 
decision in accordance with 34 CFR 81.43.
    (h) Final decision of the Department. The final decision of the 
Department is made in accordance with 34 CFR 81.44
    (i) Judicial review. A State may appeal the Secretary's decision to 
withhold or limit payments by filing a petition for review with the U.S. 
Court of Appeals for the circuit in which the State is located, in 
accordance with section 107(d) of the Act.

(Authority: Secs. 101(b), 107(c), and 107(d) of the Act; 29 U.S.C. 
721(b), 727(c)(1) and (2), and 727(d))

                   State Plan Content: Administration



Sec. 361.12  Methods of administration.

    The State plan must assure that the State agency, and the designated 
State unit if applicable, employs methods of administration found 
necessary by the Secretary for the proper and efficient administration 
of the plan and for carrying out all functions for which the State is 
responsible under the plan and this part. These methods must include 
procedures to ensure accurate data collection and financial 
accountability.

(Authority: Sec. 101(a)(6) of the Act; 29 U.S.C. 721(a)(6))



Sec. 361.13  State agency for administration.

    (a) Designation of State agency. The State plan must designate a 
State agency as the sole State agency to administer the State plan, or 
to supervise its administration in a political subdivision of the State 
by a sole local agency, in accordance with the following requirements:
    (1) General. Except as provided in paragraphs (a) (2) and (3) of 
this section, the State plan must provide that the designated State 
agency is one of the following types of agencies:

[[Page 271]]

    (i) A State agency that is an independent State commission, board, 
or other agency that has as its major function vocational rehabilitation 
or vocational and other rehabilitation of individuals with disabilities.
    (ii) The State agency administering or supervising the 
administration of education or vocational education in the State, 
provided that it includes a vocational rehabilitation unit as provided 
in paragraph (b) of this section.
    (iii) A State agency that includes a vocational rehabilitation unit, 
as provided in paragraph (b) of this section, and at least two other 
major organizational units, each of which administers one or more of the 
State's major programs of public education, public health, public 
welfare, or labor.
    (2) American Samoa. In the case of American Samoa, the State plan 
must designate the Governor.
    (3) Designated State agency for individuals who are blind. If a 
State commission or other agency that provides assistance or services to 
individuals who are blind is authorized under State law to provide 
vocational rehabilitation services to individuals who are blind, and 
this commission or agency is primarily concerned with vocational 
rehabilitation or includes a vocational rehabilitation unit as provided 
in paragraph (b) of this section, the State plan may designate that 
agency as the sole State agency to administer the part of the plan under 
which vocational rehabilitation services are provided for individuals 
who are blind or to supervise its administration in a political 
subdivision of the State by a sole local agency.
    (b) Designation of State unit. (1) If the designated State agency is 
of the type specified in paragraph (a)(1)(ii) or (a)(1)(iii) of this 
section, or if the designated State agency specified in paragraph (a)(3) 
of this section does not have as its major function vocational 
rehabilitation or vocational and other rehabilitation of individuals 
with disabilities, the State plan must assure that the agency (or each 
agency if two agencies are designated) includes a vocational 
rehabilitation bureau, division, or unit that--
    (i) Is primarily concerned with vocational rehabilitation or 
vocational and other rehabilitation of individuals with disabilities and 
is responsible for the administration of the State agency's vocational 
rehabilitation program under the State plan, including those 
responsibilities specified in paragraph (c) of this section;
    (ii) Has a full-time director;
    (iii) Has a staff, at least 90 percent of whom are employed full 
time on the rehabilitation work of the organizational unit; and
    (iv) Is located at an organizational level and has an organizational 
status within the State agency comparable to that of other major 
organizational units of the agency or, in the case of an agency 
described in paragraph (a)(1)(ii) of this section, is so located and has 
that status or has a director who is the executive officer of the State 
agency.
    (2) In the case of a State that has not designated a separate State 
agency for individuals who are blind, as provided for in paragraph 
(a)(3) of this section, the State may assign responsibility for the part 
of the plan under which vocational rehabilitation services are provided 
to individuals who are blind to one organizational unit of the 
designated State agency and may assign responsibility for the rest of 
the plan to another organizational unit of the designated State agency, 
with the provisions of paragraph (b)(1) of this section applying 
separately to each of these units.
    (c) Responsibility for administration. (1) The State plan must 
assure that, at a minimum, the following activities are the 
responsibility of the designated State unit or the sole local agency 
under the supervision of the State unit:
    (i) All decisions affecting eligibility for vocational 
rehabilitation services, the nature and scope of available services, and 
the provision of these services.
    (ii) The determination that an individual has achieved an employment 
outcome under Sec. 361.56.
    (iii) Policy formulation and implementation.
    (iv) The allocation and expenditure of vocational rehabilitation 
funds.

[[Page 272]]

    (2) This responsibility may not be delegated to any other agency or 
individual.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(1) and 101(a)(2) of the Act; 29 U.S.C. 721(a)(1) 
and 721(a)(2))



Sec. 361.14  Substitute State agency.

    (a) General provisions. (1) If the Secretary has withheld all 
funding from a State under Sec. 361.11, the State may designate another 
agency to substitute for the designated State agency in carrying out the 
State's program of vocational rehabilitation services.
    (2) Any public or nonprofit private organization or agency within 
the State or any political subdivision of the State is eligible to be a 
substitute agency.
    (3) The substitute agency shall submit a State plan that meets the 
requirements of this part.
    (4) The Secretary makes no grant to a substitute agency until the 
Secretary approves its plan.
    (b) Substitute agency matching share. The Secretary does not make 
any payment to a substitute agency unless it has provided assurances 
that it will contribute the same matching share as the State would have 
been required to contribute if the State agency were carrying out the 
vocational rehabilitation program.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 107(c)(3) of the Act; 29 U.S.C. 727(c)(3))



Sec. 361.15  Local administration.

    (a) If the State plan provides for local administration, it must--
    (1) Identify each local agency;
    (2) Assure that each local agency is under the supervision of the 
designated State unit and is the sole local agency as defined in 
Sec. 361.5(b)(41) that is responsible for the administration of the 
program within the political subdivision that it serves; and
    (3) Describe the methods each local agency will use to administer 
the vocational rehabilitation program, in accordance with the State 
plan.
    (b) A separate local agency serving individuals who are blind may 
administer that part of the plan relating to vocational rehabilitation 
of individuals who are blind, under the supervision of the designated 
State unit for individuals who are blind.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 7(9) and 101(a)(1)(A) of the Act; 29 U.S.C. 706(9) and 
721(a)(1)(A))



Sec. 361.16  Establishment of an independent commission or a State Rehabilitation Advisory Council.

    (a) General requirement. Except as provided in paragraph (b) of this 
section, the State plan must contain one of the following two 
assurances:
    (1) An assurance that the State agency is an independent State 
commission that--
    (i) Is primarily concerned with vocational rehabilitation or 
vocational and other rehabilitation services, in accordance with 
Sec. 361.13(a)(1)(i);
    (ii) Is consumer-controlled by persons who--
    (A) Are individuals with physical or mental impairments that 
substantially limit major life activities; and
    (B) Represent individuals with a broad range of disabilities;
    (iii) Includes individuals representing family members, advocates, 
and authorized representatives of individuals with mental impairments; 
and
    (iv) Conducts a review and analysis of the effectiveness of and 
consumer satisfaction with vocational rehabilitation services and 
providers in the State, in accordance with the provisions in 
Sec. 361.17(h)(3).
    (2) An assurance that--
    (i) The State has established a State Rehabilitation Advisory 
Council (Council) that meets the requirements of Sec. 361.17;
    (ii) The designated State unit seeks and seriously considers, on a 
regular and ongoing basis, advice from the Council regarding the 
development, implementation, and amendment of the State plan, the 
strategic plan, and other policies and procedures of general 
applicability pertaining to the provision of vocational rehabilitation 
services in the State;
    (iii) The designated State unit transmits to the Council--

[[Page 273]]

    (A) All plans, reports, and other information required under the Act 
to be submitted to the Secretary;
    (B) Copies of all written policies, practices, and procedures of 
general applicability provided to or used by rehabilitation personnel; 
and
    (C) Copies of due process hearing decisions in a manner that 
preserves the confidentiality of the participants in the hearings; and
    (iv) The State plan summarizes annually the advice provided by the 
Council, including recommendations from the annual report of the 
Council, the survey of consumer satisfaction, and other reports prepared 
by the Council, and the State agency's response to the advice and 
recommendations, including the manner in which the State will modify its 
policies and procedures based on the survey of consumer satisfaction and 
explanations of reasons for rejecting any advice or recommendations of 
the Council.
    (b) Exception for separate State agency for individuals who are 
blind. In the case of a State that designates a separate State agency, 
under Sec. 361.13(a)(3), to administer the part of the State plan under 
which vocational rehabilitation services are provided to individuals who 
are blind, the State plan must contain one of the following four 
assurances:
    (1) An assurance that an independent commission in accordance with 
paragraph (a)(1) of this section is responsible under State law for 
operating or overseeing the operation of the vocational rehabilitation 
program of both the State agency that administers the part of the State 
plan under which vocational rehabilitation services are provided to 
individuals who are blind and the State agency that administers the 
remainder of the State plan.
    (2) An assurance that--
    (i) An independent commission that is consumer-controlled by, and 
represents the interests of, individuals who are blind and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with the provisions of Sec. 361.17(h)(3), is responsible under State law 
for operating, or overseeing the operation of, the vocational 
rehabilitation program in the State for individuals who are blind; and
    (ii) An independent commission that is consumer-controlled in 
accordance with paragraph (a)(1)(i) of this section and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with Sec. 361.17(h)(3), is responsible under State law for operating, or 
overseeing the operation of, the vocational rehabilitation program in 
the State for all individuals with disabilities, except individuals who 
are blind.
    (3) An assurance that--
    (i) An independent commission that is consumer-controlled by, and 
represents the interests of, individuals who are blind and that conducts 
a review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with Sec. 361.17(h)(3), is responsible under State law for operating, or 
overseeing the operation of, the vocational rehabilitation program in 
the State for individuals who are blind; and
    (ii) The State has established a State Rehabilitation Advisory 
Council that meets the criteria in Sec. 361.17 and carries out the 
duties of a Council with respect to functions for, and services provided 
to, individuals with disabilities, except for individuals who are blind.
    (4) An assurance that--
    (i) An independent commission that is consumer-controlled in 
accordance with paragraph (a)(1)(i) of this section and conducts a 
review and analysis of the effectiveness of and consumer satisfaction 
with vocational rehabilitation services and providers, in accordance 
with the provisions of Sec. 361.17(h)(3), is responsible under State law 
for operating or overseeing the operation of the vocational 
rehabilitation services for all individuals in the State, except 
individuals who are blind; and
    (ii) The State has established a State Rehabilitation Advisory 
Council that meets the criteria in Sec. 361.17 and carries out the 
duties of a Council with respect

[[Page 274]]

to functions for, and services provided to, individuals who are blind.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(32) and 101(a)(36) of the Act; 29 U.S.C. 
721(a)(32) and 721(a)(36))



Sec. 361.17  Requirements for a State Rehabilitation Advisory Council.

    If the State plan contains an assurance that the State has 
established a Council under Sec. 361.16(a)(2), (b)(3)(ii), or 
(b)(4)(ii), the State plan must also contain an assurance that the 
Council meets the following requirements:
    (a) Appointment. (1) The members of the Council shall be--
    (i) Appointed by the Governor; or
    (ii) If State law vests appointment authority in an entity other 
than, or in conjunction with, the Governor (such as one or more houses 
of the State legislature or an independent board that has general 
appointment authority), appointed by that entity or entities.
    (2) The appointing authority shall select members of the Council 
after soliciting recommendations from representatives of organizations 
representing a broad range of individuals with disabilities and 
organizations interested in individuals with disabilities.
    (b) Composition--(1) General. Except as provided in paragraph (b)(3) 
of this section, the Council shall be composed of at least 13 members, 
including--
    (i) At least one representative of the Statewide Independent Living 
Council, who shall be the chairperson of, or other individual 
recommended by, the Statewide Independent Living Council;
    (ii) At least one representative of a parent training and 
information center established pursuant to section 631(e)(1) of IDEA;
    (iii) At least one representative of the Client Assistance Program 
(CAP), established under 34 CFR part 370, who shall be the director of, 
or other individual recommended by, the CAP;
    (iv) At least one vocational rehabilitation counselor with knowledge 
of and experience with vocational rehabilitation programs who serves as 
an ex officio, nonvoting member if employed by the designated State 
agency;
    (v) At least one representative of community rehabilitation program 
service providers;
    (vi) Four representatives of business, industry, and labor;
    (vii) Representatives of disability groups that include a cross 
section of--
    (A) Individuals with physical, cognitive, sensory, and mental 
disabilities; and
    (B) Parents, family members, guardians, advocates, or authorized 
representatives of individuals with disabilities who have difficulty 
representing themselves due to their disabilities;
    (viii) Current or former applicants for, or recipients of, 
vocational rehabilitation services; and
    (ix) The director of the designated State unit as an ex officio, 
nonvoting member.
    (2) Employees of the designated State agency. Employees of the 
designated State agency may serve only as nonvoting members of the 
Council.
    (3) Composition of a separate Council for a separate State agency 
for individuals who are blind. Except as provided in paragraph (b)(4) of 
this section, if the State establishes a separate Council for a separate 
State agency for individuals who are blind, that Council shall--
    (i) Conform with all of the composition requirements for a Council 
under paragraph (b)(1) of this section, except the requirements in 
paragraph (b)(1)(vii), unless the exception in paragraph (b)(4) of this 
section applies; and
    (ii) Include--
    (A) At least one representative of a disability advocacy group 
representing individuals who are blind; and
    (B) At least one parent, family member, guardian, advocate, or 
authorized representative of an individual who is blind, has multiple 
disabilities, and has difficulty representing himself or herself due to 
disabilities.
    (4) Exception. If State law in effect on October 29, 1992 requires a 
separate Council under paragraph (b)(3) of this section to have fewer 
than 13 members, the separate Council is deemed to be in compliance with 
the composition requirements in paragraphs (b)(1)(vi) and (b)(1)(viii) 
of this section if it includes at least one representative who meets the 
requirements for each of those paragraphs.

[[Page 275]]

    (c) Majority. A majority of the Council members shall be individuals 
with disabilities who are not employed by the designated State unit.
    (d) Chairperson. The chairperson shall be--
    (1) Selected by the members of the Council from among the voting 
members of the Council, subject to the veto power of the Governor; or
    (2) If the Governor does not have veto power pursuant to State law, 
selected by the Governor, or by the Council if required by the Governor, 
from among the voting members of the Council.
    (e) Terms of appointment. (1) Each member of the Council shall be 
appointed for a term of no more than three years and may serve for no 
more than two consecutive full terms.
    (2) A member appointed to fill a vacancy occurring prior to the end 
of the term for which the predecessor was appointed shall be appointed 
for the remainder of the predecessor's term.
    (3) The terms of service of the members initially appointed must be 
for varied numbers of years to ensure that terms expire on a staggered 
basis.
    (f) Vacancies. (1) A vacancy in the membership of the Council must 
be filled in the same manner as the original appointment.
    (2) No vacancy affects the power of the remaining members to execute 
the duties of the Council.
    (g) Conflict of interest. No member of the Council shall cast a vote 
on any matter that would provide direct financial benefit to the member 
or the member's organization or otherwise give the appearance of a 
conflict of interest under State law.
    (h) Functions. The Council shall--
    (1) Review, analyze, and advise the designated State unit regarding 
the performance of the State unit's responsibilities under this part, 
particularly responsibilities related to--
    (i) Eligibility, including order of selection;
    (ii) The extent, scope, and effectiveness of services provided; and
    (iii) Functions performed by State agencies that affect or 
potentially affect the ability of individuals with disabilities to 
achieve rehabilitation goals and objectives under this part;
    (2) Advise, and at the discretion of the State agency assist, the 
State unit in the preparation of applications, the State plan, the 
strategic plan, and amendments to the plans, reports, needs assessments, 
and evaluations required by this part;
    (3) To the extent feasible, conduct a review and analysis of the 
effectiveness of, and consumer satisfaction with--
    (i) The functions performed by State agencies and other public and 
private entities responsible for serving individuals with disabilities; 
and
    (ii) The vocational rehabilitation services provided by State 
agencies and other public and private entities responsible for providing 
vocational rehabilitation services to individuals with disabilities from 
funds made available under the Act or through other public or private 
sources;
    (4) Prepare and submit to the Governor, or appropriate State entity, 
and to the Secretary no later than 90 days after the end of the Federal 
fiscal year an annual report on the status of vocational rehabilitation 
programs operated within the State and make the report available to the 
public through appropriate modes of communication;
    (5) Coordinate with other councils within the State, including the 
Statewide Independent Living Council established under 34 CFR part 364, 
the advisory panel established under section 613(a)(12) of IDEA, the 
State Planning Council described in section 124 of the Developmental 
Disabilities Assistance and Bill of Rights Act, and the State mental 
health planning council established under section 1916(e) of the Public 
Health Service Act;
    (6) Advise the designated State agency and provide for coordination 
and the establishment of working relationships between the designated 
State agency and the Statewide Independent Living Council and centers 
for independent living within the State; and
    (7) Perform other comparable functions, consistent with the purpose 
of this part, that the Council determines to be appropriate.
    (i) Resources. (1) The Council, in conjunction with the designated 
State unit, shall prepare a plan for the provision of resources, 
including staff and other personnel, that may be necessary

[[Page 276]]

for the Council to carry out its functions under this part.
    (2) In implementing the resources plan, the Council shall rely on 
existing resources to the maximum extent possible.
    (3) Any disagreements between the designated State unit and the 
Council regarding the amount of resources necessary must be resolved by 
the Governor or other appointing entity, consistent with paragraphs 
(i)(1) and (2) of this section.
    (4) The Council shall, consistent with State law, supervise and 
evaluate the staff and personnel that are necessary to carry out its 
functions.
    (5) Those staff and personnel that are assisting the Council in 
carrying out its functions may not be assigned duties by the designated 
State unit or any other agency or office of the State that would create 
a conflict of interest.
    (j) Meetings. The Council shall--
    (1) Convene at least four meetings a year to conduct Council 
business that are publicly announced, open and accessible to the public, 
including individuals with disabilities, unless there is a valid reason 
for an executive session; and
    (2) Conduct forums or hearings, as appropriate, that are publicly 
announced, open and accessible to the public, including individuals with 
disabilities.
    (k) Compensation. Funds appropriated under title I of the Act, 
except funds to carry out sections 112 and 130 of the Act, may be used 
to compensate and reimburse the expenses of Council members in 
accordance with section 105(g) of the Act.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 105 of the Act; 29 U.S.C. 725)



Sec. 361.18  Comprehensive system of personnel development.

    The State plan must describe the procedures and activities the State 
agency will undertake to establish and maintain a comprehensive system 
of personnel development designed to ensure an adequate supply of 
qualified rehabilitation personnel, including professionals and 
paraprofessionals, for the designated State unit. If the State agency 
has a State Rehabilitation Advisory Council, this description must, at a 
minimum, specify that the Council has an opportunity to review and 
comment on the development of plans, policies, and procedures necessary 
to meet the requirements of paragraphs (b) through (d) and paragraph (f) 
of this section. This description must also conform with the following 
requirements:
    (a) Data system on personnel and personnel development. The State 
plan must describe the development and maintenance of a system by the 
State agency for collecting and analyzing on an annual basis data on 
qualified personnel needs and personnel development, in accordance with 
the following requirements:
    (1) Data on qualified personnel needs must include--
    (i) The number of personnel who are employed by the State agency in 
the provision of vocational rehabilitation services in relation to the 
number of individuals served, broken down by personnel category;
    (ii) The number of personnel currently needed by the State agency to 
provide vocational rehabilitation services, broken down by personnel 
category; and
    (iii) Projections of the number of personnel, broken down by 
personnel category, who will be needed by the State agency to provide 
vocational rehabilitation services in the State in five years based on 
projections of the number of individuals to be served, including 
individuals with severe disabilities, the number of personnel expected 
to retire or leave the field, and other relevant factors.
    (2) Data on personnel development must include--
    (i) A list of the institutions of higher education in the State that 
are preparing vocational rehabilitation professionals, by type of 
program;
    (ii) The number of students enrolled at each of those institutions, 
broken down by type of program; and
    (iii) The number of students who graduated during the prior year 
from each of those institutions with certification or licensure, or with 
the credentials for certification or licensure, broken down by the 
personnel category for which they have received, or have the

[[Page 277]]

credentials to receive, certification or licensure.
    (b) Plan for recruitment, preparation, and retention of qualified 
personnel. The State plan must describe the development, updating, and 
implementation of a plan to address the current and projected needs for 
personnel who are qualified in accordance with paragraph (c) of this 
section. The plan must identify the personnel needs based on the data 
collection and analysis system described in paragraph (a) of this 
section and must provide for the coordination and facilitation of 
efforts between the designated State unit and institutions of higher 
education and professional associations to recruit, prepare, and retain 
personnel who are qualified in accordance with paragraph (c) of this 
section, including personnel from minority backgrounds and personnel who 
are individuals with disabilities.
    (c) Personnel standards. (1) The State plan must include the State 
agency's policies and describe the procedures the State agency will 
undertake to establish and maintain standards to ensure that 
professional and paraprofessional personnel needed within the State unit 
to carry out this part are appropriately and adequately prepared and 
trained, including--
    (i) Standards that are consistent with any national or State-
approved or -recognized certification, licensing, or registration 
requirements, or, in the absence of these requirements, other comparable 
requirements (including State personnel requirements), that apply to the 
profession or discipline in which that category of personnel is 
providing vocational rehabilitation services; and
    (ii) To the extent that existing standards are not based on the 
highest requirements in the State, the steps the State is currently 
taking and the steps the State plans to take to retrain or hire 
personnel to meet standards that are based on the highest requirements 
in the State, including measures to notify State unit personnel, the 
institutions of higher education identified under paragraph (a)(2)(i) of 
this section, and other public agencies of these steps and the timelines 
for taking each step.
    (2) As used in this section--
    (i) Highest requirements in the State applicable to that profession 
or discipline means the highest entry-level academic degree needed for 
any national or State-approved or -recognized certification, licensing, 
registration, or other comparable requirements that apply to that 
profession or discipline. The current requirements of all State statutes 
and regulations of other agencies in the State applicable to that 
profession or discipline must be considered and must be kept on file by 
the designated State unit and available to the public.
    (ii) Profession or discipline means a specific occupational 
category, including any paraprofessional occupational category, that--
    (A) Provides rehabilitation services to individuals with 
disabilities;
    (B) Has been established or designated by the State; and
    (C) Has a specified scope of responsibility.
    (d) Staff development. (1) The State plan must include the State 
agency's policies and describe the procedures and activities the State 
agency will undertake to ensure that all personnel employed by the State 
unit receive appropriate and adequate training, including a description 
of--
    (i) A system of staff development for rehabilitation professionals 
and paraprofessionals within the State unit, particularly with respect 
to rehabilitation technology; and
    (ii) Procedures for acquiring and disseminating to rehabilitation 
professionals and paraprofessionals within the designated State unit 
significant knowledge from research and other sources, including 
procedures for providing training regarding the amendments to the 
Rehabilitation Act of 1973 made by the Rehabilitation Act Amendments of 
1992.
    (2) The specific training areas for staff development must be based 
on the needs of each State unit and may include, but are not limited to, 
training with respect to the requirements of the Americans with 
Disabilities Act, IDEA, and Social Security work incentive programs, 
training to facilitate informed choice under this program, and training 
to improve the provision of

[[Page 278]]

services to culturally diverse populations.
    (e) Personnel to address individual communication needs. The State 
plan must describe how the State unit--
    (1) Includes among its personnel, or obtains the services of, 
individuals able to communicate in the native languages of applicants 
and eligible individuals who have limited English speaking ability; and
    (2) Includes among its personnel, or obtains the services of, 
individuals able to communicate with applicants and eligible individuals 
in appropriate modes of communication.
    (f) Performance evaluation system. The State plan must describe how 
the system for evaluating the performance of rehabilitation counselors, 
coordinators, and other personnel used in the State unit facilitates, 
and in no way impedes, the accomplishment of the purpose and policy of 
the program as described in sections 100(a)(2) and 100(a)(3) of the Act, 
including the policy of serving, among others, individuals with the most 
severe disabilities.
    (g) Coordination with personnel development under IDEA. The State 
plan must describe the procedures and activities the State agency will 
undertake to coordinate its comprehensive system of personnel 
development under the Act with personnel development under IDEA.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101 (a)(7) and (a)(35) of the Act; 29 U.S.C. 721(a) (7) 
and (35))
    Note: Under the Act and the regulations in this part, the State 
agency is required to collect and analyze data regarding personnel needs 
by type or category of personnel. The personnel data must be collected 
and analyzed according to personnel category breakdowns that are based 
on the major categories of staff in the State unit. Similarly, the data 
from institutions of higher education must be broken down by type of 
program to correspond as closely as possible with the personnel 
categories of the State unit.



Sec. 361.19  Affirmative action for individuals with disabilities.

    The State plan must assure that the State agency takes affirmative 
action to employ and advance in employment qualified individuals with 
disabilities.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(6)(A) of the Act; 29 U.S.C. 721(a)(6)(A))



Sec. 361.20  State plan development.

    (a) Public participation requirements--(1) Plan development and 
revisions. The State plan must assure that the State unit conducts 
public meetings throughout the State to provide all segments of the 
public, including interested groups, organizations, and individuals, an 
opportunity to comment on the State plan prior to its development and to 
comment on any revisions to the State plan.
    (2) Notice requirements. The State plan must assure that the State 
unit, prior to conducting public meetings, provides appropriate and 
sufficient notice throughout the State of the meetings in accordance 
with--
    (i) State law governing public meetings; or
    (ii) In the absence of State law governing public meetings, 
procedures developed by the State unit in consultation with the State 
Rehabilitation Advisory Council.
    (3) Revisions based on consumer satisfaction surveys. The State plan 
must describe the manner in which the State's policies and procedures 
will be revised based on the results of consumer satisfaction surveys 
conducted by the State Rehabilitation Advisory Council under 
Sec. 361.17(h)(3) or by the State agency if it is an independent 
commission in accordance with the requirements of Sec. 361.16.
    (b) Special consultation requirements. The State plan must assure 
that, as appropriate, the State unit actively consults in the 
development and revision of the State plan with the CAP director, the 
State Rehabilitation Advisory Council, and, as appropriate, those Indian 
tribes, tribal organizations, and native Hawaiian organizations that 
represent significant numbers of individuals with disabilities within 
the State.
    (c) Summary of public comments. The State plan must include a 
summary of the public comments on the State plan, including comments on 
revisions to the

[[Page 279]]

State plan and the State unit's response to those comments.
    (d) Appropriate modes of communication. The State unit shall 
provide, through appropriate modes of communication, the notices of the 
public meetings, any materials furnished prior to or during the public 
meetings, and the approved State plan.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(20), 101(a)(23), 101(a)(32), and 105(c)(2) of 
the Act; 29 U.S.C. 721(a)(20), (23), and (32) and 725(c)(2))



Sec. 361.21  Consultations regarding the administration of the State plan.

    (a) The State plan must assure that, in connection with matters of 
general policy development and implementation arising in the 
administration of the State plan, the State unit seeks and takes into 
account the views of--
    (1) Individuals who receive vocational rehabilitation services or, 
as appropriate, the individuals' representatives;
    (2) Personnel working in the field of vocational rehabilitation;
    (3) Providers of vocational rehabilitation services;
    (4) The CAP director; and
    (5) The State Rehabilitation Advisory Council, if the State has a 
Council.
    (b) The State plan must specifically describe the manner in which 
the State unit will take into account the views regarding State policy 
and administration of the State plan that are expressed in the consumer 
satisfaction surveys conducted by the State Rehabilitation Advisory 
Council under Sec. 361.17(h)(3) or by the State agency if it is an 
independent commission in accordance with the requirements of 
Sec. 361.16(a)(1).

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(18), 101(a)(32), and 105(c)(2) of the Act; 29 
U.S.C. 721(a)(18), 721(a)(32), and 725(c)(2))



Sec. 361.22  Cooperation with agencies responsible for students with disabilities.

    (a) Students with disabilities who are receiving special education 
services--(1) General. The State plan must contain plans, policies, and 
procedures that are designed to facilitate the transition of students 
who are receiving special education services from the provision of a 
free appropriate public education under the responsibility of an 
educational agency to the provision of vocational rehabilitation 
services under the responsibility of the designated State unit. These 
plans, policies, and procedures must provide for the development and 
completion of the IWRP before the student leaves the school setting for 
each student determined to be eligible for vocational rehabilitation 
services or, if the designated State unit is operating under an order of 
selection, for each eligible student able to be served under the order. 
The IWRP must, at a minimum, identify the long-term rehabilitation 
goals, intermediate rehabilitation objectives, and goals and objectives 
related to enabling the student to live independently, to the extent 
these goals and objectives are included in the student's individualized 
education program.
    (2) Formal interagency agreement. The State plan must assure that 
the State unit enters into formal interagency agreements with the State 
educational agency and, as appropriate, with local educational agencies, 
that are responsible for the free appropriate public education of 
students with disabilities who are receiving special education services. 
Formal interagency agreements must, at a minimum, identify--
    (i) Policies, practices, and procedures that can be coordinated 
between the agencies, including definitions, standards for eligibility, 
policies and procedures for making referrals, procedures for outreach to 
and identification of youth who are receiving special education services 
and are in need of transition services, and procedures and timeframes 
for evaluation and follow-up of those students;
    (ii) The roles of each agency, including provisions for determining 
State lead agencies and qualified personnel responsible for transition 
services;
    (iii) Procedures for providing training for staff of State and local 
educational agencies as to the availability, benefits of, and 
eligibility standards for vocational rehabilitation services, to the 
extent practicable;

[[Page 280]]

    (iv) Available resources, including sources of funds for the 
development and expansion of services;
    (v) The financial responsibility of each agency in providing 
services to students with disabilities who are receiving special 
education services, consistent with State law;
    (vi) Procedures for resolving disputes between the agencies that are 
parties to the agreement; and
    (vii) All other components necessary to ensure meaningful 
cooperation among agencies, including procedures to facilitate the 
development of local teams to coordinate the provision of services to 
individuals, sharing data, and coordinating joint training of staff in 
the provision of transition services.
    (b) Students with disabilities who are not receiving special 
education services. The State plan must contain plans, policies, and 
procedures, including cooperation with appropriate agencies, designed to 
ensure that students with disabilities who are not receiving special 
education services have access to and can receive vocational 
rehabilitation services, if appropriate, and to ensure outreach to and 
identification of those students.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(11)(C), 101(a)(24) and 101(a)(30) of the Act; 
29 U.S.C. 721 (a)(11), (a)(24), and (a)(30))
    Note: The following excerpt from page 33 of Senate Report No. 102-
357 further clarifies the provision of transition services by the State 
vocational rehabilitation agency:
The overall purpose of this provision is to ensure that all students who 
require vocational rehabilitation services receive those services in a 
timely manner. There should be no gap in services between the education 
system and the vocational rehabilitation system * * *. The committee 
intends that students with disabilities who are eligible for, and who 
need, vocational rehabilitation services will receive those services as 
soon as possible, consistent with Federal and State law. These 
provisions are not intended in any way to shift the responsibility of 
service delivery from education to rehabilitation during the transition 
years. School officials will continue to be responsible for providing a 
free and appropriate public education as defined by the IEP. The role of 
the rehabilitation system is primarily one of planning for the student's 
years after leaving school. (S. Rep. No. 357, 102d Cong., 2d. Sess. 33 
(1992))



Sec. 361.23  Cooperation with other public agencies.

    (a) Coordination of services with vocational education and Javits-
Wagner-O'Day programs. The State plan must assure that specific 
arrangements or agreements are made for the coordination of services for 
any individual who is eligible for vocational rehabilitation services 
and is also eligible for services under the Carl D. Perkins Vocational 
and Applied Technology Education Act or the Javits-Wagner-O'Day Act.
    (b) Cooperation with other Federal, State, and local public agencies 
providing services related to the rehabilitation of individuals with 
disabilities. (1) The State plan must assure that the State unit 
cooperates with other Federal, State, and local public agencies 
providing services related to the rehabilitation of individuals with 
disabilities, including, as appropriate, establishing interagency 
working groups or entering into formal interagency cooperative 
agreements with, and using the services and facilities of--
    (i) Federal agencies providing services related to the 
rehabilitation of individuals with disabilities, including the Social 
Security Administration, the Office of Workers' Compensation Programs of 
the Department of Labor, and the Department of Veterans Affairs; and
    (ii) State and local public agencies providing services related to 
the rehabilitation of individuals with disabilities, including State and 
local public agencies administering the State's social services and 
financial assistance programs and other State programs for individuals 
with disabilities, such as the State's developmental disabilities 
program, veterans programs, health and mental health programs, education 
programs (including adult education, higher education, and vocational 
education programs), workers' compensation programs, job training and 
placement programs, and public employment offices.
    (2) Interagency cooperation under paragraph (b)(1) of this section, 
to the extent practicable, must provide for training for staff of the 
agencies as to the availability, benefits of, and eligibility standards 
for vocational rehabilitation services.

[[Page 281]]

    (3) If the State unit chooses to enter into formal interagency 
cooperative agreements developed under paragraph (b)(1) of this section, 
the agreements must--
    (i) Identify policies, practices, and procedures that can be 
coordinated among the agencies (particularly definitions, standards for 
eligibility, the joint sharing and use of evaluations and assessments, 
and procedures for making referrals);
    (ii) Identify available resources and define the financial 
responsibility of each agency for paying for necessary services 
(consistent with State law) and procedures for resolving disputes 
between agencies; and
    (iii) Include all additional components necessary to ensure 
meaningful cooperation and coordination.
    (c) Reciprocal referral services with a separate agency for 
individuals who are blind. If there is a separate State unit for 
individuals who are blind, the State plan must assure that the two State 
units establish reciprocal referral services, use each other's services 
and facilities to the extent feasible, jointly plan activities to 
improve services in the State for individuals with multiple impairments, 
including visual impairments, and otherwise cooperate to provide more 
effective services, including, if appropriate, entering into a written 
cooperative agreement.

(Authority: Secs. 101(a)(11) and 101(a)(22) of the Act; 29 U.S.C. 
721(a)(11) and 721(a)(22))



Sec. 361.24  Coordination with the Statewide Independent Living Council.

    The State plan must assure that the State unit will coordinate and 
establish working relationships with the Statewide Independent Living 
Council established under 34 CFR part 364 and with independent living 
centers within the State.

(Authority: Sec. 101(a)(33) of the Act; 29 U.S.C. 721(a)(33))



Sec. 361.25  Statewideness.

    The State plan must assure that services provided under the State 
plan will be available in all political subdivisions of the State, 
unless a waiver of statewideness is requested and approved in accordance 
with Sec. 361.26.

(Authority: Section 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))



Sec. 361.26  Waiver of statewideness.

    (a) Availability. The State unit may provide services in one or more 
political subdivisions of the State that increase services or expand the 
scope of services that are available statewide under the State plan if--
    (1) The non-Federal share of the cost of these services is met from 
funds provided by a local public agency, including funds contributed to 
a local public agency by a private agency, organization, or individual;
    (2) The services are likely to promote the vocational rehabilitation 
of substantially larger numbers of individuals with disabilities or of 
individuals with disabilities with particular types of impairments; and
    (3) The State includes in its State plan, and the Secretary 
approves, a request for a waiver of the statewideness requirement, in 
accordance with the requirements of paragraph (b) of this section.
    (b) Request for waiver. The request for a waiver of statewideness 
must--
    (1) Identify the types of services to be provided;
    (2) Contain a written assurance from the local public agency that it 
will make available to the State unit the non-Federal share of funds;
    (3) Contain a written assurance that State unit approval will be 
obtained for each proposed service before it is put into effect; and
    (4) Contain a written assurance that all other State plan 
requirements, including a State's order of selection requirements, will 
apply to all services approved under the waiver.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(4) of the Act; 29 U.S.C. 721(a)(4))



Sec. 361.27  Shared funding and administration of joint programs.

    (a) If the State plan provides for a joint program involving shared 
funding and administrative responsibility with another State agency or a 
local public

[[Page 282]]

agency to provide services to individuals with disabilities, the plan 
must include a description of the nature and scope of the joint program, 
the services to be provided, the respective roles of each participating 
agency in the provision of services and in their administration, and the 
share of the costs to be assumed by each agency.
    (b) If a proposed joint program does not comply with the 
statewideness requirement in Sec. 361.25, the State unit shall obtain a 
waiver of statewideness, in accordance with Sec. 361.26.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Section 101(a)(1)(A) of the Act; 29 U.S.C.721(a)(1)(A))



Sec. 361.28  Third-party cooperative arrangements involving funds from other public agencies.

    (a) If the designated State unit enters into a third-party 
cooperative arrangement for providing or administering vocational 
rehabilitation services with another State agency or a local public 
agency that is furnishing part or all of the non-Federal share, the 
State plan must assure that--
    (1) The services provided by the cooperating agency are not the 
customary or typical services provided by that agency but are new 
services that have a vocational rehabilitation focus or existing 
services that have been modified, adapted, expanded, or reconfigured to 
have a vocational rehabilitation focus;
    (2) The services provided by the cooperating agency are only 
available to applicants for, or recipients of, services from the 
designated State unit;
    (3) Program expenditures and staff providing services under the 
cooperative arrangement are under the administrative supervision of the 
designated State unit; and
    (4) All State plan requirements, including a State's order of 
selection, will apply to all services provided under the cooperative 
program.
    (b) If a third party cooperative agreement does not comply with the 
statewideness requirement in Sec. 361.25, the State unit shall obtain a 
waiver of statewideness, in accordance with Sec. 361.26.

(Authority: Sec. 101(a)(1)(A) of the Act; 29 U.S.C. 721(a)(1)(A))



Sec. 361.29  Statewide studies and evaluations.

    (a) Statewide studies. The State plan must assure that the State 
unit conducts continuing statewide studies to determine the current 
needs of individuals with disabilities within the State and the best 
methods to meet those needs. As part of the development of the State 
plan, the continuing statewide studies, at a minimum, must include--
    (1) A triennial comprehensive assessment of the rehabilitation needs 
of individuals with severe disabilities who reside in the State;
    (2) A triennial review of the effectiveness of outreach procedures 
used to identify and serve individuals with disabilities who are 
minorities and individuals with disabilities who are unserved and 
underserved by the vocational rehabilitation system; and
    (3) A triennial review of a broad variety of methods to provide, 
expand, and improve vocational rehabilitation services to individuals 
with the most severe disabilities, including individuals receiving 
supported employment services under 34 CFR part 363.
    (b) Annual evaluation. The State plan must assure that the State 
unit conducts an annual evaluation of the effectiveness of the State's 
vocational rehabilitation program in providing vocational rehabilitation 
and supported employment services, especially to individuals with the 
most severe disabilities. The annual evaluation must analyze the extent 
to which--
    (1) The State has achieved the goals and priorities established in 
the State plan and annual amendments to the plan; and
    (2) The State is in compliance with the evaluation standards and 
performance indicators established by the Secretary pursuant to section 
106 of the Act.
    (c) Reporting requirements. (1) The State plan must describe 
annually those changes that have been adopted in policy, in the State 
plan and its amendments, and in the strategic plan

[[Page 283]]

and its amendments as a result of the statewide studies and the annual 
program evaluation.
    (2) The State plan must contain an annual description of the methods 
used to expand and improve vocational rehabilitation services to 
individuals with the most severe disabilities, including the State 
unit's criteria for determining which individuals are individuals with 
the most severe disabilities.
    (3) The State plan must contain an annual analysis of the 
characteristics of individuals determined to be ineligible for services 
and the reasons for the ineligibility determinations.
    (4) The State unit shall maintain copies of the statewide studies 
and the annual evaluations and shall make the copies available to the 
Secretary upon request.
    (d) Role of the State Rehabilitation Advisory Council. The State 
plan must assure that the State unit seeks the advice of the State 
Rehabilitation Advisory Council, if the State has a Council, regarding 
the continuing statewide studies and the annual evaluation and, at the 
discretion of the State agency, seeks assistance from the Council in the 
preparation and analysis of the studies and evaluation.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 101(a)(5) (A) and (B), 101(a)(9)(D), 101(a)(15) 
(A), (C), and (D), 101(a)(19), and 105(c)(2) of the Act; 29 U.S.C. 
721(a) (5), (9), (15), and (19) and 725(c)(2))



Sec. 361.30  Services to special groups of individuals with disabilities.

    (a) Civil employees of the United States. The State plan must assure 
that vocational rehabilitation services are available to civil employees 
of the U.S. Government who are disabled in the line of duty, under the 
same terms and conditions applied to other individuals with 
disabilities.
    (b) Public safety officers. (1) The State plan must assure that 
special consideration will be given to those individuals with 
disabilities whose disability arose from an impairment sustained in the 
line of duty while performing as a public safety officer and the 
immediate cause of that impairment was a criminal act, apparent criminal 
act, or a hazardous condition resulting directly from the officer's 
performance of duties in direct connection with the enforcement, 
execution, and administration of law or fire prevention, firefighting, 
or related public safety activities.
    (2) For the purposes of paragraph (b) of this section, special 
consideration for States under an order of selection means that those 
public safety officers who meet the requirements of paragraph (b)(1) of 
this section must receive priority for services over other eligible 
individuals in the same priority category of the order of selection.
    (3) For the purposes of paragraph (b) of this section, criminal act 
means any crime, including an act, omission, or possession under the 
laws of the United States, a State, or a unit of general local 
government that poses a substantial threat of personal injury, 
notwithstanding that by reason of age, insanity, intoxication, or 
otherwise, the person engaging in the act, omission, or possession was 
legally incapable of committing a crime.
    (4) For the purposes of paragraph (b) of this section, public safety 
officer means a person serving the United States or a State or unit of 
local government, with or without compensation, in any activity 
pertaining to--
    (i) The enforcement of the criminal laws, including highway patrol, 
or the maintenance of civil peace by the National Guard or the Armed 
Forces;
    (ii) A correctional program, facility, or institution if the 
activity is potentially dangerous because of contact with criminal 
suspects, defendants, prisoners, probationers, or parolees;
    (iii) A court having criminal or juvenile delinquent jurisdiction if 
the activity is potentially dangerous because of contact with criminal 
suspects, defendants, prisoners, probationers, or parolees; or
    (iv) Firefighting, fire prevention, or emergency rescue missions.
    (c) American Indians. (1) The State plan must assure that vocational 
rehabilitation services are provided to American Indians with 
disabilities residing in the State to the same extent that these 
services are provided to other significant groups of individuals with 
disabilities residing in the State.

[[Page 284]]

    (2) The State plan also must assure that the designated State unit 
continues to provide vocational rehabilitation services, including, as 
appropriate, services traditionally used by Indian tribes, to American 
Indians with disabilities who reside on reservations and are eligible 
for services by a special tribal program under 34 CFR part 371.

(Authority: Secs. 7, 101(a)(13), 101(a)(20), and 130(b)(3) of the Act; 
29 U.S.C. 706, 721(a)(13), 721(a)(20), and 750(b)(3))



Sec. 361.31  Utilization of community resources.

    The State plan must assure that, in providing vocational 
rehabilitation services, public or other vocational or technical 
training programs or other appropriate community resources are used to 
the maximum extent feasible.

(Authority: Sec. 101(a)(12)(A) of the Act; 29 U.S.C.721(a)(12)(A))



Sec. 361.32  Utilization of profitmaking organizations for on-the-job training in connection with selected projects.

    The State plan must assure that the State unit has the authority to 
enter into contracts with profitmaking organizations for the purpose of 
providing on-the-job training and related programs for individuals with 
disabilities under the Projects With Industry program, 34 CFR part 379, 
if it has been determined that they are better qualified to provide 
needed services than nonprofit agencies, organizations, or programs in 
the State.

(Authority: Sec. 101(a)(21) of the Act; 29 U.S.C. 721(a)(21))



Sec. 361.33  Use, assessment, and support of community rehabilitation programs.

    (a) The State plan must contain a description of how the designated 
State unit uses community rehabilitation programs to the maximum extent 
feasible to provide vocational rehabilitation services in the most 
integrated settings possible, consistent with the informed choices of 
the individuals. This description must--
    (1) Include the methods the designated State unit uses to ensure the 
appropriate use of community rehabilitation programs;
    (2) Provide, as appropriate, for entering into agreements with the 
operators of those community rehabilitation programs;
    (3) Specify the manner in which the designated State unit will 
establish cooperative agreements with private nonprofit vocational 
rehabilitation service providers;
    (4) Contain the findings resulting from an assessment of the 
capacity and effectiveness of community rehabilitation programs, 
including programs under the Javits-Wagner-O'Day Act, based on the use 
of those programs; and
    (5) Contain plans for improving community rehabilitation programs 
based on the assessment in paragraph (a)(4) of this section.
    (b) If the State plan provides for the establishment, development, 
or improvement of a public or nonprofit community rehabilitation 
program, the State plan must contain a description of the need to 
establish, develop, or improve, as appropriate, the community 
rehabilitation program to provide vocational rehabilitation services to 
applicants and eligible individuals, based on the assessment and 
improvement plans required in paragraphs (a)(4) and (a)(5) of this 
section.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(5)(A), 101(a)(12)(B), 101(a)(15)(B), 
101(a)(27), 101(a)(28), and 103(b)(2) of the Act; 29 U.S.C. 721(a)(5), 
(12), (15), (27), and (28) and 723(b)(2))



Sec. 361.34  Supported employment plan.

    (a) The State plan must assure that the State has an acceptable plan 
under 34 CFR part 363 that provides for the use of funds under that part 
to supplement funds under this part for the cost of services leading to 
supported employment.
    (b) The supported employment plan, including any needed annual 
revisions, must be submitted as a supplement to the State plan.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(25) and 635(a) of the Act; 29 U.S.C. 
721(a)(25))

[[Page 285]]



Sec. 361.35  Strategic plan.

    (a) The State plan must assure that the State--
    (1) Has developed and implemented a strategic plan for expanding and 
improving vocational rehabilitation services for individuals with 
disabilities on a statewide basis in accordance with subpart D of this 
part; and
    (2) Will use at least 1.5 percent of its allotment under this 
program for expansion and improvement activities in accordance with 
Sec. 361.73(b).
    (b) The strategic plan must be submitted at the same time as the 
State plan.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(34) and 120 of the Act; 29 U.S.C. 721(a)(34) 
and 740)



Sec. 361.36  Ability to serve all eligible individuals; order of selection for services.

    (a) General provisions. (1) The State plan must contain--
    (i) An assurance that the designated State unit is able to provide 
the full range of services listed in section 103(a) of the Act, as 
appropriate, to all eligible individuals. The assurance must be 
supported by an explanation that satisfies the requirements of paragraph 
(a)(2) or (a)(3) of this section and describes how, on the basis of the 
designated State unit's projected fiscal and personnel resources and its 
assessment of the rehabilitation needs of individuals with severe 
disabilities within the State, it will--
    (A) Continue to provide services to all individuals currently 
receiving services;
    (B) Provide assessment services to all individuals expected to apply 
for services in the next fiscal year;
    (C) Provide services to all individuals who are expected to be 
determined eligible in the next fiscal year; and
    (D) Meet all program requirements; or
    (ii) The order to be followed in selecting eligible individuals to 
be provided services, a justification of that order of selection, and a 
description of the outcome and service goals and service costs to be 
achieved for individuals with disabilities in each category within the 
order and the time within which these goals may be achieved.
    (2) For those designated State units that provided assurances in 
their State plans for the current fiscal year and the preceding fiscal 
year that they are able to provide the full range of services, as 
appropriate, to all eligible individuals, the explanation required by 
paragraph (a)(1)(i) of this section must include a statement that, 
during the current fiscal year and the preceding fiscal year, the DSU 
has in fact--
    (i) Provided assessment services to all applicants and the full 
range of services, as appropriate, to all eligible individuals;
    (ii) Made referral forms widely available throughout the State;
    (iii) Conducted outreach efforts to identify and serve individuals 
with disabilities who have been unserved or underserved by the 
vocational rehabilitation system; and
    (iv) Not delayed, through waiting lists or other means, 
determinations of eligibility, the development of individualized written 
rehabilitation programs (IWRPs) for individuals determined eligible, or 
the provision of services for eligible individuals for whom IWRPs have 
been developed.
    (3) For those designated State units unable to provide the full 
range of services to all eligible individuals during the current or 
preceding fiscal year, or unable to provide the statement required in 
paragraph (a)(2) of this section, the explanation required by paragraph 
(a)(1)(i) of this section must include--
    (i) A description of the circumstances that have changed that will 
allow the DSU to meet the requirements of paragraph (a)(1)(i) of this 
section in the next fiscal year, including a description of--
    (A) The estimated number of and projected costs of serving, in the 
next fiscal year, individuals with existing IWRPs;
    (B) The projected number of individuals with disabilities who will 
apply for services and will be determined eligible in the next fiscal 
year and the projected costs of serving those individuals;
    (C) The projected costs of administering the program in the next 
fiscal

[[Page 286]]

year, including, but not limited to, costs of staff salaries and 
benefits, outreach activities, and required statewide studies; and
    (D) The projected revenues and projected number of qualified 
personnel for the program in the next fiscal year;
    (ii) Comparable data, as relevant, for the current or preceding 
fiscal year, or for both years, of the costs listed in paragraphs 
(a)(3)(i) (A) through (C) of this section and the resources identified 
in paragraph (a)(3)(i)(D) of this section and an explanation of any 
projected increases or decreases in these costs and resources; and
    (iii) A demonstration that the projected revenues and the projected 
number of qualified personnel for the program in the next fiscal year 
are adequate to cover the costs identified in paragraphs (a)(3)(i) (A) 
through (C) of this section so as to ensure the provision of the full 
range of services, as appropriate, to all eligible individuals.
    (b) Time for determining need for an order of selection. (1) The 
designated State unit shall determine, prior to the beginning of each 
fiscal year, whether to establish and implement an order of selection.
    (2) If the designated State unit determines that it does not need to 
establish an order of selection, it shall reevaluate this determination 
whenever changed circumstances during the course of a fiscal year, such 
as a decrease in its fiscal or personnel resources or an increase in its 
program costs, indicate that it may no longer be able to provide the 
full range of services, as appropriate, to all eligible individuals.
    (c) Establishing an order of selection--(1) Basis for order of 
selection. An order of selection must be based on a refinement of the 
three criteria in the definition of ``individual with a severe 
disability'' in section 7(15)(A) of the Act.
    (2) Factors that cannot be used in determining order of selection of 
eligible individuals. An order of selection may not be based on any 
other factors, including--
    (i) Any duration of residency requirement, provided the individual 
is present in the State;
    (ii) Type of disability;
    (iii) Age, gender, race, color, creed, or national origin;
    (iv) Source of referral;
    (v) Type of expected employment outcome;
    (vi) The need for specific services or anticipated cost of services 
required by an individual; or
    (vii) The income level of an individual or an individual's family.
    (3) Priority for individuals with the most severe disabilities. The 
State plan must assure that those individuals with the most severe 
disabilities are selected for service before other individuals with 
disabilities. The designated State unit shall establish criteria for 
determining which individuals are individuals with the most severe 
disabilities. The criteria must be consistent with the definition of 
``individual with a severe disability'' in section 7(15)(A) of the Act 
and the requirements in paragraphs (c) (1) and (2) of this section.
    (d) Administrative requirements. In administering the order of 
selection, the designated State unit shall--
    (1) Implement the order of selection on a statewide basis;
    (2) Notify all eligible individuals of the priority categories in a 
State's order of selection, their assignment to a particular category, 
and their right to appeal their category assignment;
    (3) Continue to provide all needed services to any eligible 
individual who has begun to receive services under an IWRP prior to the 
effective date of the order of selection, irrespective of the severity 
of the individual's disability;
    (4) Ensure that its funding arrangements for providing services 
under the State plan, including third-party arrangements and awards 
under the establishment authority, are consistent with the order of 
selection. If any funding arrangements are inconsistent with the order 
of selection, the designated State unit shall renegotiate these funding 
arrangements so that they are consistent with the order of selection.
    (e) State Rehabilitation Advisory Council. The designated State unit 
shall consult with and seriously consider the advice of the State 
Rehabilitation Advisory Council regarding the--
    (1) Need to establish an order of selection, including any 
reevaluation of

[[Page 287]]

the need under paragraph (b)(2) of this section;
    (2) Priority categories of the particular order of selection;
    (3) Criteria for determining individuals with the most severe 
disabilities; and
    (4) Administration of the order of selection.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 7(15)(A); 12(d); 17; 101(a)(4); 101(a)(5)(A); 
101(a)(7); 101(a)(11)(A); 101(a)(15)(D); 101(a)(24); 101(a)(30); 
101(a)(36)(A)(ii); 107(a)(4)(B); and 504(a) of the Act; 29 U.S.C. 
706(15)(A), 711(d), 716, 721(a)(4), 721(a)(5)(A), 721(a)(7), 
721(a)(11)(A), 721(a)(15)(D), 721(a)(24), 721(a)(30), 721(a)(36)(A)(ii), 
727(a)(4)(B), and 794(a))



Sec. 361.37  Establishment and maintenance of information and referral programs.

    (a) General provisions. The State plan must assure that--
    (1) The designated State unit will establish and maintain 
information and referral programs adequate to ensure that individuals 
with disabilities within the State are given accurate information about 
State vocational rehabilitation services, independent living services, 
vocational rehabilitation services available from other agencies, 
organizations, and community rehabilitation programs, and, to the extent 
possible, other Federal and State services and programs that assist 
individuals with disabilities, including client assistance and other 
protection and advocacy programs;
    (2) The State unit will refer individuals with disabilities to other 
appropriate Federal and State programs that might be of benefit to them; 
and
    (3) The State unit will use existing information and referral 
systems in the State to the greatest extent possible.
    (b) Appropriate modes of communication. The State plan further must 
assure that information and referral programs use appropriate modes of 
communication.
    (c) Special circumstances. If the State unit is operating under an 
order of selection for services, the State unit may elect to establish 
an expanded information and referral program that includes counseling, 
guidance, and referral for job placements for those eligible individuals 
who are not in the priority category or categories to receive vocational 
rehabilitation services under the State's order of selection.
    (1) If a State unit elects to establish an expanded information and 
referral program under paragraph (c) of this section, the State plan 
must include--
    (i) A description of how the expanded information and referral 
program will be established and how it will function, including the 
level of commitment of State unit staff and resources; and
    (ii) An assurance that, in carrying out this program, the State unit 
will not use funds that are needed to provide vocational rehabilitation 
services under IWRPs for eligible individuals in the priority category 
or categories receiving services under the State unit's order of 
selection or for other eligible individuals who have begun to receive 
services prior to the effective date of the order of selection.
    (2) If the designated State unit chooses to track the individuals 
who obtain employment through participation in an expanded information 
and referral program established under paragraph (c) of this section, 
the State plan must include a report of the number of individuals served 
and the number of individuals who obtain employment through this 
program.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(22) of the Act; 29 U.S.C. 721(a)(22))



Sec. 361.38  Protection, use, and release of personal information.

    (a) General provisions. (1) The State plan must assure that the 
State agency and the State unit will adopt and implement policies and 
procedures to safeguard the confidentiality of all personal information, 
including photographs and lists of names. These policies and procedures 
must assure that--
    (i) Specific safeguards protect current and stored personal 
information;
    (ii) All applicants and eligible individuals and, as appropriate, 
those individuals' representatives, service providers, cooperating 
agencies, and interested persons are informed through appropriate modes 
of communication of

[[Page 288]]

the confidentiality of personal information and the conditions for 
accessing and releasing this information;Sec. 361.38
    (iii) All applicants or their representatives are informed about the 
State unit need to collect personal information and the policies 
governing its use, including--
    (A) Identification of the authority under which information is 
collected;
    (B) Explanation of the principal purposes for which the State unit 
intends to use or release the information;
    (C) Explanation of whether providing requested information to the 
State unit is mandatory or voluntary and the effects of not providing 
requested information;
    (D) Identification of those situations in which the State unit 
requires or does not require informed written consent of the individual 
before information may be released; and
    (E) Identification of other agencies to which information is 
routinely released;
    (iv) An explanation of State policies and procedures affecting 
personal information will be provided to each individual in that 
individual's native language or through the appropriate mode of 
communication; and
    (v) These policies and procedures provide no fewer protections for 
individuals than State laws and regulations.
    (2) The State unit may establish reasonable fees to cover 
extraordinary costs of duplicating records or making extensive searches 
and shall establish policies and procedures governing access to records.
    (b) State program use. All personal information in the possession of 
the State agency or the designated State unit must be used only for the 
purposes directly connected with the administration of the vocational 
rehabilitation program. Information containing identifiable personal 
information may not be shared with advisory or other bodies that do not 
have official responsibility for administration of the program. In the 
administration of the program, the State unit may obtain personal 
information from service providers and cooperating agencies under 
assurances that the information may not be further divulged, except as 
provided under paragraphs (c), (d), and (e) of this section.
    (c) Release to applicants and eligible individuals. (1) Except as 
provided in paragraphs (c)(2) and (c)(3) of this section, if requested 
in writing by an applicant or eligible individual, the State unit shall 
make all requested information in that individual's record of services 
accessible to and shall release the information to the individual or the 
individual's representative in a timely manner.
    (2) Medical, psychological, or other information that the State unit 
determines may be harmful to the individual may not be released directly 
to the individual, but must be provided to the individual through a 
third party chosen by the individual, which may include, among others, 
an advocate, a family member, or a qualified medical or mental health 
professional, unless a representative has been appointed by a court to 
represent the individual, in which case the information must be released 
to the court-appointed representative.
    (3) If personal information has been obtained from another agency or 
organization, it may be released only by, or under the conditions 
established by, the other agency or organization.
    (4) An applicant or eligible individual who believes that 
information in the individual's record of services is inaccurate or 
misleading may request that the designated State unit amend the 
information. If the information is not amended, the request for an 
amendment must be documented in the record of services.
    (d) Release for audit, evaluation, and research. Personal 
information may be released to an organization, agency, or individual 
engaged in audit, evaluation, or research only for purposes directly 
connected with the administration of the vocational rehabilitation 
program, or for purposes that would significantly improve the quality of 
life for applicants and eligible individuals and only if the 
organization, agency, or individual assures that--
    (1) The information will be used only for the purposes for which it 
is being provided;

[[Page 289]]

    (2) The information will be released only to persons officially 
connected with the audit, evaluation, or research;
    (3) The information will not be released to the involved individual;
    (4) The information will be managed in a manner to safeguard 
confidentiality; and
    (5) The final product will not reveal any personal identifying 
information without the informed written consent of the involved 
individual or the individual's representative.
    (e) Release to other programs or authorities. (1) Upon receiving the 
informed written consent of the individual or, if appropriate, the 
individual's representative, the State unit may release personal 
information to another agency or organization for its program purposes 
only to the extent that the information may be released to the involved 
individual or the individual's representative and only to the extent 
that the other agency or organization demonstrates that the information 
requested is necessary for its program.
    (2) Medical or psychological information that the State unit 
determines may be harmful to the individual may be released if the other 
agency or organization assures the State unit that the information will 
be used only for the purpose for which it is being provided and will not 
be further released to the individual.
    (3) The State unit shall release personal information if required by 
Federal law or regulations.
    (4) The State unit shall release personal information in response to 
investigations in connection with law enforcement, fraud, or abuse, 
unless expressly prohibited by Federal or State laws or regulations, and 
in response to an order issued by a judge, magistrate, or other 
authorized judicial officer.
    (5) The State unit also may release personal information in order to 
protect the individual or others if the individual poses a threat to his 
or her safety or to the safety of others.

(Authority: Secs. 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C. 711(c) 
and 721(a)(6)(A))



Sec. 361.39  State-imposed requirements.

    The State plan must assure that the designated State unit identifies 
upon request those regulations and policies relating to the 
administration or operation of its vocational rehabilitation program 
that are State-imposed, including any regulations or policy based on 
State interpretation of any Federal law, regulations, or guideline.

(Authority: Sect. 17 of the Act; 29 U.S.C. 716)



Sec. 361.40  Reports.

    The State plan must assure that the State unit--
    (a) Will submit reports in the form and detail and at the time 
required by the Secretary, including reports required under sections 13, 
14, and 101(a)(10) of the Act; and
    (b) Will comply with any requirements necessary to ensure the 
correctness and verification of those reports.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 101(a)(10) of the Act; 29 U.S.C. 721(a)(10))

           State Plan Content: Provision and Scope of Services



Sec. 361.41  Processing referrals and applications.

    (a) Referrals. The State plan must assure that the designated State 
unit has established and implemented standards for the prompt and 
equitable handling of referrals of individuals for vocational 
rehabilitation services. The standards must include timelines for making 
good faith efforts to inform these individuals of application 
requirements and to gather information necessary to initiate an 
assessment for determining eligibility and priority for services.
    (b) Applications. (1) The State plan must assure that once an 
individual has submitted an application for vocational rehabilitation 
services, an eligibility determination will be made within 60 days, 
unless--
    (i) Exceptional and unforeseen circumstances beyond the control of 
the agency preclude a determination within 60 days and the agency and 
the individual agree to a specific extension of time; or
    (ii) An extended evaluation is necessary, in accordance with 
Sec. 361.42(d).

[[Page 290]]

    (2) An individual is considered to have submitted an application 
when the individual or the individual's representative, as 
appropriate,--
    (i) Has completed and signed an agency application form or has 
otherwise requested services;
    (ii) Has provided information necessary to initiate an assessment to 
determine eligibility and priority for services; and
    (iii) Is available to complete the assessment process.
    (3) The designated State unit shall ensure that its application 
forms are widely available throughout the State.

(Authority: Sec. 101(a)(6)(A) and 102(a)(5)(A) of the Act; 29 U.S.C. 
721(a)(6)(A) and 722(a)(5)(A))



Sec. 361.42  Assessment for determining eligibility and priority for services.

    The State plan must assure that, in order to determine whether an 
individual is eligible for vocational rehabilitation services and the 
individual's priority under an order of selection for services (if the 
State is operating under an order of selection), the designated State 
unit will conduct an assessment for determining eligibility and priority 
for services. The assessment must be conducted in the most integrated 
setting possible, consistent with the individual's needs and informed 
choice, and in accordance with the following provisions:
    (a) Eligibility requirements--(1) Basic requirements. The State plan 
must assure that the State unit's determination of an applicant's 
eligibility for vocational rehabilitation services is based only on the 
following requirements:
    (i) A determination that the applicant has a physical or mental 
impairment.
    (ii) A determination that the applicant's physical or mental 
impairment constitutes or results in a substantial impediment to 
employment for the applicant.
    (iii) A presumption, in accordance with paragraph (a)(2) of this 
section, that the applicant can benefit in terms of an employment 
outcome from the provision of vocational rehabilitation services.
    (iv) A determination that the applicant requires vocational 
rehabilitation services to prepare for, enter into, engage in, or retain 
gainful employment consistent with the applicant's strengths, resources, 
priorities, concerns, abilities, capabilities, and informed choice.
    (2) Presumption of benefit. The State plan must assure that the 
designated State unit will presume that an applicant who meets the 
eligibility requirements in paragraphs (a)(1) (i) and (ii) of this 
section can benefit in terms of an employment outcome unless it 
demonstrates, based on clear and convincing evidence, that the applicant 
is incapable of benefitting in terms of an employment outcome from 
vocational rehabilitation services.
    (3) Limited presumption for Social Security beneficiaries. The State 
plan must assure that, if an applicant has appropriate evidence, such as 
an award letter, that establishes the applicant's eligibility for Social 
Security benefits under title II or title XVI of the Social Security 
Act, the designated State unit will presume that the applicant--
    (i) Meets the eligibility requirements in paragraphs (a)(1) (i) and 
(ii) of this section; and
    (ii) Has a severe physical or mental impairment that seriously 
limits one or more functional capacities in terms of an employment 
outcome.
    (b) Prohibited factors. The State plan must assure that--
    (1) No duration of residence requirement is imposed that excludes 
from services any applicant who is present in the State;
    (2) No applicant or group of applicants is excluded or found 
ineligible solely on the basis of the type of disability;
    (3) The eligibility requirements are applied without regard to the 
age, gender, race, color, creed, or national origin of the applicant; 
and
    (4) The eligibility requirements are applied without regard to the 
particular service needs or anticipated cost of services required by an 
applicant or the income level of an applicant or applicant's family.
    (c) Review and assessment of data for eligibility determination. 
Except as provided in paragraph (d) of this section,

[[Page 291]]

the designated State unit shall base its determination of each of the 
basic eligibility requirements in paragraph (a) of this section on--
    (1) A review and assessment of existing data, including counselor 
observations, education records, information provided by the individual 
or the individual's family, information used by the Social Security 
Administration, and determinations made by officials of other agencies; 
and
    (2) To the extent existing data do not describe the current 
functioning of the individual or are unavailable, insufficient, or 
inappropriate to make an eligibility determination, an assessment of 
additional data resulting from the provision of vocational 
rehabilitation services, including assistive technology devices and 
services and worksite assessments, that are necessary to determine 
whether an individual is eligible.
    (d) Extended evaluation for individuals with severe disabilities. 
(1) Prior to any determination that an individual with a severe 
disability is incapable of benefitting from vocational rehabilitation 
services in terms of an employment outcome because of the severity of 
that individual's disability, the State unit shall conduct an extended 
evaluation to determine whether or not there is clear and convincing 
evidence to support such a determination.
    (2) During the extended evaluation period, which may not exceed 18 
months, vocational rehabilitation services must be provided in the most 
integrated setting possible, consistent with the informed choice of the 
individual.
    (3) During the extended evaluation period, the State unit shall 
develop a written plan for determining eligibility and for determining 
the nature and scope of services required to achieve an employment 
outcome. The State unit may provide during this period only those 
services that are necessary to make these two determinations.
    (4) The State unit shall assess the individual's progress as 
frequently as necessary, but at least once every 90 days, during the 
extended evaluation period.
    (5) The State unit shall terminate extended evaluation services at 
any point during the 18-month extended evaluation period if the State 
unit determines that--
    (i) There is sufficient evidence to conclude that the individual can 
benefit from the provision of vocational rehabilitation services in 
terms of an employment outcome; or
    (ii) There is clear and convincing evidence that the individual is 
incapable of benefiting from vocational rehabilitation services in terms 
of an employment outcome.
    (e) Data for determination of priority for services under an order 
of selection. If the State unit is operating under an order of selection 
for services, as provided in Sec. 361.36, the State unit shall base its 
priority assignments on--
    (1) A review of the data that was developed under paragraphs (c) and 
(d) of this section to make the eligibility determination; and
    (2) An assessment of additional data, to the extent necessary.

(Authority: Secs. 7(22)(A)(ii), 7(22)(C)(iii), 101(a)(9)(A), 101(a)(14), 
101(a)(31), 102(a)(1), 102(a)(2), 102(a)(3), 102(a)(4), 103(a)(4), and 
103(a)(6) of the Act; 29 U.S.C. 706(22)(A)(ii), 706(22)(C)(iii), 
721(a)(9)(a), 721(a)(14), 721(a)(31), 722(a)(1), 722(a)(2), 722(a)(3), 
722(a)(4), 723(a)(4), and 723(a)(6))
    Note: Clear and convincing evidence means that the designated State 
unit shall have a high degree of certainty before it can conclude that 
an individual is incapable of benefiting from services in terms of an 
employment outcome. The ``clear and convincing'' standard constitutes 
the highest standard used in our civil system of law and is to be 
individually applied on a case-by-case basis. The term clear means 
unequivocal. Given these requirements, a review of existing information 
generally would not provide clear and convincing evidence. For example, 
the use of an intelligence test result alone would not constitute clear 
and convincing evidence. Clear and convincing evidence might include a 
description of assessments, including situational assessments and 
supported employment assessments, from service providers who have 
concluded that they would be unable to meet the individual's needs due 
to the severity of the individual's disability. The demonstration of 
``clear and convincing evidence'' must include, if appropriate, a 
functional assessment of skill development activities, with any 
necessary supports (including assistive technology), in real life 
settings. (S. Rep. No. 357, 102d Cong., 2d. Sess. 37-38 (1992))

[[Page 292]]



Sec. 361.43  Procedures for ineligibility determination.

    The State plan must assure that if the State unit determines that an 
applicant is ineligible for vocational rehabilitation services or 
determines that an individual receiving services under an individualized 
written rehabilitation program is no longer eligible for services, the 
State unit shall--
    (a) Make the determination only after providing an opportunity for 
full consultation with the individual or, as appropriate, with the 
individual's representative;
    (b) Inform the individual in writing, supplemented as necessary by 
other appropriate modes of communication consistent with the informed 
choice of the individual, of the ineligibility determination, including 
the reasons for that determination, the requirements under this section, 
and the means by which the individual may express and seek remedy for 
any dissatisfaction, including the procedures for review of a 
determination by the rehabilitation counselor or coordinator in 
accordance with Sec. 361.57;
    (c) Provide the individual with a description of services available 
from a client assistance program established under 34 CFR part 370 and 
information on how to contact that program; and
    (d) Review within 12 months and annually thereafter if requested by 
the individual or, if appropriate, by the individual's representative 
any ineligibility determination that is based on a finding that the 
individual is incapable of achieving an employment outcome. This review 
need not be conducted in situations in which the individual has refused 
it, the individual is no longer present in the State, the individual's 
whereabouts are unknown, or the individual's medical condition is 
rapidly progressive or terminal.

(Authority: Secs. 101(a)(9)(D), 102(a)(6), and 102(c) of the Act; 29 
U.S.C. 721(a)(9), 722(a)(6), and 722(c))



Sec. 361.44  Closure without eligibility determination.

    The State plan must assure that the State unit may not close an 
applicant's record of services prior to making an eligibility 
determination unless the applicant declines to participate in, or is 
unavailable to complete an assessment for determining eligibility and 
priority for services, and the State unit has made a reasonable number 
of attempts to contact the applicant or, if appropriate, the applicant's 
representative to encourage the applicant's participation.

(Authority: Secs. 12(c) and 101(a)(6)(A) of the Act; 29 U.S.C. 711(c) 
and 721(a)(6))



Sec. 361.45  Development of the individualized written rehabilitation program.

    (a) Purpose. The State plan must assure that the State unit conducts 
an assessment for determining vocational rehabilitation needs for each 
eligible individual or, if the State is operating under an order of 
selection, for each eligible individual to whom the State is able to 
provide services. The purpose of this assessment is to determine the 
long-term vocational goal, intermediate rehabilitation objectives, and 
the nature and scope of vocational rehabilitation services to be 
included in the IWRP, which must be designed to achieve an employment 
outcome that is consistent with the individual's unique strengths, 
priorities, concerns, abilities, capabilities, career interests, and 
informed choice.
    (b) Procedural requirements. The State plan must assure that--
    (1) The IWRP is developed jointly, agreed to, and signed by the 
vocational rehabilitation counselor or coordinator and the individual 
or, as appropriate, the individual's representative within the framework 
of a counseling and guidance relationship;
    (2) The State unit has established and implemented standards for the 
prompt development of IWRPs for the individuals identified under 
paragraph (a) of this section, including timelines that take into 
consideration the needs of the individual;
    (3) The State unit advises each individual or, as appropriate, the 
individual's representative of all State unit procedures and 
requirements affecting the development and review of an IWRP, including 
the availability of appropriate modes of communication;
    (4) In developing an IWRP for a student with a disability who is 
receiving special education services, the State

[[Page 293]]

unit considers the student's individualized education program;
    (5) The State unit reviews the IWRP with the individual or, as 
appropriate, the individual's representative as often as necessary, but 
at least once each year to assess the individual's progress in meeting 
the objectives identified in the IWRP;
    (6) The State unit incorporates into the IWRP any revisions that are 
necessary to reflect changes in the individual's vocational goal, 
intermediate objectives, or vocational rehabilitation services, and 
obtains the agreement and signature of the individual or, as 
appropriate, of the individual's representative to the revisions; and
    (7) The State unit promptly provides each individual or, as 
appropriate, the individual's representative, a copy of the IWRP and its 
amendments in the native language, or appropriate mode of communication, 
of the individual or, as appropriate, of the individual's 
representative.
    (c) Data for preparing the IWRP--(1) Preparation without 
comprehensive assessment. To the extent possible, the vocational goal, 
intermediate objectives, and the nature and scope of rehabilitation 
services to be included in the individual's IWRP must be determined 
based on the data used for the assessment of eligibility and priority 
for services under Sec. 361.42.
    (2) Preparation based on comprehensive assessment. (i) If additional 
data are necessary to prepare the IWRP, the designated State unit shall 
conduct a comprehensive assessment of the unique strengths, resources, 
priorities, concerns, abilities, capabilities, interests, and needs, 
including the need for supported employment services, of an eligible 
individual, in the most integrated setting possible, consistent with the 
informed choice of the individual.
    (ii) The comprehensive assessment must be limited to information 
that is necessary to identify the rehabilitation needs of the individual 
and develop the IWRP and may, to the extent needed, include--
    (A) An analysis of pertinent medical, psychiatric, psychological, 
neuropsychological, and other pertinent vocational, educational, 
cultural, social, recreational, and environmental factors, and related 
functional limitations, that affect the employment and rehabilitation 
needs of the individual;
    (B) An analysis of the individual's personality, career interests, 
interpersonal skills, intelligence and related functional capacities, 
educational achievements, work experience, vocational aptitudes, 
personal and social adjustments, and employment opportunities;
    (C) An appraisal of the individual's patterns of work behavior and 
services needed to acquire occupational skills and to develop work 
attitudes, work habits, work tolerance, and social and behavior patterns 
suitable for successful job performance; and
    (D) An assessment, through provision of rehabilitation technology 
services, of the individual's capacities to perform in a work 
environment, including in an integrated setting, to the maximum extent 
feasible and consistent with the individual's informed choice.
    (iii) In preparing a comprehensive assessment, the State unit shall 
use, to the maximum extent possible and appropriate and in accordance 
with confidentiality requirements, existing information, including 
information that is provided by the individual, the family of the 
individual, and education agencies.

(Authority: Secs. 7(22)(B), 102(b)(1)(A), and 102(b)(2); 29 U.S.C. 
706(5), 721(a)(9), 722, and 723(a)(1))



Sec. 361.46  Content of the individualized written rehabilitation program.

    (a) General requirements. The State plan must assure that each IWRP 
includes, as appropriate, statements concerning--
    (1) The specific long-term vocational goal, which must be based on 
the assessment for determining vocational rehabilitation needs, 
including the individual's career interests, and must be, to the extent 
appropriate and consistent with the informed choice of the individual, 
in an integrated setting;
    (2) The specific intermediate rehabilitation objectives related to 
the attainment of the long-term vocational goal, based on the assessment 
for determining vocational rehabilitation needs and consistent with the 
informed choice of the individual;

[[Page 294]]

    (3) The specific rehabilitation services under Sec. 361.48 to be 
provided to achieve the established intermediate rehabilitation 
objectives, including, if appropriate, rehabilitation technology 
services and on-the-job and related personal assistance services;
    (4) The projected dates for the initiation of each vocational 
rehabilitation service, the anticipated duration of each service, and 
the projected timeframe for the achievement of the individual's 
vocational goal;
    (5) A procedure and schedule for periodic review and evaluation of 
progress toward achieving intermediate rehabilitation objectives based 
upon objective criteria;
    (6) How, in the words of the individual or, as appropriate, in the 
words of the individual's representative, the individual was informed 
about and involved in choosing among alternative goals, objectives, 
services, providers, and methods used to procure or provide services;
    (7) The terms and conditions for the provision of vocational 
rehabilitation services, including--
    (i) The responsibilities of the individual in implementing the IWRP;
    (ii) The extent of the individual's participation in the cost of 
services;
    (iii) The extent to which goods and services will be provided in the 
most integrated settings possible, consistent with the informed choices 
of the individual;
    (iv) The extent to which comparable services and benefits are 
available to the individual under any other program; and
    (v) The entity or entities that will provide the services and the 
process used to provide or procure the services;
    (8) The rights of the individual under this part and the means by 
which the individual may express and seek remedy for any 
dissatisfaction, including the opportunity for a review of 
rehabilitation counselor or coordinator determinations under 
Sec. 361.57;
    (9) The availability of a client assistance program established 
under 34 CFR part 370; and
    (10) The basis on which the individual has been determined to have 
achieved an employment outcome in accordance with Sec. 361.56.
    (b) Supported employment requirements. The State plan must assure 
that the IWRP for individuals with the most severe disabilities for whom 
a vocational goal in a supported employment setting has been determined 
to be appropriate will also contain--
    (1) A description of the supported employment services to be 
provided by the State unit; and
    (2) A description of the extended services needed and identification 
of the source of extended services or, in the event that identification 
of the source is not possible at the time the IWRP is developed, a 
statement explaining the basis for concluding that there is a reasonable 
expectation that services will become available.
    (c) Post-employment services. The State plan must assure that the 
IWRP for each individual contains statements concerning--
    (1) The expected need for post-employment services, based on an 
assessment during the development of the IWRP;
    (2) A reassessment of the need for post-employment services prior to 
the determination that the individual has achieved an employment 
outcome;
    (3) A description of the terms and conditions for the provision of 
any post-employment services, including the anticipated duration of 
those services, subsequent to the achievement of an employment outcome 
by the individual; and
    (4) If appropriate, a statement of how post-employment services will 
be provided or arranged through cooperative agreements with other 
service providers.
    (d) Coordination of services for students with disabilities who are 
receiving special education services. The State plan must assure that 
the IWRP for a student with a disability who is receiving special 
education services is coordinated with the individualized education 
program (IEP) for that individual in terms of the goals, objectives, and 
services identified in the IEP.
    (e) Ineligibility. The State plan must assure that the decision that 
an individual is not capable of achieving an employment outcome and is 
no longer eligible to receive services under an IWRP is made in 
accordance with the

[[Page 295]]

requirements in Sec. 361.43. The decision, and the reasons on which the 
decision was based, must be included as an amendment to the IWRP.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(9), 102(b)(1), 102(c), and 635(b)(6) of the 
Act; 29 U.S.C. 721(a)(9), 722, and 795n)



Sec. 361.47  Record of services.

    The State plan must assure that the designated State unit maintains 
for each applicant or eligible individual a record of services that 
includes, to the extent pertinent, the following documentation:
    (a) If an applicant has been determined to be an eligible 
individual, documentation supporting that determination in accordance 
with the requirements in Sec. 361.42.
    (b) If an applicant has been determined to be ineligible, 
documentation supporting that determination in accordance with the 
requirements of Sec. 361.43.
    (c) Documentation supporting the determination that an individual 
has a severe disability or a most severe disability.
    (d) If an individual with a severe disability requires an extended 
evaluation in order to determine whether the individual is an eligible 
individual, documentation supporting the need for an extended 
evaluation, documentation supporting the periodic assessments conducted 
during the extended evaluation, and the written plan developed during 
the extended evaluation, in accordance with the requirements in 
Sec. 361.42(d).
    (e) The IWRP, and any amendments to the IWRP, containing the 
information required under Sec. 361.46.
    (f) In accordance with Sec. 361.45(a), documentation supporting the 
development of the long-term vocational goal, intermediate 
rehabilitation objectives, and nature and scope of services included in 
the individual's IWRP and, for students with disabilities who are 
receiving special education services, in the student's IEP.
    (g) In the event that an individual's IWRP provides for services or 
a job placement in a non-integrated setting, a justification for that 
non-integrated setting.
    (h) Documentation of the periodic reviews and evaluations of 
progress toward achieving intermediate rehabilitation objectives 
conducted under Sec. 361.46(a)(5).
    (i) In the event that an individual obtains competitive employment, 
verification that the individual is compensated at or above the minimum 
wage and that the individual's wage and level of benefits are not less 
than that customarily paid by the employer for the same or similar work 
performed by non-disabled individuals in accordance with 
Sec. 361.5(b)(10)(ii).
    (j) Documentation concerning any action and decision resulting from 
a request by an individual for review of a rehabilitation counselor or 
coordinator determination under Sec. 361.57.

(Authority: Secs. 101(a)(6) and 101(a)(9) of the Act; 29 U.S.C. 
721(a)(6) and 721(a)(9))



Sec. 361.48  Scope of vocational rehabilitation services for individuals with disabilities.

    (a) The State plan must assure that, as appropriate to the 
vocational rehabilitation needs of each individual and consistent with 
each individual's informed choice, the following vocational 
rehabilitation services are available:
    (1) Assessment for determining eligibility and priority for services 
in accordance with Sec. 361.42.
    (2) Assessment for determining vocational rehabilitation needs in 
accordance with Sec. 361.45.
    (3) Vocational rehabilitation counseling and guidance.
    (4) Referral and other services necessary to help applicants and 
eligible individuals secure needed services from other agencies and to 
advise those individuals about client assistance programs established 
under 34 CFR part 370.
    (5) Physical and mental restoration services in accordance with the 
definition of that term in Sec. 361.5(b)(35).
    (6) Vocational and other training services, including personal and 
vocational adjustment training, books,

[[Page 296]]

tools, and other training materials, except that no training or training 
services in an institution of higher education (universities, colleges, 
community or junior colleges, vocational schools, technical institutes, 
or hospital schools of nursing) may be paid for with funds under this 
part unless maximum efforts have been made by the State unit and the 
individual to secure grant assistance in whole or in part from other 
sources to pay for that training.
    (7) Maintenance, in accordance with the definition of that term in 
Sec. 361.5(b)(31).
    (8) Transportation in connection with the rendering of any 
vocational rehabilitation service and in accordance with the definition 
of that term in Sec. 361.5(b)(49).
    (9) Vocational rehabilitation services to family members of an 
applicant or eligible individual if necessary to enable the applicant or 
eligible individual to achieve an employment outcome.
    (10) Interpreter services for individuals who are deaf and tactile 
interpreting services for individuals who are deaf-blind.
    (11) Reader services, rehabilitation teaching services, and 
orientation and mobility services for individuals who are blind.
    (12) Recruitment and training services to provide new employment 
opportunities in the fields of rehabilitation, health, welfare, public 
safety, law enforcement, and other appropriate public service 
employment.
    (13) Job search and placement assistance and job retention services.
    (14) Supported employment services in accordance with the definition 
of that term in Sec. 361.5(b)(46).
    (15) Personal assistance services in accordance with the definition 
of that term in Sec. 361.5(b)(34).
    (16) Post-employment services in accordance with the definition of 
that term in Sec. 361.5(b)(37).
    (17) Occupational licenses, tools, equipment, initial stocks, and 
supplies.
    (18) Rehabilitation technology in accordance with the definition of 
that term in Sec. 361.5(b)(39), including vehicular modification, 
telecommunications, sensory, and other technological aids and devices.
    (19) Transition services in accordance with the definition of that 
term in Sec. 361.5(b)(47).
    (20) Other goods and services determined necessary for the 
individual with a disability to achieve an employment outcome.
    (b) The State plan also must describe--
    (1) The manner in which a broad range of rehabilitation technology 
services will be provided at each stage of the rehabilitation process 
and on a statewide basis;
    (2) The training that will be provided to vocational rehabilitation 
counselors, client assistance personnel, and other related services 
personnel on the provision of rehabilitation technology services;
    (3) The manner in which assistive technology devices and services 
will be provided or worksite assessments will be made as part of the 
assessment for determining eligibility and vocational rehabilitation 
needs of an individual; and
    (4) The manner in which on-the-job and other related personal 
assistance services will be provided to assist individuals while they 
are receiving vocational rehabilitation services.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 101(a)(5)(C), 101(a)(26), 101(a)(31), and 103(a) of 
the Act; 29 U.S.C. 721(a)(5)(C), 721(a)(26), 721(a)(31), and 723(a))



Sec. 361.49  Scope of vocational rehabilitation services for groups of individuals with disabilities.

    (a) The State plan may also provide for the following vocational 
rehabilitation services for the benefit of groups of individuals with 
disabilities:
    (1) The establishment, development, or improvement of a public or 
other nonprofit community rehabilitation program that is used to provide 
services that promote integration and competitive employment, including 
under special circumstances, the construction of a facility for a public 
or nonprofit community rehabilitation program. Examples of ``special 
circumstances'' include the destruction by natural disaster of the only 
available center serving an area or a State determination that 
construction is

[[Page 297]]

necessary in a rural area because no other public agencies or private 
nonprofit organizations are currently able to provide services to 
individuals.
    (2) Telecommunications systems that have the potential for 
substantially improving vocational rehabilitation service delivery 
methods and developing appropriate programming to meet the particular 
needs of individuals with disabilities, including telephone, television, 
video description services, satellite, tactile-vibratory devices, and 
similar systems, as appropriate.
    (3) Special services to provide recorded material or video 
description services for individuals who are blind, captioned 
television, films, or video cassettes for individuals who are deaf, 
tactile materials for individuals who are deaf-blind, and other special 
services that provide information through tactile, vibratory, auditory, 
and visual media.
    (4) Technical assistance and support services, such as job site 
modification and other reasonable accommodations, to businesses that are 
not subject to title I of the Americans with Disabilities Act of 1990 
and that are seeking to employ individuals with disabilities.
    (5) In the case of small business enterprises operated by 
individuals with the most severe disabilities under the supervision of 
the State unit, including enterprises established under the Randolph-
Sheppard program, management services and supervision, acquisition of 
equipment, initial stocks and supplies, and initial operating expenses, 
in accordance with the following requirements:
    (i) ``Management services and supervision'' includes inspection, 
quality control, consultation, accounting, regulating, in-service 
training, and related services provided on a systematic basis to support 
and improve small business enterprises operated by individuals with the 
most severe disabilities. ``Management services and supervision'' may be 
provided throughout the operation of the small business enterprise.
    (ii) ``Initial stocks and supplies'' includes those items necessary 
to the establishment of a new business enterprise during the initial 
establishment period, which may not exceed six months.
    (iii) Costs of establishing a small business enterprise may include 
operational costs during the initial establishment period, which may not 
exceed six months.
    (iv) If the State plan provides for these services, it must contain 
an assurance that only individuals with the most severe disabilities 
will be selected to participate in this supervised program.
    (v) If the State plan provides for these services and the State unit 
chooses to set aside funds from the proceeds of the operation of the 
small business enterprises, the State plan also must assure that the 
State unit maintains a description of the methods used in setting aside 
funds and the purposes for which funds are set aside. Funds may be used 
only for small business enterprises purposes, and benefits that are 
provided to operators from set-aside funds must be provided on an 
equitable basis.
    (6) Other services that promise to contribute substantially to the 
rehabilitation of a group of individuals but that are not related 
directly to the IWRP of any one individual. Examples of those other 
services might include the purchase or lease of a bus to provide 
transportation to a group of applicants or eligible individuals or the 
purchase of equipment or instructional materials that would benefit a 
group of applicants or eligible individuals.
    (b) If the State plan provides for vocational rehabilitation 
services for groups of individuals, the State plan must assure that the 
designated State unit--
    (1) Develops and maintains written policies covering the nature and 
scope of each of the vocational rehabilitation services it provides and 
the criteria under which each service is provided; and
    (2) Maintains information to ensure the proper and efficient 
administration of those services in the form and detail and at the time 
required by the Secretary, including the types of services provided, the 
costs of those services, and, to the extent feasible, estimates of

[[Page 298]]

the numbers of individuals benefitting from those services.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 12(c), 101(a)(6), and 103(b) of the Act; 29 U.S.C. 
711(c), 721(a)(6), and 723(b))



Sec. 361.50  Written policies governing the provision of services for individuals with disabilities.

    The State plan must assure that the State unit develops and 
maintains written policies covering the nature and scope of each of the 
vocational rehabilitation services specified in Sec. 361.48 and the 
criteria under which each service is provided. The policies must ensure 
that the provision of services is based on the rehabilitation needs of 
each individual as identified in that individual's IWRP and is 
consistent with the individual's informed choice. The written policies 
may not establish any arbitrary limits on the nature and scope of 
vocational rehabilitation services to be provided to the individual to 
achieve an employment outcome. The policies must be developed in 
accordance with the following provisions:
    (a) Out-of-State services. (1) The State unit may establish a 
preference for in-State services, provided that the preference does not 
effectively deny an individual a necessary service. If the individual 
chooses an out-of-State service at a higher cost than an in-State 
service, if either service would meet the individual's rehabilitation 
needs, the designated State unit is not responsible for those costs in 
excess of the cost of the in-State service.
    (2) The State unit may not establish policies that effectively 
prohibit the provision of out-of-State services.
    (b) Payment for services. (1) The State unit shall establish and 
maintain written policies to govern the rates of payment for all 
purchased vocational rehabilitation services.
    (2) The State unit may establish a fee schedule designed to ensure a 
reasonable cost to the program for each service, provided that the 
schedule is--
    (i) Not so low as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permits exceptions so that individual needs 
can be addressed.
    (3) The State unit may not place absolute dollar limits on specific 
service categories or on the total services provided to an individual.
    (c) Duration of services. (1) The State unit may establish 
reasonable time periods for the provision of services provided that the 
time periods are--
    (i) Not so short as to effectively deny an individual a necessary 
service; and
    (ii) Not absolute and permit exceptions so that individual needs can 
be addressed.
    (2) The State unit may not establish absolute time limits on the 
provision of specific services or on the provision of services to an 
individual. The duration of each service needed by an individual must be 
determined on an individual basis and reflected in that individual's 
IWRP.
    (d) Authorization of services. The State unit shall establish 
policies related to the timely authorization of services, including any 
conditions under which verbal authorization can be given.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 12(c), 12(e)(2)(A), and 101(a)(6) of the Act and 29 
U.S.C. 711(c), 711(e)(2)(A), and 721(a)(6))



Sec. 361.51  Written standards for facilities and providers of services.

    The State plan must assure that the designated State unit 
establishes, maintains, makes available to the public, and implements 
written minimum standards for the various types of facilities and 
providers of services used by the State unit in providing vocational 
rehabilitation services, in accordance with the following requirements:
    (a) Accessibility of facilities. Any facility in which vocational 
rehabilitation services are provided must be accessible to individuals 
receiving services and must comply with the requirements of the 
Architectural Barriers Act of 1968, the Uniform Accessibility Standards 
and their implementing regulations in 41 CFR part 101, subpart 101-19.6, 
the Americans with Disabilities Act of 1990, and section 504 of the Act.
    (b) Personnel standards. (1) Qualified personnel. Providers of 
vocational rehabilitation services shall use qualified

[[Page 299]]

personnel, in accordance with any applicable national or State-approved 
or -recognized certification, licensing, or registration requirements, 
or, in the absence of these requirements, other comparable requirements 
(including State personnel requirements), that apply to the profession 
or discipline in which that category of personnel is providing 
vocational rehabilitation services.
    (2) Affirmative action. Providers of vocational rehabilitation 
services shall take affirmative action to employ and advance in 
employment qualified individuals with disabilities.
    (3) Special communication needs personnel. Providers of vocational 
rehabilitation services shall--
    (i) Include among their personnel, or obtain the services of, 
individuals able to communicate in the native languages of applicants 
and eligible individuals who have limited English speaking ability; and
    (ii) Ensure that appropriate modes of communication for all 
applicants and eligible individuals are used.
    (c) Fraud, waste, and abuse. Providers of vocational rehabilitation 
services shall have adequate and appropriate policies and procedures to 
prevent fraud, waste, and abuse.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 12(e)(2) (B), (D), and (E) and 101(a)(6)(B) of the 
Act; 29 U.S.C. 711(e) and 721(a)(6)(B))



Sec. 361.52  Opportunity to make informed choices.

    The State plan must describe the manner in which the State unit will 
provide each applicant, including individuals who are receiving services 
during an extended evaluation, and each eligible individual the 
opportunity to make informed choices throughout the vocational 
rehabilitation process in accordance with the following requirements:
    (a) Each State unit, in consultation with its State Rehabilitation 
Advisory Council, if it has one, shall develop and implement written 
policies and procedures that enable each individual to make an informed 
choice with regard to the selection of a long-term vocational goal, 
intermediate rehabilitation objectives, vocational rehabilitation 
services, including assessment services, and service providers. These 
policies and procedures must ensure that each individual receives, 
through appropriate modes of communication, information concerning the 
availability and scope of informed choice, the manner in which informed 
choice may be exercised, and the availability of support services for 
individuals with cognitive or other disabilities who require assistance 
in exercising informed choice.
    (b) In developing an individual's IWRP, the State unit shall provide 
the individual, or assist the individual in acquiring, information 
necessary to make an informed choice about the specific services, 
including the providers of those services, that are needed to achieve 
the individual's vocational goal. This information must include, at a 
minimum, information relating to the cost, accessibility, and duration 
of potential services, the consumer satisfaction with those services to 
the extent that information relating to consumer satisfaction is 
available, the qualifications of potential service providers, the types 
of services offered by those providers, and the degree to which services 
are provided in integrated settings.
    (c) In providing, or assisting the individual in acquiring, the 
information required under paragraph (b) of this section, the State unit 
may use, but is not limited to, the following methods or sources of 
information:
    (1) State or regional lists of services and service providers.
    (2) Periodic consumer satisfaction surveys and reports.
    (3) Referrals to other consumers, local consumer groups, or 
disability advisory councils qualified to discuss the services or 
service providers.
    (4) Relevant accreditation, certification, or other information 
relating to the qualifications of service providers.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 12(e)(1), 12(e)(2) (C) and (F), and 101(a)(29) of the 
Act; 29 U.S.C. 711(e) and 721(a)(29))

[[Page 300]]



Sec. 361.53  Availability of comparable services and benefits.

    (a) The State plan must assure that--
    (1) Prior to providing any vocational rehabilitation services to an 
eligible individual, or to members of the individual's family, except 
those services listed in paragraph (b) of this section, the State unit 
shall determine whether comparable services and benefits exist under any 
other program and whether those services and benefits are available to 
the individual;
    (2) If comparable services or benefits exist under any other program 
and are available to the eligible individual at the time needed to 
achieve the rehabilitation objectives in the individual's IWRP, the 
State unit shall use those comparable services or benefits to meet, in 
whole or in part, the cost of vocational rehabilitation services; and
    (3) If comparable services or benefits exist under any other 
program, but are not available to the individual at the time needed to 
satisfy the rehabilitation objectives in the individual's IWRP, the 
State unit shall provide vocational rehabilitation services until those 
comparable services and benefits become available.
    (b) The following services are exempt from a determination of the 
availability of comparable services and benefits under paragraph (a) of 
this section:
    (1) Assessment for determining eligibility and priority for 
services.
    (2) Assessment for determining vocational rehabilitation needs.
    (3) Vocational rehabilitation counseling, guidance, and referral 
services.
    (4) Vocational and other training services, such as personal and 
vocational adjustment training, books (including alternative format 
books accessible by computer and taped books), tools, and other training 
materials in accordance with Sec. 361.48(a)(6).
    (5) Placement services.
    (6) Rehabilitation technology.
    (7) Post-employment services consisting of the services listed under 
paragraphs (b) (1) through (6) of this section.
    (c) The requirements of paragraph (a) of this section also do not 
apply if--
    (1) The determination of the availability of comparable services and 
benefits under any other program would delay the provision of vocational 
rehabilitation services to any individual who is determined to be at 
extreme medical risk, based on medical evidence provided by an 
appropriate qualified medical professional; or
    (2) An immediate job placement would be lost due to a delay in the 
provision of comparable services and benefits.

(Authority: Sec. 101(a)(8) of the Act; 29 U.S.C. 721(a)(8))



Sec. 361.54  Participation of individuals in cost of services based on financial need.

    (a) No Federal requirement. There is no Federal requirement that the 
financial need of individuals be considered in the provision of 
vocational rehabilitation services.
    (b) State unit requirements. (1) The State unit may choose to 
consider the financial need of eligible individuals or individuals who 
are receiving services during an extended evaluation for purposes of 
determining the extent of their participation in the costs of vocational 
rehabilitation services, other than those services identified in 
paragraph (b)(3) of this section.
    (2) If the State unit chooses to consider financial need--
    (i) It shall maintain written policies covering the determination of 
financial need;
    (ii) The State plan must specify the types of vocational 
rehabilitation services for which the unit has established a financial 
needs test;
    (iii) The policies must be applied uniformly to all individuals in 
similar circumstances;
    (iv) The policies may require different levels of need for different 
geographic regions in the State, but must be applied uniformly to all 
individuals within each geographic region; and
    (v) The policies must ensure that the level of an individual's 
participation in the cost of vocational rehabilitation services is--
    (A) Reasonable;
    (B) Based on the individual's financial need, including 
consideration of any disability-related expenses paid by the individual; 
and

[[Page 301]]

    (C) Not so high as to effectively deny the individual a necessary 
service.
    (3) The State plan must assure that no financial needs test is 
applied and no financial participation is required as a condition for 
furnishing the following vocational rehabilitation services:
    (i) Assessment for determining eligibility and priority for 
services, except those non-assessment services that are provided during 
an extended evaluation for an individual with a severe disability under 
Sec. 361.42(d).
    (ii) Assessment for determining vocational rehabilitation needs.
    (iii) Vocational rehabilitation counseling, guidance, and referral 
services.
    (iv) Placement services.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 711(c))



Sec. 361.55  Review of extended employment in community rehabilitation programs or other employment under section 14(c) of the Fair Labor Standards Act.

    The State plan must assure that the State unit--
    (a) Reviews and re-evaluates at least annually the status of each 
individual determined by the State unit to have achieved an employment 
outcome in an extended employment setting in a community rehabilitation 
program or other employment setting in which the individual is 
compensated in accordance with section 14(c) of the Fair Labor Standards 
Act. This review or re-evaluation must include input from the individual 
or, in an appropriate case, the individual's representative to determine 
the interests, priorities, and needs of the individual for employment 
in, or training for, competitive employment in an integrated setting in 
the labor market;
    (b) Makes maximum effort, including the identification of vocational 
rehabilitation services, reasonable accommodations, and other support 
services, to enable the eligible individual to benefit from training in, 
or to be placed in employment in, an integrated setting; and
    (c) Provides services designed to promote movement from extended 
employment to integrated employment, including supported employment, 
independent living, and community participation.

(Authority: Sec. 101(a)(16) of the Act; 29 U.S.C. 721(a)(16))



Sec. 361.56  Individuals determined to have achieved an employment outcome.

    The State plan must assure that an individual is determined to have 
achieved an employment outcome only if the following requirements are 
met:
    (a) The provision of services under the individual's IWRP has 
contributed to the achievement of the employment outcome.
    (b) The employment outcome is consistent with the individual's 
strengths, resources, priorities, concerns, abilities, capabilities, 
interests, and informed choice.
    (c) The employment outcome is in the most integrated setting 
possible, consistent with the individual's informed choice.
    (d) The individual has maintained the employment outcome for a 
period of at least 90 days.
    (e) At the end of the appropriate period under paragraph (d) of this 
section, the individual and the rehabilitation counselor or coordinator 
consider the employment outcome to be satisfactory and agree that the 
individual is performing well on the job.

(Authority: Secs. 12(c), 101(a)(6), and 106(a)(2) of the Act; 29 U.S.C. 
711(c), 721(a)(6), and 726(a)(2))



Sec. 361.57  Review of rehabilitation counselor or coordinator determinations.

    The State plan must contain procedures, including standards of 
review under paragraph (b)(7) of this section, established by the 
director of the designated State unit to ensure that any applicant or 
eligible individual who is dissatisfied with any determinations made by 
a rehabilitation counselor or coordinator concerning the furnishing or 
denial of services may request, or, if appropriate, may request through 
the individual's representative, a timely review of those 
determinations. The procedures established by the director

[[Page 302]]

of the State unit must be in accordance with the following provisions:
    (a) Informal resolution. The State unit may establish an informal 
process to resolve a request for review without conducting a formal 
hearing. However, a State's informal process must be conducted and 
concluded within the time period established under paragraph (b)(1) of 
this section for holding a formal hearing. If informal resolution is not 
successful, a formal hearing must be conducted by the end of this same 
period, unless the parties agree to a specific extension of time.
    (b) Formal hearing procedures. Except as provided in paragraph (d) 
of this section, the State unit shall establish formal review procedures 
that provide that--
    (1) A hearing by an impartial hearing officer, selected in 
accordance with paragraph (c) of this section, must be held within 45 
days of an individual's request for review, unless informal resolution 
is achieved prior to the 45th day or the parties agree to a specific 
extension of time;
    (2) The State unit may not institute a suspension, reduction, or 
termination of services being provided under an IWRP pending a final 
determination of the formal hearing under this paragraph or informal 
resolution under paragraph (a) of this section, unless the individual 
or, in an appropriate case, the individual's representative so requests 
or the agency has evidence that the services have been obtained through 
misrepresentation, fraud, collusion, or criminal conduct on the part of 
the individual;
    (3) The individual or, if appropriate, the individual's 
representative must be afforded an opportunity to present additional 
evidence, information, and witnesses to the impartial hearing officer, 
to be represented by counsel or other appropriate advocate, and to 
examine all witnesses and other relevant sources of information and 
evidence;
    (4) The impartial hearing officer shall make a decision based on the 
provisions of the approved State plan, the Act, Federal vocational 
rehabilitation regulations, and State regulations and policies that are 
consistent with Federal requirements and shall provide to the individual 
or, if appropriate, the individual's representative and to the director 
of the designated State unit a full written report of the findings and 
grounds for the decision within 30 days of the completion of the 
hearing;
    (5) If the director of the designated State unit decides to review 
the decision of the impartial hearing officer, the director shall notify 
in writing the individual or, if appropriate, the individual's 
representative of that intent within 20 days of the mailing of the 
impartial hearing officer's decision;
    (6) If the director of the designated State unit fails to provide 
the notice required by paragraph (b)(5) of this section, the impartial 
hearing officer's decision becomes a final decision;
    (7) The decision of the director of the designated State unit to 
review any impartial hearing officer's decision must be based on 
standards of review contained in written State unit policy;
    (8) If the director of the designated State unit decides to review 
the decision of the impartial hearing officer, the director shall 
provide the individual or, if appropriate, the individual's 
representative an opportunity to submit additional evidence and 
information relevant to the final decision;
    (9) The director may not overturn or modify a decision, or part of a 
decision, of an impartial hearing officer that supports the position of 
the individual unless the director concludes, based on clear and 
convincing evidence, that the decision of the impartial hearing officer 
is clearly erroneous because it is contrary to the approved State plan, 
the Act, Federal vocational rehabilitation regulations, or State 
regulations or policies that are consistent with Federal requirements;
    (10) Within 30 days of providing notice of intent to review the 
impartial hearing officer's decision, the director of the designated 
State unit shall make a final decision and provide a full report in 
writing of the decision, including the findings and the statutory, 
regulatory, or policy grounds for the decision, to the individual or, if 
appropriate, the individual's representative;
    (11) The director of the designated State unit may not delegate 
responsibility to make any final decision to any other officer or 
employee of the designated State unit; and

[[Page 303]]

    (12) Except for the time limitations established in paragraphs 
(b)(1) and (b)(5) of this section, each State's review procedures may 
provide for reasonable time extensions for good cause shown at the 
request of a party or at the request of both parties.
    (c) Selection of impartial hearing officers. Except as provided in 
paragraph (d) of this section, the impartial hearing officer for a 
particular case must be selected--
    (1) From among the pool of persons qualified to be an impartial 
hearing officer, as defined in Sec. 361.5(b)(22), who are identified by 
the State unit, if the State unit is an independent commission, or 
jointly by the designated State unit and those members of the State 
Rehabilitation Advisory Council designated in section 102(d)(2)(C) of 
the Act, if the State has a Council; and
    (2)(i) On a random basis; or
    (ii) By agreement between the director of the designated State unit 
and the individual or, if appropriate, the individual's representative.
    (d) State fair hearing board. The provisions of paragraphs (b) and 
(c) of this section are not applicable if the State has a fair hearing 
board that was established before January 1, 1985, that is authorized 
under State law to review rehabilitation counselor or coordinator 
determinations and to carry out the responsibilities of the director of 
the designated State unit under this section.
    (e) Informing affected individuals. The State unit shall inform, 
through appropriate modes of communication, all applicants and eligible 
individuals of--
    (1) Their right to review under this section, including the names 
and addresses of individuals with whom appeals may be filed; and
    (2) The manner in which an impartial hearing officer will be 
selected consistent with the requirements of paragraph (c) of this 
section.
    (f) Data collection. The director of the designated State unit shall 
collect and submit, at a minimum, the following data to the Secretary 
for inclusion each year in the annual report to Congress under section 
13 of the Act:
    (1) The number of appeals to impartial hearing officers and the 
State director, including the type of complaints and the issues 
involved.
    (2) The number of decisions by the State director reversing in whole 
or in part a decision of the impartial hearing officer.
    (3) The number of decisions affirming the position of the 
dissatisfied individual assisted through the client assistance program, 
when that assistance is known to the State unit.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Secs. 102(b) and 102(d) of the Act; 29 U.S.C. 722(b) and 
722(d))



    Subpart C--Financing of State Vocational Rehabilitation Programs



Sec. 361.60  Matching requirements.

    (a) Federal share--(1) General. Except as provided in paragraphs 
(a)(2) and (a)(3) of this section, the Federal share for expenditures 
made by the State unit under the State plan, including expenditures for 
the provision of vocational rehabilitation services, administration of 
the State plan, and the development and implementation of the strategic 
plan, is 78.7 percent.
    (2) Construction projects. The Federal share for expenditures made 
for the construction of a facility for community rehabilitation program 
purposes may not be more than 50 percent of the total cost of the 
project.
    (3) Innovation and expansion grant activities. The Federal share for 
the cost of innovation and expansion grant activities funded by 
appropriations under part C of title I of the Act is 90 percent.
    (b) Non-Federal share--(1) General. Except as provided in paragraphs 
(b)(2) and (b)(3) of this section, expenditures made under the State 
plan to meet the non-Federal share under this section must be consistent 
with the provisions of 34 CFR 80.24.
    (2) Third party in-kind contributions. Third party in-kind 
contributions specified in 34 CFR 80.24(a)(2) may not be used to meet 
the non-Federal share under this section.
    (3) Contributions by private entities. Expenditures made from 
contributions by private organizations, agencies, or individuals that 
are deposited in the account of the State agency or sole local agency in 
accordance with State

[[Page 304]]

law and that are earmarked, under a condition imposed by the 
contributor, may be used as part of the non-Federal share under this 
section if the following requirements are met:
    (i) The funds are earmarked for meeting in whole or in part the 
State's share for establishing a community rehabilitation program or 
constructing a particular facility for community rehabilitation program 
purposes.
    (ii) If the funds are earmarked for any other purpose under the 
State plan, the expenditures do not benefit in any way the donor, an 
individual to whom the donor is related by blood or marriage or with 
whom the donor has a close personal relationship, or an individual, 
entity, or organization with whom the donor shares a financial interest. 
The Secretary does not consider a donor's receipt from the State unit of 
a grant, subgrant, or contract with funds allotted under this part to be 
a benefit for the purposes of this paragraph if the grant, subgrant, or 
contract is awarded under the State's regular competitive procedures.

(Authority: Secs. 7(7), 101(a)(3), and 104 of the Act; 29 U.S.C. 706(7), 
721(a)(3) and 724)
    Note: The Secretary notes that contributions may be earmarked in 
accordance with paragraph (b)(3)(ii) of this section for providing 
particular services (e.g., rehabilitation technology services); serving 
individuals with certain types of disabilities (e.g., individuals who 
are blind), consistent with the State's order of selection, if 
applicable; providing services to special groups that State or Federal 
law permits to be targeted for services (e.g., students with 
disabilities who are receiving special education services), consistent 
with the State's order of selection, if applicable; or carrying out 
particular types of administrative activities permissible under State 
law. Contributions also may be restricted to particular geographic areas 
to increase services or expand the scope of services that are available 
statewide under the State plan. However, if a contribution is earmarked 
for a restricted geographic area, expenditures from that contribution 
may be used to meet the non-Federal share requirement only if the State 
unit requests and the Secretary approves a waiver of statewideness, in 
accordance with Sec. 361.26.



Sec. 361.61  Limitation on use of funds for construction expenditures.

    No more than 10 percent of a State's allotment for any fiscal year 
under section 110 of the Act may be spent on the construction of 
facilities for community rehabilitation program purposes.

(Authority: Sec. 101(a)(17)(A) of the Act; 29 U.S.C. 721(a)(17)(A))



Sec. 361.62  Maintenance of effort requirements.

    (a) General requirements. (1) The Secretary reduces the amount 
otherwise payable to a State for a fiscal year by the amount by which 
the total expenditures from non-Federal sources under the State plan for 
the previous fiscal year were less than the total of those expenditures 
for the fiscal year two years prior to the previous fiscal year. For 
example, for fiscal year 1996, a State's maintenance of effort level is 
based on the amount of its expenditures from non-Federal sources for 
fiscal year 1994. Thus, if the State's non-Federal expenditures in 1996 
are less than they were in 1994, the State has a maintenance of effort 
deficit, and the Secretary reduces the State's allotment in 1997 by the 
amount of that deficit.
    (2) If, at the time the Secretary makes a determination that a State 
has failed to meet its maintenance of effort requirements, it is too 
late for the Secretary to make a reduction in accordance with paragraph 
(a)(1) of this section, then the Secretary recovers the amount of the 
maintenance of effort deficit through audit disallowance.
    (b) Specific requirements for construction of facilities. If the 
State plan provides for the construction of a facility for community 
rehabilitation program purposes, the amount of the State's share of 
expenditures for vocational rehabilitation services under the plan, 
other than for the construction of a facility for community 
rehabilitation program purposes or the establishment of a facility for 
community rehabilitation purposes, must be at least equal to the 
expenditures for those services for the second prior fiscal year. If a 
State fails to meet the requirements of this paragraph, the Secretary 
recovers the amount of the maintenance of effort deficit through audit 
disallowance.
    (c) Separate State agency for vocational rehabilitation services for 
individuals who are blind. If there is a separate part of

[[Page 305]]

the State plan administered by a separate State agency to provide 
vocational rehabilitation services for individuals who are blind--
    (1) Satisfaction of the maintenance of effort requirements under 
paragraphs (a) and (b) of this section are determined based on the total 
amount of a State's non-Federal expenditures under both parts of the 
State plan; and
    (2) If a State fails to meet any maintenance of effort requirement, 
the Secretary reduces the amount otherwise payable to the State for that 
fiscal year under each part of the plan in direct relation to the amount 
by which expenditures from non-Federal sources under each part of the 
plan in the previous fiscal year were less than they were for that part 
of the plan for the fiscal year two years prior to the previous fiscal 
year.
    (d) Waiver or modification. (1) The Secretary may waive or modify 
the maintenance of effort requirement in paragraph (a)(1) of this 
section if the Secretary determines that a waiver or modification is 
necessary to permit the State to respond to exceptional or 
uncontrollable circumstances, such as a major natural disaster or a 
serious economic downturn, that--
    (i) Cause significant unanticipated expenditures or reductions in 
revenue; and
    (ii) Result in--
    (A) A general reduction of programs within the State; or
    (B) The State making substantial expenditures in the vocational 
rehabilitation program for long-term purposes due to the one-time costs 
associated with the construction of a facility for community 
rehabilitation program purposes, the establishment of a facility for 
community rehabilitation program purposes, or the acquisition of 
equipment.
    (2) The Secretary may waive or modify the maintenance of effort 
requirement in paragraph (b) of this section or the 10 percent allotment 
limitation in Sec. 361.61 if the Secretary determines that a waiver or 
modification is necessary to permit the State to respond to exceptional 
or uncontrollable circumstances, such as a major natural disaster, that 
result in significant destruction of existing facilities and require the 
State to make substantial expenditures for the construction of a 
facility for community rehabilitation program purposes or the 
establishment of a facility for community rehabilitation program 
purposes in order to provide vocational rehabilitation services.
    (3) A written request for waiver or modification, including 
supporting justification, must be submitted to the Secretary as soon as 
the State determines that an exceptional or uncontrollable circumstance 
will prevent it from making its required expenditures from non-Federal 
sources.

(Authority: Secs. 101(a)(17) and 111(a)(2) of the Act; 29 U.S.C. 
721(a)(17) and 731(a)(2))



Sec. 361.63  Program income.

    (a) Definition--Program income means gross income received by the 
State that is directly generated by an activity supported under this 
part.
    (b) Sources. Sources of program income include, but are not limited 
to, payments from the Social Security Administration for rehabilitating 
Social Security beneficiaries, payments received from workers' 
compensation funds, fees for services to defray part or all of the costs 
of services provided to particular individuals, and income generated by 
a State-operated community rehabilitation program.
    (c) Use of program income. (1) Except as provided in paragraph 
(c)(2) of this section, program income, whenever earned, must be used 
for the provision of vocational rehabilitation services, the 
administration of the State plan, and developing and implementing the 
strategic plan. Program income is considered earned when it is received.
    (2) Payments provided to a State from the Social Security 
Administration for rehabilitating Social Security beneficiaries may also 
be used to carry out programs under part B of title I of the Act (client 
assistance), part C of title I of the Act (innovation and expansion), 
part C of title VI of the Act (supported employment) and title VII of 
the Act (independent living).
    (3) The State is authorized to treat program income as--
    (i) An addition to the grant funds to be used for additional 
allowable program expenditures, in accordance with 34 CFR 80.25(g)(2); 
or

[[Page 306]]

    (ii) A deduction from total allowable costs, in accordance with 34 
CFR 80.25(g)(1).
    (4) Program income may not be used to meet the non-Federal share 
requirement under Sec. 361.60.

(Authority: Sec. 108 of the Act; 29 U.S.C. 728; 34 CFR 80.25)



Sec. 361.64  Obligation of Federal funds and program income.

    (a) Except as provided in paragraph (b) of this section, any Federal 
funds, including reallotted funds, that are appropriated for a fiscal 
year to carry out a program under this part that are not obligated by 
the State unit by the beginning of the succeeding fiscal year and any 
program income received during a fiscal year that is not obligated by 
the State unit by the beginning of the succeeding fiscal year must 
remain available for obligation by the State unit during that succeeding 
fiscal year.
    (b) Federal funds appropriated for a fiscal year remain available 
for obligation in the succeeding fiscal year only to the extent that the 
State unit met the matching requirement for those Federal funds by 
obligating, in accordance with 34 CFR 76.707, the non-Federal share in 
the fiscal year for which the funds were appropriated.

(Authority: Sec. 19 of the Act; 29 U.S.C. 718)



Sec. 361.65  Allotment and payment of Federal funds for vocational rehabilitation services.

    (a) Allotment. (1) The allotment of Federal funds for vocational 
rehabilitation services for each State is computed in accordance with 
the requirements of section 110 of the Act, and payments are made to the 
State on a quarterly basis, unless some other period is established by 
the Secretary.
    (2) If the State plan designates one State agency to administer, or 
supervise the administration of, the part of the plan under which 
vocational rehabilitation services are provided for individuals who are 
blind and another State agency to administer the rest of the plan, the 
division of the State's allotment is a matter for State determination.
    (b) Reallotment. (1) The Secretary determines not later than 45 days 
before the end of a fiscal year which States, if any, will not use their 
full allotment.
    (2) As soon as possible, but not later than the end of the fiscal 
year, the Secretary reallots these funds to other States that can use 
those additional funds during the current or subsequent fiscal year, 
provided the State can meet the matching requirement by obligating the 
non-Federal share of any reallotted funds in the fiscal year for which 
the funds were appropriated.
    (3) Funds reallotted to another State are considered to be an 
increase in the recipient State's allotment for the fiscal year for 
which the funds were appropriated.

(Authority: Secs. 110 and 111 of the Act; 29 U.S.C. 730 and 731)



  Subpart D--Strategic Plan for Innovation and Expansion of Vocational 
                         Rehabilitation Services



Sec. 361.70  Purpose of the strategic plan.

    The State shall prepare a statewide strategic plan, in accordance 
with Sec. 361.71, to develop and use innovative approaches for achieving 
long-term success in expanding and improving vocational rehabilitation 
services, including supported employment services, provided under the 
State plan, including the supported employment supplement to the State 
plan required under 34 CFR part 363.

(Authority: Sec. 120 of the Act; 29 U.S.C. 740)



Sec. 361.71  Procedures for developing the strategic plan.

    (a) Public input. (1) The State unit shall meet with and receive 
recommendations from members of the State Rehabilitation Advisory 
Council, if the State has a Council, and the Statewide Independent 
Living Council prior to developing the strategic plan.
    (2) The State unit shall solicit public input on the strategic plan 
prior to or at the public meetings on the State plan, in accordance with 
the requirements of Sec. 361.20.
    (3) The State unit shall consider the recommendations received under 
paragraphs (a)(1) and (a)(2) of this section and, if the State rejects 
any recommendations, shall include a written

[[Page 307]]

explanation of the reasons for those rejections in the strategic plan.
    (4) The State unit shall develop a procedure to ensure ongoing 
comment from the Council or Councils, if applicable, as the plan is 
being implemented.
    (b) Duration. The strategic plan must cover a three-year period.
    (c) Revisions. The State unit shall revise the strategic plan on an 
annual basis to reflect the unit's actual experience over the previous 
year and input from the State Rehabilitation Advisory Council, if the 
State has a Council, individuals with disabilities, and other interested 
parties.
    (d) Dissemination. The State unit shall disseminate widely the 
strategic plan to individuals with disabilities, disability 
organizations, rehabilitation professionals, and other interested 
persons and shall make the strategic plan available in accessible 
formats and appropriate modes of communication.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 122 of the Act; 29 U.S.C. 742)



Sec. 361.72  Content of the strategic plan.

    The strategic plan must include--
    (a) A statement of the mission, philosophy, values, and principles 
of the vocational rehabilitation program in the State;
    (b) Specific goals and objectives for expanding and improving the 
system for providing vocational rehabilitation services;
    (c) Specific multi-faceted and systemic approaches for accomplishing 
the objectives, including interagency coordination and cooperation, that 
build upon state-of-the-art practices and research findings and that 
implement the State plan and the supplement to the State plan submitted 
under 34 CFR part 363;
    (d) A description of the specific programs, projects, and activities 
funded under this subpart, including how the programs, projects, and 
activities accomplish the objectives of the subpart, and the resource 
allocation and budget for the programs, projects, and activities; and
    (e) Specific criteria for determining whether the objectives have 
been achieved, including an assurance that the State will conduct an 
annual evaluation to determine the extent to which the objectives have 
been achieved and, if specific objectives have not been achieved, the 
reasons that the objectives have not been achieved and a description of 
alternative approaches that will be taken.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sec. 121 of the Act; 29 U.S.C. 741)



Sec. 361.73  Use of funds.

    (a) A State unit shall use all grant funds received under title I, 
part C of the Act to carry out programs and activities that are 
identified under the State's strategic plan, including but not limited 
to those programs and activities that are identified in paragraph (b) of 
this section.
    (b) A State unit shall use at least 1.5 percent of the funds 
received under section 111 of the Act to carry out one or more of the 
following types of programs and activities that are identified in the 
State's strategic plan:
    (1) Programs to initiate or expand employment opportunities for 
individuals with severe disabilities in integrated settings that allow 
for the use of on-the-job training to promote the objectives of title I 
of the Americans with Disabilities Act of 1990.
    (2) Programs or activities to improve or expand the provision of 
employment services in integrated settings to individuals with sensory, 
cognitive, physical, and mental impairments who traditionally have not 
been served by the State vocational rehabilitation agency.
    (3) Programs or activities to maximize the ability of individuals 
with disabilities to use rehabilitation technology in employment 
settings.
    (4) Programs or activities that assist employers in accommodating, 
evaluating, training, or placing individuals with disabilities in the 
workplace of the employer consistent with the provisions of the Act and 
title I of the Americans with Disabilities Act of 1990. These programs 
or activities may include short-term technical assistance or other 
effective strategies.
    (5) Programs or activities that expand and improve the extent and 
type of an individual's involvement in the

[[Page 308]]

review and selection of his or her training and employment goals.
    (6) Programs or activities that expand and improve opportunities for 
career advancement for individuals with severe disabilities.
    (7) Programs, projects, or activities designed to initiate, expand, 
or improve working relationships between vocational rehabilitation 
services provided under title I of the Act and independent living 
services provided under title VII of the Act.
    (8) Programs, projects, or activities designed to improve 
functioning of the system for del